September 18, 1937 - Article - The 168 Days, by Joseph Alsop and Turner Catledge (part 1)

Senator Johnson of California: "The Supreme Court is out of it?"

Senator Logan of Kentucky: "The Supreme Court is out of it."

Senator Johnson: "Glory be to God!"

During the brief dialogue between the two gentlemen, the Senate chamber was astonishingly still. On the floor, the senators, the scores of representatives who had come over from the other end of the Capitol, even the clerks and pages, leaned forward intently, all listening.

There was no sound from the galleries, where an immense crowd of sight-seers and senators' wives and connoisseurs of the Washington scene filled every seat. In Johnson's sharp, the last four words rang, a little ludicrous, a little melodramatic, through the silence. And then the silence was broken by wild clapping, a rude spate of sound.

That was how President Roosevelt's utter defeat on his court plan was publicly proclaimed on the sultry afternoon of July 22, 1937. Logan's answer, spoken with such solemn definiteness, was the final capitulation. His motion to recommit the bill to the Judiciary Committee, for revision by its most determined enemies, was passed by a vote of 70 to 21 a few minutes later.

The great fight was over. When it began just 168 days before, President Roosevelt was in full enjoyment of a power unlike the power of any American President of the past. He had behind him an unbroken record of success, capped by the greatest triumph at the polls in the nation's history. His majority in both Houses of Congress was greater than any President had ever had. His party was outwardly unified. His lieutenants in Congress and out hardly knew the meaning of the word "disobedience." yet they were able, forceful officers of his cohorts. Every circumstance seemed to promise him a future opulent with victory.

Yet when the fight ended, the President had suffered one of the worst defeats any President ever suffered. The best of his able lieutenants, Joe Robinson, had fallen in the fight - the red clay was still fresh on his grave on an Arkansas hillside - and many of the others who had worked the President's will for him were in open rebellion. His forces in Congress were dissipated and his party was split by a dozen factional angers. Even his great vote of confidence from the people was half forgotten, except by Franklin Delano Roosevelt himself, sulking in the White House, meditating vengeance.

One of the great political dramas was played on the Washington stage in those five months and seventeen days. Suddenly, for a brief moment, the shabby comedy of national politics, with its all-pervading motive, self-interest, its dreary dialogue of public oratory and its depressing scene of patronage and projects, was elevated to a grand, even a tragic, plane. Suddenly the old Greek theme of hubris and Ara, the pride and the fall that comes after, dominated the play.

This is an attempt to tell the story of those 168 days, not as the audience, the citizens of the United States, saw it on the public stage but as the performers themselves remember it. Political drama is like a play which is made up as it goes along. Its most important incidents are not the scenes before the footlights, but the conferences between actors in the flies, the struggles and arguments and conflicts of opinion which determine what is to be done in public. Where did the court plan itself originate? Who conceived it and developed it? What was behind the fight's long interplay of incident? And which incidents decided the struggle's course? The actors are ready to talk, now that they sit, so to speak, exhausted in the green room after the curtain has been rung down.

The drama's prologue was privately played in the President's White House office on May 31, 1935, four days after the Supreme Court unanimously invalidated the NRA. The four days had given the President's temper time to reach the boiling point, and Felix Frankfurter and Gen. Hugh S. Johnson, who conferred with him in the pleasant oval room among the flags and ship pictures, found him in a fighting mood. He told him that he wouldn't take the court's action lying down, that he wouldn't stand for it. The country was with him, not with the court, he said, and he promised angrily to bring the court into line, if he had to "pack it" or even "deny it appellate jurisdiction." It was thus that Franklin Delano Roosevelt first announced his decision to give battle to the court. Frankfurter and Johnson tried to dissuade him from a public display of his anger, but they could do nothing. The famous horse-and-buggy press conference took place a little later.

To understand the President's dealings with the court, this prompt decision to fight and what came after, you must understand the President himself, and especially his view of his own and the court's place in the constitutional system. To Franklin Roosevelt, unlike most politicians, precedents are there chiefly to be broken. He is little wedded to the past, especially when he thinks the past blocks his path. He is daring. His is insistent on having his own way without interference, and after so much success, interference infuriates him. He has a splendid confidence in his own power to get what he wants. (pg. 8)

Add to such a personality the theory of the court's functions which the President expressed to a doubtful senator during the court fight, and you have an understandable pattern of character and action. He was explaining to the senator that the fault was not his, but the court's. He said he had wanted to play ball with the court, and at the very start of his term he had suggested to Chief Justice Charles Evans Hughes a sort of consultative relation between them. He had intimated to the Chief Justice that he would like to discuss his important plans concerning the general welfare, to get the court's slant on them before he acted. But the Chief Justice had been Olympianly chilly. He had given the President to understand that the strictest separation between the court and the White House was not only advisable but necessary.

"You see," said the President to the senator, "he wouldn't co-operate."

No wonder, then, that through the remaining year and a half of his first term, as the court's decisions against the New Deal piled up, the President kept his determination to force the court into line. Long before the 1936 election, it was known in the inner White House circle that the court would probably be dealt with if the election went well. With the campaign to be got through, the strictest secrecy was maintained. Yet the determination was unquestionably there. The best proof of this is the fact, never heretofore made public, that legal experts in the Department of Justice were hard at work studying approaches to the court problem during a good part of the campaign.

Then came the election itself. If anything was needed to persuade the President to act, it was his majority on November third. He took the 27,000,000 votes cast for him as an endorsement as personal as an appointment to be trustee and guardian of a friend's children. He believed, and he was mightily encouraged in his belief by the Corcorans, the Cohens, the Hopkinses and the other ambitious political intellectuals around him, that the people had given him carte blanche to go forward, in whatever direction and by whatever means seemed best to him. Therefore, it was only a few days after the votes had been counted that he called in Attorney General Homer S. Cummings, the canny, genial, Connecticut lawyer-politician. He told him it was time to work out a scheme for dealing with the court. Cummings readily assented. It could not have been a very dramatic interview, for both parties to it had long had a mutual understanding that sooner or later such a time would have to come. The President did, however, enjoin the deepest secrecy on Cummings and observed it himself. Even among his intimates he merely let it be known that something was afoot. Cummings handled the whole matter. He and a few trusted subordinates went to work on a series of elaborate studies of the different alternatives, both amendments and legislative acts, sending the data to the White House in installments as soon as it was ready. All through November and early December the messengers hurried back and forth between the President and the Attorney General's office, carrying the work of the legal experts to the President and returning with the President's "chits," the little slips of paper on which he circulates his comments and suggestions among his subordinates. When the President left for his South American trip in early December, so much material had piled up that he took with him two fat bound volumes, one containing studies of constitutional amendments, and the other, studies of legislative acts.

Even so, the court plan as the country was to know it, the plan to appoint an extra justice for each one more than seventy who refused to retire, had not been thought of. The President and his Attorney General had merely arrived at a set of general conclusions as to what they wanted. They had not discarded the amendment approach entirely, but they had pretty much made up their minds that it was too slow and uncertain. Moreover, as they interpreted it, the Constitution needed no amendment. The court, as they saw it, was what required to be changed, and since packing it was the obvious and the only sure constitutional way of changing the court, they were strongly inclined to that method.

The final plan was born late in December, after the President's return from South America. It was born in the mind of Homer Cummings, the one man who had been most commonly ignored in the speculations on the plan's origin. It came to him simply enough. Cummings was in his Justice Department office, mulling over his problem for the fiftieth time. The problem was really difficult. He and the President had decided that reform of the lower courts, with more judges to speed up the procedure there, was also desirable, and they wanted a general system on which the Supreme Court could be increased and the new lower-court judges provided. Yet how to pack the court by principle? Cumming's desk in the pseudo-imperial office among the new Justice Department Building's frescoes was piled high with papers, all dealing with the subject. He picked up one after another, glanced at them and put them down again. Then he remembered that in his book, Federal Justice, he had quoted from a memorandum prepared for President Wilson in 1913 by Associate Justice James Clark McReynolds, then Attorney General. The paper, which had lain gathering dust in the department files until Cummings unearthed it, was an argument insuring a young, vigorous judiciary by appointing an extra judge for every judge who had served ten years, had reached the age of seventy and had failed to resign or retire. The germinal idea was borrowed from a radical Republican bill which passed the House in 1869. McReynolds had limited it to the lower courts, but, thought the Attorney General to himself, why not extend it to include the Supreme Court also? Thus the whole problem would be met. (pp. 9, 93)

Cummings rushed his plan and hurried it to the White House. With it, he took the drafts of several others, and offered the whole packet to the President with his own favorite suggestion at its bottom. The first alternatives were rapidly skimmed over and laid to one side. It was evident that none of them was wholly satisfactory. Finally the President came to the Cummings plan. After a glance at it, the President's face lighted up. He read the paper carefully, then threw it on his desk and slapped hi hand down on top of it.

"That's the one, Homer," he said excitedly.

He, in fact, was completely delighted with the plan. Its half origin in the mind of Justice McReynolds, most die-hard court conservative, enchanted Mr. Roosevelt. All his slightly puckish, slightly malicious delight in turning the tables on his enemies was brought into play. He felt that the scheme did better than meet the requirements he and Cummings had laid down. Later on he was to describe it to an adviser as "The answer to a maiden's prayer." By hindsight it seems strange how blithely the President went to his cruel eventual defeat, but that was far in the future then.

In those two decisive conversation between the President and Cummings, the plan's minor features were also sketched in. Intervention of the Attorney General in private suits touching the constitutionality of Federal law had been in the air for some time. As for the notion of "roving" judges to clear up lower-court congestions under a Supreme Court proctor's management, that had been embodied in a memorandum presented to the President a year or so before by William Denman, intimate friend of Tom Corcoran and now judge of the Ninth Federal Circuit Court of Appeals. The Denman scheme was tacked on to the plan pretty much as it stood, and tied into it by making the extra judges' appointments dependent on the ages of the sitting judges. With these additions, the plan was finished. Yet no one, not even those closest to the President , knew what was up at the time. Not Solicitor General Stanley Reed, who heard of it only when he was called in to help draft it into a bill, nor Assistant Attorney General Robert H. Jackson, who first learned of it when he read about it in the newspapers, nor Cohen, nor Corcoran, nor any member of the Cabinet.

Ben Cohen and Tom Corcoran, the bright, irrepressible pair who are the No. 1 team at present in White House palace politics, have often been credited with having a hand in originating the court plan. Actually, they had less than none. They came closest to the discussion at Thanksgiving time, when Solicitor General Reed asked them to prepare a memorandum on approaches to the court problem. Unaware of the immanence of action, they worked at their paper all through December and submitted it in early January, well after the Cummings scheme had already been settled on. Such was their ignorance of the true state of affairs that they rather dismissed the idea of extra judges, and placed most weight on a proposal for a constitutional amendment not unlike that later advocated by Sen. Burton K. Wheeler, of Montana. The Cohen-Corcoran would have permitted Congress to override court decisions on the specific point of law concerned, by a two-thirds majority at once and by a simple majority after an intervening election. It would also have allowed Congress to validate state acts thrown out by the court. (pp. 93, 94)

Cohen and Corcoran had, to be sure, toyed with the idea of packing the Supreme Bench. Entirely on his own initiative, Corcoran had suggested it to Senator Wheeler a year or so earlier, and the pair had even got to the point of writing a speech on the subject for the Montanan, which Wheeler had refused to deliver. But in the interval so many people had called packing the court the one wholly inadmissible solution to the puzzle that Cohen and Corcoran had abandoned their first position. Unlike the President, they noticed the weather signs that a great storm would blow up out of such an attempt, and Senator Wheeler was quite misled by Corcoran's early suggestion when he later laid responsibility for the plan at the Cohen-Corcoran door.

Cohen and Corcoran were, however, the chief contributors to the President's January 6th message to Congress on the "state of the Union," in which it was publicly hinted for the first time that something was coming. The situation in the White House offices when the message was being prepared was an amusing one, as one looks at it in retrospect. The message's thunders against the court as the main obstacle in the path of social progress, its warning to the court that unless it could fall into step its powers would be curbed, fitted in admirably with the President's scheme.

At the same time they also fitted in admirably with the Cohen-Corcoran amendment, and the brilliant pair must have rather hoped that the President's adoption of their draft of his speech's court section indicated the eventual adoption of their favored line of action. Corcoran must have been very excited when he discussed the speech with the smiling President, and it must have amused Mr. Roosevelt, who enjoys a secret - even a secret from his closest advisers - to see Corcoran's enthusiasm.

The message was delivered by the President in person. His words did not let the cat out of the bag. They merely allowed those with sharp enough ears to hear the animal meow. And to all the 500-odd members of Congress who listened to the massage and cheered it lustily, only Hatton W. Sumners, of Texas, the shrewd, learned chairman of the House Judiciary Committee, believed what his ears told him.

Those January weeks were a strange time. Congress was fussing over the President's executive- reorganization message. The members of the Cabinet were turning up their lobbying squads, to be ready to get as much for themselves as possible out of the reorganization pie. All Washington was cheerfully ignorant of what was to come except the President, nursing his delightful secret in the White House, and Homer Cummings and Solicitor General Reed, laboring with their papers and law books behind locked doors at the Justice Department. In all, three documents were being prepared - the bill itself, a rough draft of the President's message to accompany it, and a letter from Cummings to the President setting forth the congestion and delays in the courts. Cummings and Reed may have had some help from Alexander Holtzoff, Cummings personal assistant, but otherwise no one was let in on the portentous secret until the middle of January or a little later, when the President showed a draft of his message to Donald Richberg and to his friend and personal appointee, Judge Samuel I. Rosenman, of the New York Supreme Court. A few of their perfecting suggestions were accepted.

At last all was in readiness. Between them, the President and Homer Cummings mapped out their plan of action, and here the President's love of a surprise attack and his fondness of ordering Congress about found their most extraordinary expression. No one was to be warned, the President and Cummings decided, least of all the congressional leaders. Message, bill and letter from the Attorney General, the whole thing was to be flung at the country without advance notice, to be left or taken. There was never even a lingering doubt in the President's mind that they would be taken.

And so the first act in our drama ended, with one tiny danger signal in its final scene. During the days just before the disclosure of the plan, the President did show what he had ready to a few of the inner circle. One of them was Tom Corcoran, who was distinctly upset by it. It was not so much the court packing that he and Bill Cohen disliked about it. It was the indirect approach, the highly sophistic reasoning of the message and the message's implied general condemnation of old age. It was too late for the pair to do anything but go along or get out, so they went along.

Like its prologue, the first act of the drama of the court bill was played behind closed doors, chiefly in the President's Whiter House office. Just across the hall, in the White House Cabinet room, took place the first scene of Act II, one of the most astonishing in the history of the United States. On the afternoon of February fourth, the President communicated with Joe Robinson and Speaker of the House William B. Bankhead. He told them rather mysteriously that there would be an important announcement at the Cabinet meeting the next morning, and asked them to bring House Majority Leader Sam Rayburn, of Texas, and the chairmen of the two judiciary committees, Hatton Sumners and Sen. Henry Fountain Ashurst, of Arizona, along with them. Next morning, accordingly, the Cabinet and congressional leaders assembled promptly. Some little time before the President was ready they were all in the long, low-ceilinged room, some of them seated at the big Cabinet table, waiting and chatting, some of them walking listlessly up and down or gazing out the windows into the wintry White House garden, wondering what was in store. Only Secretary of the Treasury Morgenthau was absent.

All, of those present, from Vice-President Garner down to Senator Ashurst, who had recently described court packing as the "prelude to tyranny," no one but Homer Cummings knew what was going to happen. Cummings sat a little apart, twirling his pince-nez in his fingers, wearing a slightly self-important air. Shortly before the President came in from his office, the wanderers and the window gazers joined the others at the table. The whole leadership of the Democratic Party, the whole official directorate of the nation's business was there, waiting for their marching orders from the President.

He came in hurriedly, followed by a secretary with a sheaf of papers - the same mimeographed copies of the President's message, the Attorney General's letter and the court bill were later to be generally distributed. The secretary strewed the papers up and down the Cabinet table. The President gave everyone a genial "good morning." The others at the table picked up the documents, but their rapid glances at the first page or so of the message told them nothing. The President opened the meeting at once.

He had very little time, he said, because he was due at his press conference in less than half an hour. He announced his purpose to humble the court and explained what the papers were. Then he read a few snatches of the message, briefly amplifying on the printed words. No one spoke. Joe Robinson, obviously disturbed, flushed mahogany and stared down at the table top, as though his fate had been written in the wood and he was trying to decipher it. Of the Cabinet members, only Homer Cummings, still twiddling his eyeglasses, seemed unconcerned. The others did their best to keep their astonishment out of their faces, but it was poor at best. Hatton Sumner watched the President alertly from under his bushy eyebrows. He was making a momentous decision. Henry Ashurst, who was cast in a part in the play like Malvolio's and Mercutio's rolled into one, sat straight up in his seat with his head tilted back staring up at the ceiling. The President did not ask for comments.

It was all over in a very few minutes. The President broke off as hastily as he had begun, saying that he was sorry he had to leave, but the press was waiting. He said they would know about it, anyway, in a couple of hours, since he was sending the message to Capitol Hill at noon. He evidently feared that some newspapers would get wind of what was up before he personally announced it, for his final injunction to those present was to say no more about the matter, and to leave the papers on the table. Then he left the room for the most jubilant press conference he ever had.

The meeting broke up wordlessly, and the Cabinet members and congressional leaders went out to their cars, pushing their way through the crowd of newspapermen in the front hall. The congressional leaders set off for the Hill together in two motors. After they had left the White House, after they had turned down past the Treasury, Hatton Sumners spoke to the men with him.

"Boys," he said, "here's where I cash in my chips."

It was the first announcement of opposition to the plan, and it was to play a major factor in the first important event of the actual struggle. Sumner's decision, so quickly arived at, so stubbornly held to, bulked largest in the final White House determination to let the Senate deal with the plan before the House. That came a little later, however, after several days in which Washington seemed to be running around in circles, bellowing incomprehensibly to itself.

The first reaction to the plan was utter astonishment. The second, in so many people that it took the President completely by surprise, was violent opposition. Even old friends, men who had always been counted fervent New Dealers, joined the opposition's ranks. There was one whose defection, though it was never made public, really hurt the President. That man was Felix Frankfurter, doyen of the brain trust, whose good opinion the President would probably have preferred above all others. Frankfurter not only disapproved of the court bill; he told the President so in clear terms, placing his chief emphasis on two points - the essential impropriety of court packing and the cruel injury which the age pretext did to the earliest New Dealer of them all, 84 year old Justice Brandeis. Frankfurter's second point it was, too, which alienated a number of the New Deal camp followers, the earnest young men in Washington whose common ambition and most deeply felt experience was to sit at the feet of the great Justice. For a time the circle round the President almost hoped that Brandeis would help matters, by putting it about that he did not mind, but actually he hated the bill, along with Cardozo, Stone and all the other members of the court, and he let his friends know how he felt.

There was no time, however, to worry about old friends' opinions. The Administration machine had to go into action, and quickly, too, for the fountains of opposition oratory had already been touched off and the letters from constituents, 9 to 1 against the plan, were pouring in on a frightened Congress. On the House side, the chief White House lobbyist on the Hill, Under Secretary of the Interior Charles West, was the Administration's spearhead, and Joseph B. Keenan, the assistant to the Attorney General, was virtually detached from the Justice Department to handle the Senate with Tom Corcoran. Within a few days both sides were counting noses. The Administration made its first unpleasant discovery. Chiefly because of Hatton Sumners' strong stand, there was a majority of five against the bill in the House Judiciary Committee.

This state of affairs in the usually servile House presented a problem which needed to be dealt with quickly and inconspicuously. An unfavorable majority in the committee meant that the House could act on the plan only after a public display of Administration strong-arming. Either a petition of 218 members to discharge the committee, or a suspension of the House rules by a two-thirds majority was necessary. The House leaders, Speaker Bankhead and Sam Rayburn, energetically opposed both moves. They could, they argued, dragoon the bill through the House, but they judged that it would leave the House sore and angry, and all the more likely to rebel, once the bill came back in revised form from the Senate.

Bankhead and Rayburn converted West, and the three of them tackled the White House. They had uphill work, for the President was used to making a grand public showing of his almost dictatorial power in the House before sending controversial measures to the more independent Senate. Keenan and Tom Corcoran were both anxious to follow the usual procedure, and James Roosevelt, who had just joined the White House inner circle as a member of the secretariat, was on the fence. The argument was protracted, but in the end Bankhead, Rayburn and West won. A White House command that his committee prepare to deal with the bill rather promptly interrupted Senator Ashurst's lucubrations on the beauties of inconsistency.

The decision to open the ball in the Senate was announced on February 19th. By that time the situation had clarified temporarily. In the House, a poll conducted by West and Rep. Fred Vinson, of Kentucky, revealed that the Administration had a majority of 100, which the more extreme forms of Administration pressure might well bring up to two-thirds. In the Senate, 29 men had already publicly committed themselves to opposition to the plan, but Joe Robinson reported that the Administration had 54 sure votes. There was one dreadful moment when it seemed as if Sen. George W. Norris, of Nebraska, the beloved liberal veteran, might join the antis, for, although he wanted to humble the court, he had a deep distaste for the packing method chosen by the President. He was persuaded by the President in a personal interview. After that, while the opposition had grounds for faint hope, the Administration believed it could be extremely confident. White House optimism ran so high that members of the inner circle, like young James Roosevelt, were giving it out that they really wanted to take their time with the fight. Time was on their side, they said, and every week must bring them nearer to the thumping endorsement from Congress they thought desirable. When the party wheel horses, led by Vice-President Garner, suggested a compromise in the interests of Democratic harmony, the President laughed so loudly that the subject was closed for a couple of months.

While the President laughed, the opposition had made two great gains, one negative, one positive. Only a day or so after February 5th, the three most powerful Republicans in the Senate, Minority Leader Charles L. McNary, of Oregon; Sen. William E. Borah, of Idaho, and Sen. Arthur H. Vandenberg, of Michigan, met quietly at the Capitol. The wise, urbane, cynical McNary put a momentous suggestion before the meeting. He argued that if Republicans lay low, if they avoided partisan expression like the plague, the Democrats would be greatly encouraged to fight amongst themselves. Borah and Vandenberg agreed, and each member of the trio promised to shut up his own Senate following. Then a small group of Republican senators was named to ride herd on John D.M. Hamilton, the national chairman, who had an almost irrepressible desire to see American again in a campaign against the court bill. Steps were also taken to persuade Gov. Alfred M. Landon to pass the court plan over with a solemn generality in a speech he was scheduled to make. But the toughest nut to crack was Ex-President Hoover. Immediately on the disclosure of the plan, he had issued a bitter statement, and Borah, Vandenberg and McNary knew that he was preparing a much longer and louder blast for the radio.

Over their cigars, in the late Pullman comfort of a Capitol office, the trio discussed the best approach to Hoover. As McNary and Borah had a lively awareness that the ex-President detested them both, Vandenberg was deputed to tackle him. Vandenberg did not dare to beard him unprepared. He called in Mike Sullivan, the columnist, a fishing crony of Hoover's. One afternoon, by prearrangement, Sullivan telephone Hoover in New York and warned him vaguely of what was coming. A few minutes after Sullivan had hung up, Vandenberg put through a call. Rather nervously he revealed the decision of the senators' meeting, and asked Hoover to join in the conspiracy of silence. Hoover was deeply suspicious.

"Who was at the meeting?" he asked. "Who is trying to muzzle me?"

Vandenberg told him. At the mere mention of Borah and McNary the ex-President exploded. For a good many minutes the log-distance wire sizzled with denunciations as strongly phrased and as strongly felt as any to which Mr. Hoover could have been provoked by the court plan. Then Vandenberg returned to the attack. His arguments were good, and Hoover was emotionally anxious to do everything he could to defeat the bill. Vandenberg won in the end. From that moment until the very last skirmish of the court fight, their conspiracy of silence was successfully maintained by the Republicans, and nothing so much annoyed the Administration strategists. Confronted for once by silent Republicans, the Administration leaders were deprived of the irritant they had relied on to give fervor and coherence to their own forces.

That was the opposition's negative gain. The positive took place at the Dodge Hotel. In its rather dark dining room near the Capitol, Tom Corcoran and Senator Wheeler, the old allies of the Holding Company Bill battle, took refuge one day from prying eyes. Corcoranopened the conversation, and Wheeler's understanding of his opening, vague as it had to be in such a delicate matter, was the Corcoran promised him he might nominate two or three of the new Justices, if he would go along on the court plan. Wheeler declined the honor. They argued about the bill for awhile. Then Corcoran pounded the table.

"It's going to pass," he said.

"I tell you it isn't going to pass," Wheeler answered. "And what's more, I'm going to fight it with everything I've got."

The discussion prolonged itself briefly. Corcoran warned Wheeler that he would regret his decision, and pleaded with him at least not to take a leading part. Finally he did get him to promise not to give out a statement on his position for a few days. The lunch broke up with a certain coldness between the two friends. Wheeler waited a day or so, then issued his statement on February 13th. Before it was known downtown that the statement was in the hands of the reporters, Charlie Michelson, the great Democratic ghost writer and strategist, telephoned Wheeler. The President wanted his old friend Burt to dine at the White House that night, said Michelson. Would Wheeler come? Wheeler told Michelson that the President had better "save the plate for someone who persuaded more easily," and the invitation was not pressed. Thus it was that the opposition acquired its leader, a man whose record of untiring fighting on the liberal side and against the entrenched interests of the country made it utterly impossible to impute reactionary motives to him.

The effect of Wheeler's decision was felt at once. The White House had relied on young Bob La Follette to round up the independent left-wing votes of the Northwest. Wheeler beat him to it. Senators Nye and Frazier, of North Dakota, joined Wheeler as soon as he talked with them, and Senator Henrik Shipstead, the Minnesota Farmer-Laborite, was another, later Wheeler recruit. The opposition well understood the tremendous gain they had made in Wheeler. At a dinner for anti-court-plan Democrats given at the house of Millard E. Tydings, of Maryland, Wheeler was officially recognized as leader of the group. (pp. 96-97)

A rough organization was also put together. Its central element was a steering committee, whose outstanding members were Senators Van Nuys, of Indiana; Burke, of Nebraska; Byrd, of Virginia; George, of Georgia; Bailey, of North Carolina; Clark, of Missouri;, Connally, of Texas; Tydings and Wheeler. Gerry was chosen to act as whip, and a remarkable system of intramural lobbying was set in motion.

Day after day, the active Democrats of the opposition camped on the trails of their close friends in the Senate, trying always to get commitments from them. Each day any news of any man's state of mind which an opposition senator picked up was passed on to Senator Gerry, and he prepared weekly lists of the Senate, showing the progress of the fight.

Every day or so the steering committee of Democratic oppositionists met secretly, sometimes in a senator's office, sometimes in a convenient committee room, sometimes in one of the dingy little hideaways in the Capitol Building to which Senator Clark and one or two others has keys. The meeting calls were sent out and other committee duties were performed by a regular secretary, Ben Stern, who was drafted from his everyday job as secretary to Senator Van Nuys. Liaison with the Republicans was constantly maintained, chiefly through the close working partnership between Senator Wheeler and Senator Borah, who was, after Wheeler, the most important figure in the opposition. It was a beautifully designed, smoothly running machine, but its existence did nothing to shake the President's confidence.

In retrospect, the President's attitude seems incredible, but at the time it was seemingly justified. His lieutenants had promised him 54 votes in the Senate and a handsome majority in the House, and if these assurances had not been enough, there was the election to remember. The election was always in the President's mind. Quite understandably, the President thought that if enough members of Congress did not realize it was good politics to follow so triumphant a leader, they could either be frightened or persuaded into line. He place a particular reliance, moreover, on his own personality. He had an idea that the Senate was like a nervous horse, needing only a little gentling to make it obedient, and so his first step was to start interviewing the doubtful, one after another, alone or in groups.

In view of his state of mind, it's easy to see why the President hoped so much from the interviews, but they were distinctly disheartening. He asked for no commitments, but he rather hoped to get some. He didn't get any, and in lieu of a commitment, he received, from one senator at least, a very solemn warning. The senator was a close White House friend, and he was well aware of a rather special feature in the President's character - his awareness of himself as a prominent personage in the history books of the future. The senator began by criticizing the court plan and predicting trouble for it in Congress. The President pooh-poohed his criticisms, laughed at his fears and reminded him of the vote on November 3rd. After such a victory he could not be beaten, argued the President. The senator rose and walked to the door. At the doorway, he turned.

"I'm not only thinking of the court plan and its effect on the fundamentals of out Government," he said with deep seriousness. "I'm thinking of Franklin D. Roosevelt. I don't want history to record that at the height of his career, Franklin D. Roosevelt suffered a bitter defeat at the hands of Congress."

Usually when a friend gets to the home-truth stage, the President has a way of laughing the matter off. He did so time and again during the court bill fight, but on this occasion he neither tossed his head back with a smile, nor looked out the window as though uninterested, nor used any of his other mannerisms indicating disagreement or displeasure. Instead he flushed, whether from annoyance or an inner doubt the senator never knew, and looked straight ahead of him with a fixed gaze.

There was another resource which the President relied on - his golden radio voice. As the opposition strengthened, the President grew more anxious to enter the fight, and soon he was working on two speeches, with Tom Corcoran helping him. The first, with its plea for party loyalty, was made at the Democratic Victory Dinner on March 4th. The second, delivered five days later, was the fireside chat in which the President asked the nation to trust him, to have faith in him and his motives. It was around the second speech that an angry controversy raged for several days in the White House inner circle. Several advisers, including Charles West, were anxious to have the President announce his willingness to accept a constitutional amendment as a substitute for his bill, if and when the opposition could agree on one and guarantee his getting it. Corcoran and Keenan thought the time unripe for such a gesture. They argued that the fight was going their way, that it was time to drive ahead, and they convinced the President. West and the others, on the other hand, held that after such a gesture, the opposition would immediately fall to fighting among themselves, for their was hardly an anti-court-plan senator who did not have his own personal amendment. Nine chances in ten they were right, and in the light of hindsight, the President's failure to make such an easy gesture appears to be one of the most serious tactical mistakes in the whole history of the Administration's rather inept court-plan strategy.

Shortly after the President fired his two great oratorical guns, the opposition began to prepare their most shrewdly placed mine under the bill - Chief Justice Hughes' letter blowing to bits the argument that new justices were needed to keep the court up with its work Senate Judiciary Committee hearings began on March 10th, with the committee recorded as seven for the plan, seven against and four - Hatch, of New Mexico; O'Mahoney, of Wyoming; McCarran, of Nevada; and McGill, of Kansas - still undecided. Presentation of the Administration case, managed by Corcoran and Keenan, came first. When the last Administration witnesses were still waiting to take their stand, three senators, Wheeler; King, of Utah, the Judiciary Committee's senior Democrat; and Austin, of Vermont, representing the Republicans, paid a call on Chief Justice Hughes. Their purpose was to urge him to appear against the plan. It has never been known heretofore, but the Chief Justice was willing and even eager to testify. He said, however, he must consult his brothers of the court. A day or so later, Senator Wheeler received word from Hughes that he could not appear. (pp. 97-98)

Then, on the afternoon of Saturday, March 2oth, Wheeler visited the Chief Justice in his chambers. He told him that two days later, the Monday following, he was to open the opposition case. He begged for a letter to read before the committee. He told the Chief Justice that the least he could do was to write such a letter, refuting the charge that the court was too old and too small to get through its won business properly. At first Hughes objected, but finally Wheeler brought him around. The letter was promised. Then the Chief Justice asked for more time. He would need until Tuesday, he said. His secretary and his clerks were gone, the week end had begun, and it would be difficult to get the letter ready by Monday. To these arguments Wheelr answered with a better one - that the letter ought to be the very first item in the opposition case. Hughes consented to haste and routed out his secretary. The document was composed in the last hours of Saturday afternoon. On Sunday, with some difficulty, Justices Brandeis and Van Devanter were found and shown what Hughes had written. They approved it, and it was recopied, with the addition of a last paragraph indicating their approval. On Sunday evening Wheeler receive the letter, and next morning he read it to the Judiciary Committee. The Administration's first line of argument, about procedural troubles, had to be abandoned at once.

A much worse blow was in preparation, a blow for which, because they believe he really delivered it, Chief Justice Hughes is more bitterly hated by the New Dealers than any other man in public life. The blow was simply the Supreme Court's complete change of front.

All through the winter, on every decision Monday, the court's fantastic marble-and-velvet chamber, like the interior of a classical icebox decorated for some surrealist reason by an insane upholsterer, had been crowded with spectators. Monday followed Monday, yet no decision of importance was handed down. People were beginning to accuse the court of being on sit-down strike. The Administration was not disturbed by the long wait, for every member of the inner circle was sure that eventually the court would have to find against the New Deal in the great cases before it, and thus hurry onward to its own destruction. The waiting put the opposition, on the other hand, on tenterhooks, for every member hoped that the court could avoid committing suicide, but none of them could see how.

Then on March 29th, just a week after the Hughes letter, came another decision Monday. Once again the court chamber was crowded when Chief Justice Hughes marched in at the head of his little procession.

Once again it seemed for a second that nothing would happen, and then the incredible did happen. The court upheld the Railway Labor Act; it upheld the revised Frazier Lemke Farm Mortgage Moratorium Law, both with unanimous opinions. More important still, in a 5-4 decision, it completely reversed its stand of a few months before on the New York Minimum Wage Law, and upheld a similar Washington statute. Justice Roberts had moved over to the other side of the court. The liberals were in the ascendancy, and at last there appeared to be a good chance that the President would get Assistant Attorney General Robert H. Jackson had told the Judiciary Committee was all he wanted from the court bill - the interpretation of the laws by Brandeis, Stone and Cardozo.

When the court upheld the Wagner Labor Relations Act two weeks later, it clinched the matter. At his press conference the same afternoon, the President smiled and said it had been "a pretty good day for us," but it was the death blow to his court plan. On that Monday, April 12th, the tide of battle turned once and for all. The Administration's second and most powerful line of argument - that the court stood in the way of progress - had to be abandoned. The President was left to fight on with few but mercenary troops and personal admirers on his side. Thenceforward the Administration was engaged in a long, tense, violent rear-guard action - although the President did not realize it for some time to come. (pg. 98)

Comments: Why did the Supreme Court start ruling in favor of New Deal laws that the justices knew were unconstitutional? If they didn't, what would have happened to the court? The court bill would have passed and the court would have been packed, thus destroying its independence. But ruling in favor of unconstitutional laws to prevent the court packing also destroyed the independence of the court. I suppose it was a no-win situation. The Congress had surrendered so much power to the Executive branch already that it was only a matter of time before the independence of the judiciary was destroyed. Fighting against the President's court bill was futile in preventing this. How could the President have lost the court fight when he got what he wanted anyway? Two years prior, in 1935, the court unanimously ruled that the Constitution grants the Executive branch no legislative powers. Now it rules unanimously that it does, but doesn't say it in the opinions. The court now rules in favor of laws without addressing the serious constitutional questions. In other words, we will analyze the law and ignore the fact it was written in the Executive branch. This has been common practice ever since then. As I've already pointed out, almost all, if not all, federal law since 1933 is Executive legislation rubber stamped by Congress, but the courts simply create the fiction that these laws are constitutional when people challenge them in court.

Back to Old Weekly Press Table of Contents