Jeff Shesol, a former speechwriter for President Clinton, with this book, becomes one of our leading non-academic American historians, following his previous book on the tangled relationship between Robert Kennedy and Lyndon B. Johnson. Here he examines the attempt by President Franklin D. Roosevelt to “pack” the Supreme Court by making new appointments even in the absence of the retirement or death of current members of the Court.
It was, of course, provoked by the adamant opposition of the Court—led by the four conservatives known as the “Four Horsemen” (of the apocalypse] who, by gaining the vote of either the Chief Justice, Charles Evans Hughes, or Justice Owen Roberts could control the Court’s decision making—to major programs of the New Deal. Key programs of the New Deal were unceremoniously declared to be unconstitutional as beyond congressional power, and others were in a state of virtual suspension for fear of the same fate. Some of the decisions, most notably the one shooting down the “blue eagle” of the NRA, were no doubt quite popular, as the NRA had become discredited among large swathes of the population going well beyond conservative critics of the New Deal. Other programs, though, were at the heart of the New Deal program and seemingly threatened proposed legislation, including, say, the Wagner Act that would serve to empower labor unions against their employers.
FDR denounced the Court’s readings of the Constitution, pronouncing them remnants of a “horse-and-buggy” age and unsuited for the new social and economic realities of a far more integrated national economy. Although some proposed amending the Constitution to make it clear that Congress had the broad powers asserted by FDR, he resisted such calls, not least because Article V of the Constitution makes it immensely difficult to engage in formal amendment. But even if Article V “worked,” it would simply take too much time, given the perceived need for rapid legislative responses. Moreover, the very decision to ask for an amendment would give credence to the argument of conservative critics that the existing Constitution in fact significantly limited Congress’s power to meet the problems posed by the Depression. Far better to get new justices who would agree with the dissenters to the anti-New Deal decisions that the Constitution, correctly read, gave all the power to Congress that it might need.
Thus Roosevelt proposed appointing a new justice, up to a total of fifteen, whenever a sitting member of the Court was older than seventy, the age of six members of the then-current Court (and, for what it is worth, five members of the Court today)
As Shesol demonstrates, the plan was flawed from the start by its “patently false front.” For good reason, no one believed FDR’s totally implausible claim to be motivated only by a desire to alleviate the Court’s non-existent difficulties in meeting its docket. Chief Justice Hughes wrote a devastating letter to the Senate, joined by his colleagues, denying that there was any workload crisis. Ultimately the Senate “recommitted” the bill to the Judiciary Committee without ever coming to a full vote in that body.
Shesol has the advantage of a marvelous cast of characters to write about, led, of course, by the endlessly fascinating FDR. But there are also the various justices of the Supreme Court and denizens of the Senate who steeled themselves for what became a monumental battle between the forces of Rooseveltian “reform” and those who viewed the bill as the manifestation of dictatorial tendencies and a basic threat to our constitutional system. He also does an excellent job of setting out for legally-untrained readers the nature of the constitutional controversies. Shesol’s own conclusion is worth pondering:
Too often, the Hughes Court’s internal conflict has been portrayed as one between liberal justices who were responsive to the national emergency and conservative justices who were indifferent to it. In truth, both sides responded to the emergency as they themselves defined it: the liberals by giving the other branches of government greater room to relieve human suffering through new experiments; the conservatives by waging a last stand for their own conception of what the Constitution—and fidelity to their judicial oath—demanded.
Inevitably, readers will apply some of the lessons Shesol teaches to our present-day situation. Begin only with the fact that in early 1936 Republicans were quite confident that the New Deal had run out of steam, especially inasmuch as it seemed to consist of a series of improvised programs with little success, and, therefore, that they could look forward with equanimity to the forthcoming November elections. (Conservative members of the Court seemed to share this perception, which might have empowered them to decide as they did.) They were, of course, remarkably mistaken in their reading of the electoral future. But, of course, FDR, who won 46 of the then-48 states in November, also disastrously misread the new political universe by his remarkably inept attempt to pack the Court.
At the very least, one wonders who, if anyone, is actually entitled to the appellation of “political genius.” Or, more to the point, one might realize that even such “geniuses” are unlikely to be correct all the time, and their self-confidence in their own abilities might lead them to make particularly disastrous misreading of what is politically possible. “When I make a mistake,” Fiorello LaGuardia once memorably said, “it’s a beaut.” Shesol has written a marvelous book, full of wonderful quotes based on copious research, about a real “beaut.” It should be on the shelf not only of anyone interested in American political history but, perhaps more ominously, of anyone interested as well in our present political situation.
So what questions am I most eager to ask Shesol? An overarching question, to be sure, is what truly explains the magnitude of FDR’s errors, as a practicing politician? Did he suddenly lose his skills, or did he simply misread the situation and resist attempts of his associates to provide more accurate information? Or is this the wrong question: He introduced his plan, after all, before the Court engaged in what was memorably described as the “switch in time that saved nine” by upholding a plethora of New Deal measures, including the Wagner Act, by 5-4 votes (representing switches by Owen Roberts and, in some cases, Chief Justice Hughes). Was he “correct” in doing so and, more to the point, would he have succeeded had the Court remained recalcitrant? And should he have succeeded in such an event?
Doing a fast forward, what might one expect President Obama to do if, for example, a 5-4 majority of conservative Republican justices actually invalidated the health-care bill, by far the most significant piece of domestic legislation passed in the past four decades and, of course, the linch-pin of the Obama presidency? One might, of course, simply wait for these justices, several of whom are now in their 70s, to retire or die, presumably to be replaced, should Democrats continue to win presidential and senate elections, by justices who would easily uphold the legislation. But might not some Democrats urge more drastic action, including added some additional judges to the Court? The ultimate question raised by Shesol’s book, after all, is how, precisely, we should view the Court and its role with regard to major issues of American political life.