Supreme Power: Franklin Roosevelt vs. The Supreme Court

Title: Supreme Power:  Franklin Roosevelt vs. The Supreme Court
Author:  Jeff Shesol
Publisher:  W. W. Norton & Company, Inc.
Copyright:  2010

In Supreme Power, Franklin Roosevelt vs. The Supreme Court, Jeff Shesol takes on the conventional wisdom that President Franklin D. Roosevelt’s attempt to name additional justices to the U.S. Supreme Court, known as the “Court Packing” scandal, was a product of FDR’s hubris and drive for power.

Shesol sets the stage by describing the personalities and political agendas that permeated the Hughes Court.  As an example, Shesol depicts Justice Louis Brandeis as having “always dabbled in public affairs, more or less discreetly, from the bench.” He also described the close relationship that some members of the Court had with the preceding Hoover administration.

Although the Court had a history of invalidating progressive legislation (as criticized by FDR during his 1932 campaign for president), the Court took a hiatus from this approach during the darkest days of the Great Depression.  It seemed the Court gave FDR some latitude due to the economic crisis.

However, the Court’s passivity was not long-lived.  The Court appeared to push the envelope with its invalidation of numerous New Deal laws.  The Court felt it needed to take a stand against the increasing centralization of power within the federal government.  This exchange (after the Court struck down the National Recovery Administration in Schecter), among Justice Brandeis and FDR insider Tom Corcoran, is instructive:

“You have heard,” he gasped, “our three decisions.  They change everything.”  Make sure Felix [Frankfurter] is in Washington by morning, Brandeis told them; he needs to explain the situation to FDR.  “The President,” Brandeis said in the most damning judgment delivered that day “has been living in a fool’s paradise.”

Corcoran expressed concern that the Court’s holding … would imperil some of the bills now making their way through the Congress.  Brandeis was unmoved. “I am not familiar with the various pieces of legislation,” he replied, “but I should not be surprised if everything would have to be redrafted….  Everything that you have been doing must be changed” in light of the Court’s unanimous decisions.  “I want you to go back and tell the President that we’re not going to let this government centralize everything,” Brandeis told the two men.  “It’s come to an end.”  (pp. 136-7)

For FDR, the Schecter case made all the difference. FDR and his closest advisors carefully constructed a plan to expand the Supreme Court.  Various constitutional amendments were considered and set aside.  Despite his careful planning, FDR did not test the concept outside of his inner circle.  According to Shesol, FDR misjudged the situation on two primary fronts. First, he underestimated the American public’s reverence for the Supreme Court, and their reluctance to support any change in the Court’s standing vis-à-vis the executive branch. Second, the Court successfully out-maneuvered FDR politically and through its jurisprudence.

In cases like West Coast Hotel Co. v. Parrish, where the Court took an abrupt turn to the left, Shesol describes various maneuvers in which the Court undercut FDR’s arguments that the Court was not in tune with the present times.  The Court’s most striking decision in this regard related to the Jones & Laughlin decision in which the court upheld the controversial Wagner Act and the National Labor Relations Board.  As Shesol states, “The Chief Justice’s ‘rather adroit piece of work,’ as Cummings put it, left even some liberals feeling as Johnson did:  pleased by the outcome, appalled by what they saw as the cravenness behind it.”

Shesol recounts the continued machinations by which FDR tried to resurrect his doomed court packing bill.  Ultimately, though, the court packing bill died.  The final blow was a well-timed retirement by one of the court’s more conservative Justices.  This gave FDR the ability to place another liberal, Hugo Black, on the bench and establish a moderate/liberal majority on the Court.

Admittedly, the conventional wisdom on FDR’s court packing – that it was an exercise of uncharacteristic carelessness and hubris—has its shortcomings.  Anyone familiar with FDR knows the care with which he built consensus around his actions, laying very careful groundwork, especially with the Lend-Lease Program which preceded the United States’ entry into World War II.  And, FDR was an adroit enough politician to know when to drop a bad idea.

Why then would FDR continue to push his court packing plan?  FDR believed that he heralded a new way for government and for its relationship with the American people.  He also believed strongly in the need for reform.  But perhaps more importantly, FDR understood the interpersonal dynamics among the Court’s justices and what Shesol describes as the dialectic between judges and law.

Shesol contends that the old adage that the United States is a nation of laws and not men places too firm a division between the rule of law and the men who interpret the law.  Shesol believes that it’s a much more dynamic relationship and draws upon a variety of arguments and facts which support his contention.  Interestingly, even opponents of the court packing plan spoke in terms of this division, contending that the effect of FDR’s plan “would be to make this Government one of men rather than of law. . . .” (p. 469).

Shesol’s analysis provides a lens through which we can observe modern jurisprudence.  The parallels between FDR’s time and ours are staggering:  an economic crisis, a President with a vision for reform and a judiciary in large part appointed by the current President’s predecessors and political opponents.

Certainly, the current nomination of Elena Kagan and George W. Bush’s nomination of Harriet Miers hearken back to a day that saw the nominations of political insiders such as Hugo Black, Felix Frankfurter and Abe Fortas.  Arguably, people such as Black, Frankfurter and Fortas were appointed as much for their political favors as for their judicial experience.

It will be interesting to see how the current administration deals with the federal judiciary in light of the almost certain judicial review of the current health care legislation and myriad other federal programs.  It seems that an attempt to “court pack” would be impossible.  One wonders what other strategies might be considered?