Judge Glock is a senior policy adviser with 8vc, a venture capital firm, and the Cicero Institute, a nonpartisan think tank. He may be reached at [email protected].

Americans spent much of 2018 with their eyes trained on the Supreme Court—from its rulings on presidential travel bans and public employee unions to Brett Kavanaugh’s confirmation battle, the most heated confirmation battle in modern memory. So it should be no surprise that many are talking about ways to reform the court.

Some Democrats even want to revive the most famous, or infamous, attempt at Supreme Court reform in history: President Franklin D. Roosevelt’s proposal to pack the court with extra justices in 1937. In Philadelphia this week, presidential candidate Pete Buttigieg, mayor of South Bend, Ind., said that court packing was “no more a departure from norms than what the Republicans did to get the judiciary to the place it is today.”


FDR’s court-packing battle is one of the best-known constitutional struggles in U.S. history. The story, as it’s often been told, pits an entrenched, reactionary Supreme Court, which overturned a slew of Roosevelt’s New Deal economic reforms, against a hubristic president willing to take the unprecedented step of asking Congress to appoint six new, and sympathetic, justices to the bench. Only a national outcry against this unconstitutional skulduggery, along with a newly cowed court that began upholding Roosevelt’s laws, stopped the plan.

Yet this narrative gets much of the court-packing episode wrong. New research I have conducted, forthcoming in the Journal of American History, demonstrates that Roosevelt saw his plan in the context of a long tradition of judicial reform, not as a departure from it. FDR wanted to encourage older justices to retire, not to add extra justices to the bench. He saw a recent, although now nearly forgotten, law cutting Supreme Court pensions as preventing retirements and thus appointments that were his due. The court-packing episode was partially an attempt to fix retirement issues—not a mere presidential power grab. And at the time, at least at first, many in the press and public agreed with him.

Today, those looking to reform the Supreme Court might want to look away from court packing and instead consider the seemingly mundane issue of judicial retirement—and how it has reshaped the court throughout its history. A new SCOTUS retirement plan might just be the best way to protect the court’s independence from the hyperpartisanship of our times.



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Although the Constitution provides clear methods for putting judges on the bench, it says little about how to get them off. The Founding Fathers assumed federal judges would just die in their seats. Of course, back then, life expectancies were shorter than they are today. But the founders also viewed any government-provided pension as corrupt patronage the Constitution could not condone. Therefore, judges who left the bench early would sacrifice their livelihoods. As Alexander Hamilton predicted in the Federalist Papers, few did.

Starting in the 1860s, however, a series of Republican Congresses began providing full salaries and benefits to all federal judges who retired, with the explicit idea that this would encourage some of the older, and, in that era, Democratic, judges to leave. It worked and opened several seats for the Republican Party.

Yet what Congress could give, it could also take away. Although the Constitution contains a clause protecting judges’ salaries, that clause did not apply to retirement packages. This loophole has provided an unfortunate means for politicians to manipulate the court. Twice in the 50 years after the first retirement provision, Congress passed laws stating that a particular unfavored justices could only collect their retirement money if they left the court in the following few months, and the justices obliged. Such nakedly political laws became the new normal after retirement was in place.

Then, in 1932, a little-noticed Depression-era austerity act cut Supreme Court justices’ retirement salary in half, almost as an afterthought to broader cuts. At the time, President Herbert Hoover’s attorney general warned that the law meant justices “will hang on like grim death until the Angel Gabriel blows the horn.”

He was right. I discovered a previously unpublished letter in which conservative Justice Willis Van Devanter wrote to his sister, “I do not like the idea of losing half of my salary by retiring” and that he would stay on the court. In fact, no justice would retire for the next five years, the longest period without a retirement since the creation of the nine-member Supreme Court. The lack of retirements, and the subsequent conservative battle with Roosevelt, is almost certainly a result of this cut in retirement pay.

As early as 1935, Roosevelt recognized the dilemma and tried to pass a bill restoring full retirement salaries. He failed because of lingering concerns about tight budgets during the Depression. Yet the court’s continued opposition to New Deal laws, especially by the older justices, led FDR to reach for more drastic reforms. In February 1937, he proposed a bill that would appoint an extra justice for every justice older than 70 who didn’t retire. In a little noticed addendum to his proposal, he asked that Congress also restore full judicial pensions.

While today this proposal is often seen as an attempt to pack the court with six extra judges, it was in the tradition of older judicial retirement reforms. Records in the Roosevelt library and the papers of Roosevelt’s attorney general at the time, Homer Cummings, demonstrate that Roosevelt modeled his proposal after the 1860s Republican Congress’ plan, as well as a now-forgotten Democratic reform to the lower courts put in place in the 1910s, which allowed the president to appoint an extra judge for any older judge who hadn’t retired and taken his or her pension. Historians have missed the close parallels between these earlier retirement reforms and Roosevelt’s proposal. But these parallels explain why most reporters and members of Congress did not regard Roosevelt’s bill with alarm in its early days, and why most thought it would pass.

Some of the earliest critics of the bill, like the deans of New York University and Fordham law schools, however, decried the attempt to unpack the court by encouraging older judges to retire. Publicly, Roosevelt and Cummings agreed, saying that if the older justices took advantage of a newly restored pension, the court would stay at nine members.

Many popular histories today focus on the “switch in time that saved nine”—conservative Justice Owen Roberts’ public decision to start upholding New Deal measures barely two months after Roosevelt’s proposal. But, as some historians have noted, Roberts’ decision to “switch” had been made long before Roosevelt’s plan was unveiled and did little to persuade either the president or Democrats in Congress to back down from their court reform proposal. It was only after Congress passed a bill that restored justices’ full pensions, separate from Roosevelt’s overall package, and Van Devanter retired at his full salary in May 1937 that FDR’s allies gave up the fight for the larger court reform bill.

Although the retirement aspects of the 1937 court struggle have been forgotten, the 1937 Supreme Court retirement bill remains in force today and justices can retain their full pensions when they retire.

Yet the existence of judicial pensions creates problems that were unanticipated by the founders. For one, these pensions can still be can be manipulated by Congress for partisan purposes. For those concerned about politicization of the court, there is nothing to prevent a future Congress from changing retirement salaries to either encourage or discourage justices to retire, as it did from the 1860s to 1930s.

More importantly, the pension system in place since 1937 means justices can wait to leave and collect their full salary until a like-minded president and Senate are in place. With partisanship at new heights, justices now practice “strategic retirement,” meaning that they in effect pick their successor. This leads to long-term “conservative” and “liberal” seats and makes every appointment one whose effects linger for many decades. These strategic retirements further elevate the importance of every court appointment and help make them near apocalyptic struggles that would have baffled the founders, who thought justices would either leave or die at random after they were on the bench.

So what’s the answer? Is there a way to avoid both a stultified bench and SCOTUS partisan shenanigans? There is one retirement reform proposal that could improve both issues. A constitutional amendment that limits each justice to a set amount of time—say, 18 years—on the bench would mean each would have no power beyond his or her own term, limiting the importance of each appointment. It is one of the few constitutional amendments that has found support from both liberal and conservative legal professors, and it is the only one that has been endorsed by both Senator Ted Cruz and Justice Ruth Bader Ginsburg. Such a constitutional amendment would also make irrelevant proposals to either pack or unpack the Supreme Court, which have unfortunately aggravated our political divides for generations.