The State of the Union and the second inaugural established a tone of militant progressive ambition. The second term, whatever else it might become, would not be an era of good feelings.
Roosevelt had already shaken Washington with his executive reorganization plan, submitted to Congress a week before the inauguration. The proposal, developed by a committee of largely apolitical academics and professional administrators, drew on European examples of career public service. Presented as an effort to streamline a ramshackle federal administrative structure, it advocated a comprehensive extension of merit-based civil service positions to all the nonpolicy positions of the bureaucracy. It would consolidate all the agencies of the federal government, including regulatory bodies that operated quasi-independently of both the executive and legislative branches, into an enlarged cabinet that would have two new departments devoted to social welfare and public works. The plan also called for the addition of six administrative assistants (akin to top-level British civil servants) to the presidential staff and for an enlarged Bureau of the Budget reporting directly to the president.
The proposal won the enthusiastic support of most progressives and New Dealers who applauded its promise of professionalism and efficiency. To conservatives, it raised the specter of an unaccountable administrative apparatus with quasi-judicial authority, largely independent of legislative oversight, controlled by an enlarged and powerful presidency. To opposition partisans and a fair number of independent observers, the plan reflected Roosevelt’s overweening desire for personal power. The few Republicans left in Congress would oppose it. So would most of the still powerful Democratic barons, jealous of their own prerogatives.3
Almost from the beginning, however, the president’s hectoring of the Supreme Court in both his message to Congress and the inaugural address drew more attention than executive reorganization. Actually, the Court itself had read the election returns and was beginning to soften its hostility to the administration’s agenda. On January 4, its first decision day of the year, it unanimously upheld a federal statute banning the interstate shipment of goods produced by convict labor. Interstate commerce and the power to regulate it now presumably extended to local processes of production. Surely the same principle would apply to child labor and other contingencies.4
The case perhaps indicated that the justices were groping for an accommodation with the administration. Clearly, however, the conservative opposition saw the courts as its last hope and was determined to reverse the New Deal through litigation. Roosevelt, fortified by his overwhelming electoral victory, was ready and eager to take up the challenge. Rumors circulated of draft legislation requiring a supermajority of perhaps 7 to 2 for a finding of unconstitutionality.5
On February 5, the president dropped his biggest bombshell since he had scuttled the London World Economic Conference. In a message to Congress he requested legislation “to maintain the effective functioning of the Federal judiciary.” Recent crises had made the load of the courts especially heavy, he declared. The increasing age of the judiciary added to the problem. Asserting the need for younger blood, he requested authority to appoint additional judges at all levels to supplement those who had reached the age of seventy and declined to retire. In the case of the Supreme Court, that meant up to six new members.6
Roosevelt undoubtedly realized the proposal would generate bitter opposition but thought his electoral mandate and congressional majorities would carry the legislation through. The opposition erupted with the intensity of a wildfire on a sun-parched prairie. Herbert Hoover gave the proposal an indelible label when he asserted that the president was trying “to make changes by ‘packing’ the Supreme Court.” Numerous personalities from Woodrow Wilson’s presidency opposed the bill. Raymond Moley made his first open break with the administration. Walter Lippmann wrote one piece after another depicting the plan as yet another assertion of Roosevelt’s lust for personal rule. The members of the Court were unanimous, if silent, in their opposition. One of the most vehement was Justice Louis Brandeis.7
Embodying the attitude of most conservative southern Democrats, the chairman of the House Judiciary Committee, Hatton Sumners of Texas, refused to hold hearings on the proposal. He did, however, agree to sponsor a bill providing retirement at full pay for justices who had reached the age of seventy and served for at least ten years. Congress passed the legislation quickly, and the president signed it on March 1.8
With Sumners balking, the Court-packing bill had to originate in the Senate. There, Judiciary Committee chairman Henry Fountain Ashurst, a colorful party regular, displayed minimal enthusiasm. The maverick Montana Democrat Burton K. Wheeler emerged as leader of the opposition; most of the western and midwestern progressives joined him. Wheeler was a Democrat by convenience, an independent by conviction. He had supported Roosevelt for the presidential nomination in 1932, backed most of the New Deal, and sponsored the Public Utility Holding Company Bill. Senate Republicans retreated into the woodwork, understanding that their open and vehement opposition could only alienate wavering Democrats.9
Wheeler declared that while he deplored the trend of recent Supreme Court decisions, the president’s proposal could destroy the independence of the judiciary. A future right-wing chief executive could pack the Court in the other direction; progressives would then rightly charge that he was attempting to establish a dictatorship. He reflected the sense held by many Americans who neither hated nor loved their president that FDR, like his cousin Theodore, possessed an authoritarian streak.10
The Court-packing bill required the unequivocal support of Senate Majority Leader Joseph Robinson of Arkansas, a much admired moderate prone to support his president and known to covet appointment to the Supreme Court. As a southerner, however, he consistently voiced the regional orthodoxy of strict constructionism and states’ rights. Robinson had a good chance of getting the legislation through if the president signaled he would be one of the new justices. But Roosevelt had reason to doubt that the senator would be a reliable liberal.
As a determined opposition formed on Capitol Hill, Roosevelt realized he would have to fight for a Court bill in the way he knew best: using his powerful presence and compelling voice. On March 4, he tried to rally the party faithful with a speech to a Democratic “Victory Dinner” in Washington, broadcast to 1,000 such events all over the country. He asserted that democracy could succeed in the United States only if the branches of government functioned as a three-horse team that pulled together.11
A few days later, he took his case directly to the people with the ninth fireside chat of his presidency. As always, he delivered the speech well, but at thirty-three minutes, it was on the long side; it was also complex to the point of being internally contradictory, peevish in tone, and perhaps too self-referential. Maybe because the Court’s two most important invalidations—of the National Recovery Administration (NRA) and the Agricultural Adjustment Administration (AAA)—likely reflected popular opinion, he did not discuss them. Instead he singled out the Gold Clause Cases, which had ended with a 5–4 ruling in the administration’s favor, and deplored the close vote. He assured his listeners that he wanted an independent judiciary. Obviously, however, it had to be an independent judiciary that agreed with him.12
The fireside chat did not move public opinion an inch. Gallup found the nation divided on the bill before the talk—38 percent for, 39 percent against, 23 percent for some vague modified plan—and essentially unchanged after it. Sentiment in Congress was not much different. With only a minority in either chamber enthusiastic about court packing, the administration faced defeat. Far more than the president realized, constitutional principles of checks and balances, along with anxiety about an all-powerful executive, were embedded in the nation’s political culture. Roosevelt himself remained popular among nearly two-thirds of the public, but, reflecting the tendency of charismatic leadership to elicit strong feelings, much of the other third positively loathed him.13
The controlling force, as it turned out, was the Supreme Court itself. On March 21, Senator Wheeler released a letter he had received from Chief Justice Charles Evans Hughes. It demolished Roosevelt’s argument that the ravages of age mandated an enlargement of the Court. Hughes documented a heavy workload of petitions read, arguments heard, and judgments rendered. There was no backlog. Additional members would mean “more judges to hear, more judges to confer, more judges to discuss, more judges to be convinced and to decide.” To underscore the unanimity of feeling among the justices, Hughes closed by revealing that both the liberal hero Louis Brandeis and the archconservative Willis Van Devanter agreed with his letter.14
Eight days later, the Court began to issue a series of decisions that confirmed the early indications of a move to the left. Each was a 5–4 verdict in which Hughes and Roberts sided with the three liberals against the Four Horsemen; the new coalition upheld an Oregon minimum wage law, the Wagner labor relations act, and the Social Security Act. It appeared a sure thing that the social reform authority of the federal government would encounter few limits.
On May 18, Justice Van Devanter submitted a letter of retirement to the president, giving Roosevelt a Supreme Court appointment that likely would ensure liberal dominance. Here was an opportunity to make a strategic retreat. Instead, Roosevelt, uncertain about the permanence of the Court’s change, rejected compromise. Hughes might stay in line, but Roberts was less certain. So, for that matter, was Robinson, and pressure from the Senate to nominate Senator Robinson as Van Devanter’s replacement was intense. Roosevelt dallied on naming a successor, thereby signaling that Robinson would make the Court only if he could deliver legislation.
Robinson, sixty-four years old and in poor health, struggled to do so—until the morning of July 15, when a maid found him in his apartment, dead of a nighttime heart attack. Court packing thereafter was also dead. Many senators believed Roosevelt had pushed their much-liked leader into an early grave. In an atmosphere of bitterness, the Democrats voted for his successor as Senate majority leader in a close contest between Pat Harrison of Mississippi, a conservative-leaning representative of the Deep South, and Alben Barkley of Kentucky, a liberal-leaning border-stater. The administration threw all the muscle it could command behind Barkley, who won by one vote.
It remained only to designate a confirmable successor to Van Devanter. The president passed over such eminences as Felix Frankfurter for Senator Hugo Black of Alabama, a militant liberal in the tradition of southern populism. Black was easily confirmed. Shortly thereafter, it came out that in the early years of his political career, he had been a Ku Klux Klan (KKK) activist. Black responded with a radio address saying that he had put the KKK behind him. As a Justice, he would be a militant civil libertarian, but the temporary embarrassment, to both him and the president, was considerable.15
Black was the first of many appointments Roosevelt made. One by one, justices—conservatives, liberals, and swing voters—retired or died until, by April 1945, of the original nine Roosevelt inherited, only Roberts remained on the bench. The replacements—Stanley Reed, Felix Frankfurter, William O. Douglas, Frank Murphy, James Byrnes, Robert Jackson, and Wiley Rutledge—were mostly reliable New Deal supporters. In 1941, upon Hughes’s retirement, Roosevelt would appoint the liberal Harlan Fiske Stone chief justice. The new justices rarely questioned economic regulation but squabbled over issues of civil liberties and civil rights.
In September 1937, Roosevelt delivered a speech, broadcast nationally, observing the 150th anniversary of the Constitution, which he characterized as “a layman’s document, not a lawyer’s contract.” In June 1938, he adopted the line that the Court fight had been “a lost battle which won a war.” But many timorous congressmen knew now that they could defy and beat him. His years of near absolute mastery were ending at a time of grave challenges at home and abroad.16
The 1937 session of the Seventy-Fifth Congress nonetheless gave Roosevelt pieces of legislation that at the time seemed progressive milestones but later called into question the judgment of their creators.
In April, the Guffey-Vinson Act effectively reestablished a regulatory regime of price fixing and planning for the coal industry. Critics feared it was the first step in the construction of a new NRA-style economic order. Actually it was a wobbly and unsatisfactory bureaucratic attempt to achieve equilibrium in an unstable industry. It and similar attempts to establish government-imposed “counter-organization” in chaotic, fragmented industries would not survive the eventual return of prosperity.17
In July, Congress passed the Bankhead-Jones Farm Tenant Act. An attempt to aid impoverished southern tenant farmers and sharecroppers and reestablish a class of small yeoman farmers, it established the Farm Security Administration (FSA), which assisted in the purchase and operation of 160-acre properties. The FSA also operated camps for migrant workers and pursued an ambitious program of photographic documentation of rural life (especially poverty). Expressing the missionary idealism of New Dealers, it had scant political support and little economic impact. Revolutions in agricultural technology, along with the New Deal farm subsidies that financed them, were already making small farms obsolete.
The Wagner-Steagall Housing Act, a landmark attempt to establish an ongoing federal housing program for the urban poor, created a US Housing Authority. The agency could boast of some achievements in the years to come, especially in providing shelter for war workers, but its adoption of the high-rise apartment building model proved dysfunctional. By the 1960s, many of the residential structures financed by the agency would be widely scorned as slums more dangerous and less livable than the neighborhoods they supplanted.
With the Court-packing issue out of the way, Roosevelt believed he could get more from Congress. But the controversy had graphically demonstrated the limitations of his power. Worse yet, labor-management discord wracked what had seemed a rapidly recovering economy, which was suddenly sliding toward a new abyss.
At the end of 1936, the United Auto Workers (UAW), a key component of the new Congress of Industrial Organizations (CIO) under John L. Lewis, staged a series of sit-down strikes at strategic General Motors (GM) plants. To the outrage of much of middle-class America, workers and union activists occupied the properties, brought assembly lines to a halt, and disobeyed court orders to vacate the premises. Sit-downs had already occurred in France, where they were a favored tactic of Communist trade unions. Some of the GM strike leaders were also Communists; others, including future auto union chief Walter Reuther, were left-wing socialists. But the effective director of the strike, Lewis, was a pragmatic, hard-nosed labor chief driven by a personal ambition to become the leader of the American working class and to secure high wages and good benefits for his followers. (When asked about his use of Communists as organizers, Lewis is widely reputed to have replied, “Who gets the bird, the dog or the hunter?”)
Michigan’s Democratic governor, Frank Murphy, refused to deploy his National Guard to evict the strikers. General Motors, fearing serious damage to the seized facilities, did not push very hard for force. Six weeks of negotiations followed, involving Murphy, Lewis, Secretary of Labor Frances Perkins, and, occasionally, Roosevelt himself. In mid-February, GM, having watched Ford, Chrysler, and lesser competitors produce at capacity for what seemed a recovering economy, agreed to limited recognition of the UAW. The decision led inexorably to full union representation of the company’s blue-collar workforce over the next decade. The UAW quickly organized Chrysler, Packard, Studebaker, Hudson, and many of the larger parts suppliers. Only Ford, forewarned and well prepared with what amounted to a private police force, held out.
At the beginning of 1937, it seemed that sit-down strikes would metastasize throughout the economy, but a strong public backlash developed against them. Administration officials avoided stating an opinion until a federal circuit court upheld a finding that sit-downs were illegal. Secretary Perkins thereupon acce
pted the court’s judgment and condemned the tactic as “unsuited to the temperaments and conditions of our modern life.” 18
Using more traditional methods and determined to pursue the opportunities conferred by the Wagner Act, the CIO engaged in strong organizing drives. Its biggest target was the nation’s basic industry: steel. On March 2, 1937, America’s largest steel company, United States Steel Corporation, recognized the CIO Steel Workers Organizing Committee (SWOC) as the sole representative of its workers. As in GM’s case, business considerations dictated the decision. Domestic demand was high, and big contracts from the British navy, then beginning a major expansion, depended on guarantees of labor peace. For the union, this was an enormous coup: US Steel accounted for nearly 40 percent of the nation’s steel capacity.
The remaining companies, collectively known as Little Steel, included Bethlehem, Republic, Youngstown Sheet & Tube, National, American Rolling Mill (ARMCO), and Inland. None had the special inducement that had motivated US Steel. All were hard targets. Many had matched their wages to US Steel’s settlement with the SWOC, leaving workers doubtful that they had anything to gain by joining the union. Strikes nonetheless began that spring and dragged on for much of the year. Traditional picketing, given the belligerent stance of both sides, inevitably generated rough confrontations.
The toughest of the Little Steel companies was Republic, headed by self-professed “rugged individualist” Tom Girdler. Its Warren, Ohio, plant became a small fortress in which workers lived around the clock and ate food flown in by small aircraft that occasionally took gunfire from pickets. In Monroe, Michigan, only 10 percent or so of the Republic workers attempted to strike. When the union brought in outside picketers, local vigilantes (some of them reputedly workers) chased them out of town. In South Chicago, Illinois, local police permitted only limited picket lines. On Memorial Day, Sunday, May 30, after a pro-union rally, a large crowd marched on the plant gate. Someone threw a tree branch at the police line; other missiles followed. Untrained in crowd control and perhaps trigger-happy, the police opened fire, killing ten and wounding thirty. The unionists would call the incident the Memorial Day Massacre. The strikes ran on into the fall, with only Inland agreeing to recognize the union. The toll on the steel industry as a whole was relatively small, but the immense polarization of politics carried potentially grave consequences for the administration.
Man of Destiny: FDR and the Making of the American Century Page 36