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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A slew of such death-dealing decisions, leading to public outcry and the disbanding of some of the alphabet-soup federal agencies set up to enforce the New Deal, infuriated Roosevelt. The court-packing scheme, concocted with the help of Attorney General Homer Cummings, was designed to neutralize the power of the Court's conservative bloc, four justices--Willis Van Devanter, James McReynolds, George Sutherland, and Pierce Butler--who had been appointed years earlier by Presidents Taft, Wilson, and Harding. The four typically voted as a unit, together with whatever moderates they could persuade to their side.

Under FDR's court-packing bill, for every Supreme Court justice who had not retired by age 70-and-a-half, the president could appoint an additional, younger justice up to a maximum number of 6, swelling the size of the Court from 9 jurists to a potential 15. (As it happened, all Four Horsemen were over 70 in early 1937: Van Devanter, the eldest, was 77.)

The ostensible reasons for Roosevelt's proposal were to relieve the Supreme Court's crowded docket that resulted in its rejecting 87 percent of appeals for review, and also, as FDR repeatedly hinted to a press that he assiduously flattered, to counteract the deleterious effect of old age upon the judicial mind. Elderly justices were not only set in their ways, because they hailed from another era, but positively senile--"tenacious of the appearance of adequacy," as the president explained to much laughter at a press conference. The real reasons were obvious to everyone.

Roosevelt's bill should have been a shoo-in. He had a compliant Democratic Congress, including a formidable arm-twister, Senate majority leader Joseph Robinson of Arkansas, to whom he had all but promised the next Court seat that fell vacant. Roose-
velt also had enormous popularity on his side (a 65 percent approval rating at the start of his second term) as well as a progressive-minded press that ridiculed, in editorial cartoons and elsewhere, the Supreme Court's "nine old men" as bewhiskered pettifoggers who snoozed on the bench when not quibbling pointlessly. Roosevelt could also claim the support of the Constitution, which explicitly leaves it to Congress to set the number of justices, and the lawmakers had altered the size of the High Court eight times before fixing the number at nine during the presidency of Ulysses S. Grant.

Instead, as the spring of 1937 over-ripened into Washington's intolerable summer heat, and debate dragged on thanks to the efforts of recalcitrant senators whom Robinson could not cajole and Roosevelt could not cow, the bill's progress faltered, public support for it waned, and it died an ignominious death in July, when the Senate voted 70-20 to send it back to committee, whence it emerged as an innocuous judicial overhaul that left the number of justices intact. It had not helped that Robinson, who suffered from chronic heart trouble, had collapsed and died in his stifling Capitol Hill apartment the week before.

FDR v. The Constitution, meticulously researched and entertainingly narrated by Burt Solomon, a longtime Washingtonian himself and veteran writer for National Journal, explains how this debacle, Franklin Roosevelt's most humiliating defeat during all of his four terms in office, came about.

Solomon focuses on the tactical mistakes that Roosevelt made. Chief among them was his decision to spring the scheme on Congress as a secretly drafted fait accompli, which undoubtedly ruffled many feathers on Capitol Hill. The cocksure FDR also resisted all offers of compromise, such as enlarging the Court by two justices instead of six. Even worse, his cracks to the press about mental impairment among septuagenarian justices alienated his most reliably liberal ally on the Court, who had voted to uphold nearly all of his New Deal legislation: Louis Brandeis, who also happened to be, at age 80, the oldest of the nine. (The chief justice, Charles Evans Hughes, a Republican moderate who often voted with the liberals, was 74, and the others were in their sixties.)

Brandeis was incensed. A friend and protégé of Oliver Wendell Holmes, he considered himself to have the sharpest mind among his colleagues, including his two fellow liberals, Harlan Fiske Stone and Benjamin Cardozo. Brandeis, working through his wife Alice, who had social connections to Washington Democrats, launched a behind-the-scenes lobbying effort to derail Roosevelt's plan.