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By Burt Solomon

 

“The Success of Democratic institutions lies in the success of the processes of reason as opposed to tyranny of force, between these, society must choose. If society chooses the process of reason, it must maintain the institutions which embody those processes.”

Chief Justice Evan Hughes speech before American Law Institute in 1937 in opposition to FDR’s attempt to pack the Supreme Court

 

Introduction:

 

Burt Solomon retold the dramatic story of the Senate’s successful opposition to Franklin Roosevelt’s attempt to pack the Supreme Court with liberal justices in order to assure the implementation of his far reaching liberal economic New Deal programs. In Roosevelt’s first term, the Supreme Court held several significant New Deal programs unconstitutional (1) National Recovery Administration (NRA) and the (2) Agricultural Adjustment Act (AAA). 

 

The Senate decisively defeated Roosevelt’s Court Packing Bill (70-20). Conservative Democrats joined Republicans. Roosevelt’s opponents worried that emasculating the third branch of government—the Supreme Court—would fatally undermine the “checks and balances” ingenuity of our Constitution. The switch of two moderate justices, Chief Justice Charles Evan Hughes and Oren Roberts, in support of New Deal legislation on minimum wage, labor legislation, and social security led to liberal victories by 5-4 vote. This “switch in time” might have indeed “saved nine.”

 

The normally politically adroit FDR misplayed his hand. He failed to inform key legislative leaders in advance of his wish to add one new Justice for every current Supreme Court Justice over the age of 70.  He dismissed opportunities to compromise. The Court Packing defeat led to stalemates on future FDR domestic initiatives. Fortunately, the wily president learned from his mistakes. That is, he worked very hard with key Congressional supporters on both sides of the aisle in overcoming isolationist opposition to helping Great Britain under Lend Lease. 

 

FDR v. The Constitution

 

In early 1937, FDR had attained almost omnipotent powers. He had led a successful democratic ticket to spectacular victories over the historically dominant Republican Party. Roosevelt carried 46 states in 1936. Democrats held overwhelming number of seats in both the House and the Senate. Until 1937 Roosevelt truly had mastery over the levers of government. For example, in the hectic first few days of the New Deal, legislation was passed even before Congress has printed versions of the proposed bills!

 

The only opposition to “one man rule” was the Supreme Court. Interestingly enough, the framers of the U.S. Constitution in 1787 designed the judiciary to be the weakest branch of government. Alexander Hamilton the influential writer of the Federalist Papers that were instrumental in obtaining passage of the Constitution noted that the Supreme Court “has no influence over either the sword or the purse.” Nevertheless, under its most powerful Chief Justice, John Marshall, the Supreme Court made decisions that greatly expanded its powers. For example, the Supreme Court asserted its right to rule on the constitutionality of legislative acts (Marbury v. Madison) and thereby established the precedent of “judicial review.”  The Supreme Court’s decisions following the Civil War to provide broad relief to corporations seeking “substantive due process” protection under the 14th Amendment greatly enhanced the power of the court. Alex de Tocqueville in the 1830s noted “The peace, the prosperity, and the very existence of the Union are placed in the hand of he judges. Without their active cooperation, the Constitution would be a dead letter.”

 

FDR felt that the landslide of the Democratic Party in the 1936 national elections was a vindication of his policies. Therefore, he fretted that putting New Deal policies under the scrutiny of a few justices undermined “popular will.”

 

FDR plotted his move against the Court with great secrecy. Instead of consulting key leaders of the House or Senate, he worked with longtime loyalists such as Judge Sam Rosenman, Tommy “the Cork” Corcoran, and Attorney General Homer Cummings. 

 

FDR’s congressional opponents had to move skillfully to defeat the president. They ultimately won the battle of popular opinion by courting key newspapers. They got reclusive Chief Justice Charles Hughes to “come out swinging.” 

 

Opposing the popular president who wielded enormous patronage clout was a calculated risk. To assure passage Roosevelt promised Senate Majority Leader Joe Robinson a coveted seat on the Supreme Court. Roosevelt’s defeat on the Court Packing Bill was his first defeat on a major legislative initiative since assuming the presidency in 1933. Roosevelt tried unsuccessfully to engineer the political defeat of his conservative democratic foes in 1938 and 1940. 

 

However, opposition eventually coalesced. Conservative Democrats who represented close to 50% of the party forged an alliance with the few remaining Republicans. Conservative Vice President John Nance Gardner broke with FDR over the Court plan. He even “held his nose” as a sign of displeasure. FDR’s obstinate failure to compromise in time showed terrible judgment. Lawyers overwhelmingly opposed the President feeling the Supreme Court was indispensable to maintaining “Checks and Balances.” Even the hard pressed public sensed that FDR had gone too far. Ultimately, FDR lost by a vote of 70-20. America remained committed to the notion that even under the threat of a economic collapse “we remained a nation of laws not men.”

 

Interestingly enough FDR could have let “father time” work for him. That is, all four conservative judges—Pierce Butler, Willis Van Devanter, James McReynolds, and George Sutherland-- resigned by 1942.