Talk:Judiciary Reorganization Bill of 1937/Archive 1

Merge
This should be merged with Court packing. I'm too busy right now ... any takers? dino 19:36, 29 Apr 2005 (UTC)

Disputed statement
From the one-volume history of the US Supreme Court that I read, I don't think it's clear that the court-packing plan was the direct cause of the switched vote. I'll dig up a reference. -- Beland 01:23, 6 May 2005 (UTC)


 * I can prove that it was at least a part of the reason for the switch. But I can't get it until Monday or later. Falphin 21:54, 6 May 2005 (UTC)

Barry Cushman, Rethinking the New Deal Court (1998) and G. Edward White, The Constitution and the New Deal (2000) argue persuasively that:

1. The switch happened at a case conference (the justices voted on December 19, 1936 to uphold the statute in Parrish)that occurred before the plan was announced publicly. 2. That the Justices would have been aware that the bill did not have a reasonable chance of passage; and 3. That the switch was really the result of better drafting combined with doctrinal nuance.

Some illustrative links:

http://muse.jhu.edu/demo/journal_of_interdisciplinary_history/v030/30.1tushnet.html http://www.claremont.org/writings/crb/winter2002/morgan.html


 * To implement the source we need to get the book number. We can't use book reviews Falphin 22:59, 9 July 2005 (UTC)

The ISBN numbers? I'm new to this, sorry if it shows. Anyway

Cushman 0195115325 White 0674008316

Links to Amazon listings. http://www.amazon.com/exec/obidos/tg/detail/-/0195115325/qid=1120950755/sr=8-1/ref=sr_8_xs_ap_i1_xgl14/104-0508241-3802330?v=glance&s=books&n=507846 http://www.amazon.com/exec/obidos/tg/detail/-/0674008316/qid=1120951030/sr=8-1/ref=sr_8_xs_ap_i1_xgl14/104-0508241-3802330?v=glance&s=books&n=507846

Hope this helps.

The unclaimed comments above are mine. I just figured out how this comment stuff works. Gfactor 12:29, 10 July 2005 (UTC)

Wheeler and Hughes
I'm surprised this makes no mention of the role of Burton Wheeler and Charles Evans Hughes in defeating the plan. PedanticallySpeaking 16:47, July 13, 2005 (UTC)

A revealing article title
It is very much in character for Wikipedia to label the Judiciary Reorganization Bill of 1937&mdash;which is a redirect here&mdash;with this journalistic sobriquet: the Court-packing Bill. For all the chitter- chatter about "NPOV" among common Wikipedians, let us not forget the systemic bias at Wikipedia that does not always reveal itself in as delightfully unsubtle a manner as here. Beyond doubt, Roosevelt overstepped his constitutional authority in this bill, which is presented here, however, as a simplistic win/lose operation&mdash;with all the cultural depth of a baseball game. --Wetman 18:43, 8 September 2005 (UTC)


 * Wetman is right, this article should be moved to its proper title with "Court-packing Bill" being used as a redirect. - Jord 19:57, 15 December 2005 (UTC)

This title is the usual way the matter is referred to. I disagree it is biased. PedanticallySpeaking 16:41, 30 December 2005 (UTC)

I'm for moving this article to the proper name of the Bill. JSIN 03:42, 13 January 2006 (UTC)

Done. enochlau (talk) 02:22, 15 January 2006 (UTC)

Agree with PedanticallySpeaking that "Court-packing Bill" is the way it's typically referred to. Which is a great reason to have a redirect from Court-packing Bill to the correct name, which is being done. Should definately leave the article with the correct full name (as it is currently), with a redirect from "Court-packing Bill" to here. Treznor 16:20, 7 February 2006 (UTC)

Original research?
We discussed this bill briefly today in my U.S. history class. I came here to get more info on it. It's a good article, but it feels like a somewhat quickly-written essay without adequate documentation. In some areas, it almost sounds like original research--if it isn't, the analyses need to be better attributed.

I haven't put an original research template up, but I wanted to post my concerns here so they can be either addressed or disputed.

In any case, the article could benefit from some copyediting and a more encyclopedic tone. I fixed a few spelling errors but didn't want to do anything major in case the article gets a major overhaul.

Thanks, cluth 22:44, 15 March 2007 (UTC)

Cut Text
I cut the following text because of tone problems. I'm leaving it here in case someone else can fix it:

If the NLRB case was the true cause of Van Devanter's resignation, then it would be so, of course, notwithstanding Van Devanter's officially stated reason for that resignation. On that point, according to the Wikipedia biography of Van Devanter,, "Van Devanter resigned as a Supreme Court Justice after Congress voted full pay for justices over seventy who retired." It is conventional wisdom in Washington, D.C. that one resigns for the stated purpose of "spending more time with the family" and "pursuing other interests", and the stated reason ordinarily has nothing to do with the real reason. Conventional wisdom can be wrong, of course, and one must allow the perhaps slender possibility of a truthful statement. It would be useful scholarship to determine whether the financial circumstances of Van Devanter made it in fact material to him whether he could retire with full pay or not. If he was quite wealthy, the full pay in retirement explanation would appear to be a fig leaf covering the undisclosed true reason, and Rauh's implication would gain weight as the possible true reason. On the other hand, if his means were modest, then, although undisclosed reasons for the resignation would not be disproven, at least the official reason for the resignation would appear to be somewhat more credible.

Tbjablin 00:57, 18 April 2007 (UTC)

Original research???
This article has some OR problems, it may be accurate but with no sources listed I'm tagging it.-- killing sparrows  (chirp!) 03:18, 30 May 2007 (UTC)

Bill text?
Where is the actual text of the bill? I can't find it. —Preceding unsigned comment added by 69.253.118.247 (talk) 21:35, 8 November 2007 (UTC)

Opinion
The historical fiction following presents a hypothesis about what really happened in the court packing fight. Any progress that can be made proving or disproving this hypothesis would be helpful in clarifying the historical record. My suspicion is that no such progress will be possible, because the hypothesis includes the proposition that we do not have the facts that we do not have precisely because the participants in the drama did not want us to have those facts, that is, they intended to leave an insoluble historical mystery. I further suggest that they did that, if they did, then because they all agreed that it was better for the Supreme Court as a co-equal branch of government if the drama of the court-packing fight remained forever a historical mystery, rather than the actual facts becoming known to historians. By leaving it this way, the fact that some of our co-equal branches of government are more co-equal than others can be left historically arguable and unclear, rather than entirely obvious to even a casual student of history. And, I would suggest, this preserving of the myth of three co-equal branches of government has undoubted value to the American experience, and therefore the judgment of the principals to leave the matter in historical ambiguity may have been very well advised indeed. And if this is all true, I doubt we will ever prove any of it.

So what really happened? I suggest that the following historical fiction would explain it all in a very tidy and satisfying manner. Whether the conversation went exactly as this piece of historical fiction suggests or not, I suggest that the bargaining implied by this historical fiction is the most likely explanation for the historical facts we do have, and the most plausible explanation for why we do not have the historical facts that we do not have. For this reason, I submit that this historical fiction is the most plausible explanation for what actually occurred.

One implication of this hypothesis is that the death of Robinson had no impact on the outcome of the struggle, because FDR had already privately agreed to let the proposal suffer an ugly and public death. —Preceding unsigned comment added by 63.249.109.167 (talk) 20:10, 27 December 2007 (UTC)

The play begins.

The setting is the White House between Feb. 5, 1937, when the Judiciary Reorganization Bill of 1937 was announced, and April 12, 1937, when the NRLB cases were decided directly contrary to and without acknowledging the existence of the Carter Coal case announced less than 11 months before. The particpants in this conversation are Chuck and Frank, that is, Charles Evans Hughes, Chief Justice of the United States, and Franklin D. Roosevelt, President of the United States.

Chuck has arrived at the White House after regular business hours. Per the order of the President, no official record is made of the visit. All non-essential staff have left the White House, and those who remain have left no record of what they may have observed this night. No minutes or notes of the meeting were kept. Neither participant in the meeting left any record of this conversation in any memoir, diary, or otherwise. The participants agreed to these rules in advance, by telephone.

Chuck has been shown into a sitting room in the White House, and given his favorite cocktail. Mr. Roosevelt is then wheeled into the room.

FDR: Chuck, thanks for coming tonight. As you know, we’ve got a real crisis brewing here, and I hope we can resolve it successfully.

CEH: Well, thank you, Mr. President, for the invitation to discuss this situation with you. I certainly agree that we need to resolve this situation if we can.

FDR: Chuck, you can call me Frank if you would. We’re both human beings trying to do the best we can for the country we both love.

CEH: Yes, I agree. OK, fine then, Frank it is.

FDR: Thank you. Now, Chuck, look. I understand that a majority of your Court are Republicans and they all hate what has to be done to address this Depression we’re in here. I understand that good constitutional order requires that I simply wait until some of them retire. But the fact is that we have one-third of a Nation ill-nourished, ill-clad, ill-housed, and the fact is that if this government doesn’t do something about that, then those people will be driven by desperation into the arms of communists or worse. We can take care of them, or they will take care of us.

CEH: Well, Frank, I am aware that you think that way.

FDR: Not that you think the same, of course, I understand that. The fact remains that I do think so, and I am not about to let your Court prevent this President and Congress from doing what has to be done to help these people. So, we have my bill in front of us today [Ed.-that is, the Judiciary Organization Bill of 1937, as proposed February 5, 1937]. As you know, I’m proposing we add six justices to the Supreme Court that I will appoint. Now, I don’t expect you to like that idea particularly, but you and I both know it has happened before [Ed.- for history of court packing before 1937, see "Stacking the Court", by Jean Edward Smith, OpEd in NY Times, July 26, 2007], and that it is entirely within the constitutional authority of the President and Congress to do this.

CEH: Yes, I know, Frank.

FDR: We also both know that doing this is a terrible idea. If I add six justices to get my way, the next President with the votes in Congress to do so will make it 25, and before you know it the Supreme Court won’t function anymore as an effective third branch of government. That we as a nation have achieved a customary stability in the number of justices is a good thing. I know that.

CEH: Well, I agree with you, Frank. Does this mean you’re going to pull the bill?

FDR:  Well, not quite just like that, but I hope I can if you and I can come to an understanding. Here’s what I propose. You go back and talk to the other justices and inform them that I can push this bill through if I have to, but I’d rather not. What I need from the Court is a change in direction. For example, how about the NLRB cases you’re considering right now. If you follow Carter Coal, you’re going to find the NRLA unconstitutional. I need you to give me a change in direction, and, to everyone’s surprise no doubt, you will find the NRLA constituional. Do that, and I’ll drop the language in the bill that calls for more justices to be appointed. Could we make that deal?

CEH: Well, I think we’re heading in the right direction there, Frank, but I can’t quite endorse the idea just like that.

FDR: What more do you want?

CEH: The problem is that if the Court suddenly changes direction, and then the President yanks his bill, it is going to look like just what it is, our quid and your pro quo. The history of the nation will show that the Supreme Court can get rolled when the going gets tough. That may not be much better for the Court than actually having additional justices appointed. If the Court is going to knuckle under here, we need to see the President take enough political damage in the process so that the next President will think very carefully about whether it is worth it to pressure the Court in this way.

FDR: So you need me to lose spectacularly? Hmmm. I see your point. Let me think for a moment. ... OK, here’s what I propose. The truth is most of the Senate doesn’t want to vote for this. I can probably make them vote for it if I have to, but they sure don't want to. If you bring the Court around, I will keep plugging my bill publicly, but I’ll let the Senate Majority Leader know that the members may vote their conscience and there will be no party discipline imposed on Senators who do not vote for the bill, but I'll tell him to keep it to himself. I won't tell them anything else. I imagine that will cause a rather spectacular loss for me. Would that meet your requirements for a change in the Court’s direction?

CEH: Yes, Mr. President, I have to talk to the other justices, of course, but I think that would do the trick.

FDR: OK, Mr. Chief Justice, do we have a deal then?

CEH: Yes, Mr. President, I think we do. 

FDR: Great, Mr. Chief Justice. I’m very happy we may be able to get this thing resolved. A couple of final points though.

CEH: Yes, Mr. President.

FDR: I expect to see concrete result from the Court before I stop being serious about the bill. We start with the NLRB cases, right?

CEH: Yes, Mr. President.

FDR: And even if I let the bill die this year, if I find that next fall the Court goes back to its old ways, then I bring the bill back next year, and it will be “No deals”. Fair enough?

CEH: Yes, Mr. President.

FDR: OK, thank you Mr. Chief Justice. I think we’re done for tonight. Do you agree?

CEH: Yes, Mr. President. Thank you.”

I think this fiction explains it all. I hope to provoke some opinion on that point! Jtk155 02:31, 12 November 2007 (UTC)


 * I think you need to read more about this. Start with Cushman's book, then read White's. Foofighter20x (talk) 19:56, 28 December 2008 (UTC)

Copyright Violation?
at http://www.scribd.com/doc/4097523/20s-30s-Worksheets-The-Roaring-Twenties-Great-Depression, I have found text substantially identical to earlier versions of the first few paragraphs of this article, without attribution to this article. I presume that either this article should attribute to that one, or that one should attribute to this one. Jtk155 (talk) 01:58, 17 October 2008 (UTC)
 * then go for it! Foofighter20x (talk) 06:37, 17 October 2008 (UTC)

Article reorganization proposal
I humbly submit the following outline for a more organized article that flows better:


 * Intro
 * Great Depression and New Deal
 * Depression: focus on laissez-faire, crash of '29, and beginning of depression
 * Constitutional case law: here discuss Lochner, etc... up until 1933
 * New Deal: FDR and Democratic Party push for social legislation; maybe list out a few programs and what they aimed to achieve here
 * Early cases
 * Wins for New Dealers (NDs): Blaisdell and Nebbia; however, were state cases, not federal
 * Legal tide turns:
 * "Hot Oil" case (Panama v. Ryan); seen by NDs as only temporary setback; Court's opinion allowed for re-legislating with fixes
 * Interim win: Gold Clause Cases
 * "Railroad Pensions" case: major blow for NDs; boded ill for Social Security bill
 * Galvanized labor, liberal Congressmen, and FDR admin. to do something about the court; worry begins over Roberts and "Four Horsemen"; DOJ begins research of ways to reign in court
 * "Black Monday": Three unanimous cases against gov't.; two against New Deal legislation and one against FDR (Schechter, Radford, and Humphrey's Ex.)
 * Humphrey's Ex. of particular note due to Myers v. U.S. case only 9 years before, court's opinion made it appear FDR was willfully violating Const., and made FDR and admin think Justice Sutherland had sought to publically humiliate the Pres.
 * Reaction
 * FDR begins seeking solution: May 31, '35 - "Horse and buggy" news conference foreshadows showdown
 * Calls for FDR to act, FDR waits instead... primarily mulls over Const. amd. for most of 1935
 * Toward end of 1935, FDR mentions packing Court as option, though still holds to Const. amd. route
 * The Court continues to strike ND legislation...
 * U.S. v. Butler: Fall of the AAA
 * FDR cont. waiting, keeps quiet, privately indicates coming face-off with Court; looks to Ex parte McArdle as he loses faith in Const. amd. Sees problem not from Court as inst., but from Roberts and Horsemen
 * Ashwander v. TVA (6-3): unexpected win for NDs, false respite alleviated some concerns to restrain Judiciary
 * Carter: little NRA for coal indust.
 * Ashton v. Cameron (5-4)
 * Tipaldo (5-4): NDs' last straw.
 * Campaign of 1936, Dem platform, big win: "clarifying" Const. amd. sought; FDR still keeps mum
 * Afterward: FDR looks to legacy. No wish to be remembered as rolling over and letting court have its way; Const. amd. most obvious means, none of proposed amds. satisfactory; limiting jurisdiction could rollback Court's role as last defender of liberties
 * William Denman of 9th Cir. Ct. gives ave to answer: voiced dismay at state of judiciary since appt'd (crowded dockets); strengthened FDR's resolve
 * Plan coalesces: inputs from DOJ, Edward S. Corwin; AG Cummings finds his answer from Justice McReynolds's own words (most probable source)
 * Cummings builds legislative package; FDR and Cummings author message/letters to Congress
 * JRB37
 * Bill announced on 5 Feb; immediate negative reaction from public, press, and Senators (and FDR's Veep!)
 * Radio addresses by Cummings, Hoover, etc.
 * Fireside Chat 9
 * The Hughes Letter
 * "The Switch": West Coast Hotel Co. v. Parrish
 * Aftermath ("Const. Revolution of '37", etc...)

Let me know what you think! Foofighter20x (talk) 08:47, 29 November 2008 (UTC)

As you can see, I've started to make changes to the article. I've abandoned the outline I wrote for the first section, instead writing the Causal factors section as already in the article. Also, for the rest, I'm going to heed the point G. Edward White made in his book and attempt to avoid anachronistic labels such as "progressive," "liberal," "conservative," "reactionary," and "laissez-faire" when describing the Court and its jurisprudence in the article. Foofighter20x (talk) 12:20, 28 December 2008 (UTC)


 * DONE! :) Foofighter20x (talk) 04:08, 3 January 2009 (UTC)


 * I'll go through this at greater length when I have some more time, but at a first glance, this looks really quite good. Perhaps we can get this to FA. Eusebeus (talk) 04:31, 3 January 2009 (UTC)
 * That's my hope... To get the FA by Feb 5 of this year so it can be on the front page. Foofighter20x (talk) 11:53, 3 January 2009 (UTC)
 * Sounds good. I'll do a thorough copy-editing on it. Eusebeus (talk) 15:33, 3 January 2009 (UTC)

Copy Editing Notes Pre-FA
Moved to PR page up in archives box... Foofighter20x (talk) 22:13, 12 January 2009 (UTC)