Evan Friss

Professor Johnson

March, 13, 2005

Kevin J. McMahon.  Reconsidering Roosevelt on Race: How the Presidency Paved the Road to Brown.  Chicago: University of Chicago Press, 2004.

Kevin McMahon’s recent book, Reconsidering Roosevelt on Race, is a product of his search for an alternate explanation of the Supreme Court’s landmark decision in Brown v. Board of Education (1954).  Leading up to the Brown decision, which overturned the “separate but equal” doctrine established by Plessy v. Ferguson (1896), the Supreme Court, in the 1940s and early 1950s, experienced a period of liberalization theretofore unknown.  Principally, McMahon contended that these activist judicial decisions, culminating in Brown, stemmed from Franklin Delano Roosevelt and his administration.  While McMahon acknowledged the role of the NAACP, individual judges, and changing ideologies, he argued that Presidents “are powerful agents of constitutional change.”[1]  Roosevelt embraced a “judicial policy,” imposed it upon the court, and laid the foundation for the Supreme Court’s pro-civil rights rulings.

The first chapters of the book examine the early years of FDR’s administration and its relationship to the courts.  As is well known, the nation’s high court crimped FDR’s efforts by ruling many of his first New Deal programs unconstitutional.  Yet, during the middle of FDR’s second term, according to McMahon, the President successfully increased his power and fashioned a constitutional vision that favored a rights-centered approach.  The Wagner Act, which enabled workers to unionize and established the National Labor Relations Board, embodied FDR’s efforts by focusing on individual rights of the workers and expanding executive branch power at the expense of the judiciary by creating an executive oversight board.  McMahon asserted that the success of the Wagner Act (in that it was constitutionally upheld by the Supreme Court) resulted from the rise of legal realism.  As legal realism (the philosophy that law evolves and should not be exclusively based on legal texts) began to eclipse legal formalism (the philosophy that favors a strict interpretation of legal texts) the stage was set for the emergence of a rights-based liberal ideology emanating from both the judiciary and the executive branch.

Much of McMahon’s study seeks to re-interpret commonly understood events.  For example, the author dismissed the argument that FDR’s court packing plan was nothing more than an attempt to secure the constitutionality of his New Deal programs.  Instead, he posited that the court packing plan was an attempt to “replace a Supreme Court that had consistently restricted liberty with one that would accede to the desires of an executive devoted to enhancing statutory rights and individual liberties” and to ensure that the Court would embrace legal realism.[2]  He also endowed Roosevelt with more intellect and power than other historians have credited him.  Although, at times, it is unclear whether McMahon is referring to FDR or rather to his administration in a general sense, the author clearly sees FDR as a primary force, if not the major force, in constituting a judicial policy.  Moreover, while some have lambasted FDR for not championing progressive legislation (in terms of race), McMahon rationalized Roosevelt’s poor record on rights-based or racially-sensitive legislation as political maneuvering rather than genuine intent.  While not wanting to offend Southern Democrats, Roosevelt channeled his efforts to the Justice Department and federal courts rather than to Congress.  So, as Roosevelt remained mum on anti-lynching legislation, his Justice Department, with a new vigor, pursued lynching cases, while his court appointees handed down favorable rulings (not so favorable for the defendants).  Although McMahon belabored the fact that FDR shaped the judicial atmosphere in broad ways, FDR’s Supreme Court nominees, most of whom could be described as legal realist progressives, nevertheless carried forth the ideals of FDR’s administration for the next decade.

The book concludes with a brief discussion of the Truman and Eisenhower administration.  The precedent of activism set by the Roosevelt Justice Department continued, McMahon argued, although Truman’s proceeded with less force and success.  In this section, the author tried to bridge the gap between the two endpoints of his thesis-driven model.  Yet, McMahon’s analysis of the period between Roosevelt and Brown remains somewhat nebulous.  Curiously, he cited that “Truman positively influenced the Court’s development of civil rights law…however, his choices to fill two high bench vacancies did not.”  If Truman was committed to civil rights law why did he select relatively conservative judges?  One also wonders if, in fact, the Brown decision was the culmination of rights-centered liberalism, legal realism, and FDR’s tireless efforts, why, only one year later in Brown II, the court circumscribed the Brown ruling by allowing desegregation efforts to proceed “with all deliberate speed” and by enabling local authorities (often hostile to desegregation) to implement and oversee the desegregation of schools.  The question is broached but not sufficiently answered.  Nonetheless, McMahon’s thesis is unique and cogently developed.  Indeed, he makes us re-think the President’s roles in shaping constitutional law, which clearly goes well beyond appointing judges.