Note: Much of
the material in this article and those to come are from 168 Days a Book
written at the time of the battle by esteemed journalists Joseph Alsop &
Turner Catledge. Both men were Washington insiders – Alsop would become
infamous for being part of the so-called ‘Georgetown Elite’ – but their
integrity as reporters of the period cannot be questioned.
By 1935 it was
agreed that while the New Deal had not brought prosperity back to the nation,
it was bringing recovery. This would put
the Republican Party in a bind not merely for the 1936 election but for the
rest of FDR’s term in office and well after his passing.
The New Deal
was everything the conservative base of the GOP – including Herbert Hoover,
still prominent in it – hated with an utter passion. The problem was, it was
working so well that none of the Republicans could find a good way to attack.
In the 1932 campaign Hoover had stated that if FDR was elected “grass would
grow in the streets of New York and Philadelphia.” And by the time of the Democrat convention
that year, the Democrats threw it back in his face.
Alf Landon, the
governor of Kansas who basically got the nomination because he was one of the
few major Republican office holders to win reelection in 1934, was the first of
FDR’s opponents to face this impossible bind. He eventually settled on a method
known as ‘me-tooism’ where the Republicans would essentially argue that the New
Deal was working but if you put them in office, they could run it better and
more efficiently. This would never be a
winning proposition during FDR’s electoral run and by the time he had died, the
New Deal was so entrenched in the social network that most Republicans decided
there was nothing to be gained electorally by campaigning on destroying it. It
would not be until Barry Goldwater in 194 that the Republicans would nominate a
candidate for President who ran on an anti-New Deal platform and not until
Ronald Reagan sixteen years that they would manage to elect a President on one
of deregulation.
FDR never had reason
to doubt winning reelection in 1936. And indeed, it was during this year that
he spent a fair amount of time concentrating on the one clear source of opposition
that the New Deal was facing: the Supreme Court. During the first two years of
FDR’s term the Court had been divided on much of the New Deal legislation but in
May of 1936, the court unanimously invalidated the National Recovery Act. Not long
after the court made a series of rules that began to invalidate major parts of
the New Deal, including the Agricultural Adjustment Act and striking down the New York Women’s Minimum Wage Law. They
also made decisions that limited the government’s power on bankruptcy and labor’s
ability to negotiate with corporations. FDR had been willing to take a certain
measure of patience with the court but these decisions infuriated him.
They also
infuriated many Americans. Like today, there was a frustration at the Court
being out of touch but in this case it had to do less with ideology than age.
In the middle of 1936, an article denounced the Court as ‘Nine Old Men.’ There
was a fair amount of truth to that description: six of the nine Justices,
including Charles Evans Hughes, were 70 or older and the court had been intact
since Holmes had left it late in Hoover’s term. FDR spent months discussing the
issue with his own brain trust, including his Attorney General Homer Cummings and
legal minds such as Felix Frankfurter.
Wisely, FDR kept
his thought about the Court out of the 1936 campaign. The media was by a
considerable margin endorsing Landon (the last count was that two-thirds of all
newspapers did) and while Landon himself did not think he had any chance of
beating FDR (he mentioned as much to a reporter in September on condition of
secrecy) the media desperately wanted to seize on something to get him out.
During the fall, The Literary Digest a magazine known for the earliest
attempts at public opinion polls began the poll that had accurately predicted
the winner of every election since 1920. From the start of their polls to the
end Landon was in the lead, and when it ended a week before Election Day,
Landon was winning with 360 electoral votes to FDR’s 171.
While the
polling was going on Republicans and the media seized on it based on the idea
that FDR would be defeated. FDR never doubted it, though his electoral guess
was far off too: He thought he would win with 350 electoral votes to 181. So on election night, even he was surprised
when he won the greatest electoral landslide in history with more than sixty
percent of the popular vote and carrying every state but Maine and Vermont.
(Not long after the 1936 election, the Digest folded. )
Now that he had
his popular and electoral mandate FDR thought he could concentrate on the idea
of reform for the Court. Unfortunately his popular mandate caused him to
misstep from the start. Prior to his announcement of every major program he had
made to this point, he had first consulted with his teams of his advisors:
first his storied ‘Brain Trust’ and when he had the legislative plan in mind,
Congressional Leadership. At the time the heads included his Vice President
John Nance Garner, Senate Majority Leader Joseph Robinson, and Speaker of the House
William Bankhead. But this time he assumed his massive mandate in Congress
would override any objections they might initially have. So his sole helper
during this time was his A.G. Homer Cummings.
It was not that
Cummings was not unqualified for the job, either as a Democrat or a legal
scholar. He had been a loyal Democrat for forty years, and though he had
initially been a temporary posting for Attorney General after FDR’s first
choice Montana Senator Tom Walsh died before election day, in a Justice
Department besieged by lawsuits against the New Deal he had kept it going all
this period. But Cummings had never been admired by many of the intellectuals
that made up FDR’s Cabinet and Brain Trust and the idea of being part of changing
the Court ahead of them stirred him.
FDR and
Cummings knew they had four alternatives: they could propose an Amendment
enlarging the Federal Powers of the government. They could limit the court’s
jurisdiction, they could require more than a simple majority to invalidate an
act of Congress, or they could ‘pack it.” They rejected the first alternative
quickly and while Progressive Senator George Norris had a bill before the
Senate about the third option, both Cummings and FDR thought Norris’ reading of
the Constitution was wrong. After discussion with Frankfurter, they decided ‘the
best way out was Court Packing’. There was precedent: the Court had expanded
from its original seven members to nine, so it was not against the
Constitution. Privately all were aware that this was a ‘taboo’, but the Court
had weakened that taboo with its behavior and considering the Republicans were
fundamentally outnumbered, what opposition could they provide.
Just before making
a goodwill trip to Argentina FDR told Cummings he would present a court bill to
Congress as soon as one could be ready and he hoped one would be when he returned
from his trip. But when he did a month later FDR told him that none of the
proposed solutions were satisfactory.
Cummings revisited
the issue and decided to make the age of the judges involved the principle. He
was guided by a recommendation Justice McReynolds had made in 1913. In it
McReynolds had recommended that when any federal judge, except for those on the
Supreme Court, did not retire at the age provided by law the President should
appoint another judge to preside over the affairs of the court and have
precedence over the older one. McReynolds, at this very moment, was on the Supreme
Court and was now at the heart of the opposition to the New Deal.
Almost from the
start this suggestion by Cummings became FDR’s favorite. FDR was a lover of irony
and using one of his enemies own ruling to undermine him appealed to him. Even
the fact that the conservative block of his own party would oppose it did not
strike him as a problem; their opposition would fail. So he made the decision –
but aside from Cummings, no one else was told about it or advised about it.
This was a
mistake because two of his major advisers, Benjamin Cohen and Thomas Corcoran,
had discussed the idea with Solicitor General Reed and early on dismissed the
idea of extra judges. They had toyed with
the idea a year earlier; Corcoran had suggested it to Progressive Senator
Burton Wheeler, a year ago and had written a speech on it for him that Wheeler
refused to deliver. But they thought the best plan was an amendment to the
Constitution that was far closer to an earlier suggestion: the amendment would
have allowed Congress to override court decisions on a point of law, by a
two-thirds majority at once, and a simple majority after an intervening election.
Congress would also have the power to invalidate state acts thrown out by the
Court.
Furthermore while
he did later on discuss the bill with some of his advisers, including trusted
friend Samuel Rosenmann, FDR was arrogant enough to believe that leadership would
unilaterally support whatever bill he proposed that he saw no need to consult
Congressional leaders at any time in the process. Nor did he make any effort to
give advance notice to officials who were in charge of labor or farms. FDR’s
was so determined for this to be theater, that he assumed the surprise would
carry the day. That to this point
leadership had an unblemished record of subservience to the White House but
offering advice that might help when they were asked.
Almost from the
start there were warning signs. In his jubilance he broke down and showed what
he had ready to many members of his inner circle. As 168 Days puts it eloquently:
“With them he
was like a father exhibiting a favorite son to an old friend. (His inner
circle) felt like they had been confronted with a child in whom any but fond
parental eyes could see the symptoms of incipient disease. All of them were
astonished; all of them saw more trouble ahead then the President looked; some
of them…were completely horrified by the indirection of the message, its highly
sophistic reason and its implied condemnation of old age. But the time for
radical changes had passed…The President was in no mood to heed minor danger
signals.”
The actual bill
was relatively simple and fell into four major parts.
First, when any
judge of any federal court who had been on the bench ten years waiting more
than six months after turning 70 to retire or resign, the President might
appoint a sort of coadjutor for them.
Second, the
number of judges on any court should be permanently increased by the
appointment of additional judges, bur the membership of the Supreme court
should not be increased by more than six.
Third, the
Chief Justice might assign extra circuit judges to any circuit court of appeals
where a press of business occurred and similarly to district courts with
crowded dockets.
Fourth, the
Supreme Court might appoint a proctor to watch over the status of litigation,
investigate the need for assigning extra judges to congested courts and
recommend their assignment to the Chief Justice.
As Alsop and Catledge
write the bill was clearly written to solve the problem with the reactionary
course of the current court but FDR never referred to it when either he or Cummings
proposed it to Congress. In his bill President euphemistically referred to
courts as easing the justice’s burden but in other words it discussed that the
court needed ‘young blood to vitalize it’. The inner circle knew the moment
that FDR made this proposal to Congress, no one – not in the legislator or the
general public – would be deceived by what FDR was proposing.
And by far the
clearest one should have been obvious. By this point the spectre of fascism was
sweeping Europe. Much of FDR’s legislation involving the New Deal had infuriated
the Republicans and interests by saying that his actions violated the Constitution
and were dictatorial. FDR had managed to deflect these arguments based on the popularity
of the New Deal to this point, but a decision to fundamentally reshape the
Judiciary – the one branch of government where FDR and the Democratic Party did
not have a majority well beyond the pale – was not merely horrible optics but
perilously close to what Fascist governments across the globe were doing.
And he more or
less basically confirmed then when he finally announced his measure to the
inner circle on February 3. FDR came
inro a meeting with Congressional leadership and his cabinet that day in a hurry
with a sheaf of papers. He briefly announced his purpose, giving a few snatches
from the message. Senate Majority Leader Robinson flushed deep red. The others
did their best to keep their astonishment from their face. In less than five
minutes he broke off, said he was sorry he had to leave, but the press was waiting
and they’d know about it in a few hours because he was sending it to Congress
at noon. The press was a mix of delighted, and disturbed, and he told them far
more than he had done so telling his cabinet and Congress. “He kept smiling’
Alsop said, “as if he were asking the assembled newspaper men to applause the
perfections of his scheme.”
By this point
the meeting in the Cabinet room had broken up to dead silence. Hatton Summers had the first and clearest
reaction: “Boys, here’s where I cash in my chips.” But his reaction would be
mild compared to Vice President John Nance Garner. When the message was still being read before Congress,
Garmer would leave the rostrum and hold his nose with one hand and gestured thumbs
down with the other. Garner supported
the bill for awhile but from this point on he was no longer a loyal follower of
FDR.
Few expected
this to matter considering Garner’s own opinion of the Vice Presidency’s
importance was generally held by Americans. More importantly was how the battle
in Congress would take place. In the next article in this series, I will deal
with the makeup of the membership of the 75th Congress, where the
most virulent opposition would come from and how the battlelines would form.
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