If FDR had packed the Supreme Court, could something like this have happened?
1937 FDR adds four justices (total 13)
Actually, the court-packing proposal would have given FDR authority to appoint
six new justices.
Why was FDR insistent on so many? (He would not agree to a possible compromise involving a smaller number of appointments until it was too late and Congress had turned against any enlargement of the Court.) The answer is that FDR saw the Court as still having--even in 1937, even after the sustaining of the Washington state minimum wage and the NLRA and Social Security--a potential 6-3 majority against him. He thought that Hughes and Roberts may have just executed a temporary strategic retreat and would revert to conservatism once the threat of court-packing was over. "Even after the Court had sustained the Social Security Act on May 24, Roosevelt press secretary Steve Early told Scripps-Howard columnist Raymond Clapper the president would continue the Court fight because he didn’t “know how long Hughes can keep Roberts liberal or how long Hughes will stay so.”"
https://conservancy.umn.edu/bitstream/handle/11299/163483/1-Cushman-291-Court-Packing and Compromise.pdf;jsessionid=574F3EC69B56AA00A13725DAF73BC0B3?sequence=1
Well, you might say, even if that fear was justified, why insist on six new justices? Wouldn't four be enough to get a 7-6 assured liberal majority? Here's the problem with that: Two years earlier, FDR had promised the next Court vacancy to Senator Joe Robinson of Arkansas, the Senate majority Leader. As majority leader, Robinson had been a loyal supporter of the New Deal but it was still feared that he was a conservative at heart and would revert to his earlier conservatism once he had life tenure on the Court. "He had opposed the government construction of an electric power plant at Muscle Shoals in Alabama in the 1920s; he had been troubled by the NIRA’s codes of fair competition; and he worried that the current deficit spending would “bankrupt the country and tend to centralize all power in the national government.”" Ibid. So if you only increase the Court by four new members, and one of them was Robinson, you could still potentially have a 7-6 conservative majority (the "Four Horsemen" plus Hughes, Roberts, and Robinson). Even if you added five justices, there could be a 7-7 tie (which would let a conservative decision by a lower court stand).
BTW, FDR's suspicion that Hughes and Roberts were still not totally reliable from the New Deal viewpoint was justified: "Though they would vote to uphold a number of New Deal initiatives after 1937,146 these two justices nevertheless persisted in voting to invalidate federal and state regulations of the economy on the grounds that they violated the Takings147 or Due Process Clauses148 of the Fifth Amendment, or the Due Process,149 Equal Protection,150 or Privileges or Immunities151 Clauses of the Fourteenth. Internal Court records reveal that it was only very reluctantly that Hughes agreed to join the portion of United States v. Darby152 upholding federal regulation of wages and hours of employees engaged in “production for commerce.”153 Such records similarly show that Roberts initially opposed upholding the regulation sustained in Wickard v. Filburn,154 and there is reason to doubt that either of the justices ultimately would have voted to sustain those measures had more of their colleagues shared their reservations. Even after Darby, Roberts would file dissents from decisions upholding the application of the Fair Labor Standards Act to various local employments on the ground that the Commerce Clause did not authorize Congress to reach them.155 And though he eventually acquiesced in the authority of these precedents,156 he continued to construe the statute not to apply to matters of purely local concern that he believed were reserved to the states.157 Roberts also persisted in registering dissenting objections to delegations of congressional authority to the executive branch,158 and throughout his tenure remained “in almost continuous opposition” to the claims of the administrative agencies that were integral to the New Deal vision of government.159"
https://conservancy.umn.edu/bitstream/handle/11299/163483/1-Cushman-291-Court-Packing and Compromise.pdf;jsessionid=574F3EC69B56AA00A13725DAF73BC0B3?sequence=1
Ironically, the whole court-packing plan was unnecessary: Sutherland and Van Devanter were willing to retire if they could do so on full pension, and Robinson's death made the question of how conservative he would be on the Court moot:
"On the morning of February 5, 1937, Tommy Corcoran took a cab to the Supreme Court building. His task was to warn Justice Brandeis of the President’s forthcoming announcement of the Court-packing proposal before it became public knowledge. Corcoran entered the justices’ robing room to the disapproving looks of Hughes and McReynolds, and handed Brandeis a press release outlining the President’s proposal. After reading it, the Justice thanked Corcoran for his courtesy, but then added, “tell your president he has made a grave mistake. All he had to do was wait a little while. I’m sorry for him.”161 Brandeis was, of course, correct. One can understand why, in early 1937, Roosevelt thought that he needed to expand the Court’s membership to fifteen in order to have a “dependable bench” within a reasonably short time. In retrospect, however, it becomes clear that the realization of this objective did not require any expansion of the Court at all. Meanwhile, the President’s Court-packing proposal helped to precipitate the formation of an opposition bloc in Congress that would frustrate much of his second-term legislative agenda.162 From the vantage of history, therefore, it appears that the Court-packing plan was an entirely unnecessary misadventure through which Roosevelt ultimately lost far more than he gained." Ibid
