3. THE COURT-PACKING DEBACLE

After his stunning election triumph, Roosevelt had entered 1937 in a mood, like the mythical Zeus, to throw thunderbolts. The climate seemed to offer him carte blanche: the people had embraced him as they had no other president; the economy was showing a vigor it had not exhibited since 1929, and although it had not yet reached that level, it seemed to contain the elements that would let Roosevelt reestablish a claim on economic orthodoxy. That meant balancing the budget, a nicety not allowed by the vast relief expenditures of the first term. This had been one of the themes of his 1936 campaign. It was intended to be a signal to businesspeople that he was committed to a sound economy in which they could invest—and could support politically. Employment and productivity were now on the rise, and despite the demands made by the flood on the Ohio and its aftermath, and ongoing but relatively small jobs such as the New Straitsville fire fighting, the numbers working for the WPA were declining. Hopkins had testified before a congressional budget committee that they would drop from February’s 2.2 million to 1.6 million in June. There were normally more jobs in the summer, but Hopkins said he anticipated “a large and widespread increase in private employment” beyond these seasonal fluctuations. This, in turn, meant less spending.

Yet even though the economy seemed to be responding to his actions of the last four years, as Roosevelt saw it much of that economy remained unfair. In his inaugural reference to “one-third of a nation,” he had signaled that he meant to push for further New Deal laws addressing the poverty and exploitation of farmers and workers. But here he faced an obstacle. Congress had been his willing partner in reforming the old system that promoted a marketplace glutted with goods that no one could buy and workplaces that treated workers inhumanely. But since 1935 the Supreme Court had been striking down those reforms. It had thrown out the National Industrial Recovery Act and the Agricultural Adjustment Act, the president’s first efforts to restore sanity to the economy. More recently, it had overturned the Guffey Coal Act, which established collective bargaining and price and production controls in coal mining, as well as a New York State minimum wage law. This brought to eleven the number of New Deal and other reform measures the Court had invalidated. (Previous courts had struck down only sixty laws in 140 years.) The last two had come in five-to-four decisions that left the president and his aides increasingly frustrated.

“Does this decision mean that the United States government has no control over any national economic problem?” Roosevelt had asked rhetorically at a news conference after the unanimous NRA decision back in May 1935. “We have been relegated to the horse-and-buggy definition of interstate commerce.” He used the phrase “horse-and-buggy” to suggest that the Constitution’s commerce clause deserved an updated interpretation that took into account new national distribution networks, and also as a way of tarring the Court as old and out of touch.

At the time, the Supreme Court consisted of a conservative bloc comprising Pierce Butler, James C. McReynolds, George Sutherland, and Willis J. Van Devanter; a progressive bloc comprising Louis D. Brandeis, Benjamin J. Cardozo, and Harlan Fiske Stone; and two moderates, Owen Roberts and Chief Justice Charles Evans Hughes, one or both of whom had tended to side with the conservatives. Six of the nine were over seventy years old, and as the Court continued to strike down New Deal laws the president kept painting them as relics of a bygone era. Stealing a phrase from the title of a popular book on the Court by journalists Drew Pearson and Robert S. Allen published in the fall of 1936, he referred to them as “nine old men,” and charged that the Court’s defense of corporate liberties had created a “‘noman’s land’ where no government—state or federal—can function.” Indeed, pro–New Dealers treated the court rulings as an affront to popular democracy itself as voters had expressed it in the landslide of the previous November.

Now, two other vital pieces of New Deal legislation—the National Labor Relations Act and the Social Security Act—were pending review, and the administration feared the Court would continue to block its agenda. Whereas Hoover had been able to appoint three justices in the course of his single term, Roosevelt had appointed none, which increased his frustration.

So in the fullness of his mandate, and with an economy that seemed likely to increase his popularity still more, he hurled a bombshell from the heights of his political Olympus. On February 5, 1937, he submitted to the Congress a plan to restructure the Supreme Court by appointing one additional justice for each current justice over the retirement age of seventy who refused to retire. This amounted to enlarging the Court to as many as fifteen members. It was constitutionally feasible, since the Constitution failed to specify the number of justices on the high court; in fact, the numbers had varied between six and ten until Congress set it at nine in 1869, during the Grant administration. Under Roosevelt’s proposal, the same rules would apply to the lower federal courts, as long as the judge had served for ten years and declined to retire within six months of turning seventy, although it also limited the number of jurists the president could choose to fifty overall.

Court reform had been on the White House agenda ever since the NRA and AAA were overturned. Most of the proposals involved constitutional amendments that would limit the Court’s power or expand Congress’s, or laws allowing the next Congress to repass laws that had been overturned. But the amendment procedure would take too long, and any new or repassed law was itself subject to review by the Supreme Court. Roosevelt believed he was taking the speediest and most effective course, and his election margin suggested he could bring it off.

But it quickly developed that he had overstepped. First, he had shrouded the plan in what one friend and advisor, Harvard Law School professor and subsequent Supreme Court appointee Felix Frankfurter, called “dramatic, untarnished secrecy.” And he had dropped it on Congress’s doorstep without even briefing his floor leaders to expect it. The Court’s adverse rulings had won it few friends among the president’s legislative allies, but even so, his move came as a shock and a surprise. It also shocked the nation. Its bland title, the Judicial Branch Reorganization Plan, was quickly supplanted by a headline-friendly and politically charged nickname: it became Roosevelt’s “court-packing” scheme.

Opponents reacted predictably. Colonel Robert McCormick’s Chicago Tribune wrote that if the plan passed, “the principle of an impartial and independent judiciary will be lost in this country.” Its February 7 editorial went on to compare Roosevelt to Mussolini, Hitler, and Stalin: “They are dictators because they write the laws, they put them into effect and there is no independent judiciary to which the citizens can appeal against the autocrat.” But even The Nation, a liberal weekly that unfailingly supported Roosevelt and the New Deal, described the plan in apocalyptic terms: “What the president is proposing is to dynamite the reactionary judges into retirement.” Metaphors abounded: Editorial cartoonists chose themes from sports, depicting Roosevelt as changing umpires and referees and lowering the net in tennis because he didn’t like the score. Others showed him as a puppeteer orchestrating a chorus of yes-men.

The president labored to depict the court system as overworked and understaffed, but the subtext was clear. In his message to the Congress, he referred to “aged or infirm judges” and the need for an “infusion of new blood” and “younger blood.” “Little by little,” he said, “new facts become blurred through old glasses.” It was obvious that he simply wanted to be able to appoint judges, and in particular Supreme Court justices, who would go along with his legislative program.

He said as much in a nationally broadcast speech to an audience of Democrats in Washington on March 4. Abandoning the pretense that he was promoting court efficiency, he argued that “the three-horse team of the American system of government” should pull together. If the three “pull as one, the field will be plowed,” he said, but “if one horse lies down in the traces or plunges off in another direction, the field will not be plowed.”

On March 9, he tried to drum up support in a fireside chat, using language that was both patronizing and fear-mongering. Invoking the economic catastrophe of the depression, he said that laws did not exist to deal with it. “We became convinced that the only way to avoid a repetition of those dark days was to have a government with power to prevent and to cure the abuses and the inequalities which had thrown that system out of joint. The Courts, however, have cast doubts on the ability of the elected Congress to protect us against catastrophe…. 'We are at a crisis in our ability to proceed with that protection. It is a quiet crisis [that] is far-reaching in its possibilities of injury to America. I want to talk with you very simply about the need for present action in this crisis—the need to meet the unanswered challenge of one-third of a nation ill-nourished, ill-clad, ill-housed.”

He went on to say that the Court had been acting not as a judicial body but as a policy-making one, the same charge of judicial activism that would be echoed by conservatives in ensuing years. And again he painted the image of old men lost in the past; he wanted “to bring to the decision of social and economic problems younger men who have had personal experience and contact with modern facts and circumstances under which average men have to live and work. This plan will save our national Constitution from hardening of the judicial arteries.”

But Roosevelt had made a rare political misreading, both of his election mandate and of the people’s respect for the delicate balance of powers enshrined in the Constitution. A cartoon in the Brooklyn Eagle conveyed this ominous truth: it showed a scowling Roosevelt voter holding a newspaper headlining the court plan, and a caption reading, “I Did Not Vote for That!” Letters to the Congress ran nearly eight to one against it. The president was blistered even by admiring constituents in letters pointing out that the three branches of government were not supposed to pull together, and that he was not calling for the resignations of his elderly supporters in Congress. Nor did the Court fit his portrayal of it as overburdened, since Chief Justice Hughes was able to inform the Senate in March that the Court was “fully abreast of its work.”

Still, Roosevelt pushed the plan forward against gathering legislative opposition. Montana Senator Burton K. Wheeler, a Democrat and longtime progressive, exhibited the extent of this disaffection by leading the resistance in the Senate.

Then an odd thing happened. On March 29, with the swing vote coming from its youngest justice, sixty-one-year-old Owen Roberts, the Court approved a Washington State minimum wage law that was very much like the New York law it had struck down the year before. This decision in West Coast Hotel Co. v. Parris—written by Chief Justice Hughes—was completely unexpected, and no sooner had it been announced than the Court surprised observers again. On April 12, in another five-to-four decision with Hughes and Roberts in the majority, it upheld the National Labor Relations Act, also called the Wagner Act for its sponsorship by New York senator Robert F. Wagner. The Wagner Act was anathema to employers, for it outlawed unfair labor practices and guaranteed collective bargaining and the right to join unions.

This victory for labor came in a season of equally significant advances on the picket line. In February, General Motors recognized the eighteen-month-old United Auto Workers as the sole bargaining agent for its workers, ending a six-week strike in which workers had taken over its Fisher Body plant at Flint, Michigan, and shut down its production lines, a relatively new tactic in the labor arsenal known as a sit-down strike. On March 1, U.S. Steel acceded to the unionization of its workers in order to prevent a strike. Big Steel had fallen, although Little Steel, as the smaller steelmakers including Republic and Bethlehem were called, continued to resist the efforts of unions to organize their workers. Nevertheless, it was reasonable to believe that the Court’s new majority now recognized that realities had changed.

The administration’s biggest victory came at the end of May, five months after the first payroll taxes were collected and the first lump-sum payments had been made, when the Supreme Court upheld the Social Security Act. It ruled in separate cases that both unemployment compensation and the act’s system of old-age pensions, each of them funded by taxes on employers and workers, passed constitutional muster. With its minimum wage and Wagner Act approvals, and now Social Security, the Court itself had voided any urgency for Roosevelt’s plan to go forward. And by then seventy-eight-year-old Justice Van Devanter, the Court’s staunchest conservative and longest-serving member, had given notice of his intention to resign, providing the president with the prospect of his first appointment.

Roosevelt could have gracefully abandoned the idea at this point. In fact, the plan to augment the roster of older justices at the trial and first appeals court levels—the federal district and circuit courts—had already been stripped away. Support for the Supreme Court portion of his plan was moribund; polls showed that even compromise proposals that fell well short of the original enjoyed no more than 35 percent support. But Roosevelt kept pressing ahead, offering his Senate floor leader, Joe Robinson, the appointment to Van Devanter’s seat in exchange for the best deal Robinson could steer through the Senate. This was a plan that would allow the president to appoint a coadjutor justice for each justice seventy-five or over, but no more than one such appointment a year. But when Robinson died of a heart attack in mid-July, the proposal died with him, and in August Roosevelt appointed the staunchly liberal Senator Hugo Black of Alabama, a dependable supporter of the New Deal, to the seat Van Devanter had vacated.

The six-month battle had cost the president dearly. It had eroded his public support and emboldened conservatives, including those in his own party, by showing that he was not invincible. One high-profile defector was the vice president, John Nance Garner, who had disappeared to Texas at the height of the debate, leaving Joe Robinson to fight the battle in the Senate. In trying to alter the high court to give New Deal legislation new momentum, Roosevelt lost the momentum he had had, and with it the potential for new legislative possibilities. Far more important, he had lost a measure of trust. Nor was this the only misstep in the first year of his new term. While Roosevelt pursued an ever-smaller slice of victory in the court fight, a greater peril was creeping up on him. The economy that had seemed robust as the year began was weakening, yet he seemed not to notice. He persisted in trying to wring savings out of the federal budget, and this would have implications for all of his programs, especially the WPA.

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