FDR - Jean Edward Smith [465]
77. In the summer of 1933 Roosevelt had instructed Cummings to undertake planning for a general reorganization of the federal judiciary, but the Supreme Court was not included in that effort. Much of Cummings’s planning pertained to the political affiliation of federal judges at the district and appellate levels. “You will note that of 266 judges listed,” Cummings wrote Roosevelt on November 8, 1933, “only 28% are Democrats.” Quoted in Marian C. McKenna, Franklin Roosevelt and the Great Constitutional War 146. Also see Frances Perkins, The Roosevelt I Knew 331 (New York: Viking Press, 1946). Cf. William E. Leuchtenburg, The Supreme Court Reborn 84–85 (New York: Oxford University Press, 1995).
78. Rosenman, Working with Roosevelt 140–156.
79. Shortly after Cummings assumed office, Justice Brandeis and Justice Stone (a former attorney general) informed Roosevelt of their concern over the competence of the government’s lawyers in the cases coming before the Court. Frankfurter to Stone, July 12, 1933, in Peter H. Irons, The New Deal Lawyers 11 (Princeton, N.J.: Princeton University Press, 1982).
80. Schlesinger, Politics of Upheaval 261.
81. The 1936 Democratic platform stated, “We have sought and will continue to seek to meet these problems through legislation within the Constitution.
“If these problems cannot be effectively solved by legislation within the Constitution, we shall seek such clarifying amendment as will assure to the legislatures of the several States and to the Congress of the United States … the power to enact those laws which the State and Federal legislatures … shall find necessary, in order adequately to regulate commerce, protect public health and safety and safeguard economic security.” Oliver A. Quayle, Official Report of the Proceedings of the Democratic National Convention, 1936 196 (Philadelphia: Democratic National Committee, 1936).
82. Ickes, 2 Secret Diary 65.
83. Age would eventually take its toll, advised Ashurst. Prophetically, the Arizona senator wrote FDR, “It will fall to your lot to nominate more Justices of the Supreme Court than any President since General Washington.” Ashurst to FDR, February 19, 1936, quoted in Nathan Miller, FDR: An Intimate History 392 (New York: Doubleday, 1983).
84. Ickes, 1 Secret Diary 705. Justice McReynolds, for his part, reciprocated the feeling. “I’ll never resign as long as that crippled son-of-a-bitch is in the White House.” At least the remark was attributed to McReynolds by Drew Pearson and Robert S. Allen in their inflammatory Nine Old Men at the Crossroads 2 (New York: Doubleday, 1936).
85. In March 1868, while just such a case was pending, Congress repealed the Court’s authority to hear appeals under the Habeas Corpus Act. A unanimous (8–0) Court subsequently dismissed the appeal for lack of jurisdiction. Ex parte McCardle, 74 U.S. 506 (1869).
86. Alexander Holtzoff, memorandum, in Cummings to FDR, January 16, 1936, reprinted in McKenna, Franklin Roosevelt and the Great Constitutional War 167–168. Also see Leuchtenburg, Supreme Court Reborn 99.
87. Quoted in Burns, Roosevelt: The Lion and the Fox 296.
88. Annual Report of the Attorney General, 1913 5 (Washington, D.C.: U.S. Government Printing Office, 1913).
89. William E. Leuchtenburg, in his authoritative reconstruction of the origins of FDR’s Court-packing plan, reports that on December 16, 1936, Edward S. Corwin, McCormick Professor of Jurisprudence at Princeton, wrote Cummings to suggest that legislation be considered that would permit the president to appoint a number of younger justices whenever a majority of the justices were seventy years old or more. This was a week or two before Cummings discovered the McReynolds memorandum. Corwin was considered by many to be the nation’s premier scholar of constitutional law, and his suggestion, which apparently originated with Professor Arthur Holcombe of Harvard, signaled to Cummings that he was on the right track. Leuchtenburg,