On this day in 1937 the Senate shelved President Franklin Roosevelt’s court-packing plan, which would have allowed him to appoint new judges and justices to the federal bench for each who did not retire within six months of his (it would have been “his”, then) seventieth birthday.

The court-packing story awaits the fullest possible treatment. The general outline goes something like this: The Supreme Court had struck down legislation key to the New Deal by what seemed arbitrary reasoning—and indeed had gone so far as to strike down state laws regulating conditions of labor, which struck even some Republicans, including Herbert Hoover, as unduly intransigent. The Republicans decided to make the 1936 presidential election about the New Deal vs. the Constitution, with themselves as the Court’s political allies. The New Deal, and Roosevelt, won in the record-setting landslide of 1936. Flush with this success, Roosevelt over-reached, seeking to thwart the Court by the plan to pack its membership. Opposition from Republicans and from within his own party—including, most notably, its southern wing—and more than the normal range of foibles, including the death of the bill’s floor leader during debates, led to its burial. “Glory be to God,” Senator Hiram Johnson (Republican of California) said when assured of the bill’s demise.

It is an irony of the 1936 landslide that within a couple years the experimental spirit of the New Deal had sputtered out. The over-reach of the court-packing plan, along with the recession of 1937-38 and the increasing focus on arming for war, often gets the blame or credit for this demise.

Here are a couple things worth thinking about that I think are not settled in the literature on the court-packing episode.

The plan to pack the court was based on a plan that was proposed by James McReynolds during the Wilson administration to overcome the Court’s opposition to reform—which is a neat irony, because McReynolds was in 1937 one of the “four horsemen”—the most reliably anti-New Deal Justices. Which points to a key historical issue: the idea to increase the Court’s size to make it a less anti-majoritarian institution was an old one. The Republicans had actually done it back during Reconstruction, when the enlarged Court overturned the original Legal Tender opinions based partly on the refreshingly frank reasoning that, well, the Court is bigger now. (Yes: “circumstances, the absence of a court as large as now, lessened the force of that decision.”)

So something had happened in the subsequent seventy or so years to render Court-packing more scandalous. There was one book at the time that touched on this shift in the Court’s reputation: Thurman Arnold’s rather good Folklore of Capitalism. But I think this subject needs a fuller treatment.

The other outstanding issue is “the switch in time”—the idea that the threat of court-packing helped sharpen the Court’s appreciation of New Deal legislation such that Justice Roberts began to vote for the New Deal instead of against. I tend to find believable William Leuchtenburg’s narrative, in which the switch actually did occur. There is a contrarian reading which says that the Court would have changed its mind anyway, but there’s a useful rule to remember about contrarianism: if you’ve found something surprising, you’re probably wrong.