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. Thanks to 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.