A New Discovery About FDR’s Court-Packing Plan

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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6 Responses

  1. Claiming that article V amendment is futile because the states refuse to ratify an amendment you want, is like a bank robber claiming that regular withdrawals are futile because they don’t actually have an account. That the states will sometimes refuse to ratify an amendment is part of the POINT of giving them a part in the process.

  2. Orin Kerr says:

    This is interesting, but I’m not entirely sure if this is particularly savvy hard ball or just a common strategy among politicians to gin up support for their policies.

  3. Gerard Magliocca says:

    Hi Orin (and welcome back),

    I think you’re right, though it depends on your definition of “hardball.” In FDR’s case, the really nasty stuff was reserved for Huey Long (e.g., FBI wiretapping, IRS harassment). With respect to Court-packing, savvy or canny is probably a better description.

  4. A.W. says:

    so… are you suggesting that FDR tanked the amendment to make his point…?

    This post is a little confused as to the bottom line…

  5. Gerard Magliocca says:


    Actually, I’m not sure what the bottom line is. That’s part of the fun of research-in-progress!

  6. Orin Kerr says:

    Interesting. Thanks, Gerard.