Sunday, July 25, 2010

By Reviewed by John French

"Supreme Power"

By Jeff Shesol

W.W. Norton & Company, $27.95

Many years ago I served as a law clerk for Justice Felix Frankfurter at the United States Supreme Court, so I am familiar with the place. Still, "Supreme Power" by Jeff Shesol taught me, first, that the Supreme Court of the 1930s, which Shesol describes, and the Supreme Court of the 1960s, where I worked, were very different operations; and, second, that the more things at the court change, the more they remain the same.

"Supreme Power" focuses on what has come to be known as President Franklin Roosevelt's "court packing" plan. It was the desperately bad time of the Great Depression and Roosevelt's New Deal administration was producing sweeping emergency legislation as rapidly as possible. Just as rapidly, people and businesses adversely affected by the legislation were suing to have it declared unconstitutional. When these cases arrived at the Supreme Court, the plaintiffs usually won and the government usually lost.

Most Americans thought most New Deal legislation was vital to national economic recovery and they were distraught when the Supreme Court struck it down. The legislative process had been so hurried that even Roosevelt and his advisers knew that some of their bills might be constitutionally shaky but none anticipated the court's sweeping rejection of the fundamental principles upon which their legislative program rested.

To illustrate: Much of the federal government's power to regulate business derives from the fact that it involves interstate commerce. This is true of most manufactured products and many agricultural commodities. But when the Roosevelt administration attempted to regulate wages and hours for coal miners or to prevent the sale of contaminated poultry, the Supreme Court struck down these laws because, it said, the mining of coal and the sale of chickens are "local." Never mind that the coal and chickens were transported across state lines before they reached their end users.

Something had to be done, but what? A constitutional amendment of some sort might curb the court's power to strike down legislation but that process took too long and the outcome was uncertain. Legislation limiting the court's jurisdiction was considered and rejected. (Shesol does not explain the reasoning behind the decision in any detail and, to me, it is mystifying. The Congress clearly has the power to alter the court's jurisdiction by statute and that seems the simplest approach.)

Ultimately, Roosevelt and his advisers decided on a plan to expand - or "pack" - the court; specifically to empower the president and Congress to appoint up to six new Supreme Court justices when sitting justices reached the age of 70 but failed to retire.

Roose-velt's attorney general and many other bright, able members of his administration worked diligently to craft and pass this plan, but to no avail. Everything went wrong from the start.

First, Roosevelt, the master politician who usually conferred broadly to cultivate consensus but was perhaps emboldened by his stunning 1936 electoral victory, told no member of Congress what he had in mind until the day he sent his proposed "court reform" bill to Capitol Hill. Senators, representatives and even Roosevelt's own vice president, John Nance Garner, were deeply offended. Garner, a much-revered former speaker of the House, was even spotted at the back of the House floor, waving the bill in the air while holding his nose.

Many conservative southern members of Congress had gone along with the New Deal even though they believed it went too far too fast. They were ready to dig in their heels. A few also bore old grudges. Others feared that a president who could control, or at least greatly influence, the Supreme Court could assume dictatorial powers. All of these coalesced to fight the bill.

Legislative foes were ably abetted by a nationwide campaign from conservative organizations and business interests, including most of the country's large newspapers, which ceaselessly editorialized against the plan.

The administration hurt its cause by calling the legislation "court reform" and resting it on the need to relieve the burden of overworked judges. Unfortunately, it was clear both anecdotally and statistically that none of the federal courts, including the Supreme Court, was behind in its work.

Suddenly, in the midst of the debate, one historically conservative justice and one swing justice began to vote consistently for the government in major constitutional cases. Even many of Roosevelt's allies began to wonder if his "court-packing" legislation was needed, as the mere threat of it had apparently achieved the desired result.

To make matters worse for Roosevelt, Chief Justice Hughes, a Zeus-like figure, took the remarkable step of providing the principal opposition senator with a letter opposing the plan. Further, in an appalling misstatement, he claimed that his views represented the views of all of the justices even though he had consulted only two of them. (No such thing would have happened on the court for which I worked.)

Finally, the inevitable happened. Immediately following the humiliating defeat of the bill, one of the conservative justices announced his retirement. Roosevelt appointed a passionate New Dealer, Senator Hugo Black of Alabama, to succeed him and, although many senators despised Black, he was easily confirmed as a matter of "senatorial courtesy." By 1940, Roosevelt had filled four more vacancies on the court. The conservative hold was broken and their stultifying precedents passed out of the realm of law into history.

But, as I indicated at the outset, some things do not change that much. As The New York Times recently explained ("The Republicans and the Constitution," July 20), conservatives in Congress and elsewhere still pine for the days when "interstate commerce" was narrowly defined.

Also, in Roosevelt's day, the court often split 5-4, with Justice Owen Roberts as the swing vote. In my day as a law clerk, the court often split 5-4, with Justice Potter Stewart being the deciding vote. Today, the court often splits 5-4, with Justice Anthony Kennedy as the key.

To paraphrase Shakespeare, it ever was and ever will be thus.