Brandeis and Holmes were the only dissenters in these two cases. Writing in Whitney, Brandeis alluded to the court’s abuse of Holmes’s “clear and present danger” standard. “Only an emergency can justify repression,” he wrote, and then appealed to the Founders whose legacy conservatives like Taft professed to uphold: “Those who won our independence by revolution were not cowards.” Unlike his conservative colleagues, Brandeis suggested, “they did not fear political change. They did not exalt order at the cost of liberty. . . .”
COMPARED TO Harding’s four court selections in the three years before his presidency was cut short by his death, his successor, Calvin Coolidge, had only one pick in five years—Harlan Fiske Stone. That single appointment, though, would have an impact on the court rivaling that of Holmes and Brandeis. Long after, court watchers wondered how one of the most conservative of presidents could choose a liberal-minded justice who in the 1930s would become a leader of the resistance to the forces of reaction. At the time, though, it seemed a reasonable choice. Stone, like Coolidge, had deep New England roots, an old-line Republican father, and a degree from Amherst College. Stone attended Columbia Law and served as its dean, and practiced corporation law, acting as counsel to J. P. Morgan. After Coolidge won a full term in 1924, Stone joined the cabinet as attorney general and promptly cleaned house in the Justice Department, which had been the source of many of the Harding scandals.
Stone also had the right enemies for conservatives like Coolidge. Senator George Norris of Nebraska and five other progressives voted against his confirmation. Doubtless those progressives were surprised even more than Coolidge himself when Stone joined Holmes and Brandeis in many of their dissents. As for Taft, he became convinced that Stone had been seduced and corrupted by his two senior colleagues.
Stone’s appointment scarcely diminished Taft’s conservative majority. Yet the chief justice was fretful and frustrated. The truth was, he hated dissent. On the rare occasions when he was in the minority, he kept quiet about it, writing only three dissenting opinions in nine years on the court. Dissent, he believed, was a reflection on his leadership, and it weakened the court’s authority, its power to make the law certain. Taft prized teamwork—all the justices pulling in harness. He paid close heed to the personalities of the brethren, attended to their comforts, tried to be scrupulously fair in assigning opinions. He encouraged a vigorous airing of views in conference, made concessions to bulk up a majority, and sometimes, especially early in his tenure, allowed himself to be persuaded by Holmes or Brandeis to change his mind. But unanimity proved to be an elusive thing.
Taft’s curse was that in Holmes and Brandeis he faced two men whose “attitude of protest,” as he called it, and hunger for combat were keen and unrelenting. The two were among the most probing, original intellects—and best writers—ever to sit on the Supreme Court. They did not merely disagree with the conservative majority. Their dissents were annihilating. The skepticism and pragmatism of Holmes and the modernizing, sociological jurisprudence of Brandeis slashed at the intellectual roots of the conservatives—their theory and logic, their premises and evidence.
Those conservative roots lay deep in the nineteenth century, based upon what Holmes had as long ago as 1905, in his Lochner dissent, dismissed as an outdated minority view. Brandeis’s fame as a lawyer had come from his campaign to persuade judges to confront modern facts and problems. Now every defeat, Taft said, “colors the rest of the day which follows and one despairs of the Republic.” As a student of constitutional history, Taft well knew how dissenting opinions could in time become majority rulings. A man who had twice remade the Supreme Court—as president and as Harding’s mentor—Taft understood the power of appointments to shape its direction. The reign of conservative justices had been ensured by a nearly unbroken line of Republican presidents stretching back more than half a century. Now even Herbert Hoover, the Republican elected in 1928, frightened Taft. He was convinced that, “if a number of us die, Hoover would put in some rather extreme destroyers of the Constitution.”
Taft’s was a striking display of doubt about his legacy, about the strength and viability of what the generations of conservatives had made of the Constitution. He knew that the Supreme Court stood outside the mainstream of public opinion, that people wanted and expected more from their government than the court would allow. But that was the court’s purpose—to stand against the unwise demands of “the leviathan, the People,” to preserve “the form of government as prescribed by our fathers.” Especially as the nation’s economy plunged into depression, Taft saw himself as the man who could “prevent the Bolsheviki from getting control.”
When he retired in 1930, utterly spent and ill, he was little comforted that his successor would be Charles Evans Hughes, the man who had been his own first choice for the job in 1910 and had been waylaid by Taft’s ambitions, or that Hughes, now at sixty-eight the oldest man to become chief justice, had indicated that in the war against the “era of regulation,” the Supreme Court’s ultimate weapon of judicial review “is likely to be of increasing value.”
Two weeks after Hughes took his seat on the court, Taft died. After him, the deluge.
CHAPTER EIGHT
F DR’s Boldest Gamble
BY THE TIME Franklin Delano Roosevelt took the presidential oath of office on March 4, 1933, the Great Depression seemed to have no bottom. Beginning with the stock market collapse in late 1929, the nation had plunged into an economic catastrophe. Thousands of banks and businesses had shut down. Fifteen million Americans—a third of the workforce—were out of jobs. Agricultural prices had dropped below the costs of production, leaving millions of farmers on the edge of insolvency. The political climate had changed drastically, as the cataclysm swept the Republican party out of power. Now Congress was firmly in Democratic hands. President Hoover, denounced for doing nothing to meet the crisis, had suffered a nationwide defeat at the polls in 1932, crushed by an upstart New York governor vowing a “New Deal.”
Franklin Roosevelt promised to attack the Depression with “action, and action now,” in a spirit, as he said, of “bold, persistent experimentation.” In his first hundred days in office, he initiated a wide range of measures that dramatically expanded federal intervention in the economy and challenged the rule of laissez faire. The new president launched the largest relief program in American history, extended federal regulation over the stock market, banks, and transportation, and mandated the restructuring of mortgage debt to save homeowners from foreclosure. The Tennessee Valley Authority was a grand foray into national planning, designed to develop a vast region’s resources under public ownership and control. The Agricultural Adjustment Act sought to restore farm income by guaranteeing parity prices to farmers who agreed to cut production. The cap-stone was the National Industrial Recovery Act, passed in June 1933, which ambitiously sought to end the old conflict between capital and labor by promoting “a great cooperative movement throughout all industry.” The NIRA would allow business to develop codes of fair competition, supervised by the president, and give government the authority to regulate labor relations. The aim, above all, was to put millions of Americans back to work.
These and a host of other measures passed over feeble Republican opposition in Congress, and then moved on to the federal courts, finally arriving at that bastion of the old economic order—the Supreme Court—where the lottery of appointments and tenure still prevailed. Charles Evans Hughes was entrenched as the high court’s leader, a moderate, perhaps, by Taft standards, but nevertheless appalled by the New Deal onslaught. Alongside him on the court’s right wing were the “Four Horsemen” of reaction: Willis Van Devanter, the Taft appointee in his third decade on the bench; James McReynolds, a veteran now of two decades; and two Harding/Taft men, George Sutherland and Pierce Butler. Louis Brandeis and Harlan Fiske Stone were a liberal minority, together with Hoover appointee Benjamin Cardozo, one of the most distinguished lawyers and jurists in the United States, universally accl
aimed as a worthy successor to Holmes when the great dissenter finally retired at ninety in 1932. The ninth justice, another Hoover appointee, Owen Roberts, a Pennsylvania Republican with strong railroad ties, was allied with the Four Horsemen, though not always dependably.
For the court’s right wing, the New Deal was an assault on all they held dear. They scoffed at the notion that the economic crisis justified “encroachments upon the sanctity of private and public contracts,” as Sutherland, their most powerful spokesman, wrote in 1934, or that it demanded a new understanding of the Constitution. Its “meaning is changeless,” said Sutherland, and the “whole aim of construction” was “to discover the meaning, to ascertain and give effect to the intent, of its framers and the people who adopted it.” Apparently, in his researches into the Constitution’s original meaning, Sutherland failed to notice the lack of a provision for the judicial power of review he was only too ready to wield against New Deal legislation. Unlike conservatives in Congress, who could only fulminate against FDR’s “dictatorship” and “socialism,” Sutherland and his three fellow Horsemen, along with Hughes and Roberts, could do something about it.
On “Black Monday,” as May 25, 1935, came to be known, the Supreme Court delivered three major blows to the president. A farm bankruptcy bill designed to reduce foreclosures was vetoed as a violation of the due process rights of creditors. Then, the court rebuked FDR for his removal of an obstructionist Republican from the Federal Trade Commission. Finally, and stunningly, with Schechter Poultry Corp. v. U.S., the court struck down the New Deal’s centerpiece, the NIRA. A firm of New York kosher poultry dealers had appealed its conviction for violating NIRA codes by, among other things, selling “sick chickens” to the public and cheating workers of their pay. Hughes, writing for the court, objected to the “virtually unfettered” discretion Congress had given the president to oversee the industrial codes, and went further to rule that the codes themselves were an unconstitutional interference in commerce. “Extraordinary conditions,” Hughes noted pointedly, “do not create or enlarge constitutional power.”
Black Monday shook the administration. A few days later, FDR waved a sheaf of telegrams at the dozens of reporters crowded into his office for a press conference. The telegrams were, he said, “pathetic appeals” from citizens dismayed by Schechter and the demise of the NIRA. As he told the assembled newsmen, “The big issue is this: Does this decision mean that the United States Government has no control over any national economic problem? ” The president seemed to answer his own question, saying, “We have been relegated to the horse-and-buggy definition of interstate commerce.” But, reporters wanted to know, what was Roosevelt going to do about it? “We haven’t got to that yet,” the president replied.
The justices knew what they were going to do. They kept on the offensive against the New Deal. In January 1936, the Supreme Court struck down the Agricultural Adjustment Act in U.S. v. Butler, a case that arose from the government’s attempt to collect the AAA’s “processing tax” from a bankrupt Massachusetts textile firm. Denying that the agricultural crisis was a matter of the “general welfare,” the court decided that the problems of farmers were a local matter, beyond the scope of federal power. Though the AAA had doubled wheat and cotton prices in three years, the court dismissed the processing tax, which raised money from mills, meatpackers, and other processors to pay farmers to reduce production, as a redistributionist scheme—“the expropriation of money from one group for the benefit of another,” the court complained.
Five months later, in Carter v. Carter Coal Co., the Supreme Court ruled the Guffey Coal Act unconstitutional. Passed after Schechter, with Congress attempting to meet the court’s objections to the NIRA, the bill was intended to help revive the devastated coal industry while bringing labor peace to the notoriously violent mines. But West Virginia’s Carter Coal Company, a fierce opponent of the United Mine Workers, drew on Schechter and Butler to argue that a coal industry code protecting workers’ rights to organize was unconstitutional. “Coal mining,” a Carter lawyer argued, “is just as much a local activity as is farming or manufacture.” The Four Horsemen plus Hughes and Owen Roberts agreed. Writing for them, Sutherland invoked a stack of nineteenth-century precedents to show that, apart from powers specifically delegated by the Constitution, Congress was powerless to “promote the general welfare.” Despite the fact that almost all of Carter’s coal was shipped out of West Virginia, Sutherland insisted that its mining was “a purely local activity,” and thus “the relation of employer to employee is a local relation,” exempt from federal meddling.
As the court rampaged through the New Deal, striking down more than a dozen federal and state laws in eighteen months, the conservatives created what the president, in June 1936, told the press was a “‘ no-man’s-land’ where no Government—State or Federal—can function.” But when a reporter asked him, “How can you meet that situation?,” FDR replied, “I think that is about all there is to say on it.”
A MYTH would rise later that a maddened Roosevelt suddenly and recklessly attacked the Hughes Court after his reelection in 1936. History is not so simple. As the Supreme Court voided act after act, the president was less interested in “revenge” than in solving a seemingly intractable problem. “Clearly, it is running in the President’s mind that substantially all of the New Deal bills will be declared unconstitutional,” Interior Secretary Harold Ickes noted in his diary in the winter of 1935.
By then, the president, working closely with Attorney General Homer Cummings, was searching for means to empower the government “to intervene reasonably in the regulation of nation-wide commerce and nation-wide agriculture.” One possibility was to override the court’s decisions by giving Congress explicit constitutional authority to regulate business and labor. Another was to curtail the court’s obstructionism by limiting its powers of judicial review. That approach was finding a strong echo in Congress as legislators filed dozens of bills in the spring of 1936 that ranged from restrictions on the court’s appellate jurisdiction to the complete abolition of judicial review of federal laws. Progressive senator George Norris, who accused the justices of acting as “a continuous constitutional convention,” proposed that only a unanimous court could kill legislation. “It takes twelve men to find a man guilty of murder,” he said. “I don’t see why it should not take a unanimous court to find a law unconstitutional.”
Roosevelt and Cummings were particularly drawn to a proposal that would allow a new Congress to reenact a law that the Supreme Court had declared unconstitutional. As the momentum for action built—and even Herbert Hoover demanded, after the court vetoed a New York law setting a minimum wage for women, that “something should be done to give back to the States the powers they thought they already had”—the president floated a few trial balloons, suggesting to one reporter after Black Monday that he favored a constitutional amendment that “will lift the Dead Hand, giving the people of today the right to deal with today’s vital issues.”
But that was the great problem with many of the reform proposals mooted by the administration and in Congress and the press—they would require a constitutional amendment. As the president observed to a friend, “no two people agree both on the general method of amendment or on the language of an amendment.” But even if an amendment could be drafted and won the needed two-thirds backing in both houses of Congress, the legislatures—indeed, one chamber of a two-house legislature—of only thirteen states could block it. Even more, if such an amendment somehow finally was ratified, it was the Supreme Court itself that would interpret—or misinterpret—it. And, in any case, it might come too late to save the New Deal.
It was hard to outwit the Framers. So Roosevelt reluctantly put aside the amendment route. If the New Deal was to survive, the Supreme Court must be changed by changing its personnel. After all, as Cummings wrote to FDR in January 1936, “The real difficulty is not with the Constitution but with the judges who interpret it.” Roosevelt himself thought
that the court’s decisions were the product of the “private, social philosophy” of the justices. But how was that to be changed? The conservatives had the votes, a solid majority, and they seemed healthy and disinclined to resign. Mortality tables were consulted and the Metropolitan Life Insurance Company calculated that even the oldest of the justices might well outlive a second Roosevelt term.
The only practical solution appeared to be to change the court by—to use a term that FDR initially shunned—“packing” it; that is, by adding enough new justices to produce a New Deal majority. There was, after all, nothing sacred about a bench of nine. “The number of Justices has been changed several times before,” the president would remind Americans, “in the Administrations of John Adams and Thomas Jefferson—both signers of the Declaration of Independence—Andrew Jackson, Abraham Lincoln and Ulysses S. Grant.”
WHEN ROOSEVELT unveiled his court-packing plan to Congress on February 5, 1937, it exploded like a bombshell. Against expectations—and the advice of liberal allies—the president had not made the Supreme Court an issue in his 1936 reelection campaign. He had run against the old order, against such “enemies of peace” as “business and financial monopoly, speculation, reckless banking, class antagonism,” and against “hear-nothing, see-nothing, do-nothing Government.” But he had banked his rhetoric against the old order on the Supreme Court itself and offered no proposals for reform.
After his historic landslide victory in November, he and Cummings set to work shaping their court plan. To veil its intention, they made it part of a broader judicial reform package that would add an extra member to every federal court where a sitting judge failed to retire within six months of his seventieth birthday. But the high bench was the real target. If the plan was approved and none of the sitting justices retired, FDR would have six new appointments and, with the three liberals already on the bench, a solid New Deal majority within weeks or months.
Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court Page 14