American Experiment

by James Macgregor Burns

A suggestion came in from the famed constitutionalist at Princeton, Edward S. Corwin, the most influential of several academic specialists with whom Cummings had been consulting. Why not combine the two approaches with an act of Congress authorizing the President, “whenever a majority of the Justices” are “seventy or more years old, to nominate enough new justices of less than that age to make a majority”?

  About this time Cummings struck a bonanza in the departmental archives—a recommendation from an earlier Attorney General that when any federal judge (except Supreme Court members) “fails to avail himself of the privilege of retiring now granted by law” (at age seventy, after having served ten years, upon full pay), the President could with the consent of the Senate appoint another judge. That Attorney General had been none other than James McReynolds, who had served in the Wilson Administration. With glee Cummings and Roosevelt pounced on this find. Why not apply it to the Supreme Court? Linking the notion of retirement to that of new appointments especially attracted the President, with his relish for tactical combinations.

  It was with this recommendation in mind that the President stood before Chief Justice Charles Evans Hughes on January 20, 1937, to take for the second time the inaugural oath of office. When Hughes read the oath with slow and rising emphasis as he came to the words “promise to support the Constitution,” the President wanted, he would recall, to cry out, “Yes, but it’s the Constitution as I understand it, flexible enough to meet any new problem of democracy.” Then FDR turned to address the inaugural crowd. It was not a sunny picture he painted but a picture of tasks still undone, promises unfulfilled, human needs unmet:

  “I see millions of families trying to live on incomes so meager that the pall of family disaster hangs over them day by day.…

  “I see millions denied education, recreation, and the opportunity to better their lot and the lot of their children … millions lacking the means to buy the products of farm and factory.…

  “I see one-third of a nation ill-housed, ill-clad, ill-nourished.

  “It is not in despair that I paint you that picture. I paint it for you in hope—because the Nation, seeing and understanding the injustice in it, proposes to paint it out.”

  All this demanded political leadership, he concluded; and he promised to supply it.

  On February 5, 1937, Roosevelt revealed his Court plan to an extraordinary joint session of cabinet members and congressional leaders. They heard him with mixed emotions, some like Ickes with delight, others like Garner with doubts, still others with the deepest misgivings. Under the President’s plan, for every Supreme Court justice who failed to quit the bench within six months after reaching seventy, the President would be empowered to appoint a new justice, up to a total of six. The President did not solicit much comment; quickly he wheeled off to meet a waiting group of newspapermen.

  Bursts of laughter swept the press conference as the President went over his plan. Roosevelt presided like an impresario, occasionally throwing his head back and joining in the laughter. He was savoring his triumph. His plan, he expected, would bring quick resignations, protect his big measures of the Second Hundred Days—and dish the conservative opposition on and off the Court. He would extract the conservatives’ teeth. Demanding absolute secrecy until the message was released, he took special pleasure from the surprise he had achieved.

  Surprise—and shock. Riding back to the Capitol, the congressional leaders sat in stunned silence. Suddenly Hatton Sumners of Texas, chairman of the House Judiciary Committee, turned to the others. “Boys,” he said, “here’s where I cash in.” At the Capitol legislators stood about in little knots, variously elated and indignant after reading the message. In the Supreme Court the attorney at bar paused a moment, sensing a sudden change in mood, after a page slipped through the draperies behind the dais and handed a message to each justice. Hughes shifted restlessly in his chair. Van Devanter looked grim; others sat with their judicial mien unruffled.

  The proposal set off a fire storm in the press. “This is the beginning of pure personal government,” wrote columnist Dorothy Thompson. “Do you want it? Do you like it?” Her home paper, the New York Herald Tribune, compared Roosevelt to Louis XIV—“L’état, c’est moi. ” If the plan passed, Henry Mencken predicted, “the court will become as ductile as a gob of chewing gum, changing shape from day to day and even from hour to hour as this or that wizard edges his way to the President’s ear.” Herbert Hoover took to the air: if a troop of “President’s judges” could be sent into the halls of justice to capture political power, he said, that “is not judicial process. That is force.” The nation faced a grave crisis, opined the Protestant Episcopal Bishop of New York. “These proposals would be a death blow to our constitutional democracy.”

  But it was on the Hill—most immediately in the Senate—that the issue would be decided. “What a grand fight it is going to be!” Roosevelt had written a friend. Instead of a straight fight between Democrats and Republicans or between liberals and conservatives, however, the battle degenerated into guerrilla warfare. Progressives like Burt Wheeler and Hiram Johnson opposed the bill, as did important Democrats like Joseph O’Mahoney of Wyoming, Tom Connally of Texas, Bennett Clark of Missouri. La Follette and some other progressives spoke up strongly for the measure. A host of conservative or moderate Democrats from both North and South opposed the bill, as did the small band of Republicans, but the latter decided to step back and let the Democrats split over the measure. Among some southern lawmakers a deep racial fear stirred; seeing sinister motives in the Court plan, Josiah W. Bailey of North Carolina said the President was determined “to get the Negro vote and I do not have to tell you what this means.”

  As the factional lines firmed up, about a third of the Senate was flatly opposed to the bill, another third favored it, leaving the rest with the crucial votes. Even some of the President’s supporters, however, had serious misgivings. Democratic loyalist chieftains like Majority Leader Joe Robinson were angered by the President’s secrecy in preparing the bill, by his refusal to work with his congressional leaders. They were also put off by FDR’s disingenuousness in presenting the Court plan not in the name of liberalism and constitutional reform but on the ground that the justices were behind in their work, and thus as a measure to produce greater efficiency and expedition in the courts.

  Within a few weeks Roosevelt recognized this error. Abruptly shifting tactics, he decided to wage his campaign squarely on the basic issue of bringing the Court in line with the people. At a Democratic victory dinner early in March he seemed to be in the best of humor, but his voice was stern and commanding. He had given warning during the campaign, he observed, that “we had only just begun to fight. Did some people really believe we did not mean it? Well—I meant it, and you meant it.” Once again he spoke of “one-third of this Nation” as “ill-nourished, ill-clad, ill-housed.”

  The President’s switch came too late. Already another master politician was organizing his own opposition and preparing the means of puncturing the President’s weakest argument.

  That master politician was Charles Evans Hughes. Incensed by the “Court-packing” measure, eager in particular to rebut the President’s charge of inefficiency, the Chief Justice chafed under the Court’s historic self-denial of an overt political role. Roosevelt’s charge relating to the internal operations of the Court gave him just the opportunity he needed to intervene in the struggle. But how to be politically effective without appearing to be political? Brandeis, also indignant over the Court proposal, at this point suggested to Wheeler that the Montana senator ask Hughes to rebut the charge of inefficiency. Hughes not only was willing to do so but wished to make a personal appearance before the Senate Judiciary Committee, until Brandeis dissuaded him on the grounds that a letter would be enough.

  It was. Hughes’s clear and convincing rebuttal of the inefficiency charge marked a turning point in the Court battle. Ironically the Chief Justice, that devotee of protocol, neglected to clear his l
etter with most of the justices, leaving a good deal of ill feeling on the part of Stone in particular. But no matter; Hughes’s colleagues were not likely to complain publicly and never did. After all, the Chief was warding off presidential invasion of their turf.

  Far more momentous developments were now underway in the Court. Early in April, Roosevelt had still been optimistic about the Court bill’s prospects. Warned of the opposition’s determination both on the Hill and in the High Court, the President replied, “We’ll smoke ’em out. If delay helps them, we must press for an early vote.” But support was draining away, and then on April 12 came Hughes’s coup. In a packed, tense courtroom the Chief Justice read the long-anticipated holding of the Court on the Wagner Act. It was a vote to sustain the measure. In the 5-4 decision, Justice Owen J. Roberts was the swing man, voting with the pro-Wagner majority. He had heralded his shift earlier by reversing his vote of 1936 against state minimum-wage laws.

  Why was Roberts switching? Frankfurter believed he knew why. “And now,” he wrote “Dear Frank,” the President, “with the shift by Roberts, even a blind man ought to see that the Court is in politics, and understand how the Constitution is ‘judicially’ construed. It is a deep object lesson—a lurid demonstration—of the relation of men to the ‘meaning’ of the Constitution.” Roberts’s behavior, the Harvard law professor added, had come on top of the Hughes letter. “That was a characteristic Hughes performance”—part and parcel of his “pretended withdrawal from considerations of policy,” even while he was shaping them. Later Frankfurter regretted that he had imputed political considerations to Roberts, but careful analysis has made clear that Roberts began switching shortly after Roosevelt received his mandate the previous November.

  Hughes also appeared to be shifting away from some of his anti-New Deal positions, but like most politician-judges he had been flexible enough in those positions to make the jump plausible. In any event, his new stance was more important politically than judicially. He had consolidated a majority of the Court behind him; he had taken the heart out of the President’s argument about the Court’s inefficiency; he had upheld a measure dear to labor, whose interest in reform seemed to slacken after the Wagner law was upheld. And he had done all this without undue sacrifice of the Court’s dignity. The politician-judge had bested the politician-President.

  Roosevelt was all bravado. “I have been chortling all morning,” he told reporters after the Court switch. “I have been having a perfectly grand time.” He compared the Herald Tribune’s enthusiastic hailing of the Wagner Act decision with its approval two years before of a famous “brief” by Liberty League lawyers “invalidating” that act.

  “Well, I have been having more fun,” he went on, amid guffaws from reporters. “And I haven’t read the Washington Post, and I haven’t got the Chicago Tribune yet. Or the Boston Herald.…”

  Still, the President must have sensed the change in the situation. He might have declared victory and quit the battle, but his personal prestige was now so involved that he carried on the fight. Prospects dipped even further when Van Devanter announced his intention to resign. More bad luck as well as a personal loss followed when Robinson, who had been carrying the burden of the exhausting Court fight, fell dead in his hotel room, a copy of the Congressional Record in his hand. When Robinson’s heart was ruptured, ruptured as well were the bonds of fellow senators’ personal loyalty to him—bonds on which the Majority Leader, who hoped to lake Van Devanter’s place, had depended to win the Court fight and thus renew FDR’s obligation to him. A week later Vice President Garner came in to see the President.

  “How did you find the court situation, Jack?” FDR asked.

  “Do you want it with the bark on or off, Cap’n?”

  “The rough way,” Roosevelt said.

  “All right. You are beat. You haven’t got the votes.”

  Almost lost in the final smoke of battle was Roosevelt’s victory on the Wagner Act. The High Court’s switch could not have upheld a more vital New Deal measure. Like its predecessor, Section 7(a) of the NRA, the Wagner Act had helped stimulate workers’ self-organization in the nation’s industrial heartland, and had hence brought about a major redistribution of power. To be sure, the impact of the measure on unionization was limited by employers’ legal and physical obstruction, but the opposition of the bosses made it all the more central and valuable to the workers. On the floor of the Senate, Robert Wagner denounced the “organized and calculated and cold-blooded sit-down” against the law, which had come “not from the common people, but from a few great vested interests.” Make men free, “and they will be able to negotiate without fighting.”

  Men and women were already making themselves free. During 1936 and early 1937 tens of thousands of workers took matters into their own hands in the big auto, steel, rubber, and other mass-production industries of the nation. While Lewis and other CIO leaders were busy separating themselves from the AFL and deciding on a grand strategy for organizing big industry, rank-and-file leaders were using a most marvelous weapon—the sit-down. Employed during the mid-thirties by coal miners throughout Europe and by textile workers in India, the sit-down was a ready instrument of spontaneous, militant action. In the United States during 1937, 400,000 workers conducted almost 400 sit-down strikes in more than a dozen industries, and in the process transformed—for a time at least—the industrial world they lived in.

  It was a simple but daring device. Workers merely sat down amid their assembly lines—perhaps on the auto cushions they were supposed to install. If it was a “quickie” sit-down, workers would resume work after a few minutes, having sent their message to management. If it lasted days or weeks, workers’ friends and family sent in food and blankets. No need to set up picket lines; no need to worry about scabs. Management would hesitate to drive the strikers out for fear of bloodshed and damage to machinery. And sitting down in their own workplaces gave people an intoxicating sense of power. Some of them sang:

  When they tie the can to a union man,

  Sit down! Sit down!

  When they give him the sack they’ll take him back,

  Sit down! Sit down!

  When the speed-up comes, just twiddle your thumbs,

  Sit down! Sit down!

  When the boss won’t talk don’t take a walk,

  Sit down! Sit down!

  But the very potency of the weapon brought risks. It required shop-floor leadership of rare coolness, steadfastness, and judgment as well as militancy. A long sit-down required a measure of community support, and it demanded solidarity among and between Irish and Polish and Italians, whites out of Appalachia, blacks from the South. Above all, the sit-down was a direct and flagrant attack on the property rights of owners, a challenge to conventional middle-class attitudes, and a temptation to police, prosecutors, and judges who could use anti-trespass and other laws against it.

  Originally John Lewis & Co. had planned to concentrate first on Big Steel, on the theory that “as steel goes, so goes” unionization and much else. During early 1936, however, “quickie” shutdowns swept through the huge tire plants of Akron, and major sit-downs swept through the automobile industry during the following year. Encouraged by FDR’s big win over the GOP, and under some guidance from Lewis, workers concentrated on Fisher and other plants that supplied bodies and parts to General Motors plants.

  Sometimes strikes broke out over an incident, as when an active unionist was fired for jumping over a conveyor line in his hurry to get to a toilet three hundred yards away. But there was a broader logic in auto workers taking the lead, and against GM. Auto workers were already famous for their youthfulness and bravado. Their shop-floor militancy easily shifted into tumultuous, old-fashioned syndicalism, tending toward confrontation and violence. The structure of work in the auto industry encouraged militance: skilled workers such as welders and metal polishers who stuck together in small groups, partly to protect their jobs; a dense system of shop stewards who stayed close to their men;
and considerable direct dealing between stewards and foremen.

  So General Motors was the target—and some target! By 1937 GM was the world’s biggest manufacturing corporation in number of employees, sales, and profits. It was not “big but colossal,” Fortune enthused, “the hugest technological organism of our technological age,” the “world’s most complicated and most profitable manufacturing enterprise.” Its Chevrolet, Pontiac, Oldsmobile, Buick, and Cadillac-La Salle divisions, along with its Yellow taxi and related operations, claimed 45 percent of the American market. Considered by some the best-managed corporation in the country, under the leadership of Alfred P. Sloan, Jr., William Knudsen, and big Du Pont stockholders, GM had achieved a fine balance between centralized policy-making and decentralized operations. GM was tough on its executives, its suppliers, and its union employees. All this contrasted with the auto workers: undisciplined, factionalized, poorly coordinated, infested with spies for GM. It was David versus Goliath, and of course David had to win.

  “The most critical labor conflict of the nineteen thirties,” as Walter Galenson called it, erupted in Flint as 1937 dawned, and swept through Toledo, Detroit, and other cities. Flint set the pace. Organized in squads of fifteen under a captain, the sit-ins there carried on strike duties, conducted health and safety inspections, played cards and checkers, attended classes in labor history, did KP, ate meals brought in from outside, and settled down at night among their products, sometimes in cushy Fisher bodies. General Motors seemed muscle-bound. A friendly judge in Flint who ordered the strikers out of a Fisher plant was exposed as all too friendly—he owned several thousand shares of GM stock. When GM cut off food and heat, strikers drove off encroaching police with a barrage of pop bottles and brickbats.

  This violence projected Governor Frank Murphy into the struggle. Murphy was a far cry from the compliant Republican politicos who so often had aided big corporations in their labor struggles. Proud of his Irish heritage, devout in his Roman Catholicism, gentle in manner, he was also a stalwart civil libertarian, a committed liberal Democrat, and so ambitious as to talk of becoming the first Catholic President of the United States. Murphy called out the National Guard, not to attack the strikers but to curb violence on both sides. He also tried to mediate the dispute; when this failed, negotiations shifted to Washington, where the newly reinaugurated President and Frances Perkins pressured Sloan and Lewis for settlement. Tension mounted as the auto workers occupied another huge GM plant, a judge unencumbered by GM stock issued a new injunction, and Murphy warned Lewis that the authorities would have to carry out the court order.