FDR - Jean Edward Smith [243]
When the Court subsequently sustained the Social Security Act (7–2), even the most rabid New Dealer recognized that whatever rationale there was behind FDR’s Court-packing scheme had evaporated.115 On May 18 the Senate Judiciary Committee voted 10–8 to report the Judicial Reform Bill unfavorably: “It is a measure which should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.”116 That same day Justice Van Devanter submitted his resignation to the president. With Van Devanter’s retirement and the Court following Hughes’s lead, FDR might have declared victory and called off the fight. That was Garner’s advice. When Roosevelt refused, the vice president gave up and returned to his ranch in Texas. He would be AWOL during the crucial Senate debate.
FDR refused to compromise. Despite the oppressive heat of an un-air-conditioned Washington summer, he insisted that Congress remain in session. To regain the initiative, he invited Speaker Bankhead and Sam Rayburn to the White House. Would they organize a discharge petition (which required the signatures of 218 members) to pry the bill out of Sumners’s committee and bring it to the House floor? Both refused.117 Back in the Senate, defections continued daily. Majority Leader Joe Robinson battled to stem the tide, but it was a hopeless struggle. FDR could have gotten half a loaf earlier, but it was now too late. His opponents smelled victory. Wilting under the pressure, Robinson collapsed. On the morning of July 14 he was found dead in his apartment in the Methodist Building, across the street from the Capitol, the victim of a heart attack.
Roosevelt declined to attend Robinson’s Arkansas funeral—a final, tragic error. As one historian suggests, FDR reacted to the news of Robinson’s death with bitterness, identifying the majority leader with the loss of his Court plan.118 Robinson was beloved by his Senate colleagues and died in harness fighting for a proposal in which he did not fully believe. The president’s failure to go to Little Rock was a slap in the face few senators could forgive. Roosevelt’s popularity plummeted. Vice President Garner—who attended the funeral—brought the bad news: “You are beat, Cap’n. You haven’t got the votes.”119 On July 22 the Senate rejected the bill, 20 in favor, 70 against.120
Historians are fond of saying Roosevelt lost the battle and won the war. But the war was won when Roberts joined Hughes, Brandeis, Cardozo, and Stone in December 1936. In the year after the bill’s defeat, Roosevelt would appoint three justices to the Court. Ultimately he would appoint eight.121 But more important than the justices was the law. In sustaining the Washington minimum-wage statute, Hughes overruled the line of precedent that had hamstrung attempts to regulate working conditions since 1905. Those discarded precedents would not reappear. In upholding the Wagner Act, he nullified the exceptions that had shackled the commerce clause since 1895. Mining, manufacturing, and agriculture were no longer out of bounds. The victory in the Court fight of 1937 belonged not to Roosevelt but to Hughes, to the constitutional separation of powers, an independent judiciary, and the law.
* “Oh, hell, it’s no trick to make a President,” Howe once said. “Give me a man who stays reasonably sober, shaves, and wears a clean shirt every day and I can make him President.” Lela Stiles, The Man Behind Roosevelt: The Story of Louis McHenry Howe 251 (Cleveland: World, 1954).
* Roosevelt traveled by train, which was exceedingly time-consuming since he preferred to go at no more than thirty miles an hour. That enabled him to move about more easily when the train was in motion, and he also enjoyed looking at the scenery. No presidential candidate had seen more of the United States than FDR, and none had a better appreciation