Nine Old (and Young) Men (and Women), Part I

GUEST: Jeff Shesol
VTR: 09/27/10

I’m Richard Heffner, your host on The Open Mind.

And I suspect it’s no surprise to anyone who has watched this program with any frequency over the more than half century since I first began to produce and host these weekly, now public television conversations, that Clio, the muse of history, has always been the object of my affections as well as of my attentions.

I was fortunate enough as a young man to have studied under leading historians such as Richard Hofstadter, Allan Nevins, Jacques Barzun, Henry Steele Commager, and Kenneth M. Stampp.

I was also privileged to teach American history for many years, and, in my A Documentary History of the United States to have had the opportunity to pay my respects to the late, great Charles A. Beard’s understanding that recorded history is itself preeminently only an “act of faith”, embodying not the past itself, but simply the historian’s own
understanding of the sequence, motivation and conceptual meaning of certain events in the past.

And through it all – this long involvement with studying and teaching history – I came to realize just how much those who write history well – and wisely, of course – put us in their everlasting debt…as does my guest today, Jeff Shesol, whose recent WW Norton book, Supreme Power – Franklin Roosevelt vs. The Supreme Court is one of the most intensely compelling and readable accounts of our relevant past.

Indeed, I bless the high ranking Federal jurist who first brought this wonderful book to my attention, suggesting that I bring its author to yours.

Now my guest holds degrees in history from Brown, and as a Rhodes Scholar, from Oxford. He has written another much acclaimed study in Americana, Mutual Contempt: Lyndon Johnson, Robert Kennedy, and the Feud That Defined a Decade. He was President Clinton’s deputy chief speechwriter…and is a founding partner at West Wing Writers, a speechwriting and communications firm.

But I want to start off today by asking Jeff Shesol if he could make this FDR admirer a little more comfortable
with his book’s evaluation of the New Deal President — my President, after all. I came to feel too strongly that my guest really doesn’t much like my hero. Jeff, fair enough?

SHESOL: Well, I’m actually a little surprised that, that you read it that way because I have enormous fondness and, and respect for Franklin Roosevelt. And I think any of us who have been active at all in Democratic politics really look to Roosevelt more than we do to any other President as the standard by which we define our modern Presidents. Including the Democratic President we have in office today … so …

HEFFNER: Well, was it pique about the way Roosevelt handled the supreme power that disturbed you mostly?

SHESOL: I, I think … I, I’m not sure that I would describe myself either as piqued or disturbed. I really wanted to understand how Roosevelt makes this mistake.

I do believe that it was a mistake in judgment for Roosevelt to decide to expand the Supreme Court and fill those new seats … to try to expand the Supreme Court and to fill those new seats with Liberal Justices, to break his impasse with the Court over the New Deal.

I really didn’t want to condemn Roosevelt … I don’t’ believe that I do.

I really wanted … that, that I don’t believe is the job of the historian, that’s the job of the polemicist … that’s the job of the political writer.

I really wanted to understand what leads Roosevelt to, to, to take this incredible gamble and to make this incredible mistake. Really the biggest political mistake of his life.

HEFFNER: Why do you call it a mistake?

SHESOL: Well, it cost him very, very badly. He began his second term as President … at the beginning of 1937 he began really at the pinnacle of power any President has, has every enjoyed.

He had won by one of the biggest landslides in American history in 1936. A huge wave of Democrats ushered into both Houses of Congress. The Democrats were so dominant at the beginning of 1937 that out of 96 Senators, there were 96 … as you know at the time for 48 states, out of the 96 Senators, 76 were Democrats.

And Roosevelt had really essentially won effectively a blank check from the American people to, to do, really, whatever he needed to do to advance the New Deal against all the obstacles that had been in his path. Both the opposition party and most significantly, the Supreme Court.

He decided at the beginning of this term, rather than to pursue any of his social or economic objectives, he had a whole list of big things that he wanted to do in his second term … he decided first to deal with the Supreme Court.

And what happened then, as we will discuss, is that the nation was paralyzed for six months as everyone argued, particularly in Washington, over the fate of the court packing bill.

And once Roosevelt lost the fight for that court packing bill, he had lost a whole lot of other things, as well.

He had lost the feeling of his omnipotence. He had lost a lot of his public support. He had lost the unanimity of the Democratic Party … and so forth.

So it was a very, very costly mistake and though Roosevelt, as again I’m sure we’ll discuss, though Roosevelt saw it as a victory of sorts, he believed that he had lost the battle, but he had won the war to change the Court … it was, even by those standards a pyrrhic victory.

HEFFNER: Why do you say “even by those standards”. Didn’t he win the war?

SHESOL: Well, to say that he won the war … he won the war in the sense … and this is what Roosevelt meant when he said this … that though he didn’t get to pack the Court, the Court stayed at nine where it had been since 1869 … the Court did, suddenly, in the middle of the court packing fight, in the middle of 1937 … start upholding New Deal programs.

It had been knocking them down for years …knocking down one pillar after another of, of the New Deal. Suddenly, in the middle of this court fight, it begins to uphold the New Deal and it … and it never goes back … it never strikes down another New Deal program from that point on.

And so it’s very easy for people then and people today to conclude that this was certainly as a result of Roosevelt’s court packing plan.

But as I describe in Supreme Power … some of these changes had been underway in the Court at least for a matter of months prior to the launch of the court packing plan.

And it’s not clear, really, that it’s either caused by the court packing proposal or that the endurance of this, this shift can be attributed to the court packing plan.

The endurance of the shift, of the Court’s shift to the left really has more to do with the fact that suddenly Roosevelt gets the opportunity to appoint not just one new Justice, but a whole bunch of new Justices and by the time Roosevelt dies in 1945, he has appointed eight out of the nine Justices on the Supreme Court.

HEFFNER: But wasn’t the change in the make-up of the Court, to some extent, at least, or one might say, perhaps to some considerable extent … due to the feeling on the part of the Justices that … of disgust … of concern that Roosevelt was the dictator that he had been accused of being; that he had almost accomplished something that was so distasteful to them.

SHESOL: Well, ab … absolutely right … and I think this was one of the larger questions that I tried to discuss in the book and that is the extent to which the Supreme Court is engaged in the dialogue with the public … to the extent that the Supreme Court is engaged in the dialogue with the other branches of government.

I think even to this day many of us tend to see the Supreme Court as existing in a, in a little vacuum somewhere, in its marble palace. That it’s, that it’s closed off, really, from the hurly-burley and so forth.

But I think we know more now then, then people were ready to accept in, in the early mid-1930s … that the Court is not necessarily political in the sense of the other branches. It’s not answerable to a constituency. They don’t have to run for, for reelection.

But these are individuals with strong beliefs. They have strong political preferences. They have economic philosophies and these things almost inevitably find their way into the decisions. And so …

HEFFNER: No, no … please … I, I was just going to say and those philosophies manifested themselves in, as you said, and you record so beautifully in this book … again, and again and again striking down what Roosevelt’s philosophy was as expressed in New Deal legislation. Why do you feel that that would have changed?

SHESOL: Well, it changed on the part of one individual in 1937. It changed on the part of a Justice named Owen Roberts, who ideology had always been something of a mystery.

He was a Republican and he had been appointed by Coolidge back in the 1920s to investigate the Teapot Dome scandals of the Harding Administration.

He was certainly accepted by Republicans as a reliable Conservative. But he wasn’t a hard-line ideologue. He wasn’t a dogmatist and so there was some hope on the part of Liberals that when Roberts was appointed to the Court in 1930 by Hoover, that he might actually be somewhat Liberal on a number of questions.

And his early decisions kind of go back and forth. But by 1935 when the argument, the national argument over the New Deal had really begun to heat up in a very active way and the Conservative opposition had been totally inflamed about the New Deal and was pressing that argument into the courtrooms, Roberts very decisively aligned himself with the Conservatives on the court. And he not only joined in their opinions, but he actually wrote some of the most strident and sweeping opinions of that period.

Which is what makes it so remarkable that in the heat of the battle in 1937, he actually switches. And the case in which he switches is on a minimum wage case, a state minimum way and he voted for precisely the opposite result than he had voted for less than a year before, when he voted to strike down, in 1936, New York State’s very carefully drawn minimum way law.

What happened? Well, Roosevelt always believed that what happened was the court packing plan. That at the beginning of 1937 Roosevelt proposed to pack the Court and then a few months later Roberts switched.

Well, actually what we now know and what Roosevelt couldn’t have had the benefit of knowing is that within the Supreme Court the vote on that case had been taken a couple of months prior to the launch of the court packing plan.

And so Roberts had already made his decision in the wake of Roosevelt’s re-election to switch. Now, he switched most likely … nobody can ever be sure … we can’t get inside Roberts head … but I think that if you … as I try to do in the book … if you recreate the circumstances … if you try to paint a picture of Roberts in as much detail as you possibly can and try to understand his character … it seems pretty clear that Roberts had switched in response to the political environment, generally.

Now Roosevelt had some great responsibility for the political environment, he had been leading the charge against the court for a couple of years, since it had been striking down the New Deal.

And it does seem that the pressure finally got to Owen Roberts in 1937 and he switched.

HEFFNER: But the decisions, one after the other, that had struck down New Deal measures … weren’t by any means a one person decision, a five to four vote. So many of them had been much powerfully strung. That’s why I find it so difficult to answer the question about what Roosevelt, what should Roosevelt have done in any other way than what he did.

SHESOL: Well maybe it’s helpful to talk a little bit about the Supreme Court and how it was aligned in, in that period.

There were four hardcore Conservatives. They were known, at the time, as The Four Horsemen. Four Horsemen of the Apocalypse. And they were very reliably, very predictably and stridently Conservative.

Then on the Left you have three of the great Liberal Justices in the period … you have Brandeis, you have Cardozo and you had Harlan Fiske Stone.

In the middle, if there was a middle in this Court, you had Roberts, who I described, who by this point had seem to align himself with the Conservatives and you had Hughes, Charles Evans Hughes, the great Chief Justice, who had been a great Liberal Justice during his first stint on the court between 1910 and 1916.

He left the Court in 1916 to run against Wilson and very nearly became President of the United States. He then found his was back onto the Court in 1930 as Chief Justice.

And what you see Hughes doing, during this period, is trying to balance what is impossible to balance. He’s trying to balance these two factions on the court.

And so most of the important decisions during this period are, in fact, five/four decisions where you have a Conservative majority joined by Roberts … sometimes a six/three majority where Hughes as part of his balancing … going back and forth has decided on a given case to align himself mostly with the Conservatives.

He joins them in the result, but he writes a concurring opinion where there’s some fine shading of difference that seemed significant to Hughes.

But I think maybe what, what you’re referring to is that there are a couple of decisions during this period that are actually nine/oh decisions.

HEFFNER: Big ones.

SHESOL: The big one … the, the first really big decision to go against the New Deal was the so-called Schechter case …

HEFFNER: MmmHmm.

SHESOL: … the so-called “sick chicken” case, which concerned a, a kosher poultry plant in Brooklyn. And whether that plant was in violation of the codes of the National Recovery Administration, which was really the centerpiece of the New Deal’s industrial policy.

And the Court went against this case … and went against the Administration and, indeed, overturned the entire NRA nine to nothing. But that result wasn’t repeated later and really I think that has to be set aside because the, the … the NRA by that point, by 1935, was generally regarded as something of a disaster.

Even Roosevelt himself, though he deplored the decision of the Supreme Court, was pretty happy to be rid of the NRA.

And it rested on some very shaky Constitutional principles and so that was the rare case in which you had the Liberals, who I mentioned, actually joining the Conservatives. But after that day in May 1935, that didn’t happen again.

HEFFNER: Were there no major decisions, with major votes heavily weighted votes?

SHESOL: There was not another decision after that date that, that went strongly against the Administration.

Unless you … the decision overturning the triple A, which was the farm program …

HEFFNER: Yeah …

SHESOL: … was six/three against the Administration. But again, this was a case where Hughes joined in the result, but didn’t join entirely in the reasoning of the Conservative majority. So there is the appearance of greater unanimity on the Court then, then actually was the case.

HEFFNER: Ah, would you suggest that Roosevelt was aware of the, the degree to which … what he was doing would become generations later in a fine historian’s mind … unnecessary?

SHESOL: I’m not arguing that it was either necessary or unnecessary. I really believe that it’s up to you, up to the other readers of this book to, to make this judgment.

HEFFNER: You mean the historian doesn’t make judgments?

SHESOL: Not at all. No, I’m not suggesting that I don’t make judgments. I’m not suggesting that I don’t have opinions. But there are degrees of the way in which you express that in narrative history books.

I’m not writing an argument. I am writing a narrative history in which I, I certainly have views and the views are, I think, in places apparent and in other places I really try to pull back because while I have … as … just to go back to a subject we discussed a little while ago … I have a view of what caused Roberts to do what he did. I cannot say to you or anyone else with certainty that I know exactly what drove Owen Roberts to decide as he did. Even Owen Roberts may not have known what drove Owen Roberts.

HEFFNER: Would you share your estimate?

SHESOL: Will I share my estimate on that, on that …

HEFFNER: Yup …

SHESOL: … absolutely. I think, again, going back to what we were discussing earlier … Owen Roberts was the youngest of the Justices.

This was the oldest court in American history to that point. And the average age, in 1936, was 71.

Roberts was 60. So he was the young man on the Court. And he was also more than any of the other Justices sort of a man about town in Washington. He got out a lot, he socialized with members of Congress, even members of the Administration. He like to engage and he was also very interested politically … as many of them were.

But some of the others were very far removed from their political lives. Not so much with Owen Roberts and he was even discussed, somewhat reasonably in 1935, 1936 as a possible Republican challenger to Roosevelt. And he seems to have appreciated this. And he cared, maybe to an inordinate degree, what other people thought of him. This was a concern of his. It didn’t particularly … the Four Horsemen I described couldn’t have cared less, really, what anybody thought of them and they were defiant in that view.

Roberts was very different. And so after this long period that Roosevelt likened to the nullification decrees, when the court was reigning down on the New Deal and knocking down these pillars as I described … one after another … the last straw was that New York minimum wage case that I described to you.

In the middle of 1936, on the last day of the term, the court overturned this New York State minimum wage law. And most of … this, this was what … this was the tipping point as we might say today … this was what finally really turned the public angrily against the Court.

The minimum wage was very popular. Not all of the New Deal programs though we may think otherwise today … they weren’t necessarily all that popular … particularly after a while.

The NRA … a very mixed bag politically as I mentioned before.

But the minimum wage was regarded as sacrosanct … there had been minim wages in this country for decades. And so it was a shock to the national system when the court overturned it.

And most of the public anger was directed at Roberts. And I think it may be useful to make an analogy to the present Court. When the Court reaches a conservative decision that people on the Left don’t like today … most of the anger on the Left … is not directed at Scalia or Thomas … we know exactly what Scalia and Thomas are going to do on any given case. The anger is directed at Kennedy …

HEFFNER: The swing vote …

SHESOL: Exactly. And Roberts was the swing vote and he really took it on the chin for these decisions. And he seemed to go into seclusion in the middle of 1936.

Did a lot of soul searching and at the other end of that, that fall, just a few months later, he actually breaks from the Conservatives in Congress, joins the Liberals in agreeing to take on another minimum wage case.

And the Conservatives whisper to one another in conference; one of them says “What’s the matter with Roberts?”

What was the matter with Roberts was that he had a very rough period and was looking … I think … this is my view to get back to your questions …

HEFFNER: MmmHmm.

SHESOL: … I think he’s looking for a shot at redemption.

HEFFNER: Redemption? And if he hadn’t? How would you have evaluated FDR’s so-called “packing”?

SHESOL: Well, I just want to take a … I want to take a step back to address that very important question. How to evaluate Roosevelt’s actions here.

I actually differ from a lot of historians who have approached this in their biographies of Roosevelt and contemporaneous accounts back in the 1930s who tended to see this as a wild power grab, as a crazy irrational act.

What I really try to do in this book is to walk the reader very carefully through Roosevelt’s thinking. Not just in those couple of months after the ’36 landslide … before he launches the court packing plan in February ’37 … but going all the way back to the Administration to try to understand the conflict, as Roosevelt saw it, between himself, his Administration, the New Deal and then on, on the other side, the Conservatives on the Supreme Court.

And Roosevelt very carefully for a period of years, considers just about every option under the sun. He has the Justice Department producing 65 page memos analyzing every conceivable Amendment to the Constitution that might, for example, give Congress more power at the expense of the Supreme Court. Or might, for example, impose term limits on Supreme Court Justices … eliminate life tenure and set an age limit for Supreme Court Justices.

He carefully considers all of these options before deciding, at the end of ’36 that a Constitutional amendment is a) impractical and b) will likely do damage to the fabric of the Constitution.

Roosevelt always comes back to the view that there’s nothing wrong with the Constitution. The Constitution doesn’t need to be rewritten, it doesn’t need to be amended … there’s no conflict, no contradiction between the, the Constitution and the New Deal, the problem is with these Conservatives, these ideologues on the Supreme Court.

And so when he finally crystallizes his thinking on this point and there’s almost nothing left to do, but to pack the Court. And Roosevelt goes back, in his thinking, to the 19th century when the size of the Court went up and down, often for political reasons.

It was perfectly Constitutional. If Congress passed the change in the size of the Supreme Court, it could be done overnight, as he expected it would. And it would solve the problem. He would get to appoint a bunch of Liberals overnight, there would no longer be a Conservative majority, even with Roberts, whether or not Roberts stayed or, or went. And you would suddenly have a clear path for the New Deal and all of his plans for a second term.

So, I think in Roosevelt’s mind and in the mind of some of the others around him, this was quite a rational, reasonable, moderate and prudent plan.

And so I really tried to express in this book exactly how he could come to that conclusion. This was not a rash, impulsive, irrational act. It was the product of very careful planning.
HEFFNER: And yet you feel it was a mistake.

SHESOL: Well, I think that, that the decision has to be judged ultimately … not just by how he got there … which is part of the …

HEFFNER: But what happened.

SHESOL: … but what happened afterwards.

HEFFNER: Do you think that that kind of counterrevolution in the Democratic Party … thinking particularly of the Southerners, would not have occurred anyway when Roosevelt came to the Congress with his magnificent plans for the second Administration?

SHESOL: I think it certainly would have happened. I think with respect to the Southern Democrats, the Conservatives in the party, this fissure in the Democratic Party well pre-dated Roosevelt and the New Deal.

There had always … not always … but for a long time … there had been this split personality in the Democratic Party. You had what you might think of as Progressives, Liberals, interested in social and economic reform. And you have Southern Conservatives.

But the Depression and the force of Roosevelt’s personality and popularity were a unifying force the bound the party together despite these internal tensions and it’s why he was able to get so much done.

It’s why he was able to turn to the Southerners in Congress such as Joe Robinson, who was the Senate Majority Leader from Arkansas … not particularly sympathetic to the New Deal, but it was Robinson who carried most of the New Deal on his back through that Senate and through the Congress.

He was able to hold it together and certainly at the beginning, as I described the beginning of his second term, when he really stood at the peak of, of, of power than any President has enjoyed, he would have had a period of time in which he could have gotten a lot done. I think inevitably, as you suggest, those fissures would have widened, there would have been something that provoked a split and he would have had to reckon with a divided party down the line.

But the decision that Roosevelt made to pack the Court drove a wedge right into the party at the beginning of the second term before he’d gotten anything else done and it split the party, essentially in a permanent way.

HEFFNER: You say “a permanent way”, that’s an interesting observation. The pre-Nixon split or the pre-Reagan split … I … we don’t have enough time for me to ask you to relate this to Barack Obama or even to comment on your review of Justice’s Breyer’s wonderful new book, but I’m going to ask you to stay right where you are in the hopes that we can do that in another program. Will you agree?

SHESOL: I’d be glad to. Thank you.

HEFFNER: Thank you, Jeff Shesol.

And thanks, too, to you in the audience. I hope you join us again next time. Meanwhile, as an old friend used to say, “Good night and good luck.”

And do visit the Open Mind website at www.theopenmind.tv

N.B. Every effort has been made to ensure the accuracy of this transcript. It may not, however, be a verbatim copy of the program.