Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court

by James Macgregor Burns

  “But for one hundred and fifty years we have had an unending struggle between those who would preserve this original broad concept of the Constitution as a layman’s instrument of government and those who would shrivel the Constitution into a lawyer’s contract.”

  Roosevelt spoke with such passion and so militantly that listeners might have expected him to proclaim a new plan that would attempt what his packing proposal had not—to challenge the Supreme Court’s power at its roots by calling into question the constitutional underpinnings of judicial review, contesting the court’s exclusive hold on constitutional interpretation, and mobilizing the “lay rank and file” to wrest that authority from the “highest-priced lawyers.” But he offered no new program or strategy. In the parlance of the day, the Constitution Day speech ended not with a bang but a whimper—a history lesson.

  The truth was that the president was stymied. He had lost a power showdown with the right. His court plan had mobilized not the “lay rank and file” of the grand coalition that swept him to victory in 1936, but battalions of hard-core Republicans, the GOP press, Southern Democrats, and a host of other foes. Even worse, his own coalition lay in splinters. He could see no way out.

  CHAPTER NINE

  “ Wild Horses”: The Roosevelt Court

  SUDDENLY, with the resignation of one of the Four Horsemen, Willis Van Devanter, in May 1937, at the height of the court-packing fight, the wheel of fortune began to spin again, with a vengeance. For Franklin Roosevelt, still simmering over defeat, it was a consoling time—he would now pack the court the old-fashioned way, by presidential appointment, and as thoroughly as he could have wished. In six short years of his second and third terms, 1937 to 1943, FDR would make nine appointments to the high bench, more than any president since George Washington, and by the end of it, only Harlan Fiske Stone and Owen Roberts would remain from the old court.

  In 1945, his last year before resigning his seat in frustration, Roberts filed fifty-three dissents, a measure of how utterly Roosevelt had transformed the court. The old guard was swept away, replaced by stalwart and even partisan New Dealers. There was nary a railroad lawyer among them, and few had previous judicial experience. They were mostly young, dynamic men of diverse backgrounds, a perfect counterimage to their crusty Republican predecessors. FDR could enjoy a sweet measure of revenge for the failure of his court-packing bill as he turned the old order upside down.

  Roosevelt started with Senator Hugo Black of Alabama, whom he named to replace Van Devanter in August 1937, when the gun shells of the court fight still reverberated. FDR relished the surprise appointment of what reporters described as an “absolute anomaly—an intellectual leftist liberal from below the Mason and Dixon line.” Black was a leading New Dealer and an outspoken supporter of the court plan. But Roosevelt reckoned that senators would support one of their own, whatever their misgivings. “They’ll have to take him,” the president blithely told Democratic party boss Jim Farley. He was right. Conservatives fulminated—a Georgia congressman denounced the nomination as “the worst insult that has yet been given to the nation”—but five days after FDR sent his name up, the Senate duly endorsed Black, 63-16.

  Then, a month later, the bombshell. Opponents to Black ’s nomination had pointed out that he had run for office with the backing of the Ku Klux Klan. A Pittsburgh newspaper now revealed that in the 1920s Black had actually been a member of the Alabama Klan, sworn to defend “white supremacy.” African-American leaders were enraged, along with Catholics who had long been targeted by the Klan, fellow Democrats in the Senate, and liberals across the country. Black feebly rebutted the charges in a radio talk that lacked even a repudiation of the Klan. However surprised and embarrassed Roosevelt might have felt—and angered by Black’s failure to level with him before the nomination—he was outwardly imperturbable. Black ’s defense “did the trick,” he told Farley, “you just wait and see.” What actually did the trick was FDR’s unwillingness, after months of charges of tampering with the court, to remedy what a Washington newsletter termed a “prime presidential boner” by trying to push Black out of his seat. Nor did the Senate have the stomach for a fight over racism. But it was an ugly start to Black ’s long tenure as a justice.

  If Black was controversial, FDR’s second nominee, Stanley Reed, appeared almost bland. Still, he was a man of parts. After studying law at the University of Virginia, Columbia, and the Sorbonne, he returned to his county seat in Kentucky, plunged into local Democratic politics, and at age twenty-eight won a seat in the state’s General Assembly. After moving to Washington, he managed the feat of serving in major posts under both Hoover and Roosevelt, who appointed him solicitor general in 1935. In that job, Reed was one of the few insiders to help the president prepare the court plan. He had also argued—and lost—major New Deal cases before the court whose foremost reactionary, George Sutherland, he was now replacing.

  FDR liked to tease his appointees before offering them the nomination. “Well, Stanley,” he said in an unexpected phone call to Reed in January 1938, “I’m afraid I’m going to have to ask you to resign the Solicitor Generalship.” The president paused. “Yes, I’ve just sent your name up in nomination for the vacancy of Justice Sutherland on the Supreme Court. Won’t you come over and have lunch with me today? ”

  Felix Frankfurter, Roosevelt’s third pick for the court, to replace Cardozo, who died in July 1938, could hardly have contrasted more in background with either Black or Reed. Born in Vienna of a well-to-do Jewish family, he emigrated to the United States while still a boy. After graduating from Harvard Law School in 1906, he spent a few years in legal work in Washington, but he yearned for the academic life of Harvard, where shortly he joined the law faculty and never left it—until FDR placed him on the high bench. Like Brandeis, to whom his relationship was “half brother, half son,” Frankfurter had never run for public office. Still, he was a liberal activist, the mentor to a host of young New Dealers, and had become a close and frequent adviser to FDR himself.

  By the late 1930s, Frankfurter’s reputation as scholar and activist and his White House entrée had made him a much-mentioned candidate for the Supreme Court. But for Roosevelt there were three problems, about which he was candid with “Felix.” The Harvard professor was viewed by conservatives as a foreign-born radical; he was not a westerner when the court needed more geographical balance; and by replacing the Jewish Cardozo, he might, in the words of the publisher William Allen White, a friend of both Frankfurter and FDR, “give the Jew baiters a chance to say that the Jews have pre-empted a seat in the Court.” Roosevelt also might have had misgivings about Frankfurter’s attitude during the court fight. The Harvard professor had been a leading critic of justices who “identified the Constitution with their private social philosophy” and had even favored a constitutional amendment to override the Supreme Court’s restrictions on federal power. FDR’s plan, though, struck Frankfurter as a reckless assault on the court’s independence, and he was unwilling to speak up for it publicly.

  Eventually the pressure from Frankfurter’s friends—many close to the White House—forced the president’s hand. Frankfurter finally got the call on January 4, 1939, while in underwear, changing for dinner in his Brattle Street home in Cambridge.

  “You know,” the president began, “I told you I don’t want to appoint you to the Supreme Court. . . .”

  Roosevelt had to wait only a few weeks to get his westerner, when Brandeis retired after twenty-three years on the court. William O. Douglas was the real thing, growing up in Washington state in a village of one hundred people thirty miles north of the Columbia River. He had a Horatio Alger life, working in orchards and packing fruit, but later graduating from Whitman College and then teaching school. Still impecunious, he took a freight train east, paying his way by tending the sheep aboard. In New York, he managed to enter Columbia Law School, graduating second in his class. After only a year or two as a working lawyer he secured a post at the Yale Law School, where he ma
de connections with movers and shakers who were in turn connected with New York and Washington. In the process he became an expert in securities law, leading to his appointment in 1937 as head of FDR’s recently established Securities and Exchange Commission. He joined the White House inner circle in both politicking and poker.

  Summoned one day in March 1939 to the Oval Office, he was greeted by the president, who told him, “I have a new job for you. It’s a mean job, a dirty job, a thankless job. . . .

  “It’s a job you’ll detest. . . .

  “This job is something like being in jail. . . .

  “Tomorrow I am sending your name to the Senate as Louis Brandeis’ successor.”

  The very morning Justice Pierce Butler died in November 1939, giving FDR his fifth vacancy in two and a half years, Roosevelt told his attorney general, Frank Murphy, that he would name him as Butler’s successor. Described as motivated by a “blend of Catholic piety and Progressive idealism,” Murphy had a sweetness of nature that some saw as bordering on sanctimoniousness. As mayor of Detroit and Michigan governor during the turbulent Depression years, Murphy became a leading New Dealer at the grassroots. As governor, he weathered the violent 1937 sitdown strikes in the auto industry, but fell afoul of the nationwide electoral swing against Democrats in 1938. As FDR’s attorney general, Murphy would give concise expression to the New Deal’s conception of the judicial role, embracing what he called the “broader view that the law is properly a positive instrument for human betterment.”

  WITH MURPHY ’S NOMINATION, FDR now had a solid court majority of New Dealers who broadly shared his latest appointee’s view of the law. But the president wasn’t done yet. Roosevelt’s successful run in 1940 for an unprecedented third term as the nation faced a new emergency—the global threat of militaristic fascism—would soon give him the opportunity to continue his overhaul of the Supreme Court.

  The judicial wheel of fortune was still spinning. Early in 1941, a few weeks after Roosevelt’s reelection, Justice McReynolds at last announced his retirement. He had fought the good conservative fight to the end, denouncing the Social Security Act as illegal, standing up for the purity and sanctity of property rights and liberty of contract, damning the new court’s betrayal of the Constitution. And he had been personally obnoxious to his fellow justices—especially his Jewish colleagues—to the end.

  Strange to say, FDR’s man to replace the last of the Horsemen was no liberal activist, but the most conservative of New Dealers—James F. Byrnes. His life was the classic rags-to-riches tale: His father died shortly after his birth in Charleston, and Byrnes left school at fourteen to help support the family. After passing the bar, he made a successful run for a seat in the House, and then won a Senate seat on his second try. Despite his conservatism, Byrnes was an early FDR loyalist, and though their relations had cooled slightly in the president’s second term, Roosevelt had given him reason to hope for the vice-presidential slot on the 1940 ticket. Perhaps it was partly to assuage that disappointment—and to eliminate a potential rival for the presidency in 1944—that FDR, after a delay of some months, named him to the court in June 1941, though, as a reporter observed, “he was losing the smoothest, most effective worker he ever had in the Senate, at the same time acquiring an unknown quantity for the Court.”

  If Byrnes was a slightly mystifying appointment, it proved to be less than momentous. It turned out that Byrnes was not happy on the court. The deliberative and cloistered world of the justices was uncongenial to his activist temperament. He also had unslaked political ambition. With the administration mobilizing the country for war after the attack on Pearl Harbor and new fields for action and achievement opening up, Byrnes declared, “I don’t think I can stand the abstractions of jurisprudence at a time like this.” After little more than a year, he bolted the bench to become what FDR called the “assistant President” with oversight of the domestic war economy.

  Robert H. Jackson, appointed at the same time as Byrnes, was much more FDR’s type of guy. He was a fellow New Yorker with roots in Jamestown in the western reaches of the state. After a year at Albany Law—he never really attended college—he became a small-town attorney. He first hooked up with Roosevelt during World War I, when as a county Democratic leader, he looked to FDR, then assistant secretary of the navy, for help with federal patronage. Jackson joined the New Deal in 1934 as a tax reformer in the Treasury Department and soon moved over to Justice, where he defended the court plan and would produce one of the most influential critiques of the old court and its politicized use of judicial power to block democratic movements and reduce governments to helplessness. Jackson’s devotion to the New Deal won him the gratitude and admiration of FDR, who began to think of him as a possible successor in the White House. Early in 1938, he urged Jackson to run for his old job of governor of New York, as a step toward the presidency. When Jackson declined—he thought of himself as a man of law more than of politics—FDR put him on an upward trajectory for the Supreme Court. He succeeded Reed as solicitor general in 1938, where, as the government’s chief advocate, he had the luck to argue the New Deal’s case before a more sympathetic bench than Reed had faced. Two years later, he followed Murphy as attorney general and two years after that, onto the Supreme Court.

  Byrnes’s resignation in October 1942 gave the president a ninth—and last—appointment. He turned to a man he had first considered for the Supreme Court in 1939, Wiley Rutledge, a native Kentuckian and legal academic who had held senior positions at several universities. Asked in the 1930s to describe his legal philosophy, Rutledge said, “I am not a radical in any sense of the word, but I cannot remain blind to the ills of the present system, and I am interested in seeing them remedied as far as possible.” This qualified him as a liberal in legal circles; while at the University of Iowa, moreover, he was one of the few prominent academics outspokenly in favor of the court plan. His stand led Iowa legislators to threaten to withhold faculty salary raises—and brought him to FDR’s attention. The president appointed him to the U.S. Court of Appeals for the District of Columbia Circuit, where he delivered reliably pro-New Deal opinions and became a natural choice for the high bench.

  “ WHILE THE chief justice has only one vote,” Charles Evans Hughes had written in 1928, “the way in which the Court does its work gives him a special opportunity for leadership.” He had used that leadership potential to save the Supreme Court’s independence by beating back FDR’s offensive in 1937. When the president went on to take over Hughes’s court by his powers of appointment, the chief justice made the most of his authority, even when confronted by FDR’s headstrong appointees, by dominating the court’s weekly conference and tactically assigning opinions to his colleagues. He won praise from Felix Frankfurter for his “mastery” of the business of the court. To see him preside, Frankfurter effused, was “like witnessing Toscanini lead an orchestra.” Not that all the associates submitted to the maestro’s baton. “I don’t work for Hughes,” McReynolds was heard to mutter when a messenger came to summon the tardy old man to conference.

  Like John Marshall, as Robert Steamer, a student of Supreme Court leadership, would conclude, Hughes “was not a philosopher but a practitioner of the first rank.” And as practitioner, his greatest contribution was the recognition, pressed upon him most forcefully by the perils of 1937, that with the Depression and the New Deal’s response to it, laissez faire was dead, and that denial of that reality had led the court into discredit and danger. So Hughes adapted. In fact, he recovered some of his own early moderate progressivism, often siding in significant cases with the court’s young New Dealers, even sometimes leading them, while the remaining Horsemen huddled in angry dissent.

  Hughes retired from the Supreme Court in July 1941 and died seven years later. Most court observers assumed that Roosevelt would choose a Democrat to succeed him, given FDR’s party loyalty, but the president had other thoughts. With Adolf Hitler rampaging through Europe, and Japan challenging the United States across
the wide Pacific, he was more intent on unifying the country. Leading Democrats as well as Republicans were calling for a liberal Republican such as Justice Harlan Fiske Stone.

  After 1937, Stone’s role on the Supreme Court had grown. As the personnel changed, Stone felt liberated from the burdens of chronic dissent and eagerly seized opportunities to write his convictions into law. “With Sutherland off the Court,” he wrote in 1938, “I have been getting rather more interesting opinions.” At the same time, he undertook to serve as balance to the more doctrinaire of his new colleagues, especially Hugo Black, who appeared to Stone to rival George Sutherland for dogmatism. Each adopted “a fatal way of interpreting an instrument of government,” he believed, and lacked the flexibility to treat it as “a living instrument.” By the time of Hughes’s retirement, Stone had become an unofficial spokesman for the court and its most respected figure. Roosevelt expected that as chief justice he would continue to support New Deal economic reforms—and he did.

  Less expected was Stone’s pioneering support of civil liberties, which he did not trumpet in a newsworthy opinion but revealed in a footnote—perhaps the most consequential footnote in American judicial history. He inserted it into a run-of-the-mill opinion for the court, U.S. v. Carolene Products, a 1938 case involving the interstate transportation of milk. After setting a high threshold for judicial review of regulatory laws—as long as they had at least a “rational basis” they would pass constitutional muster—Stone added, in footnote 4, that “more exacting judicial inquiry” should be applied to laws that restricted civil liberties and civil and political rights or were directed at “discrete and insular minorities.” Thus, economic legislation would, as New Dealers had demanded, be given the presumption of constitutionality, but laws affecting individual rights would face “a narrower scope for operation of the presumption of constitutionality.” In a phrase Stone later coined and the court eventually adopted, Bill of Rights liberties were to have a “preferred position” in constitutional law.