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

GUEST: Jeff Shesol
VTR: 09/27/10

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

And last time I introduced our program by noting how much my own background as a student and teacher of American history prepared me to enjoy my guest’s impressively readable new W. W. Norton book, Supreme Power – Franklin Roosevelt vs. The Supreme Court.

Indeed, I blessed the prominent Federal jurist who first brought this splendid book to my attention, suggesting that I bring its author to yours.

Jeff Shesol 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.

And now what I’d like to try to do is pick up where we left off last time. Indeed, Jeff, I, I had said … I had been concerned because I thought there was a … running through the book which I loved so much … an attitude toward FDR which I deplored so much because he was my hero.

And, it stemmed in part from this paragraph, “Roosevelt’s conflict with the court, it appears had clouded his judgment, had brought out some of his most self-destructive tendencies. His love of the covert, his preference for the sly over the straightforward, his occasional vindictiveness, his eagerness to astonish … all these things came together in the court packing plan. The man who delighted in surprises now had one of the biggest that any President had ever sprung on the nation.

He would not share it before it was ready and before then would not expose it to any who might question it. He and Cummings, as Attorney General, had their solution, the very shrewdness of which seemed to its authors proof of its perfection.

In the bubble they had built around themselves these two, this Constitutional Convention a deux fell victim to their own cleverness. Locked in an embrace of mutual reinforcement, these smart and seasoned politicians came to see a radical solution as precisely what they wished it to be … practical, moderate, reasoned and wise.”

And I got the feeling that this wasn’t the man I had admired all of my life.

SHESOL: Well this is exactly what drew me to this story. That this was Roosevelt at a low moment. This is Roosevelt in the most difficult political situation that he had ever created for himself. And he did create part of this for himself.

The Supreme Court by striking down the New Deal had created the larger context for what was going on. But Roosevelt had made the decision to respond by packing the court.

And I had read one account after another of Roosevelt whom I greatly, greatly admire and I found an eagerness to dismiss the entire court packing episode as if it were entirely out of character and just sort of a blip in the record and then we move on to the great story of, of World War II.

And so, by this accounting, this sort of conventional accounting, you have Roosevelt, this man who many of us admire greatly … the Roosevelt we all know and love … and then suddenly he’s re-elected, he’s overcome by hubris … this is the standard telling … he’s overcome by a kind of arrogance after his landslide re-election and he decides … vindictively to strike back at the Court. And then there’s a six month battle over that … he loses in the sense that the court packing plan is rejected and then he goes back to being the same Roosevelt that we all know and, and many of us love. And off to World War II.

And it never seemed to make sense to me that suddenly Roosevelt, this incredibly brilliant politician by the account of a journalist at the time, the most perfect politician ever to be fitted in a human skin … how he suddenly loses his head for a period of time.

Does that happen to Presidents? Does that happen to Roosevelt in particular? Does he just lose his head and then go back to, to being the same old Franklin Roosevelt?

And so I got into this story because I wanted to understand really what happened in Roosevelt’s mind to the extent that that can be re-constructed. Looking at the context around him and looking at what he said, what his advisors recall and so forth … to understand whether this can be in any way reconciled with the other Roosevelt that exists with the other Roosevelt that exists on either side of this episode?

And I think that what this passage that you’ve kindly read suggests is that there are qualities in Roosevelt that when tipped just over the edge can become liabilities.

His confidence … his supreme confidence. His greatest attribute, probably, as a politician. But there can be a point at which confidence becomes overconfidence. When your unwillingness to listen to the counsel of your advisors becomes a problem. That was the case with respect to, to packing the court.

And this description of Roosevelt’s love of cleverness. You know, these aren’t … sort of things that I just sort of pulled out of my mind or out of the ether. That’s actually something that Sam Rosenman, his speech writer and one of his key advisors all the way back to Albany … said about Roosevelt generally and about Roosevelt specifically in the context of the court packing plan.

He said it was, it was clever … it was too damn clever …

HEFFNER: Too damn clever …

SHESOL: Rosenman had said … and I, I think it’s, it’s really important and again I try to bring this, this across in the book. To look at the way Roosevelt’s very loyal advisors reacted to this idea … all them, but for Homer Cummings who you mentioned the Attorney General, thought that this plan to pack the court and specifically the way it was presented, which we can talk about, was a disaster.

And they deplored it and they tried to talk him out of it, and they found it was too late, and they were horrified, not only by the fact of it, but by the consequences of it and by the fact that they had to go forward and sell it on what they felt were false pretenses.

And so there were decisions that Roosevelt made that I think were regrettable to the people who care most about him. So I think it’s, it’s perfectly possible to look at Roosevelt in this moment and feel that he made some mistakes and still at the same time retain your admiration for him.

HEFFNER: Let me switch the subject just a moment … not from the book, of course, but for what in your estimation the book about FDR … your studies of FDR lead you to think about what our own President at this time, Barack Obama might learn … you, you, you wrote for The Daily Beast an Obama versus FDR piece. What did you mean?

SHESOL: Well, I raised this question which is very much in the air right now about Obama’s narrative or his lack of a narrative.

Is he making a coherent argument for his policies? Not individual policies, but the sum of what he’s trying to do, the project of his Administration.

Is he making a clear argument that people understand, that they intuit it. Do they know where he’s going, ultimately?

Not just on health care, not just on energy or any series of policy priorities. But generally, what is the work of this Administration?

And I think that this is something that successful Presidents do very, very effectively.

Roosevelt more successfully than any of them in the modern era. And there are others who we might look at as well, John Kennedy, Ronald Reagan they describe the work of their Administration coherently and very effectively in a way that the public understood.

And they saw individual policies as elements in a larger strategy.

And I think that President Obama walked into a very difficult situation, as we all know, when, when he entered office. There was a long “to do” list that needed to be done immediately.

And many of those things have gotten done. But I think were more work needed to be done at the same time and more work could, and I think should be done now … is in conveying to the public and to the Congress and other key audiences that e has a sense of what this all adds up to.

And I think … what I say in the piece is that I contrast what President Obama has done with what FDR had done.

And I think from the very beginning, even before Roosevelt was elected, you had an idea of what the New Deal meant, even before the elements of the New Deal had been laid out, even before Roosevelt knew what the elements of the New Deal were.

HEFFNER: It’ strange that in the pre-convention period
the Clintons have said that Obama was great at speech making and great, fancy ideas … but the thought was that they were better … Mrs. Clinton was going to be a better President, because she could effectuate her ideas, she could put them into effect, as LBJ had … he was used as, as the example. What happened?

SHESOL: Well I think that President Obama has been remarkably successful in effectuating his ideas and turning them into policy … from the Recovery Act … whatever people may think about these things, these are big policy agenda items that got done.

And their consequences … the Left and the Right differ in terms of what they think the consequences are going to be … but nobody doubts the significance of these things from the Recovery Act to Health Care Reform to Financial reform to any number of other smaller things on the agenda list.

So I think he’s actually done a very successful job of getting the Congress to do what he wanted the Congress to do.

HEFFNER: Why doesn’t it feel that way to so many people?

SHESOL: Well I think probably a couple of reasons at the very least, if we can boil this down.

And one is the fact that the economic situation hasn’t improved enough for people to believe that these, these accomplishments amount to anything for them.

The Health Care Law really has yet to take effect to a significant degree … pieces of it are being rolled out as we speak, but it’s going to take some time before anybody ever feels the effects of this incredible achievement.

And we all know what the state of the economy is right now. So I think that on the part of the public listing the President’s accomplishments, listing the bills that got passed doesn’t really get him anywhere when the employment rate is what it is and when middle class families and other families are feeling as pressed as they do.

So I think that’s the principle problem for President Obama. But I do think that this question of narrative, it’s a buzz word … we … you know in Washington we, we go back and froth between rolling our eyes about the use of these words and then using these words.

And so, so I’ll do both here. But I think that it a, a liability not to have an overarching argument that adds it up to people, so that they know where you’re going.

What I argue in the Daily Beast piece is, that if they subscribe to your larger vision, your long term vision, then they may … by “they” I mean the voters … public … may be more patient in allowing you to get there over time.

But if they don’t know what it all adds up to, then it’s very easy for your opponents to paint it as something very different.

The Republicans have a very coherent narrative of where this is all going. Centralization of power, socialism and all these other things. And we know exactly what the Republicans say about all this. What is the Democratic answer?

HEFFNER: It’s funny, there was … you quote an FDR piece … it, it … you say in the summer of 1934 he began to reply to his critics and he was angry at the time … is that a formula for a good speech?

SHESOL: I think it can be a formula for a good speech. Particularly in times like this which are not terribly different, except … ah, ah, they’re not different in kind, they’re different in degree, certainly, than, than 1934 when Roosevelt was facing his first mid-term election.

And Roosevelt understood the impatience of the electorate. Roosevelt understood the fact that the New Deal, while it had changed many things, hasn’t changed them fast enough for, for most Americans.

And so what Roosevelt did in that moment is first what we’ve been describing, he returned to his vision that he had laid out for the country beginning in 1932. But also he began to respond, forcefully, to his critics.

And there are some terrific speeches. We, we often turn to the economic royalist speeches of the 1936 campaign.

But in 1934 he directly took on those who charged him with socialism, communism and other “isms” and the centralization of power … the regimentation, as they said, of American life by a group of bureaucrats in Washington.

And Roosevelt pushed back very forcefully and ridiculed this line of, of attack. And I think that that was a very effective thing for him to do. And I, I think frankly I’d be happy to hear President Obama do the same thing today.

HEFFNER: You know, I was impressed with the piece that you wrote … the OpEd piece that you wrote in The New York Times … going back to the question of the Supreme Court … when you wrote, “In his State of the Union address … when President Obama criticized the Supreme Court (shades of Franklin Roosevelt) Justice Samuel Alito shook his head, scowled and mouthed a two word dissent “Not true”, Chief Justice John Roberts meanwhile smiled serenely, apparently untroubled by the President’s attack.”

But then, as you wrote, we came to know that the Chief Justice could attack back. And you warned Obama … you … or the people at the Times wrote in a sub-head “Why Presidents shouldn’t talk trash with the Supreme Court”. What do you mean … what’s, what’s the warning, what is the advice? You’ve titled it, or they titled it “Justices Will Prevail”.

SHESOL: Well, well they titled it that, but they are certainly pulling out a line of argumentation from the piece.

And what I’m suggesting is that the court has a very powerful tool in its arsenal which is that it gets to be the last word on these Constitutional questions and therefore on matters of, of policy. And as we saw in the 1930s and as we have seen in other eras in American history, this is a great and to a certain extent, unchecked power on the part of the court.

And so I certainly was not arguing that President Obama should hold back in his critique of the Court. I was making a finer point than that. I think that it is the responsibility, as I say in the piece … I think it is the responsibility of the President to clearly critique Supreme Court decisions with which he disagrees.

And he did that. I think what he said during the State of the Union was exactly right and perfectly responsible and I have no problem with him doing it in the State of the Union address. I think …

HEFFNER: But watch out.

SHESOL: … but what I say is, is “watch out, there is a risk for Presidents”. And Roosevelt’s experience makes this clear. There is a risk for Presidents in personalizing the conflict with the Supreme Court. And having it become a disagreement between Obama and Roberts rather than a fundamental disagreement over interpretation of the Constitution.

A few weeks after this piece ran there was a big piece in The New York Times Week In Review on the front page with a he head of Obama and a huge head of Chief Justice Roberts.

This is becoming personalized, it’s a showdown between the two.

And I think, as I say in the piece, there are risks for both institutions in a conflict like that. But ultimately, as Roosevelt found, it is, it is the Supreme Court who holds most of the cards.

There’s very little in the end that a President can do to curb the Supreme Court. It can try to agitate and educate the public. And I hope very much that President Obama continues to educate the public on these really important questions, which are too little understood.

But I think there is a political risk for him in, in personalizing the conflict.

HEFFNER: When … recently you reviewed in The New York Times Book Review section Justice Breyer’s new book, you make it quite clear that he sees the three branches much more in cooperation, rather than one with power over the others. How so?

SHESOL: Well, he makes a very interesting and I think provocative argument in this book. I think it’s an argument that goes back to our nation’s founding, as he makes clear in this book. But it is not an argument with many adherents in this moment.

I think what he says is that the Founders … the nation’s Founders and the Framers of the Constitution had in mind that Democracy ought to work.

They did not want stalemate, they wanted checks and balances, of course. They did not want unchecked power.

But the goal was for this national experiment, the American experiment, to succeed. And that required that all three branches essentially do their part respectively and to a certain extent, collaboratively to make democracy work.

And so what Justice Breyer does in his new book is to lay out the ways in which judges and Justices, in particular, can help … and that’s an interesting choice of words … his word … help the other branches do their work.

And it is … I, I would imagine an argument that would earn him a stern rebuke from the more Conservative members of, of his court.

But I do think it’s consistent with the notion of Founders and with, for example, Justice Robert Jackson, from the middle part of the 20th century and I quote him in the review.

Jackson said that the Founders contemplated … in his words … a truly effective government. They wanted government to work; they wanted national government to work. And, and they did not want the Court simply to be a frustration or a negation of democracy.

HEFFNER: It’s so interesting that you, you … that Justice Breyer wrote as he did and that you, of all people, were chosen to review the book for the Times because that making it work is what is the cornerstone of your … of your book.

And you say very wisely … you wonder what the response is on the Court to Mr. Justice Breyer’s notion about it working … democracy working … this country working … rather than this one winning, that one winning, the other one winning.

What chance there is, do you think, given the present Supreme Court?

SHESOL: Well, I, I think given the present Supreme Court there’s not much chance actually that the Court is going to be much of a partner to the other branches in making democracy work. That is not the mission statement of the Conservatives who hold the majority on this court.

And so I think you’re unlikely and probably … ah, I think you’re, you’re certainly unlikely to see a shift on the part of the Supreme Court without a shift in personnel. Without a shift in the balance of power on the court itself.

HEFFNER: Packing, or otherwise?

SHESOL: (Laughter) I wouldn’t recommend it. I don’t think Roosevelt’s experience suggests that’s a great way to go. But …

HEFFNER: But after all, you, you, you agree with Breyer on the absolute necessity of the branches working together. And you say that there isn’t much likelihood that as presently constituted … and you go back to FDR’s recognition that the Constitution was fine in what it established. It was those nine old men … why then are you, are you saying it’s just impossible to do something as personal and perhaps as violent as FDR decided to do?

SHESOL: Well, I think that though Homer Cummings who was Roosevelt’s Attorney General advised Roosevelt in 1936, ’37, not to be terrified of a phrase … that phrase being …

HEFFNER: Packing the court.

SHESOL: … packing the court … I think that the merest mention of, of court packing now brings everyone back to what is seen as the debacle of 1937 and this very costly mistake of Roosevelt’s.

And so I think that Roosevelt himself … again it’s worth establishing that the size of the, the Court went up and down over the course of the 19th century.

It started at six, it quickly went down to five, it was as high as ten at one point …

HEFFNER: For political reasons.

SHESOL: Yes. Generally, for political reasons. In fact one of the reasons it went down from six to five in 1801 was because the Federalists had just lost power.

Thomas Jefferson was about to, to become President. And so the Federalists in a last gasp, actually eliminated a seat on the Supreme Court, pending the next retirement. So that Thomas Jefferson wouldn’t get to appoint anybody any time soon.

The same sort of thing happened in 1866, under Andrew Johnson. The Congress, the Senate did not want the President to have the chance to appoint anybody, so they pared down the size of the Supreme Court.

So Roosevelt knew that this had happened many times. He knew that it was Constitutional to change the size of the Supreme Court and that it could be done with a simple majority vote by the, by the Congress.

But what Roosevelt didn’t reckon with … in 1937 … was that the Court had settled at nine in 1869 and by 1937 it had a feeling of permanence … nobody really remembered that it had ever been anything other than nine.

And most people then and certainly today assume that the number nine exists somewhere in the Constitution, that this was … like life tenure … this was mandated by the Founders. In fact, it wasn’t.

But you’d have a very uphill battle trying to convince people otherwise.

HEFFNER: Of course, it was the use, as Roosevelt said to Cummings … it, you know, it’s the repetition of that, of that … of those words. And I’ve always been surprised that in most histories the phrase is used … it’s court packing, it’s court packing, it’s court packing … it’s not increasing the number or reducing the number … it’s court packing.

And I gather you’re … from what you say, you think there’s no way in hell that that stigma wouldn’t be removed from …

SHESOL: I think that’s right.

HEFFNER: … similar activities.

SHESOL: And I think I would add that most of the other proposals heard in the nation in 1935, ’36, when the Court and the Congress and Roosevelt had reached this terrible impasse over the New Deal … the country became something like a rolling Constitutional Convention in ’35, ’36 and all sorts of proposals … some seemingly reasonable, some quite radical … for example, allowing the Congress to, by a two-thirds vote, veto any decision of the Supreme Court. Allowing the Congress, not the Court to be the last word on the Constitution … a really radical re-balancing of, of powers.

Just about everything was floated in that period. And one of the things that struck me in my research is that many, if not most of, of these ideas hade been proposed in the 1860s during a period of ferment about the Court. And again in the teens and again in the 1920s. And even a few of these were brought back in, in around 2005 when the Republican Party decided that it was again concerned about activist Liberal Judges. Not so much on the Supreme Court, but across the judiciary. It makes you feel like there’s nothing new under the sun.

And one of the things that you have to conclude is that it is almost impossible to reform the Supreme Court. That, that for all the agitation, the Supreme Court casts a few decisions the other way … the agitation subsides, the threats disappear, they dissapate and things go back to the way that they were essentially.

So almost none of this has ever, has, has ever posed any real threat to the way the Supreme Court is structured or does its business.

HEFFNER: In the half minute we have left … do you see any way out of this?

SHESOL: I don’t really see anyway out of this. There are very few things in this government that the American people regard as sacrosanct. But the independence of the judiciary as we conceive of it … the sanctity of the Supreme Court … this, this is something that people still believe in and there is more faith and confidence in the Supreme Court than there is in, in either other branch of government … the so-called political branches.

And so I, I think this gives the Supreme Court a great resilience.

HEFFNER: Jeff Shesol, thank you so much for joining me today on The Open Mind.

SHESOL: Thank you.

HEFFNER: 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.”

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.