FDR's Attempt to Pack the Court, Conclusion: The Failed 'Purge' Of 1938 and A Final Look At What The Court Can and Can't Do

 

 

The defeat in the battle of the Supreme Court was only the start of the bad news for FDR’s second term. In the middle of 1937 a recession began that would continue into the first half of 1938, which would weaken public confidence in the Administration’s policies on the new deal.

More importantly, the strain in Roosevelt’s coalition in the Democratic Party between the liberal New Deal supporters and the conservative wings in the South had become more evident. FDR’s reaction was to do something nearly as unprecedented as his attempt to shape the judiciary the previous year. In what would be become known to history as Roosevelt’s Purge FDR did something that had never happened before in the age of the primary and still hasn’t happened since. He inserted himself into campaigns against Southern Democratic Senators in an effort to get more liberal supporters of the New Deal on his side.

From the start, members of the National Democratic party were appalled by this, though many of the more loyalist members of the administration were infuriated by the Southern leaders of legislation even before the battle in the Court.  In the 1938 election he targeted 10 conservative Democratic Senators. Democratic leaders quickly convinced him that four of them – Alva Adams of Colorado, Champ Clark of Missouri, Augustus Lonergan of Connecticut and Pat McCarran of Nevada – could not be removed.

He focused his energy on six others: Guy Gilette of Iowa,  Frederick Van Nuys of Indiana, Cotton Ed Smith of South Carolina, Millard Tydings of Maryland,  Walter George of Georgia and George Berry of Tennessee.

FDR also endorsed several New Deal Democrats who did triumph in primaries.  Lister Hill managed to defeat Thomas Heflin of Alabama; Claude Pepper of Florida withstood a primary challenge as did Alben Barkley. Hattie Caraway of Arkansas, Robert Bulkley of Ohio and Elmer Thomas of Oklahoma also won  their primaries.

Because Hill’s victory was the earliest and Pepper’s not long after, Roosevelt was given to overconfidence and was cheered on by advisers such as Harry Hopkins, Thomas Corcoran and Harold Ickes.

But his efforts to realign the party almost everywhere else was a disaster.  In Indiana, the party could not even come up with a New Dealer to challenge Van Nuys. In Iowa, the party campaigned for liberal Congressman Otha Wearin but the state party was behind Gilette and he easily withstood the challenge. But by far the worst defeats came in the South where Roosevelt decided to put up the most effort. While George Berry  lost his primary, FDR had nothing to do with it: he had crossed Tennessee Boss Crump and that hurt him

In Georgia, FDR backed youthful attorney Lawrence Camp against Walter George. George had not endorsed FDR for President in 1932 and had never supported the New Deal as enthusiastically in FDR’s second term. Because of all the time Roosevelt spent in Georgia, he considered it his second home. In a speech delivered in Barnesville on August 11^th, Roosevelt praised George’s service and intelligence and honor but urged voters to endorse Camp. George accepted the challenge. George defeated Camp in a nearly two to one rout in the primary.

In South Carolina FDR endorsed Governor Olin Johnston against Smith. Smith was far more unpopular in South Carolina at the time, not for his racial policies but because of his position on labor. Smith waged the fight against Roosevelt as a Yankee carpetbagger.  He formed a coalition with Jim Byrnes, but Byrnes loathed Smith and only endorsed him because he did not agree with Johnston’s support of FDR’s push for labor reform. Johnston could not please either textile mill owners or the white supremacists and Smith won the primary.

It's worth noting that in the aftermath of Smith’s triumph and reelection that most voters had chosen Smith as a contrast to Roosevelt’s interference in the primary. When he faced reelection six years later Johnston would rout him.

Maryland went little better. Roosevelt campaigned heavily for Congressman David J. Lewis but Tydings easily won.  In this case, it was more due to Tydings own liberal record which in the midst of the rise of fascism abroad was far more liberal than Roosevelt’s.  In January of 1934, he had introduced a resolution condemning the Nazis in Germany and asked Roosevelt to express America’s alarm at the antisemitic measures.  He was also stronger than FDR on foreign policy at the time, having introduced a bill that would lead to the independence of the Philippines as well as one that had done so for Puerto Rico. (The leadership of the liberal party at the time opposed it.)

Roosevelt also targeted three critical members of the House: John O’Connor Chairman of House Rules in New York, Eugene Cox of Georgia and Howard Smith of Virginia. O’Connor was particularly targeted because FDR had put forth a government reorganization bill in March of 1938 that had wanted to, among other things, integrate all independent agencies into cabinet departments. The Senate had narrowly approved the bill, but the House had submitted it to the rules committee where O’Connor had vehemently opposed it. The bill had been killed.

The purge went just as badly there. All three Congressman survived their primaries. Cox would serve in the House until his death in 1952. Smith was in Congress until 1966. O’Connor did lose reelection, however.

With everything that happened in the purge and the outrage still heavy over the Court Packing bill, the 1938 elections were a disaster for FDR and the Democrats. In the House the Republicans won 72 seats. The win was not as big in the Senate – the Democrats ‘only’ lost eight seats but there were after effects. James Pope of Idaho and William McAdoo of California (FDR’s friend from their days in the Wilso administration) both lost their primaries. And Lonergan won his primary but lost his Senate Seat narrowly to Republican John Danaher, while Democrats lost seats in states that they had taken in 1932 in Republican states such as Kansas, South Dakota, Vermont and New Hampshire. Bulkley lost his election in Ohio to Robert Taft and Wisconsin went to Alexander Wiley.

FDR had strengthened the conservative alliance between conservative Democrats and the Republican party.  He had weakened himself by appearing power hungry, turned Democratic skeptics into opponents and it made him look weak.

FDR’s desire was his conviction that the nation needed two responsible political parties: one liberal, one conservative. He would make a similar effort to try a coalition with Wendell Wilkie in the spring of 1944, but both men were dead before it could go forward.

What makes it clear is that FDR had a weapon he could have used in his attempt for the Purge that would have given his liberal opponents a difference particularly in the South: race.  Considering that when Smith was in Congress during the battle of the Civil Rights Act and was still adamantly opposed to it, it’s a weapon he could have used especially as African-Americans were finally starting to abandon the Republican Party. But it is unlikely it would have been a successful tactic in the South in the 1930s and just as unlikely that the idea would have occurred to FDR. As I mentioned at the start of this series FDR was more or less in total agreement with his Southern opponents on the idea of integration and civil rights. One of the biggest conflicts that would play out even throughout World War II was his refusal to believe in integration in the military or agree to even fight for anti-lynching laws domestically.  For all of his progressiveness, he never showed any signs of enlightenment and the idea of fighting racism abroad while ignoring it at home was something that he and his administration never seemed to truly see a contradiction in. Considering that the major breakdown between our two parties is born in our collective opinions on race, it is telling that FDR seemed to see that a liberal and conservative party could somehow be different on every issue but that one.

Ironically many of the Senators that had been FDR’s biggest gadflies in the court battle and some that he had considered purging would end up being his strongest allies in Congress in the battle to win World War II. The sole exception was Smith who twenty years ago had been one of the major speakers in favor of the immigration act that had barred Europe’s Jews in fascism. Much of the reason FDR was able to lead legislation during this period was in part due to the alliance of Southern Democrats and his decision to appoint several prominent Republicans to his cabinet in 1940, including Henry Stimson, who had been in Republican politics since the time of Theodore Roosevelt’s Presidency and became his Secretary of War.

Still it is worth noting that by the end of 1938, Roosevelt’s prestige had been seriously damaged by both his efforts to impact both the judicial and legislative branches.  After the midterms of 1938 he contemplated the end of his Presidency seriously even as the situation in Europe worsened. Only the declaration of war in September of 1939 made him realize he had to run for a third term for what he considered the greater good.

 

Epilogue

What The Supreme Court Is And What It Isn’t

 

Dred Scott Vs. Sanford,  the 1857 decision that said that African-Americans and slaves were not people in the sense that white people were, is considered one of the three worst Supreme Court decisions ever made. (I’ll deal with the other two in a minute.) But because our sensibilities are offending by the obvious racism, it causes us to forget many things.

First, there is the fact that this decision inflamed just as many people in the South as it did in the North. Jefferson Davis was, in many ways, as angry about the decision as Abraham Lincoln would be albeit for different reasons. Lincoln was upset because it confirms slavery was evil in the eyes of America. Davis was enraged because it did nothing to offer it legal protection. “This has always been the South’s position,” he said in speeches he made in the aftermath. It was not a complementary statement.

In a sense one of the bigger weaknesses of James Buchanan’s horrible presidency was that he truly believed this decision would resolve the issue of slavery once and for all.  Buchanan was horribly mistaken because he had underestimated what the Supreme Court can do. As explained in the Constitution the job of judiciary is to interpret the law, not to make law or enforce it.  The Supreme Court did not then, as it does not now, have the power to invoke societal changes. All it does, as a writer once point out, is essentially wave a wand and hope something will happen.  Dred Scott may truly be bad law but it didn’t change anyone’s opinion of slavery one way or another and it didn’t make it ‘the law of the land’. All it did was maintain the status quo.  The bigger flaw of Buchanan was that he thought the status quo could be maintained when his own narrow victory had argued change was coming.

Similarly Plessy V. Ferguson, which enshrined ‘separate but equal’ is horribly racist but only affirmed what was going on for African Americans since the end of Reconstruction. Society had been separate and unequal since the end of Reconstruction in the South and the North was not much better.  It might well have been better for society had the court said that this was wrong, but without legislation from Congress it would not have made a difference to African-Americans anywhere and no one in either party had any real reason to make laws to improve lives for African-Americans in the country.  All the court did was basically say out loud what everyone in America – certainly African-Americans – knew already.

And for those who argue as if a judicial precedent is something that should be carved in stone how do they consider the Brown decision, which effectively overruled Plessy which had been considered ‘the law of the land’ for nearly a decade longer than Roe V. Wade had been? This decision, it is worth remembered, caused just as much outrage in many circles as the Dobbs decision did and led to similar amounts of violent rhetoric and explosion in hatred against judicial officials.  It was decisions like this that caused Eisenhower to consider the appointment of Earl Warren, heroes to millions of liberals, the biggest mistake he ever made.

And this decision didn’t have any real power beyond the symbolic. It took a series of decisions by the Warren Court to have influence but its worth noting none would have been possible without a similar cause of actions by Congress over the next decade when several increasingly sweeping Civil Rights bills that needed to pass both houses of Congresses with bipartisan support. When Hilary Clinton said that John Lewis marched for the Voting Rights act but it took a President to sign it, she was castigated by the left and African-Americans – but she was absolutely right.  What all activists never get is that their protests and actions will make no difference if there is not legislation in response. The same is true for those who consider people who sit on the Supreme Court, either in Warren’s era or today, ‘judicial activists.” The Court can wave a wand as much as it wants but unless there are laws to back it up there is no magic.

It is easy – understandable, even – to blame so much of our recent problems in America on the Supreme Court and to have little confidence in its integrity.  But to simply say that appointing four justices to correct this imbalance is foolish for many reason besides the obvious. It is a violation of the separation of powers that FDR seemed so willing to flaunt in 1937. There are reasons to argue about the courts legitimacy because of its current makeup but the argument the left seems to make is essentially two wrongs making a right. It also argues that all the decisions that the Roberts Court has made are the sole reason for so much that has happened in the last decade when in effect it is doing is still waving a wand. The difference may be that certain people are willing to make it happen but just as with the previous horrible decisions that didn’t change anything that the people in the states didn’t already know. It may have given them cover to do some of the things they did but our nation’s past has given us countless examples to give into the worst impulses of our nature.  No matter how much the left wants to think, the Court can’t make a decision regulating how people will behave.

And if one truly thinks that changing the courts makeup can always lead to positive societal change, I need merely remind you of the decision that the decision that most historians consider the third worst in the courts history. In 1944 the Supreme Court made its third most infamous decision Korematsu vs. US, the decision that upheld the internment of Japanese Americans from the West Coast. Some of the most liberal justices of all time – Harlan Stone, Felix Frankfurter and William O. Douglas were in the majority of this opinion along with Hugo Black, all of whom had been appointed to the Court by FDR. (Stone was named Chief Justice after Hughes retirement). One of the three dissenters was Owen Roberts, who had caused FDR so much trouble in his first term.

This decision took place in large part because of the advocacy of the Governor of California, who claimed that Japanese Americans had ‘willfully infiltrated every strategic spot in California coastal and valley countries. He argued the lack of disloyal acts among Japanese Americans only meant that they would do so in the future. When internees were released, he protested their return to California. It was not until near the end of his life that he expressed regret for his action during the process.

The governor during that period was Earl Warren.