Another President’s Court Drama

Posted March 22, 2010 at 3:42pm

Despite President Barack Obama’s pointed remarks in January’s State of the Union address, strife between presidents and the nation’s high court is nothing new.

Today, contention between the executive and the high court just airs on live television. To be sure, Obama’s condemnation of the Supreme Court’s recent decision in Citizens United v. Federal Election Commission was pointed: “The Supreme Court reversed a century of law that, I believe, will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections,” Obama said. The president’s swipe, in turn, prompted the now-infamous reaction of Justice Samuel Alito, who winced in disagreement, shaking his head and muttering, “Not true.”

Rewind from that showdown to the 1932 presidential campaign, when another contentious flashpoint between the court and the executive reached presidential denunciation. Within a mere week of Election Day, then-candidate Franklin Delano Roosevelt issued a throwdown to the judiciary branch. Before a Baltimore campaign rally, Roosevelt unequivocally accused the court of partisanship, itemizing the body as a Republican-controlled branch of government complicit in the economy’s downfall: “Let’s see who is responsible for the failure. … The Republican Party was in complete control of all branches of the federal government … the executive, the Senate, the House of Representatives and, I might add for good measure, to make it complete, the Supreme Court as well,” Roosevelt said.

That drama is just one of the many gripping accounts in “Supreme Power: Franklin Roosevelt Vs. the Supreme Court.” Author Jeff Shesol, a former speechwriter for President Bill Clinton, used contemporary newspaper accounts, numerous personal diaries and communications, as well as academic journals in comprehensively retelling Roosevelt’s effort to restructure the Supreme Court. That effort culminated in the president’s attempt to increase the number of sitting justices, thereby thwarting the narrow conservative majority that jeopardized the administration’s recovery policies.

Shesol provides ample context to Roosevelt’s court fight. Because the number of justices isn’t provided for in the Constitution, the size of the court has always been up to Congress. In 1789, the court sat six justices, but that number would fluctuate over the next seven decades, often reflecting power struggles between Congress and the executive branch. By the start of the Roosevelt administration, the court’s makeup had remained static for 65 years, at nine justices.

The book often reads as a novel would as Shesol traces one of the most contentious chapters in the Roosevelt presidency. The players are all enumerated, from the individual justices to the president’s advisers, both inside and outside the administration. Chief Justice Charles Evans Hughes, who looked the part with a “grand white mustache and regal beard,” marked the court with paradoxical legal philosophies; liberal stalwart Justice Louis Brandeis was “one of the only two justices … who could have felt at ease in the new political order;” and Justice Willis Van Devanter, a 73-year-old infirm man, consistently sided with the conservative block.

Nothing suggests Roosevelt was overly eager to make over the Supreme Court as he began his presidency; rather, the new president actually envisioned cross-branch collaboration with the court. “Despite all the talk about amendments to the Constitution and about adjustments to the system of checks and balances — Roosevelt was consistent in his belief that the real problem was not one of the law per se, but of law being twisted by ideologically-driven, outcome-oriented justices,” Shesol writes.

The president’s crusade would only come with the court’s pushback against the New Deal, Roosevelt’s transformative set of policies aimed at America’s recovery from the Great Depression. The warning signs of trouble started to roll in during Roosevelt’s second year as president, particularly with the court’s 5-4 ruling on Railroad Retirement Board v. Alton Railroad Co. The 1935 decision was based on the due process clause of the Fifth Amendment and resulted in severing retirement security from interstate commerce. It was a clear blow to Roosevelt’s legislation that would have restructured the pension system of the ailing railroad industry.

The Alton decision was followed by a series of additional blows from the high court — including Humphrey’s Executor v. United States, Schechter Poultry Corp. v. United States and United States v. Butler — all of which spurred Roosevelt’s warming to court intervention. Shortly after the start of his second term, Roosevelt laid out the Judiciary Reorganization Act of 1937, which would have allowed the president to appoint an additional justice, up to six in all, for every sitting member of the court over age 70. With decisive Democratic majorities in the House and the Senate, Roosevelt’s campaign seemed like sound politics.

But the fight decisively failed that summer, when the Senate voted 70-20 to send the judicial reform measure back to committee. Shesol recounts the fierce disagreement within the administration over the cause of that failure, whether it was poor messaging that emphasized improving efficiency rather than changing the court’s ideology, the president’s imperviousness to advice and unwillingness to compromise with Congress, or misleading assessments of public support.

Despite the book’s tight focus, Shesol makes the subject eminently readable. He eschews an excessive use of legal jargon and does well in placing the reader in the context of inside and outside events that affected the court fight. For example, Shesol sets the scene of a Jan. 25, 1936, meeting of the American Liberty League, an organization formed by conservative Democrats opposed to Roosevelt: “The Mayflower Ballroom — where the president, barely two weeks earlier, had spoken on Jackson Day — was packed … the women in black velvet dresses, the men in white ties and tails, the ushers in Confederate gray mess coats and black pants,” he writes.

“Supreme Power” is a fascinating account of one of the most contentious issues of the Roosevelt administration. Shesol contends that the effects of the “purge,” as Roosevelt’s judicial reform would become known, prompted a political realignment: Roosevelt strengthened the conservative wing of the Democratic Party and sparked a slow exodus to the Republican Party, one that would take decades to emerge. Indeed, had not Roosevelt’s battle gone abroad with the U.S. entrance into World War II and the New Deal, one could question whether the president might be more remembered for lost opportunities.