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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The real heroes of Solomon's book, however, are Sen. Burton K. Wheeler, an otherwise ultra-progressive Democrat from Montana who believed (as he told a radio audience) that reshaping the Supreme Court to make it "subservient" to the president's wishes was fundamentally undemocratic, and smacked of the despotism of Hitler and Stalin; and Owen Roberts, appointed to the Court by Herbert Hoover in 1930. Roberts, an unpretentious Republican from Pennsylvania who had won fame as the chief prosecutor in the Teapot Dome scandals, had mostly voted with the Four Horsemen in the New Deal and related cases.

For example, Roberts, along with Hughes, had joined the Horsemen in a 6-3 vote in 1936 in U.S. v. Butler to invalidate the AAA on the grounds that its tax on food processors to subsidize farmers violated the Constitution's Tenth Amendment, which limits the power of Congress to legislate in areas not specifically set forth elsewhere in the Constitution. Roberts had also joined the Horsemen to invalidate New York's minimum wage law in the Tipaldo case, another 5-4 ruling.

Nonetheless, in a decision announced on March 29, 1937, more than a month after Roosevelt announced his court-packing plan, Roberts suddenly moved to the other side, throwing his weight against the Horsemen to form a slim majority with the liberals and Hughes to uphold a Washington state minimum wage law in the case of West Coast Hotel Co. v. Parrish. Roberts wrote no opinion in Parrish, and he destroyed his personal papers before his death, so no one knows exactly why he changed his constitutional position. The press assumed that expediency was his main motive--warding off the planned expansion--and his Parrish vote became known as "the switch in time that saved nine."

In fact, Roberts appeared to have formulated his stance as early as December 1936, and in 1934 he had voted with Hughes and the liberals to uphold a New Deal-style price-fixing system for milk in Nebbia v. New York. Still, his apparent philosophical shift, coupled with the retirement of Van Devanter in May 1937, to be replaced by the staunch New Dealer Senator Hugo Black of Alabama, removed much of the sense of urgency from Roosevelt's crusade.

Meanwhile, across the street at the Capitol, Burton Wheeler cobbled together an alliance of Republicans, led by Idaho's William Borah, and conservative Democrats such as Maryland's Millard Tydings and Virginia's Carter Glass, to eviscerate Roosevelt's plan on the Senate floor. (A vengeful FDR tried to purge the Senate of his Democratic court-packing opponents in the 1938 elections, but his efforts failed dismally, and Republicans ended up gaining seats in both houses.)

In Solomon's view, the battle over Roosevelt's efforts to remold the Supreme Court was a crucial battle to preserve the Constitution--that is, to preserve the Constitution's tripartite structure of federal governance that enables the American system of checks and balances to work. Had FDR's political will prevailed, the Supreme Court would have been irretrievably politicized and weakened: "But by facing down a powerful president and defeating him," Solomon writes, "the Court not only preserved its independence but also underscored and reinforced it, in the public eye as well as its own."

The strongest feature of Solomon's study is his ability to make the constitutional wrangling come alive as a battle involving real, three-dimensional people--Franklin Roosevelt, Burton Wheeler, Owen Roberts--with vivid personalities whose contours he deftly delineates. He has a gift for you-were-there details: the sweltering Washington summer that drove residents from their oven-like homes after dark to sleep outdoors alongside the Potomac; the fact that at least three of the nine justices lived in rental apartments, unimaginable today; the sumptuous, old-fashioned White House food--roast pheasant, terrapin soup--with which FDR plied potential allies; the exuberant popular culture of the mid-1930s, featuring the likes of Fred Astaire, Jack Benny, Frank Capra, Busby Berkeley, and the first-magnitude lights of the All-Star Game of 1937. Even Seabiscuit makes a brief appearance here.

Where FDR v. The Constitution lists badly is in its failure to take any of the constitutional arguments seriously in the battles between Court liberals and conservatives over the meaning of the Commerce Clause, substantive due process, and the like. In Solomon's view, those battles were strictly ideological and sentimental: The three liberals were "compassionate" figures who believed in an expansive reading of the Constitution, which might not have been what its drafters had in mind but which comported with the "realities of modern life" and accorded federal and state governments "the power to ease America's suffering" and "help people who could not compete in the marketplace on their own."

By contrast, the hard-line Four Horsemen, according to Solomon, believed in dog-eat-dog Social Darwinism (Charles Darwin, of all people, comes in for a real drubbing in this book) and in laissez-faire capitalism, which they deemed to have been "woven" into the Constitution. Roberts might have switched sides, Solomon believes, after reading about a fellow Pennsylvanian, an indebted farmer facing eviction, who seized a shotgun and killed a neighbor when his farm might have been saved by the AAA that Roberts had voted to invalidate.

I won't go into the debatable economic premises on which Solomon's black-and-white categorization rests--such as whether the New Deal's creation of a comprehensive regime of artificially high prices mitigated the Depression or prolonged it; or whether it's better to work for sub-minimum wages or stand in a breadline. Nor will I dwell on what Amity Shlaes points out in The Forgotten Man: that the victims of New Deal legislation were often ethnic small businessmen, such as the Schechters, Joseph Tipaldo, and Leo Nebbia, an Italian-American grocer in upstate New York who ran afoul of the state's dairy-pricing laws by throwing in a free loaf of bread with two quarts of milk to lure customers.

My point is that the Four Horsemen of the Supreme Court were not simply cartoon holdovers from horse-and-buggy days, but jurists who believed that the Constitution's drafters sought to enshrine a comprehensive notion of personal freedom, which is what they believed the drafters meant when they used such words as "liberty," "property," and "due process," and stated explicitly that Congress's powers, regarding interstate commerce and other matters, were limited to those powers enumerated in the Constitution itself.

Liberty, in the view of the Horsemen, included the liberty to make contracts and to enter into economic arrangements that some might find disadvantageous. The idea of substantive due process is no more unwarranted as an interpretation of the Constitution than Roe v. Wade, in which a later generation of justices found a right to nearly unrestricted abortion somewhere in the 14th Amendment.

The Court's four conservatives were not without personal flaws. McReynolds, for example, was a notorious anti-Semite who refused to speak to either Brandeis or Cardozo--although he entertained the Jewish department-store magnate Julius Garfinckel in his home, and voted in favor of the Schechters along with the rest of the justices. Another of the Horsemen, Butler, had been the lone dissenter in Buck v. Bell (1927), which upheld the compulsory sterilization of a mentally retarded woman on the ground that, as Justice Holmes put it, "three generations of imbeciles are enough."

In any event, although Roosevelt lost the battle for a Supreme Court more to his liking, he won the war. By 1941 all four Horsemen were either retired or dead, replaced by FDR with liberals who, in turn, forged a majority that not only upheld expansive government regulation at all levels but overturned dozens of earlier decisions. The Court's insouciance about precedent hurtled Roberts (and Hughes as well) back into the conservative camp. After writing dissent after dissent taking issue with what he believed was the Court's indulgence in a purely results-oriented jurisprudence, and also feeling increasingly isolated--Black, in particular, became a personal enemy--Roberts resigned in 1945.

Ironically, as the Court grew increasingly liberal, substantive due process made a backdoor comeback, although with a different focus. The Supreme Court began to use the 14th Amendment as a vehicle for finding substantive rights, mentioned nowhere in the written Constitution, not only to abortion but to contraceptives, gay sex, and physician-assisted death. The Supreme Court preserved its independence, but to ends that no one during the 1930s could have anticipated.

FDR v. The Constitution may substitute sentiment for legal analysis here and there, but it also provides an informative and highly readable way to learn how this dramatic transformation in constitutional thinking came about.

Charlotte Allen is a contributing editor to the Manhattan Institute's Minding the Campus website.