FDR’s Attempt to Pack The Supreme Court, Part 5
FDR’s Continuing Refusal to Accept Compromise in the Face of Defeat and How His Pressure on The Senate Led To The Demise of Both the Majority Leader and The Court Plan
FDR had to be familiar with the quote of the general Pyrrhus: “Another such victory and I am undone.” By the time of the Court’s shift towards the New Deal in April of 1937, he actually seemed to have gotten that. Yet his first reaction was a burst of disappointment at this happening.
When Joseph Robinson heard this decision he strongly advised Keenan to compromise in the aftermath. “He should say he’s won, which he had, agree to compromise to make sure, and wind the whole business down.”
Yet FDR seemed to take this victory more personally than the obstruction that had caused him to embark on this plan in the first place. He viewed it solely as a political decision and proof that Hughes had done this not because they had shifted but to save themselves. And more importantly he was still fixed on crushing his congressional rebels. It is not clear who originated the quote “It is not enough for me to win. My opponents must also lose” (it has been attributed to sources as varied as Henry Kissinger and producer David Merrick) but that seemed to have been what FDR truly wanted.
And it is clear in hindsight that even getting the victory from the court wasn’t enough. He wanted a court that would ‘co-operate’ with him, something he told Senator Mahoney of Wyoming and law professor William Ripley not long after. He wanted six new justices in large part because he wanted to have influence over them; to have the court and Executive branches works things out in the public interest. Mahoney and Ripley answered FDR calmly about this idea, but inwardly they were horrified.
Those who considered the possibility of FDR being dictator like have their strongest argument by this conversation and those who argue for a model of this plan going forward have clearly decided to agree with FDR in principle. To try and pack the court, whatever argument the left wants to make is clearly done out of the idea opposed to the doctrine of separation of powers. In a sense this is confirmed by another decision that FDR was considering that was not out of the question.
For two years FDR had promised that Joseph Robinson, Senate Majority Leader, would receive the first vacancy on the Supreme Court that became available. Robinson knew this very well and was no doubt in part working as hard as he could in favor of the Court plan with this goal in mind. The irony is Robinson was from Arkansas and, no matter how loyal he had been to the Administration, FDR and his team thought his southern conservative background would work against them on the bench.
So the idea of appointing Robinson was considered a problem and additional justices would be necessary to offset the ‘balance’ Robinson would provide. His advisers didn’t offer any advice for moderation or compromise. Assistant Attorney General Jackson actually said: “If you’re going to pack a court at all you’ve got to really pack it.” Jackson was also convinced the reversal was meaningless.
Congressional leaders were miserable when FDR rejected the compromise and order his troops back to take up the battle. (He began to plan a fishing trip.) The votes Robinson had for passage dried up almost immediately. Each of them giving the same message: that they didn’t like the bill and they didn’t see the need for it anymore.”
Furthermore labor, another reliable source, began to officially dry up. The AFL had endorsed the bill after heated argument but the leadership had no power to make the base accept it. One of the major groups was heavily Republican and while they had come in for FDR’s reelection, they did not like the bill and never really pushed for it.
The bigger problem was the C.I.O (the two were still separate organizations at the time) Leader John L. Lewis had been a powerful force behind FDR’s reelection in 1936 and the dawn of the New Deal he had shifted from a Republican to a Democrat, a position he held for the rest of his long life. But Lewis was also savvy enough to never trust a politician out of hand: even then when a New Dealer told him to just trust the President he said brusquely: “I’ve been sold down the river by too many goddamn politicians to trust any of them.” Furthermore, FDR could sense that Lewis was becoming a force in his own right and FDR knew he could not controlled them. Lewis considered FDR more of a political convenience, no doubt certain he would be around longer than the President.
As a result FDR did not take Lewis into his confidence and when the bill came out Lewis — who perhaps justifiably thought that he could take sizable credit for the President’s victory — chose to say and do nothing. Lewis was also cagier than Roosevelt. He knew that because FDR had decided to go it alone, there would come a point when he was going to have to ask for a favor. The fight was not going to be pressing until the decision involving the NLRB was acted on. He could wait.
So much as when Henry Wallace tried in vain to get the farmers on board, the only voice left for labor was President of the Non-Partisan League George Berry. Berry had enthusiasm and cunning but little else. There were no major labor lobbyist to put pressure on Senators and without them, the promises Berry had were empty ones. When the court’s decisions came out in favor of labor, Lewis had no motivation to propel the fight forward. On April 19th they said they would endorse the bill but do nothing else.
By this point the committee hearings had taken over Congress. At this point the decision to surrender by Keenan and Corcoran the debate to the opposition was now completely dominated by the Congress and they did a far better job of it then the defenders had done. It didn’t help that most of the people in the group were more convinced in the righteousness of their cause then the supporters of the bill were.
Now there was a fair amount of support for these by interesting groups in bringing the bill down, which including the Republicans, the ‘economic royalists’ and many publishers, all of whom were among FDR’s most vehement foes. But during this same period FDR and the administration barely put up a fight. FDR did not take the stump, no doubt reminded of Wilson’s failed attempt to argue for the League of Nations. But while some left-wing groups — including the American Communist party — took the side. And the Senators argued for it did so poorly and often to empty halls. Despite all of that FDR kept saying that ‘the people were with him’, even though it was very clear by now, they weren’t.
It is also the fact that, after four years of essentially winning every fight they’d had with Congress over the past four years, the administration was now faced with losing and they were completely unprepared for it. FDR was no help in this no matter what reports he got from his advisers, telling them point blank that his opponents either were not responding to appropriate pressure or were too cowardly to vote for the bill, and still did nothing to help save the situation.
The organization was therefore sloppy compared to the opposition throughout the next several weeks but without unification or direction they could not do anything. They couldn’t even manage a list of their own supporters until near the very end of the struggle.
When the hearings ended in mid-April, eight members of Judiciary were still on the side of the bill. Seven were firmly in opposition. It came down to the three undecided: O’Mahoney of Wyoming, McCarran of Nevada and Carl Hatch of New Mexico. O’Mahoney and McCarran had shifted to the opposition after the administration’s refusal to compromise. Despite their efforts, Hatch was now on their side. Hatch and McCarran could have been won over by compromise but FDR’s refusal to do so had cost them their support.
The only approach the administration thought they had left was to move the Senate to other business. This was an even worse idea, as Robinson refused to leave the bill hanging. Even as the opposition grew stronger in the Senate FDR was positive naïve in his optimism. He went on his proposed vacation April 28th. While he was there Robinson and the two other critical leaders Pat Harrison of Mississippi and Alben Barkley of Kentucky met with Roosevelt’s son and told them to let them compromise to get something. Jimmy dismissed this talk as defeatist. When FDR heard of this he called in Robinson, Bankhead and Rayburn and laughed at their fears. Furthermore, he indirectly threatened to use this to campaign against them in their districts in next year’s elections or possibly in 1940. (It’s worth noting that none of the leaders of the party were remotely happy with that idea in 1937.
That May Justice Van Devanter also said he wanted to retire a move that offered the President one last chance to get out of it and put Robinson in his place. When Harrison and Byrnes made this argument, FDR blamed Robinson saying he had arranged it. Rather than confirm it the President made no sign that he would get what he wanted.
For two weeks a hurt Robinson refused to even talk with the administration. It took until June 3rd for FDR to finally give in and meet with Robinson. Robinson spent the next two weeks trying to come up with a compromise that could save the President from defeat. But it was too late. On May 18th the judiciary committee voted ten to eight to report unfavorably on the bill.
Robinson thought he might have worked out a compromise that could still save the administration and give them a victory. But the effort was taking a toll on Robinson. In mid-June, he was warned by a fellow Senator that if he didn’t slow down he was going to suffer a heart attack. On July 14th that happened and Robinson died.
The bill was dead right then and there. But FDR essentially signed the certificate in the aftermath.
The two candidates for leadership were Harrison and Barkley. By now Roosevelt was bitterly defiant, refusing to use Robinson’s death to beat him. He composed what would become known as the ‘Dear Alben’ letter, a bill in which he more or less told Barkley not to surrender and not give any quarter. This infuriated the Senate, who saw it as yet another violation of separation of powers: not content with trying to control the judiciary, he wanted to influence the decision of the legislative.
The reaction to this could perhaps best be summarized by the reaction of a Missouri Senator who at the time all of Washington — including no doubt himself — would think of having Presidential timber.
Harry Truman had been elected to the Senate in 1934 in the wake of the overwhelming midterm victory. A product of the St. Louis machine, he was not thought of very highly among his fellow Senators initially: in his first year, many referred to him as ‘the Senator from Pendergast’, the political boss who controlled Missouri Democratic politics and who had backed him for Senate.
In the battle for majority leader, the White House would use all the influence it could, making promises to Senators of patronage for support, often through their bosses at home. In the aftermath of Robinson’s death Pendergast called Truman and told him to vote for Barkley — but he was not promised anything in return.
It is worth noting that Truman and Barkley were friendlier than he was with Harrison, and that friendship would last for a long time; even before Truman chose Barkley as his vice president in 1948, four years earlier Barkley had asked Truman to make a nominating speech for Vice President for him at the 1944 Democratic convention. (Truman declined because he had already promised to nominate Byrnes.) But Truman had never liked being bullied by anyone and he called Pendergast back and told him he was voting for Harrison. There were no repercussions or disagreement; Pendergast was clearly indifferent to being pressured himself. (He might have had other things on his mind; not long after that an investigation that would lead to his downfall began in Missouri.)
Truman told Barkley as much before he cast his vote. Barkley thanked him.
There were seventy-five Senators in the Democratic majority when the vote was cast. After seventy-four votes, it was tied with 37 for Harrison and 37 for Barkley. As the last paper was being unfolded Barkley said it looked as big as a tent. It was for Barkley. (At the time votes were in the Senate on this were anonymous, so we will never know how the votes officially broke down.)
At Robinson’s funeral there was a wake being held for the Court bill. A county judge told a Senator what was on everyone’s minds: “That court bill is responsible for the funeral we’re having today. Joe was fighting a losing fight and he knew it. It was the first fight he’d lost in the Democratic party, and that’s what killed him.”
Two days later, John Nance Garner came to see FDR about the court situation. “Do you want the bark on or off?” he asked. Garner told him that FDR was licked and he had to accept it. FDR agreed. The next day, Barkley was elected majority leader and the following day the bill was officially killed.
Those who look at FDR’s model for Court packing as a path forward — which is extensively that of the left — are either ignorant of true facts or have revealed their totalitarian leanings. Indeed FDR’s actions from the beginning to the end of this fight are those of a man who for all intents and purposes was essentially behaving like an autocrat.
He refused to take any advice from people who might argue against his approach. He chose to believe ‘the people’ were with rather than gather support from sources that might help him win this fight, including Congressional leaders. Once the fight began, he completely ignored the ferocity of the opposition and refused multiple opportunities to compromise which might have given a partial victory. Every warning sign that came along the way he chose to ignore and refused to design a strategy based outside his ‘certainty’ that Congress would vote with him. He took the clear exit ramps he had — the Courts turn towards the New Deal and Van Devanter’s retirement — as a tactic by the enemy to act against him. And it is clear that from the start he showed little interest in separation of powers, both when it came to handling the judiciary and the legislative branch. Those who argue that this was close to an authoritarian effort by Roosevelt to control the government to his will are not without merit.
Yet even in defeat FDR still believed the people were with him. He was convinced that the people would see him as a martyr and that they would take their wrath out on the Senators who had been the most vivid opponents of the bill. This would lead to the other most controversial action FDR would take during his administration.
In the next article in this series, I will deal with FDR’s attempt to remove conservatives from the Democratic Party in what would become known as Roosevelt’s ‘Purge.’