There is a rule of economy in politics. “The perfect party victory,” it has been said, “is to be won by accumulating a relatively narrow majority, the mark of the skillful conduct of politics.” To win a great majority of votes may involve such commitments as to make victory politically embarrassing. From such a standpoint Roosevelt’s landslide was political extravagance. Of course, he had not expected to win by such a sweep, and he did not have the benefit of hindsight. But much would depend on the decisions he made as he strove to govern with his top-heavy majority.
Such speculations as these, however, would have seemed academic indeed in November of 1936. Roosevelt was at the peak of his political form. When he sailed on the Indianapolis for a good-will tour to South America late that month, he left an America that was itself bursting with good will toward its leader. Rested by the trip and greeted by huge throngs in Rio de Janeiro and Buenos Aires, he was as captivating as ever.
He looked forward confidently and eagerly to his second term, which would start in January 1937 rather than March as a result of the passage of a constitutional amendment. All seemed well and calm at home—his only worry was the situation abroad. “… I still don’t like the European outlook,” he wrote Eleanor at the end of November.
PART 4
The Lion at Bay
FIFTEEN
Court Packing: The Miscalculated Risk
WAS IT AN OMEN? The famous Roosevelt luck seemed to forsake the President on the January day in 1937 when he entered his second term. Bursts of cold rain soaked the gay inaugural decorations, furled the sodden flags around their staffs, and drenched dignitaries and spectators alike while they gathered below the Capitol rotunda. The rain drummed on the cellophane that covered Roosevelt’s old family Bible, as he stood with upraised hand facing Chief Justice Hughes.
They eyed each other, the old judge, his wet whiskers quivering in the wind, the resolute President, jaw stuck out. Hughes read the oath with slow and rising emphasis as he came to the words “promise to support the Constitution of the United States.” Roosevelt gave the words equal force as he repeated the oath. At this point, he said later, he wanted to cry out, “Yes, but it’s the Constitution as I understand it, flexible enough to meet any new problem of democracy—not the kind of Constitution your Court has raised up as a barrier to progress and democracy.”
The President turned to the rain-spattered pages of his inaugural address. “When four years ago we met to inaugurate a President, the Republic, single-minded in anxiety, stood in spirit here. We dedicated ourselves to the fulfillment of a vision—to speed the time when there would be for all the people that security and peace essential to the pursuit of happiness. We of the Republic pledged ourselves to drive from the temple of our ancient faith those who had profaned it; to end by action, tireless and unafraid, the stagnation and despair of that day. We did those first things first.”
But the covenant “with ourselves” did not stop there. “Instinctively we recognized a deeper need—the need to find through government the instrument of our united purpose to solve for the individual the ever-rising problems of a complex civilization. Repeated attempts at their solution without the aid of government had left us baffled and bewildered. For, without that aid, we had been unable to create those moral controls over the services of science which are necessary to make science a useful servant instead of a ruthless master of mankind. To do this we knew that we must find practical controls over blind economic forces and blindly selfish men.”
The rain poured down, dripped off Roosevelt’s bare head, dulled the cutting edge of some of his sentences. As the intricacies of human relationships increased, he said, so power to govern them also must increase—power to stop evil, power to do good. “The essential democracy of our Nation and the safety of our people depend not upon the absence of power, but upon lodging it with those whom the people can change or continue at stated intervals through an honest and free system of elections.” Did the Chief Justice, sitting a few feet away on the President’s right, catch the faint warning in the sentence?
The President was turning now to the future. “Shall we pause now and turn our back upon the road that lies ahead?” He looked at the crowd. “Many voices are heard as we face a great decision. Comfort says, ‘Tarry a while.’ Opportunism says, ‘This is a good spot.’ Timidity asks, ‘How difficult is the road ahead?’ ” The nation had come far since the days of stagnation. But dulled conscience, irresponsibility, and ruthless self-interest already were reappearing. Here was the challenge to American democracy:
“In this nation I see tens of millions of its citizens—a substantial part of its whole population—who at this very moment are denied the greater part of what the very lowest standards of today call the necessities of life.
“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 whose daily lives in city and on farm continue under conditions labeled indecent by a so-called polite society half a century ago.
“I see millions denied education, recreation, and the opportunity to better their lot and the lot of their children.
“I see millions lacking the means to buy the products of farm and factory and by their poverty denying work and productiveness to many other millions.
“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.…
“To maintain a democracy of effort requires a vast amount of patience in dealing with differing methods, a vast amount of humility. But out of the confusion of many voices rises an understanding of dominant public need. Then political leadership can voice common ideals, and aid in their realization.
“In taking again the oath of office as President of the United States, I assume the solemn obligation of leading the American people forward along the road over which they have chosen to advance.…”
BOMBSHELL
Just two weeks later Roosevelt and Hughes faced each other once again—this time in the gracious, brilliantly lighted East Room of the White House. It was the President’s annual dinner for the judiciary. At the center of the scene were the President, jauntily waving his cigarette holder to point up his stories, and the great jurist. Both were in a jovial mood; the talk ran fast and free. Around them were banked others of the nation’s great—cabinet members, judges, senators, bankers, even the Gene Tunneys.
The jollity barely concealed a certain tension in the air. Key New Deal measures were crowding the Supreme Court’s docket. Rumors were running through Washington that Roosevelt, armed with his huge popular endorsement, was aiming some kind of attack on the Court. Besides the President only a handful present knew the truth of the rumors. Watching Roosevelt and Hughes, Attorney General Cummings wished the secret were out. “I feel too much like a conspirator,” he complained to Rosenman. Roosevelt, on the other hand, was probably savoring the irony of the moment. On the eve of a great battle the commander of one side was giving a banquet to his adversaries.
But the President was a bit nervous too. During the next two days he pored over his message to Congress, adding, erasing, shifting phrases and sentences. His main concern was to keep his plan secret; he had not told some of his closest aides. On February 4 he called an extraordinary meeting of cabinet members and congressional leaders for the following day. Amazed White House stenographers were told to report at 6:30 the next morning to mimeograph documents for this meeting and for a press conference.
Next morning the cabinet and congressmen waited wonderingly in the long, low-ceilinged cabinet room. The President was quickly wheeled in. He called out cheery greetings, then turned directly to the business at hand. Announcing his intention to meet the challenge posed by the Court, he read excerpts from his message that would go to Congress in an hour.
Amid dead silence, he outlined his 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 message to Congress talked much of judicial efficiency, congestion in the courts, the need for new blood, the problem of injunctions; and the President’s bill involved new appointments at the district and circuit court level too. But the crux of the proposal leaped out from the long legal phrases—the power Roosevelt was asking to flank Hughes and his brethren with six New Deal justices.
The meeting was a study in mixed emotions. Ickes was elated that the President had moved at last. Cummings, twiddling his pince-nez with a slightly self-important air, was pleased to have long been a part of the unfolding drama. But the congressional delegation sat as if stunned. Garner and Rayburn said not a word. Robinson, deep concern written on his face, gave a feeble indication of approval. Henry Ashurst, chairman of the Senate Judiciary Committee, must have thought of his heated denial during the campaign that Roosevelt would try to pack the Court, but he loyally spoke out in support of the bill. Speaker Bankhead bore a poker face throughout.
There was virtually no discussion; the President solicited no opinions from his party’s leadership. At the end he wheeled off to meet a waiting group of newspapermen. Over this session Roosevelt presided like an impresario. Again and again bursts of laughter punctuated his reading of his message to Congress, as he interpolated telling little points; the President threw his head back and joined in the laughter. Once again he demanded absolute secrecy until the message was released.
Driving back to Capitol Hill from the White House, Garner and his colleagues were still silent. Suddenly Hatton Sumners of Texas, chairman of the House Judiciary Committee, turned to the others. “Boys,” he said, “here’s where I cash in.” The group took the news to Congress with them. By the time the message was read, the cloakrooms were filled with little knots of legislators asking one another, “What do you think of it?” In the first hours it seemed as though the proposal cut through each House, down the middle. Two sons of Texas signalized the extremes. In the House, New Deal Representative Maury Maverick grabbed a mimeographed copy of the bill, scribbled his name on it, and threw it into the bill hopper almost before the reading clerk was finished. In the Senate lobby Garner held his nose with one hand and vigorously shook his turned-down thumb.
A messenger hurried across the plaza to the Supreme Court building. Inside, the justices were hearing an argument. Only Brandeis had heard the news; just before the justices entered the Court, Corcoran, with Roosevelt’s consent, had “crashed the sacred robing room” to tell him, and Brandeis had instantly expressed his disapproval. Now a page slipped through the draperies behind the dais and handed a paper to each Justice. The attorney at bar, sensing the sudden tension on the bench, paused a moment. Hughes shifted restlessly in his chair, Van Devanter looked grim, Butler seemed to chuckle. But judicial mien quickly reappeared, and proceedings continued.
Blazing headlines carried the news to the people during the afternoon. Next morning, reading the newspapers in bed over his breakfast tray, the President was not surprised at the howls of anguish in the editorial columns. He had expected this; what he was banking on was the approval of the people. As it turned out, the proposal at the outset split the American people neatly in half. Could Roosevelt mobilize a popular majority behind his plan? Could he convert such a majority into congressional action?
The suddenness of Roosevelt’s move, the obvious pleasure he found in presenting his handiwork, and the utter secrecy that surrounded its preparation all gave the impression of a proposal that had been hastily cooked up after the election. Actually Roosevelt had been considering judicial reform for over two years.
Even before the Court’s all-out attack on the New Deal in 1935 Roosevelt was thinking of enlarging the Court to protect his legislation. That he would not brook judicial opposition on a crucial matter was apparent from the radio address to the nation he planned in the event that the Court found against him in the gold cases. Only the Court’s slim vote in his favor turned him from defiance of the Court through presidential proclamation and an appeal to Congress. When the Court voided the NRA and other measures, the President’s view that action must be taken steadily hardened.
But what to do? For a while Roosevelt had toyed with the idea of a constitutional amendment. Various types were possible: directly enlarging congressional authority in specific economic and social fields; granting Congress power to re-enact and thus “constitutionalize” a measure voided by the Court; requiring a six to three or even a seven to two vote in the Supreme Court to strike down an act of Congress; setting an age limit on judges or giving them terms instead of appointments for life. Eventually Roosevelt decided against the amendment method. At best it would take too long. More likely, an amendment, even if it won two-thirds majorities in House and Senate, would never hurdle the barriers carefully contrived by the framers of the Constitution—three-quarters of the state legislatures or of state conventions—especially since these assemblies tended to overrepresent conservative, small-town interests and attitudes.
“Give me ten million dollars,” the President said later, “and I can prevent any amendment to the Constitution from being ratified by the necessary number of states.”
Could an act of Congress do the trick? A measure that directly challenged the High Court by trying to curb its power would probably be voided by the Court itself. There was another method, however, that seemed certainly constitutional because it was sanctioned by precedent. This was to enlarge the Court’s membership, as previous presidents had done, by inducing Congress to authorize new appointments. At first, packing the Court seemed distasteful to the President, perhaps because the objective would be so transparent. But he kept returning to the idea. He was fascinated by a historical precedent—Asquith’s and Lloyd George’s threat through the King to pack the House of Lords with new Peers if that chamber refused to bow to the supremacy of the House of Commons.
Clearly the President feared a direct assault on the Court. Perhaps he sensed—as polls indicated—that in late 1935 most of the people opposed restriction on the Court’s veto power. The Democratic platform of 1936 had come out only for some “clarifying amendment.” During the campaign Hoover and others demanded that the President confirm or deny that he planned to pack the Court. Roosevelt not only ignored the specific question—as a seasoned campaigner would—but he skirted the whole problem of the Supreme Court. Doubtless his silence helped him roll up his great majority—but it also meant that he gained no explicit mandate to act on the Court.
At the first cabinet meeting after the election Roosevelt raised the Court issue. He expected, he said with mock glumness, that McReynolds would still be on the bench at the age of one hundred and five. An appeal to the people might be necessary. The problem “must be faced,” he wrote to Joseph Patterson of the New York Daily News. But how to face it? Before Roosevelt left on his cruise to South America, he set Cummings to work in Washington poring over a sheaf of plans for overcoming the nine old men—or at least five of them.
Mulling over various proposals one December morning, Cummings ran across a recommendation that Attorney General—now Justice—McReynolds had made in 1913 that when any federal judge, except Supreme Court justices, failed to retire at the age provided by law, the President should appoint another judge to preside over the Court and to hold precedence over the older one. Why not, thought Cummings, apply the idea to the Supreme Court?
“The answer to a maiden’s prayer!” Roosevelt reportedly exclaimed when Cummings brought in his idea. And so it must have seemed. The plan was clearly constitutional. It was, compared with most of the other proposals, quite moderate in character, involving no change in the venerable system of checks and balances. Most important, the plan could be presented to the country as part of a broader program of reconstructing the whole federal judiciary in the name not of liber
alism but of greater efficiency and expedition in the courts. And Roosevelt, with his penchant for personalizing the political opposition, must have delighted in the thought of hoisting McReynolds by his own petard.
All that remained was the matter of how to present the plan. Why did Roosevelt insist on almost conspiratorial secrecy? Why did he spring the plan suddenly on Robinson, who would have to manage the fight in the Senate; on Ashurst, who just before had hotly denied that Roosevelt had any plans for packing the Court, on his old progressive ally Norris, on Brandeis and Stone, on Rayburn and Garner, on Farley and Ickes, even on McIntyre and Early? Roosevelt explained to Farley that he feared premature disclosure by the press. This explanation is unconvincing. Roosevelt was too astute a politician to think that secrecy was worth the price of excluding key leaders from the decision-making conferences. Moreover, Roosevelt himself had leaked the essence of the plan to a Collier’s writer a few weeks before the announcement.
The explanation lies deeper—deep in Roosevelt’s personality. He had won what he considered to be a personal election victory over the Old Guard. Now the Old Guard remained entrenched in the ramparts of the judiciary. The stage was set for a Rooseveltian onslaught against the citadel as exhilarating and triumphant as his rout of the Republicans. He set the stage with his old flair for timing and suspense. His final presentation combined in a curious fashion two Rooseveltian traits—his instinct for the dramatic and his instinct for the adroit and circuitous stratagem rather than the frontal assault.
Both instincts failed him. “Too clever—too damned clever,” said one pro-New Deal newspaper. The President’s liberal friends were disturbed. Some of them had hoped that Roosevelt would make a direct attack on the Court’s conservative veto. Others used his disingenuousness as an excuse to desert the cause. Still others disagreed with his particular plan. Years before, Roosevelt had lamented that reform came slowly because liberals had such difficulty in agreeing on means. His words would fly back to mock him in 1937.
The Definitive FDR Page 40