Race and the Court-Packing Fight

I just finished reading Jeff Shesol’s book on FDR’s Court-packing fight.  It’s terrific and provides a lot of interesting chestnuts that I’d never seen before.  One thing I’ve always wondered about is why people felt so committed to the Court in a world before Brown and before the application of much of the Bill of Rights to the States.  In other words, what did those who defended the Court as a defender of minority rights cite at a time when judicial protection of property rights was so unpopular?

One answer was that Southerners argued that the Court was what “saved” the region from the Civil Rights Act of 1875 and other Reconstruction legislation.  In fact, during the Senate Judiciary Committee hearing on the plan one Senator said that the object of Court-packing was school desegregation. That line of attack was still potent in 1937, and illustrates how politics makes strange bedfellows, as many liberals joined with these southern conservatives to thrwart the President’s proposal.

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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.