American Communists also had their frustrations. Moscow’s switch to a new popular front, antifascist strategy had left anti-New Deal zealots in an embarrassing position: after lambasting Roosevelt and his New Deal, now they must support him. Yet despite their deep distrust of the President, they much preferred him to Landon, whom they labeled a forerunner of fascism. While the Socialists shifted sharply to the left, Harvey Klehr noted, the Communists passed them headed to the right. Meantime the comrades unveiled their patriotic slogan “COMMUNISM IS TWENTIETH-CENTURY AMERICANISM.”
The Republican campaigners were the first off the mark, and a good start it was, as Americans seemed to take to this outspoken Midwesterner with his sensible ideas and moderate positions. Buoyed by ample press support and good crowds, he attacked the New Deal at some of its weaker points and argued that he could meet the people’s needs more effectively and cheaply. As the weeks passed, however, he ran into more and more difficulties—his own fatigue, his repetitiousness, growing boredom and lack of response in the crowds. Moreover, he had no target, as FDR was lying low.
Landon’s nemesis was Herbert Hoover. Frozen out of the Landon campaign circle, thirsting for vindication, hating Roosevelt, the former President concluded that the candidate lacked fire and that he would provide it. Hoover’s attacks on the New Deal were so virulent as to be self-defeating, but in the process he and other hard-liners drew Landon into their vortex. Soon the Kansan was leveling extreme charges against his adversary. Pressured from the Republican right and the center, Landon never found a solid, consistent theme. By October his campaign was slowly and inexorably sinking, buoyed only by falsely optimistic polls in the Literary Digest.
The campaign of the Union party proved an exercise in self-destruction, performed before an indifferent press and public. Landon’s troubles with Hoover were as nothing compared to Lemke’s with Coughlin. Virtually ignoring his party’s candidate, the radio priest concentrated his fire on Roosevelt as “anti-God,” anti-American, pro-Red. The New Deal was “a broken down Colossus,” he shouted, “its left leg standing on ancient Capitalism and its right mired in the red mud of Communism.” He carried his red-baiting of the Administration to such a point, with ominous undertones of anti-Semitism, that his bishop, his cardinal, and even the Vatican rebuked him. Undeterred, Coughlin boasted that he would throw Roosevelt out of his office just “as I was instrumental in removing Herbert Hoover,” and cried, “If I don’t deliver 9,000,000 votes for William Lemke, I’m through with radio forever.” Smith and even Townsend also became vituperative, but they were cool to each other, and to Lemke. With too many leaders and too little money and organization, the Union party was in tatters by the middle of the fall.
By then Roosevelt was just starting his formal campaign. Always a master of timing, he stood aside until his foes had exhausted themselves and their audiences. His crowds seemed to get bigger and more enthusiastic as theirs dwindled during the autumn days. Spoken with power and passion but without stridency, his radio addresses were unusually effective, reaching widely across the electorate. He knew, too, when to leave well enough alone: he let friendly Catholic hierarchs answer Coughlin; he ignored pinpricks; when some of his campaign leaders almost panicked in the wake of a telling last-minute Republican attack on Social Security taxes and “name tags,” the President kept his nerve. His final campaign trips through the Northeast could fairly be described as triumphal processions.
He brought his campaign to a stunning climax in Madison Square Garden before a crowd of enthusiasts who seemed to thirst for political blood:
“For nearly four years now you have had an Administration which instead of twirling its thumbs has rolled up its sleeves. And I can assure you that we will keep our sleeves rolled up.
“We had to struggle with the old enemies of peace—business and financial monopoly, speculation, reckless banking, class antagonism, sectionalism, war profiteering.
“They had begun to consider the Government of the United States as a mere appendage to their own affairs. And we know now that Government by organized money is just as dangerous as Government by organized mob.
“Never before in all our history have these forces been so united against one candidate as they stand today. They are unanimous in their hate for me—and I welcome their hatred.
“I should like to have it said of my first Administration”—Roosevelt’s voice was rising—“that in it the forces of selfishness and of lust for power met their match.
“I should like to have it said—” A thunderclap of cheers and applause burst from the crowd.
“Wait a moment! I should like to have it said of my second Administration that in it these forces met their master.” The crowd let out a great guttural roar.
“Of course we will continue to seek to improve working conditions for the workers of America.… Of course we will continue to work for cheaper electricity.… Of course we will continue our efforts in behalf of the farmers of America … for young men and women … for the crippled, for the blind, for the mothers.…
“For these things, too, and for a multitude of things like them, we have only just begun to fight. ”
CHAPTER 3
The Crisis of Majority Rule
FOR MORE THAN ONE hundred years, ever since Jeffersonian times, presidential candidates of humane and liberal tendencies had been seeking to muster popular majorities strong and stout enough to sustain their work. Their success had been mixed at best. Lincoln and Wilson won office, but only with a minority of the popular vote against divided opposition. Theodore Roosevelt and Franklin Roosevelt won popular majorities only to encounter opposition inside the governmental or party system. Somehow conservative Republican leadership had been able to achieve “compact majorities,” especially in the late nineteenth century and in the 1920s. Somehow liberal Democrats and progressive Republicans had been unable to create durable majority coalitions.
Suddenly, on Wednesday morning, November 4, 1936, the political landscape seemed altered and the old hope renewed. It was not merely a Roosevelt victory, the press proclaimed, but a tidal wave, an earthquake, a landslide, “the blizzard of ’36.” The President carried every state save Maine and Vermont, swept the electoral college by 523 to 8, won the popular vote by 27,748,000 to 16,680,000. Lemke’s 892,000 votes amounted to less than 2 percent of the total. The outcome was historic: Roosevelt had won the largest presidential vote up to that time, the largest presidential plurality, the largest proportion of electoral voles since 1820; he had helped win the largest House majority since 1855, the largest Senate majority since 1869. The new House would have 331 Democrats and 89 Republicans, with 13 members of other parties; the Senate, 76 Democrats, 16 Republicans, and 4 “others.” The Democratic hurricane swept through state legislatures and county courthouses across the nation. And the Democrats for the first time made deep inroads into the black vote.
So Franklin Roosevelt had his majority, a magnificent majority in electoral breadth and legislative depth. What would he do with it? Few doubted that he would have to face up to the one lingering majority of conservatives—that on the Supreme Court. Later on, some would propagate the myth that the President, intoxicated with his success, suddenly and recklessly pounced on the High Court. In fact, the battle was long in the making, for it reflected a conflict built deep into the heart of the constitutional system, popular attitudes, and the ambitions of leaders.
The Framers of the Constitution had been deeply ambivalent toward the idea and practice of majority rule. Believers in republican government, they had to accept the ultimate power of the people as expressed in electoral and legislative majorities. But as devout believers too in minority rights, they wished to curb the power of popular majorities, composed perhaps of debt-ridden farmers, to invade property rights. For them Shays’s rebellion early in 1787 had been the great warning bell in the night. At Philadelphia the founders shaped a constitution that would thwart sudden and passionate expressions of the popular will. A majori
ty would need to win the House of Representatives, the presidency, and the Senate before it could work its will—and its will might be cooled off in the process as surely as cold milk could chill hot tea. And if all this failed, there would be the courts, which would exercise some major, though not wholly defined, restraints on legislative and executive policy.
Not all the founding fathers favored such curbs on popular rule. Thomas Jefferson, who was absent from the Philadelphia convention but always present in the Framers’ thoughts, not only backed legislative majority rule but talked grandly about popular rule and the right of the people to revolt every generation or so. To be sure, Jefferson, as a libertarian and democrat, set as a “sacred principle that if the will of the Majority is in all cases to prevail, that will, to be rightful, must be reasonable”—it must not violate the minority’s “equal rights.” But he had confidence that a majority of free Americans would never trample on the liberties of fellow Americans as guaranteed in bills of rights.
While FDR spurned grandiose constitutional theory, he had a good working knowledge of the Framers’ checks and balances as vehicles for frustrating popular impulses and thwarting social change. He had learned even more from historical narratives, as a politician delving into the past in order to defend his positions of the present. But most of all he learned from people—from Jefferson and Jackson and their difficulties with the Federalist-Whig court of John Marshall, from Lincoln, from the judicial erosion of black rights during Reconstruction, and above all from Cousin Ted’s blasts against reactionary judges.
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.
Court-Packing: The Switch in Time
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.
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