FDR v. The Constitution
The Court-Packing Fight and
The Triumph of Democracy

Burt Solomon
(Walker & Co.)
He's an unlikely hero: Owen Roberts, an obscure supreme court justice who retired over fifty years ago. But according to Solomon, he is the one who saved the court from Franklin D. Roosevelt's fiddling.

During FDR's first term, the justices knocked down a dozen New Deal laws aimed at alleviating poverty, creating jobs, and saving farms. On his second Inaugural, after victory at the polls --- he had carried 46 of the 48 states --- the president was primed to do what he could to stop the court from vitiating his programs. He resolved to add six more justices to the court, and force retirement of those over 70.5 years of age.

The story of the resulting bill presented to Congress, "the court-packing bill" the opponents called it, is told here in 300 sprightly pages, and characters we had only heard of or read in dry history books come to life. FDR's right-hand man Tommy the Cork Corcoran, not only a presidential advisor, but a party man who could play Beethoven or Gilbert & Sullivan on the piano; the chilly Justice Louis Brandeis who resented FDR's implication of all old people being "senile" --- he was eighty years old; the stolidly prejudiced Justice James McReynolds who refused to be in the same room with Brandeis, a Jew, except when court was in session; the gnarled Texan John Nance Garner who described the vice presidency as being "not worth a bucket of warm piss;" since he was Vice-President, he might have known (tell it to Cheney).

Then there was the bewhiskered (and wise) Charles Evans Hughes who Solomon claims knew that the supreme court was endangering its future by ignoring the popular vote. He engineered it so that Owen Roberts could move in the direction of dislodging the "Four Horsemen," the core of those who were killing the New Deal through judicial fiat ... mostly by a 5 - 4 vote.

Finally, there is Roberts himself, who the author describes as a man who was "refreshingly naïve ... intellectually honest, personally tolerant, essentially a simple man --- a good man." But certainly no intellectual giant like Brandeis, Cardozo, or the one they came to call the "master of legal fine-point weaving," Felix Frankfurter.

Solomon brings all of these characters to life, makes the conflict real, stresses the stakes, plays out the drama of the votes of the Senate dropping away, the necessary pressures to get FDR to finally realize that he had best give in.

Along the way, we learn a great deal about pre-WWII American politics, where a dozen or so southern senators made a mockery of the political system with their antipathy to blacks ... and even greater antipathy to potential black voters. "Jefferson had feared a strong Court as antidemocratic, as a hindrance to the people's will," Solomon writes. "This was precisely what appealed to Carter Glass and other white southerners about a strong and independent judiciary, that it was antidemocratic."

    To the South, the conservative Court served as a shield against the nation's emerging urban and ethnic majority, as a means of holding the power in the states instead of sending it to Washington, as an instrument for keeping the future at bay.

"Letting a liberal president name a passel of new justices, and thereby dominate the Court," Solomon concludes, "could mean the end of states' rights and of white supremacy --- this was the southern Democrats' not unreasonable fear."

But the fight ended in a pyrrhic victory. The plea for an "independent judiciary killed Senate bill 1392. But the fear of undoing what John Jay had created --- judicial review --- led inevitably to a social revolution.

Under Earl Warren, "the court produced a potent unanimity for its landmark 1954 decision in Brown v. Board of Education, which jettisoned a fifty-nine-year-old precedent, desegregated the nation's public schools, and touched off a turbulent era of social change."

    A series of historic decisions followed, ones that discovered in the Constitution a previously unnoticed array of individual rights.

"Criminal defendants were guaranteed a lawyer and a listing of their rights. Every citizen was to be accorded equal representation in the house of Representatives and state legislatures. Children could not be subjected to prayer or to Bible readings in public school. Americans were bequeathed a broader zone of privacy..."

Solomon has created a page-turner here. Out of one archaic battle he gives us a good detective story: who killed who, who survived, where the bodies lay, who fingered the bad guys. And every now and again he pops in a note that can force the reader to say, "Ah... so..."

That funny three-quarter square that represents the District of Columbia? What happened to the rest of it? Virginia repossessed the southeastern quadrant in 1846, "fearing --- presciently, as it turned out --- that Congress would outlaw the slave trade in the District and thereby end Alexandria's lucrative slave market."

And this, on the humor that emanated from the Capitol, in response to Justice Roberts' move to the left. The insiders in Washington intoned: "A switch in time saved nine."

--- Peggy Hollander, PhD
Send us e-mail


Go Home

Go to the most recent RALPH