- The Washington Times - Thursday, April 23, 2009

ANALYSIS/OPINION:

FDR V. THE CONSTITUTION: THE COURT-PACKING FIGHT AND THE TRIUMPH OF DEMOCRACY

By Burt Solomon

Walker Books, $26, 272 pages

This is the story of what happened when a president tried to bypass Congress, checkmate the Supreme Court and subvert the U.S. Constitution, all in order to save the nation.

Washington author Burt Solomon has accomplished a couple of remarkable things with “FDR v. the Constitution,” his recounting of Franklin D. Roosevelt’s attempt in 1937 to inflate the nine-justice U.S. Supreme Court by another six (presumably friendly) justices.

Following his two previous books - one on Washington’s power elites, the other on baseball history - this book marks Mr. Solomon’s final transition from being one of the city’s best political journalists (for the National Journal) to becoming a serious political historian.

The other accomplishment is to take a story where we already know the outcome (Roosevelt is defeated) and invest it with taut suspense and all-too human drama. This book is a Washington political junkie’s dream fix.

For those of us who believe the past is often prologue, the tale Mr. Solomon tells unintentionally leads the reader to look over his shoulder for comparisons with another wildly popular president who has been elected in the midst of a terrifying economic crisis with a powerful legislative mandate to create a new society. As yet, of course, President Obama has not run into the stone wall of opposition that Roosevelt did in his first term of office. But one does not have to squint into the future too hard to muse about what he will do when that confrontation develops.

Conventional history makes much of the dramatic social programs known as the New Deal that Roosevelt jammed through a captive Congress during his first four years in office. Less well known is that almost as quickly as Roosevelt and his overwhelming congressional majorities would enact some landmark law that sought to ease the burdens of the Great Depression, the Supreme Court would find that law unconstitutional.

In truth, some of the New Deal in retrospect seems more ambitious and well-intentioned than sensible. In addition to seeking to help workers unionize so as to effectively negotiate better wage and working-condition deals with management, Roosevelt reached further with a National Recovery Administration and an Agricultural Adjustment Administration. The former, seeking to establish minimum wages, also had the effect of creating big-corporation monopolies over whole industrial sectors that crushed small businesses. The latter, seeking to boost farm incomes, resulted in the forced slaughtering of livestock and in idle fields at a time of widespread hunger. The court struck down both.

To the point, by midsummer 1936, just as Roosevelt was seeking re-election, there was no New Deal in effect at all. Roosevelt’s political genius lay in his intuition that he commanded an enormous public will for dramatic economic reforms to alleviate the crushing Depression. It was not his fault his policies had not worked; they had been balked by the justices - now derided as “nine old men.” By making the court’s obstruction the issue, he could run and win re-election. He did so overwhelmingly.

With a cunning and secrecy that had in the past been a tactical talent but in this was a strategic mistake, Roosevelt waited until two weeks after his inauguration in March 1937 to propose a broad reform of the federal judiciary, the core of which was the expansion of the court by six seats to a total of 15.

Changing the number of justices for raw political reasons had been done before. Indeed, one of the side issues in the landmark case of Marbury v. Madison in 1803 that established the court’s power to rule on the constitutional acts of both the legislative and executive branches stemmed from a seedy squabble that erupted when outgoing President John Adams tried to preserve the entire court system as a Federalist redoubt against incoming Thomas Jefferson and his radical Republicans.

And Roosevelt had a good issue on his side. For much of the previous century, the court had resolutely sided with the preservation of property and the rigidities of contracts against the interests of individuals and the less advantaged classes. To do so, a succession of justices had to tie themselves in logical knots that would allow them to exclude whole sectors of the economy from the reforming reach of either the federal or state governments. Measured against those legalistic rigidities, much of the New Deal clearly was questionable, but common equity and a vastly changed economic system argued for a change of interpretive attitude.

Mr. Solomon has produced a gripping tale of how Roosevelt misjudged and mishandled the two men who denied him his remedy. Sen. Burton K. Wheeler, a Montana progressive, effectively blocked White House lobbyists so Roosevelt managed to lose the effective support of his party majority in the Senate.

In the meantime, Chief Justice Charles Evans Hughes skillfully cut the ground from beneath the president’s complaint by fashioning a series of narrow majorities that reversed the court’s anti-New Deal standards and permitted arguably sounder remedies - Social Security, to name one - into law.

In the end, Mr. Solomon argues that Roosevelt won even as he lost. He did not get a court with a huge loyal majority. But the court he did have had changed fundamentally. By 1940, retirements and death allowed him to appoint five justices of his own and thus “his objective - a liberal-minded court, one that would endure for seven decades or more.” An instructive saga.

James Srodes is a veteran Washington author and journalist.

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