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The People’s Rogue: FDR vs. the Nine Old Men

Franklin D. Roosevelt. (Photo: Wikimedia)

The president must have been savoring that afternoon of December 26, 1936. Tea was served, and the president entertained his attorney general with meandering reminiscences of his month-long tour through Latin America, wondering aloud which mementos to donate to the Smithsonian and which to keep in the White House. Eventually he got to the point. Go ahead, he told his A.G. Tell me what you have in mind. The A.G. began with a request: Do not laugh at me when I say that I have the solution. With this, as Shesol recounts, both men broke out laughing.

What Franklin Delano Roosevelt and Homer Cummings found so entertaining was a plan, hatched in the Justice Department, to neuter Chief Justice Charles Evans Hughes and the five other conservatives on the Supreme Court. The plan called for the kind of serious political mischief that brought out the devil in FDR. What made it all the more exciting was that the stakes could not be higher: New Dealers versus robber barons; checks and balances versus the power to govern a country on the verge of death throes.

When FDR assumed the presidency in March 1933, writes Shesol:

the cry was not “justice” but “relief.” What was at stake was not simply the eventual return of prosperity. It was the survival of democracy. Could representative government, with its checks and balances, with its suspicion and fragmentation of power, respond quickly to mass hunger, unemployment, desperation, and rage? And if not, could such a system endure much longer? The experience of Germany, Italy, and Japan suggested that it could not.

Even before the very first of the hundred days, even before Roosevelt and Cummings were sworn in, New Dealers had a premonition that, sooner or later, there would be a clash between the executive branch and Hughes and his “old fossils.” Anticipating this contingency – this inevitability – senator-elect William McAdoo of California proposed to Cummings a plan to pack the court and, “get the antiquated judges off the bench.” Cummings liked the idea. So, according to McAdoo, did president-elect Roosevelt.

The daring experiments of the hundred days evolved with fewer cries from the political right than might have been expected, because small businessmen were hurting too, and they were inclined to give FDR a chance to assuage their pain. A chance, that is, until the New Deal came up against the traditional way of conducting business: sweatshops, long hours, measly wages, union busting, child labor, and other outrages.

It is true that the Justice Department did not scrutinize every piece of New Deal legislation with the care it would have done in ordinary times. But it is also true that the Hughes court scrutinized the same legislation with almost preternatural attention to constitutional nuance and precedent, unearthing rulings that had been forgotten for 50 years or more. So, when the Hughes court struck, it dealt FDR a body blow. First it shot down the blue eagle, symbol of the National Recovery Administration (NRA). Next, it rescinded the firing of a disruptive Republican member of the Federal Trade Commission. And for good measure, it struck down the Frazier-Lemke Farm Mortgage Moratorium Act (actually a bill pushed by rabble-rouser Huey Long, but signed by FDR anyway, and so identified with the New Deal). All three by a vote of 9 to 0, and all on the same day: Black Monday, May 27, 1935, just as the New Deal was finally getting a foothold.

At the dawn of the New Deal era, about 70 percent of judges, from the Supreme Court to night court, were Republicans, thanks to decades of GOP rule in Washington, the statehouses and municipalities. Emboldened by Black Monday, the courts picked off child labor laws, minimum wages and mortgage relief; the plaintiffs were seemingly “little people” who did not want government meddling in their affairs. The reality was that they were stooges for conservative “vigilante committees” bankrolled by the likes of Rockefeller, DuPont and Mellon. The right was on a roll, and like many on a winning streak, they did not know when to stop. On January 6, 1936, by a vote of 6 to 3, the Supreme Court put to death the Agricultural Adjustment Act (AAA), striking a devastating blow at hard-pressed farmers – and setting in motion the plan that would take Cummings to his fateful tea with FDR a year later.

The court-packing bill is often perceived as a legislative freak. This is not correct. By the time the Supreme Court struck down the AAA – with lower courts killing progressive legislation at every opportunity – almost all Democrats and progressives, and some enlightened Republicans, realized that something had to be done to reign in the judiciary – starting at the top. This was all the more important because two crucial bills were waiting in the wings: the Wagner Act, which gave unions the right of collective bargaining, and the jewel in the New Deal crown, Social Security. Legislators, scholars and activists had no shortage of plans in store for the courts, including numerous constitutional amendments to limit judicial review and other powers, bills to force judges into retirement at age 70 or 75, and various ingenious plans for court packing.

There is nothing in the Constitution that sets the number of Supreme Court judges at nine. Originally, there were six; for a while, there were ten; but for decades before the era of FDR, there were nine Supreme Court justices. Though several presidents had tried to pack the court with justices to their own liking, only one was successful: Ulysses S. Grant, who was able to tilt the balance in his favor by adding a single judge. It is doubtful that Roosevelt, Cummings, and their fellow plotters would ever acknowledge Grant, of all presidents, as a soul-brother in jurisprudence.

Nevertheless, the situation in the country was exigent. An amendment to the Constitution, favored by Professor Felix Frankfurter of Harvard, would take too long to pass at a time when Americans were starving. Similar considerations applied to bills that set an age limit on judges. To FDR and his eager attorney general, court packing was the quick and decisive way to go. There were, in fact, a number of court-packing schemes to choose from. The responsibility for reviewing these and putting together a bill was, incredibly, given to a young lawyer in the solicitor general's office named Warner W. Gardner, who worked closely with Cummings. The solicitor general himself avoided the pair because he found the scheme unsavory.

The 1934 midterm elections underscored FDR's popularity – and defied conventional wisdom that the president's party loses seats in the House and Senate. On the contrary, the voters swept the remaining Republicans into the Potomac, seemingly giving FDR an ironclad grip on the legislature. Cummings and Gardner had a court-packing bill ready for FDR, with the dark twist that appealed to him: starting from the premise that court dockets, from the Supreme Court on down, were so overloaded that they imposed an excessive burden on judges, and an especially heavy burden on the nine aging men of the Supreme Court, the bill increased the number of judges throughout the federal judiciary and, in particular, increased the number of Supreme Court judges to 15.

A major problem with the bill, however, was its central premise, which was false – willfully false. Court dockets were not overloaded. A second immediate problem was that FDR waited until February 5 to present his bill to Congress – an astounding blunder in timing, for FDR had allowed the members of his own party to campaign for constitutional amendments and other measures when, in fact, their party leader already had a plan that he did not see fit to share. It would certainly have been understandable if FDR had wished to keep the mechanics of such an explosive plan a secret, but, as Shesol points out, he could have spared Democrats a great deal of embarrassment with a cautionary whisper to candidates not to campaign against the Supreme Court.

The bill stirred scant enthusiasm – especially not among the members of Congress with egg on their chins, nor among many of Roosevelt's advisers. Nor – if the primitive polls of the day are to be believed – among the public at large, probably because Americans did not apprehend how sweeping this bill was. On the other hand, Americans were so programmed to believe in the sanctity of the judiciary, and especially that of the Supreme Court, that the right was quite successful in portraying this bill as a lethal attack on the Constitution itself. As Roosevelt's team sought to garner support for the bill, fellow Democrats continued to introduce constitutional amendments to rein in the court. It turned out that, when it came to the court-packing bill, Roosevelt was not as popular as the recent electoral results suggested. Roosevelt had to make a Faustian pact.

To keep his grip on the Senate, Roosevelt needed Majority Leader Joseph Robinson, to whom he had promised a Supreme Court seat when he was running for president. No one knows whether Roosevelt ever intended to keep this promise, for although Robinson seemed to be a loyal New Dealer, most New Dealers were convinced that he was a closet reactionary. Now, however, Roosevelt had to reiterate his promise: if Robinson would help the president to ratchet the Supreme Court up to 15 justices, one seat would be Robinson's.

On the Supreme Court, surprisingly, events began to break in Roosevelt's favor. In a twofold triumph for the New Deal, the court upheld the constitutionality of both Social Security and the Wagner Act, and the tide was beginning to turn also in Roosevelt's favor in lower courts across the country. Some of Roosevelt's advisers told him what seems obvious today: with the victories for Social Security and the Wagner Act, the swing votes on the court – Hughes and Owen Roberts – understood that not only the court-packing bill, but the Democratic campaign oratory of the recent election, as well as the flood of amendments and bills, boded ill for the power of the Supreme Court should it continue to overturn virtually every progressive bill that came before it. Hughes, a former governor of New York, Secretary of State, presidential candidate (and near-winner) and a masterful lawyer for moneyed interests, took the measure of the forces arrayed against him; he and Roberts knew it was time to back down. Roosevelt's more percipient aides advised him to withdraw the court-packing bill and to leave it hanging over Hughes' head like the sword of Damocles; the bill could always be revived if the court swung back to the right, and in the meantime, Roosevelt could claim a crushing victory.

The political arithmetic showed the fate of the bill on the floor of the Senate was a dead heat in the days before the vote. Without Robinson to make promises and twist arms, the bill would be history. And, just a couple of crucial days before the vote, Roosevelt lost Robinson in a way that this generally most astute of presidents could not have predicted: Robinson complained of pain in his chest and left the Senate early; the next morning his maid found him on his bedroom floor, dead, with his glasses and a copy of the Congressional Record just beyond the reach of his hand.

Now Roosevelt's aides pressed him hard to withdraw the bill. How to explain it? The fashionable explanation was – and almost certainly in most quarters still is – hubris. Shesol's explanation is more nuanced, more insightful. It is undoubtedly true that Roosevelt misconstrued the results of the midterm election, at least when it came to the court-packing bill. And it is also true that, as Shesol writes, Roosevelt had an iron will, though it generally was tempered by excellent judgment. But how unsound was that judgment of his in the present instance? Was it really correct that the court-packing bill would hang over Hughes' head like a sword? The bill was unpopular now – would it become any more popular in the months to come? And specifically, would it suddenly acquire popularity if Hughes or Roberts were to goose-step back to the right? Roosevelt may well have thought, correctly, that the bill stood its best chance of passage while his own popularity was, so it seemed, at its peak.

Roosevelt did not withdraw the bill, which was defeated by an astounding 80-20, with almost all of the nays from Democrats, because the Republicans had already been reduced to a handful. Southern Democrats voted against the bill because many of them were in the pocket of its foes, and because they feared a Roosevelt court would abolish Jim Crow and lynching. Moderates saw little reason to stir up a mares' nest so long as the Hughes court was behaving itself. Even on the left, support for the bill was weaker than one might think because of civil liberties issues. And senators of all denominations knew that the bill was predicated on a myth. Absent a national emergency, the Senate was not prepared to upset a precarious system of checks and balances for a reason that defied the facts.

None would deny that the court-packing bill delivered Roosevelt a humiliating slap in the face, but Shesol, like most historians who have written on this issue, overestimates its significance and duration. By 1937, FDR had succeeded in passing most of the signature legislation of the New Deal. Of course, Roosevelt would continue to govern, but in the domestic arena, there would be no more bills as sweeping as the Wagner Act or Social Security; subsequent legislation would be more targeted, more closely focused on less all-embracing issues. And soon after the start of his third term, FDR would become increasingly preoccupied with foreign affairs. Soon, FDR would wield more power than ever before, the failure of his court-packing scheme notwithstanding – and he would wield it more judiciously than the other two wartime presidents with whom he is compared, Lincoln and Wilson.

Shesol is surely wrong to attribute the court-packing affair to the beginning of the Democratic Party's abandonment by Southerners. Southerners controlled the key committees for decades thereafter, and the Solid South remained solid until Lyndon Johnson rammed through his civil rights legislation and Nixon welcomed the Southerners with open arms.

Shesol has written an engrossing, witty, and carefully researched history of a Supreme Court out of control and a President's fight to contain it. Shesol inclines toward the view that Hughes and his fellow conservatives had only themselves to thank; he clearly appreciates the magnitude of the economic and human catastrophe of the Great Depression. Shesol suggests that the crisis tempered Hughes and Roberts, yielding consistently more liberal verdicts. It seems more probable that FDR prevailed by brute political force, losing the battle but winning the war. Had FDR not rung the fighting juices out of these two aged reactionaries, Social Security might still be a progressive's fantasy.