by FDR
75. DeJonge v. Oregon, 299 U.S. 353 (1937). Dirk DeJonge had been convicted of violating Oregon’s criminal syndicalism law, another relic of the Red Scare.
76. Professor G. Edward White of the University of Virginia provides an insightful antidote to traditional historiography in The Constitution and the New Deal (Cambridge, Mass.: Harvard University Press, 2000), especially in his chapter “The Canonization and Demonization of Judges.” To characterize Justices Van Devanter, McReynolds, Sutherland, and Butler as reactionary is “grossly inaccurate,” wrote White. “They repeatedly upheld police powers legislation against due process and Contract Clause challenges. They regularly sustained the taxing and spending powers of the state and federal governments. They voted to sustain several New Deal statutes regulating economic activity. They consistently upheld the powers of administrative agencies against constitutional challenges. And they demonstrated considerable solicitude for civil rights and civil liberties.… In short, a comprehensive treatment of the constitutional decisions of each of the Four Horsemen could produce a fair amount of supportive evidence for labeling them ‘progressives’ or ‘liberals’ ” (at page 295).
77. In the summer of 1933 Roosevelt had instructed Cummings to undertake planning for a general reorganization of the federal judiciary, but the Supreme Court was not included in that effort. Much of Cummings’s planning pertained to the political affiliation of federal judges at the district and appellate levels. “You will note that of 266 judges listed,” Cummings wrote Roosevelt on November 8, 1933, “only 28% are Democrats.” Quoted in Marian C. McKenna, Franklin Roosevelt and the Great Constitutional War 146. Also see Frances Perkins, The Roosevelt I Knew 331 (New York: Viking Press, 1946). Cf. William E. Leuchtenburg, The Supreme Court Reborn 84–85 (New York: Oxford University Press, 1995).
78. Rosenman, Working with Roosevelt 140–156.
79. Shortly after Cummings assumed office, Justice Brandeis and Justice Stone (a former attorney general) informed Roosevelt of their concern over the competence of the government’s lawyers in the cases coming before the Court. Frankfurter to Stone, July 12, 1933, in Peter H. Irons, The New Deal Lawyers 11 (Princeton, N.J.: Princeton University Press, 1982).
80. Schlesinger, Politics of Upheaval 261.
81. The 1936 Democratic platform stated, “We have sought and will continue to seek to meet these problems through legislation within the Constitution.
“If these problems cannot be effectively solved by legislation within the Constitution, we shall seek such clarifying amendment as will assure to the legislatures of the several States and to the Congress of the United States … the power to enact those laws which the State and Federal legislatures … shall find necessary, in order adequately to regulate commerce, protect public health and safety and safeguard economic security.” Oliver A. Quayle, Official Report of the Proceedings of the Democratic National Convention, 1936 196 (Philadelphia: Democratic National Committee, 1936).
82. Ickes, 2 Secret Diary 65.
83. Age would eventually take its toll, advised Ashurst. Prophetically, the Arizona senator wrote FDR, “It will fall to your lot to nominate more Justices of the Supreme Court than any President since General Washington.” Ashurst to FDR, February 19, 1936, quoted in Nathan Miller, FDR: An Intimate History 392 (New York: Doubleday, 1983).
84. Ickes, 1 Secret Diary 705. Justice McReynolds, for his part, reciprocated the feeling. “I’ll never resign as long as that crippled son-of-a-bitch is in the White House.” At least the remark was attributed to McReynolds by Drew Pearson and Robert S. Allen in their inflammatory Nine Old Men at the Crossroads 2 (New York: Doubleday, 1936).
85. In March 1868, while just such a case was pending, Congress repealed the Court’s authority to hear appeals under the Habeas Corpus Act. A unanimous (8–0) Court subsequently dismissed the appeal for lack of jurisdiction. Ex parte McCardle, 74 U.S. 506 (1869).
86. Alexander Holtzoff, memorandum, in Cummings to FDR, January 16, 1936, reprinted in McKenna, Franklin Roosevelt and the Great Constitutional War 167–168. Also see Leuchtenburg, Supreme Court Reborn 99.
87. Quoted in Burns, Roosevelt: The Lion and the Fox 296.
88. Annual Report of the Attorney General, 1913 5 (Washington, D.C.: U.S. Government Printing Office, 1913).
89. William E. Leuchtenburg, in his authoritative reconstruction of the origins of FDR’s Court-packing plan, reports that on December 16, 1936, Edward S. Corwin, McCormick Professor of Jurisprudence at Princeton, wrote Cummings to suggest that legislation be considered that would permit the president to appoint a number of younger justices whenever a majority of the justices were seventy years old or more. This was a week or two before Cummings discovered the McReynolds memorandum. Corwin was considered by many to be the nation’s premier scholar of constitutional law, and his suggestion, which apparently originated with Professor Arthur Holcombe of Harvard, signaled to Cummings that he was on the right track. Leuchtenburg, Supreme Court Reborn 116–119.
90. Rosenman, Working with Roosevelt 154. Senator Borah, seeing the three together, is alleged to have said, “That reminds me of the Roman Emperor who looked around his dinner table and began to laugh when he thought how many of those heads would be rolling on the morrow.” Time, March 1, 1937.
91. “The Chief Justice had an external severity that contrasted with the President’s external urbanity,” wrote Justice Robert Jackson. “But Hughes was one of the kindest of men, and no person who saw him preside over the Supreme Court will ever have any other standard of perfection. He was firm and prompt, dignified and kindly.… He never used his position on the bench to embarrass counsel or to heckle them, and if counsel were frightened or timid or incompetent, he often went out of his way to make sure their position was fully brought out. He was a model of dignity.” Robert H. Jackson, That Man: An Insider’s Portrait of Franklin D. Roosevelt 67, John Q. Barrett, ed. (New York: Oxford University Press, 2003). For Justice Roberts’s similar assessment of Hughes, see Merlo J. Pusey, 2 Charles Evans Hughes 675–677 (New York: Macmillan, 1951).
92. Joseph Alsop and Turner Catledge, The 168 Days 64 (New York: Doubleday, 1938).
93. Quoted in Pusey, 2 Charles Evans Hughes 753. Also see McKenna, Franklin Roosevelt and the Great Constitutional War 324.
94. According to Sam Rosenman, who drafted FDR’s message to Congress, “It was hard to understand how he expected to make people believe that he was suddenly interested primarily in delayed justice rather than in ending a tortured interpretation of the Constitution; but the cleverness, the too much cleverness, appealed to him.” Rosenman, Working with Roosevelt 147.
95. FDR, “Message to Congress on Reorganization of the Judiciary,” February 5, 1937, 6 Public Papers 53.
96. “Wouldn’t you have thought that the President would have told his own party leaders what he intended to do?” Bankhead asked North Carolina congressman Lindsay Warren. “He didn’t because he knew that hell would break loose.” Warren Memorandum, February 7, 1937, quoted in Leuchtenburg, Franklin D. Roosevelt and the New Deal 234.
97. The New York Times, February 6, 1937.
98. Leuchtenburg, Supreme Court Reborn 127.
99. Quoted in Burns, Roosevelt: The Lion and the Fox 298.
100. Quoted in McKenna, Franklin Roosevelt and the Great Constitutional War 298.
101. Ibid. 319.
102. Professor McKenna provides a useful sampling of press coverage, ibid. 305–311.
103. For texts, see 6 Public Papers 35–267.
104. Farley, Jim Farley’s Story 74.
105. Burton K. Wheeler, Yankee from the West 327–329 (New York: Doubleday, 1962).
106. Ibid. 332.
107. McCulloch v. Maryland, 4 Wheaton (17 U.S.) 316 (1819). For a discussion of the case and Marshall’s defense, see Jean Edward Smith, John Marshall: Definer of a Nation 440–454 (New York: Henry Holt, 1996).
108. The full text of the Hughes letter to Wheeler is in the Hughes Papers at the Library of Congres
s. It also appears as Appendix C of the Adverse Report of the Senate Judiciary Committee on Bill S. 1392, 75th Cong., 1st Sess. (Washington, D.C.: U.S. Government Printing Office, 1937).
109. West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), reversing Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936).
110. The Washington Supreme Court had upheld the statute. A tie vote by the Court would have sustained that holding. For Justice Roberts’s shift, see Charles A. Leonard, A Search for a Judicial Philosophy: Mr. Justice Roberts and the Constitutional Revolution of 1937 (Port Washington, N.Y.: Kennikat Press, 1971).
111. Hughes rejected the idea that “freedom of contract” was constitutionally sacrosanct. “What is this freedom?” he asked. The Constitution protects liberty, but subject to reasonable regulation in the interest of the community. “The community may direct its law-making power to correct the abuse which springs from [employers’] selfish disregard of the public interest.… Our conclusion is that the case of Adkins v. Children’s Hospital [261 U.S. 525 (1923)] should be, and it is, overruled.” Hughes’s opinion in Parrish was fully consistent with his dissent in Tipaldo, in which he fired a broadside at the doctrine of freedom of contract.
112. National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937). This was the most important of five companion cases relating to the Wagner Act that the Court decided on April 12, 1937. “We are asked to shut our eyes to the plainest facts of national life and to deal with the question of direct and indirect effects in an intellectual vacuum,” said Hughes. “When industries organize themselves on a national scale, making their relation to interstate commerce the dominant factor in their activities, how can it be maintained that their industrial labor relations constitute a forbidden field into which Congress may not enter when it is necessary to protect interstate commerce from the paralyzing consequences of industrial war?” (at page 41).
113. Gibbons v. Ogden, 9 Wheaton (22 U.S.) 1 (1824). “Commerce,” said Marshall, “is undoubtedly traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse.… Commerce among the States cannot stop at the boundary line of each State, but may be introduced into the interior.”
114. 301 U.S. 1, 41.
115. Steward Machine Co. v. Davis, 301 U.S. 548 (1937), Cardozo for the Court.
116. Quoted in Wheeler, Yankee from the West 334.
117. Alfred Steinberg, Sam Rayburn: A Biography 144–145 (New York: Hawthorn Books, 1975).
118. McKenna, Franklin Roosevelt and the Great Constitutional War 505 ff.
119. Quoted in Bascom N. Timmons, Garner of Texas 222–223 (New York: Harper & Brothers, 1948).
120. The vote was taken on the question to recommit the bill to the Judiciary Committee, effectively killing it.
121. Justice Van Devanter was replaced by Hugo Black in August 1937. George Sutherland was replaced by Stanley Reed in January 1938. Cardozo resigned in July 1938 and was replaced by Felix Frankfurter. William O. Douglas replaced Brandeis in 1939. Frank Murphy succeeded Pierce Butler in 1940. James Byrnes replaced McReynolds in 1941. As FDR predicted, McReynolds was the last of the so-called Four Horsemen to step down. Robert Jackson replaced Stone when Stone succeeded Hughes as chief justice in 1941. When Byrnes left the Court in 1942 to become director of war mobilization, he was replaced by Wiley Rutledge.
EIGHTEEN | Low Tide
The epigraph is from James A. Farley, Behind the Ballots 375 (New York: Harcourt, Brace & Co., 1938).
1. Nancy J. Weiss, Farewell to the Party of Lincoln: Black Politics in the Age of FDR 106 (Princeton, N.J.: Princeton University Press, 1983). For Harrison generally, see Martha H. Swain’s excellent biography, Pat Harrison: The New Deal Years 33–167 (Jackson: University Press of Mississippi, 1978).
2. James A. Farley, Jim Farley’s Story 91 (New York: Whittlesey House, 1948); Bascom N. Timmons, Garner of Texas 223–224 (New York: Harper & Brothers, 1948).
3. FDR to Senator Alben Barkley, July 15, 1937, 6 Public Papers and Addresses of Franklin D. Roosevelt 306–308, Samuel I. Rosenman, ed. (New York: Macmillan, 1941).
4. Farley, Jim Farley’s Story 92; David McCullough, Truman 228 (New York: Simon & Schuster, 1991). “To say No to Tom was one of the hardest things I ever had to do,” said Truman afterward.
5. Quoted in Swain, Pat Harrison 159–160. Also see Joseph Alsop and Turner Catledge, The 168 Days 282–283 (New York: Doubleday, Doran, 1938).
6. Quoted in Timmons, Garner of Texas 224.
7. Kevin J. McMahon, Reconsidering Roosevelt on Race 95 (Chicago: University of Chicago Press, 2004).
8. Dingell to FDR, June 26, 1937, quoted in William E. Leuchtenburg, Franklin D. Roosevelt and the New Deal 253 (New York: Harper & Row, 1963).
9. “Washington Notes,” 91 The New Republic 313 (1937). In length of service, Hatton Sumners was the fourth-ranking member of the House, having been elected in 1912.
10. Farley, Jim Farley’s Story 95–96.
11. Ibid. 96.
12. David M. Kennedy, Freedom from Fear 313 (New York: Oxford University Press, 1999). Dies for all Chevrolet products were at Fisher Body Plant 2 in Cleveland, but a week after the strike began in Flint, the factory in Cleveland was also shut down by workers.
13. Frances Perkins, The Roosevelt I Knew 321–322 (New York: Viking Press, 1946).
14. Quoted in Irving Bernstein, Turbulent Years: A History of the American Worker, 1933–1941 541 (Boston: Houghton Mifflin, 1970).
15. Timmons, Garner of Texas 216.
16. Perkins, The Roosevelt I Knew 323.
17. Ibid. 324.
18. Kennedy, Freedom from Fear 303.
19. In NLRB v. Fansteel Metallurgical Corporation, 306 U.S. 240 (1939), the Supreme Court ruled the sit-down strike “a high-handed proceeding without a shadow of a legal right.”
20. 9 Complete Press Conferences of Franklin D. Roosevelt 467 (New York: Da Capo, 1972).
21. Melvyn Dubofsky and Warren Van Tine, John L. Lewis: A Biography 327 (New York: Quadrangle/New York Times, 1977).
22. Conrad Black, Franklin Delano Roosevelt: Champion of Freedom 429 (New York: PublicAffairs, 2003).
23. Nathan Miller, FDR: An Intimate History 407 (New York: Doubleday, 1983).
24. Leuchtenburg, Franklin D. Roosevelt 224.
25. Black, Franklin Delano Roosevelt 429.
26. “The Morgenthau Diaries,” 120 Collier’s 82 (September 27, 1947). Also see John Morton Blum, From the Morgenthau Diaries: Years of Crisis, 1928–1938 387–388 (Boston: Houghton Mifflin, 1959).
27. Harold L. Ickes, 2 Secret Diary 240 (New York: Simon & Schuster, 1954).
28. Farley, Jim Farley’s Story 101.
29. Blum, Morgenthau Diaries 415.
30. James MacGregor Burns, Roosevelt: The Lion and the Fox 336 (New York: Harcourt, Brace & World, 1956).
31. Time, May 16, 1938.
32. Blum, Morgenthau Diaries 421.
33. David Robertson, Sly and Able: A Political Biography of James F. Byrnes 284 (New York: W. W. Norton, 1994).
34. Congressional Record 311 (January 11, 1938).
35. For the grisly details of the lynching of Claude Neal in Marianna, October 26, 1934, see Weiss, Farewell to the Party of Lincoln 108. Professor Weiss quotes at length from the extensive NAACP investigation.
36. Blanche Wiesen Cook provides a useful summary of the Wagner bill in 2 Eleanor Roosevelt 178 (New York: Viking, 1999).
37. Gallup Poll, January 31, 1937, in George H. Gallup, 1 The Gallup Poll: Public Opinion, 1935–1971 48 (New York: Random House, 1972).
38. Walter White, A Man Called White: The Autobiography of Walter White 169–170 (New York: Viking, 1948).
39. “You’ll have to give me about twenty-four hours,” Roosevelt said, “because I will have to check up and see what I did last year. I have forgotten.” 4 Complete Press Conferenc
es 155–156.
40. “Care to comment on the anti-lynching bill?” FDR was asked. “No.” he replied. April 24, 1935, 5 ibid. 243.
41. Joseph P. Lash, Eleanor and Franklin 516–517 (New York: W. W. Norton, 1971).
42. Cook, 2 Eleanor Roosevelt 247.
43. 11 Complete Press Conferences 88.
44. Quoted in Weiss, Farewell to the Party of Lincoln 245.
45. It was the Supreme Court, in Smith v. Allwright, 321 U.S. 649 (1944), that overturned the white primary. The Justice Department did not file a brief as amicus curiae or give any encouragement to the appellants. The poll tax was abolished by adoption of the Twenty-fourth Amendment in 1964.
46. Weiss, Farewell to the Party of Lincoln 256.
47. Nancy Weiss, interview with Pauli Murray, ibid.
48. Chicago Defender, January 30, 1943, ibid. 260.
49. Afro-American, April 15, 1939.
50. Remarks of Marian Anderson, January 6, 1943, quoted in Weiss, Farewell to the Party of Lincoln 264. The segregation of the era prevented Ms. Anderson from registering at a Washington hotel. She and her mother were accommodated by Mrs. Gifford Pinchot, who hosted them at her Massachusetts Avenue town house. Olive Ewing Clapper, Washington Tapestry 210–212 (New York: Whittlesey House, 1946).
51. Ickes, 1 Secret Diaries 285. Cf. Farley, Behind the Ballots 353–355.
52. Quoted in Miller, FDR: An Intimate History 361.
53. Eleanor Roosevelt, This I Remember 349 (New York: Harper & Brothers, 1949).
54. James Roosevelt and Sidney Shalett, Affectionately, F.D.R. 264 (New York: Harcourt, Brace & Company, 1959).