Burton Wheeler on court-packing

"First Member of the Senate to Back the President in '32—"
Burton K. Wheeler
U. S. Senator, Montana
Chicago Forum, Mar. 10, 1937

I agree with my friend Landis that the Court has decided many cases contrary to his wishes and contrary to my views. I am one of those who has almost universally agreed with the minority views of the Court. Assuming that anything Mr. Landis says there is a wrong way and a right way to correct those evils. The wrong way is to pack the Court—the right way is to amend the Constitution.

The President of the United States, speaking at the victory dinner on March 4, made the startling statement that in his opinion a great national crisis exists—a crisis even more grave than that which confronted this country four years ago. The President implied that he could not insure the continuance of democratic institutions for four more years unless he was given the power to increase immediately the membership of the Supreme Court of the United States by adding six new justices and make it subservient to his will.

Crisis, power, haste, and hate, was the text from which the President preached.

We may contrast President Roosevelt's demand for haste to pack the Supreme Court in this crisis with the caution with which another President of the United States approached a real crisis in this country. Abraham Lincoln, in his first inaugural address, 76 years ago, on taking office, when the country was faced with dissolution, said:

"My countrymen, one and all, think calmly and well upon this whole subject. Nothing valuable can be lost by taking time. If there be an object to hurry any of you in hot haste to a step which you would never take deliberately, that object will be frustrated by taking time; but no good object can be frustrated by it. ... Intelligence, patriotism, Christianity, and a firm reliance on Him who has never yet forsaken this favored land, are still competent to adjust in the best way all our present difficulty."

It is in the spirit of this counsel, without hate or haste, that I address this great gathering here tonight.

As you know, the President of the United States sent a message to the Congress on February 5, l937, in which he proposed to reorganize the judiciary of the United States. Attached to this message was a bill which contained the startling proposal to add six new members to the Supreme Court of the United States. The administration then assigned as reasons for this legislation that the Court was not properly considering many of the cases which were presented to it for review; that it was behind in its work; and that the age of the Justices impaired their effectiveness and it was further implied that their age caused them to be out of steps with the liberal thought of the times.

It has been since demonstrated beyond question, that the age of the Justices had nothing to do with the question of liberalism or reaction; that the Court was not inefficient but correct in its work. Furthermore, the Solicitor General has approved of its practice of disposing of cases presented to it for review.

The President, realizing the fallacy of these arguments, made a dramatic appeal based upon what he contends to be a crisis fundamentally even more grave than that of four years ago.

The picture of poverty, sweatshops, unemployment, long hours, back-breaking work, child labor, ill health, inadequate housing, poor crops, drought, floods, the dust bowl, agricultural surpluses, strikes, industrial confusion, disorders, one-third of the population of the United States ill-housed, ill-clad, ill-nourished, was graphically painted to the American people at the $100 a plate victory dinner in the Mayflower Hotel, not by the enemies of the administration, but by the President of the United States himself.

And all this, it is implied, was because of the Supreme Court, and because six men are over 70 years of age. We are led to believe that this Court was the instrument which had stricken down all of the legislation which the Democratic Party had enacted during the last four years and which it might enact to relieve the situation in the future.

As I saw that dark picture unfold, I wondered what the President meant when I sat with him but four short months ago on the platform from which he spoke in Denver and heard him declare that the Government had "sought and found practical answers to the problems of industry, agriculture, and mining." And I am wondering now what he meant when he claimed for the Democratic Party the great gains achieved in reemployment, and later in the campaign here in Chicago, when he gave an account of the past four years, and rejoiced in the fact that busy factories were singing the song of industry; markets were humming with bustling movement, and ships and trains were running full. Everywhere he went, the President said he found a quickening of tempo, the people meeting problems with new life and new hope.

Speaking at Hartford he reported that industrial pay rolls had nearly doubled since the spring of 1933. At Worcester, he declared that in his swing around the country he had found a nation more greatly prosperous, more definitely on the highway to complete recovery than at any time in the past seven years. I traveled with him on his special train from Washington, D. C., to Denver, Colo. and back to Chicago, at his request. I was not one of the defeatists and lawyers then. I was against packing the Court then as I am now. Then there was no picture of chaos, destitution, and despair placed before the country. The theme song everywhere was "Happy days are here again."

What is it that took place between October of last year and February of this year when the President made his startling proposal to pack the Supreme Court? Between October and February, his own departments in Washington have been boasting that industrial production advanced to new seven-year-high levels; that commodity prices have continued to advance; that pay rolls were larger, and the national income was higher. The Agricultural Department has boasted that farm prices have finally achieved the goal of parity between agriculture and industry for the first time in eleven years. And when some Members of Congress tried to secure increased amounts for the W. P. A., the administration blocked such efforts, lowered the amount, and pointed to a reduction in relief rolls in doing so. Did someone misinform the President and Congress then.

That the administration sincerely believes that this is a crisis calling for precipitate and unthinking action on such a proposal cannot be maintained upon the record which the administration itself has made in the campaign and in the past months. Nor can it be maintained with candor and good faith that the present powers of the Congress and the President, under the Constitution as it is interpreted by the present members of the Supreme Court, are inadequate to continue to relieve those in need, to continue a farm program or a flood control, irrigation and reclamation program, or to protect the consumer against monopoly.

As for caring for the needs of the unemployed, as for caring for the needs of the mothers, the drought-stricken farmers, or the flood victims, bad as the President pictures the Supreme Court, it has neither vetoed nor obstructed laws to carry out these purposes. And the suggestion which the administration makes that relief may be denied by the Supreme Court is one which not even so-called defeatist lawyers will entertain. More has been spent for the needs of the unemployed and the drought-stricken farmer than has ever been spent in the history of any other nation in the world, and justly so. I was one of those who insisted long before the administration came into power that the National Government come to the rescue of the unemployed.

As for flood control and the conservation of waters for irrigation and reclamation and our drought-stricken areas, it is not necessary that the interstate-commerce clause of the Constitution be made conversant with the habits of the Ohio River or the "dust bowl" by packing the Court as suggested by the President.

The Congress of the United States has always assumed, and the courts have always upheld, the power of Congress over navigable streams and their tributaries. It is under this power that the great-Boulder Dam was built, and Congress has appropriated millions of dollars to deepen the channel of the Mississippi River for navigation and flood control. To infer that the Supreme Court may have been responsible for the appalling disasters on the Ohio is to present a ridiculous picture. If there be human responsibility for the recent disasters from floods, it lies with this and preceding administrations for failing to fully exercise the power which they already possess.

To force the Congress to action now, I feel our great President is unduly belittling the accomplishments of his own administration during the past four years.

It ill befits this administration to say that there is doubtful power to protect the consumer against monopoly.

Memories of his N. R. A., dictated in large measure by the United States Chamber of Commerce, for the express purpose of permitting industry to get out from under the provisions of the Sherman antitrust law and the Clayton Act, are too recent to be forgotten. Housewives and farmers can testify as to what protection they got from monopolistic prices under that act. Well can you thousands of small businessmen through the country remember what it was to be at the mercy of the economic royalist who not only drafted the codes but enforced them in their own self-interest. And many of you, I am sure, are not unmindful of the favoritism, the petty graft, and the corruption that was rampant in the activities of the code authorities.

The Court unanimously declared the N. R. A. to be unconstitutional—not because Congress lacked the power to regulate monopoly, but because the Court found that Congress had no right to delegate its legislative powers to private individuals to be exercised for their own selfish purposes. Few are the people in the United States who would disagree with the Supreme Court decision in that case.

As to the power of Congress to cope with the farm problem, it should be recalled that it was a former President of the United States that vetoed the McNary-Haugen bill. Both the theory and the practice under the A. A. A. of curtailing the production of food products and killing little pigs when one-third of the Nation was "ill-clad, ill-housed, and ill-nourished" as the President says, is not entirely free from criticism or improvement. That the present prices of farm products have come about largely because of the drought, no one can deny.

Let us be clear about it. I am not criticizing most of the legislation proposed by the President of the United States during the last four years. I supported most of it and led the fight for the holding-company bill.

When the President came into office, he faced a very difficult problem. It was necessary to enact emergency legislation. Congress enacted it without much, if any, consideration. Nor do I desire in any way to minimize the problems which confront us at the present time. I am in complete accord with the President in his desire to secure economic freedom for the wage earner, small businessman, and the farmer of this country. Those objectives have a reality to me which only a lifetime of hardship, struggle, and service can give. I was for them in 1920 and in 1924 at the sacrifice of party loyalty, and, if necessary, I will do it again. Real liberals charter a course that may take them outside party lines. I will be fighting for democracy with a small "d" when many of the office-holding liberals of today will desert the New Deal ship for fat jobs with economic royalists in the caves of Wall Street.

I am sure that the real liberals as distinguished from the office-holding liberals, and the real farmers as distinguished from the office-holding farmers and the real laborers as distinguished from the office-holding laborers do not want to see these objectives frittered away in the heat of passion.

You and I, with a sense of individual responsibility, must face these problems of unemployment, child labor, regulation of industrial disputes, wages and hours in industry, cheaper electricity, and agricultural readjustment. If this country is to survive we must solve these problems on a permanent basis.

I submit 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.

I ask those people, What assurance can the laborer or the farmer have that his problem will be solved? Six new members appointed to the Court are still members of a court which, as the President says, now has the ultimate control over the economic and political destinies of this country. They are still judges unrestricted in the exercise of their discretion as to whether or not Congress has the power to meet the needs of the people.

This proposal does not curb the usurpation of power over the political and economic life of this country. There could still be eight to seven decisions. Let us face the facts clearly and resolve the issue now.

What kind of judges could they be if they promised the President in advance that they would do his will? They may be sworn to support, maintain, and defend the Constitution, but if they are to carry out the President's wishes, or what seemed to be the needs of the time, they must owe to him an obligation superior to their oath.

In an analogy one must go back to the demand of James I upon Lord Chief Justice Coke that he decide cases in accordance with the King's dictates and for answer to Coke's historic words, "The King ought not to be under a man, but he ought to be under God and the law."

I was the first Member of the United States Senate to come out openly and espouse the nomination of Mr. Roosevelt for the presidency in 1932. I traveled thousands of miles over this country, speaking in his behalf in the presidential primaries. I was a delegate to the Chicago convention and I was one of his ardent supporters, and I spoke in many States after his nomination.

I supported him because I thought the liberal cause at that time could be best served by his election. Other liberals, such as Johnson of California, Norris of Nebraska, and the late Senator Cutting of New Mexico, and many others, Democrats, Republicans, and Farmer-Laborites alike, supported him in the election of 1932, and many of them supported him in his last campaign. He had nothing we wanted; nothing we would take. Most of us supported him, not because we thought that "happy days were here again," not because we wanted something, but because we didn't want to turn the Government back to the reactionary elements controlling the Republican Party at that time, and we are not going to do it now. Now, when many of these same liberals, who agree with his aims, disagree to his packing of the Court because we believe it is fundamentally unsound, undemocratic, and reactionary in principle, the President says, "The tumult and the shouting have broken forth anew—and from substantially the same elements of opposition."

The same elements of opposition! Johnson of California, Norris of Nebraska, Nye and Frazier of North Dakota, Borah of Idaho, Van Nuys of Indiana, Walsh of Massachusetts, Clark of Missouri, Donahey of Ohio, and that vast host of southern Democrats who have supported the President whole-heartedly. We are classed as "the same elements of opposition" as opposed him in the last campaign. The people of this country will not believe, as the President suggests, that these men are insincere in their desire to improve social and economic conditions in this country. The people will believe, in my opinion, that the President has made a false start and taken a most dangerous method of righting the wrongs that may exist. They will question that the end justifies such means. Can these men be dismissed as "defeatist lawyers"? And what of the equally sincere and courageous group in the House who have been compelled to voice their dissent? They were loyal and splendid Democrats in the President's eye five weeks ago. Are they unworthy of confidence now?

And let us take a look at the press of the country. The most liberal group of papers in the whole length and breadth of the land is the Scripps-Howard chain. They have been the great bulwark of the President's support. Even against their own judgment in specific instances, they have followed his leadership. But now they refuse to go on this present course. Can they be classified as "creatures of entrenched greed"? The New York Times has been an accepted Presidential spokesman on more occasions than one. Is it to be condemned because it parts company with him on this issue now?

And what of such liberal journals as the Cleveland Plain-Dealer, the Baltimore Sun, the St. Louis Post-Dispatch, and the Omaha World-Herald. Now let us turn to the South. The Times-Dispatch and the News-Leader of Richmond, the Charlotte Observer, the Columbia State, the Charleston News and Courier, the Atlanta Constitution, the Miami Herald, the Birmingham Age-Herald, the Montgomery Advertiser, the Little Rock Gazette, the New Orleans Picayune, the Dallas News-these and a horde of other Democratic papers south of the Mason-Dixon line are fighting for the preservation of the American system of government, even though they are compelled to oppose a Democratic President.

The point of disagreement in this controversy isn't between those who want social and economic reform and those who do not want it. It is on the method of getting reform and whether that reform will be sham or of a real and permanent character. People who are genuinely concerned about a true, democratic form of Government object to a change which will make all three branches of the Government subservient to one man. I opposed that in the Harding, Coolidge, and Hoover administrations and I am opposed to it now.

Let us examine what it is that the President says we cannot take time to do now.

Senator Bone of Washington and I have introduced a constitutional amendment providing that in the event the Supreme Court declares a law of Congress unconstitutional that after an election intervening, the Congress may repass that legislation and it will become law notwithstanding the Court's decision—in other words, we desire to give the people of this country a chance to have the final say, through their elected representatives, as to what legislation they, in their wisdom, desire. There can be no more democratic way than this. The people, not the President, not the courts, should have the final say in matters which vitally affect their economic welfare.

The Constitution, I repeat, belongs, not to the President, not to the Congress, not to the Court, but to the people. You and only you shall say when and how it shall be amended.

Other Senators and Representatives have introduced proposals to amend the Constitution for the purpose of giving to the Federal Government increased power to meet the needs of the times, and the President's only answer to these suggestions has been that it will take too long.

I think I know the House of Representatives well enough and I know that I speak for the Senate, Democrats and Republicans alike, when I say to you that we will give the President the votes to submit a constitutional amendment to the people of this country, and we will do it now, if he will say the word. Every Senator will submerge his individual views on particular amendments and adopt any reasonable proposal the President will submit. We will not permit the Court to be packed. If the President wants real reform—not sham reform—we will give it to him now. And I challenge the administration to submit to the Congress any reasonable constitutional amendment. We have no pride of authorship. We will take any reasonable amendment the administration will submit. Nor need there be delay in ratification of such an amendment by the people.

Under article 5 of the Constitution, Congress may provide for the calling of conventions. It may specify the time in which those conventions must be called. It may provide the manner in which the delegates to those conventions may be elected. The elections may be conducted by Federal election officers under congressional regulations. It may use so much of the State election machinery as may be desirable. If the people of a State favor the amendment, they will elect delegates pledged to vote for it. If they oppose it, they will elect delegates pledged to vote against it. Each convention will, therefore, contain only delegates for or against ratification, and the work of the convention will be perfunctory. Thus it is not a question of years; but if the administration so desires, it can be a question of months.

This is the issue upon which liberals and progressive differ with the President of the United States—a doubtful expedient or real reform.

The very platform adopted by the Democratic Convention in Philadelphia and dictated by the President of the United States recognized this fact; and at no time or place in the campaign was any statement made by any responsible Democrat that new Justices would be added to the Supreme Court with a view of modifying the Constitution of the United States.

You people, when discussing the Constitution of the United States and the Supreme Court, should remember that there was written into that great document which belongs to you, certain specific grants of individual rights—religious freedom, trial by a jury of peers, free speech, free press, and free assembly. You people inherited these individual rights from your forefathers. Unlike them you did not have to spill your blood to win them. And their unchallenged existence you today take as a matter of course. They are to us of commonplace importance, and yet, in much of the world, and in lands that have known so-called civilization for many centuries, where universities have had continued existence for hundreds of years, where human knowledge has gone far and human progress has been great, these inherent human rights are being denied. I think of one great people today whose property, whose liberty, whose life, and whose word of God all exist only in the pleasure of one who sits in the driver's seat and makes the three subservient branches of the Government bow to his will. And he does it in the name of modern democracy.

Create now a political court to echo the ideas of the Executive and you have created a weapon. A weapon which, in the hands of another President in times of war or other hysteria, could well be an instrument of destruction. A weapon that can cut down those guaranties of liberty written into your great document by the blood of your forefathers and that can extinguish your right of liberty, of speech, of thought, of action, and of religion. A weapon whose use is only dictated by the conscience of the wielder.

I say that the women of America will never stand for it, now or in the future. The farmers of America will not stand for it, now or in the future. The great rank and file of the workers of America will never stand for it, now or in the future. And the Congress of the United States of America will never stand for it, now or in the future.

We always have time to do right-we always have time to protect the rights and liberties of the people. We have time now to make a real and lasting reform in a constitutional way.

In closing, let me quote from one of the greatest living Americans, Mr. Justice Brandeis, who said, "Experience should teach us to be most on guard to protect our liberty when purposes of government are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded persons. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning, but without understanding."