Full court press -- and then some

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By Seth Stern
Sunday, March 21, 2010


Franklin Roosevelt vs. the Supreme Court

By Jeff Shesol

Norton. 644 pp. $27.95

The most curious spectacle at this year's State of the Union address was surely President Obama denouncing a Supreme Court decision as six justices looked on from the front row. What made the occasion so unusual was not so much that Justice Samuel A. Alito, Jr., shook his head and muttered in disagreement as that a Democratic president would attack the court at all.

For half a century, ever since the era of the liberal Warren Court, it seemed as if conservatives had cornered the market on decrying judicial activism. But lately Democrats have been the ones grumbling about the Supreme Court's direction while Republicans are looking to judges as a last line of defense should health care reform pass this year. So Jeff Shesol appears to have picked the perfect moment to chronicle President Franklin D. Roosevelt's infamous 1937 attempt to pack the court with justices more to his liking.

Shesol could have recycled the title of his previous book, "Mutual Contempt" -- about the relationship between Lyndon B. Johnson and Robert F. Kennedy -- to sum up the animus he details between Roosevelt and the Court's conservatives. Roosevelt, who was irritated with the Court's repeated rejection of New Deal legislation on constitutional grounds, proposed adding a new justice for every sitting one over the age of 70. The scheme would have permitted the addition of six more justices to the nine-member court. Roosevelt's court-packing plan went down to defeat after an intense 168-day battle, the most humiliating rebuke of his lengthy presidency.

Shesol, a former speechwriter for President Clinton, is a fine writer with a gift for telling detail. He has produced a thorough and well told history, one far more ambitious in scope than Washington journalist Burt Solomon's "FDR v. the Constitution," published last year. At times, however, all the accounts of Gridiron Dinners and lengthy asides about tangential characters can drag on a bit.

Shesol seems particularly interested in detailing what prompted Roosevelt to propose the idea in the first place. He devotes more than half the book to the events leading up to Roosevelt's bombshell announcement in February 1937. At the time the scheme was portrayed as an impulsive decision by a president "blinded by arrogance" after a landslide reelection victory, but Shesol shows that it had actually been percolating for more than two years. Roosevelt was angry with good reason: Decisions shaped by a bloc of four conservative justices dubbed the "Four Horsemen" threatened to lay waste to much of the New Deal. The low point came on "Black Monday" in May 1935, when the Court repudiated Roosevelt's whole system of minimum wages, maximum hours and workers' rights.

Roosevelt came to view what Shesol calls the "radical solution" of court-packing as "practical, moderate, reasoned and wise." But the way he rolled out his proposal was even more ill conceived than the idea itself. After all, nothing in the Constitution sets the number of justices at nine. The Supreme Court expanded and contracted during the 19th century. And members of Congress frustrated by the rejection of New Deal legislation had floated the idea before the president did.

Yet Roosevelt alienated Congressional leaders by failing to consult them in advance and turned off potential allies by disingenuously trying to sell the proposal as a way to improve judicial efficiency. Southern and progressive Democrats, who were uneasy about expanding executive power, recoiled, but the president showed no inclination to compromise. The plan failed, but Roosevelt ultimately got what he wanted anyway. In the middle of the debate, the Supreme Court began reversing itself in a series of rulings upholding minimum wage laws, the National Labor Relations Act and other New Deal measures, a shift soon dubbed the "switch in time that saved nine." One of the Four Horsemen announced plans to retire; he was soon replaced by Hugo L. Black, who later became the ideological anchor of the Warren Court.

How much credit Roosevelt deserves for the justices' changed course is a question to which Shesol admits he can add little new insight. "It is, in the end, impossible to know what sways a judge," he concludes. "Even the judges themselves do not always know whether their decisions are driven, in the main, by doctrine or emotion, by the dictates of law or politics or conscience."

Seth Stern is a reporter at Congressional Quarterly and co-author of the forthcoming biography "Justice Brennan: Liberal Champion."

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