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Supreme Power And FDR’s Court-Packing

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I had a request in comments to discuss how new historical findings have complicated the traditional story about FDR’s Court-packing plan and the “Switch in Time That Saved Nine.” Since this also gives me a chance to do something I’ve been meaning to do for a while — discuss and fulsomely praise Jeff Shesol’s recent book Supreme Power — I thought I’d take the request.

As most of you know, as the culmination of a long, if erratic, series of reactionary opinions by holdovers from the McKinleynomics regime on the Supreme Court, in 1936 the Supreme Court two issued widely and justifiably ridiculed opinions 1)striking down New York’s minimum wage law based on an implied “liberty of contract” that envisioned impoverished workers and their employers as being on equal footing as bargaining partners and 2)holding that a coal mining concern that sent more than 95% of its product out of state was not engaged in interstate commerce and hence its labor relations were beyond the reach of the federal government. In 1937, the Court reversed itself, upholding a state minimum wage law and the National Labor Relations Act in cases that, for all intents and purposes, rested on facts that were materially indistinguishable from the 1936 cases. Since the key intervening event was FDR’s proposal of a Court-packing plan , the classic civics textbook history is that while the plan stalled in the Senate it fundamentally succeeded by causing the Court to back down.

However, historical evidence complicates this claim. We know, thanks to the work of Bruce Ackerman and other historians, that swing vote Owen Roberts had already voted in conference to sustain the Washington minimum wage law three months before the Court packing plan was announced. And he shifted his vote although, as Shesol shows, FDR went out of his way not to make the Court a campaign issue in 1936 although he had been highly critical in the past. (Chief Justice Huges also switched of half-switched his vote in some case, although he was never a decisive vote in these cases and apparently he was being largely strategic when he joined Roberts and the Four Horsemen.) The Court did hear oral arguments in Laughlin Steel right after the announcement of the plan, so it’s possible that the pressure affected Roberts’s vote in that case, although since he had already switched once it’s hard to say.

So if it wasn’t the Court-packing plan, or at least just the Court-packing plan, what was it? Roberts always maintained that he was perfectly consistent, but essentially nobody believes him.  Not only are the votes transparently inconsistent, but as Shesol points out Roberts’s rationale directly contradicts the facts. Roberts says that he voted against the New York minimum wage bill in Tipaldo because New York refused to ask for Adkins to be overruled, but since Washington explicitly asked for the controlling precedent to be reconsidered he switched his vote in Parrish. But, actually, the reverse is true: New York, while arguing that its carefully drafted bill could be distinguished, also asked for Adkins to be overruled while Washington didn’t. So Roberts certainly did change his mind for reasons that had nothing to do with case facts.

If it wasn’t the Court-packing plan directly, I certainly don’t doubt that political pressure of various kinds affected Roberts. Roberts was a Republican corporate lawyer who also liked to think of himself as enlightened and moderate, and he also had presidential aspirations that his 1936 Supreme Court votes permanently ended. He had authored a key opinion undermining the “liberty of contract” doctrine before rejoining the reactionary faction of the Court. So it’s likely that the reaction against the extremist 1936 opinions affected him. As Shesol demonstrates, the reaction to Tipaldo in particular was fierce and bipartisan — “out of the 344 editorials…only 10 supported it.” The vain and insecure Roberts may have also been affected by a Stone dissent in another 1936 case that was unusually cutting for the era and completely shredded Robert’s opinion. (One of the many thing Supreme Power documents well is the extent to which the cavalcade of reactionary nonsense pushed Stone to the end of his rope. After one particularly silly Sutherland opinion gutting the SEC’s investigatory powers, Stone wrote Felix Frankfurter that the opinion “was written for morons…When our Court sets at naught a plain command of Congress, without the invocation of any identifiable prohibition of the Constitution, and supports it only by platitudinous irrelevancies, it is a matter of transcendent importance.”   Alas, the quality of conservative jurisprudence hasn’t necessarily improved much.)

So while the Court-packing plan itself may not have influenced Roberts, political pressure more generally (including FDR’s previous willingness to play constitutional hardball) almost certainly did. And the 1936 opinions were so extreme and untenable — collectively producing a situation in which neither level of government had the ability to pass fundamental regulations, based on strained or entirely judicially invented readings of the Constitution — that it was a matter of time in any case.

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  • greylocks

    They’re pretty much all egotistical prima donnas who think about their “legacy”.

    • rea

      Oh, hell. We wish they thought about their legacy–if they did, they wouldn’t be so inclined to do crazed rightwingnut stuff.

      • greylocks

        They do crazy right-wing stuff because they get fluffed by the crazy right-wingers and they see themselves as Great Conservative Justices. “Legacy” to them doesn’t necessarily mean “approval from constitutional historians.”

        Public criticism does get through to them, but that doesn’t mean they react rationally to it (see Alito).

        • Anderson

          They imagine the future as a gavel smashing a human face — forever!

  • Anderson

    Thanks for this post – I will have to pick up a copy of Shesol’s book.

  • Bill Murray

    What is it with SCOTUS justices named Roberts?

    • c u n d gulag

      I’ll take my chances with Julia.

      • firefall

        but you’ll get Eric (or Bob)

  • Fascinating.

    Charles Evans Hughes has long been an interesting figure to me. I’ve said for a while, if only he’d won in 1916, we would have been much better off as a nation (and Wilson would have been a top-five president easily, without the series of disasters that was his second term).

    • Scott P.

      Didn’t Hughes oppose the 16th amendment?

      • Joe

        For a somewhat technical reason and it was in place by then anyhow.

  • Davis X. Machina

    Hey, my mutatis aren’t muntandis-ing…

  • dan

    It’s a great book. That being said, I think the evidence from the book leads to a very clear answer: Roberts switched in response to the political pressure. As is detailed in the book, FDR may not have campaigned on packing the court, but he complained about their rulings, others had been suggesting for years packing, and it was clear that FDR was going to do something. Meanwhile, Roberts may have cast his vote in Parrish before the plan was announced, but he switched positions in a lot of other, higher profile cases afterwards — the Wagner Act case and Social Security, if memory serves.

    • Anderson

      Checking David Kennedy’s Oxford History of the U.S. volume as an exemplar of the conventional wisdom, he notes the fact that the Parrish vote came before the Court-packing message to Congress:

      But if Roberts did not change course because of the specific storm unleashed by Roosevelt’s Court-packing plan, it stretches credulity to conclude that he, and Hughes, were not influenced by the high-pressure front that had been building for many months, indeed years, over the Court’s obstructionist tactics.

      So there you go.

      … Anyone besides me find Kennedy’s book infuriating in its treatment of the military side of WW2? Not a story that needed retelling, but he falls for the “Norman Shelley” wheeze & displays equally poor judgment elsewhere. I need to reread the 2d half of the book & make notes for a long blog post.

      • Craigo

        On the whole I appreciated that he was willing to emphasize the role of logistics, that he refused to gloss over Anglo-American atrocities, and that he pushed back against Churchill’s “soft underbelly” strategy.

    • Scott Lemieux

      So we agree?

      • dan

        Sure. I don’t really think it’s a close question, actually.

  • bemused
    • Anderson

      Much like the innocent misuse of “grandiose” as a term of praise.

      • Ben

        I’m always bemused when people do that, gives me a little chuckle every time

    • mark f

      What an interesting factoid.

      • joe from Lowell

        I literally died that last time I saw someone use that term.

      • Malaclypse

        I was effected deeply.

        • mark f

          Your parents really went into detail in that birds & bees conversation.

    • greylocks

      Prescripionist rubbish never fails to aggravate the hell out of me. See this.

      • joe from Lowell

        Prescripionist rubbish

        This.

        All the money Walgreens makes, you’d think they’d be able to hire someone to empty the trash barrel before it overflows.

        • Anderson

          Yes, because the language is so greatly enriched every time two words with different meanings end up meaning the same thing.

          • Julian

            I think the word is “prescriptivist,” at least according to David Foster Wallace’s review of Garner’s Dictionary of Modern American Usage (if I recall correctly).

  • md rackham

    I guess I should read the book to get the full argument, but I always considered the court packing plan to be “political pressure” without much chance of success as legislation.

    So to say that SCOTUS responded not to political pressure (in the form of court packing) but instead to political pressure (in some other form), doesn’t seem all that revelatory.

    If the lesson is supposed to be that the court responds to newspaper editorials and politician’s rhetoric (i.e., bully pulpit) then I don’t think it applies at all to the current court and our generally conservative media and politicians. Angry blog posts don’t seem to have had much effect on (the current) Roberts.

    • James E Powell

      One thing that we learned from Bush v. Gore is that there will not be any pressure from the corporate press/media against any right-wing decisions. Roberts and his colleagues know this. They can do anything they want and the country will just have to deal with it.

    • Scott Lemieux

      Well, for that matter, it didn’t apply to most of that court. Eight justices more or less voted the same way in all these cases (with, as I said, the partial strategic exception of Hughes.)

    • H-Bob

      With respect to “political pressure”, the Democrats had huge majorities in both the House and Senate (even larger than the Democratic majorities after the 1974 post-Watergate election), so the pre-1936 Supreme Court decisions were going against the unequivocal policies of both political branches. The 1936 election landslide confirmed those policies, so, as the saying goes, the Court “followed the election returns”.

    • Joe

      It is fairly common to read/listen how important the court packing plan attempt was & much less about other pressures (including bipartisan pressures, not just from FDR), so Scott’s discussion seems notable. If one is already familiar with the history, a small sample size already, less so.

      The lesson is that at some point swing justices can be affected. The idea that Kennedy, e.g., cannot be affected in some cases is not really out there. The stakes were higher there, even with a lot of rhetoric against the Roberts Court. That court, in the midst of the Great Depression, struck down law after law. This one struck down parts of a campaign finance law that didn’t do much as it is. A ruling already not taken to its limits (e.g., foreign money).

      • Bill Murray

        I thought Kennedy was to be changed by a wink or two from Kagan? or does Scalia have the best wink in SCOTUS?

        • Joe

          You mean the caricature of her intended role on the Court?

  • Ben

    Kinda off topic but that new Toobin piece about Roberts’ bureaucratic wrangling to get the Citizens United ruling he wanted contains the little tidbit that Souter had written a dissent that took a plasma torch to the majority’s ruling and accused Roberts of violating the Court’s processes to get the ruling he wanted. Roberts warn’t too keen on that and scheduled a rearguing of the case for after Souter retired. Souter’s dissent was never released.

    It’s an understatement to say I really really would like to see that Souter opinion.

    • Scott Lemieux

      Yeah, I’ll have something on that.

    • James E Powell

      If Souter isn’t willing to publish his views I can only wonder if he considers them to be important. What I mean is, was whatever he was going to say something that only applied to that case and not the court in general?

      If it was something that applied to the court in general, I wonder why he wouldn’t say it in public now.

      • rea

        Because he respects the confidentiality of the Court’s deliberations?

        • James E Powell

          If that were true, he wouldn’t have written the dissent in the first place.

          • Anderson

            How does that follow?

            • Bill Murray

              well I think he respects the following of the correct procedures moreso than the specific confidentiality

            • James E Powell

              Well, if I understand what is reported about the unpublished dissent, it was not unpublished because Souter pulled it back; the matter was taken away from him by Roberts. Souter was going to say whatever he had to say, then he let the matter drop.

    • Manju

      Souter’s dissent was never released.

      I suggest seizing it via Eminent Domain.

    • Joe

      The talk about “extraordinary, bridge-burning farewell” etc. makes Toobin’s piece hard to read. Fact is that the McConnell ruling was 5-4 with strong dissents. O’Connor retired after it was in place for a few years, not really that long for it to get much stare decisis effect. The USSC started to chip away at it. Souter and Stevens more than once strongly opposed this. The idea that he “burned bridges” somehow by calling the Court out for selective judicial restraint etc., which Stevens had done for years, is hard to take too seriously. Cutting thru the cant, his reporting might have a few interesting tidbits.

      • Bill Murray

        but isn’t Toobin’s claim that it was more fixing the outcome than selective judicial restraint or maybe I don’t understand what you mean by judicial restraint?

        • Joe

          I’m not sure why you think the two things are different. Selective judicial restraint involves “fixing the outcome” by only being restrained in certain cases, in certain cases reaching out, being “activist,” as has been shown by Roberts on guns and other issues.

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