WI: FDR doesn't try to pack the Supreme Court

LBJ may never make it to Congress!

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The court-packing plan in OTL did much to crystalize the "conservative
coalition" of Republicans and (mostly southern) conservative Democrats that
was to hamstring the New Deal for the remainder of FDR's years in office and
afterwards. I stated in a post some years ago that "that coalition would
have eventually formed anyway. The near-unanimous support FDR got from
Congressional Democrats under the emergency conditions of 1933 could not be
sustained forever." I still think this is true, especially since the 1937-8
recession would weaken FDR's hand, yet without the bitterness of the court-
packing fight, even conservative Democrats might be more willing to
compromise with the administration. Furthermore, the court-packing fight was
one major reason for FDR's subsequent blunder of the attempted "purge" of
anti-New Deal Democrats in 1938, which further embittered conservative
Democrats and perhaps led to the New Dealers losing more heavily in the 1938
election than they would otherwise have done.

However, there is one other possible effect of a no-court-packing-controversy
scenario I had neglected in prior posts. In a special election for Congress
from the Texas Tenth Congressional District in 1937, young Lyndon Johnson
made backing for the court-packing plan one of the main themes of his
campaign. He was not the only candidate to support the plan, but he gave the
impression that he was, that all the others were at best reluctant about it,
etc. He warned that all the New Deal programs that ordinary Texans liked,
such as rural electrification, depended on a favorable Supreme Court, and
told the voters that "any candidate who poses as a friend of the Colorado
River Authority but is against Court reform is contradicting himself."
Randall Woods, *LBJ: Architect of American Ambition*
http://books.google.com/books?vid=I...ts=xeTNAkPMT6&sig=Ih6KP3ZEb_QFMbBkB__rKrWGb44

"In a race against much better-known candidates, [LBJ's] organization would
not have begun to be enough had Johnson not shrewdly exploited FDR's
popularity in the Tenth District. To the consternation of some of his
opponents, Johnson managed to create the impression that he was the only one
of the nine candidates that supported FDR's Court-packing plan, a claim that
was palpably false.... [Johnson said:] 'Mr. Roosevelt is in trouble now.
When we needed help, he helped us. Now *he* needs help...Are you going to
help Mr. Roosevelt? That is what this election is all about.'

"Johnson reminded the voters that the eyes not only of Texas but of the
country were upon them, for they were making a choice that could determine
the whole future of the Roosevelt presidency. He leafleted the district with
flyers containing an excerpt from Ray Tucker's 'National Whirligig' column:
'Major plebiscite on the supreme court will take place in Texas April
10...Young Lyndon Johnson, former national youth administrator, carries FDR's
judicial colors....Several senators now lukewarm towards the White House
scheme may suddenly shift if Mr. Roosevelt wins out there by proxy.'

"It did not take long for Roosevelt's circle to buy the idea that Johnson was
FDR's 'proxy.' Elliott Roosevelt announced publicly for Johnson because, as
he explained in a telegram to Jim Farley, 'Congressional race to pick
successor is coming to a head down here as straight out fight between Lyndon
Johnson who is backing father wholeheartedly on his whole program including
the court issue and two other candidates who have refused to support father
on that question.' Farley himself deviated from his usual posture of strict
neutrality in primary bouts. On a tour of Texas, ostensibly to dedicate some
post offices, the Democratic national chairman referred to Johnson as FDR's
'champion.'

"By identifying himself with FDR, Johnson won a stunning victory that was
widely interpreted as a vote of confidence for Roosevelt and Court-packing.
The Associated Press ticker announced: 'Youthful Lyndon B. Johnson, who
shouted his advocacy of President Roosevelt's court reorganization all over
the Tenth Texas District, was elected today,' while a Texas newspaper
headlined the result:

"'JOHNSON ELECTED TO CONGRESS BY BIG VOTE
FDR'S COURT PROPOSAL OKAYED BY TENTH DISTRICT'"

William E. Leuchtenberg, *In the Shadow of FDR: From Harry Truman to Barack Obama* https://books.google.com/books?id=k0Y9BwAAQBAJ&pg=PT158&lpg=PT158

Without the court-packing controversy, LBJ would still have portrayed himself
as FDR's great supporter, but without a palpable sense that FDR was in
trouble (the court-packing plan had drawn much criticism even from former
supporters), would such a portrayal have been enough to win the election?
And if LBJ had lost this election, would he ever have become Senator, Vice
President, and ultimately President?

https://groups.google.com/d/msg/soc.history.what-if/beII6vdlpPI/raZBEa5FMIsJ
 
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So you're assuming court packing was a defeat for FDR?
In fact even if he didn't manage to appoint more judges, the SCOTUS declared the New Deal constitutional which was FDR's goal from the start.

But court-packing was not necessary for that. All you had to do was pass the Summers bill letting Supreme Court justices retire on full pay:

***

"It was widely rumored that both Van Devanter and Sutherland had wanted to
retire before 1937. Van Devanter had been on the Court for twenty-six years,
and at the age of seventy-eight was anxious to leave the bench. Sutherland
suffered from high blood pressure, and as a result was required to write most
of his opinions while lying in bed. Both were discouraged from retirement,
however, by the treatment Justice Holmes had received from Congress after his
retirement in 1932. Shortly after Holmes had resigned Congress had enacted
the Economy Bill of 1933, which had the effect of reducing the retirement
compensation of all retired Supreme Court justices. The ironic effect of
this measure was to keep judicial opponents of other New Deal legislation on
the Supreme Court longer than they otherwise would have remained.

"In 1935 Summers' committee [Harlan Summers, D-TX, was Chairman of the House
Judiciary Committee] had reported out a bill to allow Supreme Court justices
to retire on full pay. Perversely, the House rejected the bill when it came
to the floor for a vote..."

In 1937 Summers revived the bill as a maneuver against the court-packing
plan. It passed quickly, was signed by FDR, and produced the desired
results: Both Van Devanter and Sutherland decided to retire shortly after
the bill was passed. (They delayed their retirement slightly, however--Van
Devanter until the middle of 1937 and Sutherland until the end of the year--
because of the pendency of the court-packing bill, which thus had the ironic
result of keeping FDR's judicial opponents on the bench a bit longer.)

https://groups.google.com/d/msg/soc.history.what-if/beII6vdlpPI/raZBEa5FMIsJ

***

BTW, Justice Roberts' famous "switch in time that saved nine"--his decision to uphold state minimum wage laws in *West Coast Hotel v. Parrish*--was made *before* the court-packing plan was announced:

"In the Parrish case, Roberts indicated his desire to overturn Adkins immediately after oral arguments on Dec. 17, 1936.[14] The initial conference vote on Dec. 19, 1936 was split 4-4; with this even division on the Court, the holding of the Washington Supreme Court, finding the minimum wage statute constitutional, would stand.[17] The eight voting justices anticipated Justice Stone—absent due to illness—would be the fifth vote necessary for a majority opinion affirming the constitutionality of the minimum wage law.[17] As Chief Justice Hughes desired a clear 5-4 affirmation of the Washington Supreme Court's judgment, rather than a 4–4 default affirmation, he convinced the other justices to wait until Stone's return before both deciding and announcing the case.[17]

"President Franklin D. Roosevelt announced his court reform bill on February 5, 1937, the day of the first conference vote after Stone's February 1, 1937 return to the bench. Roosevelt later made his justifications for the bill to the public on March 9, 1937 during his 9th Fireside Chat. The Court's opinion in Parrish was not published until March 29, 1937, after Roosevelt's radio address. Chief Justice Hughes wrote in his autobiographical notes that Roosevelt's court reform proposal "had not the slightest effect on our [the court's] decision," but due to the delayed announcement of its decision the Court was characterized as retreating under fire..." https://en.wikipedia.org/wiki/The_switch_in_time_that_saved_nine
 
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