FDR - Jean Edward Smith [240]
On February 2 FDR hosted the annual dinner for the Supreme Court at the White House. The guest list of eighty included all of the justices except Brandeis, who did not attend evening functions, and Stone, who was ill. Roosevelt was at his convivial best. After the meal, when the ladies retired, Hughes and Van Devanter moved their chairs next to the president. For the next hour or so they joked and reminisced over brandy and cigars.90 The chief justice and the president always addressed each other as “Governor” and despite their differences enjoyed cordial personal relations. Both hailed from upstate New York (Hughes was born in Glens Falls), both had begun their careers as law clerks for Wall Street firms, and both had survived the rigors of winter in Albany.91 Van Devanter, the most genial of the justices, was always good company. FDR said nothing of what he planned for the Court or the imminence of his attack. Washington journalists likened the dinner to the ball given by the duchess of Richmond on the eve of the Battle of Waterloo.92
Three days later, Roosevelt struck. At 10 A.M. on February 5 he convened an emergency meeting of the cabinet at which he divulged his proposal. At eleven he met the press. At noon the president’s message was read on Capitol Hill. Rarely has a political attack of such magnitude been more tightly timed. And rarely has the nation been more surprised. The Court was in session when news of the bill was announced. Hughes ordered copies distributed to the justices on the bench, who read the president’s proposal in stoic silence: the quiet vortex of a gathering storm.
Roosevelt was confident he would prevail. “The people are with me,” he told Jim Farley.93 Initially that was true. But as the debate dragged on, and as it became apparent that FDR sought a fundamental change in the constitutional order, that support eroded.
The president’s strategy was too clever by half. Rather than address the issue directly, Roosevelt maintained that the elderly justices were no longer up to the job and needed new blood to assist them. The irony was that Louis Brandeis, the only octogenarian on the Court, was the most consistent supporter of the New Deal. FDR asserted that the Court was behind in its workload.94 Of 803 cases submitted for review, the justices had agreed to hear only 108. “Can it be said that full justice is achieved when a court is forced by the sheer necessity of keeping up with its business to decline, without an explanation, to hear 87 percent of the cases presented to it?”95
The claim was absurd, and Roosevelt should have known better. And if he did not, his attorney general should have. In 1937, just as now, there was no automatic right of appeal to the Supreme Court.* The justices heard only those cases they deemed important. And 108 out of 803 was a remarkable percentage. In 2000–1, the Rehnquist Court, with nine thousand requests for review, heard only 87 cases. In the 2003–4 term, it heard only 73 (of 8,883 requests). Rather than being behind in its workload, the Hughes Court was dealing with more cases than any Supreme Court in the previous decade.
On Capitol Hill members listened in stunned silence as reading clerks intoned the president’s message. In the House, Speaker Bankhead resented the fact that he had not been consulted beforehand.96 Majority Leader Sam Rayburn said nothing, leaving it to Judiciary Chairman Hatton Sumners to fire the first shot. “Boys, here’s where I cash in my chips,” he told the leadership. Sumners refused to bring the legislation before his committee. That meant the Senate would have to consider the bill first.
In the upper chamber the reaction was mixed. Vice President Garner, whose support FDR needed, held his nose and turned his thumb down as the message was read.97 Majority Leader Joe Robinson had no enthusiasm for the plan but believed it his duty to support the president. The same was true of Judiciary Committee chairman Henry Ashurst, who just weeks before had denounced any attempt to enlarge the Court as a