October 30

Owen Roberts. Until 1937, the Justice had found virtually every major New Deal program unconstitutional. Yet, in the aftermath of FDR's campaign to increase the size of the Supreme Court, Roberts suddenly reversed course, joining with Chief Justice Charles Evans Hughes and the court's three most liberal members to ensure that the Court would not strike down critical elements of the New Deal, such as the Wagner Act and the Social Security Act.

Tonight's class will look at the tumultuous events of 1937, focusing on FDR's Court-packing scheme, and then the aftereffects of FDR's defeat, which produced a crisis of American liberalism. The reading for this week, as promised, is on the long side.

The matter of whether the Supreme Court was invalidating too much congressional legislation surfaced from time to time in the 1920s, largely through the efforts of stalwart progressives such as Robert La Follette and George Norris, but the relationship between the Court and economic reform did not surface with the ferocity of the 1910s until FDR's third and fourth years in office. Then, the Court, in a series of decisions that often broke down on 5-to-4 or 6-to-3 lines, invalidated high-profile New Deal bills, such as the National Recovery Act and the Agricultural Adjustment Act. The decisions met with scorn from both FDR and from the liberal press nationally. After FDR's overwhelming reelection in 1936, the issue of handling the Supreme Court became one of his leading domestic priorities.

The Court's membership. In 1937, the nine Justices of the Supreme Court divided into three discernible blocs. A plurality of four Justices--known as the "Four Horsemen"--deemed almost all New Deal legislation unconstitutional. Meanwhile, on any contested votes, Justices Harlan Fiske Stone, Benjamin Cardozo, and Louis Brandeis could be counted on to deliver votes in FDR's favor. That breakdown left Roberts and Chief Justice Charles Evans Hughes as the Court's swing votes, with the administration needing the support of both men.

On March 9, 1937, Franklin Roosevelt, in a national radio address, announced his support for legislation that would allow the President to appoint a new Justice for every sitting Justice over the age of 70. Transparently, he cited a concern over the Court's workload rather than its ideological tenor as justification for his decision. The President received warm backing from some of his closest aides, such as Felix Frankfurter, and from liberal journals nationally. But the secrecy with which he had launched his campaign alienated traditional allies, including some of the Senate's strongest progressive voices.

In the words of political columnist Joseph Alsop, "It was easy to make fun of such public speaking as the country was treated to during the court fight. Turgid, repetitious, crammed with non-sequiturs, richly ornamented with appeals to prejudice and self-interest, couched in an English which would have made Edmund Burke weep for very horror at the fate of the language—most of it was all these things. But it gave the country a chance to think the issue over. By sheer force of its repetitions it dinned the arguments for and against into the ears of the electorate, and by so doing turned the wheels of that intricate, slow and occasionally inefficient piece of public machinery, the democratic process."

Wisely, FDR's conservative critics allowed progressives to take the lead in opposing the measure. For instance, Burton Wheeler (D-Montana) had first been elected in 1922, had served as Robert La Follette's running mate in 1924, and had been the first member of the upper chamber to back FDR in 1932. Yet the Montana senator worried that the New Deal had made two many compromises with what he deemed the economic royalists, and he viewed the court-packing bill as little more than an attempt to delay more pressing economic reforms. "I submit," Wheeler declared, "that the President's proposal leads us nowhere. It is neither a panacea of reform nor can it be justified as a temporary expedient. It postpones, delays, and renders their democratic solution more precarious. And those who sincerely believe in the objectives for which the President professes belief, and who seize upon his proposal as a method for the achievement of all those ends, are being forced into a sham battle in which there can be no victory for liberal principles."

As the Senate debate proceeded, meanwhile, public opinion showed signs of shifting against the President's plan. Conservative newspapers and speakers stepped up their attacks on FDR. In an era before public opinion polls, determining the precise nature of public sentiment is difficult, but an examination of editorial cartoons about the court-packing issues shows a dramatic shift as 1937 progressed, with an anti-Court view gradually giving way to a celebration of the Court's independence and an attack on FDR's supposedly power-grabbing ways. When the bill's chief sponsor, Arkansas senator Joseph Robinson, died of a heart attack in the midst of Senate debate, chances of the bill's passing died with him, as the President himself recognized.

Regardless of the political setback, little doubt exists that the court-packing controversy coincided with a dramatic shift in both the substance and tone of Supreme Court decisions. Compare, for instance, the 1936 U.S. v. Butler decision, which declared the AAA unconstitutional, with the "switch in time" decision of 1937, West Coast Hotel Co. v. Parrish. But was it FDR's action that triggered this shift? Even without the court-packing matter, events developed in such a way that FDR had a remarkable opportunity to shape the ideological tenor of the Court. As the McMahon reading observes, in the final eight years of his presidency, Roosevelt appointed eight men to the Supreme Court, including such liberal luminaries as Hugo Black, Felix Frankfurter, Frank Murphy, and William O. Douglas.