Supreme Power: Franklin Roosevelt vs. the Supreme Court (review)
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Supreme Power: Franklin Roosevelt vs. the Supreme Court. By Jeff Shesol. (New York: W. W. Norton & Company, 2010. Pp. 644. $27.95 cloth)

Jeff Shesol examines the struggle between President Franklin Roosevelt and the Supreme Court over the New Deal legislation of the 1930s. Faced with an unprecedented economic collapse, Roosevelt pushed a host of new laws through a malleable Congress in an effort to bring about recovery. Unfortunately, too little attention was devoted to the constitutionality of this legislation, and the Supreme Court would inevitably have its say. Many within the Roosevelt administration worried about the outcome. When the reckoning came, the Supreme Court struck a devastating blow against the first New Deal. The court ruled the National Recovery Administration (NRA) and the Agricultural Adjustment Administration (AAA) unconstitutional. The NRA died while the AAA had to be reconfigured. FDR feared that the second New Deal, which included the Social Security Act, would also be overturned. He decided that preservation of his economic recovery program required dramatic alteration of the Supreme Court.

On February 5, 1937, President Roosevelt announced his intention to add one justice to the Supreme Court for every justice already on the court seventy years of age or older. Since six justices fell into this category, he proposed increasing the size of the court [End Page 161] from nine to fifteen members. FDR explained that the Supreme Court was behind on its case load, and that the elderly justices needed help. Everyone knew that this explanation was disingenuous. FDR really wanted to "pack" the Supreme Court with liberal justices who could be counted upon to sustain New Deal laws. In essence, Roosevelt launched a wholesale counterattack against a court which had crippled the New Deal.

Chief Justice Charles Evans Hughes responded quickly. Hughes let it be known that the Court was up on its docket and had been for many years. The chief justice, associate justices, Congress, and the public understood what really motivated the president. It was not pretty.

The Supreme Court reorganization fight ended badly for the Roosevelt administration. The U.S. Senate repudiated the reorganization bill by a lopsided seventy-twenty vote. No new justices were added to the Supreme Court. Worse still, conservative Democrats now sided with Republicans and Roosevelt found it much more difficult to deal with Congress. The New Deal lost momentum, stalling out.

Two themes stand out in Shesol's monograph, both of which are on target. The Roosevelt-Supreme Court imbroglio had a lot to do with conflicting interpretations of the Constitution. FDR, his advisers, and the liberal members of the Supreme Court saw the Constitution as a "living, breathing organism," which must change with the times and take into account what was necessary for social progress. Conservatives across the country, including those on the Supreme Court, rejected that view, believing instead that the Constitution contained within it certain fundamental, immutable principles which should always be upheld. Chief Justice Hughes and Associate Justice Owen Roberts straddled the ideological fence—they became the swing votes. When a New Deal law before the court failed, one or both men sided with the conservative camp. On a related matter, Shesol correctly describes Roosevelt as a supremely confident man whose defining trait was certainty of his own success. [End Page 162]

Supreme Power is narrative history of a high quality. Shesol's prose is superb; indeed, it is somewhat reminiscent of that of the late Arthur Schlesinger Jr. At one point, Shesol writes that conservative justice Willis Van Devanter "watched Lincoln's funeral procession" as a boy and "had gone hunting with Buffalo Bill." Van Devanter and his conservative brethren on the Court "were nineteenth-century men" imbued with narrow, nineteenth-century judicial outlooks (pp. 37-38). The research for this book is almost as good as the writing.

One caveat—and only one—is worth mentioning. If it is Roosevelt versus the Supreme Court (and that surely was the case), then who won? Shesol notes that the court proved victorious in the short run, since the number of members on it remained the same and FDR suffered a political drubbing. He implies that Roosevelt got his...