F.D.R. Vs. The Supreme Court

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The great struggle between the President and the Supreme Court in 1937 stirred the national emotions to unusual depths because it brought Franklin D. Roosevelt’s crusade against depression into collision with one of our most hallowed traditions. And after a lapse of twenty years it remains high on the list of the most dramatic contests in our constitutional history.

 

The great struggle between the President and the Supreme Court in 1937 stirred the national emotions to unusual depths because it brought Franklin D. Roosevelt’s crusade against depression into collision with one of our most hallowed traditions. And after a lapse of twenty years it remains high on the list of the most dramatic contests in our constitutional history.

In the first phase of the struggle, beginning in 1935, the court invalidated a large part of the New Deal. The effect was to bring down upon its head the wrath of the country as well as that of the White House. In the second phase, two years later, Roosevelt moved against the court more boldly and directly than any other President had ever done. Public opinion then swung to the defense of the court, and F. D. R. suffered the most humiliating defeat of his career. Yet the final outcome was a victory for liberal interpretation of the Constitution as well as for independence of the judiciary. The crash assault failed, and moderation won.

To understand the intensity of the struggle, it must be remembered that in the middle thirties the country was still trying to climb out of its depression storm cellar. In 1933 Roosevelt had come to power with the banks closed and the economy thoroughly demoralized. He had ushered in an almost revolutionary concept of government stewardship over the national economy. With the co-operation of a frightened Congress, he had devalued the dollar and placed industry under a system of codes and agriculture under production quotas. He had created various other “new instruments of power,” initiated sweeping social reforms, and given organized labor the greatest impetus it had ever experienced.

The President’s courage and industry were contagious. While the people applauded, Congress worked with feverish haste to enact almost every bill that the White House “brain trust” produced. Some of this outpouring of reform and recovery legislation has survived and become a distinctive part of our national heritage. But many of the early emergency bills, in addition to being highly experimental in nature, were poorly drafted. The men around the President realized that some of their ventures could scarcely be reconciled with the Constitution as it was then interpreted by the Supreme Court. But in their haste they passed lightly over this aspect of their problem. A new era was dawning. Its methods and objectives could not be judged by the outmoded criteria of the past. Many of the New Dealers concluded that, in any event, the Supreme Court would not dare to upset statutes on which the nation’s recovery from its worst depression seemed to depend.

The rude awakening from this illusion came early in 1935, when the Supreme Court invalidated the National Recovery Administration’s petroleum code as an unconstitutional venture into executive law-making. Soon there followed Chief Justice Charles Evans Hughes’s opinion, written on behalf of a unanimous court, which wiped out the whole NRA and its progeny of Blue Eagles. [In the case before the court (commonly called the “sick chicken” case), four brothers named Schechter had been found guilty of marketing diseased fowl in violation of the NRA’s poultry code. Their lawyers contended only that Congress had no power to regulate local—as distinguished from interstate—business, but the court went beyond this and invalidated the whole industrial recovery act. As Fred Rodell wrote in Nine Men: “A few sick chickens had murdered the mighty Blue Eagle.”] The court found the NRA wanting on two counts: first, Congress had delegated extensive law-making powers to trade organizations acting with the approval of the President; second, it had swept under federal control wholly local activities—in this instance the marketing of poultry—only remotely related to the interstate commerce which Congress is authorized to regulate.

On the same “Black Monday” the court unanimously struck down the Frazier-Lemke Act for relief of farm debtors, with Justice Louis D. Brandeis writing the opinion, and reversed the President’s dismissal of William E. Humphrey from the quasi-judicial Federal Trade Commission. The Humphrey decision is said to have nettled the President more than any other, but when he held a lengthy press conference and denounced the Supreme Court for taking the country back to a “horse-and-buggy” concept of interstate commerce it was the NRA decision that he had in mind.

Actually the court’s coup de græce to the NRA was a blessing in disguise to the Roosevelt administration, for its unwieldy codes were already cracking up. The court saved the President from what would have been an embarrassing retreat. But F. D. R. saw in the sweeping nature of the “sick chicken” decision a threat to other parts of his program, and in this he was right.