A Wedge Against Tyranny
The uproar over Franklin Roosevelt's Court-packing scheme of 1937 highlighted two perennial tensions in our public life: ends versus means and law versus politics. Roosevelt sought to curb an activist Supreme Court that had brazenly overturned nearly every progressive law that came its way. The National Industrial Recovery Act, the Agriculture Adjustment Act, pension laws, workplace regulations—all were designed to ease the suffering and unemployment of the Great Depression, and in 1935 and 1936 all were invalidated by the Court. By February 1937 Roosevelt had seen enough and introduced the Judiciary Reorganization Bill, which permitted the president to appoint one new justice for every justice who remained on the Court after age 70. If enacted by Congress, the bill would have enabled Roosevelt to add six justices, obviously all liberals, thereby enlarging the Court from nine to fifteen members and reshaping it from a dangerous foe to a formidable ally. Roosevelt's domestic agenda would have been spared, but only after a major blow to judicial independence, a cornerstone of the separation of powers in American government. But Congress rejected the bill, which had lost all momentum after swing Justice Owen Roberts began voting with the Court's liberals and conservative Justice Willis Van Devanter retired and was succeeded by the Southern liberal Hugo Black, Roosevelt's first appointment. A 5-4 conservative bench suddenly became a 6-3 Roosevelt bench. Ends trumped means, and the New Deal was safe.
The reasons for the bill's failure prompt a cynical appraisal of whether law is anything more than politics by another name. Roberts swore that he hadn't caved in to political pressure, but nobody believed him. His dramatic reversal—known as "the switch in time that saved nine"—occurred in West Coast Hotel Co. v. Parrish, a case involving a constitutional challenge to Washington State's minimum wage law. Roberts had supplied the fifth vote to strike down a nearly identical New York law less than a year earlier on the rationale that it interfered with employees' and (mostly) business owners' liberty of contract—a favorite doctrine of the Court's conservatives. But he did an about-face and voted to reject the constitutional challenge in Parrish, elating the administration and confounding his brethren. The public did not know at the time that the Court actually held its initial conference and vote on Parrish two months before Roosevelt announced his Court-packing bill, so perhaps Roberts's decision was not political. Then again, Roosevelt and his allies had been stridently criticizing the Court for months, and various other reform packages had already been introduced in Congress; many historians believe that this steady drumbeat influenced Roberts. He voted with the liberals in the two big remaining cases of the 1936–37 term, rejecting challenges to the National Labor Relations Act and the Social Security Act.
The Court-packing plan and "constitutional crisis" of 1937 are not well-known outside political history circles and first-year law classes. But Jeff Shesol, in his superb book Supreme Power, reminds us of the episode's historical and contemporary resonance. The showdown was "one of the most ferocious, unpredictable, and consequential fights of the Roosevelt presidency," he writes. In addition to its legal significance, the Court battle diminished Roosevelt's prestige: he was proven to be fallible, and his support within the Democratic Party slipped. The episode also serves as a warning that future presidents who mess with the Court will get burned. In its analysis of the lead-up to and fallout from Roosevelt's scheme, Supreme Power is remarkably assured and eminently readable; Shesol, a former speechwriter for Bill Clinton, has synthesized decades of scholarship to produce a fluid, entertaining yet tremendously perceptive book. Although Shesol focuses more on politics and public relations than legal analysis, his accounts of the principal cases are clear and accurate. Supreme Power should bring the Court-packing plan to a broader audience than ever before.
Shesol explains that the Court's rulings against Roosevelt created a persistent legal uncertainty that not only inhibited the delivery of government aid but also revived the intense disrespect for federal law that had prevailed during Prohibition. Acts of Congress were presumed unconstitutional and flouted openly until proven otherwise in Court. Even in 1933,
The cry was not "justice" but "relief." What was at stake was not simply the eventual return of prosperity. It was the survival of democracy. Could representative government, with its checks and balances, with its suspicion and fragmentation of power, respond quickly and effectively to mass hunger, unemployment, desperation, and rage? And if not, could such a system endure much longer?
These are not idle superlatives. When the Court struck down its first New Deal law in January 1935—a provision limiting the sale of illegal crude oil in order to raise prices—Chief Justice Charles Evans Hughes conspicuously waited to announce the decision until the financial markets had closed for the day. While the administration waited nervously to learn whether the Court would uphold Roosevelt's decision to void all clauses in private and public contracts that guaranteed payment in gold, "Officials from the Treasury and the Securities and Exchange Commission were stationed in the Supreme Court marshal's office, with a line open to the SEC's chairman, Joseph P. Kennedy, who was empowered to shut down the stock market if things came to that." (The Court ultimately ruled in favor of the administration.) Shesol recounts scenes in which Roosevelt, Attorney General Homer Cummings and West Wing staff sat in the White House reading aloud Supreme Court opinions fresh from the bench and analyzing them line by line. The Court had severely disrupted public business. Roosevelt determined to act.
Despite the abrupt manner in which he announced the Judiciary Reorganization Bill, Roosevelt had spent two years casting about for ways to rein in the Court. His staff considered all options, including outright defiance. Shesol excerpts a spooky memo, "for use if needed," in which Roosevelt would have told the nation he was disregarding a hypothetical Supreme Court decision because it would "so endanger the people of this Nation that I am compelled to look beyond the letter of the law" to sources such as "the Golden Rule," the "precepts of the Scriptures and the dictates of common sense." Various bills and constitutional amendments were also considered: to allow Congress to override Supreme Court decisions, to require a supermajority vote to invalidate an act of Congress, to create a mandatory retirement age for justices. All were rejected as unworkable and slow, but the last proposal gave Cummings the idea that germinated into the Court-packing bill. Deliciously, a similar suggestion had been made decades earlier by archconservative Justice James McReynolds—one of the Four Horsemen, as Roosevelt called the Court's conservative bloc—when he was attorney general.
Changing the size of the Supreme Court does not require a constitutional amendment; an act of Congress will do. The Constitution states, "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish"; it says nothing about the number of justices. Congress sets that number and has changed it throughout the years—sometimes for nakedly political reasons—from as few as five members to as many as ten. For example, the number was expanded from nine justices to ten in 1863 to protect Abraham Lincoln's war policies from the Court, and returned to nine in 1866 to prevent Andrew Johnson from appointing a justice. Such efforts have always been regarded as an affront to the judiciary, but their constitutionality has not been seriously questioned. (In any event, it is doubtful anyone would have standing to bring a challenge except a justice, who would have to take the extraordinary and probably futile step of suing to protest the dilution of his or her vote.)