William & Mary Law Review


Barry Cushman


The literature on reform of the federal courts in 1937 understandably focuses on the history and consequences of President Franklin D. Roosevelt’s ill-fated proposal to increase the membership of the Supreme Court. A series of decisions declaring various components of the New Deal unconstitutional had persuaded Roosevelt and some of his advisors that the best way out of the impasse was to enlarge the number of justiceships and to appoint to the new positions jurists who would be “dependable” supporters of the administration’s program. Yet Roosevelt and congressional Democrats also were deeply troubled by what they perceived as judicial obstruction in the lower federal courts. The “universal injunction” had yet to emerge, but friends of the administration nevertheless maintained that injunctive relief granted by the lower courts was substantially, and in some cases decisively, frustrating implementation of vital elements of the New Deal agenda. This Article surveys the uses and perceived effects of such injunctive relief, and relates the story of efforts by the political branches to address this challenge through (1) enlargement of the lower federal judiciary, and (2) reforms to judicial procedure and/or jurisdiction that would inhibit the power of lower federal courts to thwart implementation of federal programs. The principal solution at which the Roosevelt administration arrived required, among other things, that only three-judge district court panels be authorized to enjoin the enforcement of federal law. This requirement remained for nearly forty years before it was repealed in 1976— ironically, one might think—just as the universal injunction was emerging as a phenomenon, and the stakes of a single judge having power to grant injunctive relief increased accordingly.