F.D.R. Vs. The Supreme Court


Meanwhile a ferment had been working within the court. Some two months before the President had disclosed his plan, the black-robed justices had brooded afresh over the constitutionality of state minimum-wage laws and decided that their previous conclusion in the New York case had been wrong. In a new case the state of Washington, in asking the court to uphold a state minimum-wage law very similar to the New York statute it had invalidated, had directly urged the court to overrule the key precedent on this point, Adkins v. Children’s Hospital , which the timorous New Yorkers had tried merely to circumvent. In December, 1936, the court voted four-to-four to uphold the Washington law and to reverse its own previous decision of only six months before in the New York case.

Four votes were enough to let the challenged statute stand because it had come to the Supreme Court with the sanction of the state of Washington’s highest tribunal behind it. Three affirmative votes came from Hughes, Brandeis, and Cardozo. The fourth was that of Justice Roberts, who had switched sides from his position in the New York case, in part at least, because the state of Washington had made a frontal assault on the old precedent, which he felt had been discredited. At the time no one on the court had the slightest inkling of the bill taking shape at the White House, but Hughes was so delighted with Roberts’ conversion that he almost hugged him.

Loath to have an issue of such importance disposed of by an even vote, however, Hughes decided to hold this Washington case until Justice Stone returned to the bench. Stone, who was ill, would certainly vote to uphold the state statute. When the Chief Justice revived the issue about February 1, 1937, Stone joined in a complete reversal of the old precedents, but before the opinion could be written and handed down the court found itself under threat of being packed.

Much has been written about this dramatic change of direction by the court, but actually the Washington case did not effect a clean break with the past. The court had upheld broad applications of state powers in both the Blaisdell case (involving the Minnesota Mortgage Moratorium Law) and the Nebbia case (involving the law under which New York was fixing the price of milk). Roberts followed the reasoning of these decisions instead of clinging to the older precedent. His recognition of error indicated that the court did not regard itself as infallible and therefore redounded to its credit.

Support for Roosevelt’s judiciary bill further crumbled on April 12, when the court upheld the National Labor Relations Act in the fateful Jones and Laughlin Steel case. The opinion of Chief Justice Hughes was a sweeping confirmation of the power of Congress to regulate industrial relations having a direct impact on interstate commerce. The President claimed credit for the decision but was still not convinced that the court had gone far enough. He turned more heat on wavering legislators on behalf of his bill.

A few weeks later the Senate Judiciary Committee rejected the ill-fated legislation, just before the newly consolidated majority of the court gave its blessing to the Social Security Acts. These events spelled out the Administration’s defeat in no uncertain terms, but rear-guard fighting continued because of a strange set of circumstances.

In devising remedies for “the court problem” no one had had the wit or the grace to offer the aged justices a reasonable chance to retire. Even before 1937, both Van Devanter and Sutherland had been eager to lay down their tasks, but Supreme Court justices could cease active service only by resignation, and Congress was then free to reduce their compensation, as indeed it had done in the case of Justice Oliver Wendell Holmes. So the aged judges held on despite some infirmities.

After the court fight began, opponents of the President’s bill rushed through Congress a liberalized retirement measure in an effort to forestall a more drastic solution. Senator William E. Borah then persuaded his friend Justice Van Devanter to retire in order to make way for an appointment to the court by Roosevelt, who up to this time had had no opportunity to name a Supreme Court justice. Instead of easing the predicament, however, the sudden creation of a single vacancy threw the White House into near panic.

The President had previously offered the first seat at his disposal to Senator Joseph T. Robinson, a portly and conservative Democratic wheelhorse who, despite grave misgivings as to the judiciary bill’s consequences, was directing the fight for it as majority leader of the Senate. If the President should fail to honor his well-known promise to Robinson, he would be left without a friend in the Senate. And fulfillment of the promise would have turned the court fight into a grotesque hoax; for Robinson, at 65, was the antithesis of the “new blood” for which the Roosevelt men were so persistently clamoring. Caught on this horn of his dilemma, the President had to continue fighting for his bill as the only means of balancing the prospective Robinson appointment with those of younger and more liberal men.