by Amity Shlaes
Three days after the dinner, Roosevelt finally acted. He announced that he would skip state ratification and simply send over to Congress legislation that would increase the number of justices from nine to a figure that could range as far as fifteen. For each justice who stayed past the age of seventy, a new one could be added. The concept was indeed similar to what McReynolds had suggested so many years ago, albeit for a lower court. The pretext for this action was the argument that the justices were too overloaded with cases. The New York Times reported that a congressman named Maury Maverick—the name suited the temperament—“ripped the mimeographed draft of the president’s bill from the back of the message, pasted it on a house bill form, and threw it into the hopper.”
The president’s action was so direct that people used the same phrase they had used to describe Roosevelt’s monetary forays in 1933: “a bombshell” had hit Congress, Turner Catledge of the New York Times reported.
Many were convinced that Roosevelt had indeed finally over-stepped. His enemies now jumped to take advantage of the error. Senators William Borah and Charles McNary, prominent in the Republican Party, ominously signaled they were giving the proposal serious review. Hoover now was “eager to jump into the fray,” Senator Vandenberg wrote in his diary. A number of Democrats spoke up as well. Senator William H. King of Utah summarized the skepticism when he said, “There is no necessity for it.” Roosevelt’s friends were chagrined, or worse. Marion Frankfurter, who had attended the press conference where Roosevelt made his original “horse and buggy” outburst, wrote to her husband: “I hate the whole bill so thoroughly, think it so cheap and dishonest, and I can’t bear to have you accused of being in any way responsible for it.”
The public reaction was strong. Those who had known Roosevelt from his days in the East Coast establishment felt especially betrayed, either by the Court action or the imperious tone the president was taking. Around this time an old neighbor from the Hudson River and fellow yachtsman, Howland Spencer, was growing impatient with Roosevelt—he could not understand how Roosevelt would betray his social class in this way. His anger was exacerbated by the way Roosevelt called his Hyde Park home Krum Elbow. That name—“crooked elbow” in old Dutch—had historically been reserved for the west bank of the Hudson, where Spencer had his own grand estate. Yet when he met with Roosevelt, Roosevelt wouldn’t listen to anything, Spencer later told reporters.
Walter Lippmann, one of the country’s more esteemed opinion makers, said in his column that “Mr. Roosevelt’s quarrel with the Supreme Court has no real relations with his power to avert another crash.” Some old-fashioned liberals complained that Roosevelt’s action was the height of illiberalism. Thousands of letters and telegrams arrived at the Court, nearly all opposing the legislation, author Marian McKenna reports. “Do not desert us. Please hold the Court—hold the fort. Even if you are old and tired, you can’t quit now for three years.”
Some of those around Roosevelt were surprised by the vehemence of the reaction. Harold Ickes wrote in his diary of the liberal critics, “I often think that the definition of a liberal is a man who wants what is unattainable or who wants to reach his objective by methods that are so impracticable as to be self-defeating. So many liberals want merely to be in opposition. They do not want to advance from objective to objective.” That impractical liberalism Ickes had no time for.
Roosevelt for his part was also proceeding boldly. At a victory dinner for the Democratic Party—also in early March, the former season of presidential inaugurations—Roosevelt made the point that his court change was directly related to his plans for the TVA. “I defy anyone to read the opinions in the TVA case, the Duke Power case and the AAA case and tell us exactly what we can do as a National Government in this session of the Congress to control flood and drought and generate cheap power with any reasonable certainty that what we do will not be nullified as unconstitutional.”
That month Hallie Flanagan of the Federal Theater Project lent Roosevelt credence when she trained her spotlight on Willkie. Her device was a new kind of theater: the “Living Newspaper”—a sort of dramatized documentary, in this instance about the power industry. In thirty-three scenes, Power, the play, portrayed the story of electricity as the story of exploitation. In some scenes citizens protested high utilities bills—a stretch, since utility prices were coming down at the time of the production. An Insull character was featured, too, bilking a consumer.
Some noted that Flanagan was herself overstepping, at least when it came to Willkie. The Willkie character in Power was an old man who doddered about in a white wig—in other words, something closer to the old caricature of Insull. This slip-up, Time noted, revealed that the producers could scarcely have been acquainted with the actual Willkie. Still, the play, a series of pageants reminiscent of Bertolt Brecht, was impressive and popular; sixty thousand people bought tickets in New York even before it opened. Afterward, Harry Hopkins, WPA director, went backstage to praise the play, saying, “People will say it’s propaganda. Well, I say, what of it? It’s propaganda to educate the consumer who is paying for power.” The same issue of Time reported the forward march of Roosevelt on his power project: the president had recently let Congress know that his western equivalent to the TVA, the Bonneville Dam, would be ready for operation by the end of 1937. The Oregonian, the newspaper in the state where Bonneville was going up, praised Power effusively: “Even the private ownership boys and girls will have to admit that many flashes of genius are evident in the mechanics of ‘Power.’” The suggestion was clear: the Roosevelt utilities model was on its way to becoming national.
On March 9, Roosevelt delivered the first Fireside Chat of his new administration. The authors this time were Rosenman, Cohen, Richberg, and Tommy Corcoran. The president targeted the recalcitrant Horsemen again. The American form of government, the president said, was a “three-horse team, provided by the Constitution so that their field might be plowed.” Now one horse—the Court—was not going along. The president himself was just another of the horses. It was the American people who were in the driver’s seat. They could, and should, act to bring the horse of the Court in line. Then there would be some sort of national clarity, and all the other courts—the recalcitrant federal courts—would mount fewer obstacles to the New Deal. The country needed protection because “the dangers of 1929 are again becoming possible,” the president said. He had mentioned the horses before, and was not going to abandon this line of argument. The only way it would be able to legislate protection from “those dark days” was to restructure. No matter what Lippmann argued.
The Court, Roosevelt said, was not ready to handle “our modern economic conditions.” The four justices who had opposed his gold clause action could have “thrown all the affairs of this great nation back into hopeless chaos.” They were reading into the Constitution “their own economic predilections.” His plans were for the younger generation. In the chat, the president used the word “modern” a full five times, and the adjective “young,” or “younger,” four. The nation must “save the Constitution from the Court and the Court from itself.” The Court needed “new blood.”
Finally, Roosevelt pointed out that the number of justices on the court had been changed before in American history, several times. Additionally, the White House had found a fact that would be useful in its judicial battle: that old recommendation from McReynolds.
One of the sources for the chat was a piece by Stuart Chase on the necessity for stronger government. Chase sent the piece to the New York Times, also getting a copy to the president. The president shared Chase’s work with Frankfurter: “Looking over the frothing rhetoric,” Chase had written, “to the real land and the real people, you find that: Six million farmers were left in a legal vacuum…. Fifteen million industrial and clerical workers, more or less, were stripped of wage and hour protection.” Chase concluded; “If we really cared about America, I think we should act.”
Before Congress decided whether to act,
the Old Men did. Privately, they made their disapproval known. “You can rest assured,” Harlan Stone wrote, “that those who assert that age has affected the work of the Supreme Court, or that it does not do its work with the highest degree of efficiency of any Court in the world, cannot get to first base.” The recent proposals were “about the limit.”
Hughes now led an overall publicity drive showing the justices to advantage; the New York Times carried a picture of Brandeis with his wife, old and dignified, and a photo of Van Devanter, jaunty amid the brush on vacation. On March 22, Justice Hughes fired back at Roosevelt in a letter to the Senate Judiciary Committee. The Supreme Court was not behind or old; it was “fully abreast of its work.” And: “The present number of justices is thought to be large enough so far as the prompt, adequate, and efficient work of the Court is concerned.”
Hughes had outlawyered Roosevelt, as Ickes would write in his diary, going after the weakest argument in Roosevelt’s case, that the justices were not competent, and documenting the evidence against that argument. Frankfurter was irritated, drafting a letter to Brandeis, “As for the chief—I have long written him down as a Jesuit—I deplored his letter and certainly its form.” For the moment, the justices, and the opponents of Roosevelt too, seemed to have gained the advantage. Robert Jackson wrote that the letter “pretty much turned the tide” against FDR’s plan.
The justices were not the only ones to stand strong. Mellon was feeling increasingly untouchable, as if behind pillars, already in another world. There were pillars, quite literally—sixty-two Ionic columns—at the new home of the Mellon Institute, which he would dedicate on May 6. Presiding that day, Mellon would recall his goals of the 1910s and the 1920s: the institute, and his French language study. Now he would remark, drolly, that while the mellon French “still is what it was, originally,” the institute had progressed nicely. Time would note that the institute would continue to function as it had before, by hiring out scientists to do work for industrial companies. The magazine would also point out that the institute’s “industrial fellowship” system was not only good for the economy, but also occasionally created a permanent job: “If a Mellon ‘research’ ends profitably, the worker is apt to get a good job with the manufacturer who paid the bills. If the worker is also clever he can get the University of Pittsburgh to award him a doctorate on the strength of the research he performed at the Mellon Institute to earn his living.”
AT THE SAME TIME, however, there was also a shift in the air—a sense that battle was pointless, since Roosevelt might prevail, one way or another. Court watchers could see that the justices were also changing in ways that would make their opinions more acceptable to Roosevelt.
On March 25, Sutherland marked his seventy-fifth birthday; the newspapers were making note of all the justices’ birthdays. The New York Times noted pointedly in the first paragraph of its birthday story that the justice planned to spend his day working. (Six justices, one such story reported, were over seventy, eligible to retire. Four, another noted, had already passed the three-quarter-century mark. Brandeis, past eighty, would turn eighty-one in November.) It may have been a bitter anniversary for Sutherland, for he already knew that shortly his own brethren would turn on him.
On March 29, Robert Jackson, Stanley Reed, and James W. Morris, all from the Justice Department, filed into the new Court building to hear what they knew would be a momentous case. Ten months before, the Court had struck down New York State’s minimum wage law in Tipaldo. In the autumn, it had refused to rehear the case, but it had agreed to hear another, brought by Elsie Parrish, a hotel worker demanding back pay under Washington State’s minimum wage law.
Now just what Felix Frankfurter and Drew Pearson had hoped for happened. Justice Roberts, at sixty-one the youngest, made a switch, joining four others in upholding Washington’s minimum wage law. Where a New York laundress had had no rights, a Wenatchee, Washington, chambermaid now had them. The justices had been criticized with imposing their economic philosophy, but new opinion, when it came, was also an economic interpretation of the law. Oliver Wendell Holmes and Frankfurter were finally vindicated. As Hughes wrote in his opinion, “the economic conditions which have supervened” were important, and it was now “imperative that in deciding the present case the subject should receive fresh consideration.”
The slap came with the nature of the opinion and the specific rejection of Sutherland’s old Adkins position. “The Constitution does not speak of freedom of contract. It speaks of liberty,” read the majority opinion. “Our conclusion,” the Court said, “is that Adkins v. Children’s Hospital, supra, should be, and it is, overruled.” Sutherland, Van Devanter, Butler, and McReynolds dissented. But now the Four Horsemen were clearly alone on their charge, a minority. Sutherland offered a dignified defense. He would not want to impugn his colleagues’ good faith, but, he said, “the meaning of the Constitution does not change with the ebb and flow of economic events.” If Roosevelt wanted a change, he must lead an amendment to the Constitution.
Also that month, Raymond Moley testified against the president’s legislation. Moley said that he disliked “the dead hand of the past” which was represented by the majority of this court. Still, there was arrogance in the concept that young or new was always better. “Our New Deal will be an Old Deal sometimes.” And he opposed what was now commonly called the court-packing plan. Moley was after all a man of the law, a criminologist. For years now he had been arguing that Roosevelt’s reforms were reforms of the rule of law, not arbitrary changes. Since 1935, Moley said, Roosevelt had been acting arbitrarily far too often. The court-packing legislation was the last straw. Washington had to find a new course: “Let us make democracy work by working through the instruments of democracy.”
Yet the news of Wenatchee was good for Roosevelt, and everyone knew it. The Justice Department lawyers in the new courtroom were thrilled. Frankfurter’s feelings were more complicated—and related to the fact he was hoping for his own seat on the Court at the time. In a short period he himself might have to demonstrate his own judicial independence. Instead of praising the justices for coming around to the view he believed more accurate, he criticized them for having changed out of political reasons. The Washington case, he wrote, “made me feel as though something very dear had died—my faith that the Court’s processes had integrity.” Roberts himself would later vigorously deny, in a memorandum to Frankfurter, that the change was political: “no action taken by the President in the interim had any causal relation to my action in the Parrish case.” The vote in the Parrish case had been taken in December 1936, before both inauguration and the president’s announcement of his plan.
April at first took everyone’s mind off the Court—there was so much going on elsewhere. In Harlan County, Kentucky, the old question, “Which side are you on?” still had meaning: the drive to unionize coal miners was accelerating. On April 6, the White House hosted the Pine Mountain Settlement School of that county to present musical entertainment to assorted congressmen, senators, and other guests at the White House. That was what frustrated FDR’s opponents—the way he pursued political goals through culture.
On April 7, another crowd gathered to cheer Lewis, this time at Michigan’s state fairgrounds; he had reached a settlement with Chrysler. Ford now was the only remaining of the Big Three not to be unionized. William Green, the old head of the AFL, was locked in a struggle with Lewis, over both Lewis’s tactics at organizing and his sit-down strikes against companies. Leading some of the more militant projects was John Brophy. It was clearer than ever that Lewis and his team were the face of new unionism, and Green the old.
The next week, the Court brought back attention to itself with its own union news: it would uphold the law that provided the legal framework for all these events, the National Labor Relations Act (NLFA). Looking at four cases, it upheld them by the same 5–4 margin; on a fifth, the group was unanimous. The finding also meant that Washington now had the authority to regulate manuf
acturing. And the Wagner Act really did give the unions the right to fight with the companies. That September the United Auto Workers membership would reach 375,000, more than ten times the 30,000 of September 1936. Lewis, again, rejoiced. Within a year he would have organized nine in ten workers in the coal industry. Florence Reece’s picture of towns divided into union people and company thugs had been sanctioned by the highest court in the land.
Ogden Mills, the treasury secretary who had succeeded Mellon, wanted to point out the consequences of unions’ higher wages for the economy. He did not agree with the advocates of spending—now coming to be called Keynesians—that consumer spending was always better than investing by the producer. After all, as Ford Motor Co. itself pointed out, if Henry Ford had brought his early employees together every week and shared out the profits, there would have been nothing left to spend on investment. Ford, the company, would not have grown. Ford executives were correct when they said that “the little shop would have stayed little.”
Also that month, two other justices celebrated birthdays: Justice Van Devanter turned seventy-eight on April 17, and Hughes celebrated his seventy-fifth birthday. Van Devanter lived at 2101 Connecticut Avenue, in the same building as William Borah, one of the senators who opposed the Roosevelt plan. Borah urged Van Devanter to resign, hoping that this would make Roosevelt’s packing plan look more unnecessary.
Now too Jackson had another go at Mellon. Having failed in its tax suit, the administration was still set on “getting” the industrialist. Jackson, who had been promoted to assistant attorney general in the Justice Department, led a suit against the Aluminum Company of America, the largest suit of its kind since 1911. Mellon, his son Paul, and other relatives—Sarah Mellon Scaife, Richard K. Mellon—were defendants. Jackson sought the dissolution of the company. Jackson would prosecute the case, but it was filed by another lawyer from Justice: Walter Lyman Rice, the same lawyer who had led the case against the Schechters. Rice had gone after the smallest possible foe; now he was trailing the largest.