The History of FDR's 'Courtpacking Plan' of 1937, Part 1: Introduction and The Makeup of the Democratic Party and The Supreme Court of the 1930s

 

 

As long as I can remember the left has always been outraged by the Supreme Court. And while they’ve had legitimate reasons to be so in the past decade,  I think that much of their outrage is based in their rigidness in their ideology.

Like everything else, those on the left believe that their interpretation of how society should operate is the only correct one. There is no more room for nuance on that then there is for those extremists on the right. This has always been destructive but it is particularly troubling in regard to the law which is more often than not is entirely about nuance.

I’m not saying that the GOP’s action over the past several decades in regards to both the law and the Supreme Court in particular have not been the kind of thing that deserve lambasting. But what it hides is the fact that when it comes to the law the left can be just as devoted to ideology as the right is. This is true in so many of the notices you receive for fundraising that dealing with decisions about gun control or LGBTQ rights or gerrymandering or any of the other trigger points. One of the first mentions in their articles is whether the judge was appointed by a Republican President. The message is never stated directly but it couldn’t be clearer: judges are Republican or conservative first and anything else second.  Like everything else when it comes to identity by the left, it argues that your political affiliation biases any other part of your life. It also argues by default that only a judge appointed  by a Democrat can see the law the right way. That the left will then argue in similar articles that there are two systems of justice in America with a straight face is another kind of hypocrisy.

And because in the eyes of the left, separation of powers and checks and balances only apply when you can check ‘the right’s power’ and never the other way around, we are constantly deluged with fundraising appeals for things that even a partly rational person knows is impossible. Cue the demands to impeach Clarence Thomas or Brett Kavanaugh (impossible to do in a Republican House); the demands to investigate justice for ethics violations (a good idea but with no groundwork as to do it) and their argument for judicial ‘reform’. One of their favorite ones is that Biden should be allowed to appoint four Supreme Court Justices before the 2024 elections to counteract the conservative majority.  This is fantastic, completely beyond the scope of the executive branch (they often just want him to make the order bypassing Congress) and leaves out a big gaping hole (what’s to stop the Republicans from appointing a similar number of justices when they regain power?)

When it comes to this particular argument progressive websites will frequently bring up as a historical guidepost FDR’s attempt to pack the Supreme Court in 1937. The left is as guilty of cherry-picking history as the right can be, but in this particular case it leaves everything out.

For one thing, it fails to consider that this was by far the most controversial decision of FDR’s entire term in office, one that divided not merely Congress or his party but the entire country. It leaves out the face that even though both houses of Congresses had essentially supermajorities there was an extreme amount of division in leadership about doing this to the point that many senators who were terrified of the consequences were afraid Roosevelt was so popular he would be able to do it anyway. And it particularly leaves out the fact that if FDR had in fact managed to do it, it very well might have been the kind of ‘victory’ that was the first step towards turning America into embracing the waves of fascism that was sweeping the world.

This series will illustrate a complete history of FDR’s decision to pack the Supreme Court: why he thought he had to do it, what his plan was,  the battle that would plague both the White House Congress for nearly six months in 1937 and how both Congress and FDR reacted when it was all over. And we’ll start with explaining both the makeup of FDR’s Democratic Party and the Supreme Court at the time, because those who want to make comparisons between then and now have clearly forgotten the make up of both in the 1930s.

The left has always been torn about how to celebrate FDR. They obviously love the New Deal and all the programs that came from it, they celebrate his setting up the social safety net, they love his decision to take on fascism on the world stage.  The problem is so much about FDR and the Democrats during this era violate every value they stand for.  Including the fact that if his name had simply been Franklin Delano it is unlikely the man would have gotten further than the state assembly. FDR had presidential ambitions very early – he told his legal partners as early as 1908 as much – but they were inclined to dismiss this cultured, partisan elitist as deluded. The only reason they didn’t dismiss him outright was that his cousin Theodore was not only President but considered by America the greatest one in history.

Because the left likewise considers all Republicans since Lincoln corrupt and utterly beyond redemption and will never hesitate to tell you such Theodore Roosevelt has always left them in a quandary. How do you handle the legacy of a man that most historians consider one of the five or six greatest Presidents in history, who towered over America, whose monument is carved on Rushmore? And the answer has been…by fundamentally pretending he never existed.  This is frankly remarkable considering how much of TR’s legacy involves all of the benchmark of the progressive policy.  His establishment of the Square Deal, his establishment of the National Park System and created the first major conservation movement in America, his creation of the Food and Drug Administration and the Open Door Policy, his Nobel Peace Prize for negotiating the end of the Russo-Japanese War, his war on big business and trusts in general are the gold standard for everything that the modern left adore. That he did all this while being fundamentally loathed by many in his own party is another sign of how much of a ‘maverick’ he was.  But as it is the current left’s decision to ignore any bit of history that makes the Republican the good guy,  the only time they mention any part of it is to argue that today’s conservatives are attacking it.

The progressive version of history is as much propaganda as the people’s history: Democrats are always the good guys; Republicans always the villains. If you were to tell them that the Progressive era where they have derived their name was fundamentally handled by the Republican party in the 1890s and 1910s and that from the end of the Civil War until the 1930s, the Democratic Party was as conservative as the Republican party if not more so, they would probably tell you that this is not the case. Similarly that FDR essentially got every major political office he did until at least he became Governor of New York in part because of his last name, they will ignore it. Indeed, when he ran for national office the first time – as James Cox’s Vice President in 1920 – one of the major reasons he was put on the ticket was because the Democrats were facing almost certain annihilation at the polls and hoped that FDR’s last name would have the same pull as his recently departed cousin. It didn’t, for the record; the Democrats lost to Warren Harding in what was by far the biggest popular and electoral landslide to that point in American history. And FDR was in a real sense calling on his famous cousin when he first ran for President in 1932 and received the backing of Progressive Republicans such as California’s Hiram Johnson and Nebraska’s George Norris. Norris famously said during the campaign: “What this country needs is another Roosevelt in the White House.”

Similarly the left does not want to acknowledge FDR’s coalition to victory throughout his four landslides. Because particularly in his election and first reelection campaign, his biggest margins were in the South. That same region today’s left wants to pretend is beyond redemption was where FDR had by far his greatest margins of victory. This was particularly true in his 1936 landslide in which he received more than sixty percent of the vote and carried every state in the Union except for Maine and Vermont. In South Carolina, he received 98.5 percent of the vote. In Mississippi, 97 percent. Louisiana, 88 percent.  Georgia 87 percent, Alabama 86 percent. There were entire small towns throughout the south where every single vote was for FDR.

And FDR had huge coattails. The Democrats already had 70 seats in the Senate, they would gain 5 more in 1936.  The only reason George Norris, who had held his seat since 1913 as a Republican kept it was because he changed his affiliation to Independent. The Democrats gained 12 seats in the House, dropping the number of Republicans to well below 90. And it is not a coincidence that many of the same states that FDR carried by huge numbers had entirely Democratic delegations.

Now the left will argue as hard as they can that these Democrats were not representative of the party of today. That is true as far as that goes. But as I have stated numerous times, they were completely representative of the Democratic Party from Reconstruction until at least the 1960s. It does not mean that these Democrats were fundamentally unenlightened people: some of the greatest Senators in history are from the era of the 1930s, including Alben Barkley of Kentucky, Kenneth McKellar of Tennessee, Richard Russell of Georgia and Joseph Robinson of Arkansas. No one will pretend that many of them were not adamant racists and segregationist but so was most of America and most were among the most fervent supporters of the New Deal.

One of the undisputed criticisms of FDR was that he did very little in office when it came to civil rights. (Indeed Eleanor would often alienate her husband and his staff by taking positions more on the side of civil rights that the party wanted to do.) But FDR was a master politician who was also dealing with the worst crisis to face the country since the Civil War. Many of the Democrats were far more conservative then he was when it came to the New Deal; indeed his first Vice President John Nance Garner, a Texas conservative famously had little use for it.  It was only because of the unprecedented crisis facing the nation that many in his party agreed to go along with methods that many found hard to stomach. As FDR’s second term began, many of his earliest supporters from his first term would begin to turn against it, and much of it would start with his plan to pack the Supreme Court.

This gets me to the other critical fallacy in those who want to draw a parallels to this era and the 1930s. The Supreme Court was fundamentally Republican, but no one was pretending it had been stolen. With the exception of Woodrow Wilson, from 1896 to 1932 the White House and Congress had been Republican. And while many of the judges were conservative, they were far from unqualified. Indeed, many of the greatest justices in the history of the court are from this era.

Oliver Wendell Holmes (who Democrats love to quote in regard to his famous line of ‘clear and present danger’) had been nominated by TR in 1902 and had departed the office at the age of 90 in Hoover’s last year. His replacement Benjamin Cardozo was an esteemed justice in his own right. Calvin Coolidge would appoint Harlan Stone the court after serving as his Attorney general. FDR would eventually named him Chief Justice. Louis Brandeis was appointed by Wilson and made history as the first Jewish-American appointed to the court. But the most significant member of the Court at the time was Chief Justice Charles Evans Hughes.  And it’s worth delving into his history because he is a fascinating figure with ties to both Theodore and Franklin, as well as much of Republican politics in the early twentieth century.

In the early 1900s, Hughes had led several investigations into the public utilities and life insurance in New York. In 1906 Theodore Roosevelt, looking for a strong candidate to defeat Newspaper mogul William Randolph Hearst for governor, convinced the New York republicans to nominate Hughes. He was referred to as a sane reformer. Hughes campaigned for an eight-hour workday and prohibitions on child labor. He narrowly beat Hearst for governor and spent his term expanding civil service position, increasing the power of regulation of public utilities, and early work in campaign finance. He also recognized the New York state Department of Labor, something many elected officials refused to do.

In 1908, William Howard Taft asked Hughes to be his running mate. Hughes declined. He was starting to tire of politics but Roosevelt and Taft convinced him to run for reelection. He won, but his second term was less successful. Early in 1910 when associate justice David Brewer died, Taft offered him a vacancy on the Supreme Court. Hughes jumped at the opportunity. On the court, Hughes quickly showed his mettle former friendships with members like Holmes and John Marshall Harlan. His record was fairly progressive, upholding state laws for minimum wage, workmen compensation, and maximum hours for women and children. In a majority opinion for a decision for McCabe v. Atchison, Topeka & Santa Fe Railway which required railroads to give African-Americans ‘equal treatment’. Hughes would likely have stayed on the court for the rest of his life then, but politics would intervene.

Part of me wonders just what today’s progressives would think of TR’s run for the White House in 1912. Despite the fact that it was the first campaign where political primaries were involved, that TR wanted to take the GOP in a more progressive direction, and despite the fact that the ticket ran under the labor of The Progressive Party,  the cynical part of me thinks that they would shrug it off as another example of a ‘Republican not wanting to let go of power’ and ‘building a cult of personality’. The thing is, I could not entirely blame them for thinking that because that was much of the old guard though in 1912 and well beyond that. The fact that in the lead up to the 1916 campaign, TR was trying to get both the nominations of the GOP and the Progressives, primarily to run against Woodrow Wilson who he loathed, would bolster that claim.

In the leadup to this in 1916, several Republican leaders asked Hughes to run for President. He initially declined the request, but the polls of Republican voters showed that he was the preferred candidate, and despite refraining from interest Hughes would win two Presidential primaries and his backers, without his consent, began to line up delegates for him. Hughes led all contenders at the 1916 convention and won the nomination on the third ballot. TR was nominated by the Progressive Party but refused to accept it. The party, which had been founded on his involvement and already in decline, collapsed not long after.

Hughes resigned from the Court to run for President. While not a charismatic speaker, a bigger problem was the baggage of TR and his faction of the party, most of whom wanted the United States to enter the Great War. Hughes had to walk a tightrope between isolating TR’s supporters and those independents who did not want to go to war at all. He never managed to negotiate this successfully and TR’s speeches which were more against Wilson than for Hughes (by now he considered him ‘the bearded iceberg’) and were fundamentally bellicose hurt him more than they helped them.

The 1916 election was electorally the closest of the 20^th century. On election day, it looked very much like Hughes had won. The New York Times published a headline saying as much and both Hughes and Wilson went to sleep that night thinking so. But two days later, the results from California revealed that Wilson had won the state by 1300 votes. The thirteen electoral votes he received brought him up to 277 to Hughes’ 254.

Hughes was privately relieved to have lost the Presidency and years later said that if had been President at the time, it would likely have killed him much as it nearly did Wilson. Furthermore his narrow electoral defeat was only the start of arguably the greatest second act of any defeated political candidate. Early in 1920 he declined any interest in the GOP nomination, which went to Warren Harding.

For all his flaws Harding made some superb choices when he was in office. Two of the most significant involved the two previous GOP nominees for President. He named Hughes Secretary of State and basically gave him a great deal of discretion at both the State Department and foreign policy. Hughes could not convince the Senate to join the League of Nations, but was successful in preventing an arms race between Britain, Japan and the U.S. He also negotiated peaceful resolutions to territorial claims in the Pacific Ocean and China and sought better relations with Latin America. Hughes stayed on after Harding’s death in 1923, but left office after Calvin Coolidge won election in his own right.

When Chief Justice White died in May of 1921, Harding offered the job to Hughes who declined. Instead he appointed William Howard Taft, fulfilling his lifelong dream. Taft did much to reorganize the court over the next decade. When Taft fell in February of 1930, Taft made it clear that his preferred successor should be Hughes. Hughes had been progressive on the court but Taft believed he would be conservative.  Under Taft the court had become more conservative and many progressives (who at the time were mostly Republican) feared it would be more of the same. The vote was somewhat closer than usual, but Hughes was confirmed three weeks later and he took office.

At the time the Court was divided between the Conservative ‘Four Horseman’ (Pierce Butler, James McReynolds, George Sutherland and Willis Devanter) and the ‘Three Musketeers’ (Brandeis, Cardozo and Stone). The balance was between Hughes and Justice Owen Roberts. Hughes was inclined to join the liberals, Roberts the conservatives. It was this struggle over the New Deal that would start to turn public opinion against the court over the 1930s and lead FDR to make his decision towards reform after winning reelection in 1936.

In the next article in this series I will deal with the decisions that led to dissatisfaction with the court through FDR’s first term, his plan for reform in 1937 and why that led to so much opposition despite the outrage many Americans felt towards it at the time.