Felix Frankfurter Letter to Roosevelt, 2/7/37

    Cambridge, Mass., Sunday
    [February 7, 1937]

    Dear Frank:

    And now you have blown me off the top of Vesuvius where you sat me some weeks ago. Yes, you "shocked" me by the deftness of the general scheme for dealing with the mandate for national action which you received three times, in '32 and '34 and '36, and each time with increasing emphasis. You "shocked" me no less by the dramatic, untarnished secrecy with which you kept your scheme until you took the whole nation into your confidence. Dramatically and artistically you did "shock" me. But beyond that—well, the momentum of a long series of decisions not defensible in the realm of reason nor justified by settled principles of Constitutional interpretation had convinced me, as they had convinced you, that means had to be found to save the Constitution from the Court, and the Court from itself. No disinterested student of our Constitutional system and of the needs of our society could view with complacency the impasse created by a blind and stubborn majority of the Court. There was no perfect easy way out. Risks had to be taken—for you had to consider the costs and limitations of possible choices of action, as well as the risks of non-action.

    And so it was clear that some major operation was necessary. Any major action to the body politic, no less than to the body physical, involves some shock. But I have, as you know, deep faith in your instinct to make the wise choice—the choice that will carry intact the motley aggregation that constitutes the progressive army toward the goal of present-day needs, and that will, at the same time, maintain all that is good in the traditional democratic process.

    With all good wishes,

    Ever faithfully yours,

    Roosevelt Letter to Frankfurter, 2/9/37
    Franklin D. Roosevelt

    The White House
    February 9, 1937

    Dear Felix:

  1. I am awfully glad to have your Sunday letter and to know that although shocked you have survived; but most important of all that you understand the causes and the motives.
  2. As a matter of fact, the decision was arrived at by a process of elimination. The amendment process, as you will remember, was fought bitterly by the conservative element through the past four years—the only concession being a few words from Landon which meant absolutely nothing. It is interesting to note that these same people this week are demanding the amendment method in place of any other.
  3. The reason for the elimination of the amendment process was to me entirely sufficient: to get two-thirds of both Houses of this session to agree on the language of an amendment which would cover all of the social and economic legislation, but at the same time not go too far, would have been most difficult. In fact, the chance of a two-thirds vote in this session was about fifty-fifty.
  4. Supposing such an amendment had passed at the close of this session, every state legislature would have adjourned for the year. In 1938, only about one-third of the legislatures meet and because of the Congressional elections in 1938 the issue would, in all probability, be delayed in enough states to make ratification in 1938 impossible.
  5. That brings us to 1939. The chances are that quite aside from this issue an unwieldy Democratic majority in both Houses will be slightly reduced as a result of the 1938 elections. Any such reduction would be used as an argument against ratification thus, in all probability, leaving the amendment unratified up to and through the 1940 national election.
  6. If I were in private practice and without a conscience, I would gladly undertake for a drawing account of fifteen or twenty million dollars (easy enough to raise) to guarantee that an amendment would not be ratified prior to the 1940 elections. In other words, I think I could withhold ratification in thirteen states and I think you will agree with my judgment on this.
  7. It is my honest belief that the Nation cannot wait until 1941 or 1942 to obtain effective social and economic national legislation to bring it abreast of the times, avoid serious labor troubles, maintain farm prices, raise the purchasing power of the "one-third of the population that is ill-housed, ill-clad and ill-nourished."
  8. The return of prosperity, at this moment, may blunt our senses but under it all I am very certain that the maintenance of constitutional government in this Nation still depends on action—but it is the same old story of the failure of those who have property to realize that I am the best friend the profit system ever had, even though I add my denunciation of unconscionable profits.
  9. After this elimination, I searched through all the other proposals for legislative action and almost at once came face to face with the problem not of the Supreme Court but of the whole Federal Judiciary. From this it was a logical step to build up a program covering the whole of the judiciary impartially. You will realize that in this process I eliminated the suggestions of compulsory retirement, seven-to-two decisions, etc. as being, in all probability, unconstitutional per se.
  10. Do you want to help me? Probably, I shall in the course of a normal fireside chat, in a few weeks, dwell on the reorganization of the judiciary, at the same time that I speak of the reorganization of the executive and of flood relief, etc. Do you want to send me a little elaboration of what you have mentioned in your letter and anything else you think I could use in a talk to the people themselves?

    As ever yours,