Fireside Chats — March 9, 1937 Part Two

What is my proposal?

It is simply this: whenever a judge or justice of any federal court has reached the age of seventy and does not avail himself of the opportunity to retire on a pension, a new member shall be appointed by the President then in office, with the approval, as required by the Constitution, of the Senate of the United States.

That plan has two chief purposes.

By bringing into the judicial system a steady and continuing stream of new and younger blood, I hope, first, to make the administration of all federal justice speedier and, therefore, less costly; secondly, to bring to the decision of social and economic problems younger men who have had personal experience and contact with modern facts and circumstances under which average men have to live and work.

This plan will save our national Constitution from hardening of the judicial arteries.

The number of judges to be appointed would depend wholly on the decision of present judges now over seventy, or those who would subsequently reach the age of seventy.

If, for instance, any one of the six justices of the Supreme Court now over the age of seventy should retire as provided under the plan, no additional place would be created.

Consequently, although there never can be more than fifteen, there may be only fourteen, or thirteen, or twelve.

And there may be only nine.

There is nothing novel or radical about this idea.

It seeks to maintain the federal bench in full vigor.

It has been discussed and approved by many persons of high authority ever since a similar proposal passed the House of Representatives in 1869. Why was the age fixed at seventy?

Because the laws of many states, the practice of the Civil Service, the regulations of the Army and Navy, and the rules of many of our universities and of almost every great private business enterprise, commonly fix the retirement age at seventy years or less.

The statute would apply to all the courts in the federal system.

There is general approval so far as the lower federal courts are concerned.

The plan has met opposition only so far as the Supreme Court of the United States itself is concerned.

If such a plan is good for the lower courts it certainly ought to be equally good for the highest court from which there is no appeal.

Those opposing this plan have sought to arouse prejudice and fear by crying that I am seeking to "pack" the Supreme Court and that a baneful precedent will be established.

What do they mean by the words "packing the Court"?

Let me answer this question with a bluntness that will end all _honest_ misunderstanding of my purposes.

If by that phrase "packing the Court" it is charged that I wish to place on the bench spineless puppets who would disregard the law and would decide specific cases as I wished them to be decided, I make this answer: that no President fit for his office would appoint, and no Senate of honorable men fit for their office would confirm, that kind of appointees to the Supreme Court.

But if by that phrase the charge is made that I would appoint and the Senate would confirm justices worthy to sit beside present members of the Court who understand those modern conditions, that I will appoint justices who will not undertake to override the judgment of the Congress on legislative policy, that I will appoint justices who will act as justices and not as legislators--if the appointment of such justices can be called "packing the Courts," then I say that I and with me the vast majority of the American people favor doing just that thing--now.

Is it a dangerous precedent for the Congress to change the number of the justices?

The Congress has always had, and will have, that power.

The number of justices has been changed several times before, in the administration of John Adams and Thomas Jefferson-- both signers of the Declaration of Independence--Andrew Jackson, Abraham Lincoln and Ulysses S. Grant.

I suggest only the addition of justices to the bench in accordance with a clearly defined principle relating to a clearly defined age limit.

Fundamentally, if in the future, America cannot trust the Congress it elects to refrain from abuse of our Constitutional usages, democracy will have failed far beyond the importance to it of any king of precedent concerning the judiciary.

We think it so much in the public interest to maintain a vigorous judiciary that we encourage the retirement of elderly judges by offering them a life pension at full salary.

Why then should we leave the fulfillment of this public policy to chance or make independent on upon the desire or prejudice of any individual justice?

It is the clear intention of our public policy to provide for a constant flow of new and younger blood into the judiciary.

Normally every President appoints a large number of district and circuit court judges and a few members of the Supreme Court.

Until my first term practically every President of the United States has appointed at least one member of the Supreme Court.

President Taft appointed five members and named a Chief Justice; President Wilson, three;

President Harding, four, including a Chief Justice; President Coolidge, one; President Hoover, three, including a Chief Justice.

Such a succession of appointments should have provided a Court well-balanced as to age.

But chance and the disinclination of individuals to leave the Supreme bench have now given us a Court in which five justices will be over seventy-five years of age before next June and one over seventy.

Thus a sound public policy has been defeated.

I now propose that we establish by law an assurance against any such ill-balanced court in the future.

I propose that hereafter, when a judge reaches the age of seventy, a new and younger judge shall be added to the court automatically.

In this way I propose to enforce a sound public policy by law instead of leaving the composition of our federal courts, including the highest, to be determined by chance or the personal indecision of individuals.

If such a law as I propose is regarded as establishing a new precedent, is it not a most desirable precedent?

Like all lawyers, like all Americans, I regret the necessity of this controversy.

But the welfare of the United States, and indeed of the Constitution itself, is what we all must think about first.

Our difficulty with the Court today rises not from the Court as an institution but from human beings within it.

But we cannot yield our constitutional destiny to the personal judgment of a few men who, being fearful of the future, would deny us the necessary means of dealing with the present.

This plan of mine is no attack on the Court; it seeks to restore the Court to its rightful and historic place in our constitutional government and to have it resume its high task of building anew on the Constitution "a system of living law."

The Court itself can best undo what the Court has done.

I have thus explained to you the reasons that lie behind our efforts to secure results by legislation within the Constitution.

I

hope that thereby the difficult process of constitutional amendment may be rendered unnecessary.

But let us examine the process.

There are many types of amendment proposed.

Each one is radically different from the other.

There is no substantial groups within the Congress or outside it who are agreed on any single amendment.

It would take months or years to get substantial agreement upon the type and language of the amendment.

It would take months and years thereafter to get a two-thirds majority in favor of that amendment in _both_ Houses of the Congress.

Then would come the long course of ratification by three-fourths of all the states.

No amendment which any powerful economic interests or the leaders of any powerful political party have had reason to oppose has ever been ratified within anything like a reasonable time.

And thirteen states which contain only five percent of the voting population can block ratification even though the thirty- five states with ninety-five percent of the population are in favor of it.

A very large percentage of newspaper publishers, Chambers of Commerce, Bar Association, Manufacturers' Associations, who are trying to give the impression that they really do want a constitutional amendment would be the first to exclaim as soon as an amendment was proposed, "Oh!

I was for an amendment all right, but this amendment you proposed is not the kind of amendment that I was thinking about.

I am therefore, going to spend my time, my efforts and my money to block the amendment, although I would be awfully glad to help get some other kind of amendment ratified."

Two groups oppose my plan on the ground that they favor a constitutional amendment.

The first includes those who fundamentally object to social and economic legislation along modern lines.

This is the same group who during the campaign last Fall tried to block the mandate of the people.

Now they are making a last stand.

And the strategy of that last stand is to suggest the time-consuming process of amendment in order to kill off by delay the legislation demanded by the mandate.

To them I say: I do not think you will be able long to fool the American people as to your purposes.

The other groups is composed of those who honestly believe the amendment process is the best and who would be willing to support a reasonable amendment if they could agree on one.

To them I say: we cannot rely on an amendment as the immediate or only answer to our present difficulties.

When the time comes for action, you will find that many of those who pretend to support you will sabotage any constructive amendment which is proposed.

Look at these strange bed-fellows of yours.

When before have you found them really at your side in your fights for progress?

And remember one thing more.

Even if an amendment were passed, and even if in the years to come it were to be ratified, its meaning would depend upon the kind of justices who would be sitting on the Supreme Court bench.

An amendment, like the rest of the Constitution, is what the justices say it is rather than what its framers or you might hope it is.

This proposal of mine will not infringe in the slightest upon the civil or religious liberties so dear to every American.

My record as Governor and President proves my devotion to those liberties.

You who know me can have no fear that I would tolerate the destruction by any branch of government of any part of our heritage of freedom.

The present attempt by those opposed to progress to play upon the fears of danger to personal liberty brings again to mind that crude and cruel strategy tried by the same opposition to frighten the workers of America in a pay-envelope propaganda against the Social Security Law.

The workers were not fooled by that propaganda then.

The people of America will not be fooled by such propaganda now.

I am in favor of action through legislation: First, because I believe that it can be passed at this session of the Congress.

Second, because it will provide a reinvigorated, liberal-minded judiciary necessary to furnish quicker and cheaper justice from bottom to top.

Third, because it will provide a series of federal courts willing to enforce the Constitution as written, and unwilling to assert legislative powers by writing into it their own political and economic policies.

During the past half century the balance of power between the three great branches of the federal government, has been tipped out of balance by the courts in direct contradiction of the high purposes of the framers of the Constitution.

It is my purpose to restore that balance.

You who know me will accept my solemn assurance that in a world in which democracy is under attack, I seek to make American democracy succeed.

You and I will do our part.