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These recommendations would not have stirred any one deeply, least of all the President. The kernel of his message came when he read, "I therefore earnestly recommend . . . the appointment of additional judges in all Federal courts, without exception, where there are incumbent judges of retirement age who do not choose to retire or resign." This meant, according to the draft of the bill which he sent with his message, that he would be empowered to appoint not more than 50 new judges to duplicate those who are now 70 and have been ten years on the bench. Not stated by the President to the press, and in the draft bill masterfully underemphasized, was the specific, final, crucial point of the entire performance: a proposal to swell the Supreme Court—should septuagenarians decline to retire—from nine to 15 members, an increase of two Justices larger than the confirmed anti-New Deal element of the present Court.
"These proposals do not raise any issue of Constitutional law. They do not suggest any form of compulsory retirement for incumbent judges. . . ."
Nervous shock. As always in one of his major acts—and this was his biggest yet—Franklin Roosevelt had taken this country completely by surprise. Flabbergasted Congressmen stumbled hastily into the legislative chambers to hear the message read as rumors of its contents flew. News-tickers flashed it to the floors of stock exchanges and stockmarket prices took a swift tumble. It spread in banner headlines across every newspaper. Presently it appeared that the U. S. was not .only surprised but also rather shocked. Only the most rabid New Deal newspapers openly applauded. The alarm of the independent press that ordinarily supports the Administration was typified by the New York Times, which sternly said: "Cleverness and adroitness in dealing with the Supreme Court are not qualities which sober-minded citizens will approve." Said a Scripps-Howard editorial writer: "Though not as crude as President Grant's coup adding two members to the high bench to win majority approval of his legal tender law, Mr. Roosevelt's proposal, in its political sense, is designed to achieve the same end. And because that purpose sticks out like a sore thumb, the President must accept much of the responsibility for returning the controversy to the realm of emotion."
Numbers. As obviously as the President's message was an argument for a change in the judiciary on the simple grounds of good government, his major proposal had an ulterior motive. It was patently contrived to let him override the Supreme Court as now constituted by adding or replacing Justices to support the legal contentions of the New Deal. Conservatives Butler, 70, Sutherland and Hughes, 74, McReynolds, 75, Van Devanter, 77, are all of retirement age. Of the Liberals, only Justice Brandeis, 80, would be affected.