by FDR
Roosevelt declined to attend Robinson’s Arkansas funeral—a final, tragic error. As one historian suggests, FDR reacted to the news of Robinson’s death with bitterness, identifying the majority leader with the loss of his Court plan.118 Robinson was beloved by his Senate colleagues and died in harness fighting for a proposal in which he did not fully believe. The president’s failure to go to Little Rock was a slap in the face few senators could forgive. Roosevelt’s popularity plummeted. Vice President Garner—who attended the funeral—brought the bad news: “You are beat, Cap’n. You haven’t got the votes.”119 On July 22 the Senate rejected the bill, 20 in favor, 70 against.120
Historians are fond of saying Roosevelt lost the battle and won the war. But the war was won when Roberts joined Hughes, Brandeis, Cardozo, and Stone in December 1936. In the year after the bill’s defeat, Roosevelt would appoint three justices to the Court. Ultimately he would appoint eight.121 But more important than the justices was the law. In sustaining the Washington minimum-wage statute, Hughes overruled the line of precedent that had hamstrung attempts to regulate working conditions since 1905. Those discarded precedents would not reappear. In upholding the Wagner Act, he nullified the exceptions that had shackled the commerce clause since 1895. Mining, manufacturing, and agriculture were no longer out of bounds. The victory in the Court fight of 1937 belonged not to Roosevelt but to Hughes, to the constitutional separation of powers, an independent judiciary, and the law.
* “Oh, hell, it’s no trick to make a President,” Howe once said. “Give me a man who stays reasonably sober, shaves, and wears a clean shirt every day and I can make him President.” Lela Stiles, The Man Behind Roosevelt: The Story of Louis McHenry Howe 251 (Cleveland: World, 1954).
* Roosevelt traveled by train, which was exceedingly time-consuming since he preferred to go at no more than thirty miles an hour. That enabled him to move about more easily when the train was in motion, and he also enjoyed looking at the scenery. No presidential candidate had seen more of the United States than FDR, and none had a better appreciation of regional differences. His slow travel by train reinforced that understanding.
† In early September Roosevelt and Landon met at a midwest governors’ conference in Des Moines. “Governor, however this comes out, we’ll see more of each other,” said FDR. “Either you come to see me [in the White House] or I’ll come to see you.” “I certainly shall,” Landon replied. “And Governor, don’t work too hard,” Roosevelt joked.
“Harmony dripped so steadily from every rafter,” Senator Arthur Capper, a Kansas Republican, noted, “that I fully expected one of the candidates to withdraw.” Quoted in Arthur M. Schlesinger, Jr., The Politics of Upheaval 610 (Boston: Houghton Mifflin, 1960).
* Two days after the election, Cardinal Pacelli very publicly visited Hyde Park for lunch with the president. Pacelli’s party included Joseph P. Kennedy, Frank C. Walker, and the then auxiliary bishop of Boston, Francis J. Spellman, who was the cardinal’s interlocutor in the United States. “I was very anxious to meet the President of the United States,” Pacelli told newsmen afterward. “I am very happy to have had the opportunity of seeing him and congratulating him. I enjoyed my visit very much.” The New York Times, November 6, 1936.
* Literary Digest, which had correctly called the 1932 election, predicted that Landon would carry 32 states with 370 electoral votes against 16 states with 161 electoral votes for Roosevelt. By contrast, the Gallup and Roper organizations forecast that FDR would win in a landslide. Unlike Gallup and Roper, Literary Digest polled only persons whose names appeared in telephone books and automobile registration lists, which in 1936 skewed the sample toward more affluent voters. Peverill Squire, “Why the 1936 Literary Digest Poll Failed,” 52 Public Opinion 125–133 (1988).
* Because of the chance of early snow, Maine historically voted early. In 1936 the state went to the polls on September 14 and gave Landon 55.6 percent of the vote to Roosevelt’s 41.6 percent.
† In 1964 Lyndon Johnson defeated Barry Goldwater 61.05 percent to 38.47 percent, but Goldwater’s percentage was slightly higher than that of Landon, who won only 36.54 percent. Congressional Quarterly, Guide to U.S. Elections 290, 297 (Washington, D.C.: Congressional Quarterly, 1975).
* FDR was superstitious about making changes, and he had a personal distaste for firing people. The only two cabinet changes since 1933 were because of the deaths of the incumbents: Morgenthau replaced William Woodin at Treasury, and Woodring replaced George Dern at the War Department.
† George Sutherland was appointed to the Court by Harding in 1922; Pierce Butler by Harding in 1923. Coolidge appointed Harlan F. Stone in 1925. Hoover appointed Chief Justice Hughes (1930), Owen Roberts (1930), and Benjamin Cardozo (1932).
* The so-called Hot Oil act, section 9c of the National Industrial Recovery Act, was overturned by the Court (8–1) in Panama Refining Co. v. Ryan, 293 U.S. 388 (1935). In Schechter Poultry Corp. v. United States, 295 U.S. 553 (1935), and Louisville Joint Stock Land Bank v. Radford, 295 U.S. 595 (1935), unanimous Courts struck down the entire NIRA and the Frazier-Lemke Farm Mortgage Act. The Railroad Retirement Act was declared unconstitutional (5–4) in Railroad Retirement Board v. Alton Railroad Co., 295 U.S. 330 (1935). In United States v. Butler, 297 U.S. 1 (1936) the Court (6–3) overturned the Agricultural Adjustment Act, and in Carter v. Carter Coal Co., 298 U.S. 238 (1936) a sharply divided Court (5–4) declared the Guffey Bituminous Coal Act unconstitutional.
* Early New Deal legislation relied on the commerce clause of the Constitution (Article I, section 8), which authorized Congress to regulate interstate and foreign commerce. As originally interpreted by the Marshall Court in the landmark case of Gibbons v. Ogden, 9 Wheaton (22 U.S.) 1 (1824), that would have sufficed. But in 1895 the Court, speaking through Chief Justice Melville Fuller, narrowed the scope of the commerce clause to exclude mining, manufacturing, and agriculture. Such activities, said Fuller, had only an “indirect effect” on commerce. United States v. E. C. Knight, 156 U.S. 1. That restrictive interpretation was emphatically affirmed in 1918, when the Court rejected Congress’s attempt to regulate child labor under the commerce clause. Hammer v. Dagenhart, 247 U.S. 251.
In addition to the commerce clause decisions, another line of precedent invoked the due process clauses of the Fifth and Fourteenth Amendments to prevent governments from regulating wages and hours. Beginning with Lochner v. New York in 1905 (198 U.S. 45), the Court held such regulation to be a denial of an individual’s “liberty of contract.” This too had been recently reaffirmed. “Freedom of contract is the general rule and restraint the exception,” said Justice Sutherland in Adkins v. Children’s Hospital, 261 U.S. 525, 546 (1923).
These two lines of precedent were formidable, but in each of the four cases there had been powerful dissents. Hammer and Lochner were 5–4, and Adkins 5–3 (Brandeis not participating). More important, standing opposed to the contemporary commerce clause rulings was no less a figure than John Marshall, whose expansive definition of commerce in Gibbons was a judicial classic.
A wild card in the Court’s anti–New Deal holdings was the legal maxim that delegated power could not be redelegated, delegatus non potest delegare. The origin of that concept is unclear, and its application has been erratic. It has been employed only three times to invalidate legislation (Panama Refining v. Ryan, Schechter Poultry Corp. v. United States, and Carter v. Carter Coal Co.). It was rejected by the Hughes Court in Curtiss-Wright and buried in Yakus v. United States, 321 U.S. 414 (1944). Also see Morrison v. Olson, 487 U.S. 654 (1988). When the Court decided to change course in 1937, the maxim did not pose an obstacle.
* In 1862 Congress, confronted with the need to finance the war, passed the Legal Tender Act, authorizing paper money as a substitute for gold. After the war the act was challenged, and in Hepburn v. Griswold, 75 U.S. 603 (1870), the Court (4–3) ruled it unconstitutional. The government asked that the case be reargued; Congress increased the size of the Court from eight to nine; and one ju
stice (Robert Grier) died, giving Grant two vacancies to fill. Grant appointed two stalwart Republicans, William Strong of Pennsylvania and Joseph Bradley of New Jersey. When the case was reargued, Hepburn was overruled 5–4 and the Legal Tender Act sustained. The decision was written by Justice Strong. Knox v. Lee, 79 U.S. 457 (1871).
Jackson wrote FDR a memorandum to this effect on January 12, 1935. Robert H. Jackson, That Man: An Insider’s Portrait of Franklin D. Roosevelt 65–66 (New York: Oxford University Press, 2003).
* The Eleventh Amendment, adopted in 1795, reversed the decision of the Supreme Court in Chisholm v. Georgia, 2 Dallas (2 U.S.) 419 (1793), and redefined the jurisdiction of the federal judiciary to exclude suits brought against a state by citizens of another state. The Fourteenth Amendment (1868), by granting citizenship to “all persons born or naturalized in the United States,” overruled the Court’s definition of citizenship in the Dred Scott case (Scott v. Sandford, 19 Howard (60 U.S.) 393 (1857)). Similarly, the Sixteenth Amendment, ratified in 1913, made the income tax constitutional, nullifying the Court’s decision in Pollock v. Farmers’ Loan and Trust, 158 U.S. 601 (1895).
† In 1801 the outgoing Federalist Congress reduced the size of the Supreme Court from six justices to five, hoping to deprive Jefferson of an appointment. The new Democratic Congress promptly restored the number to six and increased it to seven in 1807, giving Jefferson an additional appointment. Jacksonian Democrats added two more justices in 1837, bringing the number to nine. In the Civil War, confronted with a potential proslavery majority, Congress increased the Court to ten. When Democrat Andrew Johnson succeeded Lincoln, a Republican Congress reduced the number of justices to seven to deprive Johnson of any appointments. That reduction was achieved by attrition. The Court was restored to nine in 1870 under Grant.
* The Judges Bill of 1925, enacted on the recommendation of Chief Justice Taft, gave the Supreme Court almost complete control of its docket. A litigant who wished to appeal to the Court filed a request for a writ of certiorari—a discretionary writ—to allow the case to come forward. Rule 10 of the Rules of the Supreme Court states, “A review on a writ of certiorari is not a matter of right, but of judicial discretion, and will be granted only when there are special and important reasons therefor.” It requires the agreement of four justices for the writ to be issued. When the Court denies the writ, as it did in 87 percent of the cases in 1936–37, it customarily does not state the reason why.
* Sonzinsky v. United States, 300 U.S. 506 (Stone for the Court), upholding the National Firearms Act; Wright v. Vinton, 300 U.S. 440 (Brandeis), sustaining a revised version of the Frazier-Lemke Farm Mortgage Act; and Virginia Railway Co. v. Federation, 300 U.S. 515 (Stone), upholding the collective bargaining provisions of the Railway Labor Act.
EIGHTEEN
LOW TIDE
Nothing is ever gained by trying to seek revenge in politics.
—JAMES A. FARLEY
FDR OVERPLAYED HIS HAND. To attack the Court was wrongheaded. To persist after the cause was won was petulant. Roosevelt paid dearly. Not only did he squander public support, but the Court fracas ruptured the Democratic party. Conservative Democrats and Republicans who made common cause to thwart FDR’s Court-packing plan found it easy to work together against other White House initiatives. The New Deal ceased to be a synonym for the Democratic party. From 1937 on, it was merely a movement within the party. Not all southerners were conservative, and not all conservative Democrats were from the South. But there were enough to give the anti–New Deal coalition a Dixie twang.
FDR’s legislative program was the first casualty. “Must” bills considered certain of passage at inauguration encountered heavy opposition. When the Court plan was defeated in July, five administration measures awaited action: wages and hours legislation, low-cost housing, reorganization of the executive branch, a revised farm program, and the creation of seven additional TVA-type regional authorities. When Congress adjourned at the end of August, only the Wagner Housing Bill had been enacted—a tribute more to Senator Wagner’s legislative skill than to White House support. Roosevelt recalled Congress into special session in November with a demand that action be taken, but the session proved a disaster. Despite unprecedented Democratic majorities in both Houses, not one additional piece of legislation was enacted. Only a year after his overwhelming election victory, FDR had lost control of the party.*
Roosevelt stubbed his toe when Senate Democrats chose a leader to replace the revered Joe Robinson. The candidates were Mississippi’s Pat Harrison, chairman of the Finance Committee, and Alben Barkley of Kentucky, the assistant leader. Harrison was a fixture in Mississippi’s Democratic establishment, Barkley in the populist ranks of Kentucky. On policy issues there was little daylight separating the two. Both backed the New Deal, and both had supported FDR in the Court fight. Both had been for Roosevelt before Chicago. Barkley had given the keynote addresses at the 1932 and 1936 conventions; Harrison had given the keynote in 1924 and played a vital role keeping Mississippi in Roosevelt’s column on the crucial third ballot at Chicago in 1932. Harrison, one of the Senate’s Big Four, was considered a shoo-in.1† Roosevelt promised not to intervene, as did party chairman Farley and Vice President Garner.2
As the senators prepared to vote, Roosevelt changed his mind. He liked Barkley more than Harrison and believed he would be easier to work with. “My dear Alben,” the president wrote in a lengthy letter the White House released, making clear where his sympathies lay.3 FDR used all the power at his disposal to influence the outcome. He placed a late-night call to Farley telling him to telephone Mayor Edward J. Kelly of Chicago to instruct Illinois senator William Dieterich to vote for Barkley. When Farley refused, Roosevelt got Hopkins to make the call, and Dieterich, who was pledged to Harrison, switched sides. The White House also asked Kansas City’s Tom Pendergast to pressure freshman senator Harry Truman, and Pendergast dutifully made the call: “No, Tom,” said Truman, “I can’t.… I’ve made up my mind to vote for Pat Harrison and I’m going to do it.”4 A third waverer was Harrison’s fellow Mississippian, Theodore G. Bilbo. The Mississippi Democratic party was really two parties, one patrician, the other redneck, and Harrison and Bilbo represented opposing factions. The common denominator was white supremacy: both hated the party of Lincoln more than each other. Bilbo said he would vote for Harrison if Harrison would ask him. “Tell the son of a bitch I wouldn’t speak to him if it meant the Presidency of the United States,” said Harrison.5 Bilbo voted for Barkley. When the ballots were counted, Barkley beat Harrison by one vote, 38–37.
White House pressure had prevailed. But it was an empty victory. Roosevelt’s intervention reinforced the image of the president as deceitful and untrustworthy. Many on Capitol Hill resented FDR’s meddling in what was seen as a purely congressional matter—another example of executive overreach. “It is an encroachment on the prerogatives of the members of the legislative branch no President ought to engage in,” said Garner.6 Tactically, the move hurt Roosevelt. If he had remained neutral, most senators believed, Harrison would have won easily and FDR could have persuaded him, as he had Joe Robinson, to support most New Deal measures out of party loyalty.7 With Harrison now estranged from the administration, his position as chairman of the Finance Committee provided a powerful vantage point from which to derail or delay White House legislation. Barkley, for his part, would henceforth be known to Washington as “Dear Alben,” a creature of the president.
In the House, the situation was little better. Members, some of whom had come to Washington when the city’s streetcars were pulled by horses, resented the high-handedness of New Deal appointees as well as their intellectual arrogance. “Unless one can murder the broad ‘a’ and present a Harvard sheepskin he is definitely out,” grumbled Michigan congressman John Dingell.8 When Hatton Sumners, speaking to a crowded chamber, called on House Democrats to establish a new party leadership—implicitly reading Roosevelt out of the party—no one rose in the president’s defense. Not Sam
Rayburn, who listened mutely to his fellow Texan’s rant; not Speaker Bankhead, who sat sphinxlike on the dais; not even Maury Maverick, the unofficial cheerleader for New Dealers in the House. “Nothing quite like it had occurred in that body for a long time,” observed The New Republic.9
Roosevelt was equally unforgiving. “The Supreme Court fight lived on in the President’s memory,” said Farley. “His attitude was that he had been double-crossed and let down by men who should have rallied loyally to his support. For weeks and months afterward I found him fuming against the members of his own party. Outwardly he was as gay and debonair as ever; inwardly he was seething.”10*
FDR twitted Congress. He relished inviting members to the White House, cryptically suggesting that those who crossed him should be on guard. “I’ve got them on the run,” he told Farley. “They have no idea what’s going to happen and are beginning to worry. They’ll be sorry yet.”11
Amid mutual recriminations between the White House and Capitol Hill, the country, as John Garner would have said, was going to hell in a handbasket. A rash of sit-down strikes in the spring and summer of 1937 polarized the political scene further. To some extent the strikes were the natural outgrowth of the Wagner Labor Relations Act, which afforded workers the right to join a union. Labor zeroed in on steel and auto production—the “Hindenburg Line” of American industry, in the words of CIO founder John L. Lewis—and the sit-down strike proved an effective organizing weapon. By seizing control of one plant that made a crucial part, striking workers could paralyze an entire company. In the case of General Motors, that plant was at Flint, Michigan. In 1937, General Motors was the world’s largest manufacturing corporation. With more than a quarter of a million employees, it produced half of all cars made in America. Yet the only set of dies for every GM model was on the floor at Flint. When workers there laid down their tools and refused to leave the plant, General Motors production slowed to a trickle. A company that built 50,000 cars in December 1936 produced only 125 during the first week of February 1937.12
