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FDR's Losing Battle To Pack The Supreme Court

Apr 13, 2010 (Fresh Air)

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Franklin Roosevelt and Chief Justice Charles E. Hughes Supreme Court members 1937

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Less than three years after President Franklin D. Roosevelt enacted the New Deal, the sweeping economic programs designed to help the United States recover from the Great Depression, the Supreme Court began overturning key aspects of Roosevelt's legislation.

"When the first New Deal case reached the Supreme Court in January 1935, the court struck down a key piece of the National Recovery Administration, the centerpiece of [Roosevelt's] plans to get the country out of the Depression," explains historian Jeff Shesol, whose new book explores tensions between FDR and the high court. "And from that point on, for the next year and a half, the court essentially struck down all of the central pillars of the New Deal. ... By the end of the term that ended in 1936, one columnist said that it reminded him of a Shakespeare tragedy: At the end of the play, the stage is strewn with dead bodies. Those dead bodies were the New Deal programs."

In Supreme Power: Franklin Roosevelt vs. the Supreme Court, Shesol examines Roosevelt's frustration with the conservative judicial branch throughout his administration — and his attempt, shortly after his re-election in 1936, to pack the Supreme Court with as many as six additional justices.

Even before Roosevelt took office in 1933, he knew that a conflict with the high court was inevitable. The court had been a powerfully conservative force in American life since the early 1880s, and at the time it included members such as Justice Pierce Butler, who opposed the federal regulation of Wall Street, and Justice George Sutherland, who frequently battled progressive legislation as a senator during the presidency of William Howard Taft.

Even more troubling to Roosevelt was the fact that none of the justices had been appointed during his first term — and most of them had served for well over a decade.

In addition, Shesol says, an idea was floating around street corners and editorial pages that the Supreme Court shouldn't necessarily have the last word on constitutional matters.

"Some suggested that Congress ought to be able to overrule the Supreme Court," he explains. "By a two-thirds vote, Congress should be able to overturn any ruling of the Supreme Court, essentially making Congress the last word on the Constitution and not the Supreme Court."

FDR Saw Court, Not Constitution, As The Problem

Roosevelt, however, didn't endorse the ideas that Congress or the American public should be able to override the Supreme Court.

"He didn't think it was practical," says Shesol. "It takes a very long time, usually, to amend the Constitution ... enough to change the reality in the country. But secondly, and this is really important in understanding why Roosevelt packed the court, [is that] he didn't see any kind of contradiction between the Constitution and the New Deal. He didn't think there was anything in the Constitution that prevented him from doing what he needed to do. The problem as he saw it was not the Constitution; it was the conservatives on that particular Supreme Court. So what could you possibly do about them? So that's how he came to the idea of packing it."

Roosevelt's idea was that for any justice over the age of 70 who refused to retire, the president could appoint a new justice to sit beside the current justice and do his work.

"If the plan passed and no one [on the current court] retired, Roosevelt would instantly get to appoint six new liberal justices to the Supreme Court," explains Shesol. "Because he couldn't push the conservatives off the court, he thought, 'Well, at least I can outnumber them.' And what most people didn't realize then or today is that this is entirely constitutional. There's nothing in the Constitution that sets the number of justices at nine. The Constitution says nothing about how many justices there are."

Blowback To FDR's Plan

When Congress and members of Roosevelt's administration found out about the president's idea, they did not react well.

"Remarkably, John Nance Garner, who was Roosevelt's vice president, went back with him to Capitol Hill, stood in the well of the Senate and, as the plan was read aloud to the senators, Garner held his nose and gestured thumbs down," says Shesol.

Meanwhile, a number of Supreme Court Justices considered resigning en masse if the plan went through.

"Both Chief Justice Charles Evans Hughes and Justice Harlan Fiske Stone were eager to testify against the plan before Congress," says Shesol. "Ultimately, they decided that this would really bring the court too directly into the political controversy. But they both worked very hard and very effectively behind the scenes to bring the plan down."

Hughes wrote an open letter to the Senate deconstructing the plan, which Shesol says had a devastating effect. In addition, the court suddenly began upholding several parts of the New Deal, including minimum wage and the National Labor Relations Act. And then Justice Willis Van Devanter, a conservative, retired from the court, giving Roosevelt the chance to appoint his own justice. Shortly thereafter, Roosevelt's proposition died.

Shesol says the makeup of the current Supreme Court points out some of the problems with Roosevelt's argument.

"Age does not define ideology," he says. "Even though Roosevelt looked at what he called the 'nine old men of the Supreme Court' and suggested that the older justices were falling out of touch with reality, the oldest justice on that court in the 1930s was [Louis] Brandeis, the great liberal justice. And this was pointed out with glee with many of Roosevelt's opponents. ... So, you don't hear anything like that today. You hear concern on the part of progressives in this country that Justice Stevens and the other liberals are more likely to leave the court soon than any of the conservatives are, but I think we've come a long way since the 1930s, when that argument was made so forcefully by Franklin Roosevelt."

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