FDR's Battle to Pack The Supreme Court, Part 4: Early Skirmishes and Major Defeats as the Battle Begins

 

 

A private prelude before we begin. In the introduction to the early stages of this battle Alsop refers to the battle in the Senate as ‘trench warfare’. He calls the Senate “unruly, unruled, loquacious’ and when ‘both sides are immobilized neither has much to do but talk’. He refers to it as ‘steady barrages of oratory, long gas attacks’. He refers to the oratory, which involved some of the greatest public speakers of the 20^th century as ‘turgid, repetitious, crammed with non-sequiturs, richly ornamented with appeals to prejudice and self-interest, couched in an English which would have caused Edmund Burke to weep for very horror at the fate of the language.”

As you might see two things are apparent: the critiques of the Senate are not much different than they are today by the media and there is a yearning for a distant past that was likely no different. However Alsop is aware enough to know that he proceeds it by saying while it is easy to make fun of it, in did serve a purpose by dinning the arguments for and against into the ears of the electorate…by doing so turning the wheels of that intricate, slow and occasionally inefficient piece of public machinery, the Democratic process.

I include the italics because this was praise by Alsop in 1937 and today all of these adjectives are considered by many on both sides consider it a reason democracy   doesn’t work for them (and in the last case, they would completely remove the modifier.) I ask the left to bear that in mind when they argue for something similar when it comes to packing the court today (not that I expect them to)

 

One of the biggest problems that infuriated the proponents of the bill within FDR’s inner circle was not only that the President continued to ignore their advice in the early months and listen almost exclusively to Homer Cummings. Cummings insisted on an indirect approach initially but made just one speech and then went on vacation. During that period they convinced FDR to take the direct approach which let to a divide between Cummings and the rest of the circle.

The general staff kept trying to come up with a way to sell the bill  that kept falling through. They would turn to the DNC where James Farley and Charles Michaelson began a great propaganda campaign. But FDR kept silent, still certain the opposition would talk itself and he would have to do practically nothing. By staying silent the first few weeks, he had allowed the opposition to recruit its numbers, organize and harden its spirits.  Finally his adviser managed to persuade him to make a series of more aggressive speeches starting on March 4^th.

 These speeches abandoned the idea of cluttered dockets, courts and barely touched on aged judges. Instead, it was to rally all the groups that FDR had been relying upon farmers, labor, liberals, millions of people hopeful for adequate ‘social security’.. He gave his first speech at  dinner at the Mayflower Hotel, one of eleven hundred other victory dinners going on across the country. FDR gave a speech praising the New Deal, appealing to each member of the Court, saying that it was subjugating America. In it FDR uttered some of his most famous lines:

“Here is one third of a nation ill nourished, ill clad, ill housed – now! Here are thousands upon thousands of farmers wondering whether next year’s prices will meet their mortgage interest – now! Here are thousands upon thousands of children laboring for inadequate pay – now!...If we would keep faith with those who had faith in us, if we would make Democracy succeed, I say we must act now!

In the second speech given on radio FDR added:

“You who know me can have no fear that I would have no fear that I would tolerate the destruction by any branch of government of any part of our heritage of freedom…You who know me will accept my solemn assurance in a world where democracy is under attack I seek to make American democracy work!”

Two more things the left should note. One: this speech, the kind of stirring oratory that FDR made is little different than the pleas of their idols Bernie and AOC. And two,  it had no major effect on the conversation. The White House received favorable letters, and there was some mailing to the opponents but there were no signs it had moved the needle at all.

This also lays bare another flaw in the strategy. Several advisers had been anxious for the President to announce his willingness to accept a constitutional amendment as a substitute for the bill if and when it could agree on it.  Had this argument prevailed with FDR, immediate disunion in the opposition would almost certainly have occurred. Everybody in the opposition had an idea but no one could agree on it. If he had made what was a meaningless and easy gesture, he probably could have won and it turned out to be another huge tactical error.

Twenty minutes after FDR gave his second speech, the opposition spoke out in the voice of Carter Glass who raged about what he considered FDR’s decision ‘utterly destitute of moral sensitivity’…picking six judicial marionettes to speak the ventriloquism of the White House” and saying FDR was ‘raping the Supreme Court and tampering with the Constitution.”

The bigger problem was that the farm support was not materializing. The Supreme Court had overturned the AAA,  critical for farmers and FDR said he would revive as soon as the Court bill was passed. FDR’s Secretary of Agriculture Henry Wallace, one of the most leftist voices in FDR’s administration, was recruited to plead with their support. It was a futile effort. One of the leaders had asked for a statement of the state Granges, what amounted to the farmer’s Union, opposing the bill. Of the thirty five Granges, thirty of them chose to back Alf Landon’s position. The National Co-operative council, a progressively inclined association of farm co-operatives, were polled and shown to be mostly against it.  And the Farm Bureau Federation sent countless phone calls and telegraphs to its leader to do nothing or say nothing about the bill. When the directorial board met in March, all but one of the sixteen leaders of the board was against the bill.

This was the first real sign of popular dissent of the court bill. Yet FDR stubbornly refused to accept it as a problem. Henry Wallace continued to insist, in spite of all the evidence to the contrary, the leader’s were mistaken. FDR chose to accept Wallace was right and the leaders were wrong.

By this point the Judiciary Committee had begun to hold hearings. The Committee was initially not inclined to be favorable. Eight votes were reliable for, eight were against and two were undecided. Worse, there was no one inclined to see the administrations way on the committee save for George Norris and he was lukewarm at best. FDR had also blundered when Hugo Black of Alabama (who would later be appointed to the court by FDR) had left Judiciary to take the Chairman of the Committee of Education and Labor during the recess. Had FDR informed him of what he was planning, he would likely have stayed and been a vital ally.

They also hurt themselves by demanded haste something that one of the administrations reluctant allies Henry Ashurst of Arizona did not agree with. Advisors like Corcoran and Keenan wanted to get everything done in two weeks and let the other side have two weeks in opposition. This would be unlikely as three of the most vitriolic opponents; Tom Connally of Texas, Van Nuys of Indiana and most importantly Burke of Nebraska – the most determined opponent in the Senate – were on Judiciary. All were opposed to swiftness and Ashurst was more than willing to let them proceed at their own pace.

The first two weeks featured the best voices for the administration, starting with Cummings and Jackson. The opposition did everything in its power to slow debate to a trickle and they were helped by the American Bar Association being willing to supply a lot of support for this bill and who were more than willing to provide every single inconsistency in exhaustive questioning. In the two weeks the administration had wanted to spent, less than half of the witnesses were presented.

Burke offered them a compromise: offering them another  week, give the opposition two weeks, and go on thereafter, taking alternate weeks. The administration sensed this was a trap to delay the fight and close the case right then. This was actually a bigger mistake as the opposition was able to hold the headlines for a very long time.

The opposition then began to try and bring the justices themselves into the fight.  They presented Chief Justice Hughes with a formal request, which Burton Wheeler and two other Senators came with him.  Hughes agreed to testify but they could not get Louis Brandies on board. Wheeler an old friend of his (they were both colleagues of the progressive Robert LaFollette) went to see him. He pleaded with Brandeis to make some substitute suggestion.

Brandeis was willing to help. While saying the Court could not comment on the bill itself, he was more than willing to argue that the procedural argument that FDR and his colleagues had been making might afford on opening.

After much discussion Hughes agreed to write a letter, with which he collaborated with Brandeis and Van Devanter and gave to Wheeler. In that letter Hughes and his colleagues methodically struck down point by point all the procedural arguments the President and Cummings had used as cover.  Even though the indirection had been abandoned by this point they were his first line of defense. Hughes letter showed that all of his arguments were just hollow and gave the opposition an immense gain.

At this point the administration was finally beginning to get nervous. It did not help that the most loyal Southern leadership of Congress, which he had ignored in his planning, were now abandoning him. This too was built in snobbery: John Nance Garner,  Pat Harrison, and James Byrnes had all served as fixers in the Senate. But the White House staff considered them ‘dust-stained practical politicians” who weren’t true believers.  To be clear they didn’t fully believing his objectives but they were willing to submit to their loyalty to party unity. Now they were running out of patience, and it did not help that FDR refused not only to make cuts in the New Deal packages. FDR promised Garner one such cut, then changed his mind and did not tell Garner and the rest. When FDR  refused to take a strong position on an amendment against sit-down strikes, FDR first delayed a meeting with the Southern leaders, then cut it to one with just Garner and Joseph Robinson, majority leader of the Senate.  The staff then said that the leaders had asked for the conference not the President and the President and his Vice President had a shouting match that Harrison cut short.

Garner was now adamantly opposed to the labor and spending issues and the Southern oligarchy – which included most of the leadership – was divided and disinclined to give FDR the help he would otherwise have had from them on the court bill.  Morale was getting worse throughout the Senate. And the fact was FDR lost a lot of his momentum even before the fight began.

The court’s reaction to this bill was to do something that everything else had failed to do: their opinion was a unanimous one. The ultraconservative and the liberals were united in their opposition. And unlike the President, they knew the best attitude to take. The justices on the right, led by McReynolds, who had been abrasive towards the government, now were polite and sympathetic when they questioned them. Then in January they began to offer a series of decisions, starting with a retroactive tax of on profits in favor of the administration. For those who argue that FDR’s decision to threaten the judges with the court packing bill leave out a crucial detail: In the aftermath of the election, the conservative domination of the Court was over before the court-packing plan had been announced. A reversal by Justice Owen Roberts on a minimum wage bill from the right to the left ensured that shift took place. This led to a series of decisions upholding the New Deal in a series of unanimous decisions, including the upholding of the Social Security act.

FDR had won the war and the battle. The problem was, he refused to accept ‘yes’ for an answer. In the next article in this series I will deal with how FDR decided to keep going on despite his victory and how his plans, already severely weakened by outside factors, he chose to ignore, led to a total collapse in the Senate.