Packing the Supreme Court

With Justices for All
By ALAN BRINKLEY

Franklin Roosevelt vs. the Supreme Court

By Jeff Shesol

Illustrated. 644 pages. W. W. Norton & Company. $27.95

In 1937, a few months after his landslide re-election to a second term, Franklin Roosevelt set out on one of the boldest and most dangerous courses of his presidency. The conservative Supreme Court had already struck down a series of New Deal programs. Roosevelt feared that the mostly aged justices would go on to destroy the rest of his legislative achievements before he would have a chance to make any new appointments. As a result, he proposed a “reform” of the courts that would, among other things, have added an additional justice to the Supreme Court for every current justice over the age of 70. It became the most controversial proposal of his presidency — so much so that it nearly paralyzed his administration for over a year and destroyed much of the fragile unity of the Democratic coalition.

Jeff Shesol (the author of “Mutual Contempt,” an account of the relationship between Lyndon Johnson and Robert Kennedy) is not the first to chronicle what became known as the “court-packing” controversy, but “Supreme Power” is by far the most detailed — and most riveting — account of this extraordinary event. Shesol provides a revealing portrait of the “nine old men,” as opponents of the court described them. At the same time, he presents in great detail Roosevelt’s own anguish over what he considered the court’s reactionary views. Both sides of the controversy were the products of deep conviction. The court was on a mission to combat what the justices viewed as a great danger to the basic principles of American democracy. The White House was on its own mission to save not just the New Deal, but also its restoration of the nation.

Within the Roosevelt administration, the proposal to enlarge the court seemed eminently reasonable. There was no constitutional bar to expanding the number of justices. All other measures — constitutional amendments, legislative remedies, mandatory retirements and similar proposals — seemed far more radical and far less likely to succeed. Court packing seemed the most moderate and cautious of the paths available — but still, they realized, a tremendously risky one.

Both the court and the White House paid a considerable price for their insularity and secrecy. The justices, of course, were isolated by design. But the White House and the Justice Department created their own insularity, pursuing their goals with such surprisingly successful secrecy that they gave few people, even within the administration, the opportunity to warn Roosevelt of the dangers he faced. Shesol recounts these miscalculations on both sides with particular skill.

And the dangers, it quickly became clear, were much greater than Roosevelt and his advisers had imagined. It was not surprising that the court-packing controversy would arouse the rage of the right, which already detested Roosevelt and the New Deal and believed the White House was building a dictatorship. More startling to the president was the outrage from within his own party — even among many staunch progressives — and the lukewarm loyalty he received even from those who agreed to support him. Many opponents of the proposal shared Roosevelt’s dismay at the court’s conservatism, but tampering with the institution seemed even to many liberals to represent excessive presidential power and a threat to the Constitution.

The justices of the Supreme Court were as sharply divided in the 1930s as they often seem to have become in the 21st century. Five of them (George Sutherland, James McReynolds, Willis Van Devanter, Pierce Butler and Owen Roberts) were largely opposed to the New Deal measures they were asked to consider. Four others (Louis Brandeis, Harlan Fiske Stone, Benjamin Cardozo and, somewhat precariously, Chief Justice Charles Evans Hughes), mostly supported the New Deal. In 1937, when the court-packing fight began, most of the justices had been on the bench for well over a decade, and none had been appointed during Roosevelt’s first four years. Hence the president’s frustration, and his belief that the court had become out of touch with the realities of the time.

During the first months of controversy, the likelihood of success, given the huge Democratic majorities in Congress, seemed high, despite the ferocity of the opposition. But gradually the president’s position eroded — a response to growing opposition and to the resentment of what many considered Roosevelt’s duplicity in proposing what he claimed to be court “reform” rather than what many people considered naked political pressure. In July 1937, the court proposal died in the Senate, by now undefended even by the White House and unlamented by most of the public. It was widely described as the most devastating defeat Roosevelt had ever experienced.

But how devastating was the defeat? In West Coast Hotel Co. v. Parrish, a 1937 case contesting a minimum wage law in Washington State, Owen Roberts voted with the liberals to sustain the law. (Only one year earlier he had joined the conservatives in voting down another minimum wage law.) Over the following months, Roberts continued to vote mostly with the liberals. And beginning in mid-1937, a number of conservative justices retired, providing the president with the opportunity to appoint several new justices who transformed the ideological balance of the court.

Shesol does not engage directly with the scholarly debate over whether the court-packing controversy was responsible for the shift in the court’s behavior. The traditional story, supported by some of the leading historians of the New Deal, maintains that the pressure from Roosevelt persuaded Roberts, and perhaps others, to shift positions. Other historians — mostly legal scholars — argue that the court-packing fight had little or nothing to do with the court’s shift, that it represented instead a slow and steady evolution of constitutional law that long preceded the controversy. But even without taking an explicit stand, Shesol suggests a plausible argument that falls somewhere between these two interpretations.

One of Shesol’s many important contributions to an understanding of this controversy is his powerful description of the extraordinary opprobrium the court confronted as it began to overturn New Deal measures in 1935. Indeed, it was the deep unpopularity of the court that helped embolden Roosevelt to challenge it in 1937. In those first years of the New Deal, Shesol suggests, the conservative justices were stunned by the boldness and, they thought, radicalism of the New Deal; their opinions seemed to reflect their alarm and caused them to take positions even more conservative than they had in the recent past. Two years later, similarly stunned by the criticism they were receiving, the justices began to slowly back away from their most conservative views. Roberts’s shift occurred even before Roosevelt announced his court-packing plan; but that does not mean that the political furor played no role in his decision.

Shesol also draws attention to a more mundane but nevertheless considerable factor in the shift of the court. In 1937 Roosevelt supported, and Congress approved, a bill to assure retired justices that they would continue to receive their judicial salaries even after retirement. The absence of such benefits had deterred some aged justices from retiring; once the pensions were assured, several of them resigned.

“Supreme Power” is an impressive and engaging book — an excellent work of narrative history. It is deeply researched and beautifully written. Even readers who already know the outcome will find it hard not to feel the suspense that surrounded the battle, so successfully does Shesol recreate the atmosphere of this great controversy. There are many ways to explain what become known as the “Constitutional revolution of 1937,” but Shesol’s book is — at least for now — the most thorough account of this dramatic and still contested event.

Alan Brinkley, the Allan Nevins professor of history at Columbia University, is the author of “The Publisher: Henry Luce and His American Century.”