FDR - Jean Edward Smith [466]
90. Rosenman, Working with Roosevelt 154. Senator Borah, seeing the three together, is alleged to have said, “That reminds me of the Roman Emperor who looked around his dinner table and began to laugh when he thought how many of those heads would be rolling on the morrow.” Time, March 1, 1937.
91. “The Chief Justice had an external severity that contrasted with the President’s external urbanity,” wrote Justice Robert Jackson. “But Hughes was one of the kindest of men, and no person who saw him preside over the Supreme Court will ever have any other standard of perfection. He was firm and prompt, dignified and kindly.… He never used his position on the bench to embarrass counsel or to heckle them, and if counsel were frightened or timid or incompetent, he often went out of his way to make sure their position was fully brought out. He was a model of dignity.” Robert H. Jackson, That Man: An Insider’s Portrait of Franklin D. Roosevelt 67, John Q. Barrett, ed. (New York: Oxford University Press, 2003). For Justice Roberts’s similar assessment of Hughes, see Merlo J. Pusey, 2 Charles Evans Hughes 675–677 (New York: Macmillan, 1951).
92. Joseph Alsop and Turner Catledge, The 168 Days 64 (New York: Doubleday, 1938).
93. Quoted in Pusey, 2 Charles Evans Hughes 753. Also see McKenna, Franklin Roosevelt and the Great Constitutional War 324.
94. According to Sam Rosenman, who drafted FDR’s message to Congress, “It was hard to understand how he expected to make people believe that he was suddenly interested primarily in delayed justice rather than in ending a tortured interpretation of the Constitution; but the cleverness, the too much cleverness, appealed to him.” Rosenman, Working with Roosevelt 147.
95. FDR, “Message to Congress on Reorganization of the Judiciary,” February 5, 1937, 6 Public Papers 53.
96. “Wouldn’t you have thought that the President would have told his own party leaders what he intended to do?” Bankhead asked North Carolina congressman Lindsay Warren. “He didn’t because he knew that hell would break loose.” Warren Memorandum, February 7, 1937, quoted in Leuchtenburg, Franklin D. Roosevelt and the New Deal 234.
97. The New York Times, February 6, 1937.
98. Leuchtenburg, Supreme Court Reborn 127.
99. Quoted in Burns, Roosevelt: The Lion and the Fox 298.
100. Quoted in McKenna, Franklin Roosevelt and the Great Constitutional War 298.
101. Ibid. 319.
102. Professor McKenna provides a useful sampling of press coverage, ibid. 305–311.
103. For texts, see 6 Public Papers 35–267.
104. Farley, Jim Farley’s Story 74.
105. Burton K. Wheeler, Yankee from the West 327–329 (New York: Doubleday, 1962).
106. Ibid. 332.
107. McCulloch v. Maryland, 4 Wheaton (17 U.S.) 316 (1819). For a discussion of the case and Marshall’s defense, see Jean Edward Smith, John Marshall: Definer of a Nation 440–454 (New York: Henry Holt, 1996).
108. The full text of the Hughes letter to Wheeler is in the Hughes Papers at the Library of Congress. It also appears as Appendix C of the Adverse Report of the Senate Judiciary Committee on Bill S. 1392, 75th Cong., 1st Sess. (Washington, D.C.: U.S. Government Printing Office, 1937).
109. West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), reversing Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936).
110. The Washington Supreme Court had upheld the statute. A tie vote by the Court would have sustained that holding. For Justice Roberts’s shift, see Charles A. Leonard, A Search for a Judicial Philosophy: Mr. Justice Roberts and the Constitutional Revolution of 1937 (Port Washington, N.Y.: Kennikat Press, 1971).
111. Hughes rejected the idea that “freedom of contract” was constitutionally sacrosanct. “What is this freedom?” he asked. The Constitution protects liberty, but subject to reasonable regulation in the interest of the community. “The community may direct its law-making power to correct the abuse which springs from [employers’] selfish disregard of the public interest.… Our conclusion is that the case of Adkins v. Children’s Hospital [261 U.S.