Jean Edward Smith

by FDR

  Unfortunately for the president, Cummings and Reed were not the sharpest knives in the legal drawer. Cummings’s skills were primarily political. He was a former chairman of the Democratic National Committee and had been a floor leader for FDR at the 1932 convention. Originally scheduled to become governor-general of the Philippines, he was tapped as attorney general to fill the vacancy caused by the sudden death of Senator Thomas Walsh two days before the 1933 inauguration. At the time it was assumed the appointment was temporary and that the president would make a high-profile legal appointment, yet he never did. As attorney general, Cummings concentrated on the law enforcement role of the Department of Justice and did an excellent job supervising the reform of federal crime legislation. But constitutional law was not his bent.79 Much the same could be said for Stanley Reed, a small-town Kentucky lawyer whose interest in tobacco legislation had brought him to Washington during the Hoover administration. Roosevelt had originally offered the solicitor general post to Felix Frankfurter. When Frankfurter declined, he apparently lost interest in the position. Reed was an effective administrator but like Cummings had little experience in constitutional litigation.80

  Cummings met often with FDR. The president rejected the idea of a constitutional amendment to expand the commerce clause. That was the recommendation of the Democratic platform,81 and it had been employed three times in the past to reverse Supreme Court decisions.* Roosevelt believed the amendment process too cumbersome. Even if he could get the necessary two-thirds majorities in each House, it would still require ratification by three quarters of the states. Thirteen could block adoption. “Give me ten million dollars and I can prevent any amendment to the Constitution from being ratified by the necessary number of states,” said FDR.82

  Roosevelt also rejected the straight-on approach of increasing the Court’s membership. The size of the Supreme Court is not constitutionally ordained but is set by Congress, and there was abundant precedent to support changing the number of justices. In addition to the “Legal Tender” appointments under Grant, Congress had altered the size of the Court six times, often for blatantly political purposes.† Roosevelt also dismissed Senator Henry Ashurst’s suggestion that he wait the Court out.83 “Justice [James C.] McReynolds will still be on the bench when he is a hundred and five years old,” said FDR.84 A fourth approach would have been to restrict the appellate jurisdiction of the Court, as a radical Republican Congress had done after the Civil War, when it feared the Reconstruction Acts might be overturned.85 That too had been ruled out, primarily because of objections raised by lawyers on Cummings’s staff.86

  The convoluted scheme Cummings and Reed came up with purported to improve judicial efficiency and was, on its face, nonpartisan. It was also sufficiently oblique to kindle FDR’s enthusiasm—“The answer to a maiden’s prayer,” he told Cummings.87 Deep in the files of the Department of Justice, Cummings and Reed discovered a proposal made by the Wilson administration in 1913 that would allow the president, with the advice and consent of the Senate, to appoint a new judge for every one with ten years of service who reached the age of seventy and failed to retire. “This will insure at all times the presence of a judge sufficiently active to discharge promptly and adequately the duties of the court.”88 The fact that the proposal had been made by none other than James C. McReynolds, then Wilson’s attorney general and now, at seventy-five, the president’s most intransigent judicial opponent, gave Roosevelt particular delight.89

  With FDR’s blessing, Cummings and Reed put the proposal into legislative language. In its final form the Bill to Reorganize the Judicial Branch of Government provided for a maximum of fifty additional federal judges, one for each sitting jurist above the age of seventy. The Supreme Court was included. Since six of the Court’s justices were over seventy, that would give FDR six additional appointments. Sam Rosenman and Donald Richberg were called in to draft a statement for the president, and at the last minute Tom Corcoran was added to the team. But the secret was held tightly.

  On February 2 FDR hosted the annual dinner for the Supreme Court at the White House. The guest list of eighty included all of the justices except Brandeis, who did not attend evening functions, and Stone, who was ill. Roosevelt was at his convivial best. After the meal, when the ladies retired, Hughes and Van Devanter moved their chairs next to the president. For the next hour or so they joked and reminisced over brandy and cigars.90 The chief justice and the president always addressed each other as “Governor” and despite their differences enjoyed cordial personal relations. Both hailed from upstate New York (Hughes was born in Glens Falls), both had begun their careers as law clerks for Wall Street firms, and both had survived the rigors of winter in Albany.91 Van Devanter, the most genial of the justices, was always good company. FDR said nothing of what he planned for the Court or the imminence of his attack. Washington journalists likened the dinner to the ball given by the duchess of Richmond on the eve of the Battle of Waterloo.92

  Three days later, Roosevelt struck. At 10 A.M. on February 5 he convened an emergency meeting of the cabinet at which he divulged his proposal. At eleven he met the press. At noon the president’s message was read on Capitol Hill. Rarely has a political attack of such magnitude been more tightly timed. And rarely has the nation been more surprised. The Court was in session when news of the bill was announced. Hughes ordered copies distributed to the justices on the bench, who read the president’s proposal in stoic silence: the quiet vortex of a gathering storm.

  Roosevelt was confident he would prevail. “The people are with me,” he told Jim Farley.93 Initially that was true. But as the debate dragged on, and as it became apparent that FDR sought a fundamental change in the constitutional order, that support eroded.

  The president’s strategy was too clever by half. Rather than address the issue directly, Roosevelt maintained that the elderly justices were no longer up to the job and needed new blood to assist them. The irony was that Louis Brandeis, the only octogenarian on the Court, was the most consistent supporter of the New Deal. FDR asserted that the Court was behind in its workload.94 Of 803 cases submitted for review, the justices had agreed to hear only 108. “Can it be said that full justice is achieved when a court is forced by the sheer necessity of keeping up with its business to decline, without an explanation, to hear 87 percent of the cases presented to it?”95

  The claim was absurd, and Roosevelt should have known better. And if he did not, his attorney general should have. In 1937, just as now, there was no automatic right of appeal to the Supreme Court.* The justices heard only those cases they deemed important. And 108 out of 803 was a remarkable percentage. In 2000–1, the Rehnquist Court, with nine thousand requests for review, heard only 87 cases. In the 2003–4 term, it heard only 73 (of 8,883 requests). Rather than being behind in its workload, the Hughes Court was dealing with more cases than any Supreme Court in the previous decade.

  On Capitol Hill members listened in stunned silence as reading clerks intoned the president’s message. In the House, Speaker Bankhead resented the fact that he had not been consulted beforehand.96 Majority Leader Sam Rayburn said nothing, leaving it to Judiciary Chairman Hatton Sumners to fire the first shot. “Boys, here’s where I cash in my chips,” he told the leadership. Sumners refused to bring the legislation before his committee. That meant the Senate would have to consider the bill first.

  In the upper chamber the reaction was mixed. Vice President Garner, whose support FDR needed, held his nose and turned his thumb down as the message was read.97 Majority Leader Joe Robinson had no enthusiasm for the plan but believed it his duty to support the president. The same was true of Judiciary Committee chairman Henry Ashurst, who just weeks before had denounced any attempt to enlarge the Court as a “prelude to tyranny.”98

  On the other hand, Roosevelt stalwarts such as Joseph Guffey of Pennsylvania, Alabama’s Hugo Black, James Byrnes of South Carolina, and Key Pittman of Nevada rallied round the bill. As usual, the center of gravity lay with Senate v
eterans, who were torn between their respect for constitutional tradition and their loyalty to FDR. What was most surprising was the defection of the Senate’s progressives from the president’s cause. “I am not in favor of any plan to enlarge the Supreme Court,” declared George Norris hours after the bill was introduced.99 “The issue seems to be plain,” said California’s Hiram Johnson. “Shall the Congress make the Supreme Court subservient to the Presidency?”100 Burton K. Wheeler of Montana, the first member of the Senate to endorse FDR in 1932, was scathing. “The court plan is not liberal,” said Wheeler. “A liberal cause was never won by stacking a deck of cards, by stuffing a ballot box, or by packing a court.”101

  Wheeler emerged as the consensus choice to lead the opposition. William E. Borah of Idaho, the ranking member on the Judiciary Committee, called the shots for the Republicans. Keep your heads down, he advised his colleagues. Don’t make this a partisan issue. Let Wheeler take charge. That suited conservative Democrats as well—men like Millard Tydings of Maryland, Guy Gillette from Iowa, South Carolina’s “Cotton Ed” Smith, and Walter George of Georgia. Far better to have a certified liberal like Wheeler take on the White House than someone whose New Deal credentials might be suspect.

  The Senate leadership afforded Wheeler plenty of leeway. Ashurst delayed hearings until March, and by then the nation’s bar associations had weighed in against the plan. Senators were deluged with mail from their constituents, which ran 9 to 1 against, while the press, almost without exception, condemned the president. “Cleverness and adroitness in dealing with the Supreme Court are not qualities which sober-minded citizens will approve,” said The New York Times. “Surely Mr. Roosevelt’s mandate was to function as the President, not as Der Fuehrer,” wrote the gentle William Allen White of The Emporia Gazette. Walter Lippmann was “sick at heart”; Mark Sullivan said, “We are going down the road to fascism”; David Lawrence asserted that if the Supreme Court went, “all other institutions will begin to crumble one by one.”102

  Roosevelt went all out. Senators were invited to the White House singly and in groups for the full presidential treatment. FDR held three news conferences on the Court, delivered two major speeches, and spoke to the nation in a fireside chat.103 “Hold up judicial appointments in states where the delegation is not going along,” he told Farley. “And all other appointments as well. I’ll keep in close contact with the leaders.”104

  Hearings commenced March 10, and the administration held forth for ten days. Few minds were changed, and if anything the critics on the committee had the better of it. Wheeler was slated to lead off for the opposition on Monday, March 21. On Saturday afternoon Justice Brandeis asked Wheeler to stop by his apartment. The Brandeises and Wheelers were old friends, and Mrs. Brandeis and Mrs. Wheeler were especially close.

  “The chief justice would like to see you,” said Brandeis. “He will give you a letter. Call him up.”

  “I can’t call him,” said Wheeler, who had vigorously opposed Hughes’s appointment as chief justice in 1930. “I don’t know him.”

  “But he knows you,” Brandeis replied.

  The elderly justice took Wheeler by the hand, led him to the telephone, and made the call himself. Hughes, he said, would like to see him immediately.

  It was 5:30 when Wheeler called on Hughes at his home at 2223 R Street. “The imposing Chief Justice greeted me warmly,” Wheeler recalled. “I told him Brandeis said he would give me a letter.”

  “Did Brandeis tell you that?”

  “Yes.”

  “When do you want it?”

  “Monday morning,” said Wheeler. He wanted it when he testified.

  Hughes had already marshaled his arguments and had his facts at hand. Sunday afternoon, the chief justice called Wheeler and invited him to return. Hughes had written a seven-page letter, shown it to Brandeis and Van Devanter, and obtained their approval. He handed it to Wheeler. “The baby is born,” said the chief justice.

  Wheeler read the letter in awe.

  “Does that answer your question?” asked Hughes.

  “It certainly does,” Wheeler replied.

  As the Montana senator started to leave, Hughes asked him to sit down. “I am not interested in who are to be the members of the Court,” said the chief justice.

  I am interested in the Court as an institution. And this proposed bill would destroy the Court as an institution.

  If we had an Attorney General in whom the President had confidence, and in whom the Court had confidence, and in whom the people had confidence, the story might have been different. But the laws have been poorly drafted, the briefs have been badly drawn and the arguments have been poorly presented. We’ve had to be not only the Court but we’ve had to do the work that should have been done by the Attorney General.105

  At ten Monday morning Wheeler appeared before a capacity audience in the ornate Senate Caucus Room. He began by matter-of-factly acknowledging his reluctance to oppose the president, turned gradually to the administration’s charge of judicial delay, and withdrew from his inside coat pocket a sheaf of papers. “I have here a letter from the Chief Justice of the United States, Mr. Charles Evans Hughes, dated March 21, 1937, written by him and approved by Mr. Justice Brandeis and Mr. Justice Van Devanter.”106

  Consternation gripped the Caucus Room. History was being made. Not since John Marshall had taken up his pen to defend the Court’s decision in McCulloch v. Maryland in 1819 had a chief justice taken an active role in a public controversy.107 Stunned senators listened intently as Wheeler began to read. Factually and unemotionally Hughes struck down one by one each of the arguments advanced by FDR and Cummings that the Court was unable to keep up with its workload. “There is no congestion of cases upon our calendar. When we rose on March 15 (for the current recess) we had heard argument in cases in which certiorari had been granted only four weeks before.” Hughes presented a detailed statistical analysis of the last six terms, demolishing any allegation that the Court had failed to keep abreast. The addition of more judges would simply mean “more judges to hear, more judges to confer, more judges to discuss, more judges to be convinced and to decide.”108

  Despite its dispassionate tone, the letter hit like a bombshell. The following week, Hughes struck again. On March 29, in a tense, packed courtroom, the chief justice read the Supreme Court’s decision upholding the State of Washington’s minimum wage law, which was almost identical to the New York law it had overturned six months earlier.109 Again the vote was 5–4, Justice Roberts providing the margin of victory. Roberts’s switch was immediately dubbed “the switch in time that saves nine,” but the fact is that the Court had voted 4–4 in December to uphold the Washington statute with Roberts in the affirmative.110 Justice Stone, who was ill, had missed the vote, and Hughes had waited for his return to announce the decision. Speaking for the Court, Hughes not only sustained the Washington law but explicitly overruled the line of precedent known as substantive due process that for the last thirty years had prevented government from regulating wages and hours.111 When Hughes finished reading his opinion, the Court went on to uphold three recent pieces of New Deal legislation, all by unanimous vote.*

  Two weeks later, in the most eagerly anticipated ruling of the term, the Court, speaking again through Hughes, upheld the Wagner Labor Relations Act—the most ambitious undertaking of the New Deal since the NRA, and the most controversial.112 Hughes rejected the distinction between direct and indirect effects on commerce that had governed the Court’s approach since 1895, restored the commerce clause to the full sweep of John Marshall’s expansive definition in Gibbons v. Ogden,113 and dismissed the recent holdings Schechter Poultry Corp. v. United States and Carter v. Carter Coal Co. “These cases are not controlling here,” said Hughes majestically.114

  When the Court subsequently sustained the Social Security Act (7–2), even the most rabid New Dealer recognized that whatever rationale there was behind FDR’s Court-packing scheme had evaporated.115 On May 18 the Senate Judicia
ry Committee voted 10–8 to report the Judicial Reform Bill unfavorably: “It is a measure which should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.”116 That same day Justice Van Devanter submitted his resignation to the president. With Van Devanter’s retirement and the Court following Hughes’s lead, FDR might have declared victory and called off the fight. That was Garner’s advice. When Roosevelt refused, the vice president gave up and returned to his ranch in Texas. He would be AWOL during the crucial Senate debate.

  FDR refused to compromise. Despite the oppressive heat of an un-air-conditioned Washington summer, he insisted that Congress remain in session. To regain the initiative, he invited Speaker Bankhead and Sam Rayburn to the White House. Would they organize a discharge petition (which required the signatures of 218 members) to pry the bill out of Sumners’s committee and bring it to the House floor? Both refused.117 Back in the Senate, defections continued daily. Majority Leader Joe Robinson battled to stem the tide, but it was a hopeless struggle. FDR could have gotten half a loaf earlier, but it was now too late. His opponents smelled victory. Wilting under the pressure, Robinson collapsed. On the morning of July 14 he was found dead in his apartment in the Methodist Building, across the street from the Capitol, the victim of a heart attack.