Roosevelt and the “Nine Old Men”
Copyright © 2005-6, Henry J. Sage
American presidents who get elected by large majorities—or even modest ones—for a second term in office often get into trouble. That has happened to almost every president in the 20th century, excepting, in modern times, President Eisenhower, and even he had difficulties with the U-2 affair, Little Rock, and other issues which we will address later in the course. Franklin Roosevelt was not the first president to get into trouble in his second term, nor was he the last, and of course he recovered and was elected twice more. But by 1940 when he was reelected for an unprecedented third term, world conditions had changed dramatically, and therefore so had the issues facing the president and the nation.
When Franklin Roosevelt resumed office for his second term in 1937, however, the issue was still the Depression and how FDR's New Deal programs would address the problems which, as he acknowledged in his second inaugural address, had been alleviated but were still serious. Roosevelt was by any measure an extremely popular president, but he still had enemies on both the right and left. Feeling that he had a mission of relief, recovery and reform to accomplish, he saw his critics to some extent as a carping nit-pickers who were out to thwart his attempts not only to restore the United States economy, but to cure many of its systemic ills. Feeling he was on the right track, he did not take well to criticism. Roosevelt was especially piqued over the Supreme Court's decisions that many of his programs were unconstitutional, and he decided to take on the court directly.
During FDR's first administration, the greatest blows to his programs had come from the United States Supreme Court. in 1935 in the case of Schecter Poultry Corp. V. United States, known as the “sick chicken case,” the court ruled that portions of the National Industrial Recovery Act were unconstitutional in that by enacting it, Congress had given too much authority to the executive and had overstepped its powers under the commerce clause of the Constitution. Then in 1936 the court ruled portions of the Agricultural Adjustment Act unconstitutional, and by the end of the 1936 term the Court had in seven cases ruled New Deal laws unconstitutional.
Shortly after his inauguration Roosevelt gave a speech in which he excoriated the justices as “nine old men” who were out to keep him from helping the American people. With his attorney general FDR came up with a plan to expand the size of the court from nine to fifteen justices, arguing that the nine old men who sat on the bench at that time were overworked and incapable of handling the load and thus were making erroneous decisions. There was nothing unprecedented about changing the number of justices on the Supreme Court, but there was no precedent for doing so in a manner that was so blatantly political. The Chief Justice responded to the president's charge that these “nine old men” were impeding the nation's progress by pointing out that the nine old man were doing just fine, thank you, and needed no assistance from the president. Since FDR had submitted his court plan to Congress without any prior consultation, and since he was used to having Congress agree with his programs, he failed to grasp that Congress was already growing jealous of the president's extraordinary powers and was not about to give him control of the court on a silver platter. In other words, his court-packing plan backfired; it was his biggest political mistake.
In the end, however, Franklin Roosevelt never tangled with the court again. Perhaps realizing that the president did have appointment powers which he was bound to be able to employ, and which he did in fact get to use during his next two administrations, they never ruled against another New Deal program. Roosevelt had other problems in his second term, including what became known as the “Roosevelt recession” of 1937, brought about when even Roosevelt himself grew concerned over the large deficits that government spending was creating. But by 1937 Germany was beginning to threaten the security of Europe, and the Japanese or attacking Japan, and as the American economy continued slowly to recover, New Deal issues began to take a back seat to the new menace in the world, the growth of German and Italian fascism and Japanese militarism.