Supreme Power

Ah, to be a Democrat in 1937. Franklin D. Roosevelt had just been re-elected with an astonishing 61 percent of the vote. The Democratic majority in the Senate was massive--76 of the 96 were Dems. Roosevelt had, in his first term, pushed through sweeping legislation designed to alleviate the effects of the Great Depression, and with such a super-majority in Congress it was not unthinkable to imagine that he could continue to do so. Only one thing stood in his way--the Supreme Court.

Jeff Shesol, in his fascinating and eminently readable Supreme Power: Franklin Roosevelt vs. the Supreme Court, tells a tale that, but for a few twists of fortune, could have had a different ending that would have affected American's lives today. It's also a tale of the hubris of Roosevelt, and perhaps the greatest mistake he made as president--trying to change the law to alter the makeup of the highest court in the land.

When Roosevelt first took office in 1933, the Supreme Court was an aged group, and were mockingly known as the "nine old men." As Shesol points out, they had been known by this name for almost a century, as they had always been men and almost always had been old. Even after the retirement of the nonagenarian Oliver Wendell Holmes in 1932, the court's average age was 71. But age wasn't Roosevelt's problem--the most liberal justice was Louis Brandeis, who was well into his seventies. The problem was their political temperament.

Throughout his first term, Roosevelt's policies were dealt defeats by the court. The National Recovery Act and the Agricultural Adjustment Act were both struck down. Many other laws that Congress enacted which regulated business were seen by a majority of the court as improperly interfering with commerce. It was clear that the conservatives, among them James McReynolds and Willis Van Devanter, were keen on striking down anything that had Roosevelt's name attached to it.

Roosevelt's solution was to add more justices. Other ideas were bandied about, including Constitutional amendments that would require seven votes to overturn an act of Congress, or even to prohibit judicial review of Congressional acts to begin with. But Roosevelt and his legal team, led by Attorney General Homer Cummings, had a different idea--pack the court.

"The solution, [Cummings] told Roosevelt, was simple: a law providing that when any federal judge refused to retire at seventy, the president would have the power to appoint an additional judge. Roosevelt got the point immediately. If no one retired, this would give him six appointments overnight--one for each of the current justices older than seventy. A three-man liberal minority would become, virtually overnight, a nine-man majority."

This was not unprecedented. The Constitution does not specify how many justices are on the court--that is determined by Congress. The total has gone up and down over the years. When Andrew Johnson was president and a vacancy opened a hostile Congress eliminated the seat. But it had been set at nine for over sixty years. Clearly this would raise some opposition, but given the numbers in Congress, Roosevelt thought he could get it passed.

It turned out to be a huge fight, and Roosevelt lost support of conservative Democrats. Burton Wheeler of Montana led the charge. Roosevelt erred to begin with, by saying he was doing this to alleviate the workload of the Court. But no one believed that for a minute. Many liberal thinkers were against it, deciding it was baldly political and a step toward dictatorship (then, as now, it was easy to compare the current president to Hitler).

The issue, which Roosevelt put forward on February 5, 1937, was huge. "The clamor was unrelenting. From the morning of February 5, a great roar of opinion--for and against--issued forth from the radio, editorial pages, newspaper columns, town halls, church pulpits. Switchboard operators argued between calls. Waitresses passed petitions. In state capitals and in Washington, the mailbags were full and the wires alive with implorings of one kind or another, sent to anyone with a potential say in the matter. A din like this had not been heard since the League of Nations fight of the early 1920s, or perhaps since Reconstruction--commentators were unclear when, if ever, Americans had made this much noise."

A series of events over the next few months undermined Roosevelt and his bill. The court, perhaps mindful of what was going on, changed direction. Owen Roberts, a Hoover appointee, switched his vote on a few key decisions, including a minimum wage law, and then, more spectacularly, to uphold the Wagner Act, which allowed workers to unionize. Everyone thought this was a loser, so when the government won, it was stunning. Roberts' change of heart was tabbed "The switch in time that saved nine." Then, Willis Van Devanter retired, which would give Roosevelt his first appointment.

The bill would ultimately lose gas and go down. Shesol writes intriguingly of the viper pit that was the Senate, telling the sad tale of Joseph Robinson, the majority leader of Arkansas, who fought hard for the bill primarily because he had been promised a spot on the court. He would end up working so hard for it that it killed him.

There is a lot of interesting stuff in this book. I was amused that during Roosevelt's first term, a suspiciously familiar sounding organization called the "Liberty League" sprung up, hinging on upholding the Constitution and perhaps becoming a third party. They even had a leader named Beck.

And, as usual in books about the Supreme Court, the interplay between the justices is intriguing. Most prominently featured in Shesol's book is Brandeis (Roosevelt called him "Old Isaiah"), Chief Justice Charles Evan Hughes, who though Republican usually sided with the liberals, the same with Harlan Fiske Stone (who would replace Hughes as Chief) and the ever-nasty James McReynolds, who not only refused to speak with the Jewish justices Brandeis and Cardozo, also vowed, "never [to] resign as long as that crippled son-of-a-bitch is in the White House."

But of course he would resign, during Roosevelt's third term. By the time Roosevelt died, he appointed seven of the nine justices, and promoted Stone to Chief Justice. He said that he had lost the battle but won the war, which was true in a sense. But, as Shesol points out, he would have won that war without the court-packing plan, through simply outlasting the conservative justices. Shesol writes that in a way, Roosevelt lost the war, because his effort struck a deep wedge in the Democratic Party, and began the eventual loss of the Southern conservative, which would become final during the Civil Rights movement.