Pack It Up, Pack It In

ED: Earlier, we heard about the constitutional drama over the failed nomination of Judge Robert Bork. 50 years earlier, President Franklin Roosevelt caused a full-blown constitutional crisis with his failed attempt to add six more justices to the court.

This is in 1937. Let me give you some background. After his election in 1932, President Roosevelt and Congress passed an ambitious array of federal programs designed to pull the economy out of a deep depression. But FDR’s New Deal encountered a major roadblock, the Supreme Court.

A majority of justices, standing on decades of conservative precedent, struck down many of his landmark programs as unconstitutional. This standoff between the president and the high court continued throughout Roosevelt’s first term.

JEFF SHESOL: Both sides saw this as an existential crisis, with the stakes very possibly being the survival of democracy.

ED: This is writer Jeff Shesol. He says that Roosevelt feared that if his New Deal programs weren’t enacted, the economy would crater even more. The ensuing chaos would create conditions ripe for dictatorship, as in Germany and Spain and Italy.

JEFF SHESOL: On the other side, conservatives on the Supreme Court and conservatives in the country generally felt that Roosevelt was a dictator. They felt that the New Deal was the greatest consolidation of power in the hands of a president or in the hands of the federal government that anyone had ever seen and a total violation of the Constitution.

ED: This standoff came to a head in early 1937, right after Roosevelt’s reelection to a second term. The president announced, without consulting Congress, that he’d come up with a solution to his Supreme Court conundrum.

JEFF SHESOL: The simple and bottom-line fact for Roosevelt was this– he did not believe that the New Deal and the Constitution were in conflict. So the problem wasn’t the Constitution. The problem was, as they were known at the time, the nine old men on the Supreme Court. And so he had quietly come around to the idea that the easiest and most obviously constitutional thing to do was to increase the number of justices on the Supreme Court from nine to 15, which would give him six appointments overnight, and it would change the balance on the Supreme Court. Problem over.

ED: Actually, a problem not over. Now FDR’s plan was constitutional, since the Constitution doesn’t specify the size of the court. But Roosevelt was about to encounter a far more profound problem.

JEFF SHESOL: When Roosevelt proposed his court-packing plan, all hell broke loose in the country. Roosevelt didn’t simply say, let’s add six justices.

FRANKLIN ROOSEVELT: What is my proposal?

ED: Here’s Roosevelt explaining his court-packing plan.

FRANKLIN ROOSEVELT: It is simply this. Whenever a judge or justice of any federal court has reached the age of 70, a new member should be appointed by the president then in office, with the approval, as required by the Constitution, of the Senate of the United States.

JEFF SHESOL: Roosevelt had wrapped this idea in a kind of false justification that this was all about making the Court more efficient.

FRANKLIN ROOSEVELT: By bringing into the judicial system a steady and continuing stream of new and younger blood, I hope, first, to make the administration of all federal justice speedier and therefore less costly.

JEFF SHESOL: Everybody understood how old the Supreme Court justices were. And so Roosevelt suggested that they were falling behind in their work, which was untrue and unkind. And this was the rationale. And it was so transparent in its purpose that the fact that Roosevelt was being disingenuous led to a lot of suspicion about his motives.

ED: And I just want to underscore that Roosevelt had just won a historic landslide election, had huge majorities in Congress. So how did Congress react?

JEFF SHESOL: Congress reacted with horror when it learned of the court-packing plan. Now, there were a wide range of reasons why Congress was horrified. But to put it in the simplest terms, the conservatives in Congress were horrified that if Roosevelt did, indeed, get to appoint six new justices overnight that he would have, in their words, complete control of the federal government.

There were a lot of liberal opponents to the court-packing plan. And some of them were simply unhappy to have been left out of the discussion. And others really felt that this was a politicization of the Supreme Court. But to go ahead and say, I don’t like the decisions, and therefore we’re going to increase the number of justices and change the way the Supreme Court decides, that was several bridges too far for a lot of liberals and progressives in the Congress and in the country.

SAMUEL PETTENGILL: I shall not be a party to breaking down the checks and balances of the Constitution.

FREDERICK VAN NUYS: This is more power than a good man should want or a bad man should have.

ARTHUR VANDENBERG: This is a non-partisan battle to preserve an independent Supreme Count.

ED: Those were the voices of Democratic Representative Samuel B. Pettengill, Democratic Senator Frederick Van Nuys, and Republican Senator Arthur Vandenberg. Jeff, they sound dead set against Roosevelt’s plan. Tell me how this all worked out.

JEFF SHESOL: There was total political chaos. Nothing else happened in Washington, except that they argued about this court-packing plan. The New Deal was shut down. Virtually every other function of government was consumed by this argument and what was going to happen with this plan. And then in the most dramatic development of this entire period of time came what’s called the switch in time that saved nine.

And that was in April and May 1937. The Supreme Court actually flipped on two important cases. One was a state minimum wage case, where it reversed the position that it had taken just a year before. And the other was that it upheld Social Security, which nobody expected. And at this point, it really seemed that there was no reason to pack the Court at all.

The Court, by switching direction, by flipping and then upholding New Deal programs had saved itself. But Roosevelt was stuck at this point. What had begun as a battle between himself and the Court was now a battle between himself and the Congress. And he absolutely refused to back down.

ED: And did Congress give him his comeuppance?

JEFF SHESOL: Congress gave him his comeuppance. And they tried. The Southern Democrats, the conservative Democrats who were loyal to him and loyal to the New Deal, even if they didn’t love it, they came to him and they said, Mr. President, please be reasonable. This is in June of 1937. They said, you can’t get all six justices. But we will give you four. And if you’ll agree to that, you can have a court not of nine but of 13. And you’ll have that majority that you want.

But Roosevelt absolutely refused to compromise. He did not want to be seen as giving in. And his refusal to compromise doomed the plan completely. And so in July of 1937, they shot it down. And it really poisoned the well for the rest of Roosevelt’s second term.

The truth is if the global situation hadn’t changed and Roosevelt hadn’t won reelection in 1940, we would look at him probably as having a very successful first term and a second term that accomplished almost nothing.

ED: What lessons do you draw from this remarkably fascinating episode? Are there legacies, legacies for the president, legacies for the Supreme Court, and for that matter, the congressional role in mediating between the two?

JEFF SHESOL: I do think that there’s a kind of legacy which is that there is a tremendous danger for presidents in over-politicizing the Supreme Court, whether it’s the president that’s doing it through the appointments process or whether, as is the case right now with the Senate blockade of Scalia’s seat, whether it’s the Congress that’s doing it, there is a sensitivity on the part of the public to the Supreme Court being treated as just another political actor. It is, indeed, a political actor. But it is not one of the elected branches. There are absolutely important differences that need to be respected and also protected.

ED: But in your reading of history, Jeff, don’t you feel that the Supreme Court has always been pretty deeply engaged in partisan politics?

JEFF SHESOL: The Supreme Court has always been a political institution, not only because it weighs in on political questions, but because anyone who gets to the Supreme Court has been engaged in public life and has all kinds of opinions, not just about the Constitution. But I think that there is a great investment that we have, as individuals and in a country, in the idea that the Supreme Court is somehow above the fray. It’s up there on Mount Olympus.

If you go ahead and you can see that these are partisan actors with strong political opinions and then you recognize that this undemocratic branch of government gets to be the last word, in fact, on some of the weightiest matters of policy, it’s an unsettling thing. And so we recognize it, but we don’t always want to admit it to ourselves.

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ED: Jeff Shesol is a former speechwriter for President Bill Clinton and author of Supreme Power– Franklin Roosevelt Versus the Supreme Court.