Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court

by James Macgregor Burns

  President and attorney general plotted together in secrecy, involving few other aides. FDR revealed his determination to act in his January 1937 annual message to Congress, warning the court that “means must be found to adapt our legal forms and our judicial interpretation to the actual present national needs of the largest progressive democracy in the modern world.” But it was not until the morning of the announcement, February 5, that Roosevelt briefed his cabinet and the Democratic congressional leadership. The men who would have to shepherd the controversial proposal through Congress were shocked and angered by FDR’s failure to consult them. Senate majority leader Joe Robinson flushed crimson and stared down at the table. On the way back to the Capitol, the powerful chairman of the House Judiciary Committee, Hatton Sumners, said, “Boys, here’s where I cash in.” It was the first sign that FDR would be in for a hell of a fight.

  The most crucial part of that fight would come from the Supreme Court itself. Rather than cast the motive for his plan in its true, ideological light—to combat the evisceration of the New Deal by the court’s reactionaries—Roosevelt claimed it was simply a matter of efficiency, managing to sound almost paternalistic in his message to Congress as he lamented the burden of cases on aged justices. Few believed this rationale, and even his allies were dismayed by the president’s deviousness. But it gave Charles Evans Hughes his opening.

  Not many men looked more like a chief justice than Hughes, with his closely trimmed beard and stately manner. But he was also a political animal—a former New York governor and the Republican who had almost beaten Wilson in 1916, a member of both Harding’s and Coolidge’s cabinets in the 1920s. When Burton Wheeler, a Senate progressive who was leading the fight against the court plan, invited Hughes to comment with a letter to the Senate Judiciary Committee, Hughes knew exactly what to do. In a long, reasoned analysis of the court’s work read to the committee on March 22, the chief justice destroyed Roosevelt’s “efficiency” argument.

  “The Supreme Court is fully abreast of its work,” Hughes wrote. “There is no congestion of cases upon our calendar. This gratifying condition has obtained for several years.” FDR’s proposal would actually impair the court’s efficiency, Hughes suggested. “There would be more judges to hear, more judges to confer, more judges to discuss, more judges to be convinced and to decide.” Hughes implied that he was speaking for all his colleagues, but he had consulted only Van Devanter and Brandeis before giving Wheeler the letter. Stone, in particular, who was keeping his own views private—he opposed packing but saw a need for reform—made known his irritation at Hughes’s extraordinary intervention. Stone told an editorial writer that he was unaware of Hughes’s letter “until I read about it in the paper.” Still, the letter had its impact. As Ickes noted, “shrewdly, Hughes chose to fight his skirmish where we were the weakest.”

  FDR had already realized that weakness. Overconfident at the outset of the fight, by early March he was trying to dampen the furor and rally his own faltering Democratic troops. The efficiency argument receded as the president brought his real motive into the open. With the court’s conservatism as his foil, Roosevelt tried to resurrect the transforming leadership of his first term and the com bativeness of the 1936 campaign. “We have begun to keep our promises,” he proclaimed at a “Democratic Victory Dinner” on March 4, 1937, “. . . we have begun to move against conditions under which one-third of this Nation is still ill-nourished, ill-clad, ill-housed.

  “We gave warning last November that we had only just begun to fight. Did some people really believe we did not mean it? Well—I meant it, and you meant it.” One by one he listed and lashed out at the Hughes Court’s “vetoes” of New Deal reform legislation. And in a radio address a few days later, on March 9, he told listeners that the Supreme Court had failed to pull together with the other branches in the “three horse team” of the national government. Instead, it had “improperly set itself up as a third House of the Congress—a super-legislature.” It was time, he said, “to save the Constitution from the Court and the Court from itself.”

  But on these ideological grounds, too, FDR was soon outma neuvered by Hughes. The chief justice would save the court from itself. Hughes, of course, would later deny that he or his fellow justices had been influenced to “the slightest degree” by the president’s plan, but on March 29, a week after his letter was read out to senators, the Supreme Court announced four decisions that signaled an amazing shift in course. The key case was West Coast Hotel v. Parrish, where the court, by a 5-4 vote, upheld a Washington state minimum-wage law for women and minors that was substantially the same as a New York law the court had struck down by the identical 5-4 margin just the year before in Morehead v. New York ex rel. Tipaldo, a decision that had drawn a firestorm of criticism, including Herbert Hoover’s. It was Owen Roberts who switched his vote in West Coast Hotel—“the switch in time that saved nine,” as it came to be called. In fact, Roberts had decided to change his vote when the justices discussed the case in December 1936, before the president unveiled his plan. But that was after FDR’s smashing reelection triumph and amid rumors that he intended to confront the brethren. Hughes denied that, in his determination to protect his court from another self-inflicted wound, he had pressed Roberts to change his mind. Twenty years later, Roberts acknowledged that he had been “fully conscious of the tremendous strain and threat” posed by FDR’s challenge to the high bench.

  Intent on leading the Supreme Court in a new direction, Hughes assigned the West Coast Hotel opinion to himself and took the opportunity to disavow the old “liberty of contract” dogma—it was not, he wrote, an “absolute and uncontrollable liberty,” but must be “subject to the restraints of due process,” including reasonable regulation. Hughes used language that had rarely been heard from the high bench, decrying the “exploitation of a class of workers” who were “defenceless” against their employers.

  In a second reversal that same day, the Supreme Court upheld a farm bankruptcy law that Congress passed after the court had unanimously struck down the first one on Black Monday in 1935. The new act was almost the same as the old, and again the justices were unanimous—in reaching the opposite conclusion. They also sustained—again unanimously—new railroad labor legislation, though a few months before, a majority had ruled that labor relations did not fall under the commerce clause and were beyond the reach of federal power. Finally, the court unanimously approved a regulatory tax on firearms, though conservatives had long opposed taxes that were regulatory—rather than revenue-producing—in intent.

  Two weeks after this “White Monday,” the Supreme Court executed its most astonishing reversal by upholding labor’s “Magna Carta”—the Wagner Act, a bill that gave a federal imprimatur to unionization and made the government the ultimate arbiter of industrial relations. The act had carefully been drafted to anticipate the justices’ objections, but surveying the dismal field of anti-labor precedents, recent and ancient, most observers predicted a defeat for the New Deal in National Labor Relations Board v. Jones & Laughlin Steel Corp. Remarkably, the court simply cast aside those precedents, including its rulings in Schechter and Carter, and recognized, for the first time, “a fundamental right” to organize unions. Giving a broad reading to the commerce clause, Hughes, again writing for the court, acknowledged Congress’s “plenary” power to “protect interstate commerce no matter what the source of the dangers which threaten it,” including the regulation of labor relations to forestall “the paralyzing consequences of industrial war.” Decades of contention over the federal government’s authority to tackle the nation’s economic problems were briskly put to rest as Hughes took the old jurisprudence to task. “We are asked to shut our eyes to the plainest facts of our national life and to deal with the question of direct and indirect effects in an intellectual vacuum.”

  The Four Horsemen, who in several of the White Monday cases had submitted grudgingly to Hughes’s strategy of foxing FDR, were bitter in their opposition to J
ones & Laughlin. A reporter in the courtroom described McReynolds “poking his pencil angrily at the crowd as he shouted his opinion” that now “a private owner is deprived of power to manage his own property” by being obliged to deal with unions.

  With its decisions in the spring of 1937, the Supreme Court abandoned its historic devotion to laissez faire. If Roosevelt saw this “constitutional revolution” as a threat to his plan, he deftly concealed it. He told reporters that he had been “chortling all morning” about Jones & Laughlin. The conservative New York Herald-Tribune, he remembered, had carried in 1935 “a beautiful editorial called, ‘Thumbs Down on the Wagner Act.’ ” And now, two years later, the Trib was lauding the court for “A Great Decision.” “Today,” the president said, “is a very, very happy day.”

  His happiness was short-lived. Harold Ickes thought that the reversals would “weaken the prestige of the Court in public estimation because when it was under fire, the Court ran to cover.” In fact, almost the opposite happened. Public support for Roosevelt’s court plan, as reflected in polls, had always been unstable. With many Americans torn between anger over the justices’ obstruction of the New Deal and the president’s tricky, radical proposal to overcome it, the Hughes counteroffensive produced spikes of opposition to packing. Jones & Laughlin helped to send support for the plan into a tailspin. Even FDR loyalists now asked, if the court was changing its views, why pack it? But having been trumped repeatedly by Hughes, the president mistrusted the chief justice. After the court had switched a few times, why should the reactionaries, with Hughes’s support, not regain the upper hand when the danger had passed? And, as Assistant Attorney General Robert Jackson had told the Senate in hearings over the court bill before White Monday, “when the decision of crucial constitutional issues” could turn on “a single death, or resignation, or change of mind,” it would seem “that our constitutional progress is governed by a blind fate instead of by human reason.”

  Fear of another reversal lessened when in mid-May one of the Horsemen, Van Devanter, announced that he would resign. Ironically, he was taking advantage of a retirement bill Congress had passed in late February in an attempt to deflect FDR’s plan, encouraging aged justices to retire by guaranteeing them full pay. And again the question was asked: if the personnel were changing, then why pack the court? On the day Van Devanter resigned, the Senate Judiciary Committee, controlled by Roosevelt’s fellow Democrats, condemned the president’s plan as a threat “to make this Government one of men rather than one of law,” with constitutional interpretation “to be changed with each change of administration.” For FDR, who still refused to give in, the court fight was broadening—he now faced challenges to his leadership from within the ranks of his own party.

  Then he suffered the climactic blow. In early June, Senate majority leader Joe Robinson had finally persuaded FDR that his plan was doomed. But Robinson, who had his eye on a court seat, despite his age and conservatism, promised to push through a compromise that would allow the president to appoint new justices for each sitting justice over seventy-five, though it would limit him to only one such appointment a year. While FDR would be denied his instant New Deal majority, he could claim victory for his principle. But just as Robinson was loyally leading Senate debate on the compromise, he suddenly died of a heart attack. All hope for court reform died with him.

  IN OCTOBER 1935, midway in its onslaught on the New Deal, the Supreme Court had moved into its new home, a stunning edifice confronting Congress across Capitol Hill. The court had led such a “nomadic existence” from the start, in political scientist Barbara Perry’s words, that the justices seemed fully deserving of their new magnificence. The court had first met in a humdrum commercial building in New York City in 1790; then in Philadelphia the next year, the court was housed like an afterthought in a succession of small rooms. From there it moved to Washington, D.C., and a cubbyhole in the new Capitol, until renovations produced chambers in the building’s basement. Those rooms were wrecked in the burning of the Capitol by the British in the War of 1812. In 1860, the justices moved upstairs to a larger room vacated by the Senate when the solons took over their present chamber.

  The idea that “the legislative and judicial branches would share quarters was anathema to a system of separated powers,” Perry wrote. It was even humiliating in the crowded areas. “For example, when rooms were at a premium, justices initially had to robe in public before oral argument; when they finally did procure their own robing room in the Capitol, it was barely large enough for all nine justices and their assistants.”

  The new courthouse was comfortable, convenient, and commemorative. Its arresting west pediment included, above the inscription EQUAL JUSTICE UNDER LAW, the sculpted faces of chief justices of the Supreme Court, among them William Howard Taft, who had launched the campaign for the new building in 1925. Yet it was by abandoning Taft’s militant jurisprudence that the Hughes Court helped to defeat FDR’s plan and secure for itself the independent status and power its new shrine represented.

  DECADES AFTER THAT defeat historians were still puzzling over Roosevelt’s handling of his ill-fated proposal. Why did he prepare his plan in secrecy and spring it on congressional leaders without consultation? Why did he not make court reform a key issue in his 1936 campaign so that he could claim an election mandate for it? Why did he initially offer the plan only as an “efficiency” measure, ignoring the transcending issue of the Supreme Court’s extreme negativism and conservatism? Why, in brief, did he fail to offer transformational leadership?

  One answer is that the 1936 election had empowered Roosevelt psychologically as well as politically. He had just brought off a stunning personal campaign victory. After winning two gubernatorial and two presidential elections he had a palpable—and justifiable—confidence in his own political judgment, and in the support of the American electorate.

  During the election campaign he had rejected—rightly, as the outcome indicated—suggestions that he moderate both his proposals and his oratory. He was determined to offer voters a clear choice between his New Deal and those Republican policies that had triggered—and then failed to cope with—the Great Depression. The Supreme Court’s conduct was implicit in his assaults on the old order—it was, after all, the last federal stronghold of the extreme right—yet he sensed the regard many Americans had for it despite its anti-New Deal decisions. Hence he was reluctant to take it on directly until his reelection was secured.

  But having won that overwhelming mandate, he hobbled himself by grasping the anemic and devious cause of “efficiency,” instead of bluntly attacking the Supreme Court’s hard-right verdicts. FDR calculated at first that the cause of adding “fresh blood” to the judiciary would trigger the least controversy. He neither expected nor wanted the proposal to become the center of a raging ideological, political, and personal dispute that would spin out of his control and blight his second term. Strangely for a leader who had appealed so widely to voters in elections, he sought to narrow the struggle rather than broaden it. He displayed a lack of courage in sharp contrast to the audacity he demonstrated in many fights before and after the court battle.

  Did Roosevelt have other options? Could he have risen above the turmoil that dragged him down into a personality fracas, where the issue became his “dictatorial” ambitions? Could he have raised the struggle to the supreme issue of judicial rule? Remarkably, FDR at times seemed to be flirting with a strategic possibility that would have dwarfed his court-packing tactics.

  In his radio talk early in March 1937, at the height of the court fight, he brought his listeners back to 1803, when the Supreme Court in Marbury v. Madison held that a law passed by Congress “violated an express provision of the Constitution,” Roosevelt said. “The Court claimed the power to declare it unconstitutional and did so declare it. But a little later the Court itself admitted that it was an extraordinary power to exercise and through Mr. Justice Washington laid down this limitation on it: ‘It is but a decent r
espect due to the wisdom, the integrity and the patriotism of the legislative body, by which any law is passed, to presume in favor of its validity until its violation of the Constitution is proved beyond all reasonable doubt.’

  “But since the rise of the modern movement for social and economic progress through legislation, the Court has more and more often and more and more boldly asserted a power to veto laws passed by the Congress and State Legislatures in complete disregard of this original limitation.

  “In the last four years the sound rule of giving statutes the benefit of all reasonable doubt has been cast aside. The Court has been acting not as a judicial body, but as a policy-making body.”

  One hundred and thirty years after Marbury, Roosevelt was counterattacking John Marshall, charging that judicial review was in fact judicial rule, since the court’s “policy-making” was subject to no check or limitation from the elected branches.

  Six months later, in September 1937, on the 150th anniversary of the Constitution’s signing at the convention in Philadelphia, after he had lost the battle over the court, Roosevelt was even more explicit and confrontational.

  “The Constitution of the United States was a layman’s document, not a lawyer’s contract,” he declared. “That cannot be stressed too often. . . .

  “Contrary to the belief of many Americans, the Constitution says nothing about any power of the Court to declare legislation unconstitutional; nor does it mention the number of judges for the Court. Again and again the Convention voted down proposals to give Justices of the Court a veto over legislation. Clearly a majority of the delegates believed that the relation of the Court to the Congress and the Executive, like the other subjects treated in general terms, would work itself out by evolution and change over the years.