FDR V. THE CONSTITUTION

How a high-stakes 1937 power struggle transformed America’s judiciary and government.

In the mold of Anthony Lewis, National Journal correspondent Solomon (The Washington Century, 2004, etc.) conveys the excitement and significance of a core battle over the U.S. Constitution. While he gives little attention to the structure and mechanics of national government, he neatly captures the political dynamic of interacting personalities. In the depth of the Great Depression, the Supreme Court remained tethered to the laissez faire ideology that had fueled the boom times of the ’20s. However, the Court was deeply divided. Four staunch conservatives, dubbed the Four Horsemen of the Apocalypse, faced three consistent liberals; Chief Justice Charles Evans Hughes and unpredictable Owen Roberts held the swing votes. In 1933, Roberts sided with the liberals to end an era of judicial activism in which the Court had aggressively and inhumanely protected property rights. In 1935, he reversed course and joined the Four Horsemen to overturn the Railroad Retirement Act. Weeks later, the Court threw out the National Industrial Recovery Act, a centerpiece of New Deal legislation. Roberts continued to combine with the conservative judges in 1936, bringing the New Deal to its knees. Following a landslide reelection that year, President Roosevelt and Attorney General Homer Cummings plotted revenge. FDR announced a plan in 1937 to expand the Supreme Court to possibly 15 judges, and most New Dealers rejoiced. But Montana Sen. Burton K. Wheeler, a previous Roosevelt loyalist, stood firm against this undemocratic plan to “pack” the Supreme Court with liberals. At a crucial moment of political impasse, Roberts switched sides and swung the Court behind the New Deal. Roosevelt’s main rationale for reform was removed, and the nine-man bench was preserved. Having failed to dominate the judicial branch, Roosevelt was similarly unsuccessful in removing conservative Democrats from the senate in 1938. These twin defeats perhaps knocked some moderation into the president. Certainly, the 1937 constitutional fight revolutionized the federal judiciary, which entered the ’40s emboldened and independent.

An engrossing story that hints at the fragility as much as the triumph of democracy.