1936 December 30

Courts Peril Democracy, Argues Former New Deal Official


Donald Richberg, a former official with President Franklin D. Roosevelt’s New Deal, called the federal courts, and the Supreme Court in particular a “peril” to democracy and the ability of the federal government to cope with the nation’s social and political needs. He accused the courts of using “dry as dust legalism” to “bury” needed legislation.

Richberg’s remarks were prompted by the constitutional crisis of the mid-1930s when the Supreme Court had invalidated New Deal legislation designed to address the Depression. The Court ruled that federal economic regulation violated the “liberty of contract” under the Fourteenth Amendment.

In response to this crisis, President Roosevelt would in February 1937 propose his famous (or infamous) “court-packing” plan that would allow him to expand the size of the court by appointing new justices to the Supreme Court for judges who were 70 years and 6 months old or older. The plan met with strong opposition and was rejected by Congress.

As the “court-packing” plan was being debated, the Supreme Court reversed itself and upheld the constitutionality of federal and state economic regulation. Then, the elderly and conservative members of the Court began to retire and Roosevelt appointed a series of Justices who were not only sympathetic to economic regulation but also to civil liberties. The resulting “Roosevelt Court” established the first significant body of civil liberties law in the history of the Court.

Learn more: Peter Irons, A People’s History of the Supreme Court (1999)

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