Why FDR’s court-packing plan “failed”

Among the most devastating long-term impacts that Donald Trump’s wretched presidency will have on the United States is its entrenchment of movement conservatism on the Supreme Court. That has me and others thinking about how a future progressive president and Congress can overcome a clash with a jerry-rigged conservative Court.

Congress has the power to rebalance the Court by adding new justices. That power was most infamously invoked by Franklin Roosevelt in 1937 in his doomed “court-packing” plan. Any effort to reinvigorate this vital legislative check on the Court’s power must learn from the missteps of Roosevelt’s effort.

The basic narrative of the rise and fall of Roosevelt’s court-packing plan comes from Jeff Shesol’s excellent Supreme Power: Franklin Roosevelt vs. the Supreme Court. Throughout his first term in office, Roosevelt watched helplessly as the Supreme Court invalidated massive cornerstones of his Great Depression relief agenda. A conservative majority deeply committed to protecting the freedom of contract and resistant to government efforts to regulate the economy struck down the National Industrial Recovery Act, the Agricultural Adjustment Act, regulations of the coal industry, and state minimum wage laws.

In February 1937, Roosevelt proposed legislation that would increase the size of the Court, allowing him to appoint one new justice for every current justice that failed to retire before reaching age 70. This would have allowed him to quickly appoint as many as six new justices.

On the heels of his landslide reelection, Roosevelt was politically dominant in early 1937. But by July, his Court reform plan was dead.

What happened? There are lessons to be learned from Roosevelt’s surprising legislative defeat:

Don’t spring Court reform on the public. Even though Roosevelt’s frustration with the Supreme Court was clear by the end of his first term, he didn’t campaign on adding seats to the Court. He feared that this would give the Republicans an issue to campaign on in opposition. Instead, he waited until after reelection to propose his Court plan. This caught the public off guard, and left them divided and confused. It also deprived the Court plan of a claim to a popular mandate, sapping it of political force and legitimacy in Congress.

Keep a variety of Court reform options on the table. Many different ideas for dealing with the conservative Court had percolated in Congress for years. In 1924, Progressive Party presidential candidate Sen. Robert LaFollette ran on a proposed constitutional amendment allowing Congress to overrule bad Supreme Court decisions. Others proposed constitutional amendments requiring a super-majority of the Supreme Court to overturn an act of Congress. Still others proposed to limit the Court’s jurisdiction or to strip its power of judicial review of acts of Congress entirely.

Rather than work with Congress to build on one of these preexisting fixes, Roosevelt imposed his own plan on legislators. And Roosevelt kept Congress entirely in the dark while he developed his Court plan. This backfired badly. There was no buy-in or investment from congressional leaders, leaving ample space for a rebellion to foment.

Level with the public about the real reasons we need Court reform. It was clear to everyone that Roosevelt’s clash with the Court was a philosophical one: an ideological Supreme Court was handcuffing Roosevelt’s ability to fix the economy. Yet the president opted to hide the true justification for his Court plan in his public messaging. Instead, he chose to publicly justify the Court plan on technocratic administrative grounds, arguing that the elderly Court could not keep up with its caseload, and needed more justices.

This too-cute obfuscation was a mistake. As Warner Gardner, the young administration lawyer tasked with writing the Court reform bill, observed, “ a constitutional confrontation that men could fight for” became a “trick,” an “effort to market deceit” thanks to FDR’s spurious justification. Solicitor General Robert Jackson also urged Roosevelt to emphasize the “fighting issues” of the Court’s ideological and extreme reasoning. Eventually, Roosevelt himself admitted that it had been a mistake not to lead with what he called the Court’s “real mischief.”

Court reform triggered underlying racial fears among Southern Democrats. Congressional Democrats held dominant majorities during Roosevelt’s presidency. But these majorities depended on the party’s wing of powerful Southern segregationists. Southern Democrats feared that a Court packed by Roosevelt’s justices would vote to end segregation.

While Western and Midwestern senators like Burton Wheeler led opposition to the Court plan, the Southerners were crucial to sustaining opposition. Opposition leaders planned to attach an anti-lynching poison pill amendment to court-packing bill to get Southern Democrats to join filibuster. This was a reminder to Southerners that a Roosevelt court could someday uphold a federal anti-lynching law.

All of this made the court-packing fight a “struggle for survival” for segregationists, and a “last stand for the Confederacy,” Shesol writes. The court-packing fight marked the beginning of the partisan realignment that gradually occurred over the ensuing four decades, as conservative Southern Democrats first split with the Democratic Party and eventually fully migrated to the Republican Party.

Because court-packing failed in 1937, it would be nearly another two decades before the Supreme Court began challenging segregation. In a parallel universe where Roosevelt succeeded, however, segregation could have been taken down much earlier.

Roosevelt’s court-packing plan actually succeeded. The court-packing bill ultimately had the air sucked out of it thanks to external events – and capitulations. Most important was the famous “switch in time” by swing justice Owen Roberts, who joined Chief Justice Charles Evan Hughes in siding with the Court’s three liberals to sustain Roosevelt’s New Deal legislation. First, in late March 1939, that configuration banded together to uphold state minimum wage legislation in West Coast Hotel v. Parrish, an about-face from just a year earlier when the Court struck down a similar law.

Next, in April, the same justices upheld the National Labor Relations Act in NLRB v. Jones & Laughlin Steel. The next month, the Court upheld FDR’s Social Security Act in a pair of cases. Those decisions have widely been seen as a strategic surrender by Roberts and Hughes, who “evolved” their views on economic legislation to stave off FDR’s attempt to overpower the Court.

The final nail in Court reform’s coffin came when Justice William Van Devanter, one of the Court’s conservatives, announced his retirement in June. This gave FDR his first chance to appoint a new justice since taking office.

Ultimately, pressure from FDR’s court-packing plan succeeded in failure. FDR achieved his desired ends despite his legislation crashing and burning. The court-packing plan sparked a constitutional revolution, where the Court rapidly reconsidered old dogma on the constitutionality of economic regulation. And thanks to a series of ensuing retirements, by 1940, Roosevelt had appointed five of the Court’s nine justices.

Roosevelt saw court-packing as necessary to make government work and to stave off tyranny. FDR warned that in 1937, “To stand still was to invite disaster.” The Great Depression had devastated millions of people. Tyrannical governments were taking hold abroad. Unless democracy in the United States could be made to work for the “forgotten man at the bottom,” he said, there would be a social and economic collapse, which could set the stage for a tyrant here, too. Government dysfunction caused by a conservative Supreme Court that refused to get with the times was not just a political foe, but an existential threat to American democracy.

We now see the type of demagogue that can win power when voters feel like government isn’t working for them. Progressives and institutionalists alike who wish to avoid another Trump must be sure that a Supreme Court unduly packed with conservatives does not stand in the way of making government responsive to the needs of the people and the crises of our time, whatever it takes.

 

How economic rights almost became part of the Constitution

President Franklin D. Roosevelt’s Second Bill of Rights has come back into vogue as a lodestar for the modern progressive imagination. And while FDR’s vision of robust social and economic rights has inspired progressive policymakers for generations, many have forgotten just how close the U.S. Supreme Court came to incorporating many of those rights into our existing Constitution.

Roosevelt proposed a Second Bill of Rights during his State of the Union address in 1944. He said that the country had come to recognize that economic security is a prerequisite for true individual freedom; that certain inalienable economic rights were necessary to buttress the inalienable political rights protected by the nation’s Founders.

FDR 2nd Bill

Roosevelt’s Second Bill of Rights included:

  • The right to a useful and remunerative job.
  • The right to earn enough to afford food, clothing, and recreation.
  • The right to be free from unfair competition and monopolization.
  • The right to housing.
  • The right to health care.
  • The right to security from the economic fears of old age, sickness, accident, and unemployment.
  • The right to a good education.

While these rights have long served as normative aspirations for various progressive movements, they never have been adopted into the Constitution to sit along side the actual Bill of Rights. Nor have they been otherwise transformed into enforceable legal rights, for the most part.

But there was a time when much of the Second Bill of Rights looked like it was on track to become part of our constitutional order. As Cass Sunstein explains in his book on the Second Bill, there was a brief period in the 1960s when the Supreme Court came very close to embracing much of FDR’s constitutional vision.

Much of the credit goes to Justice Robert Jackson, a close adviser to the New Deal before he was named to the Supreme Court. In the 1941 case Edwards v. California, a plaintiff challenged the constitutionality of a California law that criminalized bringing an indigent non-resident person into the state of California. The Supreme Court struck down the law as a barrier to interstate commerce.

In a concurring opinion, Justice Jackson argued that the law actually violated Edwards’ Fourteenth Amendment rights because it discriminated on the basis of his wealth status. “We should say now, and in no uncertain terms, that a man’s mere property status, without more, cannot be used by a state to test, qualify, or limit his rights as a citizen of the United States,” Jackson wrote. “The mere state of being without funds is a neutral fact—constitutionally an irrelevance, like race, creed, or color.”

Jackson considered laws that classify people by income level to be comparable to those that classify based on race, religion, or ethnicity. That’s a big deal, because those latter distinctions receive the highest degree of protection under the Constitution – what’s known as “strict scrutiny.” Laws that discriminate on those bases are almost invariably struck down by courts.

Jackson’s opinion was not the Court’s majority opinion, and his concurrence remained siloed for years. Until 1956, when a majority of the Court began to faintly echo Jackson’s reasoning in the criminal law context. In Griffin v. Illinois, the Court held that the Fourteenth Amendment’s Equal Protection Clause requires states to provide trial transcripts at no cost to indigent criminal defendants appealing their convictions. “In criminal trials a State can no more discriminate on account of poverty than on account of religion, race, or color,” the Court held.

Then, in the landmark 1963 case Gideon v. Wainwright, the Warren Court held that the Constitution requires the states to pay for legal assistance for indigent criminal defendants. That is, the Court held that the Constitution contains a positive right requiring the government to provide an affirmative benefit to people too poor to obtain it on their own.

The Court built on Gideon to expand the state’s affirmative obligation to the poor twice more. In Douglas v. California, the Court held that the Constitution also requires the state to provide defense counsel to indigent defendants appealing a criminal conviction. And in Boddie v. Connecticut, the Court held that the state has a similar affirmative obligation to ensure poor people have legal counsel in divorce proceedings.

In 1966, the Court held that discrimination against the poor was unconstitutional when it infringed upon the fundamental right to vote. In Harper v. Virginia Board of Elections, the Court struck down a $1.50 poll tax. The Court held that “Lines drawn on the basis of wealth or property, like those of race, are traditionally disfavored.” It cited Justice Jackson’s concurring opinion in Edwards, along with the Court’s criminal justice opinion in Griffin. “Notions of what constitutes equal treatment for purposes of the Equal Protection Clause,” the Court observed, “do change.”

The Court also seemed to find that the Constitution provides some level of protection from destitution. In Shapiro v. Thompson, Sunstein writes, “the Court seemed to come close to saying that the Constitution conferred a right to welfare benefits.” That case involved a California law that restricted welfare benefits from those who had lived in the state for less than one year.

The Court struck down the law on the grounds that it penalized people exercising their constitutional right to travel. It penalized travelers by denying them “welfare aid upon which may depend the ability of the families to obtain the very means to subsist — food, shelter, and other necessities of life,” the Court wrote, in apparent recognition of welfare’s importance to sheer human survival.

For similar reasons, the Court invalidated an Arizona law that denied new arrivals publicly funded non-emergency medical care until they had lived in the county for a full year. In Memorial Hospital v. Maricopa County, the Court applied its precedent in Shapiro and held that it is “clear that medical care is as much ‘a basic necessity of life’ to an indigent as welfare assistance.”

The high-water mark of the Court’s constitutional protections for the poor came in Goldberg v. Kelly. In that case, the Court held that the poor had property rights to welfare benefits, and such benefits could not be withdrawn without a due process hearing. “From its founding,” the Court held, “the Nation’s basic commitment has been to foster the dignity and wellbeing of all persons within its borders. We have come to recognize that forces not within the control of the poor contribute to their poverty.”

The Court held that welfare benefits were essential for the poor to realize full citizenship and participation in their communities. “Public assistance . . . is not mere charity, but a means to ‘promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity,’” the Court said, tying the provision of welfare to the very preamble of the Constitution.

Goldberg was decided in 1970. Yet the budding constellation of constitutional rights for the poor was already about to roll back. In 1968, Richard Nixon edged out Hubert Humphrey by about 500,000 votes to win the presidency. As luck would have it, Nixon was able to appoint four new Supreme Court justices in just five and a half years in office.

That was enough to halt the momentum toward broader social and economic rights under the Constitution. In Lindsay v. Normet, for example, the new, more conservative Supreme Court rejected a constitutional challenge against Oregon’s state eviction law, ruling that the Constitution provided no guarantee of decent housing. “[T]he Constitution does not provide judicial remedies for every social and economic ill,” the Court held. “We are unable to perceive in that document any constitutional guarantee of access to dwellings of a particular quality[.]”

The decisive turning point came in the 1973 case San Antonio v. Rodriguez. There, the Court rejected a constitutional challenge to grave funding disparities in Texas’s school financing system, where per-pupil expenditures were significantly higher in wealthy districts than poorer districts. The Court rejected the argument that this system discriminated against the poor, and rejected the notion that education is a fundamental right under the Constitution.

The Court was troubled by the unstoppable implications of calling education a fundamental right. “How, for instance,” the Court asked, “is education to be distinguished from the significant personal interests in the basics of decent food and shelter?”

A different Court might have followed that train of logic to decide that, yes indeed, all of the above are constitutionally-protected rights. Anyone who is deprived an education, housing, food, or shelter has been denied full citizenship and equal protection under the law.

But the lesson here is that elections have consequences. Had Humphrey eked out a half million more votes in a few key states in 1968, we could be living under a very different set of constitutional interpretations today. “It is not too speculative to suggest,” Sunstein writes, “that if Humphrey had been elected, aspects of the second bill would have been a solid part of the constitutional landscape.”

A Humphrey-inflected Court could have pieced together a mosaic of decisions like Edwards, Shapiro, and Goldberg to recognize a right to the “basic necessities of life”—like healthcare, a non-poverty income, decent housing, and sustenance—flowing from the Constitution’s guarantees of citizenship and equal protection, and its commitment to “foster the dignity and wellbeing of all persons within its borders.” Those decisions had all the makings of building blocks for something much bigger.

Instead, that unfinished constitutional project has largely languished in a jurisprudential no-man’s-land under nearly half a century of conservative dominance on the Supreme Court. But not entirely. In the 1982 case Plyler v. Doe, Justice William Brennan cobbled together a Supreme Court majority to hold that undocumented immigrant children have a right to public education. And in 1996, Justice Ruth Bader Ginsburg wrote for the Court in M.L.B. v. S.L.J. holding that the Constitution prevents states from denying an appeal from an order terminating a parent’s custody rights to parents too poor to pay a court fee.

These decisions are still out there. They have been neglected, but not reversed. Progressives should pick them up to be resurrected for another day, perhaps far in the future, when the Court is more amenable to expanding the constitutional rights of the poor. After all, conservatives and libertarians have long been at work rehabilitating a long-abandoned line of cases that would do the opposite, enhancing the rights and power of the wealthy and corporations.

Absent a major act of political hardball, the project of incorporating FDR’s Second Bill of Rights into constitutional law will likely remain frozen in time for years, if not decades. But old theories of constitutional law never truly fade away. They hibernate, waiting for the moral spirit of the times to swing their way.

Hofstadter on FDR

I’ve been reading Richard Hofstadter’s classic The American Political Tradition and the Men Who Made It. His analysis of Franklin Roosevelt’s handling of the Great Depression is immensely valuable, both for its humanization of the modern progressive hero, and its lessons for progressives today.

Even though Roosevelt’s administration is remembered as a testament to countercyclical Keynesian spending, Roosevelt campaigned as a deficit scold even as the Depression worsened throughout 1932. According to Hofstadter, Roosevelt “called the Hoover administration ‘the greatest spending Administration in peace time in all our history.’” Roosevelt implored the country to “have the courage . . . to stop borrowing to meet continuing deficits.”

Roosevelt was also originally resistant to taking extraordinary measures to rehabilitate the country’s banking system. “In his first press conference,” Hofstadter writes, “he was asked if he favored federal insurance of bank deposits. He said that he did not.” Roosevelt did not want government on the hook for the losses of bad banks. Nonetheless, he soon signed into law the Federal Deposit Insurance Corporation for precisely this purpose—“a concession to a bloc of insistent Western Senators,” Hofstadter explains.

Roosevelt made a slew of conflicting promises to the country about how he would rescue the economy. As Hofstadter put it: “All Roosevelt’s promises—to restore purchasing power and mass employment and relieve the needy and aid the farmer and raise agricultural prices and balance the budget and lower the tariff and continue protection—added up to a very discouraging performance to those who hoped for a coherent liberal program.”

While admiring progressives look back in retrospect at Roosevelt’s economic rescue effort as a dedicated application of government ingenuity and Keynesian economics, his course was hardly deliberate. “The New Deal will never be understood by anyone who looks for a single thread of policy,” Hofstadter argues, calling Roosevelt’s eventual economic program a “series of improvisations.”

John Maynard Keynes himself met with Roosevelt in 1934. FDR was overwhelmed by what he called Keynes’ “rigmarole of figures.” And Keynes came away disheartened, remarking that he had “supposed the President was more literate, economically speaking.”

Hofstadter divides Roosevelt’s economic policy into two distinct ideological approaches. The first New Deal, enacted between 1933 and 1934, tried to spark a supply-side recovery by adopting “the retrogressive idea of recovery through scarcity,” Hofstadter writes. The key recovery efforts during these years were business-friendly initiatives to boost agricultural and business revenues. The Agricultural Adjustment Act, for instance, set farm quotas to withhold supply and boost agricultural prices. “[T]he policy seemed to have solved the paradox of hunger in the midst of plenty only by doing away with plenty,” Hofstadter laments.

The heart of Roosevelt’s initial economic program was the National Recovery Act, which allowed businesses to set price agreements and production quotas in exchange for wage increases and improved working conditions. This idea originated with the Chamber of Commerce. Still, Roosevelt called the NRA the “most important and far-reaching legislation ever enacted by the American Congress . . . a supreme effort to stabilize for all time the many factors which make for the prosperity of the nation.”

The NRA took a decidedly business-friendly approach to economic stimulus. “It is not unfair to say that in essence the NRA embodied the conception of many businessmen that recovery was to be sought through systematic monopolization, high prices, and low production,” Hofstadter writes. Yet it is far from clear that the NRA had a positive impact on the economic recovery—the economy’s best years came in the two years after the Supreme Court ruled the NRA unconstitutional.

Roosevelt’s first New Deal was conceived as a “true concert of interests,” as he put it on the campaign trail—a consensus approach to benefit business, farmers, and workers alike. “Although he had adopted many novel, perhaps risky expedients,” Hofstadter observed, “he had avoided vital disturbances to the interests.” Roosevelt refused calls to resolve the banking crisis by nationalization the country’s banks, for example, and instead relied on government to prop up the private banking system.

Roosevelt’s eventual populist shift was driven by venom from the right and pressure from the left. Conservatives and wealthy interests wielded vehement political opposition against Roosevelt. “His political struggle with the ‘economic royalists’ soon became intensely personal,” Hofstadter writes.

From the left, influential populist Louisiana Senator Huey Long was clamoring for a more radical economic program and making noise about challenging Roosevelt’s reelection in 1936. Roosevelt’s political operatives thought Long had enough political support to swing the election. Long was also advocating for a “Share Our Wealth” platform that would have capped annual incomes at $1 million to fund a $2,500 annual basic income; provided for an old-age pension and free kindergarten through college; and government-provided automobiles and washing machines for every family.

Roosevelt wished to do something “to steal Long’s thunder” during the latter half of his first term in the White House. “The result,” Hofstadter writes, “was a sharp and sudden turn toward the left, the beginning of the second New Deal.” Roosevelt latched on to the Wagner Act, which had been floating around Congress for some time, to create the National Labor Relations Board. And he even sought a drastic Long-style “wealth tax.” And of course, Roosevelt piggybacked on Long’s old-age pension idea to enact Social Security.

After winning reelection, Roosevelt executed an ill-advised and harmful pivot toward austerity in 1937. Believing the economy to be on better ground, government spending was cut, and the Federal Reserve raised interest rates. This mistake, Hofstadter writes, produced “a sharp downward trend [in the economy], which reached alarming dimensions in early 1938.”

Roosevelt eventually realized his mistake, and sought new government spending that spring, which Congress quickly approved. It was not until 1940, Hofstadter writes, that Roosevelt “finally accepted in theory what he had long been doing in fact, admitted the responsibility of government retrenchment for the recession, credited the revival of spending for the revival in business, and in general discussed the problem of the federal budget in Keynesian terms.”

By 1944, Roosevelt was speaking of a new “economic bill of rights” and guaranteed full employment within the confines of “our democratic system of private enterprise.” “With the economy operating at fall speed under war time conditions,” Hofstadter writes, “it was easy for him to forget the incompleteness of recovery under the New Deal and to refer proudly to the manner in which ‘we . . . fought our way out of the economic crisis.’”

Reading Hofstadter’s then-fresh history (published in 1948) of the Roosevelt administration holds wisdom from our own recent history. Hofstadter’s warts-and-all account of Roosevelt’s handling of Great Depression doesn’t look all that dissimilar from Barack Obama’s economic recovery efforts eighty years later. Obama too gravitated toward consensus reforms, opting for a stimulus package tilted toward tax cuts and money for the states. Obama too resisted calls for bank nationalization, promoting financial liquidity and stress tests instead. Obama favored stabilizing industry rather than bailing out individual homeowners.

Unlike Roosevelt, Obama did not enjoy a pliant Congress willing to cede economic deference to the White House and rubberstamp new recovery legislation. Roosevelt was able to experiment with a wide variety of programs with quick congressional approval—and was even able to course correct after his premature pivot to austerity.

Obama, on the other hand, never got a second bite at the apple for more stimulus because of a polarized Congress exhausted after one round of new government spending in 2009. Obama’s administration was too quick to pronounce economic triumph, seeing “green shoots” around every corner in 2009, with Treasury Security Timothy Geithner declaring “Welcome to the Recovery” in August 2010—years before most Americans felt anything resembling a return to economic normalcy. Obama too spoke of the need for Washington “belt-tightening” as early as April 2009, in the depths of the recession. Obama acceded elite Washington deficit scare mongering and pivoted toward austerity too early in 2011. When he tried to counteract the continuing sluggish economy by proposing a jobs bill in September, Congress never even considered it.

Which is to say that Obama was a fallible and imperfect progressive president—just like Roosevelt. Progressives routinely chastised Obama for falling short of hopes that he’d be the second coming of FDR. But as Jonathan Chait notes in Audacity, liberals have a penchant for perpetual disappointment and despair. Even in Roosevelt’s time, there was a contingent of the political left that incessantly criticized him for enacting policy that was too conservative.

Where Roosevelt differed from Obama was in the external leftward pressure he faced. Roosevelt faced real and imminent electoral pressure to move in a more progressive direction. For all the dismay with Obama from some progressives, the left never mobilized to become a political counterforce.

Since Obama’s administration, the American left has begun mobilizing. Bernie Sanders mounted an insurgent candidacy against Hillary Clinton, and extracted policy concessions that shifted Democratic economic policy decidedly to the left. Sanders remains the country’s most popular politician and a major force in the Democratic Party. And the Democratic Socialists of America have seen an upsurge in enrollment and activism since Donald Trump’s victory.

Hofstadter’s honest contemporaneous appraisal of Roosevelt’s administration avoids the sanctification that so many progressives are prone to when lionizing the Democratic Party’s most towering figure of the twentieth century. Roosevelt was a great progressive, but was hardly without missteps and oversights in his economic management, and was made better by a mobilized left.

The lesson of Hofstadter’s take on FDR is that progressives should not be discredited for failing to meet a standard of purity and perfection—and that those same progressives might benefit immensely from being challenged in the policy sphere from an engaged left.