American Experiment (302 page)

Roosevelt had long recognized that the High Court was no chaste and lofty sanctum protected by vestal virgins of the law against political contamination, but rather an institution drenched in politics at least since the days of Marshall. Even more, he tended to look at the Court in personal rather than institutional terms. To him Hughes was not an Olympian jurist but a former politico, presidential candidate, and stalwart Republican.
McReynolds was not a fine Wilsonian philosopher but a fanatical reactionary; Roosevelt would not have been surprised to learn of a letter from McReynolds to his brother in which he described the President as lacking “brains to understand what he is doing,” as “bad through and through,” and controlled by the radicals around him. Even Brandeis—the “Isaiah” whom FDR admired—had labored indefatigably for Roosevelt’s own goals and had advised New Deal officials closely, though usually indirectly, on policy measures—and then had turned suddenly against the Administration in demolishing the NRA. “Where was Ben Cardozo?” Roosevelt said on hearing of the 9-0 verdict against the NRA. “And what about old Isaiah?”

Hence it was not surprising that the President, forced by polarizing political pressures to rise above interest-group brokerage and bolstered by his big 1936 majority vote, now would confront minority power entrenched in the Supreme Court of the United States.

The New Deal and the Old Court had almost collided in February 1935 in the Gold Clause cases. If the Court had decided against the Administration, Roosevelt had planned to defy the Court because to “stand idly by” and permit the decision to take effect would “imperil the economic and political security of this nation.” The decision if enforced, he intended to proclaim, would result in unconscionable profits to investors, bankruptcy for railroads and corporations, default by state and local governments, intensified mortgage foreclosures, a hike in the national debt—in short, would plunge the nation into an economic crisis.

After the narrow 5-4 decision in his favor, a relieved President wrote jauntily to Joseph P. Kennedy, chairman of the Securities and Exchange Commission: “How fortunate it is that his Exchanges will never know how close they came to being closed up by a stroke of the pen of one J.P.K.’ ” FDR seemed a bit crestfallen, however, that he had not been able to deliver the “marvelous radio address” he planned. It was the justices who gave the speeches. Hughes scolded the President in the majority opinion, while the archreactionary McReynolds in his extemporaneous dissent lamented that “Shame and humiliation are upon us now.”

But the gold cases had been only a respite, as the Court returned to its massacre of 1935. After “Black Monday”—the NRA along with two other anti-Administration decisions—the President began seriously and systematically to consider what could be done about the Court. During the next two years he devoted, on a reasonable estimate, several hundred
hours of thought and reading and discussion to the problem. He would have had to do this even if he had preferred not to, for the press was agitating the issue and members of Congress were proposing scores of measures to curb the Court. Labor had been stung by the voiding in
Carter
of the Guffey Coal Act, which provided for a wages-and-hours code and collective bargaining for mineworkers, and it was now fearful of a similar fate for the Wagner and Social Security acts; its spokesmen attacked the Court for putting property rights above human rights and called for some kind of remedy. And after every anti-Administration decision the White House received a spate of letters from the general public.

“President Andrew Jackson, our greatest Democrat, defied the Supreme Court,” a Mississippi editor wired FDR. “Hope you will do the same.” From Los Angeles came a complaint about “that body of nine old has-beens, half-deaf, half-blind, full-of-palsy men.” To see that they were behind the times, “all you have to do is to look at Charles Hughes’ whiskers.” Demanded a Chicago businessman, “Are you aware that the people at large are getting damned tired of the United States Supreme Court, and that, if left to a popular vote, it would be kicked out?”

The President was aware; more than once he told intimates that there would be “marching” farmers and workers throughout the land if the Court tried to throw out the New Deal. When the Administration quietly lofted trial balloons intimating court reform, the public appeared unperturbed. But what to do? Roosevelt and Attorney General Homer S. Cummings examined a variety of proposals and found virtually insuperable objections to all of them.

A constitutional amendment? Almost anything could be done on paper through formal change of the Constitution. One day at lunch with his ambassador to Italy, Breckinridge Long, the President talked rather freely about possibilities. Long noted in his diary: “The amendments are not yet in specific or concrete form but might be broached under three headings: first, to define Inter-State Commerce with authority to Congress to legislate on the subject; second, to define certain phases of Inter-State Commerce; and third, taking a page from Lloyd George, to give authority to the Congress to pass over the veto of the Supreme Court legislation which the Court held unconstitutional.” The President was recalling the historic effort of a British Prime Minister (in fact Asquith, not Lloyd George) to overcome opposition in the House of Lords by threatening to create several hundred peers.

The President considered various permutations and combinations of these and other options but two problems dominated the discussions. The Supreme Court itself would interpret to its own advantage a constitutional
amendment, unless it was drastic and explicit, but such an amendment probably would not pass. And could
any
amendment pass? The President often mentioned the power of a few state legislatures, heavily influenced by corporation money—$15 to $20 million, he estimated—to block an amendment. At best this route would take years.

Congressional action? There were precedents for the national legislature’s increasing or reducing the size of the Court, limiting the scope of the Court’s review power, determining judicial structure and processes, setting terms for retirement. Senator Norris asked Congress now to have the courage to pass legislation requiring a unanimous decision by the High Court to strike down an act of Congress. Others urged that Congress simply enlarge the Court by another two or three members, but Cummings in particular feared there would be considerable prejudice against “packing the Court,” as he described it. Compulsory retirement at seventy? This might appear to be a personal attack on the older justices, including Brandeis, and could easily be voided by the Court as an unconstitutional intrusion into its own domain.

Do nothing? Let nature take its course? Older justices—especially Willis Van Devanter—had stuck it out through Roosevelt’s first term; surely they would quit or die if FDR won reelection. The President, however, was not at all sure that the Supreme Court would follow the election returns, especially since he felt that certain conservatives on the Court were personally hostile to him. He could imagine old Van Devanter gleefully putting off his retirement month after month just to spite the President. He could not leave the crucial matter of timing in the opposition’s hands.

And so the pondering and analyzing went on during most of 1935 and 1936, amid great secrecy. Like Brer Fox watching Brer Rabbit become entangled with the Tar Baby, he lay low—and the Court did become more involved in a potential constitutional crisis with its devastating 1936 invalidations of the AAA and other measures. But the President would not even make the Court an explicit campaign issue. The Democratic platform offered only a vague plan on the matter, and Roosevelt said nothing explicitly about it in his campaign speeches. Implicitly he raised the issue every time he proclaimed that his New Deal would go forward if he received the mandate of the people.

That mandate came in full force on November 3, 1936, and now the President had to act quickly on the momentum of his victory, before the Court could strike down more New Deal laws. Day after day he pored over alternatives with Cummings, who used a secret White House entrance to evade the press. The amendment route was rejected, as the President and the Attorney General leaned toward two separate
proposals—appointment of new justices and compulsory retirement at seventy. But each of these seemed weak and unattractive in itself.

A suggestion came in from the famed constitutionalist at Princeton, Edward S. Corwin, the most influential of several academic specialists with whom Cummings had been consulting. Why not combine the two approaches with an act of Congress authorizing the President, “whenever a majority of the Justices” are “seventy or more years old, to nominate enough new justices of less than that age to make a majority”?

About this time Cummings struck a bonanza in the departmental archives—a recommendation from an earlier Attorney General that when any federal judge (except Supreme Court members) “fails to avail himself of the privilege of retiring now granted by law” (at age seventy, after having served ten years, upon full pay), the President could with the consent of the Senate appoint another judge. That Attorney General had been none other than James McReynolds, who had served in the Wilson Administration. With glee Cummings and Roosevelt pounced on this find. Why not apply it to the Supreme Court? Linking the notion of retirement to that of new appointments especially attracted the President, with his relish for tactical combinations.

It was with this recommendation in mind that the President stood before Chief Justice Charles Evans Hughes on January 20, 1937, to take for the second time the inaugural oath of office. When Hughes read the oath with slow and rising emphasis as he came to the words “promise to support the Constitution,” the President wanted, he would recall, to cry out, “Yes, but it’s the Constitution as
I
understand it, flexible enough to meet any new problem of democracy.” Then FDR turned to address the inaugural crowd. It was not a sunny picture he painted but a picture of tasks still undone, promises unfulfilled, human needs unmet:

“I see millions of families trying to live on incomes so meager that the pall of family disaster hangs over them day by day.…

“I see millions denied education, recreation, and the opportunity to better their lot and the lot of their children … millions lacking the means to buy the products of farm and factory.…

“I see one-third of a nation ill-housed, ill-clad, ill-nourished.

“It is not in despair that I paint you that picture. I paint it for you in hope—because the Nation, seeing and understanding the injustice in it, proposes to paint it out.”

All this demanded political leadership, he concluded; and he promised to supply it.

On February 5, 1937, Roosevelt revealed his Court plan to an extraordinary joint session of cabinet members and congressional leaders. They heard him with mixed emotions, some like Ickes with delight, others like Garner with doubts, still others with the deepest misgivings. Under the President’s plan, for every Supreme Court justice who failed to quit the bench within six months after reaching seventy, the President would be empowered to appoint a new justice, up to a total of six. The President did not solicit much comment; quickly he wheeled off to meet a waiting group of newspapermen.

Bursts of laughter swept the press conference as the President went over his plan. Roosevelt presided like an impresario, occasionally throwing his head back and joining in the laughter. He was savoring his triumph. His plan, he expected, would bring quick resignations, protect his big measures of the Second Hundred Days—and dish the conservative opposition on and off the Court. He would extract the conservatives’ teeth. Demanding absolute secrecy until the message was released, he took special pleasure from the surprise he had achieved.

Surprise—and shock. Riding back to the Capitol, the congressional leaders sat in stunned silence. Suddenly Hatton Sumners of Texas, chairman of the House Judiciary Committee, turned to the others. “Boys,” he said, “here’s where I cash in.” At the Capitol legislators stood about in little knots, variously elated and indignant after reading the message. In the Supreme Court the attorney at bar paused a moment, sensing a sudden change in mood, after a page slipped through the draperies behind the dais and handed a message to each justice. Hughes shifted restlessly in his chair. Van Devanter looked grim; others sat with their judicial mien unruffled.

The proposal set off a fire storm in the press. “This is the beginning of pure personal government,” wrote columnist Dorothy Thompson. “Do you want it? Do you like it?” Her home paper, the New York
Herald Tribune,
compared Roosevelt to Louis XIV—“
L’état, c’est moi.
” If the plan passed, Henry Mencken predicted, “the court will become as ductile as a gob of chewing gum, changing shape from day to day and even from hour to hour as this or that wizard edges his way to the President’s ear.” Herbert Hoover took to the air: if a troop of “President’s judges” could be sent into the halls of justice to capture political power, he said, that “is not judicial process. That is force.” The nation faced a grave crisis, opined the Protestant Episcopal Bishop of New York. “These proposals would be a death blow to our constitutional democracy.”

But it was on the Hill—most immediately in the Senate—that the issue would be decided. “What a grand fight it is going to be!” Roosevelt had
written a friend. Instead of a straight fight between Democrats and Republicans or between liberals and conservatives, however, the battle degenerated into guerrilla warfare. Progressives like Burt Wheeler and Hiram Johnson opposed the bill, as did important Democrats like Joseph O’Mahoney of Wyoming, Tom Connally of Texas, Bennett Clark of Missouri. La Follette and some other progressives spoke up strongly for the measure. A host of conservative or moderate Democrats from both North and South opposed the bill, as did the small band of Republicans, but the latter decided to step back and let the Democrats split over the measure. Among some southern lawmakers a deep racial fear stirred; seeing sinister motives in the Court plan, Josiah W. Bailey of North Carolina said the President was determined “to get the Negro vote and I do not have to tell you what
this
means.”