SUPREME POWER

The ideological battle between the New Deal president and the Supreme Court’s Nine Old Men.

Working secretly with Attorney General Homer Cummings, in 1937 Franklin Roosevelt drafted a bill to enlarge the Court, allowing the president to make immediate appointments of more ideologically congenial justices. The plan resulted in a humiliating defeat, the biggest blunder of Roosevelt’s presidency. How and why did the most talented politician of the 20th century miscalculate so horribly? While not entirely rejecting the consensus that attributes FDR’s court-packing fiasco to sheer hubris, former Clinton speechwriter Shesol (Mutual Contempt: Lyndon Johnson, Robert Kennedy, and the Feud that Defined a Decade, 1997, etc.) offers a more nuanced take, making clear FDR’s move against the court involved more than momentary presidential pique or landslide giddiness. Rather, the president’s scheme emerged after two years’ worth of careful consultation about various proposals to “fix” the Court, including amending the Constitution. Moreover, there was genuine, widespread disgust with the Court’s refusal to sanction modern solutions to an unprecedented economic crisis. FDR might well have prevailed, but for a concatenation of events: his own penchant for mystery and surprise that shut off debate among advisors at the critical point when the measure was finalized; his absurd masking of a straightforward fight against outcome-oriented judges as an attempt to help aging jurists with their workload; and his abandonment by progressives threatened by his power and party regulars too long taken for granted. In addition, the untimely death of Majority Leader Joe Robinson, the surprise retirement of conservative Justice Willis Van Devanter and the Court’s subsequent string of decisions upholding important New Deal laws—the famous “switch in time [that] saved nine”—blunted enthusiasm for radical judicial reform. With insight and more than occasional humor, Shesol covers all aspects of the controversy, deftly explaining the issues at stake in a variety of legal opinions and shrewdly analyzing the intra-Court dynamics.

A thorough and thoroughly smart rendering of a dramatic Constitutional showdown.