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In 1870 a Republican Congress and President settled the Court at its present size under circumstances highly suggestive of packing. Up for Court decision were the Legal Tender Acts involving the issue of Civil War greenbacks. Resignation had made one vacancy on the Court: Congress had year before created another. On the very day the Court handed down a 4-to-3 decision against the greenbacks, President Grant filled the two vacancies. On rehearing, the greenbacks were upheld 5-10-4.
With that decision, the Court hit bot tom in popular opinion, but soon commenced its steady rise to awesome heights. Until last week the nearest thing to a suggestion of Presidential tinkering was in 1912 when, attempting a comeback, Franklin Roosevelt's fifth cousin flirted publicly with the idea of recall of unpopular judges, actually plumped for re-call of judicial decisions in his Progressive platform. Wrote Felix Frankfurter in 1934: "Certainly neither the Presidency nor the Congress has better withstood the fluctuating winds of popular opinion than the Supreme Court. Despite intermittent popular movements against it, the Court is more securely lodged in the confidence of the people than the other two branches of the Government."
The Line-Up. When copies of the President's message, with the proposed Judiciary-Reform Bill attached, were distributed in the House, opportunistic little Representative Maury Maverick of San Antonio, Tex. quickly tore off the mimeographed draft of the bill, signed his name to it and dropped it in the hopper. So doing he stole a march on other ardent New Dealers in Congress, most of whom were immensely pleased by the President's move. Newshawks who immediately made surveys of Congressional sentiment agreed that the bill would be passed without serious difficulty. Save for routine Republican objections, little criticism was voiced at the Capitol in the first 24 hours following the shock of its reception. Senator Robinson promised that it would receive "favorable consideration."
But a startling amount of lukewarmness quickly developed. Senator Norris who, in the contest between New Deal and Supreme Court, has always been on the New Deal's side, frankly declared, "I doubt the wisdom of the remedy suggested." Senator Ashurst. chairman of the Senate Judiciary Committee, hemmed & hawed and looked up the late Chief Justice Taft's views before saying he would sponsor the bill in the Senate. Chairman Hatton Summers of the House Judiciary Committee declared merely, ''We'll take their baby out and look at it."
Senate support of the bill was not strengthened by the President's criticism of oldsters, nor by the fact that Senators like Robinson of Arkansas and Wagner of New York, who have been considered for the first vacancies on the Supreme Court, will not be eligible for any of the new posts proposed.* Senator Van Nuys of Indiana, a member of the Judiciary Committee, announced that he would insist on the Justices of the Supreme Court being called to give their views on the bill. Promptly several other members backed him up.