Why Nine Justices? The Democrat Who Challenged FDR's Supreme Court-Packing Scheme

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Happy streaming. This is Lee Habib, and this is Our American Stories, the show where America is the star and the American people. Up next, a story out of Texas, and about a man who was certainly of his time, but put his career and influence on the line to do the right thing for our country. Here to tell the story is Josiah Daniel.

Take it away, Josiah. Hatton was a confirmed bachelor, so he had no offspring. He was born in rural Tennessee in 1875, and he moved with his family to Garland, Texas in 1890, 90 or 91. And as a child, or a young man, a teenager, he entered into an arrangement with a book publisher to make door-to-door book sales in rural Tennessee. He was so young, his father had to cosign the contract with him. And he became disgruntled with the publisher, felt that he wasn't receiving the commissions to which he was due based upon his successes in the sales.

So he wrote a series of hot letters to the publisher in which he threatened to sue them. I see this as an early manifestation of his lawyerly instincts. The traditional way to become a lawyer in the U.S. was to, quote, read the law or to become an apprentice in a lawyer's office. You would help the lawyer in his practice, probably copying documents and things. At the same time, the lawyer would teach the apprentice the rules of law and how you'd be a lawyer.

Sumners did that for two years in the office of the city attorney of Dallas. And after that, he passed what was then a pretty simple bar exam and became a licensed lawyer. He was, therefore, more or less a self-taught lawyer and constitutional scholar. I believe Sumners was always a little embarrassed that his formal education was so skimpy.

He had one year of a formal high school. So when he got to Congress, he was in the minority party, the Democratic Party, so he didn't have a lot to do legislatively. And he did walk over to the Library of Congress and just read law books and history books and taught himself a lot of history, particularly focusing on the history of the Constitution all the way back through English legal history, back to the Norman Conquest and even earlier. And that's how he became a well-recognized and skillful constitutional scholar, was reading it at the Library of Congress. And even FDR recognized it. Franklin D. Roosevelt, the president, asked Hatton Sumners to write a constitution for the Philippine Islands.

At that point, the Philippines were a territory of the USA, but Congress a few years earlier had legislated that it was to be made an independent nation over a period of time, leaving up to about 1941. And Sumners wrote a constitution that was the model or draft from which the Philippine people themselves in their own constitutional convention wrote their own constitution. They didn't accept everything or even maybe very much of what he proposed in his constitution, but the fact that Roosevelt picked Sumners shows that he reposed a fair amount of confidence in Sumners as a constitutional scholar and constitutional lawyer. And some people think Sumners could have been a candidate for the Supreme Court, I guess maybe if the court packing plan had passed.

He was quite opposed, and he put his political influence, his clout, his reputation on the line in opposing it. Any attempt to understand the 1937 court packing crisis should begin with the Great Depression. On a Sunday night a week after my inauguration, I used the radio to tell you about the banking crisis and about the measures we were taking to meet it.

In that way, I tried to make clear to the country various facts that might otherwise have been misunderstood and in general to provide a means of understanding, which I believe did much to restore confidence. So the stock market crashed in October 1929. That's only 10 months after Herbert Hoover had been inaugurated president. And the U.S. economy over the next several years entered its worst period in all of U.S. history.

In some industries, unemployment reached almost 50%, and in the cities there were soup lines and people living in cardboard shanties. So Roosevelt won in a landslide by about 23 million votes to 16 million votes. And the voters also elected strong majorities of Democrats in the House and Senate for the first time in a long time, so FDR had plenty of power to enact his platform.

And his advisors generated a surge of innovative legislation that Congress promptly enacted, all of which is known collectively as the New Deal. And you're listening to Josiah Daniel tell the story of Hatton Sumners. And my goodness, what a story you're hearing about just, for instance, how he got to practice law. There was a day where you could apprentice and then simply take the bar, and you're a lawyer. I spent three years at the University of Virginia School of Law, and I really didn't learn anything about how to practice law.

And I paid a lot of money for it, too. We learned some of our Lincoln stories. He, too, had a, quote, skimpy education. But my goodness, he taught himself and gave himself a world-class education, as Hatton Sumners did.

When we come back, we're going to learn how this man who helped write the Constitution as a congressman from Texas, a Democrat for the president of the United States, FDR, put his own career in jeopardy by opposing President Roosevelt's court-packing scheme. That story continues here on Our American Stories. This is Lee Habib, host of Our American Stories. Every day on this show, we tell stories of history, faith, business, love, loss, and your stories. Send us your story, small or large, to our e-mail, OAS at OurAmericanStories.com.

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That's NetSuite.com slash stereo to get your own KPI checklist. And we return to our American stories and the story of Hatton Summoners and the court packing crisis of 1937. Let's get back to the story. Here again is former lawyer and expert on Hatton, Josiah Daniel. The specific programs ranged from temporary relief or jobs and infrastructure projects for the destitute and the unemployed, and also long-term structural reforms such as taking the nation off the gold standard, the Wagner Act that validated labor contracts and labor unions, Social Security, a whole alphabet slew of alphabet agencies and laws and programs. Unsurprisingly, the businesses and the individuals who disliked the president's legislative changes hired lawyers, and they sued to invalidate the new laws based on various constitutional arguments. So some of the New Deal measures began to encounter adverse rulings by the Supreme Court. At that time, the court consisted of eight associate justices and one chief justice.

The chief justice was Charles Evans Hughes. Four of those nine formed a bloc that began to vote consistently against the challenged New Deal programs. They were known colloquially as the Four Horsemen of the Apocalypse. Four others tended to be more progressive and to vote to validate the New Deal. That left one swing vote.

Owen Roberts. And in the third year of the New Deal, 1935, Roberts began to vote with the Four Horsemen. And the Supreme Court invalidated a dozen New Deal laws. The AAA, the Agricultural Adjustment Act, the Coal Act, the Municipal Bankruptcy Act that had been sponsored by Hatton Sumners, the Railroad Retirement Act, the National Industrial Recovery Act and a minimum wage law. In fairness, it's true that the same court also sustained two dozen New Deal laws. But never before had the Supreme Court invalidated so many laws in such a short period of time that had been passed on behalf of a president. Only three were decided by a single vote and some were unanimous. But in the controversy, people began to notice that all of the justices were rather well aged.

They were 70 to 77 years of age at a time when the average life expectancy of a male in the U.S. was 60. So some political commentators began to lampoon the court as the old nine men. In addition, opponents of the New Deal obtained more than two thousand injunctions against New Deal programs. So as I call it, Roosevelt had a serious litigation problem. He was deeply concerned.

He was frustrated and even angry about it. And in the presidential election of November 3rd, 1936, Roosevelt won his second term with an even larger landslide. So he truly believed that he had a renewed mandate for the New Deal from the people.

And literally two weeks after his inauguration, Roosevelt made a surprising announcement at the White House. He had summoned the leaders of Congress, including Sumner's, who was the House Judiciary Committee chair. And he proposed a bill under which each justice age 70 or more who declined to resign. One additional seat on the court would be automatically created.

So based on the ages of the justices, this implied there would be six new justices for a total of 15. FDR also proposed some other measures that he said would promote the efficiency of the federal judiciary. And he called the whole thing the judicial reform bill. But the court packing proposal was obviously the main point. Public consternation erupted. The nation's newspapers editorialized for the next five and a half months, almost all against it.

Gallup poll consistently found the majority of Americans against it. People were arguing about it on street corners and in public spaces. And they literally covered Congress up with letters and telegrams, mostly in opposition. But the president persistently pushed it forward, including by his famous radio fireside chats and by personally lobbying members of Congress.

And it created what historians call a crisis. Now, I guess I should pause and just cover a few fundamentals of the U.S. Constitution that are relevant to this story. Article three, section one says the judicial power of the United States vests in one Supreme Court and such inferior courts as Congress from time to time establishes. So Congress not only establishes the lower federal courts, but it also determines who are the rest of the justices that sit on the Supreme Court. From 1789 to 1869, the number of justices on the Supreme Court ranged from three to 10.

But since then, the number has been nine. Also, Article three provides that all federal judges hold their office during good behavior, which has always been understood to mean for life and shall receive compensation for services that shall not be diminished during their continuance in office. So life tenure and salary protection are the two principal means by which Supreme Court justices are protected against raw political pressure, as is applied to legislators and even to the president. So the idea is that federal judges should be completely impartial, free of political pressure, free from fear or favor in deciding questions of law. And this is the concept called judicial independence. So what is court packing? Well, it's defined by the law dictionary as the notion of adding seats to the Supreme Court in order to create a new majority of justices favorable to the legislative and political program of a president.

And the significance of a court packing proposal then is to pack the court threatens to interfere in judicial independence and in the normal operation of checks and balances as applied to the judicial branch of the national government, as has been the norm over our national history. I've been listening to Josiah Daniel tell the story of Hatton Sumner's and think about this remarkable man and the position he's now in. He's hands down one of the top constitutional scholars in Congress. That's why he's earned the position of House Judiciary Chairman. He's a Democrat.

Franklin Delano Roosevelt is a Democrat. He's written the Constitution for the Philippines, for goodness sake. And well, FDR wins his second term, wins it in the landslide, and that Supreme Court keeps getting in the way of his legislative agenda. And the court, at least enough members, are of the mindset that what the president is doing and what the Congress is doing is unconstitutional. And this is the function of the Supreme Court in the end to be an independent check on the popular majority and to uphold the text of the Constitution. No majority can take away our right to free speech. No majority can take away our right. No amount of votes can take away our right to due process or to a search warrant. So if 100 percent of the electorate decides that there are no more search warrants, that's why the Supreme Court's there.

It says no unconstitutional. So here's Hatton Sumner's and here's what we know will be a showdown. You can hear it coming, folks. This great Democrat chairman of the House Judiciary Committee and Franklin Delano Roosevelt saying, I've got a plan to get my way with the Supreme Court.

I'm going to add members to get my way. What will happen next? Well, that's why we're going to stick around. But my goodness, when you start to hear some of these things today, you're going to know that, well, we've been here before. It's happened before. And that's what we love doing on this show is tell stories that in some ways are still very relevant.

When we return, the story of Hatton Sumner's, the story of FDR and his court packing, what happens next here on Our American Story? Most TVs are smart nowadays, but with busy home screens and remotes with too many or too few buttons, smart shouldn't mean complicated. That's why Roku TV is the smart TV made easy. The customizable home screen puts your inputs, streaming favorites like iHeart and free live TV all in one place. From simple settings anyone can understand, automatic updates with the latest features and much more. Roku TV is more than a smart TV. It's a better TV. Learn more today at roku.com. Happy streaming.

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Let's return to the story. The Constitution doesn't say anything about how many justices will sit on the Supreme Court. That's up to Congress to decide. And Congress started with three and it raised it to four in 1801. Then after the Civil War, when Andrew Johnson became the president, the Republican Congress wanted to deny him an appointment to the Supreme Court. By this point in time, Congress had raised the number of justices to 10. So Congress reduced it to nine, depriving Johnson of an appointment.

And it's been at nine ever since. So it's not in the Constitution, the number nine. It's a matter of legislation.

But it's also been a matter long standing. People are used to it and people believe that it's an inherent part of the Supreme Court. And there are scholars who will say that based on their studies of judicial process, nine is a pretty ideal number. An even number of justices just wouldn't work because there's always the possibility of a tie.

So we need an odd number. And the caseload of the Supreme Court has always been such. In fact, the court often has been running a little bit behind in handling its docket because it has so many cases. But you need nine justices to be able to write the opinions expressing the decisions of the courts on the issues presented in those cases. You really do need nine different authors to be able to write them all. That's kind of the magic of the number nine. But FDR's argument for expanding the court was very simply, and he acknowledged this in some of his fireside chats, was to gain a majority of favorable votes on the court that would vote to sustain and not reverse his New Deal programs.

He was very explicit about that. And with nine and with Owen Roberts voting with the four horsemen, there were five of nine that were a threat to his most cherished programs, such as Social Security. That was really the reason.

Honestly, I can't think of any other really good reason people have ever advanced for adding more. It's it's it's almost always been to obtain a majority. And that clearly threatens judicial independence. And Sumner's he was quite opposed and he put his political influence, his clout, his reputation on the line in opposing it, although he was a member of the New Deal team. The president wanted Sumner's to file the court packing bill and Sumner's deftly sidestepped it.

And he then had to bite his tongue in public and he got himself ready. He introduced a bill called the retirement bill, which he thought would solve the problem for FDR at the same time preserving a court of nine. And that was to make it possible for Supreme Court justices for the first time to retire from the court and to keep their compensation at the same amount for the rest of their lives. There were several of the Supreme Court justices who wanted to retire, but they felt that they financially couldn't. And in correspondence with his constituents, he wrote to a Dallas minister, he wrote, it's just good, common practical sense to make it possible for these men on the Supreme Court to retire voluntarily when they want to do so.

I am putting everything I have into the effort to work this problem out. It's like a fisherman trying to land a big fish in difficult water. I do not believe anybody on the bank can tell him very well what to do. To others, he confided that he believed he was the only person in the nation who could do this. And the thing he was trying to do did, in fact, only take a short amount of time more. The Retirement Act was passed quickly on a bipartisan basis, and then six weeks later, the first justice announced his retirement. So that opened a slot for the president to appoint, and Roosevelt appointed Hugo Black of Alabama to fill that slot, assuring a favorable majority on the court for Roosevelt. Roosevelt, of course, didn't relent. He continued to push the court packing plan for another couple of months.

And finally, Sommers couldn't sit on his hands any longer. And on July the 13th of 1937, he rose in the House of Representatives and he made a pretty long speech in which he announced that the court packing bill, if it ever passed the Senate and came to the House, to his House Judiciary Committee, it would never leave his committee. And that's because, he pointed out to the president, we've already solved the problem by this retirement bill.

You don't need the court packing plan. He noted that replacing the one justice, Van Deventer, was just as effective for the president as adding two seats on the Supreme Court would have been. And he said, quote, there was no controversy, no noise.

We've done it with a surgical instrument, not a meat ax. This was not mere politics for Hatton Sommers. He had a very deep respect for the U.S. Constitution. He thought of it sort of as a platonic ideal that existed and persisted over the millennia, unchanged and unchangeable, not perfect.

Obviously, there have been amendments to it. And he also thought that Supreme Court justices from time to time might make the wrong decision. But he had faith that over time, the Constitution and decisions made under it would adhere to his ideal. And the court packing plan threatened that because it violated what he thought of as the ideal of the Constitution.

And that is let the institution do its work and it will correct itself over time. In fact, he showed by his retirement act that if you just made it possible for a justice to retire who was holding back for financial reasons, the president could appoint a new one and a new majority would not make the same decisions that the court had been making before. It would sustain the president's program as opposed to invalidating it. I think the rule of law depends to a very large extent in our nation on the existence and the operation of the U.S. Supreme Court. It's vital that the public have respect for the court and that the court have its decisions, have legitimacy in the eyes of the American people. And if those decisions are subject to quick changes of court personnel at the behest of another branch of the federal government, whether it's the president or Congress, then the constitutional system is is not being vindicated and the court will lose the respect. So court packing is a real threat to the Supreme Court, its legitimacy and its foundational role in the rule of law that that we treasure here in the United States of America. A story of profiles and courage.

Hatton Sumner's story here on Our American Stories. Find out when Ghosts returns this Thursday on CBS and streaming on Paramount Plus. Visit your ride the first time, every time, or your money back. Plus, at these prices, you're burning rubber, not cash. Keep your ride or die alive at ebaymotors.com. Eligible items only.

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