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FDR's Court-Packing Scheme: Mission Accomplished

Published in Blog on September 20, 2020 by Edward Douglas Thompson

Ever since the 1930s, the federal government has been able to acquire too much power and has progressively grown beyond the boundaries of the U.S. Constitution which had set limits on its size and scope for the previous 140 years.

The 1930s were a tipping point for America when the federal government began taking on new powers.

How did that come to be so? If judicial review of any federal policy deemed contrary to the U.S. Constitution was taking place at the time, then how could this ever happen to us?

Enter FDR

In cases involving early New Deal legislation, Franklin Delano Roosevelt found out the hard way that you cannot enact unconstitutional federal policy when the Supreme Court can, later, rule it unconstitutional. So, he devised a scheme to get around the U.S. Constitution: court-packing.

Against expectations, FDR was re-elected in 1936. In the first year of his second term, he became bolder about bringing the U.S. system more into line with the system of Soviet Communism under Joseph Stalin, whom FDR referred to as "Uncle Joe."

Key programs initiated under his New Deal for America had been shot down as being unconstitutional by the Supreme Court, so he invented a scheme to pack the Supreme Court with ideological New Deal "Yes-men."

He had six such "Yes-men" lined up, and it was likely these six:

  1. Hugo L. Black
  2. Stanley F. Reed
  3. Felix Frankfurter
  4. William O. Douglas
  5. Frank Murphy
  6. Joseph T. Robinson

The first five actually did make it onto the Court, all by 1939. Joseph Robinson had died before FDR could appoint him, though Robinson had been personally promised the appointment [1].

The result? By 1939 the Supreme Court was populated with a clear majority of New Deal sympathizers. Instead of being justices bound to upholding the U.S. Constitution, five of the nine seats had been filled with New Deal "Yes-men."

While it didn't go as he had originally planned (he didn't add six seats to the Supreme Court, bringing the total up to 15), FDR still got what he wanted: a court which ruled cases in the way that FDR wanted them to be ruled.

A Supreme Court 'Turncoat'

Even before FDR had turned the U.S. Supreme Court into a mere rubber-stamping machine for New Deal programs (a mere joke of its former self), his overtly-telegraphed threat of packing the Court had sway over one Supreme Court justice: Owen Roberts.

By voting to uphold state minimum wage laws, Roberts became an ideological turncoat in a landmark case about whether the government can interfere in the liberty of contract which people had with their employers (West Coast Hotel Co. V. Parrish, 1937).

Because it supposedly killed momentum for FDR's scheme to pack the court, this switch by Roberts to a new "pro-government" stance was referred to at the time as "the switch in time that saved nine."

It is also what ended the Lochner Era.

Lochner Era

In what is known as the Lochner Era, whenever a case of government encroachment into private contracts took place, the Supreme Court sided with liberty of contract rather than with government interference.

The landmark case of the Lochner era (Lochner v. New York, 1905) is when the Supreme Court ruled that government cannot force employers to shorten the work hours of their employees, even when that work environment was uncomfortable--such as a stuffy, dusty, low-ceiling bakery.

The outcome of the case was that employers would not be required, by government, to make their employees comfortable--because government does not have the right to interfere in private contracts, unless those contracts present physical danger to the public at large (where a state's police powers could then be invoked, so as to protect public safety).

The "Switch In Time"

In the 1937 case, Roberts' vote tipped the case into FDR's favor by empowering government to set minimum wages for private employers.

But the Fifth Amendment to the U.S. Constitution is clear that neither life, liberty, nor property (including private business contracts) can be interfered with by the U.S. government, except in cases of prior crime.

Compensation must be awarded if private property is ever taken for public use.

In short, U.S. government was allowed to interfere in the operations of private businesses if one of two conditions held: the business owner was a criminal, or the business operations presented a physical danger to the public at large.

The 1937 case actually involved the state government of Washington state instead of the federal government, but the 14th Amendment to the U.S. Constitution is clear that this ban on government interference into private business operations also extends to state governments as well.

In spite of the clarity arrived at once you examine what the words in the Fifth and 14th Amendments actually mean, Justice Roberts still voted in favor of government interference into private business contracts, such as wage contracts.

This flip by Justice Roberts from earlier positions he had taken then ended what had been referred to as the Lochner Era, where court rulings had been decided in favor of liberty of contract and against government interference into private contracts.

History Repeats Itself

The decision in 1937 would be a piece of history which ended up eerily repeating itself exactly 75 years later, when another Justice Roberts would make a very bad decision to harm the future of freedom and prosperity in America.

This time, the case was over the constitutionality of the Affordable Care Act, specifically regarding the mandate involving a federal penalty for "not taking" an action (an actual penalty for "not insuring" yourself).

By referring to the Affordable Care Act mandate as if it were a "tax," Justice Roberts (John this time, not Owen) allowed for the Affordable Care Act to avoid a snare of the Constitution, and at least limp along, rather than being terminated for being unconstitutional. [2]

The federal government had--with the help of Justice Roberts--a new power to punish citizens, not for actions you take but for actions that you did not take (i.e., for not buying health insurance from the select few government cronies who were to be allowed to be able to sell it to you).

If you didn't pay into the newly-established oligopoly on health insurance (and in some states, a pure "single-seller" monopoly), then the federal government could come after you.

You will pay these health insurance giants what we tell you to, or we'll make you pay for your disobedience or for your "failure to comply."

In Summary

Overall, FDR made nine total appointments to the Supreme Court, though one appointment merely moved Harlan Stone from Associate Justice into the position of Chief Justice. [3]

It actually shouldn't matter what kind of people you place on the Supreme Court, because the Supreme Court--like all other federal institutions--should not be allowed to make any kind of decisions which run contrary to the originalist meaning of the U.S. Constitution.

Yet by the 1930s and early 1940s, Supreme Court justices were allowed to make rulings contrary to the U.S. Constitution.

By 1939 there was a "New Deal Majority" on the Court right in time for one of the most egregiously unconstitutional Supreme Court rulings (Wickard v. Filburn, 1942) where the majority used illogical reasoning to make it appear as if the federal government actually had the authority to fine you for "not" doing something which was being regulated.

In a free nation like the U.S., fines are supposed to be for things you did do, not for things you didn't do. Yet this simple logic was lost on the majority of the Supreme Court of 1942:

Farmer Roscoe Filburn didn't engage in interstate commerce, yet he was fined, under "interstate commerce law," for what it was that he did engage in:

He produced wheat on his own private farm [!]

This is a big reason that the Article V convention of states for proposing amendments is included in the U.S. Constitution--to make sure that no one is ever able to make decisions contrary to the originalist meaning of the U.S. Constitution.

After FDR got the majority of the U.S. Supreme Court on "his side," an endless flow of government programs was initiated, and governance in the United States become less and less constitutional each decade after the 1930s.

As an example, there are 18 times as many pages of federal rules and regulations as there were in 1950. [4]

To restore the original intent of the Founders and reverse the back-breaking debt and regulatory burdens which the federal government is literally dumping onto the shoulders of Americans, we can use Article V of the Constitution to call a Convention of States limited to proposing amendments forcing the federal government to downsize in both size and scope of operations.

The restraints which We the People have the constitutionally-authorized power to place upon the shoulders of our federal officials also include restrictions placed on Supreme Court justices preventing them from successfully engaging in "legislating-from-the-bench" as a form of judicial tyranny over the rest of us.

The founders gave us a Constitution, not a Court-stitution.

The purpose of Article V was to make federal governance "idiot-proof" in that all clearly-unconstitutional action would be overruled because, We the People are the true sovereigns.


[1] The Washington Post. (March 12, 2019). "Dear Democrats: FDR’s court-packing scheme was a ‘humiliating’ defeat." By Gillian Brockell. Available:

[2] Forbes. (May 12, 2014). The Obamacare "Tax" That Chief Justice Roberts Invented Is Still Unconstitutional. By Ilya Shapiro. Available:

[3] United States Senate. Legislation and Records. Supreme Court Nominations (1789-Present). Available:

[4] Code of Federal Regulations chart [scroll down to find]. Regulatory Studies Center at the Columbian College of Arts & Sciences of George Washington University. Available:

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