Traitor to His Class: The Privileged Life and Radical Presidency of Franklin Delano Roosevelt (96 page)

Roosevelt recommended that Congress pass legislation “providing for the appointment of additional judges in all federal courts, without exception, where there are incumbent judges of retirement age who do not choose to retire or to resign.” Though Roosevelt deliberately didn’t emphasize it, the journalists in the room understood that his phrase “without exception” contained the sum of his proposal: he intended to alter the makeup of the Supreme Court. Some of the reporters doubtless looked to the door, instinctively wanting to be the first to file this stunning story. But the door remained closed and guarded.

Roosevelt continued: “If an elder judge is not in fact incapacitated, only good can come from the presence of an additional judge in the crowded state of the dockets. If the capacity of an elder judge is in fact impaired, the appointment of an additional judge is indispensable. This seems to be a truth which cannot be contradicted.” His recommendation raised no issue of constitutional law. No judge or justice would be compelled to resign. In fact, those who remained on the court beyond retirement age would be able to do so more easily—that is, with less workload and strain—than at present. The nation would benefit from their wisdom and experience.

Roosevelt grew more specific in describing his proposal. When a federal judge who had served ten years reached the age of seventy years and six months and did not retire, the president would nominate an additional judge to that jurist’s court. The nominations would require the consent of the Senate, just as at present. In the case of the Supreme Court, the high tribunal would never have more than fifteen justices.

Roosevelt wrapped up the session. “That is about all in the act. The rest is technical. And that is all the news.”

A reporter asked whether he would read the message himself or have it delivered.

“It will be read in about half an hour.”

“Mr. President, this question is for background, but is this intended to take care of cases where the appointee has lost mental capacity to resign?” Nervous laughter rippled among the reporters.

“That is all,” Roosevelt said.

“Was that the reason for the special cabinet meeting?”

“Yes.”

“Can you tell us what the reaction was this morning?”

“There was no discussion.”

T
HERE WAS A
great deal of discussion after Roosevelt’s proposal was read to Congress. In fact, nothing he ever said or did provoked such an outpouring. Newspapers around the country weighed in at once, nearly all negatively. The
Hartford Courant
lamented the “disguise of sophistry” under which Roosevelt forwarded his plan. The
Baltimore Sun
asserted, “To put it conservatively, Mr. Roosevelt has been disingenuous with the people.” The
Des Moines Register
warned, “No matter how great and good a man may be, executive aggrandizement is not safe for democracy.” The
New York Herald Tribune
predicted that the president’s scheme would “end the American state as it has existed throughout the long years of its life.” The
Los Angeles Times
called Roosevelt’s plan “a program of almost devilish ingenuity,” one aimed at “making Congress and the Chief Executive the masters of the nation instead of its servants.” The
San Francisco Chronicle
described the president’s message as “an open declaration of war on the Supreme Court.” The
Chronicle
went on to say, “By his own choice, Mr. Roosevelt’s second political honeymoon is over. He has raised an issue which he knows will invoke an opposition as implacable as is his own purpose. On it he invites a fight to the finish. Inevitably he will get it.”

Other organizations and individuals delivered similar verdicts. Church groups condemned the proposal as putting religious freedoms at risk. State bar associations deemed it an attack on the rule of law. A former president of the American Bar Association labeled the court-reform plan a “shortcut to dictatorship.” The Women’s Press Club voted a resolution opposing it. Columnist Dorothy Parker declared, “If the American people accept this last audacity of the President without letting out a yell to high heaven, they have ceased to be jealous of their liberties and are ripe for ruin.” Amos Pinchot, a Progressive partner of Theodore Roosevelt from 1912, published an open letter to Congress asserting, “If Congress passes this bill, or any bill like it, it will have taken a long and perhaps irrevocable step into dictatorship…. The duty of Congress now, its one great chance for service, is to keep Mr. Roosevelt from destroying democracy and setting up personal government in its place.”

Congress heard its duty from many others besides Pinchot. Letters and telegrams flooded into the Capitol mailroom by the hundreds of thousands. No one kept a tally, but the overwhelming sentiment was clearly against Roosevelt’s plan. Maury Maverick, a Democratic congressman and Roosevelt loyalist from Texas, conceded the point in explaining it away. “All that this uproar in the mailbags means is that the
Literary Digest
voters are trying to conduct another election,” Maverick said.

The response of most of the other legislators was more subdued yet no less significant. Democratic leaders were miffed that the president hadn’t consulted them ahead of taking such a momentous step. He merely informed them in the meeting the day he sent the message up. The lawmakers understood Roosevelt’s reasoning—he knew they would try to talk him out of his proposal—but this simply made matters worse. Kentucky senator Alben W. Barkley complained that Roosevelt was a “poor quarterback” on the court plan. “He didn’t give us the signals in advance of the play.” House judiciary committee chairman Hatton Summers, whose support would be essential to the president’s proposal, told fellow Texan John Nance Garner and others in the vice president’s car, en route from the White House meeting back to the Capitol, “Boys, here’s where I cash in.”

The Democratic rank and file were hardly more enthusiastic. Congressman Edward Cox of Georgia reflected the shock and disappointment of many in his party. “Living within the presence of the fine things which the president has accomplished, it is difficult to withhold from him a power which he wants,” Cox said. “But his recommendation that the membership of the Supreme Court be increased from nine to fifteen, thereby enabling him, through willing appointees, to change the meaning of our basic laws and our whole system of government, asks for something which no man in all this world ought to enjoy. The recommendation constitutes the most terrible threat to constitutional government that has arisen in the entire history of the country.”

Recognizing, after the fact, the need to bring the Democratic leadership around, Roosevelt invited several influential senators to the White House. The meeting simply made the battle lines clearer. Carter Glass of Virginia called the court plan “frightful.” Edward Burke of Nebraska said, “I would rather be right than agree with the president,” and vowed to use “every bit of energy I possess to defeat the proposal.” Burton Wheeler of Montana, who had supported Roosevelt on the substance of nearly all his reforms, drew the line at this attack on the Supreme Court. “The usurpation of the legislative functions by the courts should be stopped,” Wheeler said. “But to give to the executive the power to control the judiciary is not giving the law-making power back to that branch of the government to which it rightfully belongs, but rather is increasing the danger inherent in the concentration of power in any one branch of the government.”

Unsupported in Congress, Roosevelt turned to the people. He had always known the people would be his best bet. He had waited until after the 1936 election precisely to have the people at his back. His appeals to the memory of Andrew Jackson had been made with the people in mind. They understood democracy; they had supported the New Deal; they would rally to him now. All that was necessary was for him to frame the issue in terms the people could understand.

Naturally he took to the radio, in a Fireside Chat on March 9. “I am reminded of that evening in March, four years ago, when I made my first radio report to you,” he said. The country had been in crisis, but Congress and the executive branch had moved swiftly. The economic recovery that ensued, and that continued, demonstrated how prudent and effective the New Deal measures had been. Yet they hadn’t gone unchallenged. The Supreme Court had reversed some of the most important reforms, and it narrowly circumscribed others. Roosevelt likened the American government to a three-horse team, consisting of Congress, the presidency, and the courts. “Two of the horses are pulling in unison today; the third is not.” Critics of court reform contended that the president was trying to drive the team. He was not, because he wasn’t the driver. “It is the American people themselves who are in the driver’s seat…. It is the American people themselves who expect the third horse to pull in unison with the other two.”

The judicial branch, the Supreme Court in particular, was the one pulling in the wrong direction, against democracy and the will of the people, Roosevelt said. It had gone beyond the Constitution in doing so. The people’s representatives in Congress had passed laws to protect the people and secure their prosperity, but the court had struck them down. The recovery program of the administration was in jeopardy, but so was the very structure of American democracy. The people must respond, on their own behalf and on behalf of democracy. “We must take action to save the Constitution from the court and the court from itself.”

Critics had labeled the administration’s proposal an effort to “pack” the court, Roosevelt said.

If by that phrase “packing the court” it is charged that I wish to place on the bench spineless puppets who would disregard the law and would decide specific cases as I wished them to be decided, I make this answer: that no president fit for his office would appoint, and no Senate of honorable men fit for their office would confirm, that kind of appointees to the Supreme Court.

But if by that phrase the charge is made that I would appoint and the Senate would confirm justices worthy to sit beside present members of the court who understand those modern conditions, that I will appoint justices who will not undertake to override the judgment of the Congress on legislative policy, that I will appoint justices who will act as justices and not as legislators—if the appointment of such justices can be called “packing the Courts,” then I say that I and with me the vast majority of the American people favor doing just that thing—now.

F
OR ONCE THE
Roosevelt wizardry failed. The American people were unmoved by the president’s appeal. George Gallup had begun conducting public opinion surveys just as the New Deal was being born; not long after Roosevelt unveiled his court plan, the pollster asked people what they thought of it. A majority disapproved, and the majority grew—from 51 percent to 59 percent—the more voters heard and thought about it. No less significantly, the polling revealed that the unpopularity of the court plan was damaging voters’ regard for Roosevelt himself. In February, before he announced his court plan, the president had received a favorable rating from 65 percent of respondents; this number slid to 60 percent amid the furor over the court.
Fortune
magazine asked voters if they would support Roosevelt for a third term. The portion answering positively fell from 53 percent to 45 percent.

Heretofore Roosevelt had been able to count on popular support when Congress hesitated, and that popular support had typically caused Congress to fall in line. Now the dynamic worked in reverse: the popular disaffection with Roosevelt’s court plan gave courage to those senators and representatives who opposed it. They stood firm and refused to reconsider.