From the AP archive:
Feb. 5, 1937

FDR stuns nation with plan
to enlarge Supreme Court

WASHINGTON (AP) - A history-making proposal by President Roosevelt to inject "new blood" into a Supreme Court, hostile to many New Deal acts, by raising the tribunal's membership to fifteen if necessary, went to a surprised Congress today.

It provided a sensation almost beyond comparison. Congress split into warring camps, with many New Dealers rejoicing and their foes crying "dictator!"

The President's plan, regarded generally in Congress as his long-awaited answer to the invalidation of New Deal efforts to regulate industry and farming, proposed a revamping of the entire Federal judicial system, including lower courts.

Under it six Supreme Court justices now past 70 years old would be given the choice of retiring or having six new judges of the President's own choosing take places as their peers on the bench. The judges who have been most implacable in their opposition to Roosevelt legislation thus would be a minority of the tribunal, which would then consist of fifteen instead of nine justices.

Four justices generally labeled as "conservative" are now past 70. they are VanDevanter, McReynolds, Butler and Sutherland. A "liberal" justice, Brandels, also is in that age classification, as is Chief, Justice Hughes, who has voted against the New Deal eight times and for it seven.

The President's plan also called for appointment of additional judges to the lower Federal courts, if present judges over 70 declined to retire. Other recommendations in the President's message, which seemed prophetic of one of the stormiest congressional struggles in history, were:

1. That the chief justice of the United States be permitted to shift members of subordinate courts from one district to any other where their services were required by the pressure of litigation.

2. That the Supreme Court be authorized to appoint a proctor to report constantly on the operation of lower courts.

3. That the government be given a chance to defend any Federal law before its enforcement can be halted on constitutional grounds; and that appeals from such decisions go direct to the Supreme Court and be made the first order of business there.

"If these measures achieve their aim," the President told the excited Congress, "we may be relieved of the necessity of considering any fundamental changes in the powers of the courts or the Constitution of our government changes which involve consequences so far-reaching as to cause uncertainty as to the wisdom of such course."

The President declared his proposals raised no issue of constitutional law and would not force the retirement of any incumbent judge.

In support of his plan to appoint additional judges if those past 70 refused to retire, however, he said:

"Modern complexities call for a constant infusion of new blood in the courts, just as it is needed in executive functions of the government and in private business.

"A lowered mental or physical vigor leads men to avoid an examination of complicated and changed conditions. Little by little, new facts become blurred through old glasses fitted, as it were, for the needs of another generation; older men, assuming that the scene is the same as it was in the past, cease to explore or inquire into the present of the future."

Mr. Roosevelt observed that "in exceptional cases" judges retained full mental and physical vigor to an advanced age, and added: "No President should be asked to determine the ability or disability of any particular judge."

In outlining his plan to provide for direct appeals to the Supreme Court from lower court injunctions against enforcement of Federal laws, he declared:

"Government by injunction lays a heavy hand upon normal processes and no important statute can take effect-against any individual or organization with the means to employ lawyers and engage in wide-flung litigation-until it has passed through the whole hierarchy of the courts.

Thus the judiciary, by postponing the effective date of acts of the Congress, is assuming an additional function and is coming more and more to constitute a scattered, loosely organized and slowly operating third house of the national Legislature."

Members of Congress eagerly read the President's message, the text of an administration bill proposed to carry it out, and an accompanying letter from Attorney General Cummings deploring congestion in the courts.

"This is pretty nearly the beginning of the end of everything," declared Representative Snell, the Republican leader who presided over the party's last national convention. He said the President proposed to destroy the county's "judicial stability."

Senator Norris (Independent, Nebraska) applauded the President's criticism of present conditions in the judiciary, but expressed doubt as to the wisdom of the remedy he proposed. "The whole subject is a perplexing one and I hope and believe that Congress will be able to solve it," he said.

The bitterness of the struggle to come over the proposed legislation has been foreshadowed by recent clashes in Congress. Various proposals to legislate concerning the judiciary split the ranks of Democratic senators in those tussles. In the opposition were such veteran Democrats as Senators Glass of Virginia and Bailey of North Carolina. Delivery of the President's message was a complete surprise to most persons in the Capitol. Although Mr. Roosevelt had such a step in mind since before his annual message a month ago, only a few high officials and congressional leaders received word of it prior to today.

This morning's special Cabinet and congressional conference was called only last night. Presidential aids worked virtually all last night. Arrangements for the message to be received by Congress, and for it to be broadcast by radio, were made hurriedly today. The President read and explained the message to reporters in his office-a rare procedure;

No message since the President took office aroused more evidence of interest in Congress. A Supreme Court page distributed copies of the message to the nine justices as they sat upon the bench. Some apparently read it through; others paid it no immediate attention.

Feb. 6, 1937

FDR Demands 'Liberal' Interpretation of Constitution

WASHINGTON - (AP) - Speaking to the Seventy-fifth Congress but obviously aiming his words at the Supreme Court, President Roosevelt today demanded a "liberal" interpretation of the Constitution as opposed to a "narrow" one.

With the rebel yells of his Democratic hosts resounding in the packed House chamber, the President, who had been overwhelmingly re-elected since the Supreme Court struck down his NRA and other laws, spoke this pointed sentence:

"The process of our democracy must not be imperized by the denial of essential powers of free government."

There is no vital need to amend the Constitution, he argued, but there is need of an "enlightened view" of it. He appealed to the courts to permit "legitimately implied" powers of government to be made effective instruments for the common good."

The justices of the high court, who are soon to rule on constitutionality of other New Deal acts, did not hear his words. They were in their private dining room eating lunch at the time and because of their traditional silence, there was no way of telling how they felt.

Before both houses of congress, gathered in joint session to receive his annual message, the chief executive reiterated his faith in NRA's broad objectives conceded that it had attempted too much and then giving each word a sharp staccato emphasis asserted:

"The statute of NRA has been outlawed. The problems have not. They are still with us."

The President, delivering his address in an even tone at an almost hurried tempo paused for deliberate emphasis whenever he reached a reference to the question of the effort of recent court interpretations on administration objectives.

"With a better understanding of our purposes, and a more intelligent recognition of our needs as a nation, it is not to be assumed that there will be prolonged failure to bring legislative and judicial action into closer harmony," he said.

"Means must be found to adapt our legal forms and our judicial interpretation to the actual present national needs of the largest progressive democracy in the modern world."

And again, asserting that the legislative and executive branches were bending themselves to the task of "making democracy succeed," he pointedly added:

"The judicial branch also is asked by the people to do its part in making democracy successful."

Otherwise, the chief executive called for a "comprehensive overhauling" of the government's administrative departments, and cited as pressing problems "the menace of slum areas," the prevalence of an un-American type of tenant farming," "the intelligent development of our social security system" and "adequate relief for the needy unemployed who are capable of performing useful work."

Comments afterward showed the speech was received by Capitol Hill with somewhat mixed emotions, with most Democrats warm in their praise and Republicans on the whole registering only half-hearted approval or dissent. Some few members of his own party disagreed with the President's remarks on the courts.

An hour before the President's appearance, the two houses convened in the House chamber, first of all to poll the electoral college on the result of the presidential election.

Rollicking applause, which the Democrats embellished with a few touches of derision, greeted the announcement that Maine and Vermont were casting their votes for Alf M. Landon.

Promptly at 2, the President entered, attired in a gray frock cost with the semiformal black four-in-hand tie. At first there was moderate applause, then cheers. The President, motionless at the reading clerk's dais, waited for it to subside, laid his glasses on the desk and began.

A Mixed Congressional Reaction

WASHINGTON (AP) - The nation faced the prospect tonight of a terrific struggle between leaders eager to marshal public opinion for or against President Roosevelt's plan to reorganize the Federal courts.

Mr. Roosevelt gave no sign that he would participate, but side reported he had received a number of urgent requests to carry the fight to the people by radio. Opposition leaders moved immediately to the attack.

John D. M. Hamilton, Republican national chairman, declared in an address that the President's program would destroy every vestige of hope for an "impenetrable bulwark" against legislative and executive assumptions of power.

A possibility arose that Supreme Court justices themselves might have a word to say, before Congress acts, about the presidents plan to name six new men to the high tribunal and reform the Federal judicial system all down the line.

Senator VanNuys (Democrat, Indiana) and Burke (Democrat, Nebraska) said they would ask the Senate Judiciary Committee to invite Supreme Court Justices to testify before it.

The committee will meet next Monday, but the President's proposal cannot come before it officially then because the plan has not yet been introduced in the Senate.

Committee Chairmen Ashurst (Democrat, Arizona), after some previous hesitation, announced today he would introduce the President's bill Monday.

Although administration leaders in Congress predicted an eventual hardwon victory, a sharp division of opinion was evident amoung members of both House and Senate committees which first must pass upon the plan.