We have, therefore, reached the point as a nation where we must
take action to save the Constitution from the Court and the Court
from itself. We must find a way to take an appeal from the Supreme
Court to the Constitution itself. We want a Supreme Court which
will do justice under the Constitution–not over it. In our courts
we want a government of laws and not of men.
I want–as all Americans want–an independent judiciary as proposed
by the framers of the Constitution. That means a Supreme Court that
will enforce the Constitution as written–that will refuse to amend
the Constitution by the arbitrary exercise of judicial power–
amended by judicial say-so. It does not mean a judiciary so
independent that it can deny the existence of facts which are
How then could we proceed to perform the mandate given us? It was
said in last year’s Democratic platform, “If these problems cannot
be effectively solved within the Constitution, we shall seek such
clarifying amendment as will assure the power to enact those laws,
adequately to regulate commerce, protect public health and safety,
and safeguard economic security.” In other words, we said we would
seek an amendment only if every other possible means by legislation
were to fail.
When I commenced to review the situation with the problem squarely
before me, I came by a process of elimination to the conclusion
that, short of amendments, the only method which was clearly
constitutional, and would at the same time carry out other much
needed reforms, was to infuse new blood into all our courts. We
must have men worthy and equipped to carry out impartial justice.
But, at the same time, we must have judges who will bring to the
courts a present-day sense of the Constitution–judges who will
retain in the courts the judicial functions of a court, and reject
the legislative powers which the courts have today assumed.
In forty-five out of the forty-eight states of the Union, judges
are chosen not for life but for a period of years. In many states
judges must retire at the age of seventy. Congress has provided
financial security by offering life pensions at full pay for
federal judges on all courts who are willing to retire at seventy.
In the case of Supreme Court justices, that pension is $20,000 a
year. But all federal judges, once appointed, can, if they choose,
hold office for life, no matter how old they may get to be.
What is my proposal? It is simply this: whenever a judge or justice
of any federal court has reached the age of seventy and does not
avail himself of the opportunity to retire on a pension, a new
member shall be appointed by the President then in office, with the
approval, as required by the Constitution, of the Senate of the
That plan has two chief purposes. By bringing into the judicial
system a steady and continuing stream of new and younger blood, I
hope, first, to make the administration of all federal justice
speedier and, therefore, less costly; secondly, to bring to the
decision of social and economic problems younger men who have had
personal experience and contact with modern facts and circumstances
under which average men have to live and work. This plan will save
our national Constitution from hardening of the judicial arteries.
The number of judges to be appointed would depend wholly on the
decision of present judges now over seventy, or those who would
subsequently reach the age of seventy.
If, for instance, any one of the six justices of the Supreme Court
now over the age of seventy should retire as provided under the
plan, no additional place would be created. Consequently, although
there never can be more than fifteen, there may be only fourteen,
or thirteen, or twelve. And there may be only nine.
There is nothing novel or radical about this idea. It seeks to
maintain the federal bench in full vigor. It has been discussed and
approved by many persons of high authority ever since a similar
proposal passed the House of Representatives in 1869.
Why was the age fixed at seventy? Because the laws of many states,
the practice of the Civil Service, the regulations of the Army and
Navy, and the rules of many of our universities and of almost every
great private business enterprise, commonly fix the retirement age
at seventy years or less.
The statute would apply to all the courts in the federal system.
There is general approval so far as the lower federal courts are
concerned. The plan has met opposition only so far as the Supreme
Court of the United States itself is concerned. If such a plan is
good for the lower courts it certainly ought to be equally good for
the highest court from which there is no appeal.
Those opposing this plan have sought to arouse prejudice and fear
by crying that I am seeking to “pack” the Supreme Court and that a
baneful precedent will be established.
What do they mean by the words “packing the Court”?
Let me answer this question with a bluntness that will end all
_honest_ misunderstanding of my purposes.
If by that phrase “packing the Court” it is charged that I wish to
place on the bench spineless puppets who would disregard the law
and would decide specific cases as I wished them to be decided, I
make this answer: that no President fit for his office would
appoint, and no Senate of honorable men fit for their office would
confirm, that kind of appointees to the Supreme Court.
But if by that phrase the charge is made that I would appoint and
the Senate would confirm justices worthy to sit beside present
members of the Court who understand those modern conditions, that I
will appoint justices who will not undertake to override the
judgment of the Congress on legislative policy, that I will appoint
justices who will act as justices and not as legislators–if the
appointment of such justices can be called “packing the Courts,”
then I say that I and with me the vast majority of the American
people favor doing just that thing–now.
Is it a dangerous precedent for the Congress to change the number
of the justices? The Congress has always had, and will have, that
power. The number of justices has been changed several times
before, in the administration of John Adams and Thomas Jefferson–
both signers of the Declaration of Independence–Andrew Jackson,
Abraham Lincoln and Ulysses S. Grant.
I suggest only the addition of justices to the bench in accordance
with a clearly defined principle relating to a clearly defined age
limit. Fundamentally, if in the future, America cannot trust the
Congress it elects to refrain from abuse of our Constitutional
usages, democracy will have failed far beyond the importance to it
of any king of precedent concerning the judiciary.
We think it so much in the public interest to maintain a vigorous
judiciary that we encourage the retirement of elderly judges by
offering them a life pension at full salary. Why then should we
leave the fulfillment of this public policy to chance or make
independent on upon the desire or prejudice of any individual
It is the clear intention of our public policy to provide for a
constant flow of new and younger blood into the judiciary. Normally
every President appoints a large number of district and circuit
court judges and a few members of the Supreme Court. Until my first
term practically every President of the United States has appointed
at least one member of the Supreme Court. President Taft appointed
five members and named a Chief Justice; President Wilson, three;
President Harding, four, including a Chief Justice; President
Coolidge, one; President Hoover, three, including a Chief Justice.
Such a succession of appointments should have provided a Court
well-balanced as to age. But chance and the disinclination of
individuals to leave the Supreme bench have now given us a Court in
which five justices will be over seventy-five years of age before
next June and one over seventy. Thus a sound public policy has been
I now propose that we establish by law an assurance against any
such ill-balanced court in the future. I propose that hereafter,
when a judge reaches the age of seventy, a new and younger judge
shall be added to the court automatically. In this way I propose to
enforce a sound public policy by law instead of leaving the
composition of our federal courts, including the highest, to be
determined by chance or the personal indecision of individuals.
If such a law as I propose is regarded as establishing a new
precedent, is it not a most desirable precedent?
Like all lawyers, like all Americans, I regret the necessity of
this controversy. But the welfare of the United States, and indeed
of the Constitution itself, is what we all must think about first.
Our difficulty with the Court today rises not from the Court as an
institution but from human beings within it. But we cannot yield
our constitutional destiny to the personal judgment of a few men
who, being fearful of the future, would deny us the necessary means
of dealing with the present.
This plan of mine is no attack on the Court; it seeks to restore
the Court to its rightful and historic place in our constitutional
government and to have it resume its high task of building anew on
the Constitution “a system of living law.” The Court itself can
best undo what the Court has done.
I have thus explained to you the reasons that lie behind our
efforts to secure results by legislation within the Constitution. I
hope that thereby the difficult process of constitutional amendment
may be rendered unnecessary. But let us examine the process.
There are many types of amendment proposed. Each one is radically
different from the other. There is no substantial groups within the
Congress or outside it who are agreed on any single amendment.
It would take months or years to get substantial agreement upon the
type and language of the amendment. It would take months and years
thereafter to get a two-thirds majority in favor of that amendment
in _both_ Houses of the Congress.
Then would come the long course of ratification by three-fourths of
all the states. No amendment which any powerful economic interests
or the leaders of any powerful political party have had reason to
oppose has ever been ratified within anything like a reasonable
time. And thirteen states which contain only five percent of the
voting population can block ratification even though the thirty-
five states with ninety-five percent of the population are in favor
A very large percentage of newspaper publishers, Chambers of
Commerce, Bar Association, Manufacturers’ Associations, who are
trying to give the impression that they really do want a
constitutional amendment would be the first to exclaim as soon as
an amendment was proposed, “Oh! I was for an amendment all right,
but this amendment you proposed is not the kind of amendment that I
was thinking about. I am therefore, going to spend my time, my
efforts and my money to block the amendment, although I would be
awfully glad to help get some other kind of amendment ratified.”
Two groups oppose my plan on the ground that they favor a
constitutional amendment. The first includes those who
fundamentally object to social and economic legislation along
modern lines. This is the same group who during the campaign last
Fall tried to block the mandate of the people.
Now they are making a last stand. And the strategy of that last
stand is to suggest the time-consuming process of amendment in
order to kill off by delay the legislation demanded by the mandate.
To them I say: I do not think you will be able long to fool the
American people as to your purposes.
The other groups is composed of those who honestly believe the
amendment process is the best and who would be willing to support a
reasonable amendment if they could agree on one.
To them I say: we cannot rely on an amendment as the immediate or
only answer to our present difficulties. When the time comes for
action, you will find that many of those who pretend to support you
will sabotage any constructive amendment which is proposed. Look at
these strange bed-fellows of yours. When before have you found them
really at your side in your fights for progress?
And remember one thing more. Even if an amendment were passed, and
even if in the years to come it were to be ratified, its meaning
would depend upon the kind of justices who would be sitting on the
Supreme Court bench. An amendment, like the rest of the
Constitution, is what the justices say it is rather than what its
framers or you might hope it is.
This proposal of mine will not infringe in the slightest upon the
civil or religious liberties so dear to every American.
My record as Governor and President proves my devotion to those
liberties. You who know me can have no fear that I would tolerate
the destruction by any branch of government of any part of our
heritage of freedom.
The present attempt by those opposed to progress to play upon the
fears of danger to personal liberty brings again to mind that crude
and cruel strategy tried by the same opposition to frighten the
workers of America in a pay-envelope propaganda against the Social
Security Law. The workers were not fooled by that propaganda then.
The people of America will not be fooled by such propaganda now.
I am in favor of action through legislation:
First, because I believe that it can be passed at this session of
Second, because it will provide a reinvigorated, liberal-minded
judiciary necessary to furnish quicker and cheaper justice from
bottom to top.
Third, because it will provide a series of federal courts willing
to enforce the Constitution as written, and unwilling to assert
legislative powers by writing into it their own political and
During the past half century the balance of power between the three
great branches of the federal government, has been tipped out of
balance by the courts in direct contradiction of the high purposes
of the framers of the Constitution. It is my purpose to restore
that balance. You who know me will accept my solemn assurance that
in a world in which democracy is under attack, I seek to make
American democracy succeed. You and I will do our part.
October 12, 1937.
This afternoon I have issued a Proclamation calling a special
session of the Congress to convene on Monday, November 15, 1937.
I do this in order to give to the Congress an opportunity to
consider important legislation before the regular session in
January, and to enable the Congress to avoid a lengthy session next
year, extending through the summer.
I know that many enemies of democracy will say that it is bad for
business, bad for the tranquility of the country, to have a special
session–even one beginning only six weeks before the regular
session. But I have never had sympathy with the point of view that
a session of the Congress is an unfortunate intrusion of what they
call “politics” into our national affairs. Those who do not like
democracy want to keep legislators at home. But the Congress is an
essential instrument of democratic government; and democratic
government can never be considered an intruder into the affairs of
a democratic nation.