F.D.R. Vs. The Supreme Court


The justices who piloted the court through this difficult period won a double victory. The net effect of the 1935-37 ferment over constitutional issues was to confirm their insistence that judges must take into account changed social and economic conditions as well as past legal precedents. After Justice Roberts abandoned his four conservative colleagues in the Washington minimum-wage case, they did not again control the court on any vital issue. The views that prevailed were those of Chief Justice Hughes, and of Justices Brandeis, Stone, Cardozo, and Roberts.

The principle for which they struggled was continued independent judgment on the part of the court. They insisted that it must be free to upset an NRA which slopped over the line of constitutional power as well as to uphold an NLRB which did not. With these men still on the bench, the NRA would have gone down in 1938 as readily as it did in 1935. They stood for a Constitution which marched forward—but not to tunes called by the White House or by a spate of new justices suddenly appointed for that purpose.

Contrary to Roosevelt’s boast, it was these men who won both the “battle” and the “war” in 1937. Twenty years after the notorious court-enlargement bill went down to defeat, it has scarcely a defender. If it may be credited with having written a salutary lesson in our history, it is only because cooler heads than those of its authors found sage and legitimate means of destroying it. The bill remains one of the major errors of American statesmanship in the current century.