Conservatives date America's constitutional founding to the late 18th century. For many liberals, the "founding" that matters came in 1937 when the Supreme Court, under assault by President Franklin Roosevelt's "Court-packing" plan, stood down from its earlier decisions holding the New Deal's innovations unconstitutional. Jeff Shesol, a former speechwriter for President Bill Clinton, makes the Court-packing story suspenseful, even though FDR's plan was politically doomed almost from the moment he unveiled it.
The economic collapse of the 1930s had profound constitutional implications. The state and federal governments responded to popular demands for action in ways not easily squared with traditional constitutional understandings. It was far from clear what the Supreme Court would do when these novel initiatives were challenged. Two decisions in 1934 suggested that the Court was going to be deferential to legislatures, and flexible in its interpretations. In Home Building and Loan Association v. Blaisdell the Court, over the objections of its conservatives, sustained a Minnesota law instituting a moratorium on mortgage foreclosures, rejecting arguments that the law violated the Constitution's prohibition on the state governments' impairment of contracts. In Nebbia v. New York the Court sustained a New York law designed to stabilize the market for dairy products by imposing fines on those who sold milk below the price stipulated by statute.
After these early rulings, the Court's subsequent rejection of key legislation from Roosevelt's "100 Days" stunned the White House. On May 27, 1935—"Black Monday"—a unanimous Court struck down the National Industrial Recovery Act (NIRA). That law was an effort to halt the downward spiral in production, wages, and prices by establishing production codes for each industry, superintended by the National Recovery Administration, covering prices, minimum wages, and maximum hours. The Court subsequently voided the Agricultural Adjustment Act codes set up to stem the farm crisis, the Guffey Coal Act's regulatory framework for the energy industry, and, for good measure, state minimum wage laws.
The Court struck down the NIRA codes as "delegation running riot," in Justice Benjamin Cardozo's famous phrase. Under the code system, as the justices saw it, Congress had effectively outsourced its lawmaking powers to private industry and the executive branch. Such delegation violated the constitutional requirement that Congress, and no one else, make the laws.
The codes also ran afoul of the Constitution's commitment to federalism by subjecting wages, hours, and working conditions to federal regulation, rather than reserving them (under the interstate commerce clause) for the states to address. Finally, the Court reiterated its commitment to the doctrine that all laws, state or federal, restricting the "liberty of contract" violated the Constitution's guarantees of due process by infringing on the right of workers and employers to enter into private agreements setting the terms of their employment contracts, without government interference. Furious, Roosevelt complained that these rulings had created a "No Man's Land" that made it impossible for government at any level to respond to the economic crisis.
The court's four conservative justices—James Clark McReynolds, Willis Van Devanter, Pierce Butler, and George Sutherland—joined initially by Owen Roberts and Chief Justice Charles Evans Hughes, were convinced that these doctrines concerning the separation of powers, federalism, and fundamental rights were indispensible foundations of the nation's constitutional order. These justices were opposed by a president for whom law held no interest, other than as a means to a policy or political end. A mediocre student who never finished his degree at Columbia Law School, FDR did pass the bar and practice law, indifferently and fleetingly, at a white-shoe firm in New York. This isn't to say that the president was not able to concoct constitutional theories, decked out in telling metaphors, when he needed to. In a victory speech delivered at Washington's Mayflower Hotel after being re-elected in 1936, Roosevelt expounded upon the constitutional relationship between the branches of the national government, referring to them as "the three-horse team of the American system," and explaining that "If one horse lies down in the traces or plunges off in another direction, the field...will...not...be...plowed."
The president's jaunty indifference to the Constitution during his frenetic first 100 Days had distressed even the Court's liberals like Cardozo and Louis D. Brandeis. But Felix Frankfurter—Harvard Law School professor, Roosevelt confidant, and future Supreme Court Justice—sent swarms of his protégés, the "Happy Hot Dogs," to help the administration at least gesture in the proper legal directions. Their efforts resulted in a pro-New Deal bloc of Cardozo, Brandeis, Stone, and Hughes facing a conservative bloc of Sutherland, Van Devanter, Butler, and McReynolds. Now, the future of the country seemed to rest with Owen Roberts, the former University of Pennsylvania law professor who had backed the liberals early on in Blaisdell and Nebbia, before siding with the conservatives. Either one of the conservatives had to retire or expire, or Roberts had to be coaxed back to liberal ground. Roberts, however, showed no signs of budging.
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Enter Attorney General Homer Cummings, contending that Congress could avail itself of the constitutional prerogative to change the number of Supreme Court justices, something it had done several times before 1869 but not since. Clearly, however, altering the number of justices for the purpose of adding liberal votes to reverse the rulings in recent judicial decisions smacked of politics, not law. The naked assertion that the Constitution's meaning was determined by nothing more than a majority vote made even liberals queasy.
So the maneuvering began. Not only would amending the Constitution to overturn the anti-New Deal decisions require successfully navigating the difficult path to ratifying any amendment. It also would concede that there was something wrong with the existing Constitution, rather than the conservatives who were interpreting it. Cummings and Roosevelt decided instead to frame an epic battle of constitutional principle as a technical problem. The justices were old. The Court's work-load was enormous, and the justices were overwhelmed. Why not give them some help? Under the Court-packing proposal, Congress would give the president the power to appoint one additional Supreme Court justice for every sitting justice over 70 years old. The plan's quick enactment would allow Roosevelt to immediately add six liberal justices to the Court. The new Court of 15 justices would change the decisions, declare the New Deal constitutional, and solve FDR's biggest political problem.
Support and opposition to the plan tracked neither party lines nor even opinions on merits. Senator Burton K. Wheeler, a Montana Democrat who had been Robert La Follette's vice presidential running-mate on the Progressive ticket in 1924, fought the Court-packing plan relentlessly. An angry man in general, Wheeler was especially embittered that Roosevelt had reaped the rewards of the hard battles Progressives had fought, including his own on behalf of labor unions against the Anaconda Copper Company. The Senate majority leader, Joe Robinson of Arkansas, fought for the plan as a loyal Roosevelt deputy despite his personal misgivings. FDR had all but promised Robinson that he would appoint him to the first vacancy on the Court in return for guiding the Judiciary Reorganization Bill of 1937 to passage, despite his misgivings about Robinson's character, intellect, and politics. Worse still, nominating the 65-year-old Robinson would have looked ridiculous in light of FDR's professed concern about the inability of older justices to keep up with their work. Robinson would perform a final service to FDR by dying of a heart attack on July 14, 1937, before the president could nominate anyone for the Court.
The liberal Justice Brandeis, one of the purportedly tired, out-of-touch old men falling behind on his work, resented both the personal implications of the proposal and the assault it represented against the rule of law. He testified against it in Congress. Conservative groups like the Lawyers' Vigilance Committee of the American Liberty League were predictably opposed. The fights raging within Democratic and progressive ranks, however, meant the Republican Party could sit back and watch its opponents commit fratricide. Since 1932 conservatives had seen their complaints that FDR sought dictatorial powers dismissed as overwrought. They were especially gratified that the president's determination to get the results he wanted by packing the Court, on a too-clever-by-half pretext, left many other Americans thinking that there was something unnerving about the New Deal.
The court-packing proposal never had any real chance of passage, but Roosevelt could not or would not acknowledge a political fact that was plain to everyone else. He pushed the issue, twisting arms, demanding loyalty, tweaking details, and fulminating against the "horse-and-buggy" conception of the Constitution, again and again. Over the course of Sheshol's long book, the plan succumbs and revives as often, and as improbably, as the stalker in a slasher film.
Finally, for reasons that scholars have debated for 73 years but not settled, Justice Roberts relented, providing the liberal bloc with the decisive fifth vote needed to uphold the constitutionality of New Deal legislation. FDR still did not abandon his Court-packing plan, fearing Roberts might change his mind again. At long last, however, the Court's conservatives capitulated, beginning with Justice Van Devanter's decision to retire. With a liberal majority on the Court now decisively assured by traditional means, the Senate drove a stake through the heart of the Court-packing plan, voting overwhelmingly to return the Judicial Reorganization Bill to committee. In a final rebuke to a Congress that stood up to him, Roosevelt selected as his first appointment to the Supreme Court Senator Hugo Black of Alabama to replace Justice Van Devanter. Black was a party-line New Dealer, a loyal, outspoken proponent of Roosevelt's Court-packing plan—and a man uniformly despised by his Senate colleagues, who were, as Roosevelt knew, obligated to confirm him in accord with the unwritten code of senatorial courtesy, as it was then understood and practiced.
The court-packing episode still matters because it raises some of the hardest problems of American constitutionalism, even of law itself. The rule of law is premised upon the understanding that law is announced in advance: known, stable, and fixed. In a republic or democracy, the law is the repository of the will of the people, who promulgate it with the understanding that their will is to govern. As conditions change, and societies alter, however, what was once fixed can become uncertain. Law's authority is paradoxically dependent on both its ability to hold fast against change, and to accommodate it. Conservatives tend to defend the role of law as anchor, while liberals emphasize its service as sail. Some, like Justice Owen Roberts, are caught out appreciating both dynamics, yet forced by circumstances to choose.
In heedlessly demanding his Court-packing plan, Roosevelt, a passionate sailor, revealed a blithe indifference to the role of law as anchor. An instrumentalist to the core, he came perilously close to reducing law to a simple question of who won the last election. Even many liberals recognized that while this might yield immediate political advantages, it would also render those accomplishments ephemeral. Law would have been reduced to politics, all the way down. And constitutional law would end up being about little more than counting to five.