FDR’s New Deal Policies: The Constitutional Argument

FDR’s New Deal policies were far-reaching and widely restructured the American economy after its most devastating decade in the twentieth century. But the policies were not universally popular. In the 1930s there were Supreme Court justices who interpreted the Constitution in a way that they argued that programs like the National Industrial Recovery Act and the Agricultural Adjustment Act  unconstitutional.

FDR New Deal Policies

Needless to say, the Court’s decisions infuriated FDR. He denounced the “nine old men” of the Court, whose constitutional interpretation was appropriate only to “horse-and-buggy days.” But he went well beyond denunciations. In 1937, FDR proposed that when any Supreme Court justice who had reached age seventy did not resign or retire, one additional justice could be added to the Court. Since six of the nine Supreme Court justices at the time were over seventy the proposed legislation would have allowed FDR to add six more justices to the Court.

At first, the president tried to claim that his plan was intended simply to provide assistance to elderly justices, but even some of his own supporters were insulted by this obvious lie. Eventually, FDR became more forthright about his intentions: He believed that the current slate of justices was wedded to an old-fashioned jurisprudence and that a more flexible view of the Constitution needed to be introduced into the Court for the sake of preserving his New Deal programs.

Opposition to the plan was intense and included many of FDR’s fellow Democrats. Thankfully, the bill was rejected. But FDR’s intimidation of the Court may have had its effects. In particular, some suspect that the president’s pressure accounts for why Justice Owen Roberts suddenly became much friendlier to the administration in his decisions. It turns out, however, that FDR would get his chance to influence the Court after all, and not through such crude manipulation. Over the next four years, the president was able to fill seven vacancies on the Court caused by resignations, retirements, and death.