Montana’s Wheeler Helped Save America from Judicial Mischief

Montana’s Wheeler Helped Save America from Judicial Mischief

"Americans can be thankful that the cynical effort to corrupt the Court in 1937 was defeated by principled legislators like Montana’s Burton K. Wheeler."

“When you don’t like the message,” the old saying goes, “shoot the messenger.” 

In the wake of Supreme Court rulings they don’t like, leading Democrats in Washington are renewing calls to “pack” the Court with more liberal justices. Were that to happen, the judicial branch of the federal government would become a mouthpiece for one political party and set off “tit for tat” fights the next time Republicans are in charge. 

When Democrat Franklin Roosevelt attempted court-packing in 1937, hoping he might be able to appoint as many as six new justices, it was a member of his own party who led the successful fight to defeat it. That would be none other than Montana Senator Burton K. Wheeler, who put country ahead of party when he declared,

Create now a political court to echo the ideas of the Executive and you have created a weapon. A weapon which, in the hands of another President in times of war or other hysteria, could well be an instrument of destruction. A weapon that can cut down those guarantees of liberty written into your great document by the blood of your forefathers and that can extinguish your right of liberty, of speech, of thought, of action, and of religion. A weapon whose use is only dictated by the conscience of the wielder.

Born and raised in Massachusetts, Wheeler earned his law degree from the University of Michigan before heading for Seattle. He never made it. His train stopped in Butte, where he lost almost everything he had in a poker game. He decided to recoup by building a law practice in Montana. 

His political career began in 1910 when, at age 28, he was elected to the Montana legislature. After running unsuccessfully for Governor in 1920, he won a U.S. Senate seat two years later. Wheeler was a “liberal” and a staunch ally of Roosevelt’s New Deal policies but he courageously broke with FDR over the court-packing plot. 

Fresh from a landslide reelection to a second term in 1936, Roosevelt was determined to crush the independence of the Supreme Court by turning it into a rubber stamp for the White House. He asked Congress to approve a plan whereby the President could nominate a new justice for every sitting justice who reached the age of 70 and did not voluntarily retire. Roosevelt already controlled the executive branch and held sway over the legislative branch, with big Democrat majorities in both the House and Senate. But for Wheeler, a grab for the judicial branch was a bridge too far.

In his 1962 biography, Yankee from the West, Wheeler showed just how out of sync he was with many his ideological allies:

What bothers me about today’s “liberals” is this: through the ages, those called liberal fought to take the power away from the kings and the emperors and to give it to the parliaments; now it is the “liberals” who are anxious to give more and more power to the executive, at the expense of the legislative branch.

FDR’s scheme went down in flames five months after the President proposed it. Even his Vice-President, John Nance Garner of Texas, dumped on it. 

Americans can be thankful that the cynical effort to corrupt the Court in 1937 was defeated by principled legislators like Montana’s Burton K. Wheeler. We should hope that any similar schemes in the future will meet the same fate.


Lawrence W. Reed writes a monthly column for the Frontier Institute in Helena, on whose board he serves. He is president emeritus of the Foundation for Economic Education and blogs at

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