Prior to 1937 only one President had completed a full four-year term without a Supreme Court vacancy. James Monroe had to wait until the middle of his second term before appointing Smith Thompson, who did his work nobly for 20 years. That's why Franklin Roosevelt was frustrated at the start of his second term and determined to change the court by any means necessary. The Chief at the time was Charles Evans Hughes from New York. President Taft had chosen him as an Associate Justice in 1910 at age 47. When Chief Justice Melville Fuller died later that year Taft knew Hughes would be an excellent choice to replace him. However Hughes might have kept the job until Taft was dead or very old and Taft wanted the job himself. So Taft promoted Associate Justice Edward White, who had served 16 years already, hoping White would retire or die at just the right time for a future President to appoint Taft to replace him. Taft then chose three more yes-men to agree with him both while he remained as President and when he became Chief Justice. One of them died in 1916. Another retired after Taft replaced White as Chief. The last of them: Willis Van Devanter, was still serving, age 77, in 1937. He was willing to retire but wanted a bigger pension. Roosevelt got Congress to increase the pension and he promptly retired, giving Roosevelt his first vacancy late in 1937. Hughes left the court to run for President in 1916, losing narrowly to Wilson. When Taft retired as Chief Justice in 1930, Herbert Hoover chose Hughes to replace him. Taft was chosen as Chief in 1921 by fellow Ohioan Warren G. Harding. Harding was a newspaper publisher, not a lawyer, so when he was soon presented with three more vacancies he simply asked Taft who he wanted. Two of those three yes-men (Pierce Butler, 70, and George Sutherland, 74) remained. Those four voted alike so often contrary opinions got nowhere. Owen Josephus Roberts, appointed by Herbert Hoover in 1930, sat in the court's dunce seat, joining the other four whether he understood them or not. The worst of all-to FDR's way of thinking, was James Clark McReynolds, a 1914 appointee of Woodrow Wilson who had become a passionate conservative and was guaranteed not to retire healthy under Roosevelt. He was 74. Louis Brandeis, the court's first ever Jewish member, was Roosevelt's favorite and the oldest (age 80). He was likely to retire before the end of FDR's second term, but might do so sooner if another Jew joined the court first. Also to Roosevelt's liking was Harlan Fiske Stone, a moderate Republican appointed by Calvin Coolidge in 1925. Finally there was Benjamin Cardozo of New York, both Jewish and Hispanic (though some denied that was possible). He was a legendary jurist for over 15 years and when Oliver Wendell Holmes finally retired at age 90 in 1932 Senators told President Hoover he was the only man they'd accept. Since six of them were now 70 or older, Roosevelt proposed that he should be allowed to appoint additional justices for any that did not retire or die, possibly swelling the court to as many as 15 members. Believe it or not, that was not unprecedented. In 1807 the court was increased from six to seven members so Thomas Jefferson could attempt to neutralize Federalists John Marshall and Bushrod Washington. In 1836 the court was increased to nine, with retiring President Andrew Jackson getting one more appointment and his successor the other. In 1864 the court was increased to ten members so Lincoln could give Republicans a clear majority. Congress then reduced the number to nine again to prevent Andrew Johnson from making an appointment. Increasing the court permanently to 15 would have been interesting. It would mean that even a one-term President could look forward to a few appointments. Two-term Presidents might get to appoint about half. More vacancies would come quickly, because justices would not consider it their last stop. Some might consider it like a cabinet job, retiring when their President does. Few individual justices would be important, so the dunces and yes-men could multiply. Once the court reached 15, any effort by Congress to reduce the number would clearly be a plot to prevent the sitting President from making more appointments, as with Andrew Johnson. With six of 15 Roosevelt's men and Cardozo and Brandeis on his side, eight-seven victories would be assured most of the time. A compromise of perhaps 11 justices would still give Roosevelt a lot of losing decisions and even make it easier for the oldest to linger four more years, since they could be out sick often without being missed. Roosevelt also knew who he wanted, and when his appointments began, his agenda became clear. The most obvious reason was that the court was overturning some of his New Deal policies. Another case was pending in 1937. Fearing for their jobs, the court decided it the President's way. Some call this the vote in time that saved nine. Congress did not pack the court, but they did increase the pension. Van Devanter retired promptly and Roosevelt appointed Hugo Black to replace him. Black was not a judge but a politician and, as Roosevelt hoped, came to the court as he would a legislature, with a list of laws to be modified. He would use his first drafts to propose legislation, then compromise to gain support and win the case. Black started immediately and had increasing success. The next vacancy came suddenly. Cardozo died late in 1937. His replacement would not gain a desired majority. Roosevelt chose Stanley Reed, more moderate than Black and therefore more acceptable to the hardline conservatives. He might convert someone. Sutherland retired in late 1938. Roosevelt appointed Felix Frankfurter, a top Jewish adviser born in Austria. With that move, Roosevelt prompted Brandeis to retire, insulted Adolf Hitler and gave himself a third solid vote, followed by the most certain of all, William O. Douglas replacing Brandeis. As he approached the end of his second term Roosevelt now had four staunch liberals on the court who would combine for112 years of service. However, since two of them had replaced liberals, he had increased the liberal wing of the court only to four. They would still lose controversial cases five-four. The most likely fifth vote would be Stone, and they could expect it when they were on the right side of the Constitution. On those occasions however, Stone-as first in seniority on the majority side-would decide who writes the decision, so it would usually be drawn on narrow grounds and not bring the radical changes Black and Douglas were looking for. The quartet could write brilliant lectures on their side without a fifth vote, but they would be dissents. Fortuitously, on November 16, 1939 Pierce Butler suddenly died at age 73. To replace him Roosevelt needed a simple friendly Roman Catholic Democrat and chose his friend and current Attorney General Frank Murphy. This was a relief for FDR, because his appointment as Attorney General (replacing Homer Cummings, an FDR supporter who was rewarded with the job for loyalty and had drawn up the court packing plan) was an act of charity because Murphy was broke after losing the governorship of Michigan. Roosevelt was about to need a qualified Attorney General but could afford an under-qualified Supreme Court Justice. This gave FDR his desired majority vote, bolstered by a former Attorney General voting on his former colleagues' presentations. When Roosevelt started his third term, the remaining elders: Hughes and McReynolds, soon retired. Roosevelt showed goodwill to Republicans by promoting Stone to Chief. Robert Jackson had been lobbying for the Supreme Court since 1937 , and got his chance, as did Roosevelt's all-purpose troubleshooter James Byrne. Byrne was off the court a year later when Roosevelt needed him to do something important, leaving the seat to Wiley Rutledge, a rubber stamp vote for the now overwhelming liberal majority. With Stone partly obliged to the President, Roberts stood alone and had no brilliance to persuade anyone to join the conservative side. He was tired of his job, but hated Roosevelt. He retired soon after the President died, and Truman graciously appointed a Republican nearly as useless: Harold Burton. The era of liberal dominance had come to reality sooner and more fully than Roosevelt dreamed at the start of 1937.
