The Definitive FDR

by James Macgregor Burns

  Sitting loftily behind the immense mahogany bar in their magnificent red-draped chamber, the nine old men of the Supreme Court seemed far above the reach of partisan politics. Never in all its history had the Court so faithfully met the popular stereotype of majestic judges enunciating almost divinely inspired law. In the exact center sat Chief Justice Hughes, with his chiseled features, white goatee, and bushy eyebrows. Flanking him were eight other elderly, dignified men, whose tenure stretched back over the decades. One had been appointed by President Taft, two by Wilson, the rest by Harding, Coolidge, and Hoover, none by Franklin D. Roosevelt. Their average age in 1936 was seventy-one.

  But if all was quiet in the High Court, it was, as Justice Holmes had once said, the quiet of a storm center. Behind the judicial masks there burned passionate convictions about politics and policy. Judges are human, and their decisions, in the words of a close student of the judiciary, are not brought by constitutional storks, but are born out of the travail of economic and social circumstances. Most of the justices had once been vote-seeking politicians; all of them had climbed to their judicial eminence through the push and jostle of the competitive world.

  Like a legislature, the Court had its right, its left, and its center. Lined up as a solid phalanx on the right were the learned Willis Van Devanter, an Old Guard Republican who had helped McKinley beat Bryan in 1896; the churlish James Clark McReynolds, successively a Gold Democrat, Wilson’s Attorney General, and now the most outspoken conservative on the Court; the bewhiskered George Sutherland, a Taft man in 1912, president of the American Bar Association in 1918, rewarded by Harding with a seat on the high bench in 1922 after he had failed of re-election to the Senate; and the tall, bulky Pierce Butler, an Irish Catholic railroad attorney and conservative Democrat appointed by Harding over the bitter protests of Senator Norris. The main tie binding these men was their common origin in or near the pioneer life of the frontier, their common belief in the ideology of laissez faire, individualism, and free competition.

  “Steady the boat,” Chief Justice Taft had admonished the four shortly before he retired, and they were still steadying the boat.

  On the left was a remarkable trio. Most distinguished was the ascetic-looking Louis D. Brandeis, the famous “People’s Advocate” whose appointment to the Court by Wilson had met the bitter opposition of Taft, Root, and five other ex-presidents of the American Bar Association. Harlan F. Stone, a granite-faced New Englander, had been dean of Columbia Law School and Coolidge’s Attorney General before his fellow Amherst alumnus appointed him to the Court. White-thatched Cardozo had been a brilliant New York State judge and legal craftsman for many years before Hoover elevated him on Norris’s and Borah’s urgings.

  In the middle were the “swing men”: Roberts and Chief Justice Hughes. At sixty-four the youngest member of the Court, Roberts had been a law professor, corporation lawyer, and Coolidge’s prosecutor of the oil cases, before Hoover chose him for the Court in 1930. First appointed to the Court by Taft, Hughes had resigned to campaign for President against Wilson in 1916; he served as Harding’s and then Coolidge’s Secretary of State and returned to the Court as Chief Justice in 1930. An old acquaintance of Roosevelt’s, Hughes had a meticulous sense of constitutional checks and balances; although the President had written Cardozo that he hoped he could have at least in part the same type of “delightful” relations with the Supreme Court that he had had with the Court of Appeals in Albany, Hughes, aside from official functions, had carefully kept his judicial distance from the White House.

  Teetering on these three- or four-way divisions, the Court had followed a mixed course in passing on the social and economic measures of the 1930’s. It had upheld state moratorium laws on mortgage foreclosures, state price-fixing legislation and milk control laws. Five to four it had sustained the congressional resolution voiding gold payment requirements in private contracts, with McReynolds storming that the Constitution was “gone.” Then in staccato blows in the spring of 1935 the Court had struck down the Railroad Retirement Act, the NRA, the Frazier-Lemke Farm Mortgage Act. Most ominous for the New Deal was the solidity of the conservative four and the unpredictability of the swing men. Was Roberts—perhaps even Hughes too—now enlisted on the right for the duration?

  At precisely high noon on January 3, 1936, the Chief Justice parted the center curtains and he and his eight brethren suddenly appeared behind their chairs while the clerk intoned his “Oyez” and concluded, “May God save the United States.” Slowly, precisely, hardly looking at the pages before him, Justice Roberts began the Court’s opinion in U.S. v. Butler, involving the constitutionality of the Agricultural Adjustment Act. This case concerned no horny-handed farmer rebelling against bureaucratic controls from Washington, but the refusal of receivers of a bankrupt New England textile company to pay processing taxes under the act. Their counsel, conservative old ex-Senator George Wharton Pepper, attacking the constitutionality of the act, had concluded his argument with a plaintive plea that not in his time would “the land of the regimented” be accepted as a worthy substitute for “the land of the free.”

  While the packed audience waited anxiously for some clue, Roberts’ dry voice went interminably on. First he reviewed the old story of Hamilton’s broad view versus Madison’s narrow view of the power of Congress to tax for and spend for the general welfare. When Roberts plumped for the Hamiltonian view, the audience stirred with the thought that the AAA was safe. But no —now Roberts was saying that the processing tax was not merely a tax but part of a plan. And what was the plan? By the AAA “the amount of the tax is appropriated to be expended only in payment under contracts whereby the parties bind themselves to regulation by the Federal Government.” Congress was trying to buy a compliance it was powerless to command. The asserted power of choice was an illusion.

  Then Roberts conjured up a parade of imaginary horribles—things that Congress might regulate, such as shoes and education, if the claimed national power was sustained. This brought him to the heart of his real, though veiled, position. Although Roberts early in the case had said that the Court could not consider the merits of laws but could merely lay the Constitution beside the statute to see if the latter “squares with” the former—this later came to be called the “slot machine” theory of judicial review—Roberts went on to violate his own theory by questioning the whole idea of legislative power. He simply had no confidence in the capacity of Congress to act with self-restraint, or ultimately in the wisdom of the people who elected it. He feared that Congress would become “a parliament of the whole people, subject to no restrictions save such as are self-imposed.” And for this position Roberts had enlisted not only the “steady four” but Hughes as well.

  “A tortured construction of the Constitution,” Stone declared in an indignant dissent for himself, Brandeis, and Cardozo. “Courts are not the only agency of government that must be assumed to have capacity to govern. Congress and the courts both unhappily may falter or be mistaken in the performance of their constitutional duty. But interpretation of our great charter of government which proceeds on any assumption that the responsibility for the preservation of our institutions is the exclusive concern of any one of the three branches of government, or that it alone can save them from destruction is far more likely, in the long run, ‘to obliterate the constituent members’ of ‘an indestructible union of indestructible states’ than the frank recognition that language, even of a constitution, may mean what it says: that the power to tax and spend includes the power to relieve a nationwide economic maladjustment by conditional gifts of money.”

  Stone reminded the Court of Holmes’s famous injunction: “It must be remembered that legislators are the ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.” Perhaps the subtle barb struck home, but the “steady four” remained impassive. They had the votes.

  In the White House, Roosevelt was talking with Secretary of War Dern when a secretary came in
with the bad news on a slip of paper and laid it before him. Eager reporters crowded around Dern afterward: How had the President reacted to the news? “He just held the sheet of paper in front of him,” said Dern, “and smiled.” The smile was significant. To this decision Roosevelt would enter no dissenting opinion, no “horse-and-buggy” remark. The situation had gone far beyond such talk. More than any other previous decision, Attorney General Robert H. Jackson later remembered, the Butler case had turned the thoughts of men in the administration toward the impending necessity of a challenge to the Court. Roosevelt’s smile was that of a fighter ready for the struggle ahead, perhaps too of a tactician watching his opponent overextend himself.

  “It is plain to see,” wrote Ickes in his diary after a cabinet meeting later in the month, “from what the President said today and has said on other occasions, that he is not at all averse to the Supreme Court declaring one New Deal statute after another unconstitutional. I think he believes that the Court will find itself pretty far out on a limb before it is through with it and that a real issue will be joined on which we can go to the country. For my part, I hope so.”

  If such was Roosevelt’s tactic, the Supreme Court walked straight into the trap. There was a lull when the TVA won validation of its right to sell power generated at Wilson Dam, with only McReynolds dissenting. But on May 18 the work of demolition was resumed. In Carter v. Carter Coal Co. Hughes sided with Roberts and the rightists in ruling invalid the labor provisions of the Bituminous Coal Conservation Act of 1936. A week later the Court in another 5-4 split voided the Municipal Bankruptcy Act on the ground that it infringed on the rights of states to deal with their municipalities.

  The climax came on June 1, 1936. With the national conventions only a few weeks off, the Court took a step that was bound to plunge it into the political turbulence of the year. By another 5-4 decision it invalidated the New York minimum wage law—and in effect those of other states as well. Probably more than any other action, concluded a historian of the Court, this decision “revealed the grim and fantastic determination of the narrow Court majority to preclude legislative intervention in economic and social affairs.” For all its fine words about the reserved powers of the states, the Court seemed to be as much against state New Deals as it was against the national one. In a ringing dissent Stone warned that a legislature must have necessary economic powers or government would be rendered impotent. Privately Hughes was deeply troubled by the excesses of the “steady four.”

  Roosevelt put his finger on the crucial consequence of the decision. The Court, he said, was creating a “no-man’s-land” where neither state nor federal government could function.

  “How can you meet that situation?” a reporter asked.

  “I think that is about all there is to say on it,” Roosevelt replied. The President would not tip his hand—yet.

  Another result of the Court’s actions was to make necessary a fuller legislative program than the President originally had planned. The Court’s upset of the AAA left Congress floundering until Wallace and farm organization leaders worked out a method of crop control through an expansion of the Soil Conservation Act of 1935. After the AAA’s derailing denied the government half a billion in processing taxes, the President, without consulting even the House Ways and Means Committee, sent specific instructions on a new tax program. Swallowing their pride, congressmen voted for those features most palatable in an election year—a graduated tax on undivided profits and on all corporate income, and a “windfall” tax aimed at those processors who had profited as a result of the Butler decision. A legislative item left over from the second Hundred Days and from the vacuum created by the NRA overthrow was the Walsh-Healey bill regulating labor standards of firms receiving government contracts.

  On other matters the President held the presidential reins over Congress rather loosely. A conspicuous example was the veterans’ bonus bill. The year before, Roosevelt had vetoed the bill in a brilliant message that he had delivered orally to Congress, and Congress had sustained him by a hair. This year the congressmen were scrambling for their cyclone cellars, fearful of veterans’ wrath in November. Recognizing their plight, Roosevelt forsook his valiant role of yesteryear and sent Congress a feeble note indicating that he had not changed his mind. Congress passed the bill over presidential veto. What was good election politics for the President was evidently not good election politics for congressmen. By this method of playing both ends against the middle, both the President and his cohorts could live to fight another day.

  A final consequence of the judicial demolition was further to confirm Roosevelt in his leftward direction. After years of wobbling back and forth along a middle way, the President was now committed to a militant if still somewhat ambiguous and limited progressivism. And this development raised the whole question of Roosevelt’s relationship to the American right.

  ROOSEVELT AS A CONSERVATIVE

  For months a vast bitterness against the President had been welling up from what Ickes later would call the grass roots of every country club in America. This bitterness varied in tone from the august denunciations of the Liberty League and the big business associations to the stories that went the rounds of club and bar. Some of these, touching on the President’s egoism and compulsion to dominate, were genuinely funny, and no one laughed louder at them than did Roosevelt. Others were mean and smutty, told behind cupped hands in Pullman cars. Still others were simply fantastic, such as the widely circulated stories about maniacal laughter someone had heard from the President’s study in the White House, about doctors wheeling away a limp, gabbling figure.

  Roosevelt could laugh at his right-wing foes. He roared at a story that George Earle brought him about four wealthy members of Philadelphia’s exclusive Rittenhouse Club who were sitting in the library late in 1935 sipping drinks and damning the President and all his works. After a while one of them happened to turn on the mahogany-encased radio. Suddenly a well-known voice came out referring scornfully to criticisms of the New Deal by “gentlemen in well-warmed and well-stocked clubs.” It was Roosevelt, making a speech in Atlanta.

  “My God!” exclaimed one of the men, according to Earle’s story, “do you suppose that blankety blank could have overheard us?”

  But the President was also confused and hurt by the rancor from the right. He had not sought it. Had he not saved the capitalistic system? It was with political guile but also in real perplexity that later in the year he told his fable:

  “In the summer of 1933, a nice old gentleman wearing a silk hat fell off the end of a pier. He was unable to swim. A friend ran down the pier, dived overboard and pulled him out; but the silk hat floated off with the tide. After the old gentleman had been revived, he was effusive in his thanks. He praised his friend for saving his life. Today, three years later, the old gentleman is berating his friend because the silk hat was lost.”

  What had happened? It has often been said that Roosevelt betrayed his class, historian Richard Hofstadter has noted, “but if by his class one means the whole policy-making, power-wielding stratum, it would be just as true to say that his class betrayed him.” If so, how can this be explained?

  The mystery deepens when Roosevelt is viewed less in his familiar posture as a liberal or progressive, and more as a conservative acting in the great British conservative tradition. That tradition has its cloudy and contradictory aspects, but certain of its elements have shown a tenacity and continuity down through the years. They are: the organic view of society, compelling a national and social responsibility that overrides immediate class or group interest; a belief in the unity of the past, the present, and the future, and hence in the responsibility of one generation to another; a sense of the unknowable, involving a respect for the limits of man’s knowledge and for traditional forms of religious worship; a recognition of the importance of personal property as forming a foundation for stable human relationships; personal qualities of gentility, or gentlemanliness, that renounce vulgarity a
nd conspicuous display and demand sensitivity to other persons’ needs and expectations; and an understanding of the fact that while not all change is reform, stability is not immobility.

  “MOTHER, WILFRED WROTE A BAD WORD!”, Dorothy McKay, reprinted from Esquire, November, 1938, copyright by Esquire, Inc., 1938

  If such are some of the chief lineaments of an enduring conservatism, Roosevelt seems to have been a conservative by many tests.

  During his first two years in office Roosevelt could hardly have displayed more loyalty to the conservative belief in the need for an abiding devotion to some national or general interest that transcended party, or group, or sectional concerns. He called for a national effort against economic crisis; he played down the role of party and partisanship. He proclaimed the need for a true concert of interests, and the NRA, as he visualized it, was simply the institutionalization of that idea. He was leader of all the people, and he was perfectly willing to subordinate the interests of his class to his idea of the national interest at the same time that all other interests found an equal place in the national plan.

  A belief in the unity of past, present, and future? This central concept of Edmund Burke was a root principle in Roosevelt. It revealed itself in his absorbing concern for his ancestors, for Dutchess County history, for local customs and traditions; in his lifelong interest in tree farming; in his solicitous concern for the national heritage, however vaguely he conceived it, that was passing through one generation of Americans after another. Probably the most persistent interest he had in public policy involved conservation of natural and human resources.

  Roosevelt was a religious man—“a very simple Christian,” his wife once called him. He was christened in St. James Episcopal Church in Hyde Park, became a vestryman there in 1928, and later the senior warden, as his father had been before him. He liked the hymns and Psalms, the order and routine of the church. The intensity of his religious feeling is not easy to gauge; certainly there was a strong conventional element, and church attendance for him was at least as much a politically and symbolically important ritual as it was an opportunity for communion. He was unconcerned about religion as a philosophy, although toward the end of his life he became interested in Kierkegaard.