The topic of “packing” the U.S. Supreme Court has become a hot button issue in the 2020 presidential campaign. But this isn’t the first time members of the federal government and the public have debated the matter.

The Judicial Act of 1869 established that the Supreme Court would consist of a chief justice and eight associate justices. Justices were, and are, slated to serve lifetime appointments. This court structure reinforced the idea that the judicial branch was apolitical and one of three co-equal branches of American government.

However, beginning in 1935, the Supreme Court struck down several pieces of President Franklin D. Roosevelt’s New Deal legislation for being unconstitutional. Roosevelt’s frustration with the court grew.

Soon a controversial plan was formed. FDR proposed adding as many as 6 additional judges to the court, thus “packing” it in favor of his policies. He intended to neutralize the justices who disagreed with him.

Roosevelt selected the morning of February 5th, 1937, for the announcement of his bombshell, first to a group of congressional leaders and then at a press conference. His Judicial Procedures Reform Bill of 1937 was to put restrictions on the court when it came to age. Out with the old, and in with new more progressive judges.

FDR’s plan met instant opposition in Congress and with the public.

A surprising opponent was Wyoming’s senior U.S Senator Joseph O’Mahoney, a typically loyal FDR lieutenant. A Cheyenne newspaper editor and later attorney, O’Mahoney had risen through the Democratic ranks beginning as an aide to U.S. Senator John B. Kendrick before becoming a stalwart in the national party as a committeeman and campaign organizer. When his mentor Kendrick died in 1933, O’Mahoney was appointed to fill his Senate seat. During his early tenure in the Senate, O’Mahoney supported most of Roosevelt’s New Deal programs, with the notable exception of the “court-packing plan.”

O’Mahoney’s resistance to the plan was not without anguish. He was acutely aware of the political adage that nothing is more rewarded than loyalty, nor more punished than disloyalty. He choice was to surrender to political expediency or heed his reverence for checks and balances and for the Supreme Court as an institution. Adding to his angst was his strong desire for a Supreme Court seat. Long after the Court fight, newspapers mentioned O’Mahoney’s name whenever a vacancy occurred on the Court. A succinct summary of his procedural objections to FDR’s plan can be found in the transcript of a radio address from May 6, 1937, with the unconfusing title “The Judiciary Bill Should Not Pass.” The transcript can be found in the O’Mahoney papers at the American Heritage Center.

The Wyoming Senator tried a tack with FDR of proposing an amendment that would limit the terms of all federal judges to fifteen years, make their salaries subject to the income tax, and provide for compulsory retirement at the age of seventy-five. All were substantive measures, O’Mahoney argued, that Roosevelt wanted. The President didn’t budge.

O’Mahoney pushed his amendment adamantly in the halls of Congress but gained little traction. At last, in the middle of April 1937, he concluded that the amendment tactic was doomed. That he had clung to the amendment approach as a practicable compromise for so long provides eloquent testimony to his extreme reluctance to break with Roosevelt. But break he did.

Eventually President Roosevelt got his way by packing the Court the old-fashioned way, through attrition, naming nine members.

Post submitted by AHC Simpson Archivist Leslie Waggener. She thanks AHC Archives on the Air writer Kathryn Billington for her contributions. Also contributing to the post is text from Dr. Gene M. Gressley’s article “Joseph O’Mahoney, FDR, and the Supreme Court” published in the Pacific Historical Review, Vol. 40, No. 2 (May 1971), pp. 183-202.