Race and the Court-Packing Fight

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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3 Responses

  1. BPD says:


    My colleague Bill Ross has an article in a recent issue of the Journal of Law & Religion documenting the role that religious groups played in defeating the Court Packing Plan. Meyer and Pierce were important cases to them, and they viewed the Court as a potential guarantor of minority rights, even if that promise had not been fully realized.

  2. You write: “…as many liberals joined with these southern conservatives to thrwart the President’s proposal.”

    Wouldn’t it be more accurate to write “…as many northern Republicans joined with many southern Democrats to thrwart the President’s proposal.”

    Certainly by modern day standards (virtual blank check support for New Deal-type legislation), Senate Majority Leader Robinson was a staunch liberal but he was also a southern Democrat…and FDR’s main point person for packing the Court.

  3. Miguel Schor says:

    I agree that Jeff Shesol’s book is terrific. The other interesting aspect of the book is how close FDR came to winning that fight. If he had, judicial supremacy would have become weakened. The Court was bloodied but it was able to regroup and claim an important albeit different role post-New Deal. The cross-cutting cleavages in American politics are an important element, as you point out, in the Court’s continued strength as it is difficult for majorities to coalesce around the idea of weakening the power of the Court. Nonetheless American constitutional politics could have taken a decisive turn in the aftermath of the court packing plan which is one of the important lessons of Shesol’s book.