Court Packing: The Drafting Recalled Warner W. Gardner EditofsNote: The followingis an excerpt from Pebbles From the Paths Behind, publishedpri vately by Warner W. Gardner in 1989. In the book’spreface, the author describes his motive for writing a memoir: “I have in any case ad dressed these pages to a sharply defined audi ence: me. One finds, I may note, a relaxing freedomfrom exactingstandards whenhe is in an hermaphroditic condition of conjoined author and reader.”Despite his intention, Mr. Gardner has nonetheless relented and permitted us to publish this portion of his memoir. Copyright 1989 Warner W. Gardner. In early October, 1936, Solicitor Gen eral Stanley Reed assigned me to Attorney General Homer Cummings for some research assistance. It is not irrelevant that I was then a week or two past my 27thbirthday. Cummings saidthat ifRoosevelt were reelected, as was ex pected, he was determined to move against the five or six Justices who were so stubbornly opposed to any government regulation that nothing could be done to strengthen the still devastated economy of the nation. I was to survey every suggestion short of constitutional amendment that had been made, and to report back as soon as feasible after the election. I must have made occasional oral re ports to Cummings or Reed, but don’t recall any. On December 10,1936,1 handed in a 65page memorandum entitled “Congressional Control ofJudicialPower to Invalidate Legisla tion.” I am confident that neither the Depart ment nor the White House had made any other constitutional inquiry undergirding the Presi dent’s proposal ofFebruary 5, 1937. In reread ing the paper a half century later, I consider it well short of perfection but adequate to the need. In 19811 sought retrieval of the paper, which had been in the 40-year custody of Paul Freund pending completion ofhis Holmes Devise history of the “New Deal” Court. In returning a copy, Paul remarked that the paper “has stood the test of time very well.” I replied, I seem to have combined what was in viewofthe importanceofthe issue comparatively superficial research with a remarkable confi dence in my judgmental conclusions. While I should hope this reflected a short allowance of time, I have encountered, in the subsequent 45 years, some meanspirited people who have sug gested that such is my customary condition. The paper concluded that the Court’s constitutional review had solid historical sup port; that the Court would not accept a Con gressional declaration that the legislative find ings of fact were conclusive; that Congress could not oust state courts of constitutional review unless there were a federal court alter- 100 JOURNAL 1990 Afterclerking forJustice Harlan Stone duringthe 1934-35 Term, Warner Gardner served the Office ofthe Solicitor General at the Justice Department for five years. He then became Solicitor of the U.S. Department of the Interior in 1942, and served as Assistant Secretary in 1946-47. native; that the Congress could not enact a “procedural” rule which specified the number of votes required to declare an act unconstitu tional; and that the Court would invalidate a statute which excised constitutional adjudica tion from the jurisdiction of federal courts. Finally, a didactic one-page discussion con cluded, “There is no possible doubt as to the power of Congress to regulate the number of judges who shall constitute the Court.” I indi cated that it seemed undesirable, chiefly on ad ministrative grounds, but thought this must be weighed against the fact that only this expedient was assuredly constitutional. After some considerable discussion with Cummings I was told to go draft a bill. In the course of drafting I thought that I had found a solution to the administrative problems which had earlier concerned me. If an additional Justice were appointed for each Justice over 70 who had not retired, and without a subsequent appointment on the retirement of the over-70 judge, the Court would fall back to nine mem bers as the old codgers retired.1 The result was a pure confrontation of power, would surely work to make retirement at 70 invariable, and would do no other harm to the functioning of the Court. At the age of 27 it...