War on the Courts

If evidence were lacking that Roosevelt's massive victory at the polls had done something to him, he lost no time in supplying the proof. On February 4, 1937, just two weeks after his inauguration, the President sent word to Joe Robinson, his Senate leader, and Speaker Bankhead of the House to be present at a cabinet meeting that day and to bring with them Hatton Sumners and Senator Henry Ashurst, chairmen respectively of the House and Senate Judiciary Committees. The cabinet and the invited legislators were present shortly before noon, assembled around the large table in the cabinet room, and all wondering what was in the air.

Presently, somewhat late, the President was led in and took his seat at the head of the table. The clerk put on the table in front of each person several documents. The President looked at his watch and said he would not have very much time. He had sent for them to inform them that he was sending to Congress a message and the draft of a bill which proposed a reorganization of the Supreme Court. The bill would give him power to appoint a justice for every member of the Court who had reached the age of 70 and refused to retire, and he could appoint as many as six additional judges. He explained that this was necessary because, due to the age of the justices the Court was behind in its work, that the method of administering the Court's docket was defective and that the same rule applied to district and circuit judges would enable him to provide enough judges to keep up with the courts' lagging business.

He made a few more brief explanations, looked at his watch again and explained that he had a press conference in a few minutes, could wait no longer and went out of the room.

The President of the United States had just acquainted the cabinet and the Democratic Congressional leaders with a plan, the boldest and most revolutionary any president had ever suggested to his party colleagues. Not a soul present, save Attorney-General Cummings, had any inkling of what was coming. No one was asked to comment or give an opinion. It was an imperial order by a man who had become confused about his true place in the general scheme of things.

This was one show that was being managed by Mr. Roosevelt himself. Up to now he had had the benefit on political matters of the astute advice and direction of Jim Farley and on Congressional matters of Vice-President Garner, Joe Robinson in the Senate, and of Bankhead, Rayburn and others in the House. But all of these men had been carefully excluded from any knowledge of this step.

The plan had been cooked up between Roosevelt, Attorney General Homer Cummings and Donald Richberg. The Supreme Court had invalidated not only the NRA and the AAA, but a whole string of Roosevelt's New Deal laws. After all, there was and is a Constitution and Roosevelt had swept it aside in his impetuous drive for the numerous contradictory New Deal measures. His conception of the structure of the government was never really clear. The independence of the courts is something which all parties had accepted as a matter of course. Yet Roosevelt could suggest to Chief Justice Hughes that it might be well if Hughes discussed controverted constitutional decisions with him while he would discuss proposed legislation with the Chief Justice. The veriest law tyro would see the impropriety of this. Yet Roosevelt, in telling of the incident, described Hughes' coolness to his suggestion as evidence of the Court's "unwillingness to cooperate."

More than a year earlier, Tommy Corcoran had suggested to Senator Burton K. Wheeler the addition of two justices to the Court and Senator Wheeler had advised that the President quickly forget any such scheme. Corcoran reported this to the President, betraying some concern himself about the propriety of the proposal. Later, Homer Cummings took up the matter seriously and it was he who brought to the President the court-packing plan. Roosevelt was de- lighted and imposed on Cummings and Richberg, who was then brought into the proceedings, the most absolute secrecy. Thus nothing was known of this plan until it was thrown on the table on the morning of February 4, 1937.

The news, of course, created a sensation. Republican opposition was up in arms. But more serious, a large section of the huge Democratic majority was dismayed. The bill would be referred to the Judiciary Committees of both houses for hearings. Judge Hatton Sumners of Texas was chairman of the House committee. He had been at the cabinet meeting when Roosevelt tossed his plan before the leaders at the White House. As Sumners left the White House that morning, several newspapermen asked him what it was all about. He told them. Then he said: "This is where I cash in my chips."

The House leaders, angry though they were, reported to Roosevelt that he had a majority for the bill of 100 in the House. History, I think, will record that the House of Representatives elected in the landslide of 1936 reached the lowest level in character and intelligence of any House since the Civil War. Its members and its leaders were the compliant tools of the President and the hungry beggars for his bounties.

Nevertheless, this bill was a little too much and while they dutifully expressed in the private polls taken by the leaders their readiness to go along, they muttered among themselves and they did not complain when resolute old Hatton Sumners determined that the House Judiciary Committee would not even hold hearings on the bill. The President and his subalterns considered taking a vote of the House to compel the Judiciary Committee to report the bill. They had the votes, but for some reason decided not to act, but to start hearings on the bill in the Senate.

The Republican leaders decided that it would be wise for them, after formal and perfunctory expressions of individual disapproval, to leave this bone for the Democrats. From his sickbed in Virginia, Carter Glass began hurling whole streams of epithets at the plan which, he said, was "completely destitute of all moral understanding." Harry Byrd, Millard Tydings and above all, Burton K. Wheeler sounded off and at a later meeting of the Democratic critics of the plan it was decided that Burton Wheeler should take the leadership of the opposition.

Wheeler had had a long and distinguished career as a courageous and honest champion of liberal causes. Like most liberals, he had been critical of the Court, but he was a believer in the Constitution and the American system and everything in his soul rose up in rebellion against the President's audacious plan to destroy the independence of the judiciary.

Wheeler was a Democrat—a powerful Democrat. He knew when he took the leadership of this movement he was putting under Roosevelt's hand his own political death warrant which Roosevelt would not hesitate to sign. He delivered a terrific blow to the plan on the first day of the Senate hearings. The reasons given by Roosevelt for his plan publicly were wholly lacking in frankness. He did not say he wanted to pack the Court with a batch of judges who would vote as he wished. He put it entirely on the ground that because of the age and infirmities of so many judges the Court was hopelessly behind with its work. This reason for the plan was supplied to Roosevelt by Sam Rosenman.

On the first day of the open hearings, Senator Wheeler rose and read a letter from Chief Justice Hughes, in which the Justice called attention to the fact—a fact well-known to lawyers—that the Supreme Court's docket for the first time in many years was absolutely up to date. There were no cases lagging behind for any reason. Hughes had been not merely the presiding judge, but a competent and exacting administrator of the Court's affairs. This letter completely punctured the whole pretense on which Roosevelt's plan was based.

It produced consternation in the White House. Roosevelt called in his immediate White House advisers. He was angry with Rosenman, who had invented this shabby excuse which had now been completely deflated, and he poured out his wrath on Rosenman's head. One of the group, more hardy than the others, said there was nothing to do but to come out boldly and frankly with the real reason. "This," he said, "is a plan to pack the Court. You have to say so frankly to the people. Until you do that you cannot advance the real arguments which you have for the plan."

However, Roosevelt's optimism was not diminished. Taking at 100 percent all the praise showered on him for his irresistible charm, he believed that he had the complete confidence of the voters and that he could talk them into his plan without any trouble. He said to Farley: "All we have to do is to let the flood of mail settle on Congress. You just wait. All I have to do is to deliver a better speech and the opposition will be beating a path to the White House door." He had already made two speeches—one a fireside chat in which he told the people to trust him, to have faith in him and his motives. But somehow the golden voice didn't work.

Roosevelt's first mistake was the manner in which he had announced the plan, which was an insult to the leaders. His second was the phony reason he gave for it, which was now gone. His third was in supposing that he could do anything provided he could reach the people with his voice. He was now to make a fourth.

Wheeler's plan of action in attack could hardly be improved on. He summoned before the committee none but well-known liberals, men whose standing before the country as liberals could not be questioned. Week after week there came lawyers, educators, authorities on constitutional law, writers and leaders, all of whom had been critical of the decisions of the Court, but all of whom repudiated the idea that because the Court did not agree with them our system of government should be torn to pieces and our constitutional liberties deprived of the incalculable bulwark of a free court against the aggressions of an executive. Just as Hughes' letter had cut from under Roosevelt's feet the pretense that the plan was offered to get rid of the log-jam in the courts, so Wheeler's strategy robbed Roosevelt completely of the false cry that the opposition came from the economic royalists and the tories. The more senators listened to the arguments offered day after day before the Senate Judiciary Committee, the more the people read of these arguments and the men who were offering them, the weaker and more hopeless became the President's case.

At this point the men closest to Roosevelt in managing the fight began to talk of compromises. One of these was to limit the number of new justices to two. Another was to allow the President to appoint a justice for every man reaching the age of 75, but limiting him to one appointment a year. He could have gotten this, which would have been unfortunate, but it would have enabled him to show a victory over the Court. He rejected the idea of compromise in spite of the advice of almost everybody around him.

Throughout the battle, things seemed to break against Roosevelt who, a few months before, looked upon himself as the very darling of Fortune. First of all, the Supreme Court came in with a batch of five decisions upholding the constitutionality of some recent Congressional measures; one or two of them by unanimous vote thus impairing the charge of a perversely hostile court. Next Justice Van Devanter resigned, giving Roosevelt the opportunity to appoint a judge of his own political complexion.

This presented him with another dilemma. The Senate leaders wanted Joe Robinson appointed to the bench. This had been Robinson's life-long ambition. It was Robinson's militant and unflinching defense of Roosevelt's plan that was keeping it alive. But the appointment never came to Robinson, who resented this, and a coolness developed between him and the White House. Learning of this, Roosevelt had to send his son James to appease Robinson and invite him to the White House. There Roosevelt had to make to the high-tempered senator the awkward explanation that he could not well appoint him until he had another vacancy so that he could name a well-known liberal to mitigate the objections of New Dealers who looked on Robinson as a reactionary.

Roosevelt's unwillingness to compromise now angered his own supporters who were being forced to carry this unpopular cause. In the end he had to assure Robinson that he would have the appointment, and then to crown Roosevelt's difficulties, Robinson was stricken with a heart attack in the Senate and died shortly after, alone in his apartment.

Tempers were high now. All the Democratic House and Senate leaders, cabinet officials and politicians left on a special train for Little Rock, Arkansas, to attend Robinson's funeral. The train was hot with quarrels and bickerings. It ceased to be a funeral train and became a traveling Democratic caucus seething with anger over the Court plan and all the troubles it had brought, including the splitting wide open of the Democratic party. Farley says he was "amazed at the amount of bitterness engendered by the Court issue." High on the agenda of frets and worries was the question of Robinson's successor as leader of the Senate.

Alben Barkley of Kentucky, assistant leader, was a candidate. So was Pat Harrison of Mississippi. Roosevelt, following Robinson's funeral, wished to communicate with the Democratic organization in the Senate on the Court bill. He did so by writing to Barkley—the "dear Alben" letter, which just about finished Harrison. Harrison was in arms. He said this was Roosevelt's way of tapping Barkley for the leadership job, Farley had to step into the breach. He told the President of the wrath in the Harrison camp. The President denied that he was for Barkley. He wrote a sweet letter to Harrison, but actually he was for Barkley and took pains to see that Barkley got the support that he, Roosevelt, could command in the Senate, thus electing him leader. This is an example of one of those incidents which led almost every member of Mr. Roosevelt's high command at one time or another to say that the President had misled them with obvious untruths.

Vice-President Garner, disgusted at the labor troubles which he attributed to Roosevelt, had packed up his duds and gone to Texas. Roosevelt complained that Garner had left him in the lurch on the Court fight. But he really had no right to complain. He had not taken Garner or any other leader into his confidence on the Court plan. He had set out to manage it himself. He had made an appalling mess of it and he now complained bitterly that Garner had deserted him. However, when the Robinson funeral train got to Little Rock, Garner was there. This event had fetched him out of his seclusion at Uvalde. Returning to Washington on the train, Garner got in touch with all the Democratic senators and leaders aboard. When the President got back to Washington, he was informed by those who were still fighting his battle that it was now no longer possible to get any kind of face-saving compromise.

Following this, Garner went to the White House. He was brutally frank with the President. He told him he was licked and suggested that the best course for him was to leave the matter in Garner's hands to make the best settlement he could. Roosevelt wearily agreed. Garner went to Wheeler and asked on what terms he would settle. Wheeler replied: "Unconditional surrender."

Meanwhile, the President asked Barkley to see Wheeler and to make an arrangement by which the bill would at least remain on the calendar. On July 22, in the afternoon, Senator Logan rose on the floor of the Senate. It had been agreed that the bill would be recommitted to the committee with the Supreme Court provisions left out of it. Senator Logan now made the motion to recommit. Hiram Johnson of California rose. He asked: "Is the Supreme Court out of this?" Senator Logan replied; with an element of sadness in his voice: "The Supreme Court is out of it." Senator Johnson lifted up his hands and said: "Glory be to God!" as the galleries broke into wild applause. The Court bill was dead.

Later Roosevelt complained to Farley that Garner was to blame for the defeat. He had told Garner to make the best compromise he could but, said Roosevelt, "It is apparent Garner made no effort to do so. He just capitulated to the opposition." But the truth was that Garner had capitulated to an opposition that had all the votes necessary to defeat the President.

This was in July, a little more than seven months after that avalanche of votes which had led Mr. Roosevelt to believe he was invincible and which had betrayed him into this pathetic defeat at the hands of one of the weakest and most compliant congresses in history.

There remains but one feature of this Court episode, without which its full significance is lost. The criticism of the Court among Democratic statesmen was general. They believed that some of the members were much too far to the Right and that an infusion of new minds was highly desirable. Among these critics was Hatton Sumners of Texas. But Judge Sumners was a lawyer who was also a student of the history of our constitutional system. He believed that some older judges would retire if the government made a provision for them to do so on full pay. He approached Justices Van Devanter and Sutherland on the subject and they expressed their desire to retire, but could not afford to do so on a mere half-pay stipend, Sumners discussed this with the President and introduced a bill providing for retirement at full pay.

Some of the more frenzied New Dealers promptly criticized Sumners for trying to make a soft berth for a bunch of old tories and, in disgust, he withdrew his bill. Later when the mutterings against the Court began to rise menacingly, he again offered his bill with the full assurance of two justices that they would retire when it was passed. He informed Roosevelt so, who knew, therefore, that the way was open to him to get a majority of what he called liberals on the Court without any difficulty. Despite this knowledge he threw away this means and sprang instead, without consulting Sumners, his wholesale grab at the Court. Sumners was satisfied then that Roosevelt's judgment on this subject was unhinged and that what he was after was not a mere majority, but the complete subjugation of the Court and the judiciary to the Executive by establishing a precedent that would make an independent Supreme Court in the future practically impossible.