In Supreme Power: Franklin Roosevelt vs. the Supreme Court, Jeff Shesol manages to do something rare: combine excellent research and a gripping narrative. (For those familiar with Rick Perlstein's Before the Storm: Barry Goldwater and the Unmaking of the American Consensus, I think the writing style and amount of detail are similar). The book deals with Franklin D. Roosevelt's attempt to pack the Supreme Court with extra justices in 1937 - an attempt that ultimately failed and, unfortunately, few people remember today. Shesol brings this important episode in our history to life.
First of all, Shesol resists the temptation of many historians to make the past prologue. He doesn't recite the whole history of the U.S. Supreme Court, nor does he stretch historical analogies to draw "lessons" or "comparisons" for today. Rather, Supreme Power stays focused like a laser on the subject of the book, beginning in 1932 with FDR's election. This allows Shesol to really delve into detail, spending almost all of the book's 530 pages on FDR and the court. (Incidentally, if you know absolutely nothing about the Supreme Court or its history, you might want to scan wikipedia quickly before reading this book).
And the detail in the book is extraordinary. I studied FDR's court-packing scheme in law school and read the major cases discussed in the book, but I felt I learned much more reading Supreme Power than I did in 3 years of law school. For example, I had read the Schecter case, which invalidated important New Deal legislation, but I did not even know about the businessmen and activists who formed associations, such as the American Liberty League, to launch test cases like Schecter. It turns out the Schecter brothers even voted for FDR in the 1936 elections! Another fascinating trivia bit revealed early in the book is that the whole issue almost became moot because Justices Sutherland and Van Devanter almost retired in 1932 - but refused to do so when Congress lowered their pensions.
Shesol also strives - and for the most part achieves - the ideal of historical objectivity (pay the reviewer who claims Shesol is sympathetic to FDR no heed). He is quite willing to point out the flaws of the New Deal and the fact that it wasn't universally popular (raising concerns similar to Amity Shales' The Forgotten Man). He also seeks to uncover the ulterior motivations of men like Senator Burton K. Wheeler (against court-packing) and Joe Robinson (for).
However - and this I found remarkable - Shesol also tries to understand the logic and motivations behind the court-packing plan itself. All too often, historians deride the plan as a mistake or doomed to fail. Yet, Shesol shows that the plan did in fact have an organic history and genesis of its own. He discusses the longstanding concern that many observers, including former president and chief justice Taft, had regarding judges over the age of 70. In fact, FDR's chief foe on the Supreme Court, arch-conservative Justice McReynolds, proposed a similar plan during the Wilson administration. In short, Shesol shows readers the type of information bombarding the White House about elder judges, as well as how FDR and his advisors could convince themselves that adding additional judges for each over the age of 70 was a brilliant solution.
My one complaint - and it is a small one - is that Shesol does not seem to make much use of the political science literature about courts and judicial review. This is a shame. I think political science offers many compelling explanations about why elites would oppose limits on judicial review. For example, Tom Ginsburg's Judicial Review in New Democracies: Constitutional Courts in Asian Cases advances the theory that elites view judicial review as important to protect themselves if they ever become relegated to minority status (for example, Republicans becoming the minority party in Congress). Some of these theories can be found in some form in Supreme Power, but Shesol, who is primarily a historian, primarily credits the political dynamics of the 1930s for defeating FDR's plan rather than larger political and institutional forces.
Supreme Power will probably become the primary account of FDR's court-packing scheme for some time. Highly recommended for anybody interested in American history or the politics of courts.
There are a number of excellent books on the battle over the 1937 Court packing plan put forward by President Roosevelt in 1937 by, for example, Marian C. McKenna, Burt Solomon, and William E. Leuchtenburg. Each book takes a slightly different approach from the others; combined they afford an expansive and thorough view of this fascinating episode. This most recent recounting of the tale stands high, in my opinion, even in this distinguished group. For one thing, the author keeps his primary focus at all times where it should be: on FDR, his Attorney General Homer Cummings, and the FDR intimate circle of advisors: Tommy the Cork, Harold Ickes, Ben Cohen, Warner Gardner, James Roosevelt and Felix Frankfurter. Moreover, the author labors hard to give us the most complete peek into what was going on inside the Court during this period. This involves extensive manuscript research, reviews of published letters and unpublished diaries, information drawn from judicial biographies, and extensive press research. By its very secret nature, we will never know as much as we would like about what was taking place within the Court, but this book offers us certainly the most complete picture to date. Another strong advantage of the book is that the author sequentially introduces each element (and character) of the story so that the reader is not overwhelmed with everything (and massive detail) occurring all at once. This makes it much easier to understand what is happening since the reader can build upon what has already been explained as each new development takes place.
I found the book particularly helpful in its depiction of the key players in the White House, Congress, among interest groups such as the Liberty League, and within the Court itself. Enough biographical background is given to help establish the context within which the key actors played their roles--Justices McReynolds, Hughes, Brandeis and Roberts; Senator Joe Robinson who led the fight; press lord Frank E. Gannett; and Senator Burt Wheeler who directed the opposition are a few examples. The author squarely lays the blame for the fiasco with the White House group, who bungled, delayed, miscalculated, misrepesented key facts, and refused to compromise when a partial victory could still have been claimed (maybe two additional justices rather than five). It is interesting that the author sees this battle as not so much between branches as rather being within factions of the Democratic Party. The portrait of FDR that emerges is one of personality weaknesses, overconfidence, and a love for the secret and dramatic. This examination of FDR under the microscope, I think, is one of the book's major contributions. Finally, probably the greatest virtue of the many demonstrated in this book is that the reader understands not only what happens but why. That is to say, the book explains and does not just recount facts.
The book takes around 600 pages (including notes) to deliver its analysis. The 66 pages of valuable notes attest to the diligence of the author's research in manuscript collections, published sources, interviews, and especially diaries held in various archives such as the Library of Congress and the University of Virginia. A twelve page bibliography and thorough index also are included. There is a reason so much has been written about this amazing episode since 1937. And all these fascinating elements are on display in this excellent study.
on March 27, 2010
Mr. Shesol has created a wonderful and readable account of politics in the 1930's. Even the chapter titles are colorful and implies the high stakes involved in the political showdown between the liberal President and the conservative Supreme Court. The author does not begin his tale in 1937 (the year of the court-packing political battle), but in 1932 with Roosevelt's election in a time of economic turmoil. He clearly covers Roosevelt's first term with the New Deal programs that were overturned by the Supreme Court, the 1936 landslide victory by Roosevelt and then his political decision to deal with all the 5-4 and 6-3 court rulings that he lost. With 500+ pages of text and 100 pages of supporting documentation/index, this is an excellent work of political history.
The effort by Franklin Roosevelt to "pack" the Supreme Court in 1937 is regarded today as one of the greatest political missteps ever made by a president. Devised in response to the Court's rejection of New Deal legislation, it galvanized a seemingly moribund conservative opposition and cost Roosevelt the enormous momentum he possessed coming out of his landslide 1936 reelection victory. Jeff Shesol does not dispute this conclusion, but instead seeks to explain the background to the plan and the course of the battle over it. In doing so, he has provided an absorbing account that illuminates many forgotten or overlooked aspects of the dispute.
Shesol traces the origins of the conflict to the very beginning of Roosevelt's presidency. From the first he and his administration were concerned about the fate of the New Deal when it was subjected to judicial review, both because of the dubious nature of much of the emergency legislation and because of the traditional role the Supreme Court had played in striking down economic regulation. Here the author does a good job of presenting the Court, showing how in spite of assumptions about its conservatism it nonetheless handed down a number of "liberal" decisions that gave many New Dealers cause for hope. The famous decision in the Schecter case ended causes for such hopes, and as the frustration over the Court mounted Roosevelt and his aides began to search for a solution to the Court's immovability.
Though numerous approaches were considered, ultimately Roosevelt settled on a plan to expand the number of justices on the Court in order to appoint more members sympathetic to the New Deal. The plan he endorsed was devised by Homer Cummings, Roosevelt's first Attorney General, and one of the strengths of Shesol's book is in elevating this often-overlooked figure to his rightful place in the history of the plan. Roosevelt deferred action until he was successfully reelected in 1936, during which he campaigned against conservative opposition to the New Deal but not explicitly against the Court - a decision that Shesol argues helped to avoid controversy that might have cost him votes but that also deprived him of any ability to use his victory to push the measure through Congress. Presented against a backdrop of increasing totalitarianism in Europe, the plan alienated many within even his own party, and it was they who soon emerged as its most prominent opponents. Yet Shesol argues that even after Owen Roberts's timely switch in the Parrish case and Willis Van Devanter's retirement in May 1937 deprived the plan's supporters of many of their arguments, a scaled-down version of the bill might have passed were it not for the death of Joseph Robinson, the Senate majority leader, in July. Without his leadership, the plan died quickly, dealing Roosevelt his first major political setback and leaving in its wake a strong conservative opposition to further extension of the New Deal.
Fluidly written and based on a considerable amount of research, Shesol's book is a superb history of Franklin Roosevelt and his confrontation with the Supreme Court. Not only is the author is a sure guide to the complex cases that defined the struggle, he also has an eye for the telling anecdote, which helps him to bring color to the greyest branch of the government. With the clarity of its prose and wealth of details, it will likely serve for some time as the definitive history of the issue, one that readers can read for enjoyment as well as enlightenment.
Even as an attorney and high volume nonfiction reader, I found this book a heavy lift.
The parallels to so much of what is happening in the US today were unavoidable, as Shesol spends a lot of tme on FDR's villification at the hands of a populist Constitutional movement (American Liberty League) and his sparring with an activist, conservative Supreme Court.
And, while one would expect a lot of New Deal inner workings in the book, I was taken aback that more than 250 pages into a book on the court packing plan, Shesol was still only hinting, to paraphrase, that there were rumblings in the Cabinet about a Constitutional amendment...an editorial suggested packing the Court...etc.
Sheshol is slow in getting to the plan itself and the political drama that played out over the attempt to expand the Court. Based on the tone of much of his criticism of FDR's opponents, my guess is that Shesol felt the need to make a vivid case for the plan, and demonstrate that public will existed before FDR moved on the idea, in an attempt to avoid any intimation that FDR was a tyrant or acted despotically.
In fairness, Shesol's focus does not seem to be the packing plan episode itself, but more of an examination of the executive-judicial struggles that defined the entirety of the New Deal. Not coincidentally, many battles over executive power are continuing to play out today, many on topics that only exist because of the immense federal bureaucratic superstructure that FDR put in place, and which did survive the Court's scrutiny. From that perspective, for legal or political observers, the book is a good guide to this epoch.
Its just a little long and ambitious for that to be its value.
on May 3, 2010
It's hard to imagine anything like a plan to pack the Supreme Court seeing the light of day currently (although many of us might want to do just that with the current SC make-up) but in 1937 it was a hard reality and Jeff Shesol's excellent book about that plan explores the history and politics behind it. One wonders how the court would have changed if it had been implemented.
As with any good historical drama there is a cast of characters composed of heroes and villains...the good and the bad depending on which side you were on, of course. At the center are President Franklin D. Roosevelt and Chief Justice Charles Evans Hughes, each man sharing some of the temporary triumphs and downfalls of the months when the court packing plan was under consideration. Supporting the president were men like Homer Cummings, FDR's Attorney General, who largely took credit for conceiving the idea of court packing and Senate Majority Leader Joseph Robinson of Arkansas, whose end-of-career hopes would be the very Supreme Court position which FDR might have opened up for him had the plan gone through. Opposing the president were Senator Burton Wheeler of Montana, the Liberty League and a host of newspapers around the country dedicated to giving FDR a very rough time on the matter.
Shesol leads up to the "180 Days" with a riveting account of FDR's election and his first years in office delivering up New Deal goodies. FDR's overwhelming re-election in 1936 set the stage for the court fight and it was a grand one, indeed. The author relates the main story through an ongoing timeline, giving a background of the personalities of the SC justices and the cases they were hearing. It's informative and told well. The color of "Supreme Power", however, really lies with Congress and its outsized personalities. The court plan, which began largely in secret, created a parallel to today's "tea parties", in a sense...the outrage of mob mentality gone awry. What makes the tale so gripping is that either side had a chance to win, and Shesol is at his best explaining why one side would rise and fall...only to rise and fall again.
In the end, the court packing plan was defeated, but FDR got somewhat of a sweet revenge that by 1942 he had appointed all but two of the judges on the bench. Shesol leaves some room for his own conclusions, giving more speculation than answers sometimes, but that is the mark of a good historian. "Supreme Power" is a terrific book and I highly recommend it.
Jeff Shesol's Supreme Power is a riveting tale of FDR's failed attempt to pack the Supremem Court during a half year run in 1937, after the Democratic Party swept the 1936 elections. It was a tumultuoous time. America was mired still in the Great Depression. FDR's signature acts of legislation, many enacted in the heady first 100 Days of Roosevelt's first term were facing challenge in the Supreme Court where a hard corps of four conservative jurists were often able to find a fifth vote and defeat FDR's signature initiatives.
In time, and especially because of his resounding electoral victory in 1936, Roosevelt and his staff came to see the Supreme Court as supremely dysfunctional, compared to the other two branches of government. His team considered constitutional amendments and legislation to outlaw judicial review, but in the end convinced themselves that only adding jurists to the court would get the job done. (Although we think of the Court having had nine justices since its inception, the number has varied, being as high as eleven during Grant's term and hardly half of that in the early days.) FDR had a small team draft the legislation and then surprised the voters, the Court, and most importantly, Congress by announcing it without any prior consultation. From there on, little went according to FDR's plan.
Roosevelt expected a huge backlash from the conservative forces in the country and he got that. What he hadn't counted upon was opposition inside his own party. Some of that came because of the high handed way he dealt with other politicians after the 1936 election. Part of it came from basically foisting this on Congress and acting as if they had no chance but to approve it. A lot of it came from politicians vying for the top spot on the 1940 Democratic ticket, never dreaming FDR would run for a third term.
But what may have ultimately doomed the bill were a series of sudden decisions where the Supreme Court seemed to reverse itself inside of two years on minimum wages and other cases. The Chief Justice and one of the conservative jurists spun on a dime and gave the administration unexpected victories. That, and the retirement of another conservative justice thus allowing a Roosevelt replacement made it appear that Roosevelt was finally getting his way with the present day nine justice court, so why make such a dramatic change?
This is a terrifically interesting time in legal and political history and Shesol has a discerning eye for nuance, asking the right questions, and quoting the most illuminating sources. Although over 500 pages, this book literally flies by. I read the last third virtually in one sitting and was disappointed when it ended.
If you enjoy legal and political history, have interest in the Court, the Depression, or FDR, this is a great read. The time Shesol writes about is literally a time when one door opened and another door closed. Although happening only 75 years ago, our memories of this time are hazy and indistinct. Shesol not only tells the tale with discerning clarity, he also helps us realize why this debate is still important today.
Imagine a time in American history in which Wall Street collapsed under the weight of its own machinations, the right wing press regularly accused the president of implementing communism and socialism, the Supreme Court undermined reform acts of congress in favor of big business and phony populist movements were established by the wealthy. Is this America under Obama? No it is the United States under FDR.
Jeff Shesol, as a former member of the Clinton speech-writing team charts the conflict between FDR and the court. And what a story this is! Anyone who believes that there was once a time in which power politics were never upper most in people's should stay away from this book since it will shake this world view to its foundations.
Roosevelt came into office during a time when most institutions had fallen into disrepute. The only way Herbert Hoover's reputation could have been worse would have been had he bungled a war or two somewhere beyond the boundaries of the United States. The times demanded new leadership and new solutions, and with that in mind, Roosevelt was elected to the presidency.
The problems that the 32nd president faced were monumental and truth be told despite an unparalleled period of legislative accomplishment, the 100 Days, not every law passed by congress and signed into law was conceived under optimal conditions. Two of the first hallmarks of Roosevelt's first term, the AAA and NRA were rushed through an obedient congress. The flaws of both would make them among the most controversial measures of the day.
These programs also set the administration in conflict with the Supreme Court. Congress did something else to help create an unfavorable environment by cutting the pensions for federal judges. This minor economy ensured that none of the justices had any incentive to retire and quite a number of reasons to stay on. Some like the reactionary McReynolds stayed on out of sheer dislike for the FDR and a desire to outlast him.
Roosevelt's primary opponent was Chief Justice Hughes, himself another former governor of New York, and also an unsuccessful candidate for president in 1916 (it came down to a few thousand votes in California). Hughes proved himself a master politician largely by pretending not to be. As the public face of the Supreme Court, Hughes understood the significance of less is more.
Shesol shows just how important perceptions are in politics. During 1935, many people viewed Roosevelt as vulnerable, not really understanding the volatility of public opinion. During this time, the Liberty League (a sort of precursor of the Tea Party Movement) was founded and underwritten largely by the Dupont family and staffed by disappointed former Democrats like Al Smith and Jouett Shouse who with Roosevelt's election, lost all influence in the party. Then as now patronage usually trumps principles.
The Supreme Court rather blindly managed to restore Roosevelt's fortunes by eliminating both the NRA and AAA, measures dear to the New Dealers, but disliked by the public at large and dismissed as failed experiments by FDR himself. With these potential drains on FDR's popularity ruled as unconstitutional, FDR was able to triumph on 1936 over a Republican Party which was beholding to the Liberty League for funds and an agenda.
The battle over the court consumed much of the political life of the country from February 1937 to August of that year. Hughes proved to be surprising supple on controversial issues like Social Security and Collective Bargaining. This former candidate for the presidency knew how to read and election return. Roosevelt who usually was a political mastermind was defeated largely though his own inability to know when to give up the fight to expand the court from nine justices to fifteen. In the process he established the basis of the socially conservative Southern and pro-big business alliance that has defined the Republican Party since the Civil Rights era. In the short term, Roosevelt may have lost the battle, but won the war. The judicial activism that favored business interests that characterized the court in Roosevelt's term was gone. Progressive legislation could stand constitutional muster. Roosevelt unfortunately would not really recover his relationship with congress until WWII.
This is an excellent book and well worth savoring since Shesol has peppered his narrative with many interesting period details concerning the main players in the executive, legislative, and judicial branches of the government in the 1930s.
on August 26, 2012
Jeff Shesol wrote a landmark book about the Supreme Court. He is a good historian who backs up his writing with detailed endnotes.
A very detailed analysis of the events relating to FDR's response to a Supreme Court that turned itself into a legislative body by repeatedly invalidating legislation that it did not like. Owen Roberts & Chief Justice Hughes realized how the Four Horsemen were undermining the authority of and respect for the Court & made a switch in time that saved the Court. Hughes beat FDR in the political arena. This book gives a better understanding of today's events.
Chief Justice Roberts also attempted to depoliticize the Supreme Court by not invalidating the Affordable Care Act. HISTORY REPEATS.
on November 26, 2010
For those interested in FDR, the New Deal, the Supreme Court, or the Constitutional Revolution of 1937, this is a great book. I have been studying this period in constitutional law for quite some time, and in such a study, one tends to find things not found in average articles or books on the subject. I found almost all of the little side stories not in most books covering the subject. Kudos to the authors for some really fine work.
This book has a very good companion too. That book is entitled: FDR v. The Constitution: The Court-Packing Fight and the Triumph of Democracy. Both books contain a few things not in the other, and FDR v. The Constitution is a shorter book. I recommend you read it first, and if it whets your appetite, read Supreme Power to learn even more from a slightly different perspective.FDR V. the Constitution: The Court-Packing Fight and the Triumph of Democracy [FDR V THE CONSTITUTION COLLECT]