By Jeff Shesol, W.W. Norton & Co. Inc. New York, 644 pages, $27.95
Time has dealt kindly with the memory of our 32nd president. Politicians of both parties now express admiration, sometimes reverence for Franklin D. Roosevelt. Yet in 12 years in office, Roosevelt repeatedly generated bitter controversy. In “Supreme Power,” Jeff Shesol, a recognized historian, tells of perhaps the severest instance of that controversy, the battle over the president’s unsuccessful effort in 1937 to enlarge (“pack,” opponents and some supporters put it) the U.S. Supreme Court.
Not that adjusting the size of the Court was a new idea. With the Constitution silent on the composition of the country’s highest tribunal, Congress, acting out of various motives, had time and again added or eliminated seats. What inflamed the fight over the 1937 effort was its connection with Roosevelt’s New Deal. The innovation of large-scale governmental intervention in the economy won the decisive approval of voters during what today is called the Great Depression. The concept was, however, anathema to many influential politicians, by no means just Republicans, and to a substantial segment of the federal judiciary. With the help of a press largely hostile to the administration, the opposition succeeded in presenting Roosevelt’s proposal as an assault on the Constitution.
Early in the book the author relates how, in the 19th century, the 14th Amendment, enacted to grant citizenship to freed slaves, was construed to include substantive due process, a protection to the property of railroads and industrial corporations. The economics of Adam Smith and Alfred Marshall and the harsh, Darwinian philosophy of Herbert Spencer bolstered this construction. Thus the Supreme Court of the early 1930s included a bloc of four conservative justices, Butler, Sutherland, Van Devanter and McReynolds. They saw the Constitution as calling for hands off the economy and letting the business cycle run its course.
Opposing this bloc were Chief Justice Charles Evans Hughes and Associate Justices Holmes, Brandeis, Stone and Cardozo. They read the Constitution as an instrument adaptable to changing times. Owen J. Roberts, the ninth member of the Court, sided sometimes with the one faction, sometimes with the other.
In detail that this reviewer, for one, never found tedious, the author tells how our highest tribunal, soon nicknamed the “nine old men,” set about strangling the New Deal. Measure after measure met its doom, usually by a divided vote, but in the case of the National Recovery Act, the most sweeping of the reform statutes, unanimously.
Thus the country, in the grip of the worst economic crisis of its history, had a democratically elected government that judicial holdovers appointed by previous administrations were rendering helpless to take remedial action. The book makes it plain why Roosevelt and those near to him concluded that something had to be done.
Many courses of action were considered. They included a variety of possible amendments to the Constitution. Then, in November, 1936, Roosevelt won re-election by a record-breaking landslide. He lost only two states in the electoral college. Not until Feb. 5, 1937, however, did the president spring his chosen proposal. “Spring” is the right word. Discussing reasons for the failure of the plan, the author cites Roosevelt’s “crucial initial failure to consult congressional leaders” in advance.
Also weighing heavily against the measure from the start was a misrepresentation of its purpose. The president presented it not as a way to liberalize the Court but as a means of relieving congestion in its docket. Opponents had no difficulty refuting that argument. After the measure had gone down to defeat, Sam Rosenman, a close advisor to Roosevelt, said, “[T]he bill started with a black eye because it was based on a phony reason.”
Roosevelt’s bill would have permitted him to appoint an additional justice to the Supreme Court, up to a maximum of six, for each sitting justice who failed to retire at age 70. The vehemence of the opposition to the plan, whose true motivation everyone perceived, gives insight into the animosity that Roosevelt had engendered and the inherent American suspicion of what passes elsewhere in the world as economic reform. Frank Gannet, head of the newspaper chain that bore his name, called the measure “a step toward absolutism and complete dictatorial power.” Senator Carter Glass of Virginia called the proposal “utterly destitute of moral sensibility” and intended “to rape the Supreme Court.”
Events unrelated to the merits of the bill contributed to its defeat. First came “the shift in time that saved nine.” Justice Roberts deserted the conservative wing of the Court to form a majority that upheld the National Labor Relations Act and other New Deal enactments. Then, on July 14, 1937, Senate Majority Leader Joseph T. Robinson, a leader in the fight for the bill, suddenly died. The end came on July 22. The Senate, by a vote of 70 to 20, “recommitted” the bill to its Judiciary Committee.
In a sense, Roosevelt got his way in the long run. By 1942, seven of the nine members of the Court were his appointees. The New Deal in the meantime, however, had for practical purposes become a dead issue, as the author explains with his usual exhaustive precision.
The author breathes life into all this and much more by humanizing every aspect of his account. His book is replete with phone and face-to-face conversations, personal correspondence, often with family members, and similar off-the-record material. Encountering flesh-and-blood human beings, with their strengths and weaknesses, their principles and prejudices, on every page sustains the reader’s interest far better than would a mere recital of historical documents and parliamentary proceedings.
History enthusiasts will surely find “Supreme Power” the kind of reading they most enjoy. It seems predictable also that many others, especially lawyers, will find the book enjoyable and instructive.
Walter Barthold has retired from the practice of law in New York City.