The Hughes Court
On the other hand, he thought, maybe was there an alternative to the morbid choice of waiting for the grim reaper to take away a justice.
What many Americans may not know is that the US Constitution doesn’t specify the number of Supreme Court justices. Article III of the Constitution gives Congress the power to set the size of the court. At the start, the Supreme Court started with six justices and grew to as many as ten justices by 1863. In 1866, Chief Justice Chase requested reducing the number through attrition to seven. Congress agreed and the court reached briefly that number in 1867. Then in 1869, Congress passed the Circuit Justices Act, which brought it back to nine justices.
Knowing this history, FDR decided that if he could get Congress to pass legislation to increase the size of the Supreme Court as it had done before then he could create a court full of friendly justices who would be less likely to overturn his New Deal legislation. Therefore, FDR proposed that for every justice who reached 70 years and 6 months old but refused to retire then he could add a new judge to the Federal Judiciary along with adding another justice to the Supreme Court. The Supreme Court would have a maximum limit of fifteen justices according to the proposed legislation.
Suddenly, things started to turn around for FDR. Without any change in the justices, the Supreme Court upheld both the Wagner Act as well as the Social Security Act in March of 1937. Then in May, the justice Van Devanter declared that he would retire. While it was too late to save some of his programs, FDR ultimately got the court that he needed and the Judicial Procedures Reform Bill of 1937 died in committee.