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'Supreme Power': Jeff Shesol's Book on 1930s Court Has Deja Vu Quality
1 year ago
It is altogether fitting that Jeff Shesol's magnificent new book, "Supreme Power: Franklin Roosevelt vs. the Supreme Court," is out and about after the release of the high court's controversial Citizens United ruling on campaign finance reform, and before the Senate Judiciary Committee's confirmation hearing for court nominee Elena Kagan.
Shesol's important work serves as a solid narrative link between the past mischief that often has marked the court's role in political life and the silliness that surrounds the ramp-up to Kagan's hearing later month. His rich story also gives us some historical direction about the chaos that might occur, perhaps years from now, should the court's conservative majority continue to strike down popular legislative efforts or -- hold onto your hat -- should a member of the current conservative majority retire during a Democratic administration.
Specifically, Shesol recounts the tumult that befell the nation and the federal government from 1933-1937, when the conservatives on the court struck down much of the legislation that had marked the contours of the New Deal. Sound familiar? Every branch of government was to blame for the subsequent constitutional crisis, which was brought about directly by Democratic legislation that sought to restructure the federal judiciary and add maybe six new (liberal) justices to the court. The storm was averted only after crotchety conservative justice Willis van Devanter resigned from the court.
FDR and his tribunes were heavy-handed in their dealings with members of the other branches. The Congress had passed sloppy New Deal legislation which left it vulnerable to constitutional attack. And the court's conservatives went rogue to block FDR's broad social legislation. Sound familiar? Oh, and there was a Great Depression under way, and 25 percent of the nation's workforce was out of a job, and over in Europe dictators were seizing power through the control of other branches of their governments.
The present tension (for those of you who did not watch the State of the Union Address) is marked by a stern test of wills between the White House and the current court's majority. President Barack Obama and Democrats in Congress bristled earlier this year when the court eviscerated decades of its own precedent to declare a federal statute, McCain-Feingold, an unconstitutional intrusion upon the right to free speech under the First Amendment. President Obama publicly and repeatedly criticized the court's majority -- thereby laying the groundwork for further criticism should the court subsequently tamper with the new health care laws or financial oversight measures.
To his credit, however, President Obama did not directly challenge John Roberts and Company through his choice of nominee to replace retiring Justice John Paul Stevens. The fight is not yet nigh. Whatever else she is, Solicitor General Elena Kagan is not a poison pill for the court. She is not going to "rescue" campaign-finance reform or "save" health care reform or otherwise turn the court's conservative tide. She is not a "switch in time that saves nine" but rather an institutional choice; a nominee likely to be sensitive to the fine line justices walk when they overturn popular mandates. The president could have picked a fight with his Stevens successor. But he did not. And neither will the Senate Republicans, no matter what their lesser lights say.
The reason for this is plain. Should Kagan be confirmed, she'll be the fourth new justice to have come to the court in just the past five years. Yet none have changed the court's essential ideological makeup. A Republican president, George W. Bush, stocked the court with conservatives Chief Justice John Roberts and Justice Samuel Alito to replace conservatives Chief Justice William Rehnquist and Sandra Day O'Connor. And a Democratic president now has nominated his second progressive justice -- Justice Sonia Sotomayor being the first -- to replace liberal justices Stevens and David Souter. The court has held par. It's status quo. So why fight now?
If Shesol's book reminds us of how close America came to changing its Constitution or packing its court, it also helps us put into perspective the modern-day debate over the limits of the court, or the Constitution, in determining the rights and responsibilities of the government and the governed. FDR's controversial plan (portions of which were later adopted, don't forget) did not come about in a vacuum of dictatorial pretense. It came about during a period of intense (unimaginable to us today) debate over the use and usefulness of the Constitution as a tool of government. We will not likely see such a debate until and unless we see a death or retirement from among the court's conservatives during the Obama administration.
And that brings us to the relevance of Shesol's work as a guide for our future. If the court's fifth vote, its "swing vote," comes up for grabs in the next few years, we likely will see some sort of a replay of the famous "168 days" of early 1937. It's easy to argue, in our age of interconnectedness, that the modern Battle for the Supreme Court will be even more intense and vicious than was the fight over FDR's court-packing plan. FDR had a mostly impotent opposing party. The Liberty League's anti-FDR rants weren't on YouTube. Mostly everyone agreed that something had to be done. And the court had not yet reached its height of popularity and respect.
Indeed, several members of the 1935 court wouldn't have made it to a confirmation hearing today. Justice James McReynolds, for example, was a virulent and vocal anti-Semite, who refused during his tenure to talk to or sit near that court's two Jewish justices, Louis Brandeis and Benjamin Cardozo. Nor were the majority's slew of anti-New Deal rulings worthy of (or receiving much) respect among lawyers and law professors. McReynolds and Company often contradicted themselves from case to case in their zeal to stop FDR's administrative expansion.
Perhaps that's cause for optimism. Maybe the relative professionalism of the current justices will preclude the need for a showdown of the sort that took place in 1937. Let's hope so. Whatever the case, I have a simple request: Anyone who has anything to do with the Kagan confirmation, and anyone who cares about the Supreme Court and the Constitution, ought to read Shesol's new book (and, for that matter, an old one titled "168 Days" by Joe Alsop and Turner Catledge). In some way, large or small, the past is going to repeat itself when it comes to the politics of the court and the court's politics. And it's always better to be informed.
Shesol's important work serves as a solid narrative link between the past mischief that often has marked the court's role in political life and the silliness that surrounds the ramp-up to Kagan's hearing later month. His rich story also gives us some historical direction about the chaos that might occur, perhaps years from now, should the court's conservative majority continue to strike down popular legislative efforts or -- hold onto your hat -- should a member of the current conservative majority retire during a Democratic administration.
Specifically, Shesol recounts the tumult that befell the nation and the federal government from 1933-1937, when the conservatives on the court struck down much of the legislation that had marked the contours of the New Deal. Sound familiar? Every branch of government was to blame for the subsequent constitutional crisis, which was brought about directly by Democratic legislation that sought to restructure the federal judiciary and add maybe six new (liberal) justices to the court. The storm was averted only after crotchety conservative justice Willis van Devanter resigned from the court.FDR and his tribunes were heavy-handed in their dealings with members of the other branches. The Congress had passed sloppy New Deal legislation which left it vulnerable to constitutional attack. And the court's conservatives went rogue to block FDR's broad social legislation. Sound familiar? Oh, and there was a Great Depression under way, and 25 percent of the nation's workforce was out of a job, and over in Europe dictators were seizing power through the control of other branches of their governments.
The present tension (for those of you who did not watch the State of the Union Address) is marked by a stern test of wills between the White House and the current court's majority. President Barack Obama and Democrats in Congress bristled earlier this year when the court eviscerated decades of its own precedent to declare a federal statute, McCain-Feingold, an unconstitutional intrusion upon the right to free speech under the First Amendment. President Obama publicly and repeatedly criticized the court's majority -- thereby laying the groundwork for further criticism should the court subsequently tamper with the new health care laws or financial oversight measures.
To his credit, however, President Obama did not directly challenge John Roberts and Company through his choice of nominee to replace retiring Justice John Paul Stevens. The fight is not yet nigh. Whatever else she is, Solicitor General Elena Kagan is not a poison pill for the court. She is not going to "rescue" campaign-finance reform or "save" health care reform or otherwise turn the court's conservative tide. She is not a "switch in time that saves nine" but rather an institutional choice; a nominee likely to be sensitive to the fine line justices walk when they overturn popular mandates. The president could have picked a fight with his Stevens successor. But he did not. And neither will the Senate Republicans, no matter what their lesser lights say.
The reason for this is plain. Should Kagan be confirmed, she'll be the fourth new justice to have come to the court in just the past five years. Yet none have changed the court's essential ideological makeup. A Republican president, George W. Bush, stocked the court with conservatives Chief Justice John Roberts and Justice Samuel Alito to replace conservatives Chief Justice William Rehnquist and Sandra Day O'Connor. And a Democratic president now has nominated his second progressive justice -- Justice Sonia Sotomayor being the first -- to replace liberal justices Stevens and David Souter. The court has held par. It's status quo. So why fight now?
If Shesol's book reminds us of how close America came to changing its Constitution or packing its court, it also helps us put into perspective the modern-day debate over the limits of the court, or the Constitution, in determining the rights and responsibilities of the government and the governed. FDR's controversial plan (portions of which were later adopted, don't forget) did not come about in a vacuum of dictatorial pretense. It came about during a period of intense (unimaginable to us today) debate over the use and usefulness of the Constitution as a tool of government. We will not likely see such a debate until and unless we see a death or retirement from among the court's conservatives during the Obama administration.
And that brings us to the relevance of Shesol's work as a guide for our future. If the court's fifth vote, its "swing vote," comes up for grabs in the next few years, we likely will see some sort of a replay of the famous "168 days" of early 1937. It's easy to argue, in our age of interconnectedness, that the modern Battle for the Supreme Court will be even more intense and vicious than was the fight over FDR's court-packing plan. FDR had a mostly impotent opposing party. The Liberty League's anti-FDR rants weren't on YouTube. Mostly everyone agreed that something had to be done. And the court had not yet reached its height of popularity and respect.
Indeed, several members of the 1935 court wouldn't have made it to a confirmation hearing today. Justice James McReynolds, for example, was a virulent and vocal anti-Semite, who refused during his tenure to talk to or sit near that court's two Jewish justices, Louis Brandeis and Benjamin Cardozo. Nor were the majority's slew of anti-New Deal rulings worthy of (or receiving much) respect among lawyers and law professors. McReynolds and Company often contradicted themselves from case to case in their zeal to stop FDR's administrative expansion.
Perhaps that's cause for optimism. Maybe the relative professionalism of the current justices will preclude the need for a showdown of the sort that took place in 1937. Let's hope so. Whatever the case, I have a simple request: Anyone who has anything to do with the Kagan confirmation, and anyone who cares about the Supreme Court and the Constitution, ought to read Shesol's new book (and, for that matter, an old one titled "168 Days" by Joe Alsop and Turner Catledge). In some way, large or small, the past is going to repeat itself when it comes to the politics of the court and the court's politics. And it's always better to be informed.
Filed Under: Supreme Court
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I think FDR should have been removed from office for packing the Supreme Court. It was a blatant offense of definance to get what he wanted. The New Deal did nothing but enslave generations of people and all that it was meant to be is gone or in debt and about to be bankrupt.
We need Court nominees who believe in what the founders believed this nation to be, and that the Constitution is not a living breathing document made to be manipulated and changed in whatever manner one individual would like it to be. It scares me that this article eludes that Supreme Court packing may happen again so that an individual gets his agenda through without constitutional concern.
We have certainly overcome the past antisemitism of the court.
That said, there is a deja vu component to this administration's pressure to attack the court publicly and attempts to bring the justices into line with its agenda regardless of Constitutional guarantees and limits.
If Kagan joins the "court to add balance" we will have an all-Ivy court consisting of 100% Catholics and jews with four New Yorkers. If it were a private-industry institution, the Obama EEOC would probably be bring enforcement action on that basis alone.
panfiloenhabana
Most of the "New Deal" legislation was anti constitutional and it took FDR's finagling to increase the number of judges, hand picked by himself, to do his bidding. Ironically, time has proven FDR wrong. his New Deal is bankrupt in less than two generations.
June 14 2010 at 12:09 PM Report abuse Permalink +3 rate up rate down ReplyAndy, Give me a break. We do NOT need Kagen or any other liberal on the Supreme Court. We need justices that have read and understand our Constitution and will uphold it. Your're going to be hard pressed to find a liberal any where that will do that.
June 14 2010 at 11:51 AM Report abuse Permalink +2 rate up rate down ReplyPD TOPIC PAGES
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