Evening star., 1937-02-06
Rooseuelt's Court Proposal
One of Most Drastic to Date
History of Supreme Tribunal Sho'cs
Fep Instances of President or Con.
gress Altering Its Personnel.
By the Associated Press.

PTeSlQenI HOOSeNelLS 3 proposal u
increase the membership of the Su-
preme Court Is one of the most dras-
tic moves affecting the tribunal ever
made.
II carried into effect. it will be one
OF the few times that the President or
Congress has succeeded in altering
the personnel of the court.
There have, however, been clashes
between the court and Presidents
Jefferson, Jackson, Van Buren,. Lin
coin and Theodore Roosevelt.
Four times Congress has voted an
increase In the number Of the JUS
tices. Each enlargement was due to
a heavy boost in judicial activities.
Once. however, during the Grant
administration, the gain in member
ship produced charges that the Pres
ident was attempting to pack" the
court to obtain a ruling upholding
constitutionality of the legal tender
act.
Ruled Invalid by 4to-S Vote.
This measure, which had been
passed to provide paper money to
pay for the Civil War, was declared
partially invalid by vote OF 4 to 3.
On the same day the decision was
delivered, in 1870, Grant sent to the
Senate the nominations OF two men
to become new members Of the court.
There was a vacancy to be filled and
Congress had added another member
to the tribunal.
A little later a rehearing was
granted and the entire legislation
was upheld by a 5-to-4 vote. The
two new justices joined with the trio
of previous dissenters to form ma
jority for the act.
Grant denied that he had attempted
to pack" the court and said he had
not known of the decision when he
forwarded the nominations.
The court originally was composed
of 6 members. 1t was raised to IN
1907, to 8 in 1887, 10 in 1868, dropped
to in 1866 and made 9-the present
number-in 1863.
In 1866 the reduction was voted by
Congress to keep President johnson
from naming new members.
Two Thirds Bill Failed.
Also during the Johnson admins
tration the House passed. 1l6 TO SO. a
bill to prevent the justices from hold
ing unconstitutional an act of Con-
greSs except by two-thirds vote. The
idea perished in the Senate. 1t is
among those that have been discussed
during recent months.
These are the only instances his
tory presents of success or near-Suc-
cess in the numerous efforts to clip
the power of the tribunal because OF
antagonism.
The stirring events centering around
the defeat in the 1900 presidential
election of aristocratic John Adams
by Thomas jefferson. the father OF
the Democratic party, preeipitated the
first uprising against the court since
the new Government had been formed
- years before.
Although Adams. an arch Federal
ist. had been eliminated in the cleo
ton, the balloting resulted in a tie
between Jefferson and Aaron Burr.
The House of Representatives chose
jefferson. Burr became Vice President.
Four days before the House vote,
nine days after John Marshall took
his seat as Chief Justice to succeed
the ailing Oliver Ellsworth, and three
weeks before Adams was to retire, the
Federalist Congress passed what was
known as the midnight judges" act
to reduce the membership Of the Su-
preme Court from six to five and to
establish six new circuit with 10
separate judges.
Federalists Rushed Into Office.
The contemplated reduction in the
number of justices was intended to
prevent Jefferson from appointing one
of his adherents when there was va
cancy, and to aid in keeping the Fed
eralists in control of the Judiciary.
Nominations for the new circuit
Judges were sent to the Senate by
Adams within l3 days thereafter and
by March 2, 1901, all had been con-
firmed. In keeping with political ira
ditions, most of them were Federalists.
This last-minute coup infuriated
the Jeffersonians, who repealed the
a few months after they
came into power.
Amid such a setting came the action
against the Supreme Court. composed
entirely of Federalists. Not only that,
but Marshall and Jefferson had been
active political foes since both at
tanned manhood in their native Vlr-
ginia.
In order to postpone a ruling by
the tribunal on the legality OF repeal
ing the judiciary act, the Jefferson
Congress abolished the next
two terms of court, thus preventing .
session from December, 1901, to Feb
ruary, 1903. The administration
wanted time to strengthen its forces.
Then came one of the strangest
ironies in the records of jurisprudence.
Soon after the Federalist court recon-
vened it upheld the repeal act.
Congress also was successful IN q
move against the court in litigation
growing out of the arrest Of Col. Nc
Cardle, q Vicksburg editor, by q mill
tary commission in Mississippi on No
Is, 1867.
McCardle was imprisoned for criti-
cizing the congressional policy OF keep
ing the Southern States, freshly con-
quered in the Civil War, under the
control of Federal Military forces.
Asks Court for Writ.
He appealed to the Supreme Court
for a writ of hebeas corpus and the
tribunal took the dispute under ad-
visement on March 8, 1858. after
hearing arguments from both sides.
Since the validity Of the reconstruc-
ton acts were at stake In the litiga-
ton the Republicans in Congress be-
of the American Bar Association, in
a prepared statement, criticized Presi-
dent Roosevelt's recommendations for
revision of the Federal courts and said
they were "out of line" with the Con-