Court packing

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Court packing (also spelled "court-packing") refers to schemes to increase the number of justices on the U.S. Supreme Court in order to change the results on key issues and to promote their own agenda. President Franklin Delano Roosevelt attempted such in 1937 but was rebuked by the majority of his own Democratic Party for it, including even his steadfast New Deal ally Robert F. Wagner. On July 22nd of that year, the U.S. Senate voted 70–20 to send the Judicial Procedures Reform Bill to committee where the language corresponding to its totalitarian aims were removed.[1] All "nays" were from Democrats, including Southern segregationists Hugo Black, Allen J. Ellender, Hattie Caraway, and Theodore Bilbo. (see below for more information on court packing and racism)

Then-candidate Joe Biden in the 2020 election, among Democrats, planned to introduce court-packing in the event of an election victory, with their proposed swamp of Joseph Biden, running mate Kamala Harris, Speaker of the House Nancy Pelosi, and Senate Democratic leader Charles Schumer.

Running for president in 2020, candidate Joe Biden repeatedly refused to answer questions about his court packing plan if he were elected:[2]

They'll know my opinion on court-packing when the election is over.

—Joseph R. Biden, Jr. (D–DE), Oct. 2020

General history

The U.S. Constitution does not establish the number of Supreme Court Justices, which changed multiple times until 1869. The Judiciary Act of 1789 established six justices for the first Supreme Court. Lame duck President John Adams signed the Judiciary Act of 1801 to reduced the number to five, but President Thomas Jefferson and Congress subsequently restored it to six by repealing that law, and in 1807 increased the number to seven while also adding an additional seventh U.S. Court of Appeals.

When the number of federal circuits was expanded further in 1837, President Andrew Jackson added two more justices to the Supreme Court, for a total of nine. In 1863 Congress added a tenth circuit and established ten seats on the Supreme Court. In 1866 Congress reduced the number of justices back to seven, but in 1869 Congress restored the total number to nine.

The number of justices has remained at a maximum of nine since 1869.

Antithesis to civil rights

FDR opposed anti-lynching legislation to seek support for his court-packing proposal from racist Southern Democrats.
See also: Gavagan–Van Nuys–Wagner Act

In 1937, the U.S. House overwhelmingly passed an anti-lynching bill, the Gavagan–Wagner Act, which the U.S. Senate did not take up that year due to its primary business concerned with the Judicial Procedures Reform Act, President Roosevelt's "court-packing plan." The very pro–New Deal, Democratic House sponsor of the anti-lynching bill, Joseph A. Gavagan, noted Roosevelt's shunning of the Act:[3]

This apparent disinterestedness on the part of the White House in legislation of this type always puzzled me, and although I attempted on several occasions to procure an answer to the query, I was unsuccessful. I finally gave up the attempt, convinced that perhaps after all, President Roosevelt was taking first things first and felt that the more demanding questions were more vital to the nation at that particular time than any equal rights legislation.

—Rep. Joseph A. Gavagan (D–NY)

Roosevelt, in need of Southern Democratic support to maintain any practical hopes of passing the Judicial Procedures Reform Bill, sought their support by shunning civil rights efforts,[4] as he did to pass programs of the First and Second New Deal previously in effectively opposing the Costigan–Wagner Act, an earlier anti-lynching bill, during 1935. However, his hopes of passing the bill were destroyed when his chief senatorial ally, Joseph T. Robinson of Arkansas, suddenly died on July 14, 1937, ultimately resulting in defections by Southern Democrats who no longer had a pro–New Deal Majority Leader to appease.[5]

Southern Democratic support for U.S. House substitute

In the U.S. House of Representatives, opposition towards the Judicial Procedures Reform Bill by numerous Democrats including Hatton W. Sumners of Texas, chairman of the influential House Judiciary Committee, led to compromise legislation being passed instead which increased incentives for the retirement of sitting Supreme Court justices, thus enabling sooner new appointments by Roosevelt.[6] The substitute was supported by nearly all Southern Democrats.

Among the supporters of the court-packing proposal who voted for the substitute was John E. Rankin of Mississippi,[7] a New Deal proponent and racial bigot.[8]

Leftist white supremacist Theodore Bilbo supports the court-packing plan


The first U.S. senator in 1937 to openly support Roosevelt's plan to pack the Supreme Court was Theodore Bilbo of Mississippi,[9] considered one of the most racist federal politicians in the nation's history. Bilbo, a populist influenced by the Progressive Movement and who launched anti-capitalist tirades, declared himself "one hundred percent for Roosevelt and the New Deal," and praised in turn by FDR as "a real friend of liberal government."[10] Bilbo's racism throughout the 1930s up until the World War II years left numerous Democratic colleagues entirely unbothered, invited at one occasion by the Young Democrats of New York to deliver its keynote address.[11]

Bilbo, solid in supporting the Judicial Procedures Reform Bill of 1937,[12] told Mississippi voters:[13]

You can put me down a thousand percent for President Roosevelt's court proposal.

—Sen. Theodore G. Bilbo (D–MS), cir. 1937

KKK senator Hugo Black supports the court reorganization proposal

Another Southern Democrat who ardently supported President Roosevelt's New Deal and particularly the court-packing plan was Hugo Black of Alabama, a former member of the Ku Klux Klan. Although on racial issues "he was no Theodore Bilbo or Tom Heflin," Black's racism persisted into the 1930s, calling the Scottsboro boys "these Negro rapers."[14]


  2. Opryso, Caitlin (October 10, 2020). Biden again deflects on court packing question. Politico.
  3. Malkiel, Nancy Joan Weiss (1983). Farewell to the Party of Lincoln: Black Politics in the Age of FDR. Internet Archive. Retrieved June 5, 2023.
  4. "Farewell to the Party of Lincoln," pp. 244–45.
  5. Egerton, John (1994). Speak Now Against The Day: The Generation Before the Civil Rights Movement in the South. Google Books. Retrieved June 5, 2023.
  6. February 10, 1937. TO PASS H. R. 2518, (P. A. 10), A BILL PROVIDING FOR THE RETIREMENT OF JUSTICES OF THE SUPREME COURT. GovTrack. Retrieved June 5, 2023.
  7. Zwiers, Maarten (July 11, 2017). John Elliott Rankin. Mississippi Encyclopedia. Retrieved June 5, 2023.
  8. Badger, Anthony J. (1989). The New Deal: Depression Years, 1933–40, p. 270. Google Books. Retrieved June 5, 2023.
  9. Mickey, Robert (2015). Paths Out of Dixie: The Democratization of Authoritarian Enclaves in America's Deep South, 1944–1972, p. 153. Google Books. Retrieved June 5, 2023.
  10. Sjursen, Daniel A. (June 2021). A True History of the United States: Indigenous Genocide, Racialized Slavery, Hyper-Capitalism, Militarist Imperialism and Other Overlooked Aspects of American Exceptionalism, p. 349. Google Books. Retrieved June 5, 2023.
  11. Morgan, Chester M. (1985). Redneck Liberal: Theodore G. Bilbo and the New Deal, p. 230. Google Books. Retrieved June 5, 2023.
  12. Biles, Roger (February 24, 1994). The South and the New Deal, pp. 150–51. Google Books. Retrieved June 5, 2023.
  13. Kalman, Laura (2022). FDR's Gambit: The Court Packing Fight and the Rise of Legal Liberalism. Google Books. Retrieved June 5, 2023.
  14. Wiecek, William M. (1971). The History of the Supreme Court of the United States, p. 76. Google Books. Retrieved June 5, 2023.

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