1. FDR, Saving Capitalism and Packing the Court The Supreme Court and the challenge to FDR’s New Deal Schechter Poultry Corp v United States (1935); West Coast Hotel Co. v Parrish (1937) FDR set up a whole host of unaccountable agencies to implement the New Deal - NRA, AAA, PWA, WPA Provoked legal confrontation

2. FDR and the Supreme Court FDR mentioned in 32 campaign that all branches of government including court were in hands of Republicans Had thought about expanding court from time he was elected as was worried about judicial review and unelected elderly judges undermining his mandate and program No opportunity to nominate a justice in his first term

3. Packing the Court

4. The New Deal National Industrial Recovery Act (NIRA) of 1933: authorised the drafting of codes for each industry that would control the supply of goods, fix prices, and wages and regulate working conditions. National Labour Relations Act of 1935 threw the weight of the federal government behind union-organising battles and outlawed antiunion practices

5. The New Deal & the Supreme Court Supreme Court was FDR’s biggest enemy – he felt it had obstructed him out of ideological bias in his first term Struck down legislation including setting up of the National Recovery Agency in 1935 Unconstitutional delegation of legislative power – Jan 1936 struck down agricultural act

6. FDR and the Supreme Court Decided to take the attack to the Supreme Court Whole thrust of the New Deal was directed against political philosophy of court in literally interpreting the constitution Court split usually 5-4 or 6-3 on New Deal decisions so he tried to reconstruct it by proposing appointments of extra judges Packing the Court

9. Conservative Judicial Philosophy Early-American fear of centralised authority which necessitated an unequivocal distinction between national powers and state powers the clear delineation between public & private spheres of commercial activity susceptible to legislative regulation separation of public and private contractual interactions based upon free labor ideology and private property

10. Liberal Philosophy The Living Constitution U.S. Supreme Court justice Oliver Wendell Holmes, Jr. (1902-32), Missouri v Holland (1920) the “case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago”

11. Revolt against the New Deal In Schechter Poultry Corp. v United States the Supreme Court ruled unanimously that the NIRA was unconstitutional. Yet the 1936 election landslide confirmed popularity of New Deal This placed traditional judges in conflict with the Congress and the Executive Branch

12. Schechter Poultry Corp v United States (1935) Hughes delivered the unanimous opinion that Congress had delegated too much lawmaking authority to the President without any clear guidelines or standards Invalidated the NIRA in its entirety as an invalid use of Congress's power to regulate business under the commerce clause in the poultry industry

13. Schechter Poultry Corp v United States (1935) Govt claimed the Schechters, small New York chicken farmers sold sick poultry – prosecuted but appealed NIRA allowed local codes for trade to be written by private groups with President choosing to give some codes force of law Court decided that this was an intrusion too far into federal interference in the local economy

14. Schechter Poultry Corp v United States (1935) For FDR the Schechter decision had "relegated [the nation] to a horse and buggy definition of interstate commerce“ But for liberal justice Louis Brandeis speaking to aides of FDR: “This is the end of this business of centralization, and I want you to go back and tell the president that we're not going to let this government centralize everything.”

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16. Judicial Procedures Reform Bill of 1937 - Packing the Court Central and most controversial provision of the bill would have granted President power to appoint an additional Justice to the U.S. Supreme Court, up to a maximum of six, for every sitting member over age of 70 and 6 months Cut in Supreme Court pensions via Economy act of 1933 persuaded at least two sitting justices not to retire

17. FDR and the Supreme Court Result was the first & most catastrophic defeat of FDR’s presidency – opposed by all of Democratic party’s southern conservative wing and the Supreme Court itself including its liberal wing Response to Court’s decisions in New Deal Cases Legally was New Deal legislation badly drafted and defended?

18. The Hughes Court (1930-41) Four Horsemen v Three Musketeers? Butler, McReynolds, Sutherland and Van Devanter v Brandeis, Cardozo and Stone with Chief Justice Hughes and Justice Roberts as swing votes The switch in time that saved 9? West Coast Hotel Co. v Parrish upholds Washington State minimum wage law – March 1937, two months after court reform bill

19. The Hughes Court (1930-41) Decision ended period of conservative rulings since Lochner v New York (1905) where court struck down legislation which regulated business Hughes insisted FDR’s plan had no bearing on decision which was decided on prior to the packing plan but did say privately that FDR’s re-election forced court to depart from "its fortress in public opinion"

20. Packing the Court

21. FDR and the Supreme Court For FDR welfare of US and Constitution itself was most important thing - a system of living law but … June 1937 Senate Judiciary Committee issued a scathing report calling FDR's plan “a needless, futile and utterly dangerous abandonment of constitutional principle... without precedent or justification” Collapse of the bill

22. Blinking first? Court to some extent had already taken on board some of FDR’s concerns Threatened with plans to alter the composition of the Court, it retreated from its opposition to the New Deal with new appointments Gradually became more progressive as FDR got to eventually nominate 8 Justices & conceded defeat on the issue

23. Packing the Court

25. The Hughes Court 1932-37