Friday, April 23, 2010


By Jeff Shesol

Norton, $27.95

644 pages


The resignation of Justice John Paul Stevens and the nigh-certain row over President Obama’s nomination of a successor sets up somewhat of a replay of one of the grandest battles of 20th-century politics: President Franklin D. Roosevelt’s ill-conceived and unsuccessful 1937 attempt to “pack” an unfriendly Supreme Court by asking Congress to permit him to appoint six additional justices.

In the strictest sense, the word “pack” is a misnomer, for each time a president nominates a justice he is “packing” the court by choosing someone of friendly ideological bent. But FDR took matters to an extreme, gambling that his tsunami-size victory in 1936 (61 percent of the popular vote, all but two states in the Electoral College) gave him carte blanche to restructure the court to his liking.

Jeff Shesol, a Rhodes scholar, wrote speeches for President Clinton (who contributes a glowing jacket blurb) and studied history at Oxford and Brown. His exhaustive research and deft writing produced a book that is an easy and enjoyable read.

To be sure, Roosevelt had political motivation to go after the court, which seemed bent on cutting the heart from his New Deal programs. The court demolished program after program: the National Recovery Administration, with its panoply of minimum wages, maximum hours and workers rights; a farm relief program; state minimum wages; and many other acts.

“No Supreme Court in history had ever struck down so many laws so quickly,” Mr. Shesol writes. Between 1933 and 1936, “the Court overturned acts of Congress at ten times the traditional rate.” Further, those decisions came from justices whose average age was 71; five were 74 or older, the oldest court in history.

A slim smidgeon of history was on the president’s side. The number of justices had varied over the years, beginning with six in 1789, dropping to five in 1808 and then expanding and contracting with some frequency. As Mr. Shesol writes, tinkering with the number for political reasons was not unknown: In 1863, Congress boosted the number from nine to 10 “to secure the Court’s support for Abraham Lincoln’s war policies.” In 1837, when Andrew Jackson nominated his attorney general to the court, Congress blocked him by abolishing the seat. In 1869, Congress settled on nine again, a number that remained fixed for some 65 years.

Roosevelt’s scheme was to achieve a majority by having Congress grant him authority to appoint an additional justice for every serving member older than 70 - six justices. He acted in deep secrecy, ignoring Congress. Warner W. Gardner, a 27-year-old lawyer in the solicitor general’s office, did the bulk of the drafting. To make the scheme less smelly, Roosevelt and aides revised Gardner’s work and dubbed it a “judicial reform act” on the false grounds that the judiciary was overwhelmed with work. A furious Gardner kept his mouth shut for the moment, but later he would call the ploy an “effort to market deceit” and “an exercise in Madison Avenue sleaze.”

Congressmen quickly saw through the sham. When the bill was read in the Senate, Vice President John Nance Garner ostentatiously held his nose and gave a thumbs-down signal. Outnumbered Republicans made a wise political decision. Even though congressional Democrats voted overwhelmingly for New Deal measures, deep pockets of discontent persisted. Sen. Henry Ashurst, Arizona Democrat, worried in his diary that “behind the facade of fear and need,” Congress had made “experiments on a grand scale and temporarily transmuted our way of life from individualism into regimented state socialism…. For aught we know, the Congress may have done what Russia did by her bloody revolution.”

The struggle had elements that are relevant today. Any New Deal action dealt with so-called “hot oil,” that is, petroleum sold in violation of state-imposed production limits aimed at holding up prices. But oil-rich Texas pumped out enough petroleum to skew prices; a barrel of crude “cost a dime - the price of a can of Campbell’s Vegetable Soup,” as Mr. Shesol records. Through a series of executive orders, FDR made overproduction a federal offense.

Federal agents swept through the East Texas oil fields (a contingent of press photographers in tow) and affixed handcuffs hither and yon. But a glitch: When the cases came to court, a lawyer discovered that a regulation the oilmen were accused of violating could not be found in the act. As Mr. Shesol comments, “[I]t appeared that a stenographer or perhaps a typewriter had failed to put the code in print.” (Am I being unkind in thinking of the possible future of President Obama’s massive health care plan, which many members of Congress confess they did not bother to read?)

In any event, the plan engendered sore spots across the political spectrum. H.L. Mencken, whose distaste for Roosevelt was personal, wrote that if the plan passed, “the court will become as ductile as a gob of chewing gum, changing shape from day to day and even from hour to hour as this or that wizard edges his way to the President’s ear.” Roosevelt’s case was not helped when the German Nazi press portrayed him as a “champion of vigorous leadership against ‘shopworn’ methods of government.”

Mr. Shesol’s narrative is perhaps at its best when he details the tough political hardball played by the White House during the fight, an account that will delight political junkies of any persuasion. And Hollywood could not devise a more dramatic evening, when an unexpected death dashes the president’s last chance for victory.

There was another factor as well: In the space of a few weeks, the court issued decisions that essentially reversed some of its earlier findings, notably its upholding of the National Labor Relations Act, known as the Wagner Act, which did more for labor rights than any legislation in history. Thus the bulk of the New Deal stood unmolested - but because of the workings of the court, not crude political machinations by the White House.

Joseph C. Goulden has written several books on the law, most recently “The Money Lawyers.” His e-mail is

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