FDR - Jean Edward Smith [238]
The problem in 1937 was not the Court but the law, compounded by the hasty drafting of early New Deal legislation. Both the NIRA and the Frazier-Lemke Farm Mortgage Act (and to a lesser extent the Agricultural Adjustment Act) were loosely drawn and excessively broad, and made little effort to navigate the shoals of constitutional precedent. Conventional wisdom considers the 1930s Supreme Court hidebound and reactionary. Yet under Hughes’s effective leadership the Court had become the nation’s principal protector of civil liberties. It had reversed a hundred years of precedent to hold the First Amendment’s guarantee of a free press applicable to the states;71 it had overturned the rape convictions of nine young black men in Scottsboro, Alabama, and made the Sixth Amendment’s right to counsel applicable to the states in capital cases.72 When the young men were tried again and convicted by an all-white jury, a unanimous Court overturned that conviction as well.73 The Hughes Court declared California’s statute making it unlawful to fly a red flag an unconstitutional denial of free speech.74 And in an equally important decision rendered on January 7, 1937, the justices unanimously reversed the conviction of a Communist activist in Oregon for organizing a political meeting and distributing party literature. “Peaceable assembly for lawful discussion cannot be made a crime,” said Hughes for the Court.75 Each of these decisions was a milestone in the growth of American civil liberty, and the Supreme Court was in the forefront of that growth.
This was not a reactionary Court.76 But the constitutional law of the last forty years was stacked against the New Deal, and the Roosevelt administration had been cavalier in its approach to the problem. When the early legislation was struck down, it came as no surprise to most informed observers. What was surprising was that FDR chose to attack the Court and not the law: that he zeroed in on the elderly justices and not the questionable precedents they were adhering to.*
Roosevelt plotted his attack in secret. That was a tactical error. Military commanders going into battle take care to conceal their plans, but they are not dealing with Congress and the Court. For four years Roosevelt had handled Congress masterfully. On every piece of New Deal legislation he worked closely with the members involved: cajoling, co-opting, listening to their contributions. His failure to consult when it came to the Supreme Court—his refusal to include the congressional leadership in the planning stages of his proposal to alter the Court’s membership—denied him the support he needed when opposition crystallized.
The genesis of FDR’s Court-packing plan traces to a meeting in the Oval Office in January 1935 when the “Gold Clause Cases” were before the Court. Anticipating that the justices might rule against the government, Roosevelt asked what could be done should that occur. Robert H. Jackson, then the general counsel of the Treasury’s revenue arm, mentioned that when the “Legal Tender Cases” had been pending in 1870, President Grant had appointed two additional justices, causing the Court to reverse itself and validate the greenbacks that had been circulating since the Civil War.* Roosevelt was intrigued and instructed Attorney General Cummings to look into the matter.77 He emphasized to Cummings the need to be discreet. For the next two years Cummings, Solicitor General Stanley Reed, and two of Cummings’s assistants reviewed precedent and laid plans. No one on the White House staff was informed. Except for Cummings, no one in the cabinet knew what was afoot. None of FDR’s advisers, men like Sam Rosenman, Felix Frankfurter, Tommy Corcoran, and Ben Cohen, were made privy. And Congress was kept in the dark.78
Unfortunately for the president, Cummings and Reed were not the sharpest knives in the legal drawer. Cummings’s skills were primarily political. He was a former chairman of the Democratic National Committee and had been a floor leader