FDR's fight to control the Supreme Court
Excessive hubris has plagued many of the world's great leaders. Something just seems to get into their heads that drives them to overreach and lets arrogance trump pragmatism.
In light of all the comparisons between the challenges facing President Barack Obama and those that bedeviled President Franklin D. Roosevelt, the Obama team should study one of Roosevelt's biggest domestic power grabs, which backfired.
Roosevelt's attempt to push through his initiatives by "packing" the US Supreme Court, adding one justice for each one older than 70, was opposed not only by his usual political foes but also by many liberal allies. In "FDR v. The Constitution," journalist Burt Solomon revisits the personalities and political maneuvering of that seminal event.
While many readers know how FDR's effort turned out, Solomon tells the tale the way a good sportswriter would describe an exciting baseball game. The comparison is apt, since Solomon sprinkles the book with cultural references including descriptions of some of the games that Supreme Court justices attended during this period.
This was one instance where FDR's legendary persuasiveness and ability to cut deals failed him. Not only was he convinced of the rightness of his cause, and for once failed to read the political tea leaves, but his opponents had principled views on which they were unwilling to budge.
Many Democrats, led by Senator Burton Wheeler of Montana, saw the court as a sacred entity that was the last best hope for protecting the rights of the less fortunate, even though many legislators were frustrated by several of the court's decisions striking down New Deal initiatives. Republicans were happy to find a way to hand FDR a defeat.
Solomon is generally evenhanded, though it is clear that he thinks the plan was a lousy idea.
While the justices were outraged by FDR's plan, they generally refrained from publicly commenting on it. Solomon, however, unveils some of their behind-the-scenes maneuverings.
The justices also played a part in defeating the plan by their own flexible decisions. After striking down key initiatives such as the National Recovery Act (which gave the government extensive power to regulate wages and prices), the court handed the Roosevelt administration several wins in subsequent cases, including upholding the National Labor Relations Act. Solomon concludes that these decisions showed the court becoming "more lenient in its understanding of the Constitution's elastic terms." These decisions, he maintains, laid the groundwork for the subsequent liberalism of the Warren Court.
These more progressive decisions dampened congressional enthusiasm and made it an even tougher sell for the president and his staff. Solomon concludes, however, that there is no evidence that the justices made any of their decisions primarily to score political points.
For many Americans, the workings of the high court are often shrouded in secrecy. This book will change that a bit because Solomon's prodigious research and lively writing brings that branch of government alive. Solomon's profiles of Chief Justice Charles Evans Hughes and Associate Justice Owen Roberts, the key players in the court's shifting philosophy, are balanced and insightful. He has distilled the essence of their lives and jurisprudence in a way that helps readers understand the basis of the justices' decision making while avoiding the mistake made by many historians of judging the past by modern standards.
He sometimes does, however, overreach. The description of Associate Justice Hugo Black as "the greatest civil libertarian in Supreme Court history " ignores other legendary liberals such as William Brennan, Thurgood Marshall, and Earl Warren. That's one of the few questionable judgments in the book. On balance, his tale is popular history at its finest and provides many lessons about the dangers of presidential arrogance.
Claude R. Marx is the author of a chapter on media and politics in "The Sixth-Year Itch," edited by Larry Sabato.