Franklin Delano Roosevelt was elected President of the United States November 8, 1932, and America would never be the same. It’s well known that, for example, within days of taking office he closed the banks and then illegalized and confiscated private gold (see http://henrymarkholzer.blogspot.com/2009/01/will-private-gold-be-confiscated_25.html and “How Americans Lost the Right to Own Gold, and Became Criminals in the Process,” by Henry Mark Holzer: http://www.fame.org/PDF/Holzer%20Henry%20Mark%20How%20Americans%20Lost%20Their%20Right%20to%20Own%20Gold.pdf ).
Less well known by modern generations is that FDR tried to rig the Supreme Court of the United States, and virtually unknown today is what caused the attempt.*
There is a rich and plentiful history about that period in America, and no mere summary can do it justice. But a sketch of what happened in the 1930s is necessary for an understanding of FDR’s Machiavellian scheme and what Obama might do.
By November 8, 1932 voters had their bellies full of, if not victuals, then of Herbert Hoover and the Republicans. Wall Street crashed in 1929, employment had fallen drastically, breadlines and soup kitchens abounded, Hoover’s response to the financial crisis was not working.
Roosevelt, the Brahmin governor of New York charged into office carrying the banner of an economic “New Deal” for the American people. With FDR came a Democrat majority in the House and Senate.
Promising to ingest more of the poison that had caused the disease, the new President and his legislative cohort sought even more government involvement in the economy as a cure for what ailed the country.
Dozens of new laws were enacted during FDR’s early days in office.
One of them, enacted in 1933, was the “National Industrial Recovery Act,” which allowed the President to regulate the oil industry. Panama Refining Co. and Amazon Refining Co. sued, claiming that Congress had no power to pass the law and had improperly delegated its legislative power to the President.
Two years later, in January 1935, in the case of Panama Refining Co. v. Ryan, the Supreme Court agreed, declaring a portion of the statute unconstitutional.
In May 1935 the government lost Railroad Retirement Board v. Alton Railroad Co. to a 5-4 vote, with Associate Justice Owen J. Roberts decrying the statute’s “naked appropriation of private property” and its taking of the property “of one and bestowing it upon another.”
Three weeks later, a trio of decisions drove yet more nails into the coffin of the New Deal’s economic policies. In one, FDR had acted outside of his authority. In another, private property had been taken by the government by shifting creditors’ property to their debtors. In the third, the Court declared FDR’s baby, the NRA, unconstitutional in its entirety.
Franklin Delano Roosevelt, a politician used to having things his way, was not pleased.
Nor was he pleased in January 1936 when the Court, with Roberts again writing the opinion for a divided Court, held the severely regulatory Agriculture Adjustment Act unconstitutional.
In May 1936 the Bituminous Coal Conservation Act followed the Railroad Retirement Act, the National Recovery Act and the Agriculture Adjustment Act into constitutional oblivion.
In the next month came what many commentators consider the last straw on the New Deal-ites backs: The Court held a New York minimum wage law unconstitutional. The vote without Roberts was 4-4. The swing man went with the majority, and the law was history.
While “conservatives” on the Supreme Court were emasculating FDR’s beloved New Deal policies by ruling unconstitutional the statutes that implemented them, the President’s minions had not been asleep.
The inaugural grandstands had hardly been taken down when the President as early as 1933 decided to dilute Republican strength in the federal judiciary, especially on the Supreme Court. He surreptitiously launched a secret project to investigate how he could castrate the Court.
Ideas came and went, proposed by eminent jurisprudents, sitting judges, even cabinet officials including the Attorney General of the United States.
Eventually, a bill emerged aimed at emasculating the Court and making it more amenable to upholding the New Deal.
The Judiciary Reorganization Bill of 1937’s core element was that the President could appoint a new federal judge/Supreme Court justice for each jurist with ten years service who did not retire or resign within six months of attaining age 70. That meant Roosevelt could add several new justices, altering the liberal/conservative balance.
Opposition from virtually all quarters was fierce, including among prominent liberals and democrats.
Then, tactical errors and human mortality, derailed the bill.
FDR’s legislative operatives ignored Congressional leaders before making the bill public. That killed it in the House.
Roosevelt then shifted to a more congenial venue: the fireside chat. In March 1937, the President of the United States went on the radio and attacked the Supreme Court of the United States for “reading into the Constitution words and implications which are not there, and which were never intended to be there.” Worse, FDR confessed what he and his cronies had until then kept publicly unspoken: that the Democrats believed America had to “take action to save the Constitution from the Court, and the Court from itself.”
But who would save the Court from the Roosevelt Administration?
Ultimately, the public, which opposed FDR’s court-packing scheme and whose opposition helped stiffen the backs of anti-Roosevelt senators.
At the Senate Judiciary Committee hearings on the bill, Roosevelt trotted out his Attorney General and special advisor Robert H. Jackson (later Solicitor General, Attorney General, Associate Justice of the Supreme Court, and Chief Prosecutor at the Nuremberg War Crimes Trials).
Jackson launched a partisan attack not only on the Court’s perception of the scope of its power of judicial review, but also on the ideology of the dominant conservative majority.
It didn’t help.
The battle raged. Witnesses testified. Allies came and went. Animosities flared. The committee dragged out the hearings.
Chief Justice Charles Evans Hughes became directly involved in Roosevelt’s war against the Court by writing to Senator Burton Wheeler. In it, Hughes denied the President’s allegation that his Court was overworked and needed more justices.
Eventually, four events occurred which put an end to FDR’s attempt to pack the Supreme Court.
One was a voting shift by Roberts in a key March 1937 New Deal case (and two others), showing that the administration could obtain what it wanted from the Court.
Another was the May 1937 announcement by Associate Justice Van Devanter—one of the so-called conservative “Four Horsemen”—that he would retire two weeks later.
The third was the Senate Judiciary Committee’s June 1937 report that President Franklin Delano Roosevelt’s court-packing plan was “a needless, futile and utterly dangerous abandonment of constitutional principle . . . without precedent or justification.”
The fourth event occurred when the bill reached the floor of the Senate and was put into the capable hands of Majority Leader Joseph T. Robinson (to whom FDR had promised the first Supreme Court vacancy).
Debate began in the Senate on July 2, 1937.
Twelve days later Robinson died of a heart attack. (Roosevelt, in a master political stroke, skipped his fellow Democrat's funeral.)
Together with Joseph T. Robinson, FDR’s court-packing plan was dead.
Far from dead, however, is the possibility that Obama may be tempted to channel Roosevelt. As I said in Part I of this essay, to achieve his comprehensive undemocratic plans for the United States Obama’s appointment of Sonia Sotomayor will not be enough.
For Obama to turn this country into the socialist/fascist paradise he desires, it is essential that he seize control of the Supreme Court. In Part I of this essay I wrote that “Barak H. Obama must emulate the cynical, utterly un-American but not unconstitutional tactic of the predecessor with whom he is most often compared: Franklin Delano Roosevelt. Barack H. Obama must ‘pack’ the Supreme Court of the United States.”
While Roosevelt failed, Obama may not— because there are ominous parallels. Just switch the names in the next three paragraphs.
When Roosevelt took office, Wall Street had crashed, unemployment was at serious levels, Hoover’s response had been misguided and inadequate, some people were starving, public confidence was at an all-time low.
When Roosevelt took office, he was surrounded by a charismatic aura, he carried the banner of a New Deal for the American people, he was perceived as energetic and having all the answers, he enjoyed enormous public support, he had substantial Congressional majorities, he touted more government as the cure for the country’s economic ills, he was unafraid to spend incalculable sums of treasure to buy our way out of depression. FDR was seen as the savior—in stark contrast to his predecessor, Herbert Hoover, who was perceived as bumbling and incompetent.
Once Roosevelt had the government firmly in his hands, he surrounded himself with a cabal of likeminded unprincipled zealots, dozens of new laws were passed altering forever America’s financial and economic system, and federal appropriation of private property took a quantum leap.
And when a bare majority of the Supreme Court of the United States tried to stop him—successfully for a while, but ultimately unsuccessfully—Roosevelt and his henchmen took on the Court itself.
Yes, the media and chattering classes have been correct: Franklin Delano Roosevelt and Barack H. Obama do have a lot in common. And if the latter takes on the Court, as the former did, the fight we must wage will have to be brutal.
Our blueprint for that fight has been provided by Professor Michael Parish: “. . . [T]he protracted legislative battle over the Court-packing bill blunted the momentum for additional reforms, divided the New Deal coalition, squandered the political advantage Roosevelt had gained in he 1936 elections, and gave fresh ammunition to those who accused him of dictatorship, tyranny, and fascism. When the dust settled, FDR had suffered a humiliating political defeat at the hands of Chief Justice Hughes and the administration’s Congressional opponents.”†
“The administration’s Congressional opponents.”
Aye, there’s the rub.
If Obama moves against the Supreme Court, are there any Republicans in Congress, especially the Senate, who have the intellect and the courage to rally public opinion and stop this latter-day New Dealist in his tracks?
Unfortunately, we may find out.
* For an overview of President Franklin Delano Roosevelt’s court-packing plan, see the Judiciary Reorganization Bill of 1937 at Wikipedia on the Internet, and for a detailed treatment of the subject see the sources cited therein.
† Michael Parrish, “The Great Depression, the New Deal, and the American Legal Order,” 59 Washington Law Review, 723, 737 (1984).