Was the New Deal a Constitutional Revolution?

USHI Module; KC Johnson

"A switch in time saved the nine."  Virtually any college US History textbook will contain this quote to describe the about-face of 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.  Thus FDR's scheme to pack the Court, although in itself unsuccessful, applied enough political pressure to end the Court's hostility to the New Deal. Legal liberalism, meanwhile, took from the constitutional crisis a conviction that the Court should defer to legislative initiatives on economic questions and focus instead on using the judiciary as a bastion to protect individual rights.

But history rarely is that simple.

This module will explore the New Deal through the lens of the constitutional crises FDR's reform program produced. It seeks to address three related questions:

What was the political fallout of the President's defeat, and did the court-packing episode begin the decline of the New Deal?
What motivated FDR to introduce his "court-packing" legislation--and did this move alter the Court's attitude toward the New Deal?
What was the long-term effect of the New Deal on American constitutional law?



In most surveys, constitutional history probably will play a relatively minor role between 1877 and 1933. And so, on the surface, this topic might pose some challenges of integration. But there are several ways around this problem. First, of course, virtually every major New Deal reform--labor laws, the NRA and AAA, Social Security--was subjected to a court challenge, and so the line between political, economic, and constitutional history is very much blurred during this period. Second, judicial reform was an important theme of progressives during the 1910s and 1920s, thus providing a continuity between the 1930s and earlier times. Finally, the Court-packing scheme can be fitted into a broader discussion of presidential power during the FDR administration.



Controversy between the Court and reformers did not originate during the New Deal. Attacks on the Court from labor and agrarian organizations had percolated during the Gilded Age, when the judicial branch regularly interceded against labor unions.  But the issue did not move into the mainstream of American politics until 1905, when, in Lochner v. New York, the Court declared unconstitutional a New York law that limited the number of hours that bakers could work each week.  Using the theory of substantive due process, the Progressive Era Court molded itself into something of a super-legislature that could--and did--invalidate most state and national legislation that sought to achieve economic reform. Reformers took notice, and the issue itself became a key factor in Theodore Roosevelt's decision to challenge William Howard Taft for the 1912 Republican presidential nomination and then run on the Progressive Party ticket. TR's speech before the 1912 Progressive Party convention specifically attacked the power of the Court, in some of the strongest language used against judicial power until the civil rights era in the 1950s.

The matter 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.   (There is currently a rather sharp historiographical debate about whether using terms like liberal, moderate, and conservative is an appropriate way to describe the Justice's stances. G. Edward White raises this issue in his latest book.)  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.  A Senate debate of 168 days over the measure began.

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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, with one Democrat and one Republican assuming particularly prominent roles. 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."

Even more outspoken was Idaho Republican William Borah, who had first been elected in 1906 and was at this point the ranking minority member of the Senate Judiciary Committee.   Less enamored with the President's program--which he viewed as contradicting his anti-monopolist beliefs, Borah used the court-packing issue to make a final break from the New Deal. As did most progressives, the Idaho senator did not doubt "that the Supreme Court in its long history has erred . . . That it will err in the future, I entertain no doubt; that it has on some occasions felt the effect of mad party passions raging about it is probably true. But after all this. is admitted, when its worth is measured by the service it has rendered to the cause of human liberty, to the advancement of human happiness, and to the maintenance of a government of law rather than a government of men, that it stands among the foremost institutions of the world seems true beyond peradventure of a doubt."

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.
Historiographical Debate.   Historians debate, however, the long-term political effect of FDR's move.  For a generation, the dominant interpretation was that of James Patterson, who, in Congressional Conservatism and the New Deal, argued that the court-packing controversy was the catalyst for an alliance of Southern Democrats, conservative Republicans, and disaffected progressives that dominated the Congress for the next quarter century.  Alan Brinkley's End of Reform, however, paints the court-packing controversy as but one in a series of presidential missteps following the election of 1936.  Much more important, Brinkley contends, were differences of opinions among liberals about what the New Deal agenda should look like and a disastrous decision by FDR to follow the advice of Treasury Secretary Henry Morganthau and reduce government spending, thus triggering a recession.



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. ParrishBut 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. 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.

Historiographical Debate. As with the political effects of court-packing, so too have historians questioned the long-held assumption that, at the very least, the political pressure generated by FDR's action ensured a more pro-New Deal Court, perhaps even staving off decisions that would have held unconstitutional such pillars of the New Deal as the NLRB and Social Security.  The most vigorous recent defense of this thesis has come from William Leuchtenburg in Supreme Court Reborn, an updated collection of his essays published over the past three decades.  But this argument has come under some attack recently, especially in a fascinating book by Barry Cushman, Rethinking the New Deal Court, which sees Roberts's decision in West Coast Hotel as the culmination of a 15-year pattern in which the Court distanced itself from its pre-World War I framework regarding the relationship between government and economic regulation.  Certainly Roberts's own explanation, commissioned a decade after the event by Felix Frankfurter, bolsters Cushman's contention.



One matter long accepted by critics and detractors alike of the New Deal was that FDR's administration fundamentally changed the way Justices interpreted the Constitution and the way Americans viewed the Supreme Court. The use of substantive due process to restrain federal activity in economic policy was replaced with a view of the interstate commerce clause so expansive as to give the federal government virtually unlimited access to matters heretofore reserved for the states. Substantive due process did not die, however; instead, it formed the basis for a powerful expansion of rights-related liberalism, a movement that reached its high point in decisions such as Brown v. Board of Education, Engle v. Vitale, and, especially, Griswold v. Connecticut, a decision for which even most liberal commentators struggle to develop a coherent rationale. But, beginning in 1995, the Rehnquist Court has handed down a number of decisions reviving long dormant powers of the states and reigniting a debate over federalism.

Historiographical Debate. These judicial developments have sharpened a developing scholarly exchange over the long-term ramifications of the New Deal, now that the constitutionally mandated bounds between state and federal power that had been in place since the late 1930s have been called into question. David Kyvig, in his Bancroft Prize-winning Explicit and Authentic Acts, sees the New Deal as less important constitutionally than the Reconstruction period, largely because while Reconstruction reformers relied on the constitutional amendment process, FDR and his followers assumed that appointing like-minded Supreme Court Justices would keep their constitutional revolution in place.  Despite the "new federalism" of the Rehnquist Court, the Kyvig view remains in the minority among scholars; for a well-reasoned alternative, see the various works by Howard Ball, especially Hugo L. Black and Of Power and Right.