F.D.R. Vs. The Supreme Court


In most of the early New Deal cases the court had been unanimous, but as it moved on to more controversial issues its long-standing internal schism was much in evidence. On the conservative side, Justices Willis Van Devanter, Pierce Butler, George Sutherland, and James C. McReynolds nearly always stood together. To them any innovation was likely to appear as an unconstitutional seizure of power. The liberal wing, consisting of Justices Brandeis, Harlan F. Stone, and Benjamin N. Cardozo, was more inclined to give Congress a free rein unless it had flagrantly overreached the limits of its power. Chief Justice Hughes occupied a middle ground, and Justice Owen J. Roberts often stood with him. For the New Deal, the result was fluctuation between reverses and narrow victories.


The court’s action in the “gold clause” case in the spring of 1935 both relieved and angered the President. In this decision, four associate justices stood with Hughes in condemning Congress’ repudiation of the government’s promise to redeem its bonds and currency in gold. But, having thus bowed to principle, the court saved the economy from catastrophe by ruling that bondholders, who had suffered no loss of purchasing power when Congress increased the value of gold in terms of paper dollars, could not hold the government to its promise to pay in gold or its equivalent. From this latter part of the decision the four conservatives dissented. For the moment, the ingenious solution Hughes had invented to save the government from a crushing addition to its debt averted an open clash between the President and the court, for F. D. R. had prepared a radio address announcing his refusal to enforce the decision—an address to be delivered if the court should allow the bondholders to take their pound of flesh.

Another New Deal innovation, the Agricultural Adjustment Administration, might have been saved had Congress, in building the AAA, used its power to regulate interstate commerce. Instead, it had used its taxing power. Hughes, Roberts, and the four conservatives concluded that the benefit payments to farmers, financed by a processing tax, had the effect of coercing them into compliance with a regulatory scheme that had no relation to interstate commerce. Stone and his liberal brethren dissented with unusual vehemence, and subsequent judicial thinking tends to support their conclusions if not the bite in Stone’s words.

Both court factions broke away from Hughes’s middle ground in the case involving the Guffey Act, designed to rescue the ailing coal industry. Hughes thought the price-fixing section of this statute was valid and that only its labor provisions were constitutionally defective. But a majority of five swept the whole act into the discard, with Brandeis, Stone, and Cardozo dissenting. The Municipal Bankruptcy Act met a similar fate.

Finally, the same majority of five released a legal block-buster by striking down New York State’s minimum wage law for women. Coming on the heels of many decisions rejecting the extension of federal power over the economy, this restriction of state power seemed to indicate that no government could legally cope with the grave problems of the depression. The court’s extreme stand-pattism raised an outcry throughout the land. Dissenting opinions by Hughes and Stone, in which Brandeis and Cardozo joined, pointedly disclosed the alarm felt within the court itself over this reactionary trend.

The white-bearded Chief Justice, whose liberal instincts were neatly blended with a high regard for traditional constitutionalism, was almost as much concerned over this turn of events as was the President. Both brooded on how to save the country from the consequences of static legalism. But, while Hughes thought in terms of correcting loosely drawn legislation and interpreting the basic law more liberally, Roosevelt turned toward more drastic measures.

Soon after the NRA decisions in 1935, F. D. R. had put his attorney general, Homer Cummings, to work on “the court problem.” In the following months the Department of Justice and the President quietly studied the respective merits of a constitutional amendment broadening federal powers, a statute limiting the court’s jurisdiction, a provision requiring a two-thirds vote in the court to nullify an act of Congress, and an enlargement of the court’s membership. No conclusions were drawn, however, and the issue was astutely avoided in the 1936 presidential campaign, except for a pledge in the Democratic platform that the economic and social problems of the day would be met in a constitutional manner. Republican charges that the President, if re-elected, would resort to the “tyranny” of court-packing met with impassioned Democratic denials.

Once Roosevelt’s towering victory over Governor Alfred M. Landon was achieved, however, he moved against the court with supreme confidence. Did he not have a new mandate from the people to carry out his New Deal? Was not the court standing in his way? To Roosevelt’s way of thinking, his chief problem was to find the most effective way of clearing this obstruction from his path.