Senate Hearings
The administration began making its case for the bill before the Senate Judiciary Committee on March 10, 1937. Attorney General Cummings' testimony was grounded on four basic complaints of the administration:
- the reckless use of injunctions by the courts to pre-empt the operation of New Deal legislation;
- aged and infirm judges who declined to retire;
- crowded dockets at all levels of the federal court system; and
- the need for a reform which would infuse "new blood" in the federal court system.
Administration advisor Robert H. Jackson testified next, attacking the Supreme Court's alleged misuse of judicial review and the ideological perspective of the majority. Further administration witnesses were grilled by the committee, so much so that after two weeks less than half the administration's witnesses had been called. Exasperated by the stall tactics they were meeting on the committee, administration officials decided to call no further witnesses; it later proved to be a tactical blunder, allowing the opposition to indefinitely drag-on the committee hearings. Further setbacks for the administration occurred in the failure of farm and labor interests to align with the administration.
However, once the bill's opposition had gained the floor, it pressed its upper hand, continuing hearings as long as public sentiment against the bill remained in doubt. Of note for the opposition was the testimony of Harvard University law professor Erwin Griswold. Specifically attacked by Griswold's testimony was the claim made by the administration that Roosevelt's court expansion plan had precedent in U.S. history and law. While it was true the size of the Supreme Court had been expanded since the founding in 1789, it had never been done for reasons similar to Roosevelt's. The following table lists all the expansions of the court:
| Year | Size | Enacting Legislation | Comments |
|---|---|---|---|
| 1789 | 6 | Judiciary Act of 1789 | Original court with Chief Justice & five associate justices; two justices for each of the three circuit courts. (1 Stat. 73) |
| 1801 | 5 | Judiciary Act of 1801 | Lameduck Federalists, at end of President John Adams's administration, greatly expand federal courts and reduce the number of associate justices¹ to four in order to dominate the judiciary and hinder judicial appointments by incoming President Thomas Jefferson. (2 Stat. 89) |
| 1802 | 6 | Judiciary Act of 1802 | Judiciary Act of 1801 repealed by Democratic-Republicans; no seat on the court actually abolished. (2 Stat. 132) |
| 1807 | 7 | Seventh Circuit Act | Created a new circuit court for OH, KY, & TN; Jefferson appoints the new associate justice. (2 Stat. 420) |
| 1837 | 9 | Eighth & Ninth Circuits Act | Signed by President Andrew Jackson on his last full day in office; Jackson nominates two associate justices, both confirmed; one declines appointment. New President Martin Van Buren then appoints the second. (5 Stat. 176) |
| 1863 | 10 | Tenth Circuit Act | Created Tenth Circuit to serve CA and OR; added associate justice to serve it. (12 Stat. 794) |
| 1866 | 7 | Judicial Circuits Act | Chief Justice Salmon P. Chase lobbied for this reduction.¹ The Radical Republican Congress took the occasion to overhaul the courts to reduce the influence of former Confederate States. (14 Stat. 209) |
| 1869 | 9 | Judiciary Act of 1869 | Set Court at current size, reduced burden of riding circuit by introducing intermediary circuit court justices. (16 Stat. 44) |
Another event damaging to the administration's case was a letter authored by Chief Justice Hughes to Senator Burton Wheeler, which directly contradicted Roosevelt's claim of an overworked Supreme Court turning down over 85 percent of certiorari petitions in an attempt to keep up with their docket. The truth of the matter, according to Hughes, was that rejections typically resulted from the defective nature of the petition, not due to the court's docket load.
Read more about this topic: Judicial Procedures Reform Bill Of 1937
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