History Buff's Guide to the Presidents (30 page)

The shock announcement offended even his most devout supporters. Hatton Sumners (D-TX), chairman of the House Judiciary Committee, called the plan “infamous.” The Senate refused to vote on it, while Vice President John Garner opposed it outright. The Bar Association condemned the idea, and former president Herbert Hoover considered it “subordination of the court to the personal power of the Executive.” In examining the overwhelming opposition, Interior Secretary Harold Ickes figured that FDR either had to win the court-packing fight or resign.
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One senator remained relatively neutral. “I knew from my study of history that there was nothing sacrosanct about the number nine, that the memberships of the Supreme Court had fluctuated from five to ten. President Lincoln wanted to enlarge the Supreme Court to eleven,” observed Harry Truman.
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Ultimately, time rescued Roosevelt. In June 1937, conservative justice Willis Van Devanter announced his retirement. The following year, Harding appointee George Sutherland left, followed by the death of Hoover-appointed Benjamin Cardozo. FDR would eventually place eight new justices on the Supreme Court. Only George Washington appointed more, with ten. Had he only waited, Roosevelt could have prevented one of the worst public relations mistakes of his long legacy.

Faced with a gaggle of Republican appointees in the Court, FDR schemed to fill the bench to the left. He should have waited for Father Time to do it for him.
Roosevelt Library

FDR’s biggest ally on the court-packing bill was Senate Majority Leader Joseph “Arkansas Joe” Robinson, whom FDR promised to appoint to the bench if the measure passed. Neither the bill nor the senator lived to see the day. Robinson succumbed to a massive heart attack on July 14, 1937, right before the measure died in committee.

6
. TRUMAN SEIZES THE STEEL MILLS

YOUNGSTOWN SHEET AND TUBE CO. v. SAWYER (1952)

At 10:30 a.m. Washington time, on Tuesday, April 8, 1952, Harry Truman addressed the nation on radio and television. In the interest of national security, for the safety of NATO allies and nearly four hundred thousand U.S. troops fighting in Korea, the president announced that the government was going to seize the nation’s steel mills in ninety minutes.

The shocking announcement was in reaction to an imminent nationwide strike of steelworkers. Truman blamed the owners, who had not granted their laborers a single pay raise since 1950. Though he abhorred the idea of taking control of their factories, he could not allow their stubbornness to jeopardize the safety of his troops.

It so happened that the general population, including the Supreme Court, would not allow Truman to have sole discretion on what constituted a “national emergency.” Public backlash was nothing short of lurid. Truman was called a usurper, a bully, a dictator. Some compared him to Hitler. Newspapers openly attacked his extremely broad definition of commander in chief. Thoroughly tired of the war in Korea, Americans everywhere were in no mood to make further concessions. Impeachment became the watchword on Capitol Hill.
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The steel corporations immediately sued. Within weeks,
Youngstown Sheet and Tube Co. v. Sawyer
reached the Supreme Court. There was some possibility Truman would win. All nine justices were Roosevelt and Truman appointees, including Truman’s old friend and former treasury secretary Fred Vinson, the chief justice.
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In an abrupt six-to-three vote, the Court decided that the president had in fact violated the Constitution. Such a confiscation of private property, ruled the majority, could only be done if the country was in a state of emergency and if Congress mandated it, neither of which applied. The defeat simply accelerated Truman’s decline and confirmed the impossibility of his running for reelection.
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To a certain extent, Truman was correct in his predictions about a shutdown of the steel industry. The strike eventually lasted seven weeks and temporarily put more than one million people out of work.

7
. FREEDOM OF SPEECH AND THE PENTAGON PAPERS

NEW YORK TIMES CO. v. UNITED STATES (1971)

No president has come close to Nixon’s terrible record with the judicial branch. Most executives had but one or two High Court rulings go against their administration. Lincoln lost five, FDR twelve. Nixon lost no fewer than twenty-five.
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One such case involved an attempt to block the
New York Times
from publishing excerpts from the so-called Pentagon Papers, a top-secret Defense Department report detailing American involvement in Indochina from 1945 to 1968. Written during the Johnson administration, the report reached the
Times
in the summer of 1971 by way of Daniel Ellsberg, a former defense analyst for the State Department. Ellsberg helped craft the Pentagon Papers, but the war’s continuation, and a climbing death toll of forty thousand U.S. servicemen, motivated him to leak several key passages.

The first segments appeared in the Sunday edition of June 13, sparking an immediate reaction. Nixon called it “the most massive leak of classified documents in American history.” The
Times
countered that it was morally obligated to publish the excerpts. The Justice Department, then under John Mitchell, filed a restraining order against the
Times
, claiming “the nation’s security will suffer immediate and irreparable harm” should any more segments be made public.
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A more immediate threat was to the government’s credibility. The report recounted how policy makers repeatedly ignored the intelligence community, exaggerated threat levels, and conducted acts of terror and sabotage in North Vietnam as early as 1954.

While a temporary order restrained the
Times
, Ellsberg went to the
Washington Post
, which began to run its own summaries of the Pentagon Papers on June 18. The government acquired a restraining order on that publication the following day. By June 26, all parties were in the Supreme Court, arguing their case.

The press won in a six-to-three decision. Outraged, Nixon blamed Ellsberg, the media, and the Court’s “undue haste” for sabotaging the war effort. “Our military policy was working on the battlefield,” he believed, but “the Pentagon Papers were published, and on June 22 the Senate voted its first resolution establishing a pull-out timetable for Vietnam. Before long, the North Vietnamese would slam the door on our new [peace] proposal and begin building up for a new military offense.”
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In an attempt to discredit Daniel Ellsberg, White House operatives G. Gordon Liddy and E. Howard Hunt broke into the Los Angeles office of Ellsberg’s psychotherapist. Much to their disappointment, they found nothing incriminating.

8
. THE WHITE HOUSE TAPES

UNITED STATES v. NIXON (1974)

Every president since Franklin Roosevelt used recording equipment to keep track of official business. Kennedy was the first to install a system in the Oval Office. Johnson became so accustomed to taping his phone conversations that he often forgot the machines were on. Not unfamiliar with the art of bugging, Nixon had listening devices placed in several locales, including the cabinet room, Camp David, and the Oval Office. Each president viewed such recordings as a convenient means of dictation, but the tapes were never meant for public consumption.
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Consequently, neither the American people nor the Supreme Court knew about the practice. That is, until July 16, 1973, when Nixon’s deputy assistant Alexander Butterfield happened to mention it to a Senate committee investigating W
ATERGATE
. Stunned and more than a bit curious, the Senate demanded Nixon’s Oval Office tapes—all of them. Nixon refused. Thus began a yearlong fight over the critical evidence.

Nixon’s counsel argued executive privilege, national security, and right to privacy. None of it swayed the Court, including the four Nixon appointees. One of them, Chief Justice Warren Burger, wrote the majority opinion that the president did have the right to keep certain conversations private, but not when it interfered with the duties of the judicial branch in a criminal hearing.

The verdict came on July 24, 1974. Much to the surprise of his harshest critics, who expected him to either resist the decision or destroy the evidence, the president obeyed and handed over the tapes. Less than three weeks later, with evidence mounting against him, and with Congress proceeding toward impeachment, Richard M. Nixon became the first-ever chief executive to resign from the presidency.

The Supreme Court decision against Nixon was unanimous, with one abstention. Justice William Rehnquist withdrew himself from voting because he had previously worked as the defendant’s assistant attorney general.

9
. REAGAN AND CIVIL RELIGION

On the bicentennial of the Constitution’s founding, President Ronald Reagan came to Independence Hall to commemorate the event, which he proceeded to do with all the fervor of a preacher before a congregation. He regaled the Constitution as “a covenant with the Supreme Being to whom our Founding Fathers did constantly appeal for assistance.” In his eyes, the document was nothing short of a “miracle” and “the triumph of human freedom under God.”
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Reagan possessed a great many attributes, but constitutional law and American history were beyond him. Nonetheless, he had a deep sense of what he felt was right, and this included bringing church and state together.

On several issues, the Court generally leaned Reagan’s way, particularly regarding the increase of states’ rights and reduction of affirmative action. Yet on the “moral scorecard” the justices repeatedly went against him. In
Wallace v. Jaffrey
(1985), the Court struck down an Alabama law for prayer in public schools.
Grand Rapids v. Ball
(1985) and
Aguilar v. Felton
(1985) forbade public teachers from also teaching in parochial schools.

Irritated but undaunted, the president used his 1986 State of the Union speech to make a direct appeal to the Supreme Court to ban abortion. “America will never be whole,” argued Reagan, “as long as the right to life granted by our Creator is denied to the unborn.” The bully pulpit had no effect. Later that year, the Court ruled in
Thornburg v. American College of Obstetricians
that states could not “intimidate women into continuing pregnancies.”
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Reagan countered by appointing pro-life, far-right justices. After the moderate Sandra Day O’Connor came conservative Catholic Antonin Scalia and the promotion of archconservative William Rehnquist to chief justice. Reagan added Anthony Kennedy, another conservative Republican Catholic, in 1988.
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Chief Justice William Rehnquist and Associate Justice Sandra Day O’Connor were classmates at Stanford Law School.

10
. PREMATURE ADJUDICATION

CLINTON v. JONES (1997)

In yet another case involving the definition of executive privilege, the president’s legal counsel maintained that the unique position of chief executive precluded said person from participating in a civil hearing. The argument didn’t work for Thomas Jefferson in
United States v. Burr
, and it wasn’t going to work for Bill Clinton in
Clinton v. Jones
.

In an attempt to placate the Court and to reduce exposure to an already embarrassing story, the defense team requested a delay in Paula Jones’s sexual harassment suit until the accused was no longer in office. The case involved an alleged solicitation of sex in 1981 from then Arkansas Governor Clinton upon state employee Jones inside the Excelsior Hotel in Little Rock. The plaintiff did not file until three years later. In the interim, the marginally successful governor had become president of the United States.

A series of blocks and appeals elevated the case up the judicial chain, until Clinton’s motion for a delay reached the Supreme Court in January 1997, a week before the incumbent was about to take his second oath of office. The Court took four months to reach a decision, but it would be unanimous. The president’s counterclaim was invalid, and the case became a landmark in U.S. law. The ruling on
Clinton v. Jones
determined that no person stood above the law, regardless of rank in the government.
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