Fresh Air Interviews: Writer Jeff Shesol on FDR's Losing Battle To Pack The Supreme Court In 1937, frustrated by a conservative Supreme Court that struck down a series of his New Deal programs, President Franklin Roosevelt set about to reform the court — by expanding it and adding as many as six liberal justices. The controversial proposition is examined in writer Jeff Shesol's new book, Supreme Power: Franklin Roosevelt vs. the Supreme Court.

FDR's Losing Battle To Pack The Supreme Court

FDR's Losing Battle To Pack The Supreme Court

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On March 4, 1933, President Franklin Roosevelt took the oath of office administered by Chief Justice Charles E. Hughes. Four years later, Roosevelt would attempt to stack the Supreme Court with liberal justices. Keystone/Getty Images hide caption

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Keystone/Getty Images

Roosevelt clashed with members of the Supreme Court, including Chief Justice Charles Evans Hughes (center, front row), over his New Deal policies. Getty Images hide caption

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Getty Images

Roosevelt clashed with members of the Supreme Court, including Chief Justice Charles Evans Hughes (center, front row), over his New Deal policies.

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Less than three years after President Franklin D. Roosevelt enacted the New Deal, the sweeping economic programs designed to help the United States recover from the Great Depression, the Supreme Court began overturning key aspects of Roosevelt's legislation.

"When the first New Deal case reached the Supreme Court in January 1935, the court struck down a key piece of the National Recovery Administration, the centerpiece of [Roosevelt's] plans to get the country out of the Depression," explains historian Jeff Shesol, whose new book explores tensions between FDR and the high court. "And from that point on, for the next year and a half, the court essentially struck down all of the central pillars of the New Deal. ... By the end of the term that ended in 1936, one columnist said that it reminded him of a Shakespeare tragedy: At the end of the play, the stage is strewn with dead bodies. Those dead bodies were the New Deal programs."

In Supreme Power: Franklin Roosevelt vs. the Supreme Court, Shesol examines Roosevelt's frustration with the conservative judicial branch throughout his administration -- and his attempt, shortly after his re-election in 1936, to pack the Supreme Court with as many as six additional justices.

Supreme Power: Franklin Roosevelt vs. the Supreme Court
By Jeff Shesol
Hardcover, 656 pages
W.W. Norton & Co.
List price: $27.95

Read An Excerpt

Even before Roosevelt took office in 1933, he knew that a conflict with the high court was inevitable. The court had been a powerfully conservative force in American life since the early 1880s, and at the time it included members such as Justice Pierce Butler, who opposed the federal regulation of Wall Street, and Justice George Sutherland, who frequently battled progressive legislation as a senator during the presidency of William Howard Taft.

Even more troubling to Roosevelt was the fact that none of the justices had been appointed during his first term -- and most of them had served for well over a decade.

In addition, Shesol says, an idea was floating around street corners and editorial pages that the Supreme Court shouldn't necessarily have the last word on constitutional matters.

Jeff Shesol is a historian, former speechwriter for President Clinton and comic-strip author. He is also the author of Mutual Contempt: Lyndon Johnson, Robert Kennedy, and the Feud That Defined a Decade, which was a New York Times Notable Book of the Year. Courtesy of the author hide caption

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Courtesy of the author

Jeff Shesol is a historian, former speechwriter for President Clinton and comic-strip author. He is also the author of Mutual Contempt: Lyndon Johnson, Robert Kennedy, and the Feud That Defined a Decade, which was a New York Times Notable Book of the Year.

Courtesy of the author

"Some suggested that Congress ought to be able to overrule the Supreme Court," he explains. "By a two-thirds vote, Congress should be able to overturn any ruling of the Supreme Court, essentially making Congress the last word on the Constitution and not the Supreme Court."

FDR Saw Court, Not Constitution, As The Problem

Roosevelt, however, didn't endorse the ideas that Congress or the American public should be able to override the Supreme Court.

"He didn't think it was practical," says Shesol. "It takes a very long time, usually, to amend the Constitution ... enough to change the reality in the country. But secondly, and this is really important in understanding why Roosevelt packed the court, [is that] he didn't see any kind of contradiction between the Constitution and the New Deal. He didn't think there was anything in the Constitution that prevented him from doing what he needed to do. The problem as he saw it was not the Constitution; it was the conservatives on that particular Supreme Court. So what could you possibly do about them? So that's how he came to the idea of packing it."

Roosevelt's idea was that for any justice over the age of 70 who refused to retire, the president could appoint a new justice to sit beside the current justice and do his work.

"If the plan passed and no one [on the current court] retired, Roosevelt would instantly get to appoint six new liberal justices to the Supreme Court," explains Shesol. "Because he couldn't push the conservatives off the court, he thought, 'Well, at least I can outnumber them.' And what most people didn't realize then or today is that this is entirely constitutional. There's nothing in the Constitution that sets the number of justices at nine. The Constitution says nothing about how many justices there are."

Blowback To FDR's Plan

When Congress and members of Roosevelt's administration found out about the president's idea, they did not react well.

"Remarkably, John Nance Garner, who was Roosevelt's vice president, went back with him to Capitol Hill, stood in the well of the Senate and, as the plan was read aloud to the senators, Garner held his nose and gestured thumbs down," says Shesol.

Meanwhile, a number of Supreme Court Justices considered resigning en masse if the plan went through.

"Both Chief Justice Charles Evans Hughes and Justice Harlan Fiske Stone were eager to testify against the plan before Congress," says Shesol. "Ultimately, they decided that this would really bring the court too directly into the political controversy. But they both worked very hard and very effectively behind the scenes to bring the plan down."

Hughes wrote an open letter to the Senate deconstructing the plan, which Shesol says had a devastating effect. In addition, the court suddenly began upholding several parts of the New Deal, including minimum wage and the National Labor Relations Act. And then Justice Willis Van Devanter, a conservative, retired from the court, giving Roosevelt the chance to appoint his own justice. Shortly thereafter, Roosevelt's proposition died.

Shesol says the makeup of the current Supreme Court points out some of the problems with Roosevelt's argument.

"Age does not define ideology," he says. "Even though Roosevelt looked at what he called the 'nine old men of the Supreme Court' and suggested that the older justices were falling out of touch with reality, the oldest justice on that court in the 1930s was [Louis] Brandeis, the great liberal justice. And this was pointed out with glee with many of Roosevelt's opponents. ... So, you don't hear anything like that today. You hear concern on the part of progressives in this country that Justice Stevens and the other liberals are more likely to leave the court soon than any of the conservatives are, but I think we've come a long way since the 1930s, when that argument was made so forcefully by Franklin Roosevelt."

Excerpt: 'Supreme Power'

Supreme Power
Supreme Power: Franklin Roosevelt vs. the Supreme Court
By Jeff Shesol
Hardcover, 656 pages
W.W. Norton & Co.
List price: $27.95

Chapter 17

The last time Tom Corcoran had, in his words, "crashed the sacred robing room" of the Supreme Court, it was on Black Monday, at the invitation of Justice Brandeis, who had a message to deliver to the president: he had been "living in a fool's paradise." This time, on the morning of February 5, Corcoran visited the Court at his own initiative — and with FDR's approval — to give Brandeis a bit of advance warning about the Court-packing bill. Corcoran hoped this small kindness would "soften the blow." Roosevelt had considered calling Brandeis himself, but did not want to "get into an argument."

Corcoran caught a cab outside the Treasury Building. This was a minor subterfuge: FDR had rejected Corcoran's idea of taking an official White House car, lest it attract attention before the bill had been delivered to Congress. Arriving at the Court, Corcoran entered the robing room to scowls of disapproval from Hughes and McReynolds; oral arguments were only five minutes away, and the justices did not welcome the intrusion. Brandeis appeared startled. While the others headed to the courtroom, Brandeis stayed behind for a moment, gesturing for Corcoran to join him down the hall.

The president has sent me, Corcoran said. He handed Brandeis a press release. If there had been any way to exclude you from the plan, Corcoran continued, the president would have done so; no offense was intended. Brandeis scrutinized the release, was silent for a moment, then looked up. He asked Corcoran to thank the president for the courtesy. But "tell your president," Brandeis said gravely, "he has made a great mistake. All he had to do was wait a little while. I'm sorry for him." Corcoran wondered what Brandeis meant by "wait," but lacked the nerve to ask. With that, Brandeis shook the young man's hand and passed through the red velvet curtain.

In the courtroom, a crowd had gathered. The usual contingent of lawyers was augmented by gawkers and gate-crashers, "thronging to the building in large numbers," as a Supreme Court clerk recalled. The news was out, despite Roosevelt's careful stage-managing of the press corps. Much of the public now knew what the justices (Brandeis excepted) did not. So many people wanted a firsthand look at the Nine Old Men — to see whether they would show any strain — that the courtroom had filled quickly, and hundreds more people spilled onto the steps outside.

The justices' reaction, when it came, was muted. Just after noon, a White House messenger delivered a sheaf of mimeographed papers to the Clerk of the Court. As the justices sat on the bench, listening to oral argument, the clerk emerged from behind the curtain and handed the papers to Chief Justice Hughes; then a pageboy distributed copies to the others, all along the length of the bench.

The spectators stirred. The lawyer in the case at hand froze at the rostrum, for it was suddenly clear that not a single justice was listening to a word he was saying. Reporters strained to see whether the justices were reading the message or some other document; it was impossible to tell from their seats in the press section. Brandeis switched on his desk lamp and appeared to read carefully, wearing a faint smile and occasionally scratching his ear. Cardozo scanned the document, then put it down. Sutherland and Stone appeared to read the whole thing. Hughes, looking up, asked the poor lawyer a question, then went back to reading. He whispered something to Van Devanter, who gave a grim smile. Roberts stroked his chin, flipping pages quickly and pausing, at one point, to scrutinize a passage. He exchanged looks with Butler, and the two men chuckled.

After the oral argument, McReynolds returned to his apartment, which also served as his chambers. His clerk, John Knox, had been there all day. McReynolds made no mention of the Court-packing plan as they worked, mostly in silence, through the afternoon; Knox did not learn of the proposal until he saw the evening newspapers. The papers carried no comment from the justices, of course, but did quote unnamed Supreme Court "attaches," who said, brusquely, that the Court was up to date with its work.

Across the street from the Court, in the Capitol Building, members of Congress filtered onto the House floor and saw that microphones were hastily being set up: the networks were about to broadcast something from the floor to the nation. But what? The chamber filled quickly.

A few minutes after noon, the Clerk of the House read aloud the president's message on the judiciary. Only one month earlier, in his annual message, Roosevelt had stood in this same chamber and vowed to find "means to adapt our legal forms and our judicial interpretation" to modern realities. It was the biggest line of the speech. But now, as the means of reform were revealed, no cheering was heard. News of the plan, observed The Washington Post, "burst like a bombshell" in a Congress already shell-shocked by FDR's proposal to reorganize the executive branch. The Court plan was met with "anguish and acclamation, dividing unprepared members into cliques of the faithful, the doubtful and the outspokenly opposed." In the cloakrooms of both houses, they clustered in small groups, anxiously debating what to think, say, and do. For all their prior discussion of the Court issue, for all their efforts to devise a solution, no one — not even the most ardent supporters of Court reform — had been prepared for this. As he intended, Roosevelt had thrown them all off balance.

Discontent spread instantly. House Republicans, snapping out of their post-election sulk, settled right into talk of "fascist and communist dictatorship," like a needle finding a well-worn groove. Bertrand Snell, the minority leader, saw in the plan "the beginning of the end of everything. The President has Congress groveling at his feet now and he will have complete power when this bill is passed." This was to be expected — as were the objections of conservative Democrats, who, according to the New York Times, "gagged" upon hearing the president's message. More surprising, though — and more portentous — was the performance of Vice President Garner, who, as the message was read, stood in the doorway of the cloakroom, holding his nose and making, for all to see, a thumbs-down gesture.

Few, however, were incited to open rebellion. Loyalty to FDR was strong, resentment of the Court was running high, and political timidity, never in short supply on Capitol Hill, was seen in abundance. Not many Democrats were prepared to defy a popular president absent a clear command from their constituents — and it was simply too early to tell what the American people thought. In the House, only a single Democrat said a word against the bill. In the Senate, most Democrats, whatever their actual beliefs, shuffled into line behind Joe Robinson, who offered a tepid endorsement. "The program," he said, "is in no sense a violent innovation." Senators gamely — in a few cases ¬enthusiastically — voiced their support. "A splendid solution," chirped Joseph Guffey. Hugo Black cited its "unanswerable logic." South Carolina's James Byrnes went so far as to call the proposal "conservative. I do not know that it goes far enough, but I am in favor of it." Even Garner, after indicating his true feelings in the cloakroom, allowed himself to be photographed smiling, literally, upon the message as he flipped through it with Ashurst and another senator, both smiling as well.

The most curious response came from Senate Republicans. Most refused to react at all. Only a few days before, in a nationwide radio address, William Borah had denounced the idea of interfering with the Court. But now that Roosevelt had revealed his plan, Borah struck an almost comically neutral pose. "This," he said, "is a very important message. There are some things in it which seem to be all right. There are some that I do not see my way clearly to support." Refusing to clarify or to comment further, Borah would only state the obvious: "this matter," he said, "will be thoroughly discussed."

The bill would be discussed, assuredly at high volume. It might even instigate, as the Chicago Daily Tribune predicted (and hoped), "the greatest legislative battle since the League of Nations covenant went down to defeat two decades ago." But no one was betting against FDR. "There will be real opposition on the Democratic side," the New York Times forecast the next morning, but thought it beyond doubt that the bill "will be moved steadily to passage." The Baltimore Sun agreed: "The President happens to have too much power for the opposition to overcome. Power in terms of patronage, of prestige, and of vast sums of money."

Initial reports appeared to confirm this. A "tentative survey" that day by the Wall Street Journal indicated little opposition in the House and a favorable split in the Senate of 53 - 43. "The situation looks promising," agreed Homer Cummings, who spent the afternoon in his office, dodging press calls. He foresaw "some opposition," as he wrote in his diary, "but not as much as probably might have been expected." His assistant Joseph Keenan, having spent the day canvassing opinions, "told me that the Senators with whom he talked agreed that it was a remarkable piece of work and they were disposed," Cummings wrote, "to give me credit for it."

At the White House, where the president and a few aides crowded into Missy LeHand's office to hear reactions over the radio, the mood was similarly upbeat. Charles West, FDR's congressional liaison, returned from the Hill that afternoon with a bullish report. "The high spots," James Roosevelt recorded in his diary, "seem to be that the conservatives are red in the face and furious. Most of the others think this is a grand method to make constitutional changes when necessary." That night, FDR had dinner in the Oval Room with James, his wife Betsey, and Missy LeHand. They listened for a while to radio commentary on the Court proposal. "Some good — some bad," noted James. After dinner they played a couple of sets of bridge "midst great hilarity. Father certainly can't bid," James observed, "but he can play pretty well."

From Supreme Power: Franklin Roosevelt vs. the Supreme Court by Jeff Shesol. Copyright 2010 by Jeff Shesol. Reprinted by permission of W.W. Norton & Co. All rights reserved.