FDR’s Attempt at The Court Packing, Part 2
His Frustration With ‘The Nine Old Men’, The Strategy He Decided Towards ‘Reform’ And The Blunders He Made In The Process Before He Announced It
Note: Much of the material in this article and those to come are from 168 Days, a book written at the time of the battle by esteemed journalists Joseph Alsop & Turner Catledge. Both men were Washington insiders — Alsop would become infamous for being part of the so-called ‘Georgetown Elite’ — but their integrity as reporters of the period cannot be questioned.
By 1935 it was agreed that while the New Deal had not brought prosperity back to the nation, it was bringing recovery. This would put the Republican Party in a bind not merely for the 1936 election but for the rest of FDR’s term in office and well after his passing.
The New Deal was everything the conservative base of the GOP — including Herbert Hoover, still prominent in it — hated with an utter passion. The problem was, it was working so well that none of the Republicans could find a good way to attack. In the 1932 campaign Hoover had stated that if FDR was elected “grass would grow in the streets of New York and Philadelphia.” And by the time of the Democrat convention that year, the Democrats threw it back in his face.
Alf Landon, the governor of Kansas who basically got the nomination because he was one of the few major Republican office holders to win reelection in 1934, was the first of FDR’s opponents to face this impossible bind. He eventually settled on a method known as ‘me-tooism’ where the Republicans would essentially argue that the New Deal was working but if you put them in office, they could run it better and more efficiently. This would never be a winning proposition during FDR’s electoral run and by the time he had died, the New Deal was so entrenched in the social network that most Republicans decided there was nothing to be gained electorally by campaigning on destroying it. It would not be until Barry Goldwater in 194 that the Republicans would nominate a candidate for President who ran on an anti-New Deal platform and not until Ronald Reagan sixteen years that they would manage to elect a President on one of deregulation.
FDR never had reason to doubt winning reelection in 1936. And indeed, it was during this year that he spent a fair amount of time concentrating on the one clear source of opposition that the New Deal was facing: the Supreme Court. During the first two years of FDR’s term the Court had been divided on much of the New Deal legislation but in May of 1936, the court unanimously invalidated the National Recovery Act. Not long after the court made a series of rules that began to invalidate major parts of the New Deal, including the Agricultural Adjustment Act and striking down the New York Women’s Minimum Wage Law. They also made decisions that limited the government’s power on bankruptcy and labor’s ability to negotiate with corporations. FDR had been willing to take a certain measure of patience with the court but these decisions infuriated him.
They also infuriated many Americans. Like today, there was a frustration at the Court being out of touch but in this case it had to do less with ideology than age. In the middle of 1936, an article denounced the Court as ‘Nine Old Men.’ There was a fair amount of truth to that description: six of the nine Justices, including Charles Evans Hughes, were 70 or older and the court had been intact since Holmes had left it late in Hoover’s term. FDR spent months discussing the issue with his own brain trust, including his Attorney General Homer Cummings and legal minds such as Felix Frankfurter.
Wisely, FDR kept his thoughts about the Court out of the 1936 campaign. The media was by a considerable margin endorsing Landon (the last count was that two-thirds of all newspapers did) and while Landon himself did not think he had any chance of beating FDR (he mentioned as much to a reporter in September on condition of secrecy) the media desperately wanted to seize on something to get him out. During the fall, The Literary Digest a magazine known for the earliest attempts at public opinion polls began the poll that had accurately predicted the winner of every election since 1920. From the start of their polls to the end Landon was in the lead, and when it ended a week before Election Day, Landon was winning with 360 electoral votes to FDR’s 171.
While the polling was going on Republicans and the media seized on it based on the idea that FDR would be defeated. FDR never doubted it, though his electoral guess was far off too: He thought he would win with 350 electoral votes to 181. So on election night, even he was surprised when he won the greatest electoral landslide in history with more than sixty percent of the popular vote and carrying every state but Maine and Vermont. (Not long after the 1936 election, the Digest folded. )
Now that he had his popular and electoral mandate FDR thought he could concentrate on the idea of reform for the Court. Unfortunately his popular mandate caused him to misstep from the start. Prior to his announcement of every major program he had made to this point, he had first consulted with his teams of his advisors: first his storied ‘Brain Trust’ and when he had the legislative plan in mind, Congressional Leadership. At the time the heads included his Vice President John Nance Garner, Senate Majority Leader Joseph Robinson, and Speaker of the House William Bankhead. But this time he assumed his massive mandate in Congress would override any objections they might initially have. So his sole helper during this time was his A.G. Homer Cummings.
It was not that Cummings was not unqualified for the job, either as a Democrat or a legal scholar. He had been a loyal Democrat for forty years, and though he had initially been a temporary posting for Attorney General after FDR’s first choice Montana Senator Tom Walsh died before election day, in a Justice Department besieged by lawsuits against the New Deal he had kept it going all this period. But Cummings had never been admired by many of the intellectuals that made up FDR’s Cabinet and Brain Trust and the idea of being part of changing the Court ahead of them stirred him.
FDR and Cummings knew they had four alternatives: they could propose an Amendment enlarging the Federal Powers of the government. They could limit the court’s jurisdiction, they could require more than a simple majority to invalidate an act of Congress, or they could ‘pack it.” They rejected the first alternative quickly and while Progressive Senator George Norris had a bill before the Senate about the third option, both Cummings and FDR thought Norris’ reading of the Constitution was wrong. After discussion with Frankfurter, they decided ‘the best way out was Court Packing’. There was precedent: the Court had expanded from its original seven members to nine, so it was not against the Constitution. Privately all were aware that this was a ‘taboo’, but the Court had weakened that taboo with its behavior and considering the Republicans were fundamentally outnumbered, what opposition could they provide.
Just before making a goodwill trip to Argentina FDR told Cummings he would present a court bill to Congress as soon as one could be ready and he hoped one would be when he returned from his trip. But when he did a month later FDR told him that none of the proposed solutions were satisfactory.
Cummings revisited the issue and decided to make the age of the judges involved the principle. He was guided by a recommendation Justice McReynolds had made in 1913. In it McReynolds had recommended that when any federal judge, except for those on the Supreme Court, did not retire at the age provided by law the President should appoint another judge to preside over the affairs of the court and have precedence over the older one. McReynolds, at this very moment, was on the Supreme Court and was now at the heart of the opposition to the New Deal.
Almost from the start this suggestion by Cummings became FDR’s favorite. FDR was a lover of irony and using one of his enemies own ruling to undermine him appealed to him. Even the fact that the conservative block of his own party would oppose it did not strike him as a problem; their opposition would fail. So he made the decision — but aside from Cummings, no one else was told about it or advised about it.
This was a mistake because two of his major advisers, Benjamin Cohen and Thomas Corcoran, had discussed the idea with Solicitor General Reed and early on dismissed the idea of extra judges. They had toyed with the idea a year earlier; Corcoran had suggested it to Progressive Senator Burton Wheeler, a year ago and had written a speech on it for him that Wheeler refused to deliver. But they thought the best plan was an amendment to the Constitution that was far closer to an earlier suggestion: the amendment would have allowed Congress to override court decisions on a point of law, by a two-thirds majority at once, and a simple majority after an intervening election. Congress would also have the power to invalidate state acts thrown out by the Court.
Furthermore while he did later on discuss the bill with some of his advisers, including trusted friend Samuel Rosenmann, FDR was arrogant enough to believe that leadership would unilaterally support whatever bill he proposed that he saw no need to consult Congressional leaders at any time in the process. Nor did he make any effort to give advance notice to officials who were in charge of labor or farms. FDR’s was so determined for this to be theater, that he assumed the surprise would carry the day. That to this point leadership had an unblemished record of subservience to the White House but offering advice that might help when they were asked was not even considered part of his decision making process.
Almost from the start there were warning signs. In his jubilance he broke down and showed what he had ready to many members of his inner circle. As 168 Days puts it eloquently:
“With them he was like a father exhibiting a favorite son to an old friend. (His inner circle) felt like they had been confronted with a child in whom any but fond parental eyes could see the symptoms of incipient disease. All of them were astonished; all of them saw more trouble ahead then the President looked; some of them…were completely horrified by the indirection of the message, its highly sophistic reason and its implied condemnation of old age. But the time for radical changes had passed…The President was in no mood to heed minor danger signals.”
The actual bill was relatively simple and fell into four major parts.
First, when any judge of any federal court who had been on the bench ten years waiting more than six months after turning 70 to retire or resign, the President might appoint a sort of coadjutor for them.
Second, the number of judges on any court should be permanently increased by the appointment of additional judges, bur the membership of the Supreme court should not be increased by more than six.
Third, the Chief Justice might assign extra circuit judges to any circuit court of appeals where a press of business occurred and similarly to district courts with crowded dockets.
Fourth, the Supreme Court might appoint a proctor to watch over the status of litigation, investigate the need for assigning extra judges to congested courts and recommend their assignment to the Chief Justice.
As Alsop and Catledge write the bill was clearly written to solve the problem with the reactionary course of the current court but FDR never referred to it when either he or Cummings proposed it to Congress. In his bill President euphemistically referred to courts as easing the justice’s burden but in other words it discussed that the court needed ‘young blood to vitalize it’. The inner circle knew the moment that FDR made this proposal to Congress, no one — not in the legislator or the general public — would be deceived by what FDR was proposing.
And by far the clearest one should have been obvious. By this point the spectre of fascism was sweeping Europe. Much of FDR’s legislation involving the New Deal had infuriated the Republicans and interests by saying that his actions violated the Constitution and were dictatorial. FDR had managed to deflect these arguments based on the popularity of the New Deal to this point, but a decision to fundamentally reshape the Judiciary — the one branch of government where FDR and the Democratic Party did not have a majority well beyond the pale — was not merely horrible optics but perilously close to what Fascist governments across the globe were doing.
And he more or less basically confirmed that when he finally announced his measure to the inner circle on February 3. FDR came inro a meeting with Congressional leadership and his cabinet that day in a hurry with a sheaf of papers. He briefly announced his purpose, giving a few snatches from the message. Senate Majority Leader Robinson flushed deep red. The others did their best to keep their astonishment from their face. In less than five minutes he broke off, said he was sorry he had to leave, but the press was waiting and they’d know about it in a few hours because he was sending it to Congress at noon. The press was a mix of delighted, and disturbed, and he told them far more than he had done so telling his cabinet and Congress. “He kept smiling’ Alsop said, “as if he were asking the assembled newspaper men to applause the perfections of his scheme.”
By this point the meeting in the Cabinet room had broken up to dead silence. Hatton Summers had the first and clearest reaction: “Boys, here’s where I cash in my chips.” But his reaction would be mild compared to Vice President John Nance Garner. When the message was still being read before Congress, Garmer would leave the rostrum and hold his nose with one hand and gestured thumbs down with the other. Garner supported the bill for awhile but from this point on he was no longer a loyal follower of FDR.
Few expected this to matter considering Garner’s own opinion of the Vice Presidency’s importance was generally held by Americans. More importantly was how the battle in Congress would take place. In the next article in this series, I will deal with the makeup of the membership of the 75th Congress, where the most virulent opposition would come from and how the battlelines would form.