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New Deal followers in Congress had since election been cogitating Constitutional amendments to give the Federal Government power to regulate industry, labor and agriculture. They had been pondering Acts to force the licensing of corporations engaged in interstate commerce, to limit the jurisdiction of the Supreme Court, to require more than a mere majority of the Court to declare a law unconstitutional, etc., etc. Now the President was striding forward to take over the whole show, as usual.
Righteous Argument As Franklin Roosevelt unfolded his plan, sweet reasonableness was its disarming keynote. He proposed no alteration of the Constitution, no limitation of the powers of the courts. He unveiled a foundation of ample precedent, buttressed by arguments often made in the past by eminent jurists, for improvement of the judicial system. Only a month ago he had proposed a plan to reorganize the executive branch (TIME, Jan. 25). Now he merely proposed to rejuvenate the judicial branch.
Congress had often altered the number of judges on the Federal bench. In fact it had first established the Supreme Court with six members in 1789, increased it to seven in 1807, to nine in 1837, to ten in 1863, decreased it to eight in 1866, increased it to nine in 1869. Franklin Roosevelt produced a letter from his Attorney General attesting that each Federal judge now has to handle nearly half again as many cases as in 1913, that congestion and delay result. His reasoning was impeccably high-minded as he developed it for the newshawks, but as he continued he let his political purpose flicker through.
Speaking of the early history of the Supreme Court he mentioned that for over a century its Justices had to ride circuit. That, he interjected, meant actually riding on horseback, so it might be called the pre-horse-&-buggy era. Newshawks guffawed. He continued reading:
"Delay in any court results in injustice. It makes lawsuits a luxury available only to the few who can afford them or who have property interests to protect which are sufficiently large to repay the cost. . . . The Supreme Court is laboring under a heavy burden. Its difficulties in this respect were superficially lightened some years ago by authorizing the Court, in its discretion, to refuse to hear appeals in many classes of cases. This discretion was so freely exercised that in the last fiscal year, although 867 petitions for review were presented to the Supreme Court, it declined to hear 717 cases. . . .
"Many of the refusals were doubtless warranted. But can it be said that full justice is achieved when a Court is forced by the sheer necessity of keeping up with its business to decline, without even an explanation, to hear 87% of the cases presented to it by private litigants? . . .
"A part of the problem of obtaining a sufficient number of judges to dispose of cases is the capacity of the judges themselves. This brings forward the question of aged or infirm judges—a subject of delicacy and yet one which requires frank discussion."