The Magazine

A Man, a Plan .  .  .

When one branch of government declares war on another.

Aug 3, 2009, Vol. 14, No. 43 • By CHARLOTTE ALLEN
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FDR v. The Constitution

The Court-Packing Fight and
the Triumph of Democracy

by Burt Solomon

Walker, 352 pp., $27

On February 5, 1937, just 16 days after his inauguration to his second presidential term, Franklin D. Roosevelt called a surprise meeting of his cabinet in the White House's West Wing in which he unveiled to the cabinet, Congress, the press, and the nation a proposal for a dramatic reorganization of the federal judiciary that became known as his court-packing plan.

Although the legislative scheme that Roosevelt outlined--and expected Congress to enact--ostensibly sought to modernize the operations of all federal courts at all levels, its real target was the Supreme Court, which, during his first term, had systematically overturned huge portions of New Deal legislation on constitutional grounds. FDR's aim was to expand the court, to "pack" it with liberal-minded justices of his own choosing who would issue rulings more favorable to his legislative project.

Roosevelt had won the 1936 election by a crushing landslide--a total of 61 percent of the popular vote that enabled him to carry all but two of the 48 states--and his Democratic coalition of labor, northern liberals, and the Solid South had similarly steamrollered through Congress in 1936, leaving the wounded Republicans, who had reigned supreme in both houses during the prosperous 1920s, with a pathetic 17 senators (out of 96) and 88 House members (out of 435).

Not without reason, Roosevelt interpreted his sweeping victory as an overwhelmingly successful referendum on the New Deal, a massive expansion of federal supervisory power into economic arenas that had once been solely the province of states and localities, all in the name of combating the effects of the Depression on working people.

Only the Supreme Court--or at least a majority of its nine justices--consistently refused to go along with the New Deal's sudden (most of the laws had been passed by a compliant Congress during Roosevelt's famous "Hundred Days" in 1933) and massive intrusion of federal power into the setting of prices, wages, and maximum working hours in private economic transactions in ways skewed to benefit two key Roosevelt constituencies, farmers and laborers, typically at the expense of manufacturers, middlemen, retailers, entrepreneurs, and ultimately consumers.

In striking down such legislative pillars of the New Deal as the Agricultural Adjustment Act (AAA), a 1933 law that levied food processors in order to pay farmers to cut production (to the point of destroying crops and killing livestock), and the National Industrial Recovery Act (NRA), which authorized the regulation of prices, wages, working hours, and output in a daunting array of industries large and small, the Supreme Court invoked provisions of the Constitution that appeared to limit the power of Congress to enact such sweeping and unprecedented laws that essentially legalized cartels and price-fixing collusion.

The constitutional provision most frequently invoked in those rulings was the so-called Commerce Clause (Article 1.8.3 of the Constitution), then strictly interpreted by the conservatives (and even, from time to time, its liberals) to permit Congress to regulate the flow of goods in interstate transit but not to interfere with strictly local economies. For example, the Supreme Court had voted unanimously in 1935, in the case of Schechter Poultry v. U.S., to strike down the entire NRA on Commerce Clause grounds. The Schechter brothers, who operated a kosher chicken-slaughtering plant in Brooklyn, had argued that since they sold their fowl entirely inside the state of New York, they were not involved in interstate commerce and the federal government had no constitutional authority to micromanage wages and prices at a fine-grained level.

The Court also struck down state laws setting minimum prices and hourly wages during Roosevelt's first term. The constitutional ground on which those rulings rested was usually the 14th Amendment, which guarantees equal protection of the laws and forbids states to "deprive any person of life, liberty, or property without due process of law."

The Supreme Court, during the first third of the 20th century, tended to interpret the 14th Amendment in a broadly libertarian fashion known as "substantive due process" that protected the right to enter into contracts and other economic arrangements free of state interference. Thus, in 1936, the justices ruled that Joseph Tipaldo, owner of a laundry in Brooklyn (again!) was constitutionally entitled to defy a state minimum wage law and pay his laundresses whatever amount made business sense to him.