President Roosevelt and the Supreme Court Bill of 1937

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President Roosevelt and the Supreme Court bill of 1937

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Authors Hoffman, Ralph Nicholas, 1930-

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Link to Item http://hdl.handle.net/10150/319079 PRESIDENT ROOSEVELT AND THE SUPREME COURT BILL OF 1937

by Ralph Nicholas Hoffman, Jr.

A Thesis submitted to the faculty of the Department of History and Political Science in partial fulfillment of the requirements for the degree of MASTER OF ARTS

in the Graduate College, University of Arizona

1954

This thesis has been submitted in partial fulfillment of requirements for an advanced degree at the University of Arizona and is deposited in the Library to be made avail able to borrowers under rules of the Library. Brief quotations from this thesis are allowable without spec ial permission, provided that accurate acknowledgment of source is made. Requests for permission for extended quotation from or reproduction of this manuscript in whole or in part may be granted by the head of the major department or the dean of the Graduate College when in their judgment the proposed use of the material is in the interests of scholarship. In all other in stances, however, permission must be obtained from the author.

SIGNED: TABLE.' OF.GOWTENTS

Chapter / . Page Ic PHEYIOUS CHALLENGES TO THE JODlClMXo , V . 1 IT. THE COURT BILL, '■ :e;• e X L »'L . . . L = a . . 39 Ille THE COIBT CONTROY1ESY THROUGH MARCH, 1937 = 6l

; I?, CONTROVERSY TO COMPROMISE, JUNE 3? 1937 ® » 103 . "Vo DEATH OF THE COURT BILL „ L , „ 0 „ » = 6 .-131 VIo ■ CONCLUSIONS FACTORS: AND. FORCES THAT . ' DEFEATED THE COURT BILL L a . .. :. X .X 0 ; o • 0 167 '

BIBLIOGRAPHYo /o: s „ o . o . , » . . . o-,x> . 187 ' PBESBSEC; BOOSlVSLT AND THE S'WEEMl COURT BIDL vOE 1937 GES.PTER :%■.

V • . PSEV10US CHil,LBBGBS :$0 THE JHDICITEY - i

' On November 3? 1936 9 Franklin Do Roosevelt received .an undeniable mandate from the. people of the United States to go ahead with his' New Deal program,. President Roosevelt in terpreted this overwhelming approval of the people to mean not only to continue with his New Deal, but also to eliml- : ; : - , .. ' ■ ■ 3 - : r 2 " • - ; ■' ■ nate anything that obstructed its course« In his annual

State of the Union message to Congress on January 6 9 1937? the President declared § The Judicial branch also is asked by the people to do its part in making democracy suc cessful «> We do not ask the Courts to call non existent powers into being? but we have a right to expect that conceded powers or those legiti mately implied shall be made effective instru- ments for the common goode - ... ■ . The power of our democracy must not be im periled by the denial of essential, powers of free governmento . . Your task and mine is not ending with the end of the depression= The people of the United • States have made it clear that they expect us to

- 2 ■ . ;• - ■" * * . ■ v - .: World Almanac and- Book of Facts for 1917 (New Yorks: New York: World Telegram?- 1937)7 907,

Raymond Moleyv After Seven Years (NeW Yorks Harper and Brothers 9 Publishers ,1939), p »' 3^6. continue otir active efforts in behalf of their. . ' peacefifl •advancement o: 3 . - ‘ '' v - Although the people approved: 9 the United: States Supreme Court had disapproved throughout Booseveit's first adminis

tration?' and by January? 1937> the Court had declared seven . out of nine major.New.Deal laws unconstitutionalo Only the TVA and the abrogation of gold clauses had escaped nullifi

cation by that' eminent tribunal*t According to some authori ties 9 this disagreement was the-result of a struggle for power; that is ? which should be - the supreme legislature 9 the - Congress or the Supreme Court? :: ;The root of the problem has

been said to be the wide gap. in sovereignty between the pop ularly elected branches and the; Snpreme Court<, ■ Other author

ities hold that the Court's nullification of New Deal legis-

:lation stemmed from its advocating a government under the : Constitution as opposed to a government above the Constitution

' . ■; . New York Times., January 7 „ 19375 P» 2 = ; - . : ^ V. f.

U=So Congress9 Senate9 Reorganization of 'the Federal judiciary. Hearings before the Committee on the. Judiciary, UoSo Senate9 :77th Cong. r 1st Sess«? on S 0 bill 1392.? Parts 1-4 (Washlhgtonsv Government Printing; Office ? 1937) ? P° 49. - This does not include all of: the :New Deal Acts.: or parts of acts reviewed or d.eclaped unconstitutional by the Supreme C our t= " '' ' - : / j-;4 f::'. •

'...:i;C : Robert Ho Jackson, The Struggle' for Judicial Suprema- . c.y (New Torkf Alfred A,' Nnopf ; %94l) s' pp. viii-Xo .: ;: . :

r 6 : a -- lerlo jo. Pussey? The Supreme Court Crisis (New Yorks The.Macmillan Coo 9 1937), pp4 88-105o h The membership of the^ Supreme Court was unaltered dur ing Roosevelt's first term9 , The memhers of this Court'have been classified 5 by com parison to each- other in the following ways the four conserve

tives? Associate Justices? Willis Tan Bevanter, James Co Me

Reynolds? George.Sutherland? and Pierce Butler; the two middle-of-the-foadars. Chief Justice Charles Evans Hughes and

Associate Justice;Owen Jo Roberts; and the three liberals, Associate Justices, Bouis Do. Brandeis,' Harlan Fo Stone, and .Benjamin No Cardbzoo Hughes and Roberts, either one or both, more often than not voted with the four conservatives? .there fore, a majority of the msj or New Deal legislation held, void was by either a five to four or six to three decision. The four conservatives believed strongly in 1alsset faire, un-

disturbed property rights, and the sanctity of contracts, The public's reaction to the President’s 11 horse and buggy11 . V ■. ■- • - ' ; i . ' ; ' 9 ' ' press conference of May 31; 193% may have given further in-

centive to the Court to continue nullifying New Beal vv.vv

■■■ ■ 7 ' ' - . - • - - - . . 1 . ’ n,- , ■ . - . Carl Brent Swisher, American Constitutional Develop ment (Boston: .Houghton. Mifflin. Co-,-, 19^3-1 P° 920* 8 . ' ■ v - ; ^ ■ ■■. . - - : ■■■ -. - - Alfred Haihes Cope and Fred Krinsky (eds,), Franklin D , Roosevelt and The-Supreme Court (Boston: D, C, Heath and Com- pany, 1992), p, vih 9 " " . ...1 - . . _ ■ ' t ' -■ ' :- - New York Times, June 1, 1935s p,71= 'measureso

Here was a President? backed by probably tiie largest 1; ' :"- l : /' '' 11' ' : popular mandate ; in Imerican history^ but at- the same time . cbnfronted with a judiciary 3 which threatened:. to ;blqck the •

-greater: part of his legislative program'. 'Something::was':^ , • :

bound to 'happen, and it dido On February '5<) 1937? Presi dent Roosevelt proposed to ;Oo^^eas.a'|feiil:^to-';.r^rganize''":.:. the Judicial branch of the government. With regard to the Supreme Oburt of the United States,, the, bill would allow the /President; to appoint one new justice — not to exceed a total .

of fifteeh—=for.each member;oh the Court, who would not re

tire with full salary within six months after reaching the - .V ''v:' ' ;ii2 fy': d'"'' ' age of seventy years B The problem.of this thesis is to ana

lyze the. tactics, pressures^ and problems connected with

this attempt of President Booseveit: to challenge the judicial branch nf the gayernmente; n . - The President’s challenge to the Supreme'Court was ; i

, 10 ; ; y ' ' : . p - 'y 'p :„"1; i'-'".' ' ' : - ' ' " ' : . ' > . ' ' Joseph -Alsop and Turner Catledge 9 The 166 Days (Gar- den City: Doubleday, Doran and Coo, Inc6, 1938), ppT"h=7<> -;;

.Sears^Family World .Atlas (Chicago § Sears , Boebuck and - . Company, ^ 1953) ? PP° A-29-A=31i y : ^ ■ ;':':'. y v i : .IJ^S o: -Congr 6S s Senate, Congressional Be cor d^ 75 th Cong- - ress,, 1st •Session, LXjIXI ? Part I (Washington:' Government Pfimting Cffiee, a937) 9 880^ i nothing new, and to understand its significance a brief ex amination of the origin of judicial;review andpast eontro- .versies, between the judiciary and the two popularly elected branches of goverhnient Is in bhder»; '/ (d /

The United States Constituion declares in Article I'll, Section I s . Uy ’; 'v: . ■ '"j' ■■ ' ': ":v

u'd. The judicial •power of the UnitediStatesU' • - shall be vested in one Supreme Cbuft, and. inT: \ : such inferidr Courts as_ the Congress may from • . . time to time ordain and establish^ 13 .^ffer having listed in Article III, Section II, the types of cases to which the judicial power of the United States shall extendpthe Constitution/states: . : . : In all Cases affecting Ambas s ador s., "other' . public Ministers and/ Consuls, and those in which 1/ , a State shall be a Party, the supreme CoUrt shall have original durisdi-etiono In all other Cases : , before mentioned the supreme Court shall have ■ ap pellate Jurisdiction^ both as ,to Law and Fact, , v .with Such Exceptions , and under such Regulations ; • as thevCongre.Ss:shall makc.i iM-. - /■. In Article VI,, the .Constitution affirms §- . ■ t;./ : .

. ' This Constitution, and the laws of the United /States which shall be ■ made: in 'Pursuance thereof , and all Treaties made9 or which shall be made, / . under the Authority: of the United States, shall be the supreme Law of the Land| and the Judges in .. . : every State shall be bound thereby, any Thing in

/■ ■- The Cbhstltutlon of the United States (Washington: The Haskin,Service, / [Uodoj ) , p, 23« • 14 . • ibid o : ^ : r --.' . : 6 the C?onstitution df-Laws of any State to the . oohtnary.notwithstandinge .15 No clause .canbe found. intheConstituion.which specifical

ly grants to the Supreme Court the power of judicial re- : ■ -

riewc- v " ; V : -X':' -: ' : 6".: Many differences e>f; opinion exist as to the constitu tional legality in the origin of judicial, review« . These

different opinions have been divided into five separate - - : :■ -P-P.". ; p • pp;ppp;;:.p;;i7 . ' p _ ; p . pppp- pp : groups in the following way if (1) those holding judicial re view to be outright usurpation by the Supreme Court in the case of Mar bury v. Madisons (2) those -who feel that judicial

■ review 1 s; Spepifically- granted:;by: clauses in the Constitution^

(3) those who pay little.attention to Marbury v» Madison0 but feel that:subsequent decisions have ratified the doctrine of judicial' review^ (h) those who hold that, a large number of

. the fouhding fathers were,--at some time :in favor of judicial

review; (5) those who hold that hot. onlj'. were these ideas held in common5 but also that they were incorporated■into

the Constitution and were "logically sufficient" to support

judicial revieWo , Although these opinions: vary as fto thef '

h ' l :P;,f ; .. f 'Ip P 'P-' cop; P/PPPf -„f P: p: Pp 24, P;,P - ' P' ' f P, :P' pdf:

16 P'p - f -P,'P P' ' f 'f ■"'Pfp'^'^ .'f'^ Edward S„ Cor win . lhe,.Doetrlne,,of,, jud i,clal,fHeyi ew Cfr incetonip Prince ton. University .Press j,19ih/:?Po 10 =

: . IbldoP pPo : :Ir*2;P:'.-p6p::' v::p;P;p.P;:: p-h P ;...p':cp:; .origin and justification of judicial review9 it is generally conceded- that. judieial review- has become a firmly established constitutional doctrine/ whatever, may be its justification^ Charles Ao Beard held, that there were, at least-twenty- :: five members at the Philadelphia Convention in favor of- in- h.i : : 19 . 20 dicial revieWj whereas Louis Bo Boudin and Edward. So Corwin : ■ both pointed out that Beard - s ^ list is. doubtfulyfyEven - : j ;■ Beard's .twenty-five, which included James Madison, would not - have been a majority of the ConventiOho Concluding from the studies of a number of authorities on what took place at the

Constitutional Convention9 somediscussion of judicial re view took place, great differences of opinion existed,, and

with regard to the finished Constitution 11 no action was tak- .: ; rfih'i. ;21t hi':'.;'- v enw bn judicial reviewo James Madison, pointed out this fact when he wrote with;regard to.the proposed Virginia Constitu tion of 1788: y , f .

18 : v: : 'f ' '■/ '' \:y' w f;y';'- Charles A® Beard, The Supreme Courthand The Constitu tion (Hew Yorks The Macmillan Company, 1922), p. 5l<> - . 19 - . y '.y'y’.;':' y.. r y.: " , - y::y .- • Louis Bo Boudino Government bv Judiciary. (New. York: ■ William Godwin, Inbv, 193Sf, Vol.'1, pp. 90-91* " ao . . ■ ■ ■ ■;■ ■ - . : : y Ibid,, P> 57lo '■ . ‘ : ■ yy- ,* ; . 21 ■ . ' - ; y /'.■;;:-y. y-'y '-■y— y - Ernest Butherland Bates, The Story of The'Supreme Court {hew Yorks The Bobbs^Merrill Co,, 193^77 P° 29« 8 In the state constitution and indeed in the' federal one also, no provision is made • for the Case of a disagreement^in expound” ( / ing them (the laws), and as the courts are generally the last making the decision, it results to them, by refusing Or not refusing to execute a law, to stamp it with: its ;• final character. This makes the. Judiciary Department paramount in fact to the Legis- : lature, which was never intended and can -■ h . never' be proper. 22 ■

Although, as indicated in the above quotation, Madison was not in fayor of judicial review, Alexander Hamilton, one

'of.1 hisassociates in writing The Federalist. presented the classic justification for Judicial review in Humber Seventy^ eight of those articles $

The interpretation of the laws is the prop- .yv er and peculiar province of the Courts= A con” ' ■ stitution is in fact, and must be regarded by . the judges, as a fundamental law,} It therefore - belongs to them to ascertain its meaning of any particular act proceeding.from tbe{legislative body-, and, in case of irreconcilable difference between the two, to prefer the will, of the peo ple. declared in the Constitution to that of the legislature as expressed in statute« 23 In Humber Bighty-one of The Federalist„ however, Hamilton

modifies his immoderate stand on. judicial review--in that 1 tia legislature, without exceeding its province, cannot re

verse a determination once made in a particular ease; though

t/.: '22- ; t - : ■ ■ ■ ; - Boudin, opo cit. <, p, 571 =

23 '■■ ■ ■, : ■ ■ : : Alexander Hamilton, John Jay, and James Madison, The. Federalist, edo Henry .Cabot lodge (Hew Yorki G, P= Putnam1 s Sons, 18885 ,' ppo b85”b86o. • ■ : ' ;; ; , / ' ' 24 it may prescribe a new rule for future cases0 o = »ri Pro

fessor Boudin believes that Hamilton’s modification in the later article was the result of protests from Madison as to . • ■ ■ ■ ■ ■: . - y., -.;. 25. his extreme position expressed: in Number Seventy-eighto

The Judiciary Act of 1789, established the federal , court system» Section twenty-five of the act directly im plied that the Supreme Gour t could declare a federal statute unconstitutional^ by stating - that a federal law oomld be ' held void by a state court if the decision was in turn up- ; : ■ 26 ' ' ' " ' held by the United States' Supreme Courto Section thirteen of this same act provided that: f he Supreme 0 our to = o shall have power to . iSSueo ooTvrits :of mahdamusj in cases'warrant ed'by. the principles, and usages of law, to any courts appointed dr"persons holding of fice ? under the authority of the United Stateso 27 However5 ATtide III, Section II, of the Constitution, as pointed out befores declares that the Supreme Court has ori ginal jurisdiction when foreign ministers are involved or

■ 24 ■■ . . . ' Ibido% p 0 504«

25 . ' ■ V"; ■>/ .. ■■ t:';';/. ■ - ; ' t Bate si QUo citov Uo 16.

’‘ ■ 26 .•;ry' v . . t . ' : Ibid., po 39°

. 27 , . " ■ ' ' v Charles Pairmans American Constitufiohal DeGisions (New Yorks Henry Holt and CO:.^. 1948),' pi 17°" ' : ';::: _ -: : %:';. j ^ .%,,.:, - ■ 1 0 . wiien: a state, is . a ■party to the controversy9 and Hin all . - :v, . ■ - • . / ; ' , \ : 28 ' other ■ Cases =. 0«the supreme Court has appellate Jurisdiction® =»* This; was the supposed c p n 11 ad 1 c 11 on he twee n the statute and-;-' 1 the Constitution as expounded by Chief Justice John Marshall r ^titr ; -j, . :f t ; ^ • - in the ease of Marbury v 0 Madisono

' In the last stages of John Adams8 administration, the Federalist' Congress' passed: the Judiciary Act of 1801 or "Mid night,' Judges’* law which enlarged the lower federal courts in • order to paqk.the judiciary with Federalist judges» . This law also reduced the size of the Supreme Court "from- six to- • . five members so as to prevent Thomas - Jeffersonf;s appoint”- •

ment of a Republican upon the expected death of.Justice ¥11- ■ . ■ i-:/.:;' . : "■ . ' ' ' ' " rliam: Cushingo- This was the first of. ;six- changes in the size • 1 81 ' • : ' : -lh:l of the: Supreme Court throughout its history,. Under the Judiciary Act of iBol,; Sllliam Mar bury was:

appointed justioe of the peace in the District of Columbia| however, he failed to receive his commission before Jefferson took office» The new President instructed his Secretary of;

28 ...... :: The Constitution of the United States<» op, -cit., p, 23 =

29 '-i'-:',/;i:i''' -I'l. - i:v-V': ; Hi. Mar bur v v , Madison^ 1 Cranch 1997 (1803), - -. I3O ■ vt ll'l'- - :il' •. .1.1: ' ; til ' "I' """ ' :1,". ' ■ Bervl Harold Lew, Cur Constitution: Tool or Testa- ment? (lew Yorks Alfred A, Knopf, 19kl), p, 'ik, ■ 1 . • - 1::";

31 .1 tl''l\:./i'l' ' ' : ; 'tl-'- J--'':i;j- - Robert; K,.: Car r, The Supreme Court and Judicial Review > • ’ (New Yorks Farrafl and Riiphhr' Yhcl'’,-"1 2701 ■ ;; _ ' 1 State 9 James Madison ?no.t to give Mar bury his commissionc Under Section thirteen of 'the Judiciary Act of 1789,9 Mar- bury1s lawyer mored in the Supreme Court for a writ of man

damus requiring the Secretary of State to give. Marbury'his' comiuission’o ■ Meanwhile" John Adams had .appointed his .f ormer; Secretary of State? John Marshalls as .Chief Justice of the United;StateSo Although the mandamus was applied for in I8OI9 Marshall did not give his decision until two years v- 32 ; . tn, \ . '■ t 8 : , / 9 / i / v latero . The reason for this delay was that Jefferson8s.Ee-

public.an Congress' repealed.1 the Judiciary Act of 1801 ? and in order to postpone a rulingon the legality . of this re- ■ •; peal; it abolished the next two terms .of the Court; thus " . \ V J; ; ' :9 ' h'';v ' v i''■ J33 preventing a session from December, 1801, to February, 1803 = When the Court later met and a case came up Invoking the • constitutionality of. this Repeal Act of 180.2,; the .Supreme, . ' - : ' 9 ... 3^ ' - - . .. . ' . ■ -; : ■; ;■ • Court avoided the issue» . .: . Chief Justice.John■Marshall’s dilemma was how to avoid

either sending Madison an order which he would in all pro

bability ignore, or accept the Jeffersonian concept of the

; 22 . 9 : ' ; „ ■ ' : : ■ ■■; : ■;■■ ■; : " - • • •Gustavus 'Myer s 9 History' of /the :Supreme;-CoUrt ,of':the ~' ;'United. States (Chicago?"l}harres~H7=KerF&™Co77™r9l877^p7^1+3

3 3 ; ; I; :,9 "'i.; ■'. ■9;;'i:;' '''.'9^-;:;': ':'"::;v9 r. 9 ".9" . .Charles Warren, Suoreme Court In United States Histo- ' rv (Bostond' Littlei Brown, and Co<, 3 1923), Vol/ I, pp, 222-23

. ' ; 9Swisher, 00.,' clt 00/ .100-01 a-o ■"y.^ .' " "'■ ' ' 9 Court6s •impote.nce.o: Marshall reasoned' in his opinion that although Marbury had every legal right to his Gbnmlssibn" 1 : under ..the laws of the country 9 this law-*- Section 13 of the :Judiciary,z-Actv:pf u n d e r which the writ of mandamus had ' been applied - for was ^repugnant to • the Constitution'* and

therefore void; cbnsehuentlythe oase, would have to be t hr own'but of, court and the application for the writ- dis- . :/ , '■ OS , ' ' ' ' ' ■ - ■' " / . . - / ^ - - ' r-'-'i.'. .. missed, , . - • : ; - , _ • ' ; Marshall’s reasoning was that the Constitution listed

the only: types " of Gontroversies in which, the Supreme Court : could assume original jurisdiction; and that no clause of

the. Constitution gave. Congress powef to' enlarge the 'origin- :. al jurisdiotlon of the Supreme Court; hence Section 13 of

the Judiciary Act of -I789 which gave the court power to issue writs of mandamus in such cases was unconstitutional, : ■ ■: v : / h-" / / : 37 By .his reasoning; which is extremely similar to Hamilton* s argument in Number Seventy-eight of The Federalist, Marshall

attempted to appease the Republicans .by declaring a h i

David Loth 3 Chief Justice John Mar shall and ' the • Gr owth : of the Be.public (New Tork§ , WNorton and Co. s 19h9)/; P° 192 • , 36 . . / ‘.". t'' : : '"h h // Robert "So Cushman5 Leading Constitutional Decisions \ (New York? F , S, Crofts & cdT^t946)^ 'pp0; 208-209; 37 t w /":.: -t 't/p .;:./:;:p^-.-":.7://-';m'/;:w ;,tCharles; Grove Haines 9 The Role of the /Supreme Court ■ In j M rican ■Goyernmeht /and;:£ollticsh p g i - CniverSity of California Press; 19hk), p o ' 199 • ' ' ■ / - - - .■ : -■ - '■ ■ : " V ■ .. ... 13 .Federalist stat.ute unconstitutional9 yet at the same time

acknowledge the rights of the Federalist, judges3 and last , " ’ but foremost establish the precedent for the Court's power' - - . ; . :i.:i v --'-t '; ■ : " ' ■■ 3 8 - rf to void acts of Congress "-the doctrine of judicial reviewo

Under Thomas Jefferson's administration the number of .Supreme Court Justices was restored to six b y 'the Repeal ; 3 : . ; • ■ - ' \ ■■■■■ ■'■■■ 39 .■ . Act of 1802? and increased, to seven in 1807* Although Jus

tice Cushing disappointed the Jeffersonians by recovering from his illness and lingering on in.a half-senile condition until l8lQ? Justice Alfred Moore became seriously ill and resigned in I80W To fill this, first vacancy. in an all- . Federalist Court? Jefferson appointed William Johnson of

South Carolina® Upon the death of Justice William Patterson in ,1806? Jefferson appointed Henry B® Livingston of lew York®

By the increase to seven members in ISO?5 the new appoint ment went to.Thomas Todd of Kentucky0 Jefferson9 s three: . justices were a great disappointment.to him. .Marshall still'

dominated the Court and the,three Republicans went right ■ ■ ■ v , - ' / • 40 along with him on decisions to Jefferson's enfagement® .

Jefferson? until his death? was; a relentless critic of

■'.3.8 ■ : : ■- . Myers , op. cl16 ® p. 244. ;

39 ' '"'h" ' ‘ ■ Carr? op. bit.

■ 40 ' - ; Bates, op. cit.? pp.'97-106. 14 "tiie. STapremei Cpm?t :sM:;ll5s .deGisioasV ' He; HeM;. that the Con stitution had become a wax-like substance in the hands ©f

the Court which twisted and shaped it into any form the i ‘ Court desired.oHe believed that the people should be the - final authority in" interpreting "the ConstithtionThis , would be done through their elected government representa tives - and if" they failed in: the eorrect interpretation, the .error could be corrected by popular election, whereas mis

interpretation by the Supreme Court eah ohiy be indirectly effected by the people:,through amendment or impeachment =

^ilefferson’h f ailure io ponvict Justice Samuel Chase eon- - t

;"winced him of the ;futility ofthis- method of removalo Soon : after the Senate acquitted Chase yd 1 cbnstitutional amenidC y .

:ment? ;instigated by" Jefferson, was introduced in Congress, . "providing for the removal of the Judges o f : the1 Supreme t

Court and of the other federal Judges by the President on address of both houses of Congress p" Jefferson admired the .English method of removal of judges by the King on the direction o f a simple-majority in both houses ofParliamente He considered but rejected the proposal to make the Senate a supreme appellate court on all constitutional questions), He , also instituted a constitutional amendment abolishing the .

■: ta' : : - Haines, ope, oitoq Oo 51te

-:.- - ■ ■ t-2 ,-y, p : - : - ,' . ' - ) ■:,1 ' 1 ■ - , , - , 15 life tenure for Justices of which he writes? A better remedy9 I think, and- indeed the ... r /hest I can devise would he to give future ; commissions to Judges for 'six years with a reappointmentahility by the President, with . ; v the approbation of: both Houses» % : :- During the period from 1821 to 1826, many other propos- V als were made to curb the Supreme Court® One was a Senate 1

resolution for an amendment to give the.Senate appellate jurisdiction in all controversies involving a state or the: laws and. constitution of a state o Another proposal was a 1

House resolution for the repeal of the Twenty-fifth Section. -

of the Judiciary Act of 1789> A bill also was introduced in the Seriate to require the concurrence of seven judges or a t unanimous vote in any decision involving the validity of congressional acts or state statutes„ Three months later another bill was reported out of;committee by Senator Martin - Van Buren of New York that no state law should be declared ;

invalid wl'thout the agreement of five of the seven justices.. This bill was tabled and nothing came of it. Another bill was reported to increase the Court from seven to ten mem

bers, but during this period from 1821-1826; all the attacks upon the powers of the Court and attempts at judicial reform ■' '" '■ ■ ■ 44 ■ ' •' " : - ■ ' were equally unsuccessful. ’

43 v " ' .■ Warren, on. cit.. Vol. 2 ? p. . 116:. 44 • ...... ibid.f nu. 117-86. : ; ,.. - ' : : ■: ; ; . 16' : Charles Warren observes that it was not until Andrew Jackson’s administration that- the Court "was confronted - V :;v; : ^ ' n I:-- with a real crisis in its history^ 1 In I83O ? President Jackson urged' the repeal of :-the lwenty-=fifth Section of the. 1789 Judiciary Actj and on January 24,:l831; the House Ju diciary Committee' reported a bill favoring repeal of this .

Twenty-fifth .Section<> Bepeal: of ;this section would have • abolished judicial review of state legislation9 and the de- . bate raged between the friends of the Court and a strong 'un ion and the advocates of states* rights against "the assaults ofx this gigantic: tribunal„yt;The bill was defeated by a vote .

of 138 to 51? but the fifty-one was an almost solid south-- ern voteagainst the nationalistic decision of Marshallt s ’ ^7 ■■ -ttd v .. ' ' ;■ t; ■; a t , Courto - . ;; , ■: ' v-

- ,: : : . . . ; ■ ■■■ , ., . 48 • . ■'t./'. ; • It Was in connection with a ease Involving the state of

Georgia and the Cherokee Indians that Jackson;handed.Marsh al I 1 s. Court its greatest blow. The issue involved was the right of the federal government alone to control and regulate Indian territory within a state» Marshall's opinion of'

■- — -- — ■- h.' / ' :45 : t - ' ^ ' ' h ' t::' ■ >v; ■' - IbMo ? pt; 1326 . v y , ^

Haines, 000 cit.t p, 594* : - ' t: I- : ': /:t;-' 1 ./'t ; n : .4:, 4 % Ibid., o. 595. . ' - 44-' .-. 48 :4:4''..44/4 -/ tt.-h" ■ ■.44:'.'’ ,:4 ::.4 4 4 - . : : ■ i-' V'.;;. Worcester v . Georgia, 6 Peters 515 (1832)0 the detart upheld this right ? and declared void the laws of the state of Georgia which extended the jurisdiction of the state over Indian terri'tqry within, its borders 0. Geprgia de- fled the Court's decision? and President Jacksori refused to ; enforce it, on the ground of his opposition to the: policy, of depriving the states of their right to control Indian terri tory, within their limits« It is on this decision dackson is supposed to have said, "John Marshall has made his decisions \ ' 49 now let him enforce It!." Upon Marshall's death in 1835, Jackson appointed Roger Bo Taney Chief Justice of the United States, and since the

Court was increased from seven to nine members in 18.371 it ; : .. ■' .l - -■ ■ 0 was not long before Democratic appointees ruled the Court<» :

Although the Taney Court placed more emphasis on the; powers of the states than did its predecessor, at first there was no sharp difference between the two on the supremacy of the national government® In the beginning the Taney Court had a very progr esslve;; period, • but Taney * s Dred Scott decision toward the end of his twenty-nine years as Chief Justice ob scured his many earlier constructive opinions,.and until re cently, his name, as Senator Charles Summer supposedly

: 49 ■ ; ; Homer C® Hockett and Arthur M„ Schlessinger , Land ~ of the' Free (Mew Yorks The Macmillan Co«, 1944), pp® 216-17® ” 50 Carr, OD® cit® . ... . - .... ,. ' 51 predicted ? had been ’’hooted down the pages of historyo” . . '■ ■ . 52 . 5 : ' ;■ ■ In the Dred Scott Case, Chief Justice Taney ruled that thb national; government did not have the authority to , exclude slavery from the territories of the Ilhlted States, ■ because a territory is to be held in trust for all the peo ple and their property, slaves or otherwise, until states are formed from

Dred Scott decision, and although he did not advocate dis obedience to the decision,he argued that if should be over

ruled, and made it clear that if he should become President, ' .f.' 53 : he would appoint justices with this end in mindo In his first Inaugural Address, after stating some benefits of the Supreme Court, President Lincoln warneds

/v At the same time, the candid citizen must confess that if the, policy of the government, upon vital questions affecting the whole peo ple, is to be irrevocably fixed by decisions of the Supreme Court, the instant they.are , .made, in ordinary litigation between parties in personal action, the people will have

51 : , r ; : V . Levy , op^citO , : PP O, 61-62 o ;V ^ ' r 52 - . I7' : V'. ' - 'y:- ■ Dred Scott v, Sandford, 19 Howard 393. (1857)*

53 . . ■ ■v . : : . : - : ■ r •' Swisher, opq pit., p 0 256. ceased to be their own rulers9 having to that .extent practically resigned their government ' into the hands of that eminent tribunal»«, 0 0 5k 8ix weeks after the Civil War began, Lincoln, in order to, ensure, Maryland' s. remaining in the TTnion, by executive or der declared martial law in the .state and suspended the writ' Of habeas, C.hipus.o One John Merryman was accused of' raising , rebel.forces, arrested and,imprisoned in Port McHenry under,

the orders of Oeneral Cadwallader <> Merryman applied to faney • for a writ of habeas corpus which Taney issued and which was .. ignored by the General under Lincoln1s directions» The, Chief

Justice issued■a further:vorder for Cadwallader1s arrest for ' contempt of court, but this;'was also ignored;so Taney sent

his opinion to Lincoln5 in which he .deplored this; flagrant violation of civil liberties and ruled that only Congress . - - ■ ,■ v:: ■ ' . . 55 n ; ' ' :h;. could.suspend the writ of habeas corpuso LincoIn contended . that« during a.war« the requirement.of the emergency.was su- - : . :/ ' ■ ; :: ■ , .. . . • : : ; ^ 56 preme, and, consequently, Taney’ s -decision was ignoredo v

1 In 1863 $ Congress established.the tenth circuit and in- . creased, the size• of the Supreme Court to ten members0 One reason for this increase was to help insure that.Lincoln’s

5*+ ' .. ■; ' -' '. -. . . \' ; . . ■v ,. - m Pair man 9 on, .cit.i o, 30. v: p y; ■ V';:

Bx narte Merrymanp Pedo'Case Hos 9487 (l86l)e % : .

.• 56 - ' ' " /: - v p ' f : p^^p/phi h' . Bates9 opo Citeo p® 167» ’ > V' V'-: : :: :■ ' 20 ' war policy- would not be impaired by judicial interference„ ..

Another reason was the natural growth of- the country by pro viding a Justice, on the dourt for the:, new: Circuit ^whlch In- ' .eluded -California and Oregon* Nevertheless? the vacancy was filled by the appointment of. Stephen Johnson Fieid of Caiif- ■ - . - - 59 • - ■ : :

A Reconstructionist Congress in 1866s passed an act re

ducing the number of justices of:the Court to seven* The

change was to take place as soon as by. retirement or death

the number of justices should, be reduced to seven* This

change was to prevent hincoTns s successor? President Andrew p Johnson9 from appointing justices, that might be unfavorable to the Reconstruction policies of the Republicans in Con- ' gresso " No deaths or resignations took place that changed

57 n ::p.:-::;:;o^::p v . Ibid * * p o 182 *:; : .. :' - P

58 . :- :;:::P-p:\ Warren, op* cit** Voi* 3, p« 102*

- 59ibid* '

^PP :W :P'^;'p-;::;:':. - b:-: : if Ibid., p. 123» . - 61 the Court under this act®

. In 1866 c, the Court by a five.to four decision held that under•no circumstances could a civilian be subjected to a '■ v ;; ’ ' ' -;V ;■ " ; ; ' :: : ;' 62 - military trial where the Courts were still functioning® This decision was injected into the controversy between v-Johnson and :ihe Republicans in Congress whom it greatly dis

pleased o Impeachment .of\ the justices was considered« and a

proposal was made in the House to abolish the Court® A meas

ure was also introduced to require a unanimous- decision to ' v- V - . - , ■ y'. y - , 'r ■/ . ::y v t ' invalidate Congressional actso

X; Although nothing, came Of the proposals, more trouble .vy was brewing: for the. Supreme Court when in the following year? 1 8 6 7 5, Colonel McCardle, a Vicksburg5 Mississippi5 editor was imprisoned for criticinlhg the Congressional policy of keeping .Southern Sfates under the control of Federal mill-

. t@rycforces. . ..He: appealed:.to the Supreme Court for awrit of habeas corpus under a provision of a Heconstruction Act of

1867, Since the validity of the Beconstrucfion Acts was at stake in this decision? the' Kepubl 1 eana. in■ Congres.s became alarmed and quickly agreed on an act which deprived the

y y ;y: 61 ■■■ y-/'^- ' "y--/' ^ ;;y'>.-;4;wh-': ynv ' Myers; on. cit®, o, ^1%.

■■ ; 62 : V; - :; ’ - y yy y . ■" : ;;y-.y yy . yy ■ Ex "parte Milligan, 4- Wallace 2 (l866) » ; y;: . y y:v>

Warren® on® cit®, Yol® 3® oo. 14-7-76« Supreme Court of jurisdiction over the ease. Although Presi dent Johnson defended the Court and vetoed the bills it was

passed over his vetOo Although the Court could have passed - Judgment before the,law was enacted? it postponed the decis-

ion until the.next term when Chief Justice Chase delivered a unanimous decision, holding that the. Court could not make' a - judgment since it no longer had jurisdiction over the appeal =,

This postponement greatly lowered the prestige of the Court, - .and ;fopmef ' Justice Benjamin B * .durtis wroteg18Congress with the acquiescence of the country,: has. subdued the Supreme Court as well as the President» It was while the MeCardle Case was being argued' that President Johnson was b'e.ln'giim-' 6Lh - . ■ ' . ; ■:■■ ■' - , ■ peachedo / r . . ■ v. Ulysses So Grant became President on March 1869? and

one month later Congress passed a law which changed the number of justices of the Supreme Court back to nine* A ques tion exists on why Congress passed this act and whether or

not the railroad powers could fprsee that the Supreme Court , at that time would declare the Legal Tender Acts unconstitu tional and, thus,.were making preparations for possible ap

pointments to reverse the decisiono The railroad interests

had no desire to pay off their maturing obligations in gold,. Nevertheless, within a year two vacancies occurred by the death of Justice James M, Wayne and the resignation of

Ibido, pp. 187-210o Justice Robert Co (Srler<> ::-:Me&nwtoie' a case challenging the Legal Tender Acts was before the .Courts; After the death of Wayne and before the - resignation of Griers the conference on the case was di vided four; to' four with Justices Miller«, Davis 9. Swayne and

Grier upholding the acts and Chief Justice Chase and Jus^ ticeshelson^ Clifford? and Field holding them void„ Jus- ' tice Grier, however ? was seventy-six years old: and was both •physically and intellectually feeble and? consequently? was- very erratic? and in further discussion switched his vote* The following week the other justices through Justice Field sent:Justice Griera note to the effect ”that it was their ' unanimous opinion that he ought to resign?" which he did; eonsequently? the final decision was four to three holding . -■ . 67 ■ : . v; . the acts void*

At the very time the opinion in this ease was being read? President Grant sent the names of two former railroad lawyers to the Senate for confirmation to fill the two exist- „■ V , ' . ■ ■ : - ' ; 6 8 , ■ , : '' " ■ :...... - ' ' - - ing vacancies on the Court * When.the constitutionality of

" v 65 • ' : ; ■ . -V ■ : ■ Myerst on. cit*, n« 51^* 'v;

66 ■ •• • Hepburn v * Griswold« 8 Wallace 603 (1807)* 67 ■ • 6 ' v - 7:6 /n ; V t Bates, QPo cit«« pe 182* . -

68 6v: ■ - : ' ■' '■ . :V Ibldoi p * 184. ■ ■ : ■ 24 the acts came Up again in another case9 these two new jus tices 3 William Strong and Joseph Po Bradley voted with,the former minority and the first ease was reversed? and the

Legal lender Acts were held valid by a five to four decl- 69 ' ■ ; ■ •: : : ; " 'P " " - : v ■: sion. On the question,cf whether or not Grant packed the

Court? his motives are recorded in a diary of Hamilton Pish*s s his Secretary of State? who wrote what Grant told him on this subject as followss poothat although he required ho 'declaration from Judges Strong and Bradley.on-the constitu tionality of the Legal Tender Act? he knew Judge, Strong had ;on -the. Hench in 'Pennsylvania given a < decision sustaining its constitutionality; and had reason to believe Judge Bradley5 s opinion " tended in the same direction. 70

Fish9s diary goes on to say that Grant said at the same time of the appointments he felt that the legal tender law "should ...... , ... 7 1 be sustained by the Supreme Court."

Although the 'Supreme Court was severely criticized by some sources ? as well as

69 ' . ■ ■ •: ; - ' Knox Vo Lee? 12 Wallace 457 (1871).

" '■ : •- ...... ' Sidney Hatner? "Was the Supreme Court Packed by'Presi dent Grant?" Political Science Quarterly? L (September? 1935) 351. . ■ ■ ■ ; • ■ ■ : ".yu 5 . ; ; y

. : 71 ; . ' • , ■ . "' ■ ■ : ■■ . >

■ I b i d o r '. . ■ : : . : ; 25 around the turn of the century? the next major attack levied :against the - power of the Court was made by Theodore Boose- velt? after his terms as president„ He advocated a propo sition for the recall of judicial decisions „ Under this, provision there would be a popular referendum on each stat ute declared unconstitutional by the federal courts. Roose velt said § ”1 contend that the people in the nature of things must be better judges of what is the preponderant opinion

than the courts ? and that the courts should not be allowed ' . : : , - ' ■■ 72 v ■ to reverse the political philosophy of the people.53 There

fore? if the people voted in;favor of the act in question? it would.be valid with the decision of'the-court to the contrary notwithstanding. But like most of the previous pro

posals to curb the power of the Court? nothing came of Theo dore Roosevelt1s proposition.

After the Civil War was over? the Court began with greater frequency to declare congressional social and econ omic legislation unconstitutional. PAs each instance be came a precedent for more?” writes Robert H. Jackson? 11 the

72 ■■ ■ ■ ' : I ' v - . , ' ■ Carr, on. cit.. u. 280. ■ 73 . ■ . ' - . : :'y . : Thomas H. Reed? “The Supreme Courts Arbiter and far- get ?" The Annals of the American Academy of Political and ... Social Science, ed. by Thorsfen Sellih and Donald Young (Philadelphia: American Academy of Political and Social 'Science? 1936) ? fol. 185? p. 43. ' : - '■ . :• ' :' : ' '' . ■: . 26 ■: ■ : v ■ ■ - - ’ ; yif " ' ' ' - power was in a constant proeess of extensionoM Enumerated by decades? up to 1930> the number of congressional acts

or parts of acts held void by the Supreme Court is as fol- ■ 7 5 . : ' . ■ : . ■ ... ■ l o w * : : ■ .ft : ■ ; ' - '

o o & © © oc(D ' 186O-1870 « C O O O O oh , M 800-l8lQ,.e<,iG 9 ol 1870-1880e od . oi o9 : ; ' I 8IQ-I82O 0 0 o \ o i o 0 1880-1890.O o » c o o =5 V ' f : I820-I83OO » . , ^.oQ 1890-1900, e o . » » »5 1 8 3 0 - 1 8 4 0 0,00 =0 . f 1900^1910:^ :0 • 1840-1850CO ococoO • 1910-192O0o c-cii■' Vi. r I850-l860oooo C O cl 1920-193000 . c 0 019

Therefore, when FranKlih Do Eoose'velt took office on March '

4, 1933, the Oourt had well established its role as a su- . . ■ o-: 0 76 : v i :,'.-hvh/ : ; ' • preme. censor; of iegislationc ' - , t

Ouring Ffanklin Roosevelt's first term5 many relief, reebyer^i.i’andOreform/measures Werb-fpassed: undei-vthe general.. heading of'the hew Deal« Among the more important measures enacted. in Eooseyelt8s first term were the following s in 1933? the Matiohal industrial Recovery let, the Agricultural Adjust ment let, the Tennessee Talley Act, and the Gold Olause Resd- lutloni in 1934, the Railway Pensions Act, the Frazier-Lemke- Farm Bankruptcy Act, and the Municipal Bankruptcy Act| and in

1935 the Bituminous Goal Conservation Act 0 .All of the above

7 4 : •y:' 3 4 a, op, cites p <

Bates, QPo cite* pc 263c 76 ; /d- ' t d .. Jackson, QPo cite, p 70< ; ;/ ; . ; : >v; ; # acts came up in eases before the Supreme Court and only two were not declared unconstitutional and one of these two was . . , •• " . h ' 77 '■ ; ' only upheld in'part by a five to four decisiono Out, of three important state statutes passed upon by the Court, all five to four decisions, ..--the Minnesota Mortgage-Mora

torium Law, the lew York Milk Price A.et, and the lew York Minimum Wage Law --the minimum, wage law was declared void. The only two major lew Deal measures that .were involved in cases before the Supreme Court and not invalidated were

the Sold Clause lesolution of 1933? and the Tennessee Valley

Act of 1933» In five to four decisions the Court sustained the resolution abrogatingvgold clauses as applied to private

contracts and gold certificates, but as applied to govern- 'ment obligations, the Court ruled that' the gold, clause abro gation was unconstitutional, even though the government bond ■ ■ ' " _ ■- - - ' ' holders could not recover since they could not show damages,

. 77 ' - . . ■ - ■ ■ ■ ■ ' • Ii»S, Congress, Senate Q Creations of the. Federal Judl- ciary<. Senate Document lo, 91? 75th Congo ,' Tst* Sesso (Wash- ingtons' Government Printing Office, 193o) , PP= ° tv

■ # d ■ 't':. Cope and Haines, ope eit,

:'3.:'.'79 t .3 _ .. ■ 'v ' :■ : " Norman Vo Baltimore and Ohio Ballroad Cdo, 294- HVS, 24-0 (1935).] Wortz■ ve Dnlted St ); Perry v,; United States, 294- D,So 330 (1935). ft. ;' - . : v ; : . -:. :. . J - These decisions were but a technioal victory for the adminis tration, sihee. they; were so close land a reyerse declsidn would have probahly caused disastrous'economic- effectso It ■- : : - 80 : was by no means Court approval of Hew Deal methods« ?

in. an eight to one decision^ the Court held that the water power at Wilson Dam and the right to convert it into ; electriclty: constituted property rights of the United State; . and the 'Federal government could -dispose of this power with

out being required to sell It at1 the. dam or. let it go to 81 ’ waste. This decisionj however ? was limited to the Wilson Dam at Huscle Shoals5■which was constructed in^pursuant to

the National Defense Act of 1916 9. although at the time under the control of the Tennessee Valley Authority, The consti

tutionality of the Tennessee Valley Act? which did not have y . \ V - - :1 - : . . t'. .p "' ' 82 . ' V . . V ii'' :' a w:ar-power origin9 was- not decided0 > Although the decision did not.settle the constitutionality of the TVA9 Assistant.

Attprttey.'.General- Bobert H, Jackson later wrotey "There was gratification- in Administration circles that the threatened .pf- . 83 annihilation of its power policy had been at -least postponed,"

: 8 0 - p : ; . L. ' -1 -.pp.n:' / : I; !.:, Swisher., op* cit,, p. 929o , - J '

; - v; .. ' Ashwander v= Tennessee Valley-Authority,, 297 U»S0

y : .'.8 2 :' 'p /:' - .: li-'/P V " ^ ’ pyi P-'p '.lackson. op, cit,, o, 14-6=,- - - -

■ : ' I : Ibldi - . ' ; . ' P I p ; • ; Neither the T7&-decision nor the Gold Clauses decision could be called a clear-out constitutional victory for Roosevelt8s

- New Real e ■ - ■ : -v : - ^ .. , t' ; ■ V;":

The:two state statutes significant to the New Dealr upheld by the Court durlngvRooseyeltls: first term? ywere the : Minnesota • Mortgage-Moratorlum Law? and the' New York Milk ; 84 . \ ' v. , ; '. ;; " -Price Acto The Minnesota law allowed state courts to post- • pone sales and prolong the period in which mortgaged property. might be redeemed with a reasonable rental being given dur ing this period to . the holder s- The Court through .Chief Jus- . • tice. Hughes held that ’‘while emergency does hot create power, emergency may furnish the bccasslon for the exercise of . ' 85 ' I"-'- ::"' power o11 The New York act empowering a commission to set mini' mum prices for milk was sustained on the ground, that al

though the milk"industry was not in the usual sense a busi-'

ness affected, with a ^public interestthere were no closed categories, and where public interest is affected prices may . ■ ■ ' ; . ■ 86 ..-■'■■•uv ■ ■ ■■■ ; be subject to regulations*: ' Both these decisions were given

early in 1934? and were five to four with strong Opposition from Just ices Sutherland,.McReynolds, Van Devanter, and •

8 4 v;/ ■ ; CoPe and Hainesi on. cit. - - 85 , ’ - ' _ 1 ; I';:' - ' Home Building and Loan Association, v, 'Blaisdell, - . 290. UcSo 426 (1934) 4 . ; : u

:V : 86 ' : '.1 ■1 ' . Nebbia -V. New York, 291 BIS. 502 ,(193#. 3. \ : Butler o Although these two decisions wdre:: favorable to the ; Hew Deal interests, they dealt with state statutes and hot - V,-" '.h V : y ; ' ' . - g? with the broad federal stathtes yet to be passed upon, ' The first case decided against the Hew Deal was the so- called • Hot Oil case, in-which the Court by an eight to one de cision held void a provision of the oil code under the HBA :

authorizing the President to prohibit the shipment in,inter state or foreign commerce of oil produced in violation of

state: proration regulations— on the ground that it contained an unconstitutional delegation of legislative authority to - - . 88 . ' - ; • ' ■. . " ' ; ' " : - . . the President, This was .the first time a federal statute had been held void on this ground. The second law nulli

fied was the Railway Pensions Act of 193^ by a five to four decision holding that the establishment of a railroad re tirement system was not a proper regulation of interstate

commerce r' and was a deprivation of property without due pro-

cess of law, Hext came the Sehechter Case where a unanimous

Court held the HRA void as an unconstituted, delegation, of :

Swisher $ bn,. cit ,, p, 924=:, : 88' - . ' ' ' . . ’ ■ , \ • ‘ Panama Refining Company y, Ryan, 293 U,S, 388 (1934)

'■ 89 '• -4 :. ■: ' . Swisher, on, cit,, p,. .926, ; ” -V .

■ 90 ■ 4 V : ■ P 4: Railroad Retirement Board v, Alton Railway Co,, 295 H,8 , 330X1934) . ' : 4 ; V 4 44 ; 1 4 4 legislative authority as well as an improper use of the in- .. ;■ ' ■ 91 - "• ; / terstate commerce powerThe same day as the ERA decision,

the Court in a unanimous decision held the Frazier-Lemke

Farm Bankruptcy Act' of 193k tinoonstitiitlonal in that post

poning the creditor’s redress for fiye years/was /a depriva'-

tion of property, without due process of lawo' The above acts

wete nullified ih the Court:’ sl 9 3 ^ 1 ^ 3 f term a; 'hii i : - t - Iu the following terms 1935-1936 <>. the first lew Beal measure; invalidated,’Was; the Agricultural Adjustment Act of ■;

1933? by a six to three decision;holding that the fax and revenues spent from it were for regulating agricultural pro duction which was "beyond the powers:delegated to the feder al- government o" Justice Stone in a dissenting opinion con curred in by Justices Brandeis and Cardoso lectured the m a - .

jority on Its ’-tortured construction of the Constitution?" and that the "Courts are not the only agency of government

that must be assmned ;to have the capacity to govern," The

next lew,Beal measure ^ invalidated by the Court was the■

' Schechter '.Poultrv Corporation. vc United States i 29^ % 8 7 ^ ^ ' f i9399 i^.^ : ' ' ; - ■ " , ’ 92 ' ■■■; ■: ' v: ■■ ■ ‘ ; \ '■ ' ■ : ' ; .'tvv houisville Joint Stock: Land Bank v<> Radford, 295'.U.S. 555 (1935). - = 7 - — — . 93 v - United States v=.; Butler, 297. UoSo 68 (1936) ® Guffey Act or. Bituminous Coal Conservation Act. of 19359 in ' a six to three decision holding the act void oh three counts the tax imposed- was not a tax.but a penalty9 coal mining was

an intrastate activity not subject to the commerce power« and the act was ah illegal delegation of power which en abled part of the industry to legislate for•the whole In dus try .in that'the code■would go into effect when.adopted, by two-thirds of the coal operators and fifty-one per cent " ' : ; it:;'it' / . 95 : ;V'; ; of the employees in the'coal industryThe seventh major New Deal law % null if 1 ed by the" Court was the Municipal Bank- :

ruptey Act of 193^ in a five to four decision on the ground : that it took away the authority of the -states over local

governments s even though these local governments could not meet their.obligations and the states were unable to help

thenio The, Supreme Court-decision invalidating a New York minimum wage law was also regarded as a defeat for the New

Dealo By a five to four decisionj1 following its decision in the District of Columbia Minimum Wage Case, the Court .

held that the New York law'was Invalid as.an unjust inter

ference with the liberty to contract insured by the due -

Carter v # Carter Coal Company« 298 IT?S<, 238 (1936)0 96 : . ' Ashton Vo Camefon-County Water Improvement District No* 1 , WH’uT S e ; v ; ; . 'i ,.

■ ' 1 # v-:: ■ t:-'; Bates 0 op o cit o 4 P o Ilk— 17 0 , - .v t ■’ ! ■■ ' ' ' ' ' - ...... ■ ' 1 ■ . ■ ' ’ 1 - ’ - 1 -: , ■ " '5.5 proees^ elayse of the Fourteenth Amendment =_ Ip. a' dissents ing opinion, joined in by Just lees Brandeis and Cardozo, :

Justice Stone scolded-the majority fon decisions based on , ' : ; ■■ ■■■. . v . . '■ , ' : : ' . .; :n - \ . I #8 ^personal eoonomic predilections^ of members of the Courts-- Professor Swisher points out, % h e reasoning stood In. the way of new Federal legislation that might attempt to ellmi- ■ ■ ■ n :. V'.- 99. • , ■ ' ' V ^ t , ■ nate the, evil; of .substandard ^wages# . / : - , Ih the presidential campaign of 1936, Roosevelt empha

sized the issue' as being the Hew Beal, its objectives , its -

methods, and its future proposals.a He made no,direct attack on the Supreme Court--members or Institution— which appeared to be blocking his lew Beal program, yet it; was quite appar

ent that the success of his program depended upon the removal . of this **Judicial blockade®!1 The Bepublicans and the Ameri

can Liberty League, on the other Lhand,^ pointed with great ad-' miration to the Supreme:hourt as the last bulwark for the " ■ '■->'5: : 'Vv; :v : IOQ peoples1 rights and liber ties agains t Hew Beal regimentation * '• Besides the Hew Deal legislation that had been alreadynulli fied by the Court, later Hew Deal measures were on their way up to the. Supreme Court , .such as the National Labor Delations

, 98 . . i; p i \ ' ■t-p ' ..p M of.she ad ■ v®: Hew tfork ex rel. .Tipaldoa 298 H«8 o 58? ( 1 9 3 6 ' ; .. ; - - .

99 . ■ ■ ■ ; Swisher, op® cit®a p® 938®

V ; 1GG =>. ,p. r:,3: \ v :t, ' " '.;. :, 'i: : " : Ibid® ® n® 941® tp-p pi ' p . . v - : ^p.> : Act 5 the Public Utility Holding Company Ac19 and the National Social Security Act, In his campaign address on October 31? 1936 at Madison Square Gardens, Roosevelt after stating his oh j e:c t Ives-"many of which had been previously blocked by the ' - . : ■ ; • V ' " ... - - ; 101 Supreme Court~^warned ,we have only just begun to fight/" The Democratic National Party Platform for 1936. stated .that solutions for the nation's problems would be sought by legis lation, and only if all.legislation had failed would they re- . ■ a '■ 102 sort to amending the Constitutipno Even, before the eleetion of 19369 President Roosevelt directed his Attorney General, Homer S, Cummings, to gather all possible plans for surmounting the Supreme Court obstacle, to his Hew Deal program, Cummings, thus, began to collect all types of plans and suggestions to be presented to the

Presidento Concerning these different plans^ Roosevelt gave the following background at his press conference one week after - the presentation. of his Court Bills. .

■ "IPI-. . ' - ' .; I ■ : V/.: ; ; . Hew York Times, Hovember 1, 1936,■ p,:36» , - 102 • ■.• , ' . V :: ■;:b. . ■ ■ - : .' - .--- World Almanac and Rook of Facts for 1937 (Hew"Yorks Hew York”World”Telegram, 1937)? Po 862, . - .

' 103 . • ; " ; ■■■ :v " Moley, 00o citoc, p= 357» . . ■■■■■ : ■ 35 Right after the electiotio»ol asked tiro people to put down in black and white the ■ ; result -of these: studies® -These two people were the Attorney General and the Solicitor General<, and nobody else,.,,They,,.listed - into several categories: dll of the suggestions that had -been-made- over a period of a year and a half, 104

The-President went on to say that they realized that the solution must meet two criteria? time and feasibility, both . of which eliminated any constitutional amendment« The Presi dent said the reason why was. that so many different types of amendments were proposed, even by people with the.same ob jectives , it would take too long to agree on the actual, lan

guage, let alone ratify.an amendment which can too. easily be ■ . " 105 blocked by a Hthoroughly skilled and organized opposition»11

The President continued that with regard to different types of legislative proposals, most of them were ruled out because of doubtful constitutionality, and by a process of elimina tion they finally arrived at a plan which was of "undoubted constitutionality»” Roosevelt concludeds

Well, that is the easiest way of putting the background of the origin of the message of a'week ago® There was nothing mysterious about it® The three peo ple who worked on it were the Attorney General, the Solicitor General and myselfo 106

- ■ 104 _ : X : ' ' "x ■ . , ;' X X X ' , Public Papers and Addressed of Franklin D® Roosevelt (New York: The Macmillan Co®194l)3 1937 Vol., pp® 75-76, X-

■ 105 ■ , ; V X x'-'x : - X X' : Ibid®, p® 76. . 106 X ' X ■ '■ j . ; : . : . x - - Ibid ®, p® 77» - . The idea for the plaii that they finally adopted came; . : partly from a court reform proposal made by their most ve

hement opponent oh -the C?ourt ? Justice James 01 ark McReynolds, when he was the Attorney General under Woodrow Milsono Pro

fessor Raymond Holey later wrote that the irony of using McReynold8 s idea'against the Court appealed greatly to Roose- : : ' : ; p .. ' ; ■ V ■ . 108 ' ■ • telt!s : sense'.of .humor .and .dramac . ■ ; . n. ' ; The final plan adopted placed major emphasis on aged > ' and over-worked justices, clogged judicial calendars9 and. - • delayed decisions9 rather than the constitutional .interpre tations, of the present Supreme Court justices. The decision to use this indirect approach was made by the-President- upon ;v/ v, ' ; ; ■ . i ■ ; > . ' ;. i":: ■ 109 : - ' ' the reeommeudation of. his Attorhey'General. ; Solicitor-Cen- ' era! Stanley Eeed and presidential advisors? .Samuel Rosenman

and Donald Riehberg advised tioosevelt and Cummings against j : ; ■ .v ' , . u-r; : 110 p p-- v using shch a disguised - approach0 Regarding Roosevelt rs de cision, Rosenman later wrote: -i ; / ' i ■ - . It was hard to .understand how he expected ; 1 . to make: peopie: ‘ believe" that " he wa:S' suddenly'

107 ':r;. HcReynolds r plan- did not pertain , to the. Supreme. ■ Court. ■ y ■; i. ; ■ '’"'d, . : i;.■ ■' V; :v , -

: 108 ..h'd; i/v d ; r : ■ ' ' ; Moley, QPo cit.gyp. 8d8 , .. ' :i- : - u::' ?:\p- '/d p - d.: . ,di: ■ Ibid^ p, 357° ^ : .

d - 110 ; V ; . ; v :,>' d:v:. - ' i ; Samuel J » Rosenman, .Working: With Roosevelt- (New York 1 Harper & Brothers, Publishers, 19d2), p. dLl+7. d - ‘ ; " 37 interested primarily in delayed justice rattier than ending a tortured interpretation of the . Constitution^- hut the cleverness^ the too much cleverness? appealed to"him. Ill

in 194l5 Boosev.elt wotei I made one maj or mistake when 1 first presented the plan. I did not place enough emphasis upon the real mischief— the kind' of decisions which as a studied and continued• policy9 had been coming down from the Supreme Courto 112 The President's second .big decision was not to consult with his odngressional leaders0 : The reason for this decis ion? in.Professor Holey6s opinion? was that Roosevelt as

sumed that his leaders in Congress would follow his plan . - 113 "V ; • • - ; ;■ ■ ' ■; "without question^" Jim Farley wrote that when he asked the President why he did not confer beforehand with the ad ministration supporters in Congress? Boosevelt replied?

Jim? I just couldn't. o . .I didn’ t" want to . have it get out prematurely to the press= More * than once when I ’ve had. groups, of Senators and Congressmen down here? reporters"have gathered a detailed account of what went on within 4-8 hours. I didn’t want it to happen again. 114

111 , : ■- : : ' " . ■' ' ' : ■v Ibid. r.-- '

i3wj2w P " * * ■ - — i * - - - ,. r; :Public Papers and Addresses of Franklin D a Boosevelt 9 op. .cifo 9 1937 7olt'v. pf .Ikf?p . //f : ' : ' - "t. :'- • ■ ' 113 ■ " 1 :: " " . ■■ : : ■ Moley. QPo cit.. P. "360. " ; : 114 V ■■ • ; p f : ; % James A. Farley. Jim Parley's Story (Hew. Torks- McGraw-Hill Book Co.? IncT? 1948)? pV 73° Whatever : may have been .his re as ons: for secrecy 9 the press contained no premature;:Information of any signlficsnce >hn President Roosevelt's Court Bill presented to the Congress , : - ■. ■',v. , .v- ' ,: y'' : , . , on February 1937.® : ' CB&PTBi II

THE G O W T BILL ,

TJae Gourt BilLr the. President f s Court Message to Con gress 9 and the Attorney General1s accompanying letter were ; " I: ' - .. I ■ ■ :V. - - V — ■' ■ - ‘ ' 1 . ' first drafted by Homer Cummings and Stanley Reed» Samuel Bosenman? later at the request of the;President, re-wrote the Court Hessage and put it in its final form« - During the period .that the ideas were being collected and the final plan was crystallizing, public information on a possible Court plan was quite insignificant» In his last press conference of 1936? the President intimated that some thing must be done about the Supreme Court, but gave no Indi -■V V f - ■■ ■ ' / 3 ■; . cation on what would be done« In his State of the Union Mes Sage to Congress on January 6, 1937? although he never spe cif icly mentioned the Supreme Court by name, the President' strongly.criticized recent interpretations of the Constitu tion and emphasized that Article I of the Constitution

1 ■ . ■ ■ ■ ■ . v Alsop and Catledge, opo cito, p, 45°

2 ■ Y . ' ' : : : : ' • ■ Eosenman, op«,. cit», pp» 148-155

3 • ■ Y : ' " : ''. , - y Pew York limes, December 30, 1986, p. 1= ■ , : .v. ' 4o confers all legislative powers upon- the Congress of the . United States0 f He went on to. say? •

. The vital need is not an alteration'of our fundamental law Un% in:lhcreasingly enlightened ' . ; view in reference to it.».«With a better under standing of our purpose«, and a more intelligent recognition of our v needs as a nation, it is not - to. be presumed that therefwlll:’%e'; prolonged: ' ; 'failure to -bring legislative and judicial action into closer harmony0 Means must be found to adapt our legal form and our judicial interpre tation to the actual needs of the largest pro gressive) democracy 'in the modern world„ 4 • This last sentence received the greatest ovation of any statement in the message„ Congressional and public reaction to Boosevelt !s Annual message was. extremely favorableI Time magazine analyzed the President's message for its readers as a skillful preparation of the public for some type of limi- ■ ' : ■ : ' . " ' ■ - 6 ' ' ' tation"on the power of the Supreme Court» ■ The final plan"adopted was to present to Congress a bill which in part would empower the President to appoint one new: justice for each member on the Supreme^ Court, .who

•would not retire with full salary within six months upon reaching the age of seventy years, but the final number of Justices on the Court could not exceed a total of

4 - b 4 . -,4 ■ t New York Times, January 7? 1937? p. 2. 4 '' b : ■ ■ : , , ' 4 . Ibido, p.o- lo

6 ' ' • ■' - 4 4 " Time.. XXIX (January l8>; 1937) ? l4» fifteen® Roosevelt and Cummings followed their decision to

ignore the packing part of the Court .Bill and,9: in fact* they scarcely mentioned the Supreme Court at all, but rather they rested their arguments on the Court8s delay, 'the incapacities, of aged g udges» and on the supposed indications that the.jus-: ■:: y::;. ■ tg- ; ■■■ ; ; ; ; ■ ' ■ '8 ■ - ;tides of the high bench could not get through their work® In other words, they had decided to disguise the Court packing plan by trying to put it through as a general plan to reorgan ize the federal judiciary® This was the first "critical, deci sion," and the second was the decision of Roosevelt8 s not to consult with his congressional leaders® presumably the only ones who knew the details of the; Court proposals before they were presented to the Congressional leaders and the Cabinet, the press, the Congress, and the public, were President Roosevelt, Attorney General Cummings, Solicitor.General Reed, and the presidential advisors, Samuel Rosenman, Thomas Cor- ; .. hh.v-.hh . - v '■ .. . - / t' ■■■ , t io coran, and Donald Richberg, and press secretary Steven Early®

tf,S. Congress® ' Senate® Congressional Record® 75th Cong b,. 1st Sess-®, LXXXIPart I, ; 880® ; ' 8 r - -h .. / ^ n;. . ■ Alsou and Catledge» op. cit«.» p® 4-4® ,

Moley.1 op®/ cit®y -u® 860® ; : '

: 10 . ; : ' ' ; ' Rosenman® op®. cit® ® up® Ib-b-ltd. ; On February 5? 1937? the:President presented his Court proposals to bis congressional leaders--William B 0 Bank-; head s’ Speaker of the House | Samuel Hayburn9 House majority leader s loseph .1® BGbinson5 Senate majority leader ; and . . Henry F® Ashurst and Hatton W® Summerss chairmen of the Sen ate and House Judiciary Committees ? respectively— assembled : - :' ' 1 tv ■ , ty- y i i '-' - vy: - together 'with his Cabinet in the White House® The meeting : was short r as he requested no advice 9 and 5 consequently9 re ceived none 6 Quickly after.ythls brief presentation^ he had

a press conference in which he explained the bill for the

public. At the press conference he read selections from the Attorney General’s letter? his own message5 and his proposed -I 12; p,.. •, ' .. y ; : ;-;';y;t Court Bill. At this press conference9 newspaper reporters

asked the President, the followingyquestionss :y

•- y Q. Mro Presidents this question is for y ;: .y . background, but is this Intended to - ■ take care of cases where the appointee. :y;y .:':'i y h a s lost mental capacity to. resign? ■ -.y ^ '■y n ty' - •; (Laughter) V'p" p " p:. ;';p-y. y

; . fhe President g That is all. ;, y ■ :: :;.,t;y ; Was that the •reason for the; special t :: p : .1 : cabinet meeting? ' y : • y > : ' : The Presidents fes : .

11'' “ ’ ■ ■ p p. y'y • v ... Ibid..«. Po 1^-196.

12 ; : yy.y ^^yy ;"yy yy- y Hew York Times® February 6 ? 1937? P® 1 ■ ' : ' : ' v ': ■ ■" ^ Q» Can you tell us what the reaction was ., ' this morning? .- - The Presidents I did exactly what I did here. As soon as I finished 1 came - in here = There- was no discussi on. . ' h; - - , V h h ' hlg Mr. Youngs .Thank you, Mr<, President. . Ahout one half an hour after the press conference9 the President’s message j. the Attorney General5 s letter> and the .

proposed Court Bill: were presented to Congress. .The Presi-

. - . : . ■ ;. ' . IN- . , . . .:■■■■ dent did not deliver the message in person. The President’s message was quite long.He began by .

stating the need for reorganization of the Judicial Branch: of the government? and that it was: his constitutional duty

to explain this need to Congress9 and that Congress had the constitutional responsibility to maintain an effective fed eral judiciary. He pointed out some of the needs that had

occurred in the past and the consequent.changes Congress had made, such as changes in duties and changes in membership size. Roosevelt then discussed delays in justice and the resulting inequalities in the district courts, the circuit courts of..appeal,. and the Supreme Court. He asserted that .

out of S67 petitions of certiorari to the'Supreme Court, it refused to hear 717 cases, or by not counting the government’

2^2 v ■ - ■ * ------■ Public Papers and Addresses of Franklin D. Roosevelt 1937 vol., p..50. - ; - . ;

. . Ibid. petitions ? the Court per.mit’ted 11 appeals in only 108 cases out of 803 applications^ ' The President observed? Many-'of-■■'the refusals 'were doubtless ' . : warranted-o But can it be said that full" ■ justice is achieved;when a court Is forced • ■ : by the sheer necessity of "keeping up with .. its :business to'decline;,. withbut even an :::-ty -. ■■v explanation' to hear" 87 percent of' the cases ' 'rpresented ;to it hy: private litigants ’ ' It seems clear, therefore, that the necessity .of relieving present congestion ■ extends to the enlargement of the capacity ,h of ‘ all the. federal - courtSa 15 : ' ■;'.; , After discussing the inadequacy in numhers of judges? he examined the problems^ of 11 aged and infirm" judges from both the immediate and historical iaspecta;, and what recom mendations had been made and what - ones had:/been followed e He used Justice McReynolds recommendation when an Attorney General under Wiison, as an example 1

> To meet the Situation, :ih 1913? 191#-, 191^, : and'1916, the Attorneys General then in Office: . recommended to the Congres s that when a .dlstrict / / . or/a circuit j'udge failed to retire at the age of seventy, an additional judge be appoihted in^ order : that the affairs of the court/might; be .promptly and adequately discharged,/ 1# •. After having discussed; the cbmplexities.. of the average

modern case, the President made the following recommenda- • tionss (I), that legislation provide "f or the./appointment of f

additional judges in all federal courts, without exception, .

1?:: • 9 't t Ibid., p» 53®

Ibido v Pc 5ho ■ : - ' ' • 4? .where there are- encumbent judges' of . retlrement age who do : not ohoose to retire or resign*?f (2) that legislation per mit the Chief Justice of the hnited States to make temporary transfers of .these newly appointed circuit and district judges to other comparative courts when he deems.it neces

sary | (3) that legislation provide for a "Proctor" who would assist the Chief Justice by supervising the business and the calendar of all the-federal eburts in order to prevent con

gestion in the. lower, courts | (.4) that legislation provide . .

that no injunction, judgement,. decree, of decision bn ahy ,' question involving the constitution be deelared by a federal

court: that has not previously; given sufficient, notice to the:; Attorney General, and given the dnited States opportunity to

be heard and present evidence| (5) that legislation provide . in- all cases in which: a court of first instance decides a .

question of constitutlbnality that direct and-immediate ap peal shall be made to the Supreme Court, and that these cases 11 take precedence over all other matters pending in V ■■■'■’ i7 ' ' ' v : - ;■ . ' : " d - -. that; cour t o11 . - . After summing up his message, the President made the

f ollowing conclusion: - ' d - •:d - d ;; - .Id’

If these measures achieve their aims, we d d ;. may be relieved of the necessity of considering any fundamental ahanges in the . -powers of the courts -

17 Ibid.hou. ... ■■■ ■ : ... ; .. .: V;, 46

or the- Gonstltution of our goverument— changes / which involve consequences so far-reaching as to cause uncertainty as to the wisdom of such a course® IS The Attorney General11 s: letter which was appended, to the President's message to Congress hegan by stating that the.outstanding defect in our federal judicial system is the delay in the administration of justice? and then made a rather effective argument on the principle that ^justice delayed is justice denied®11 The Attorney General asserted . that litigatipn should be gauged in months and not in years? and he pointedly addedi - ,• - Yet in some jurisdictions, the delays in the administration of justice are so Intermln- - able that to institututehsuitbiS to embark on :v.a life.-long adventure®. 20; :- V ■ :V Cummings further pointed out that delay adds greatly to the cost of litigation® He wrote that his conclusions were arrived at.-upon the examination and study of statistical data carefully collected from every federal district® He described the situation as growing worse in that litigation was increasing in volume, complexity, and importance ? and that an enormous back-log of cases overhung the federal dock- etSo The Attorney General illustrated the past efforts to

i 3 itv: 'b " Ibid®> p®:59 =

19 ■ " , •■■■. - ' Hew York Times® February 6.® 1937® p® 8® 20 : '■■■bi.f. ' ' ' :' Ibid® *+7 alleviate the conditions that delayed justice^ but empha- 1 sized that much remained to be donee He recoimaehded not .. only the need for additional judges9 but also judges who •were of a vigorous age, and • thus could "attack their doek- . ' : ’ . ■ " ■ ■;■■■■ . • . ' 21 ets, rather than permit their' dockets to overwhelm them." To the Attorney General's letter was appended some tabu lated statistical information. One table illustrated, for

example, that since 1913? district judges were increased ■ from 92 to : 1^4, yet during the same period court, cases, not including, bankruptcy cases-, increased from 276 per judge to 484 per judge. A second table presented the case load in the district, courts and a comparison of the number of cases

'filed with the number terminated, and demonstrated that lit- -

tie if any progress had been made in cutting down the back- ■ . . ; ■ ■ .. • : - - 22 log of cases in the federal district courts<>

The proposed bill, appended -to the President's message along with the Attorney General's letter, was called "A Plan

for- the Beorganization of the Judicial Branch of the Govern

ment V1 It-consisted of six sections. Here are the signifi cant points of the bills .

:: - Sl.; -i-,4 . Ibid, . - .

'. '22' . ' : . . U0S0 Congress, Senate, Congressional Record 75th Cong,, 1st Sesso, h^XXl, Part I, 880* ~ ~ (a) When any judge of a court, of the United States^ appointed to hold his office during good behavior 9 has heretofore or hereafter attained the age of seventy years and has held a commis sion or commissions as judge of any such court or courts at least ten years, continuously or- other wise, and within six months has neither resigned nor retired, the President for each such judge who has not so resigned or retired^; shall nomi- ... nate and by and with. the-, consent of the Senate, shall appoint one additional judge to the court - to which the former is commissioned;.. (b) The' number of judges of any court shall be permanently increased by the number appointed thereto, under the provisions of subsection (a) of this sectioho .No more than fifty judges . shall be appointed thereunder, nor. shall any judge be so appointed if such appointment would result in (1) more than fifteen members of the Supreme Court of the United States, (2.) more than two additional members so appointed to a circuit court of ap peals,, the Court of Claims, the United States Court of Customs and Patent Appeals, or the Cus toms Court, or' (3) more than twice the number of judges now authorized to be appointed for any dis trict or, in .the case of judges appointed for more than one district, for any such group of districts* 23 The second section stated that the Chief Justice may reassign ahy judge that is appointed under the act, subse quently to some other circuit or distriet* The third sec tion gaveuthe‘,Supreme Court the power to appoint a proctor, who would assist the Chief Justice by gathering information on the needs of the lower courts* The proctor was to be paid $10,000 a year. The fourth section dealt with the ap propriation of $100,000- for thehsalaries of the new judges for the 1937 fiscal year-vindicating the President's opti mism that the bill would be passed long before July 1, 1937?

23 .Ibid* ■ ...... V- . ■■■. ;; 49 when the 1937 fiscal year closed. The fifth section defined some terms as used in the act; for example«, "The term , judge1 includes justice^" It also defined the terms"judge of re

tirement age," "circuit court of appeals9" and'"district

courto" The sixth section said that the law was to take

effect on the thirteenth day after the date it was passeds : The President's proposals for reform of the Federal judiciary brought a wide variety of reaction from the Con gress, the press3 and the public,' Although the court pro posals came as a complete surprise, the greater part of the : immediate congressional response seemed to be in its favor« This is illustrated by the lew York. Times headline on Febru ary 6 , the following days Boosevelt Asks Power to ELeftirm Courts, Ihcreas ing The Supreme Bench to 15 Justices; Congress Startled But Expected to Approveo 26

The following are some early comments of members of Con gress on the President8s court proposals.as quoted in the

lew York TimeSo First are, the statements of some Senate Re-

: publicanss Warren B » Austin of Vermont said, "The message is

24 . . ' ■ ■ ■' *: Ibido

lew York Times<, February'6, 1.937? p» !»

26 '. ■ : " ■' Ibid.

27 Ibid., p. 9 . in m y ■opinion a most ostentatious request for power to pack the Poderal court#^ Artbur H. Vandenburg of Michigan ; stressed5 "I most emphatically do not agree to packing the ,

Supreme Gourt1®| William Eo Borah of Idaho said 9 flI' am not

commenting at this time on the proposal to increase the mem bership of the Supreme Court e*® The above are fairly repre sentative of the comments of the sixteen Republicans in the Senate 0. As f or Republicans in the House 9 comments ranged -from New York Representative Bertrand H» Snell’s statement? wIt is pretty near the beginning of the end of everything?” to Massachusetts8 Representative/Allen Ti Ireadway8 s.remark? V ”It is too serious a matter on which to pass snap judgmento" . Comments from some of the Senate Democrats are as fol~ . ■ lows s Joseph P, Guffey of Pennsylvania? ”A splendid solution •of::the problem**.■ :Ivam: for it 100 per cent81; Hugo L= Black.

' \of Alabama? ”1 favor the plan”;'James .Byrnes of-South - • v Carolina? 81 The proposal submitted by the President is conserve

tive* I do not' know .that -it goes far enough? but I am in fa vor of it”; William H, King of Ftah? ”1 most certaihly do not approve the propbs to enlarge the membership of the v .

Supreme .CbWt”j> M Burke of Nebraska? $io 0 *1 , am un~ . alterably opposed to increasing the membership of the Supreme Court and will fight it with all the strength I possess*” --. Democratic comments■in the House ranged from Texas representa

tive Sam Rayburn®s statement? ;”A splendid basis for matters to relieve the courts and expedite legal business” to New'v ■ ' ’ ' : ; • ■ , 51 York Representative Mathew 1° Herret6 s remark9 "An import

ant me as are deserving the closest consider ati on»31 . It seems that a large majority of the nation's news papers were immediately against Roosevelt3s Court proposalss .as indicated by editorial quotations in the Few York Timeso

The tone of some papers was highly critical and others out right denunciatory* The following was some editorial com ment from newspapers in various parts of the country as ■. / - : ■ . : 28 ,i' ' • quoted in the Hew York Timesg The Hew.York Heraid Tribune warneds • :- It was a French ,Elng? Louis XIY, who said "1,3etat, c'est moi33 --33 !. am the state.33 The paper shell of Amerieah constitutionalism would continue if President Roosevelt secured the passage of the law he now demands * But it . would be only a shell* ‘ ; •

The Philadelphia Inquirer saids

It is not clear, that raising "the" membership of the highest tribunal to fifteen Justices would . . ease its burdens or facilitate Its efforts«' Such ■ a court would not prevent Congress from adopting nor the President from signing legislation in herently unconstitutional0

The Cleveland Plain Dealer deplored the bending of the "Su preme Court to the will of a popular Executive, backed by a

Congress inclined to subserviencyeM The Des Moines Register condemned the plan as "not safe. for democracy*33 The Kansas . City Star called the plan a "specious guise*" The Los Angeles Times condemned the President for a "program of devilish

28 Ibid *, p*10* 52 ingenuity°,t The Portland Qregonlah accused the President of t,:reaching for control, of the, courts and more particularly the Supreme Courto1* o. ' The Arizona Daily Star, not quoted in the New York Times,'after acknowledging certain criticism of court pack-: ing saids, ' 5 . . .. . But;.in spite- of this criticism which 1st / = ' patently- justified^,this recommendation is not . t:- the revolutionary one that many persons will» . The Court will still have all of Its powers-, »• = > Even though the President might add jUdges / " , thought to he.more amenable to his own vie#s,, . " "the - chances ' :ar e that even the judges; ) who . 1 , . ; .woiiLd he leading men of the American bar ? 'would have' thelrlown opinions on most questions = 2.9 The New Sork Times: in its own editorial prophesledi:

The closest scrunity will 'he. given'those parts of it dealing with the^personnel of the judges o Therein lies the greatest danger of political sharp practice— a thi&g which Ameri^ cans are not yet ready to condone under the , uame of j.udicial reform,,'30 \ „ At this early time, apparently the only major newspapers that supported the President's Court proposals were the Mew York News 5 the Philadelohia Record ■ the New' lork Post which wroteI ■ ' " I'lni:' / ■; "i.v, ■ 11.. w .;i - -i- 31 "The message lays seige to, the citadel of special privilege s"

29 . /l'i: 1 1 - Ilf;: Arizona Daily Star, February 7, 1937? P° 100

30 ■ '• ^ '1 : A:; ;ih / h New York Times, .Fehruarv 6 , 1937? P 3' 1.6= ■ ' ■

31 r ‘'v. ; : -'- A .' . v' . l Literary Digest« CXXII1 (February 13, 1937)? 6 . the labor press? the liberal press9 and some scattered news- : 32 : , ■> papers In the South® . .. ; / ^ : hi: The immediate public reaction as expressed by some emi nent citizens, although.mixed, was generally against the plan, Herbert Hoover saidinstead of the ample alterna

tives of constitutional amendments, it is now nroposed to ' ' ' 33 ": . v ■■ ■ ' make: changes by packing the Gourton Norman Thomas criti cized, "Of all the ways to deal with■the constitutional is- ' ■ 3^ sue, this is the least satisfactoryoti William Green, Presi dent of the American Federation of Labor', commented"X am rn ; 35 " . ■ ' favorably impressed with the proposal," John E, Bdgerton. President of the Southern States Industrial Council, said, ' ' v ; ’ ' : " ' ' ' 36 "I believe that every thoughtful citizen will be shocked," Editor William Allen White wrote, "Mr , Boosevelt8 s mandate was to function as the President, not as Der Fuehrer,..,How ■ : ' 37 long will the people be fooled?"

32 ' " ’ ‘ ' 'v ' ; ' ' , A1 sop and Catledge, op, cit,«, p, 72 33 ' : •: ' ' ■; - ■■ ■•.■: ■ • - : / -: - ; . New York Times, February 6 , 1937? p. 1=

34 ' : ■ -. v ; ' ■ : v Literary Digest, CXXIII (February 13, 1937), 5,

35 ' : -- t // New York Times, February 7? 1937? p. 33* 36 . " ; d;:; \ ■ ■ ■ ■ : ' / . ; :V/; . ;7:r; , Literary Digest«, CXXIII (February 13? 1937) ? 5«

37 ■ Ibid, The leaders Qf the "bar reacted as foilowss F, H, StinchfieTd., President of the Amerlean Bar Association^ HI deplore the indirection;, the unfairness 9 the haste and v'i-:.:-: t.;.'/-";:. : :VV V" 3 8 : : lack of consideration involved in this method”-1 George G® Bogeft, President of the American Law Gchool Association^ \ : n i n ■ ''t'-'-t ' 39 • "This plan was. not approved by. the last election”; . William

Draper lewis s Director of'the American. Law Institute 9 "The ... , i f , ' -f, ■ ' ' % : f ' t' :" ' ' - - - President1 s plan, offers a timely way out"t ex~Senator from ; Missouri .James Ab:Reed9. llIt is^ Calculated to destroy the .''' ; ; .. : , 4l . i/vf ' hti / t- Constitution? itself11; : Bainhridge Colby? Secretary of. State ■■■ : \ ; .it.- : - ' i-f v ; h2 :under Woodrow Wilson9. "It; is .a sad and shameful day«" New : fork Supreme Court 'Justice William Harmon Black called the plan "the greatest advance that has ever been made in the interest of real constitutional governments" Charles Ct Burllngham? former Bar Association President;"! am strongly

3 9 a M . : . ■;

if ■ : t; ’ : - -. - Rew York Times,, February 60 1937? p 9 - -Vf ,■ , ' \ v . : opposed”| and Clarence J « Shearn? President of the Bar Association of the City of New York called the plan

M .■ - . ' "Mobocracyo” In contrast to the bar? the law school deans and- pro fessors in various parts of the country seemed to be well

divided in opinion on Booseveltfs Court plan. The follow ing is a list of some of the professors and deans of law schools who came out with statements against the plans

Columbia’s Dean Young B. Smith. ”...not only unfortunate but v ■ ■. 46 -V ^ • ■- - : dangerous”; Chicago’s Dean Earry 1.- Bigelow, "...dictated.. . ■: ' ’ ' . .k-7 ;\ by political consideration”: Illinois’ Dean Albert James Earnow, ” ...tendencyto lower the dignity and the effective

ness of the Court”; and Michigan’s Dean Henry M* Bates, ”It is far better to await the orderly process of' judicial ... 49 -... v ’ .-r ;: • ' ' ■ : : - , action”: and New York’s Professor leslie 1. Tompkins, -4'.4 V ■ ;;'4-." y 5o 4 " ■ " l .. .Machiavellian i n ' character and design. ” As for some of

44 .. . -' ‘ ■ Literary Digest. CSXIII (Pebruary 13, 1937), ,6. 45 4 ■ ' ' : r ■"i' V ' ■ 4 - i ! ' Ibid. - . .. i' :; : : 4 46 ; ’ ;4.- ' 44i::;-':'’.- - • < v ■■ New York Times, February 6, 1937? p = 9° '• '

^Ibid. . 4:V ■::: ■ :

' ‘tS : . . . . . Literary Digest, CXZIIL XFebruary 13, 1937)5 6.

4 9 .-4 4 ' 4 : _ 1 5 0 ; Ibid. ' . • Ibid. the law school professors and Seans who made statements favorable to the plan9 they are as-follows a Yale's Dean Charles g.-'Clark, ”<, o ethe President’s proposals for court > p.;;:.: p .■ • : ' .v ' p,- - I - r " ; '51 reform deserve careful consideration on their merits"; .Loyola’s-Dean John T. McCormick^ ’’It seems to me a good idea P I' ' -'' ' ' ■■■. " :52 ' ' : to get some new blood into the Supreme Court”5 Priheeton's Professor Edward So Corwin, approve the President’s 53 ■ ■ ' - ' - ■ ■ " ; , proposalso = „»”| Yale’s Professor Frederick Bodeil, "I am . v y : " - 5*+ ' ’ ' ' ' ' . \ - P ■ heartily in favor” 1 and Chicago's Professor William W 6- - - . ■■■■■■ ■. ■''■■■■ . "pi.pyp-y-'v 5 5 1 -: Crosskey, ’’It provides a much needed corrective = ” College and university presidents and professors were also divided on the merits of the President’s Court plan» The following issued statements against the plans. Harold ¥=.

Dodds, President of Princeton University, "Friday’s message »o .and•..the technique by which the subject was presented to the ' :p' .. PY . ' ■ ' . 'P::': • • ' ' ' : - .. ■ - "56 country resemble some of the standard practices of Paclsm”;

51 P . ' ' V. - . Y ■■:/- ;p ■ ' P ' . United States News, Y (February 15Y 1 9 3 7 ) a 4-« 52 P; Y V : : ''-VP-' Y Y " ; ' lew York Times, February 6, 1937, p. 9.

United States News, V (February 15,■1937), 4. ft : ■ ' : ^ / ,YY- ' . ; ■ V . ; -pp. Literary Digest-* CXXIII (February 13, 1937), 6*

New York Times, February 6, 1937, pY 9 =

56 P Y V ' ■ • . ' - ' Y'. ; ' p ; - - p Literary Digest,; -CXXIII; (February Ij, 1937), 6, Bay Lyman Wilbur5 President of Stanford T3hiversitys. "Most - n- : 'ii: ''unfortunate1"11 -Henry M 6 Wrist on. President of Brown Uni- versity, M.•.1 - disapprove the current proposal"; Charles Martin, Professor of Political Science, University .of Wash- ihgton^econstituting the court along either conservative or liberal lines is most unfortunate» It is a court of law ' ‘ , - - - ' - ■ ; •v • • - • - and not one of policy"f A. Cp McLaughlin, Professor-emeritus American Constitutional History, University.of Chicago, "o o obut to make provision.whereby a court can be packed to.

secure decisions favorable to a specific lino of legislation is a shocking disregard of elementary constitutional princi-- 60 ; ■ r ' ■ " - - - - pies611 Frederick A» Ogg, Chairman, Political Science Depart* " ment, University, of .Wisconsin; P, Orman Bay, Professor of Political Science, University of California; Harold Bo Bruce,

Professor of Political Science, Dartmouth University, and

Charles: Hi' Mcllwaih, Professor of Government,! Harvard Uni-

versity also made statements against the plan. Some

57 . : - - v V '■ ■■■ z m * . :

. -United States Hews* ^ (February 15, 1937), 5^ t »

59 . :/ p/".. Ibid. • . 1 ' : v 60 ■ : ; V ' " : ' : - Ibid. ; V- ' " " ' ;v 61 Ibid. college presidents and professors who were for the Presi*- dent.’s Court proposals were as follows! the respective presidents of Hew York University, Grinnell College, and u ::- ; - ■ ; 62 : " ' . : ' - :: Arkansas Btate College: Charles. Grove Haines, Professor ' : . . _ 1 ' ' ' : . . 63_ \ ' of Political Science, University of Californias Irving

. ■ '/ -v : ..'1" : , \ " / h - ' 1' ' ' 64 Fisher, Emeritus Professor of Economics, Yale University, and Quincy-Wright, Professor of International Law, Uni-

.. ■ ■■ ■ : 65 ■ ■ . ■ . : ' versity of Chicago«

.Probably no day passed without some more or less emi nent person issuing a statement either praising or denounc ing the Court Bill* The justices of the Supreme Court, how-. .ever, r.emained ;silent, and newspaper reporters were barred ■ ■ ■ from the Supreme Court building» Although there were de

fections in the ranks of the New Dealers, the President re ceived many immediate congressional endorsements from numer

ous senators and representatives„ Senator Henry F= Ashurst : ;of Arizona was one of his earlier, supporters« Two weeks pre

viously Ashurst had. condemned court packing as the "prelude

62 " : ■ - ... . V y'- ■■ Literary .Digests CXXlII (February 11, 1937), 6* 63 ' ' ' . •' ' ''' ■ ’ - - ; United States News, V (February 15, 1937), 4> 64 - : : . ; ^ ; New York Times, February 6, 1937, p. 9» 65 ■■; V;,;^ ■ Ibid. 66 ; ' ■ ", : " . / , ■ ■ ' - " ’ ; New York Times. February 7 , 1937, p. 32= to tyranny*11 When later questioned about this inconsist ency by Senator Joslah W> Baileyyof gTorth Carolina,;Ashurst retorted, t!The man who. attempts to be consistent in his pub lic service may end up consistent indeed, but> never accom- ■ 67 : w " plish'anything else*11 . ; ^ • • . - ;,-; Although the real purpose of; the bill was not once re ferred to in the President's message; or in the At tor ney-Gen- : era!is letter, its actual purpose probably fooled no one*

Roosevelt‘s attempt to•change the decisions of the Court was not hidden by sophisticated 'arguments concerning, the Court 's ■ ■ ■ : ; . W ; ' • , , - ;- 'n - / •• ' it i 't' i'-n- \ inefficiency and conservation because of age* As one writer so neatly put it the "Plan for the Reorganization of the Judi clal Branch of the Government" was suddenly to be called the "1:; ; i'-i; 1 \ , : 69 : f - i ;- : ; "Supreme Court Packing; Sbheme *" . •• ; : • , ' • . ; .

The early opposition to the'; bill soon f ormed in the Sen ate* Senators Burton. K* Wheeler ;Of-.Mont ana, Edwabd;Pro ^Bi^ke-;; of Nebraska, Frederick Van Nuys. of Indiana, William. H, King

of Utah, Tom Connally of Texas, Bennett Champ'•■ Clark:;of Miss ouri, and others stated, emphatically that they were opposed

,to the bill and would fight it;with everything that they -

: Time, XXIX (March 1, 1937)? 10-11, 68. --I:/' ; i- Holey, op*■c i t o , p*

’ Robert 1* SherwOod, RdoseVelt and.Hopkins.(New York? Harper and Brothers, Publishers, 19^6),. p* 89* - , . ' : : . . : .-.fe'v. ' 60 possessedo To the opposition, Jim Farley warned that when everyone had .said his piece, roll would he called, and that there would be plenty of votes for the bill, ■

%.With the large Democratic majorities in Congress, the odds were that the President would succeed in getting his . bill passed0- However, with the above influential Senate, leaders openly opposing,the bill, and: the Idrge number, of 1 senators that were undecided, it was quite evident that there would be a "battle royal" before "Franklin Roosevelt could have his way." Washington newspaper reporters, Joseph 3 1 sop and Turner Catledge, wrote that letters and telegrams 1 ...... ' ' ' ' ' 72 in the ratio of nine to one against the plan flooded Congress. The President, however, insisted that "the people were with him" and ignored the uniting ranks of the opposition. He continually referred to the election and would not listen to his congressional leaders. He often repeated, "The peopie are with me. • I know it;." ; . ' .

. "lloley.. on. cit;-. 1 p. 16O-6I. .

71 '■ ’ =1' ; "" . ‘ ‘ ' V- 1.' ; ; ' Tljne, ;}DCIX: (February .15, 1937)^ 19»

72 : : : --..; Alsop and Catledge? opi. cit., p. 72,

73 : ' Ibid., pp. 76-79» CHAPTER .III

;V THE COURT CONTROVERSY THROUGH MARCH ? ;1937 ' : -

On FeWuary 8 , 1937 9 Senator Henry Po As hurst ? chair- rnan of the Senate Committee on the Judiciary? Introduced.

T3a bill (Ss 1392) to reorganize the judicial branch of the govefnmentf to the Committee on the Judiciaryo" Senator William H* King of Utah asked Senator Ashurst if the bill which he had just introduced was textually the same as the \ / bill' abpended to the President6s Court Message3 and the lat

ter replied that it was except for the title which he had

0 added, - r'"^ ; : ; , ' * : ^ - '■ - Since the bill was introduced in the Senate, it was upon

this body, that the nation's attention was focused =, All of

the sixteeh Republican senators from Warren-R, .Austin of Ver*-

mont to Hiram W* Johnson of California plus, the. conservative.. Democratic senators from David le Walsh of Massachusetts to

: Walter Fi George of Georgia led by the ardent-Hew Deal sena-

,,tor Burton K® Wheeler of Montana? formed a united front against the bill® The administration forces were led by

■ . ;.UoSb.:Congress5 Senate^ Congressional: Record, 75th V . Cong o3 Us f Ses s a P a r . ■- ' ' : ■■■■■ . - ' " ■ ■. 62 Senate Majority ^Leader Joseph'. T» Robinson of irKansas 8 and '

such staunch lew Dealers as Senators Sherman Minton of Indi ana 9 Hugo Lo Black of Alabama3 and Robert M= La Pollette? .Jr =

of Wisconsin: The team, line-ups on February 19? 1937? were-- - for the Court Bill about. thirty? and against it about thirty? and the remainder were uncommitted or undecided| thus? this

last group would be the deciding factor of which all but two 2 : ,; : n ■ V" - ' ■' - were Democratso •. ; • . The. President had two big tactical advantages - -the need

for a solution.to the Court problems and the Democratic Party tie <, : ■ The opponents to the Court Bill f aced, the following problems < (1) Could a satisfactory solution to the court pro

blem be found? (2) Would the liberals be impressed favorably with it? (3 ) Would the Republicans let the Democratic oppo nents lead the fight against the Court Bill? This last prem

blem was soon solved by ah agreement among, the Republican

Senate Minority Leader Charles L «• MeWary of Oregon!and Re publican Senators William E, Borah of Idaho and Arthur Ho : Vandenburg of Michigan? to a conspiracy of silence and to

avoid partisan expression and? Thus? let the.Democrats split ■ ■ ; , ■ '' ::'3 ''rh.:' : " ' ■ ' ' h t : ' ; . - ' and fight among themselves^ . . 'oh- y

' v. : • ■ n " '■ . : ■ .. ■ Literary Digest, CXXIII (February 20, 1937),

'■ A :: 3 ' ■- . ■. ' ' '■■■ .- : - V ■ " . Alsop and Catledge? op. cit»? pp. 96-105. 63 3?he . views of Independent - Senator George ¥= Norris of Nebraska, wnich represented the feelings of . many liberals • both" inside and outside of Congress, were the fear of the ■ precedent that the Court Bill would set, its failure to • ; limit the Supreme Court’s-power -of judicial review, and the

v dislihe; of the sophistries in the plan’s presentationo , : 1" On February 19, Senator Wheeler in a national. broadcast ::said ; Fvery labor leaderevery farmer and every progresslve^minded citizen in the Chited States would have been; shocked and: protested from: the housetops if President Harding, President:Cool-' idge or President Hoover;had even.intimated that they wanted to'increase the Supreme Court so as • - - . to make: it subservient to\ their wishes. The - progressives would have said and rightly so, ' . that it was fundamentally unsound, morally wrong and an attempt to set up a dictatorship in this . ’ . _ t. ; ' / co u n t r y 5- y i": : : V ; . Senator Ashurst, on the other hand in referring to the Court

;Bill saids : ...y : . ; '' - ' - yy/' y. : y :.v: ; ; ;;> : . y : That bill is the mildest pf; -ull bills.: that; :.: . • ■ - could have been introduced' or have been intro duced on the subject and I marvel, in the pre sent circumstances, at the moderation of the President ,-«> ,His proposal does not: tinKer . with the' Constitution^ There is nothing in the bill ' that in any way restricts the Supreme; Court act ing as it has in the. past, _6 • :;

- k ■: .:y;og: y ' - / : : : / :. :v:: y ; ■ . ■ Ibido, p , 95vVg'i-tbh::y.vH:gy y ' /: 'y- " '

. . y -H,S, Congress,' Senateci lppendix to the Congressional He cord ;■ 75th Cong®,, 1st Bess., 1HX%I,: Part 9, 302'... - : it / 6 y:y: - t:; : : : y y'y- :'.i; v y y : . > Time® XXIX (March 1, .. 1937 >>: bl-: " ' y : . : : :v - : :%:';.; 1:: 61,. !Ehe:„ litier als ;were f aced: witti the problem of either ac cepting Boosevelt !s Court plan^ 5whieh was distastefTil, to

some for the reasons already presented and also because it . offered only temporary relief9 or presenting; an alternative solution whieh would offer permanent relief and whieh would- : be . ao cep table to the Administration^ Some of the -alternative

• proposals r-were as .follows s .. (1) a, provision' requiring/ more than.a simple majority of the Supreme Court to declare laws / unconstitutional 5 such as seven rather than five— this pro posal was favored by Senator - Foprisp (2) a constitutional -amendment? proposed Py Senator Edward R» Burke of Nebraska^ ■ which would permit Supreme Court Justices to retire at full

salary at seventy years?, but. require: them to do so at seventy- five years| . (3) a proposal to amend the Constitution so that -

Congress-.would have specific power to -regulate..agriculture, : ■ .. :t. -\r:v; 9 : i...;.-vvi ■ r:: labor 5 and business 1 and (4) an . amendment ? proposed..by...Sena- . tor s- .Whe/eler-/ andJ: Bor ah ? providing that if the Supreme Court

declared' a Federal law unconstitutional? Congress should have the power after the nekt general election to repass the law '

New York limesi February/6?:1937? p« » 8 : ' U/ V; ,/.'/: : '///'; / / : > flme, X1IX (March 1? 1937) ? 11.13.>

9 . u -:'/". ^ ;/ ^ h Ibida :;;p : ,::v; i 3 • y : ; : io and make it valid by a two^thirds voteo

. The President was hot interested in these various al- : ternative proposals, and was quite confident that his own court•proposals would be .passede At this time the Presi dent seemed to have the support of two- powerful pressure groups--’-labor and 'farmers ® Labor was afraid that the Su- ': preme Court would invalidate the National Labor Relations Act which was at that time before the Courts John L„ Lewis5 Sidney Eillman, and George L . Berry all told the press that

Labor1s PonrPartisan.League approved the President’s plan one hundred per cent? and William Green also endorsed the

plan•for-the•American Federation of Labor= As for the farm lobbies9 the National Grange was cool towards the Presi

dent’s proposal9 whereas the American.Farm Bureau Federation

through its President Edward 0 1 Nell3 gave indications that ■ ' . . v ; /. : . ii . . ' . . it would support the plan. ' • - Some well known columnists in the press seemed' somewhat

divided over the Court Billo Those against the plan were: Walter Lippman of New York Tribune.Inc*, whose column ap peared in 1:30 papers|. Dorothy Thompson of New York Tribune?

: '• Edward R » Mur row (ed) e 3- Talks * Special Supreme Court Edition Covering Broadcasts over the Columbia Network in February and March, 1937 (New Yorks Columbia Broadcasting System^ Inc, <, 19371? p, 38= ; I ■ .

11plSe? SCIX; (March 1 ? 1937) ? 12, ' ' " ' - ' '• i Inc3 <■ whose column appeared in 72 papers; Frank R 0 Kent of the Baltimore Sun a whose column appeared in 135 papers | and : Hark Sullivan of Hew York Tribune« Inc o, whose column ap

peared in more than yo papers 0 Those columnists for - the plan were 8 Eaymond Clapper of the 'Scripps-Howard. chain of 2k pa- . pers| Hugh S «, Johnson? United- Features Syndicate ? column in. . 35 papers ? and Heywood Broun? United Features Syndicate?-, col- - ■ . ■■ r’ 12 - ■ . • ' ... V - , V; ■ umn in 43 papers! . : - ; V r Some of the leading American clergymen:were divided in their views0 Comments unfavorable to the President8s plan

were made hy;Methodist. Bishop Charles Wo Flint of Atlanta?. p Episcopal Bishop James 1= Freeman op: Washington?.: MethodiSt Bishop James Cannon? Jro?of the South? Episcopal Bishop ' William T o:. Manning: of Hew. York? Methodist Bishop Ernest / • ; Byn Waldorf of -Chicago? and the Reverend Charles Eo Cough

lin-? a Roman.- Catholic priest of Detroit =, On, the other hand ? statements favorable to the Court plan were made by Metho- ,

dist Bishop Francis Jo McConnell of New York? Episcopal Bish op Clinton S= Quin of Dallas ?. Episcopal Bishop Edward L„ : Parson of San Francisco9 and Methodist Bishop Ralph S. . 13 : - • :■ Cushman of Benver« t t.;- '

■ : ■ Literary DigestCXXIII (February 20? 1937)? 5=

' F . Literary DigestCXXIII- CFehruary 27? 1937) ? 3-^. ; in a. popular poll taken by the American. Institute of

Public Opinion on February 1$ ^ 1937? to the question, "Are you' in favor of President Roosevelt’s 'proposal regarding the Supreme Court?” were the following responses: Yes W]%r No 53^ 5 and'broken down by geographical section^ Bew Eng land— Yes 40% ? No 60% | Middle Atlantic— Yes # % ? ;'No 51%; V

East Oentral— Yes 44%, No 56%; West Central— Yes 45%, No 55% South— Yes- .53%r 4?%; Mountain— Yes- 46%, No 54%; Pacific Ooast— 'Yes 57% ? ; No: 43% ° Consequently, according to this poll in seven geographical- sections, in only two, the .South . and the-Pacific Coast, did majorities favor.the President1s , Court plan* -The results of this poll were also broken down .

as..follows .,by. polities^-Democratic.Yes •■70% ? No .,30%, Republi can Yes 8%, No 92%; by selected groups— reliefers Yes 73%,

No 27%; lawyers Yes 23%, No 77%? farmers Yes 42%, No 58%;/' and'-urban voters Yes 48%, No 52%. Therefore, the poll In dicated that a large majority of Democrats favored the plan

and that the Republicans were well united against the plan, that' reliefers strongly favored,the-plan whereas lawyers -

were in almost the exact - reverse, and that farmers and tir- "ban voters: were fairly well divided on the merits of Roose velt s s Court proposalo '- :n/

Hadley Cantril (edi). Public Opinion 1935-1946 (Princeton*' Princeton Chiversity Press, .1951), p.^ 149. , / ■ ' : ' .■ ■ ■ ' ' ' : ' 68 ; ' Hugh S» Johnson wrote the following opinion on the pub lic fs reactions . \ ' - In logic and law there is'ho answer to the President?s proposal» But Congress hah been . snowed under with objections mostly 'in error 1:t v about what: the proposal really;'means0 Why?'" ^ . Be eause: it' tobk ' a or ack at'' MrHughe s' and' be- . . cause it was too dammed ;slickoj 15♦ - ' ■ . Who:was this Mr % Hughe s and who were the other eight old , . mens that ‘Roosevelt8s Court Bill "took a crack at”? : : :

Chief Justice Charles Evans Hughes«, 75 years old,, was t a Republican born in Hew York on April 11? 1862 ? educated at Brown and Columbia, Governor of Hew York for two terms. ■ \ ' :'l6i; - ' ' i 1 v,: - vbt': ti :/ t . t:';.: : » :■ (1907-1910)? Associate Justice of the United States Su preme Court (1910-1916) , unsucGessf ul' Republican candidate

for the:Presidency in 1916, successful corporation lawyer (1916-1921), Secretary of State under Harding and Goolldge,

a member of the Permaneht Court of Arbitration at the Hague ; 17 , - : V ' - - 'V " (I926-I93O)* and was appointed by President Hoover to be : : - ■■ ■; ' , ' ; • - ■ . ■■ \ ' - Chief Justice of the United States in 1930=. When serving

^ :h'-ia5■Ai--'''; i .-i..-'' \ -. it. ; \.. lime, XXIX (March 1, 1937), 12. -'1/ • • ; 16 A : ' ■ i.lii'■; 1 h-:- Samuel Hehdel, Charles Evans Hushes and the Supreme Court (Hew York? King1s Crown Press,: Columbia University, 19^1%, pp. i-5e : -all'.:'-:': ) tt . t

' l a b i a l : his f irst term as- Governor- of Hew York ? Hughes made this statement § "We are under a Constitutions but the Gonstitu- ' . ' ' . ' - ; : : : - : 19 ' " ;' - . x. - - -: x : - - ' tioh is what the Judges say it is." In his book, The

Supreme Court of the United States (1928), on the subject of , ':

.aged justfees^ M r o -Hughes remarked s. ' : '

■ r ■ ' It is extraordinary how reluctant aged ; judges are to retire and ;tb give ■ up 'their ; accustomed worko They seem to be. tenacious / - of / iheir appearance ,of adequacy* 20 The appointment of:Mri Hughes as Chief Justice was debated vlgorCusly xin 'the Senate with such Senators as Norris? Borah, Wheeler^ Glass and Johnson leading the debate against his .

confirmation* The primary -reason.for their opposition was, . in the words of Senator Horris, that "no man in public life so exemplifies the influence of powerful combinations in the political and f inancial world as does Mr * Hughes«"

Associate Justice Willis Van Devanter was a Republican from Wyoming, Chief Justice of the. Wyoming Supreme Court (1889-1890), Assistant Attorney General of the United States.

(1897-1903), and appointed by Taft to the.Supreme Court in

19100 He was seventy-eight years•of age and the second

Bobert H* Jacksons op* cit» * p» 3 ° ' 20 ' . y- t'.' :x: ' •■■;•• t ■>■■■ - '■• •: Charles Evans Hughes <, The Supreme' Court:of the.' United States (Hew York: Columbia Uhlyersity Press, 1928), pi 75°

•/./- .2Ixt ' f/t.t •: :t ' t ■; . V : ' r t' / ' ■ ' ■ x Hendel» . op* hlto <> . p« 79« oldest of the 1937 Court» Van Pevanter was an ultra-con= servative and rarely voted with the more liberal members of the Court» Associate Justice George. Sutherland, 75 years old, was

a Republican from Utah, a member of the Utah state senate (1896-1900), a member of the United.States House of Repre sentatives (1901-1903)5 a United States Senator (1905=1917), and.appointed by Harding to the .Supreme Court in 1922e He . • was a staunch conservative, ■ Assoeiate Justice. James G° McBeynolds, 75 years old, was a Democrat from Tennessee, an Assistant Attorney General

under Theodore Roosevelt (1903-1907), an Attorney General

under Woodrow Wilson (1913-191^)? and appointed by Wilson "' - ■ ; ■ 2k ': ;: ; / 1 . to the Supreme Court in 1 9 l W -He was an extreme conserva tive and held the distinction of voting against the Hew Deal more than any of the other justices.

Associate Justice Pierce Butler, 71 years old, was a

2.2, , • • - William Ro .Barnes and-.Ao ¥ 0 'Littlefield (edSo), The Supreme Court Issue and the Constitution (Hew Yorks Barnes &Hoble, Inc,,1937)9 p p , '16-17o; " : 23 ■ m .■ ■; - ■ : r ■- - ■ : . ■" Joel Francis Paschal, Mr, Justice Sutherland A Man Against the State;(Princetons Princeton University Press, 1951)9 PP° 3-3 6 , "

' 2¥ V . ' V: . : ' . ; . • Barnes and Uittlefield, op3__cite, p, 17« 25 • - . - 9 . Hew York Times, February 6, 1937. o. 11, Republican from Minnesota5 a specialist in railroad law and

an expert- on -railroad' valuation cases, a member of the Board of Regents9: University of Minnesota (1907-1924)? and was appointed by Harding to the Supreme Court in 19220 He was a conservative member of the Court» Associate Justice Owen Josephus Roberts, 62 years old? was a Republican from Pennsylvania, a successful corporation lawyer, a special government attorney in the prosecution of Fall and Sinclair oil companies, and was appointed by Hoover to the Supreme Court in 19303 He did not regularly vote

with either the conservatives or the liberals| however his

natural inclinations' were toward the conservativeso Associate Justice Louis Dembit^ Brandeis was eighty

years of age ani the oldest member of the 1937 Court, an ex pert on railroad management and.finance, a great liberal and champion of the underdog, and against the opposition of such political leaders, as William Howard laft. and Elihu Root was : ' - : . ;■ - 7 28 appointed by Wilson to the Supreme Court in 1916» He was a

close friend of Associate Justice Oliver Wendell Holmes, who

in 193i wrote this about Brandeiss ' •

r.-26^; / : ; - : : : ;■ ; ' ■ '■ ■' - Barnes and Littlefielda on« cito„ p0 180

: 27 . " - ' . Ibido, po 19. ' " : ;: 28 ' ; . ; '.. y ; V. / 7 ; - : "7' ; Alnheus Thomas Mason* Brandeis A Free Man8 s Life (Hew Yorks The Viking Press, 1946)p. .687« Whenever he left my house I was likely to t say to my wife* MThere goes a really good man." •' v I fhink that the world;.would agree, with me in ", : : adding what 'the years: have proved"-tiand a great ■ " Judge.* 29 ' ' ■ ; '• . . 4sspcl.ate ^iistlee Harlah, FiMce Stone? 64 years old, was a Eepuhlieah from Hew York, .horn in New Hampshire, educated at Amherst and Columbia, professor of law at Columbia f 1908-1910) Dean of the Columbia Daw School (1910-1924) , and was appointed by Ooolidge to. the Supreme Court in 1925. Stone was a close friend of both Brahdels and Holmes and was '■■■■■'■= ' : • - 30 ■ =■■■■.. ■■■• . . : definitely a liberal on the Court. f ■ Associate Justice Benjamiu Nathan Cardoso, 67 years old was a Democrat from New York,.graduated from Columbia, en gaged in private practice (1891-1913)> a justice of the Su preme Court of New .York (1913-1917), a justice of the New York Court bf Appeals (1917-1926), Chief Justice of this last Court (1926-1932), and was appointed by Hoover to take the place of Holmes on the United States Supreme Court in \ : 31 :■ , ■ 4 ' 1932 o He was a consistent liberal. - . . -

The Supreme Court was composed of three justices under

- 29 _ ' : I:'--; z , : ' -4 ::, x 'V ^ 4 4 -; : p - ibid.a po 6l4o ■ 30 4 • : : 4 ' : v,; ' v Samuel J . Hronefsky, Chief Justice Stone and The Su preme Court (New Yorks The Macmillan Company, 1945),44 4

5p. 255-275. ;; ; ■ -■■■■' 30 \4 - : 6. - .■ V: Barnes and Littlefield, opo cit.n, p. 19. ,v-- seventy years^-loberts '(62)s Stone (64), and Card020 (67) and six justlces over seventy years---Butter(71)? Hughes (75)2

/MeBeynolds (75) ? Sutherland (755 s Van Devanter .(78) 9 and \

BrandeIs ($0 ) th the average age of the nine justices as seventy^two years„ This was the oldest average in the Su preme Court’s historyy and: six was- the greatest-number ever ' 32 ..; / t : \ to have been over seventy:years of age» 'Consequently? if the 'Presidentis’ Court 'Bill were enacted and not one of the septu-a -genarians had choseh to resighy he would have been .authorized to appoint six new justices and. thusrunder this bill? per- ' manently have increased the Supreme Court to fifteen. . v;

: In the early days of the Court Fight both the friends and foes of the Court Bill broadcast over the radio their .respective Views. On February 135 Senators Robert M„ la Pol- lette and Josiah Wo Bailey led off with speeches over the Na tional Broadcasting Company. Senator La Follette in his speeeh2;;staunehly iaacking the Presddeht?S Court Proposal?

urged 1 . ; Liberals--be mali s t s --d oh ‘ t: let a lot of pro- .• 3 i : f essibnal legalists— paid to do the iob--blind" you : ' to the woods:while they are showing you the trees. 'Progressives - who: hesitate or divide upon this issue must assume full respohsibility if the mandate regis tered by the . overwhelming, majority of the voters of , - 1 the last; election Is thwarted. 33 , / C i' '

; : 32 - t: : - i:' ' it " : :;: d Ibid., pp. 100-101. : • . • " : . t 5 - ; ' • 23 " : ; '' ;>v : ' e ; \ d : Vital Speeches. Ill (March 1. 1937), Slh. : , ; Seti&tor Bailey in a fervent speech denouncing the Court plan, warneds

' The Court and the Constitutions ■= They" stand to fall togethero The Constitution creates the Court, and the Court declares and maintains the Constitution* To weaken one is to destroy the other o- To weaken either is to weaken the founda- - tion of our Republic; to destroy either is to destroy the Republic0.3% 'Senator Bailey seemed to recognize Hr0 Hughes statement that ^we are under a Constitution, but the Constitution is what the judges say it is •

The following night, February,lb-, Attorney General Homer So. Cummings took to the air and presented reasons for the Court plan and why he considered it the proper remedy«» Six days later, February 2 0 , Herbert Hoover spoke to the Union League Club of Chicago condemning the President’s Court plan with no uncertainty and concluded withs ’’Ladles, and gentlemen, I offer you a watchword— hands off the Supreme 36 . , ' • . ' : ; Courto11 The following night, February 2 1 , Senator Wheeler - . ' 37 ■ i " ■ - 1 ; - • in a radio talk denounced the Court plant On February-2 2 , Frederick Ho Stinchfield, President of the American Bar'

34 ^ Ibid00 po 295 -

Ibid 0 0 pc 295o

36 Ibid00 po 317o

Mtirrow, (edo) Quo cit.« p= 31» Association^ condemned the Court plan-in a radio address= On February 25 5, Senator Arthur: Capper ■ of Kansas spoke over

the air against t$e Court Sill, fhe next night after Sena- - tor .Capper8 s speech? Senator lohert. Jo Bulkley of Ohio? spoke over the radio advocating and defending the President8s - - . ... ; ^+0 ' ' . . _ \ " Court .propp.salo On February 27y Senator James Pc Pope of p ’v; . ; " ■ . - ^ 7 - - . Al ' Idaho spoke over the radio for the. Court piano Representa tive Imanuel. Celler:? Democrat;.of' ISew fork, spoke over the

radio against the Court plan on March I? and that same night : William .Remke ? .Representative at. Large from North Dakota and

the Union Party Candidate for President in the 1936 election, gave a radio address censuring Roosevelt and his court pro- ■■■ - . 42 ;; ' ; ' . : '. - . ' ; . pos'alSe The following night Paul Kern, Vice-President of the.National Lawyers8 Guild, speaking for this organization in a radio speech,'endorsed the President8 s.proposal and said

t To those lawyers I«, Owho helieve with us that r demoeraey must he; responsive to popular will to ' : survive, we extend a cordial invitation to join with us formally, and support the President in'

38 - :'dr ' • r rvy; , - \ : rr • Ibido, p . 42o . . . . :.

39 ■ 1'■ d ■'r'.■ : ' %.,,. : . t Ibido 4 p» 5C® A ^ - - 40 . r •. ' ' ■' ■ • ■ -' ': ” - Vital Speecheso III.(March 15, 1937)i 343«

A: \ A A d dtrAV' ; 4 ■ Murrow Cede) op, oit« <, Pa 57,

42':' ' ' :: dr r :'4dd.-v.di; ■ ' Ibid9 9 pp» 62-73 0 . ; % • . V 76 his propasal to enlarge the Supreme Cdurto 43 Om March 3@ Representative Arthur P, Lammeck, Democrat of Ohio> over the radio denounced the President8s Court Bill

as undermining the Supreme Court 9 which ,?remains the last r . • ' : : hiilwar'k of the people’s rights»’* • '

On March m-j at a $100 a plate Democratic Victory Dinner at Washington.-s Mayflower Hotel, Franklin Boosevelt spoke to ...... - • . thirteen hundred diners, and a large radio audience„ The President saids . ' k

Oh this fourth of March, 1937? 'in millions of homes, the thoughts of American families .are revert- - ing to-the March %'of another year»»d oHow we face • _ : another crisis— of a different kind but fundament-; . tally even more grave than that of four years ago* 46 Boosevelt went on to say that the shouting and the bluster ing against him at- this time were from substantially the

same element that opposed him in the 1936 elections Be stated that his. administration had begun 11 to move against conditions under which one-third of this.Bation is still ill-nourished, ill-clad, ill-housed*9. He described the

^3 z ' ; Ibido, p e 76. ;

Vital Speeches, III (April 1, 1937);?-372®

45 ' i- 't - ^ . 4 Time , XXIX (March 16 , 1937), 14. 1 / ' - 46 ’ - \ -. v V:': ' ...... ' Public Papers and Addresses of.Franklin D« Boosevelt, I937jjolo,cpolii3;0 ' ’ - .' T ' - ':;:v _ v ■ v: : / r n government as a three horse team and used the following ; homely analogy to . express the. Court prohlems

If three well matched horses are put to the' . . task of ploughing up a' field, where: the going ' is .heavy? and the team of three pull as one, the. field will he ploughed» If one horse lies down . -; in,the traces of plunges off in another direc- ; tion? the field will not be plougkede 4?

Roosevelt declared that many of the major efforts of the New Deal had been prevented by- recent .deeisions of the Supreme Court ? and that through -these decisions, the power of the

Federal government to attain nearly all of its objectives had been cast in great doubte., He further deelaredo ’’We gave warning last .Kfovember • that we had :just begun to fight® Did some people' really believe, we did not mean it? ¥ell--I . meant it9 and you meant itThe President concluded his appeal for Democratic unity.o '11 If we would keep faith with ;

those who had faith in us5 if we would make democracy sue- ■ . • ■ . , ' . . . ■ 48 . . , : ., v . , ' ceed9 I say we must act— now!" ; . -

The reaction to the President"s Victory Dinner speech was mixed:* Steven Earlyj- White House Secretary9 said that

.seven-'but of eight, telegrams received were favor able to the

Pre'sideht ’ s Com?t Bill® The Democratic - opponents to the

47 - ' : t : .. ■' : ' ■; f . Ibid* ? p» 116*

48 : 1 : " Ibid**' no 121*: -, ; '49- " : ' : New.York Times * March.6? 1937? p* 1* ; ' ; , ' 'T':- ' . . • >v-. . ■ '. ' 78 Court'Bill seemed to be unmoved by the President8s: appeal for party loyalty® Instead of returning to the fold, they made plans f or taking, the issue to. the country to show, the people the 18Innate, wickedness of the scheme®58 Court plan hi opponents, Democratic Senators Burke ? George? Walsh3 and '■ Copeland» all were soon to deliver addresses against the ■ Bill at Carnegie Hall in Hew York City,.' The President8s

followers regarded his speech as a masterpieceo Senator t ■, ' o : : ■ ^ ■■ ■ -:/;'-":7i Norris called it lithe best speech Mr« Boosevelt ever made Secretary of.Agriculture"Henry Wallace said it should en- ' -'’'v ''7 ' 52 : ' ' r ' list the support of the farmers. Senator Clyde Lo Herring ' • . ■.■■■' i ' • ' ' ; . 53 ofIowa said 9 "They will eat it up where I come fromh"

Senator Edward B® Burke of Nebraska one of the leaders of

the prprcourt wing of the Senate Demoerats asserted: h If the President thinks that.»0those "defeat ist lawyers18 „>=0.are. the only ones opposed to his ■ plan9 he is sadly mistaken® -The most bitter op^ V h' position to the plan is-from- people who wholet- '.7- ' t hear ted ly supported the President, last November <= 51+

50 - - ... - - -'.;-

■ M d o ' ' 51 ' ’ ' '"■ 7.:IMde.

52 i 7- ' bV-'-^:d-'V.;'7"7.v- Time. XXIX (March 15, 1937)? 15^

53 : 7: -:;'7 m m - d 7 -/ 54: : //'' 1 : -7 '' Ibid, ; ■ , . . , 79 Senator Burke8 s statement was borne out by the many Democrat-ic Senators who .supported the President previouslys but who were agelnst his Court proposal9 and by the Demoeratic newspapers which backed Roosevelt in the 1936 election, but were opposed

55 V. ...v. to his Court Bill*

@n March 5% Sidney Hillman% President of the 'Amalgamated Clothing Workers of America9 in an address over the .radio strongly supported the President’s Court plan, Mr, Hillman said s - - The issue today is democracy 'versus 'this dicta torship— democracy as repeatedly expressed by the' people in 1932? 193^? 1936? as against the narrow5 prejudiced concepts--their own creation— of'a Supreme : . Court which knows no law other than of its own mak ing, American labor«, organized and unorganized5 takes its place for'democracy against dictatorship in this - crisis, 56 • On March 6p Bepresentative John M, Flannagan? Jr,? Democrat of Virginia^ spoke over the radio in defense of the Court: 57 - ■ ; ' ' ; . : . -■■■■■■ , - - • Bill, That same night, Senator Burke condemned the plan in '■■■ ■ '. s::'- 58 : : t ■. ' / v - ' tt- , ■ ; ; - a radio address. The following night Judge Ferdinand Peeora?

New York Supreme Court Justice, delivered an address over

55 '-'V'-d;: ■■ ■ New York Times, March/6,: 1937, p, 2,

56 ':5'2 : :Murrbw (ado) ypgp^e^cito-;. p , 100,

57 - • s' -di" . ibid,, p, 101,

58 ■; ■. .. Ibid,? p, 104, _■ - 'r • " ; ' 59 " ' - x ," the air defending the Court plan. In a radio address fol lowing Judge Pecora8 s speech, Raymond Molev. editor of Iifews-° week and formerly Roosevelt1s confidante, denounced the - ; 60 : : . - ; ' d : Court plan. The following night, March 8, Major George R. Berry, National-Chairman of labor's Non-Partisan league, and President Roosevelt1s coordinator between labor and industry, in a radio address stated that Laborf s Non-Partisan League was solidly behind the President’s Court proposal and asserted that the League would attempt to reward the friends and de- : ' 61 : , ■ . - - - • feat the enemies of the Court Bill. That same day a group of farm delegates called on the President headed by M. ¥. That cher , chairman of the Wheat Conservation Conference. After the meeting Mr. Thatcher issued the following statement for the delegations ■ h

We believe in the President’s ability and deter mination to preserve our democracy and at the same time, improve the welfare of the masses. We reaffirm our faith in his leadership -and will give him our ' full support. 62

Although a majority of the country’s presses probably consdmed forests of trees condemning the President’s Court

59 i- - - • ■ '■ - ■' . ■ ■ . : - ibid., p. iiq. / ;; 6C ' t h -'.' : ' - - : ' Vital.Speeches ill (March 15, 1937), 3ti, ;6i Murrow (ed.1 op. cit.. p. 122.

62 : ' ' ' . .. " ■ : ■ . New York Times, March 9? 1937#?py»IX* 81 .Bill ? the Hat ion and the Heir BepubliG contained some 'power- jpul editorials on behalf of the bill« The Nation pointed : out editoriallyg “The issue; is one Of deinocraey versus a ■■ possible fascismt But the side of Congress and the Rresi- ■ i- -:: -::.:-.'ii. -: ": %;.';'h.^3 -.': / -^ ^ ^ h-' i-i- dent is the^side- of dempcracy." Editorially the Hew_Eepub- .

lie assefted’s: “Borne effective way or ways must be found of ;’registering" a, national; desire that the Court act differently at the present time» * Packing * the Court is as good a way to : . ';;; 64 ' .; ' ' - ^ - ‘ i ;. ■■■;■■‘ • - v1 do this as. any 0 The Commonweal took a middle., of "the, road - stand; and editorially pointed out favorable points on both : ■ . ;' - 65 . ' i ; ' < i; ■sides of the ■.controversy, whereas the Christian Century .. ■ , ' . ' ; ■ . , ' : ■ ■ ■ ': ; ~%6 . \ " : came forth on the side of. the President = ■■: ,, ' : ’

On Tuesday9 March 9 3 President Roosevelt in a “Fireside

Chat": over a nation ,-wide broadcast'' diseussed his plan for the Reorganization of the: judiciary.. -The. Pr e s ident. - at t emp t ed to j explain his bill to the people andvanswer.his many critics. First the President explained the reasons for his Court pro posals by describing: the. "or is is "that c onf r ont S the American • system of government° He asserted, that the Supreme Court

63 ;;v- - \ : . ■,;> • r ^ \ - ■ Nation* CXXXXI'7 (February 203 1937) ? 2010

New:Republic. LXXXX (February I?; 19371$; 82. ■ - 65 : id.'" ’ : 6Wmonweal6 (February 26 3 1937) 5 481.

Christian Century. LIY. (Febfuary. 17? 1937) ? 206. :■ ' ;■ • ; 82 had set itself up as a 11 s uper -1 e g 1 si at nr e M and was attempt ing to block his entire program. He urged a rereading of the Constitution and challenged this" power,, asserted by the

Supreme Court, He quoted judicial dissents by Chief Jus tice Hughes and Associate Justice. Stone to support his criticismThe President called for action “to save the Con stitution from the Court and the Court from itself,M To the charge made by both Senators Burke and Wheeler that he had broken his:1936 platform promise to seek a “clarifying amend ment11 if Hew Deal problems could not be “effectively solved within the Constitution,“ the President replied 1 “We said we would- seek an amendment only if every other possible means by legislation were to fail,“ -

Boosevelt? then, said that upon,studying the problem he reached the conclusion that infusing new blood into all of the courts was the only practical and sound solution, ..; He restated his proposal and asserted that it would avoid “hardening of judicial arteries,” and he cited precedents to show that there was nothing hew or radical about the idea. To the charge that he was attempting to pack the

Court? the President replied" , : ' If by the phrase “packing the Court" it is charged that I wish to place on the bench spine- less puppets who would disregard the law and would decide specific cases as 1 wished them. to .

6 7 . i- . '1 ' :' .i"\ • Public Papers and Addresses of Franklin D , Roosevelt, I9373?ol,? pv 127= 83 be decided ? 1 make this answer s That no' Presi dent fit for his office would appoint^- and no • ' , Senate of honorable men fit for their office /; ■ would confirm^ that kind of appointees to the ' Supreme Court, : > , . ' " . - op But if by that phrase the charge is made that I would appoint. and ; the; Senate ' Would- :con« ■ ' .firm justices worthy to git beside present Mem bers of the Court who understand those modern' ' o . conditions; that X will appoint justices who , / will not undertake to Override'theo judgment of : % o 1 Congress pon; .legislative, policyf that 1 iwili' p/tpp' - appoint justices who will act as justices and P : " ;".P not as legislators-”-if the appointment of such , P p justices can be called "packing the Courts"— , ,o then I say.:‘that X, and with me the vast majority o of the imerican people9 favor doing•just that . -thing— nowo- 68 t'P' ; y/y^-p p; p , ip‘ -p

. h- The President amended his charge in his March -1,. .. ; '

Victoryppinner Speech that his.opponents, then and dupingp' ‘ the previous, 'eampaign, were one and the same 9 by putting his

opponents into two groupsi The first group were those fundamentally opposed to modern social and economic legisla- . tion5..and were, now making a, last,.stand insisting,, upon an. . amendment nin order to kill off by delay the legislation.de

manded by the mandate *11 , The other group was composed of '

those who sincerely believed that the amendment:p r o c e s s was

the best and who would be willing to support this ;;type;, of,

reform. Roosevelt warned this latter-group that the first' group would/”sabotage any constructive; amendment” which •’ 1

might be' proposed ., Be asked ^ ’’Look- at these strange bed fellows of yours o when before have you found them really at

68 P - : Ibido, p= 129. ■ 84 your side in your fight for progresst1' The President also pointed out that even if' an amendment were passed and even if it were eventually ratified^ its meaning would depend

.upon the type of justices on the Supreme Court0 He pointed out, "An amendment like the rest of the Constitution, is what the justices say it is, rather than what its framers - ’ ' 69 ' . - . or you might hope it is .

The President summed up his reason for judicial reform through legislation as followss (1) it could be passed at the present session of Congress| (2) it would provide for a reinvigorated and liberal-minded judiciary, which would fur nish quicker and cheaper justice from top to bottom; (3 ) it would provide a system of Federal courts which would en- . force the Constitution and would not ^assert legislative powers by writing into it their own political and economic policies»M The President concluded, "You who know me will accept my solemn assurance that in a world in which democ racy is under attack I seek to make American democracy suc^ 70 ■ ■■ .. ... ' . . . : ■ ceed."■

The following were some congressional comments on;the : ■ ' . . v: ^ ^ 71 v President8 s speech as quoted in the Hew.York Timess

'■ 69 : ' ■ Ibid., p. 132c ■

: ' 70 ■ . ' ' ■' '■ Ibid.. p. 133° 71 ' ' ' ■'' '■ : • : : . ' Hew York Times. March 10, 1937, P^ 15= Senator - jLiben. Barkley of Kentucky said 9 11 His address clari

fied the proposal and demonstrated beyond question the sin cerity as well as advisability of this step"; Senator Burton Ko Wheeler of Montana stated®. - - . r ' . "

The whole Cabinet and administration aremade up of strange bedfellows— for every,liberal there are two., reactionaries o It was a very clever argu- . . ment'5 but -wholly unsound = He said he wanted to find a way to take an appeal from the. cbmte ' ThO amend-" ' '-r . meht I submitted is the way. After checking with, my . . V- colleagues9 1 say ah amendment can be passed now.

Representative Maury Maverick of Texas said with enthusiasm 111 think it was the most forthright speech he ever made $n , whereas Representative Arthur ..P, Lamneck of Ohio said 9 "It hasnf t eonvef ted me,ti : ■ ' y. . On Wednesday, March lOg the day after Roosevelt's "'Fife- - ;; side Ohat" with the Ration? the Committee - on the. Judiciary of the United States Senate began its hearings on the Presi dent's bill to reorganize the Federal Judiciary, Eighteen

senators composed the Committee on the Judiciary--fourteen ; - . ■ ' , : ; 72 . : ' ..... : ' ' ■ ' ' " : . of whom were Democrats, The committee met in the caucus .

72 • ■ / Members of the Judiciary Committee were as follows t '. Henry F, .’Ashurstg Arizonag "Chairman^ William H, King? Utah; M» M , NeelyWest Virginia; Frederick VanHuys9 Indiana; . Patrick MeCarran, Nevada; M. M , hogang Kentucky; William H, Dietefiehg, Illinois j George McGill9 Kansas; Carl A, .Hatch, New Mexico; Edward R, Burke, .Nebraska; Key;Pittman, Nevada; Tom Connally, Texas; Joseph C, 0 8Mahoney:,. Wyoming;: James H, Hughes,:Delaware; William.E, Borah, Idaho; George W, Norris, Nebraska; Warren R , Austin, Vermont; and Frederick Steiwer, Oregon, . ; ; ' .. k ; ' ' . ■ ' 36 ■ Mo cm, 318 Senate Office Building at 10:30 A,Mo All of the committee members were present plus Senator William .Go : , 73 '■ • " McAdoo of Calif or nia0 - ^ : , : m The committee hearings began with witnesses for the v' : passage of the Court Bill ? and the first of'these .was Homer So Cummings9 Attorney General of the United States» In his

statement before the committee, the Attorney General stressed

four reasons for the President's plans (1 ) the hopeless -situa tion caused by the rash use of injunctions in preventing the execution of Fedepal laws; (2 ) the presence of “aged or in firm” judges on the Federal bench5 (3 ) the crowded condition of the Federal dockets, and the resulting, delays in the lower courts, and the heavy burden placed on the Supreme Court; and (h) the need for an effective system to infuse new blood

into the judiciary* He urged that the plan was necessary to 7 v ' 1 ; " : ■ _ - , : ■ ' '74 restore the governmental machinery to its: proper balance» When he had finished his statement, Cummings .was asked a

number of questions by several members of the committee, for examplet - - . ' ■ :

73 . V ■. v : ■ . d UoSo Congress, Senate, Heorganization of the Federal :• Judiciary„ Hearing before the Committee on the Judiciary, :UoSo Senate^, 75th Cong,, 1st.Sess<,, on So bill 1392, Parts i—4-0, p. 1 o -

74 : ’ ■ - . . : :: Ibid.. pp.: S-y. ■ ; Senator Burke» Just one further question. As I understand it? you feel it would be' en~ tirely $rpger;to-legislate to appoint six ad ditional judges to the Supreme Court who would have.a liberal, forward-looking view? Attorney . General Cummings» Do I think it is proper? .Senator Burke. Yes. ;; Attorney General Cummings« I think it is ■ hot only proper, but that it would be highly desirableo 75

Although there were some, periods of give and take, the questioning period altogether was quite mild. According to the Hew York limes. at no time did the Attorney General lose an appearance of Hsuavity, complete self-containment, and amusemento” Cummings pushed aside any suggestion of a con st itut iqnal amendment, but nothing too conclusive seemed to come from this committee session on March 1 0 . ' .

The following day, the committee heard and. questioned : Robert H. Jackson, Assistant Attorney General of the United States. Jackson made the following points in his state ments (1 ) Since the authois of the Constitution deliberately gave Congress the power to.change the size of the Supreme Court, they clearly intended that Congress be responsible for the adequacy of the Court's personnel "both with respect to number and to neutrality of attitude,11 and he pointed out that Congress had used its power six times for that

75 ; =■■ Jbid., p. 3%. . ‘

76 •. ' ; ■ - Hew York Times. March 11, 1937, P<> 1. ; :■ . . : :: ■ . ss . 77; x ; ■ :: . - : ' /: - : ' purpose» (2 ) He asserted that the judicial power over fed eral legislation had expanded rapidly and had ’heeowe simi lar to a veto, He pointed out that in the seventy-one years , between the adoption of the Constitution and the Civil Mar^ the Court only nullified two acts of Congress9 but in the seventy-two years from the beginning of the Civil Mar to the

end of the Court’s last Hoover administration term, it had overruled Congress in some sixty cases; however, in the three- years since the beginning of the Boosevelt administration, the ’’Court has refused to recognize the power of Congress . : ■; ; ■ ?8 - ■ • ; ■. : ; ; '■ - . •■■■ in: twelveeaseso11, (3) With regard to amending the Consti

tution to broaden it, Jackson said s To offset the effect of'the judicial attitude reflected in recent decisions it would be necessary to amend not'only the commerce clause and'the due process clause, but the equal protection clause, . ' the privilege and immunities clause, the tenth - amendment, the bankruptcy power, and the taxing and spending power e Each one of those clauses has during the past years been so unwarrantably ‘ ; construed as to call forth indignant dissents from . the liberal minority of the Court» Judges who resort to a tortured construction of the Constitution may torture ah' amendment. You cannot amend a state of mind and mental attitude ' . of hostility to exercise a governmental power and of indifference to the demands which democracy attempting to survive industrialism makes upon its government o. 79

7 7 : - : ■ ■■■/ t , . ■ ■ ...v ■..: - ■' U 0S 0 Congress, Senate«, Reorganization of the Federal Judiciary, Hearing before the Committee on the Judiciary^ ' U 0S 0 Senate, 75th Congo, 1st Sess., on S 0 bill 1392, Parts 1 -^; pp°.38-^1 « . . v . : - 78 . ■" . 79 ■ : Ibid., pp« 4.3-45° ■ Ibid.p. 43» - ' . 89 (4) He pointed out. that the judicial power was also impair

ing states1 rights in that the tenth amendment was not used to maintain the power of the states, but was- used to severely limit the power of the Federal 'Soweinitent , and when the

state attempted to use these same,powers, the Fourteenth .Amendment diie process clause was used to restrict the State power,); consequently, -a nno man8 s land9 of laissez faire economics existed "beyond the reach of Federal and State ' ’ ' ' 80 ; ■ . . ■, ' • ■ ' ' . , : • powefo11 (5) He asserted- that the Court had impaired its prestige and function by a serious split? and that only by the addition of new members can it be restored to its proper, rolei Jackson concluded his statement as follows s

I have attempted to review dispassionately some of the failures of judicial selfsredtE&Sht by which the. Constitution “as the judges say it is11 has departed from the Constitution which Woodrow Milson said "is not a mere lawyer rs docu- ;" ment; it is a vehicle of life, and its spirit is always the spirit of the age»" 8l

'Time magazine described Robert Hi Jackson's statement :

in three words, "Jackson made out a.ease for the President$s plan which earned the praise of its bitterest foes, delighted ; . : • ; • ■■ : " v ,t ' , 82 its friends as perhaps the most persuasive yet presented611.

80 ; - : t ' Ibid . , P O 47=

:8i : . : IbldaV Oo 5lo 82 ; id - : 4': : :■■ : ■' TimeXXIX (Mar ch 27; 1937) ? M o D * 90 Sena'tor 0 ’Mahoney in opening the questioning complimented Mro Jackson on his presentation and added that Mit would be ■ : - : ' ; ■ V ' v. : . 83 difficult to imagine a better statement of the facts e11 When questioned by Senator Connally9- Mr o Jackson agreed that the success of the President1s plan would.depend upon the appointment of new justices who would uphold the laws o f . t the New Deal* Then the foilowlhgdiscourse occurred? . . Senator Connallyo The.thing.that interests you is that the Courts as now constituted? does not construe the Constitution like you think it should be construed, and you believe by getting \ six- new judges they might construe it in the way it should be done* i. • - . " ' ‘ ' ; : Mr» Jackson-. I • think one of two things would . - happen* They would either construe it as 1 think it should be construed, or I would know that fair judges of my generation think I am wrong* - The Chairman*. Your, position is that the Supreme Court should not be ignorant of or blind to that which is transpiring in the world today* : Mr * Jackson* That is a -fair statement* 8k "Witnesses on behalf of the administration testified

from March 10 .to March 20* After Cummings and Jackson, the other witnesses for the court plan and- the order in which

they appeared were as followss March 12, John P» Devaney, , , " ' . - ■ :: ' . " : v; ■■ ' - ' 85 . President,. National Lawyers8 Guild, Minneapolis, Minnesota;

. gg : - ■ ; ■ - . . y ; - / ■ ■ - •y , ; ■■ ■ - -' - - U.S. Congress, Senate, Reorganization of the'Federal Judiciary* Hearing before the Committee on the Judiciary, D-S* Senate-,: 75th Cong*, 1st Sess* , on S* bill 1392, Parts v 1-4, p* 52* : '

- 84 ' y: ' - " 11''- . r ■ . Ibid* , p* 6 3 * .. : .; 85 . : V i -y'.,' -Wyi- ry "y It id:*, PP* 65-95*. • .. " : March 16«, William Greenj President of the American Fed era-* tion of Labor ? and Justin Miller, formerly Dean of.Duke University Law School, member of the United States Board of > ; . 8? : ' ' L:; - ' 16' ' : j- • Tax Appeals| March 17? Edward 8* Corwin5 Professor of Juris- ■ - ■ ' ' ' 88 , ' - ' ■ prudence, Princeton University: March 1 8 , -Leon. •Green, Dean, : / t - - - ; 89 :: .v '-.- -■ - Northwestern University Law School^ and, Thomas F» Zonop,

’ 90 : Dean of the Law School of the University of Notre Dame;

March 19? William Draper Lewis, Director of the American ■..91 : L-:;' ■ ; : ' ■ v • ^ • Law Institute, and Charles Grove Haines, Professor of , : - - ' : 92 Political Science, University of California at Los Angeles-f ■ - : ■ • ' - - ' . : ■ . 93 March 20, Irving Brant, Editor of the St* Louis Star-Times Q and'Ferdinand Peeora,■Justice of the Supreme Court of the . -: _ 94 ' State of New forko On March 22, Senator Burton K 0 Wheeler of Montana was

the first Witness against the. Court proposal=- Senator Wheeler favored Court reform by way of a constitutional

amendment«. As part of his testimony, Senator. Wheeler sub mitted a letter to him from Chief Justice Charles Evans

86 ' . • : ' . 87 ; : ■ 'Ibid., wo, 97-127o Ibid., pp. 127-166,

88 89 Ibid. , pp. 167-22%. Ibid,, pp., 229-2 8 3 . 90 , ' 91 Ibid., pp. 283-305. Ibid., pp. 306-337»

92 ' • • ' ' ' 93 - ' ’ ' ' ■ Ibid., pp. 337-3 7 8 . ' Ibid., pp. 379-421. 94 ' ' t " 4''' ' '■:'■: : Ibid,, pp. 422-478. 3 . ■ Hughes, wJao point by point struck down the procedural argu ments which the President and the Attorney General had originally used as the basis for their Court plan* Hughes did not-discuss ..^nyiPbiiey-issue: connected" with the Court Bill® In his letter the.Chief Justice made the .following poihtS.r (I) -that the Supreme Court was "fully abreast of its work,!- and that -.no congestion of cases upon the Court •.calendar existed, uahd pbinted-outs t This gratifying condition has obtained for .< several years.; We have. been able for..; several terms to adjourn alter, disposing of all cases : ; whibh are ready to -be heardo- : : V " ' t t".\ p

- (2 ) that from 1930 to !935>,/ there were from 1,023 to.1 ,132- ■

cases on the.dockets at the.beginning.of each term, but there were only from 102 to 139 cases' left over at the end of each term; (3 ) that, as for;a limited number..of appeals, under the Act of 1925 'only "certain - eases can' be) appealed to : the Hupreme Court as a '. matt er of right; (4) that appeals by .

certlorari are granted only b y :the discretion of the Court; and Hughes- pointed outs. . : - pi ' ' . •' Hosts of litigants will take appeals so long ; " , as. there is a tribunal accessible »'V • .When the dis- . - -satifled -party has been accorded an appeal to the ' Circuit Court of Appeals, the litigants so far as - mere private interests are concerned have had their - day in court. 'if further review is to be had by the ." : Supreme Court . It : must be because of the public in- .. ' '-terest:-in .the ■question, in 3 . ' ", ;"" ■ (5 ) that' the - public Interest" was closely defined by the '

Supreme Court 1 (6 ) -that applications.: for appeal,' although voluminous, did not overwork experienced justices, as 60^ . t. are ”wholly without merit and should never have been made? 11 about 20fo ,rhave a fair degree df plausibility but fail to survive critical- examination," and 20^ or less "show sub stantial grounds and are granted.°..If any:error is made in dealing with these applications it is on the side of lib- erality'H (7) that "an increase, in the-number of Justices of the Supreme : Cpurt apart fr om;. any, gue st 1 on of policy, . which I do not discuss, would not promote the efficiency of the Courtsince, according to Hughes, there would have been more judges to hear, to confer, to discuss, to be con vinced, and to decideo The Chief Justice concluded that be cause of "the shortness of time," he was unable, to consult with all of the justices on his.letter, but wrote that he was confident that the letter was.in.accord with their views, and added that he had been able to consult with Jus tice .Brandeis. and Justice fan Dev ant er and that the letter V . b.":':; 95 V ::.-7 ..d;- was.approved by both,of them* ^ . Although Chief Justice Hughes did not discuss policy, Senator Wheeler did and Ih quite an effective manner» In his. testimony before the committee, Wheeler quoted Woodrow. Wilson's statement to the, effect..that to increase the size of the court to get favorable"opinions was an outrage upon "eonstitutionallmoralitye" Although Wheeler, conceded that

Ibid., pn» 4-88-4-92. t M statement was made in 18869 he believed that Wilson had V never, changed. At this point Chairman As hurst interposed that if Wilson had changed his mind$ it would not have been ■■■:■ ; ; ■ ; ■ ; - ■ ■ 96 unusual for a man in public life, , Senator.Wheeler also quoted Franklin Roosevelt in his book hooking Forward, pub lished in 1933% ;tor the:;effeet:;;thatvto .Increase the courts to help relieve their congested .coMitions-would only be adding to the "ravages^ of the disease = . The Senator cited and de fended his own record as a liberal? and asserted that he had advocated the extended use of Federal powers when many of those • who were then .supporting the' Court Bill r :were opposed to them. Senator Wheeler said: , :

Now^ then, somebody is going to say'to me, 1 if you agree with those views 9. why do 'you not. < go along with the President of the United States and put six men upon the ;CoUct, who' will agree to : put into, effect these views? Well<, I am not a : college professor s and I cannot , I have not any ,.. charts- ta; followf but- the-Cbnstitutibn provides the way when you want to amend,V.that.fundamental' document» ,,They provided . how it . should be done ? and I am here now to'.say to; you gentiemen?- that ' I favor a constitutional amendment? but I am not in favor of packing the Court, I do not believe . that.the. ends iustify;the>meansii98 - ; ; ' .. : ■ . . The afternoon of the day that Senator Wheeler testified3 - . - ' ■■■■ " . 95 Bo Ho Everson, National President of the Farmer8s Union - ' ■ V '■ : ■ - ; . 99 .issued, a statement against the bill before the committee0 .

Others who came before the Senate Committee on.the Judiciary with statements against the Court Bill during the monthaoff ■ •

March were as followss March 23? Baymond Moley, Editor of ' . '■ . . ■ . .. ;; ■ - ' -. ■ r: :::i ■: 100 Newsweek and Professor of Public-Haw at Columbia University,

and William Lemke, Representative at large from the state of ■ 101 . ' • l ' ' ; ■ . North Dakota| March 24, H* ¥» Dodds, President of Prince- .1. ■ 102 ■ ; '."vv; t ; ' : ton University, Louis J 0 Taber, Master of the National 103 . - ■ . ; - . \ ' ■ '■■ ■ " " Crange, Theodore Graebner,.Professor, of Theology, Concordia :: 104- College, Sti Louis, Missouri, and William Earth, Publisher ' . • ■ f - : : 105 - of the Missouri Farmer■> Columbia, Missouri| - March 25, Fred .Brenchman, Washington, DoC«, Representative of the National ; ’ io6 ' ■ ' : ■ - : v: ■ .' : . ■ ' Grange, Youhg Bo Smith, Dean of Columbia University Law

10? ■ - . ■•...■■ . School, and Dr o'.'Gould Wickey, General Secr etary of the

Council of Church Boards of Education and General Secretary : ;■; I "-I'' • h . - ■ ' 1 : ■ ■ . ; 108 of the National Conference of Church-Re1ated Colleges;

^9 100 ;. Ibido , pp. 519-537. Ibid.. PP° 539-590. 101 102 Ibid., pp. 590-615. Ibid., PP. 617-6 5 6 . 103 104 ' Ibidt, pp. 656-678. Ibid., PP. 678-684. 105 : ' ' 106 Ibid., pp. .684-691 o Ibid., PP. 693-715. 107 108 ■ Ibid., pp. 715-750. Ibid., PP. 750-753. March 30) Erwin No Griswold, Professor at- Harvard University' ' ■ : 109 t ; ■ ■■ -"Daw School) - and John Dt Miller, President of the National

Cooperative Connoi1— an-investigational organization for many of the farm cooperative associations in the United ■ ■ 1 ;no ; t Statest March 31? Edwin Borchard ? Professor of Constitu- I'-; :>,X; L : 111 r--: tlonal law at Yale University): and Miss Dorothy Thompson, t . : i ■ ! ■■ 112 :o- p : ■■■ ' - . columnist- for New York- Herald-Trihune, Inc» - While the committee hearings were'going on, speeches X. either for or against the - Court Bill were .still being pre~ r sented -over the. radio> On March 10, the day after, the Presi- dent ’s ’'Eireside Chat)’’ Senator Wheeler attempted to answer :' the President’s Victory Dinner speech and again thoroughly denounced; the Court Bill, That same day Representative V

Henry G,:.Teigan, Farmer-laborite of Minnesota, spoke on be- . ' half of the President's plan. On March 12, Representative Martin,1, Sweeney, Democrat of Ohio, spoke against the- bill,-

and on March 17, Representative Usher L, Burdick, Independ- . v - ■■-. . ; ■ -t.'.-. , ■ X; . ; X X ,x x 113 ent Bepublioanof North Dakota, condemned the Court plan. Other pro and con speakers' during March were as follows s.

109 ; t I ; -X: 110 - : i' -; Ibid,, pp, 760=808, -' Ibid,, pp, 808-822, 111 - 'XX : ' 112 8X". Ibid,, pp, '823-858® '• • Ibid,, pp., 858=884.

X: Y ■■::v.l YVntX;X:YX.-Y . Murrowv op, cit., pp. 132-156. . ■ James Mo Sandis,■Ghairman of Securities and Exchange Gom-

• ' 11^+ 115 ' V - ■ , mission, for| Mofman Thomas, against; Democratic Gov- .. ernors'Biehard ¥<, Leche of Louisiana, for;, Olin Do Johnson ' of South Gardlina, for; E* D, Bivers, of Georgia, for; ■ ; V- V it:::; . ■ . . 116 : V ■ - & and Bibh Graves of " Alabama', ■ f or Pr.bhahly the most ve-. : hemeht attack on the Presidentls Court plan came from seventy-nine-’-year-old Senator Carter Glass of Virginia, His

radio speech of denunciation was literally filled with such epithets as "frightful," *'hateful,11 ’’repugnant,n "iniqui tous ,n "utterly destitute of moral sensibility^" He re- : ferred:to the six proposed Justices as "judicial sycophants"/ and "judicial marionettes to speak the Ventriloquisms of the . ■ ■ 117 ' - ; ■ ' : ■ ; "■ ^ - ' ■ . ■ ■ ; White Houseo" On the mere question of the constitutionality of the Court proposal, John Hessin Clarke, Ex-Justice of the Supreme Court, in a radio address stated that the President's

Court plan would be clearly within the powers granted to Con- 118 gress by the Constitution-

114 :" ■ ■ : ' Vital Speeches; III (April 1, 1937)? 358-361.

115 ; ; ' V h:-; Mur row, QPo cito, ppo 160-163* ..:

116 'i y ' ■ '■/: . : ' IMde, pp. 164-174. : ; ' 117 - . :: " 1 ; : . ; ■ Vital Speeches» III (April 15« 1937), 386-389. 118 v . V - : - - 5 ; . _ ; - ■ • Vital Speeches, III (April 1. 1917), 369-376. ' v ' ' : ; ; . 98 During March, it became evident that the President's

farm support had not materialized<> Although Edward :O'Heal, President of - the American Farm Bureau.Federation, had personally, endorsed the President's proposal, there was - - • ; ' ■ ■... ;. ~" 119 : never an official, endorsement made by the Farm Bureau,, As for the other two major farm pressure groups, EL Ever son, national President of the Farmer’s Union, and Louis Taber, Master of the national Grange, the latter repre

senting his organization, both testified before the Senate Committee on the Judiciary against the bill =- Although as pointed out before,.M, Th&tcher, leader of a minority

wing df the Farmer's Union, had endorsed the President's Court Bill, he was unable to bring about effective farm sup- ; ■ . ■ . ' 120 ■ - f : - X port for the bille

The American Institute of Public Opinion'followed up its poll of February 15, 1937 with a poll on March 10, and another one on Maroh 15° To the same question asked on Feb ruary 15, "Are you'in favor of President Roosevelt ’.s propos

als regarding the Supreme Court?", the comparison of the re sults were as follows = February 15— Yes 47%, Ho 53^ j "March IX --ten ■ ' . . : . .-. " ■■ i 121 ' - ■ ■ ; ■■ 10— Yes !+8%, Ho 52^1 March-15=-Yes W , Ho; 5lS= x

.■ .119 ■ ,' :V- ■■ -- Alsop and Catledgeon, cit., pp* 116-1 1 8*

' 120 ’ ' ■ : / ' . - X . . X' : X: : , : ' Ibid., p.; 119- . 121 z . ■■ . . : X , -X . : ' - , X : ' Cantril (ed-.)> on. cit. . p. 14-9.

' • X;' .. • ■■ Univ..of Arizona Ubraty ' X ' X The President's proposal gained one per cent in each of these

two succeeding pollse The poll on March 109 when broken down by Democratic and Bepublican listeners and non-listen

ers to Roosevelt * s March and March 9$ radio talks re- • veals the following: Democratic non-listeners--Yes 72/6). h,,

, Ho 28^; Democratic listeners-^Tes 7 ^ ? Ho 26^; Republican

non-listener s— Yes 5 % ? Ho 95^; Republican listeners--Yes O f o , • : Ho 94^ o Therefor a difference of 2% and 1% existed between ' Democratic.■ and Republican listeners and non-listeners^ res• speetively=: The. following were the. results of some other . popular polls- condnpted. by- the-.Arnerican institute , of Public 'Opinions to the question asked on February 15? "Do you ■ think a majority of the nation’s voters approve Roosevelt’s

plan to reorganize the Supreme 'Court fH--Yes. 52%? Ho i}-8^| ' to the question asked on both February 22 and March 1, "Do

you think some kind of a change is necessary regarding the

Supreme: Cotirt?"-”on February 22, YeS •60%; Ho; k-0%— on March - • ' . ; 122 ■ ■ . ' :y ' j.;: :/ 6: y;. • ■ -;.v: ' l? Yes -58%9_ Ho h2%; ■. to the question asked on March 10, "Do

you think that President Roosevelt should have made his■ Su-

prerne Court plan an issue in the last election?"— Yes 68%, . v, 123 t;- - :4,'t: 4::t;;.T44.:44:.y Ho 32%; ' to the question asked on March 10, "Did you hear . i

;-'4'4;. -122 -•/I': •,•'4:4--4;,:, 'v; ':4 -y'-- ;4: h /I 4 - yy... Out of all the people questioned, 1 5 % and, 1 0 % had no" ' opinioh oh February 2 2 , . and March 1 ? respectively,e' ^

■ ' 4. y 4 \ i 2 3 . y '■ - . . ; :;4 y .. : ' 4 : v ' : 4 •' ";-'y„..y: v 4 ' ' v 4 ' • Out of all the people - questioned, 16% had no opinion» President Boosevelts s radio speech In defense - of his Supreme Gourf proposal on either March 4 or March 9?”— March 4-, 8^— -March. 9 1 20%--:-Both 22^--Ieither 5P^| to the question asked on March 1 0 , "Do you think he Roosevelt gained or

lost supporters for his plan by those speeches in defense of his Supreme^Court proposal ^--G-ained 63% ? Lost 2b%<) . Neither 13^5 to the question asked on April 5 ? "Should Congress pass the President’s Supreme Court plan?n”"Yes byfo. : V 125 : ' ■; r ■ ■ ' ■■■.' ' ' ■ -• , ' ' ' No 53^?— broken down by the size of the community— Farmers •; Yes hl^, :No :59% | Small towns Yes 4 3 # , No '57/?, Urban Yes 50% ^ No 50$f and to the question asked on April 5 5 "Do you think• the President will win his fight to enlarge the Supreme - . ■ • _ 126 ' • Court?”— Yes 61^, No 39a « Consequently, the above polls seemed to indicate that at the end of March, although pop-

ular opinion felt Congress should not pass the President’s - Court plan, it did feel that President Roosevelt would win his fight to enlarge the Supreme Court»

' On March 29? one. week after Senator Wheeler read Chief Justice Hughes’s letter to the Senate. Judiciary Committee,

the Supreme Court handed down three significant decisions. •

124 ' '>V' Out of all the people questioned, 43^ had no opiniono

.. 125 ih'' ■ ■ Out of all the people ■questioned, 14>- had no opiniono.

. . 126 ' 7 - '• " - - - y- '■ : Cantril (edo)^ opa eit*, pp. 149™150e 101, The Court upheld the Ballway Lahor Act of 1926 as amended ' .. : , ■ " 127 r -.': In 1934 by a unanimous decision? In another unanimous de cision the Court upheld the Frazier-Lemke Farm Mortgage I. Moratorium Bill of 1935 which amended the Frazier-lemke Act of 1935+ and did not in the opinion of the Court deprive the . 128- mortgagee of his property rights. The third decision up holding Washington’s Minimum Wage law was a complete rever

sal of the same Court’s decision of a year before invalidat

ing Mew York’s Minimum Wage Law— the only apparent difference being that Justice Roberts had switched his vote to the side of the former minority of Chief Justice Hughes and Justices 129 , - ' ; . BrandeiSj Stones and Cardoso = In the majority opinion of this five to four decision^ Chief Justice Hughes saidr The Constitution does not speak of.freedom ' of contract. It speaks of liberty and prohibits the deprivation of liberty without due process • of law....But the liberty safeguarded is liberty in a social- orgahizatfon which requires' the pro- : tection of law against the evils which menace the health9 safety, morals9 and welfare of the people. 130"

■ - 127 :v.' v AV. . \ . . ' .; - Virginia Railway Co. v. System Federation lo. 40, 300 U.S. 515 (1937)o

12g . ' ' • ; • ' Wright V. Vinton Branch of the Mountain Trust Bank of Roanoke. 300 U.S. 440 (193777 ""

. . 129 . ' ■ ; ■ West Coast Hotel Co. v. Parrish. 300 U.S. 379 (1937)o '

- : 130 t '•:.7 .A 7 7 ■ " 7 ' : ' < - Falrman. on. cit.. p p . 324-329. . 102 ■ During February and March5 much had been said for and. against the Court.Bill.over the radlof in the press ? or be

fore the Senate' Judiciary Committeeo; By the end of March, the Court fight had definitely taken shape between the ad ministration forces and a well organized opp-ositiori led by Senator Burton K,, Wheeler, who was undeniably a liberal, The response to the- President,’ s two speeches was not very

gratifyingo The Republicans had kept comparatively silent, and the Democratic tie appeared to be weakening«, ' The Hughes ; letter seemed to expose the indirections of the President's first line of attack, although somewhat altered in his later ■ speeches, 'The expected-farm support was not coming forth, ■

Popular.opinion seemed t o :be :against the President's Court

Bill as indicated by some public opinion polls» v The Supreme Court had reversed itself and upheld three statutes favorable to the Hew Deal, yet at the same time lessening the appar ent need for Court reformo. Despite the above,' the President was reported to have remained very confident of his ultimate success. He appar-= . ently still had labor's support, Democratic majorities^in =

Congress, and even with the recent reversal by the Supreme Court, a Court problem to be solved and no alternative■for its solution except the Court Bill upon which the President . had the power to demand, . - ■ CHAPTER IV

: COHTROVMSY TO CCMMmiSE^' JHSE 3 5. 1937 v

The Senate Committee on the Judiciary, continued its hearings on the bill to reorganize the judicial branch of •

the governmentuntil April 23) 1937° The first witness in April) to appear before the committee was Henry Ho Bates 9 Dean of the Law School of the University of Michigan0 Dean Bates had taught law some thirty years ago t° both Chairman Ashurst and Senator Wheelerd Dr« Bates in his statement be fore the committee emphasized .the point that he did not op pose the bill, because of any opposition to the President's .

Hew Deal program; in fact? he stated that he was in great sympathy with the New Deal and had said so oh several public occasionse He pointed out that his opposition was based on the belief that the President's Court plan would impair ju

dicial review, which he felt was an essential part of the

'• United States1 form of government-.-in fact, so much a part

1 . ■: /■ ' , • , ■ ' . ■ ' : ■ I ' U«,So Congress, Senate, Reorganisation of the Federal . Judiciary,. Hearing before the Committee_on the Judiciary, Uo8= Senate, 75th Conge, 1st Sesse on S« bill 1392, Parts 1-tt, 885* : . 2 , ■ ■ - . . - ' ; ': -! Iblde, pp. 885"86o . 104. of this government that any change in the function of the

Court should only be effected^ according to Dean Bates, by : • / ■ , V, ; .■ , ■: ; ; " an amendment to the United States Constitution^ Dr„ Bates repeated the standard.arguments of;the opposition against the hill, such as its impairing the independence'and pres tige of the Court, establishing a terrible precedent for a

possible future reactionary administration, and - attempting to effect a change by legislative fiat which should properly be done by'constitutional Amendment»

For practical purposes all of the arguments both pro and con had been pretty well exhausted.by the beginning of . April, and the Ones who testified before the committee dur ing April for the most part repeated' and re-emphasized the '■ ■■■ . / : ' ' ; . ■ . "5 ; " standard arguments. which previously had been made = Host of

Ibid.. p. 887. :

‘ ^Ibid., ■■ ■ ■■ pp.. 892-97°0 ; ■ ■ "

Those who testified in April, 1937 against the Court Bill were as followss henry M..Bates, John f. 'Flyh/Malter P° Dodd, Anson Phelps Stokes, ;'¥illiam S. McDowell, JOhn: A. McSparran, Frank H. Sommer, ' Oswald Garrison .'iillard, .Charles C . Burlingham, Joseph Co 0 ’Mahoney, James T. Adams, James 0. Mon roe, Ignatius M. .Milkenson, Fred 1.711son, J° S. Manning, . Siegfried Hartman, W, B, Harvey,: Milliam M. Cain, Frederic E° / Coudert, William Masterson, John H. Crooker, Dr* C . P. Patter^ son, L. L. James, James P. Hart, John Clark Knox, G. M. Bruce, .Edwin Holt Hughes, .Linus Lilly, Edward Kennedy, Shipman Andrews, Sylvester 0* Smith, Clarence J* Bearn, Jr., Paul F. Hannah, JameS E. Freeman, Wallace 0.° Calvert, Tom Miller, Smith W*"- Brookhart, John P° Davis, Alan M. Limburg, William A. Eddy, .: Katherine J= Gallagher, Frederick H° Allen, William F. Bosen- blum, Frances H. Kennecutt, Edward T 0.Lee, Louis B. Ward, L . •J. Te Poel, Catherine Curtis y: Dorothy Frooks, Jacob G* S char man, John W. Wayland, Benjamin C° Marsh, J. F° Smith. the opponents of the Court Bill admitted that the Court had made a number of unwarranted decisions and.was open to criti cism if not reform--but reform by amendmenta A number ex pressed that their yiew: of the Constitution was that held by the liberal minority, of the Court. Senator'Wheeler3 for ex ample, severely criticized some decisions of the Supreme ;

Court, and he had no use for the elassie doctrine of judi cial infallibility, but held that Congress by a two-thirds vote and after an intervening election should be authorized to .over-rule a Court decision holding an act of Congress void. Senator Joseph 0 8Mahoney of Wyoming, who appeared- be fore the committee With a statement against the bill, em phasized in a Senate speech that "the courts have upon oc casion usurped legislative power, and that usurpation ought to be brought to an end. I have repeatedly denounced it. There can be ho defense of it.Oswald Garrison Willard, associate editor of the lation, before the committee stated that he was in complete accord with the President's goals - and only objeOted to his methods. Siegfried F. Hartman, a

6 v ' h ; _ . : ' ■ Charles A. Beard and Mary H. Beard, America in Mid- passage Clew York? The' Macmillan Co., 1939), 3 3 3 7 "

^ 1 ' ' ■ " ... - UoSc Congress, Senate. Reorganization of the Federal Judiciary, Hearings before the Cdmmittee on the Judiciary, U.S. Senate, 75th Cong., 1st Bess*, on S. bill 139.2, Parts 5-6, 1029. - ' i 7 lawyer from New York- City In his appearance before the com- . mittee? began his statement against the Court Bill by say ing that he was "entirely-in aceord with most of the major " ."objectives-of the present administration in its economic y-V;: -"r,- - t: 8/:' '' : . y y -- ; ' and industrial ■b’olieyo" Charles A= Beardlater pointed outs

If belief.in the major axiom of judicial y ' infallibility had been a test for membership in the opposltibn3 -the President’s court bill : would have quickly- gone through Congress and • : -commanded a: f ar more, general approval in the ’ - .. country = 9 - . . - - , v- ■ ■ Despite the efforts, of the administration to get the

Court .Bill out of the . judieiary committee, so that it could - be yoted on before the administration* s forces fell apart5 - ■the' committee, hearings lasted seven weeks or until April 28 ?

and then the committee went into executive session which 1asted unt11 May 18 9;or three months‘and thirteen days af ter the date of the bill ’ s introduction.. Unfortunately for the administration?'.Uhairman AshurSt1 s motto was reported to

V: be "No haste» no hurry, no- waste 9 no worryAs hurst's com

mittee policy was well illustrated by his. 'later remark that '"when this fight started I knew it Would "kill' someone 9 and I: ■ ■:.i-y-y ;t:: .'yn-'y: ■ ' ■ 10 : t - - '■ y: ^ made up my mlndrthat.lt -w^ be'-meo" :. -

8 . :t * Ibid.. p. 1200„

Beard and Beardy op. cit.. p. 8^5.

Alsop and Catledge9 op. clt.\ p. 193« : ' ' ■ . 107 Meanwhile on Monday, April 125, tjae Supreme Court handed down five decisions on eases involving the National. - Labor Eelatipns S.ct of, 1935° fhe first one was a five to four decision whleh held that the Associated Press could not discharge one Morris Watson? a reporter, for union activity.. In that;the Aopo was' etigaged in interstate commerce and that collective bargaining did not interfere with the free- 11 dom of the presse - The secbnd decision was unanimous and - - held that the Virginia and Maryland Coach Company^ .which operated busses in interstate commerce, must reinstate the employees discharged for union activity0 The major question of the act as to whether or not it was valid for ordinary

•industries was settled by the next, three decisions involv- -

ing the steel industry, the automobile industry, and the elothing industry,.respectively. The leading case:uphold ing the Wagner Act was the Jones and Laughiin Steel Corpora

tion case" which held that the steel industry clearly af fected interstate commerce and, consequently, Jones and Laughiin had to comply with the provisions of the Wagner

Act by not discriminating against union members with respect to employment and tenure of employment, or by interference

■ :U . : I - - • A ' I - . ■ r z ■ ' . , - Associated Press Vo NLBB> 301 U.S. 103 (1937),

' 12 n'' .. 1: V ^ , ■■ : ' ' ' Washington. Virginia-& Maryland Coach Co. v. NLRB. 301 u.s. 1K2 (1937), / . r - ,1 I .; -i r ; ; ' ; ' : _ 108 with tiae employees® self "organization® The steel company also had to comply with the. orders of the National Labor

Relations Board to reinstate discharged employees and pay • ■■■■■ 'r- ' ' ■; ■■■■ 13 = : ' l ■ them for. the,time they had lost® Ghief ■Justice Hughes V:for the majority of the Court saids . When industries organize themselves. on a national scale 9 making their relations to in terstate commerce the dominant factor in their activities, how can it be maintained that their ; industrial labor relations constitute a forbid"' den field into which Congress may not enter when ■- it is necessary to protect Interstate commerce from the paralyzing consequences of industrial : war. 14 1 - -y. . In the other two cases the Court held by five to four ' ^ ... :■■■■■ • v 15 :" '' ' ' ' decisions that the Pruehauf Trailer Company, whose factory

was in Detroit and whose assembly, purchase, sale, and distri". bution operations went outside of Michigan, and the Harry . ■ -■ • .. ■ - ; ; ' X6 "..... :' ' " " : - Marks Clothing Company Of Virginia, which bought almost all

of its materials outside of that state and sold a large per-

centage of its garments to out-of-state customers--both came

' I 3 ^ ...... • ...... NLRB v. Jones & Laughlin Steel Corporation. 3 d U.S. 1 11937). ,

i 4 .' ’ . : "V ■ ■ ■ ; ; - Ibid.

• 1 5 - • ;. ■■ ■ • NLRB v. Pruehauf Trailer Co., 301 U.S. 49 (1937)® 16 V--- . V-- ' NLRB v. Priedman-Harrv Marks .Clothing Co. 301 U.S. 58 (1937) - " \ . . ..4 ; ■ ' ■' . - ■■■ ■ . ' 109

within the constitutionally applicable meaning, of the Wagner 17 ■ ■■ : ' 'f . . v\:; ' v Act o-. ■■ ■ ^ , ;;; . . - \ , . ; (;■; The Wagner Act cases were significant for the- following • reasonsi Cl). The opinions expanded the interpretation of the

power of Gongress to legislate under the commerce clause of

the: Constitution .in that industries organized on a national scale? although their products were locally manufactured? were held to be withih'thetregUlatory power of Congress = (2) The decisions effected laborJs and the liberals8 support . for the President’s Court Bill in that the main reason many labor leaders and liberals supported the Court plan was .

their desire' for valid labor legislationo (3) .The decisions - seemed to prove once again Mr* Hughes1 statement that "the Constitution'is what the judges say it is 5" when one■com pares it with the "direct effects11 ruling, in the Schecter

Poultry, case handed down by the same Court a V The, f ollowing day the headlines of the New • York Times

announced# / ; r tn t -/ ::,w '

' V . Cupreme 'Court Dpholds^llagnef "labor ;XaW|. ; , ' ' Hailed: ;By" Pr lends -'And Poes'of Bench Change; : Unions See Sweeping Progress Within A Year = 18

The immediate reactions -to the Wagner Act'decisions Were. . f varied, 'The,President ^is reported to have- told Speaker

-■ _ " -■ \ " T t t , ■ ' ■ ; . . ■ Pairman4 on,, cite, p, 219, . :v ; ' ■ ' ' 18 , I' 'd, ; 1 /''- - .-.W T Wy' . . New York Times^ April 133 1937) p, 1> / '' . - ; ; . . 110 Bankhead over the telephone that "it's a pretty good day for all of OS) isn't it?" Senator Wheeler was .jubilant .

over the decisions and their possible effect on the Court fighto He said: r w : The decisions ' were: great , . I feel now that . , there cannot be §hy exohse loft for wanting to ■ • add six' new members to the Supreme Court» The court ehlargemeiit proposal "will ^certainly'be de- ; - featedo A number of- Senator shave" told me pri vately that if' the-- cowt-up the' 'labor ^ .. 'V they 'did ' not see ho# they ' could vote for the court enlargement measure I 20

Senators BurkejConnaliy? and Van Nuys, all three of the : Senate Judiciary Committeemade statements indicating that they felt that the decisions would help defeat the Court

: ; 2 l n : :v : w y t t .... ■■ y.. ■■■■..-. - y :• Billo On the other hand, pro^Court Bill Senators La Fol-

lette and Minton; though gratified with the decisions, y,

held that the decisions merely proved what advocates of the

President's; plan had contended all along, that there was

nothing w o n g with the legislation, but only with the atti™ ■: ■■■; V '.V . . f ■■ d y " 22 '■ . tude of .Certain members of ythe Supreme Court® y. is for the senators in general, most of the_Court Bill opponents felt

-19 / - Ibid. ■

20 ' Ibid. y : •':2i^ .h;y- - Ibid.

22 : w y'y;'';y -Ibid.i p. .20. - : • .. ■ " . 111 ■that the Wagner decisions would help .kill the bill, whereas the Court Bill proponents expressed the view that.the Labor decisions would have no effect whatever on the bill's out- come0 h<hough apparently no senator announced a change in

his position on the Court issue as a result of the Wagner Act decisions, Senator Burke issued the following statementt .Already, two' members of the Judiciary Com- mittee have swung into the opposition as a re sult of the court’s decisionso/ One was defi nitely: for the bill, the other was noncommittal» 2^- However. other members of the. .committee, questioned the con clusion that any member of. the cosimittee or other senator : * f\'V7 ■ " 25 '■ 7 ;■ •■■■ ‘ . ; had switched» ■ • In the Senate there was quite a lot of talk of compro- ' • 26 ' . . . . : . 7 :mise« Senate Majority Leader Robinson was reported to have told Joseph. Keenan? the. administration’s Senate lobbyist the followings ; The thing^tO j-do Joe is. to./ settle this thing : right now, .This .bill is raising.hell-in the ; Senatdo :How it’s:going-tOi.he worse thanvevef, : but if the President wants to compromise9 I can get: him a couple of extra, justices tomorrowo ; h:'; " What. he ought1 to do is say he.’ s: won, which "he- .;•■

■ 23 . 7 . h: \ 7 Ibid., p, 21« " .

24. fh 7 > ■/■; i;?' - • " ' 7 57 7r7'7- Hew York Times«, April 14,: 19379 Pe 14.

25 4'7': r:::77:\;\7" 7 ■ Ibid. ■,:■ - ■ : . : ... 7: 7 7 : 26 ■ ■ ■ ■ ' ■ . ' • ■ ■ Ibid.9 p. 1. ■ ' - 112 has9 agree to compromise- to make the thing sure? and wind the whole business ups 27 : The President 9 -however <, had apparently no intention of com

promising and gave, every indication that he intended to see his bill ' through to passage <> Although the President was de termined to go.forward9 his forces were growing weaker = In the beginning the President .had counted on the liberals =, the farmers9 and labor to see his Court Bill through® . In the first couple of weeks there were a.number of liberal de fections and during the first month the farmers indicated that they would not unite behind the Court proposal„ With

in ten days after the Wagner Act decisions? the administra tion was, losing-its majority in the Senate<> Robinson had

formerly promised a majority of fifty-four for the bill but

he .was gradually losing• supporters® At first there were ■ about thirty senators for the bill> about thirty senators against the bill? and approximately thirty-five senators ih

doubtj but after the Wagner decisions many of the doubters ■ .apparently:doubted no longer and the opposition’s forces ' increased to about thirty-five and then to around forty-five ;v 28 , - ,, m if ■■ senators opposed to the bill® Despite the public, statements issued by both-.William

27 ' ; ' . Alsop and Catledge? on® cites p® 173

28 ; - v- : ' Ibid® 9 pp® 162-63® 113 Green, President of the JUF. .of _£., and John ho , Lewis, . President of the Colo0o, that:organized labor was wholes . he ar f edly be hind the ^'Phe s ident' s Court plan regardless of the Wagner Act decisions', labor had all but withdrawn from the fight, as did the farmerso One author described the situation in-the following wayr / Among the public at large., the President had counted on unstinting support from farm- and labor- organizations = Pledges from both were not so difficult to get, but neither really went to Cohgress with blood in the ejreoo.oThe two;interest;groups typified- the course of bat tle on all fronts*— those who opposed did so bit terly and with religious zeal;, while those who favored the President’s plan did so only mildly and from behind the posts =, ' The Supreme Court had inertia on its side.. As the foundation of hew Deal labor legislation was approved by the Court, organized labor definitely started drag ging its work shoes» 29 ' Although the AoFo of L. officially endorsed the Court Bill, internally the organization was divided in that William Hutcheson of the Carpenter ’s,Union; was very much against . supporting the President’s Court plan. Hutcheson was backed by John Coefield of the Plumbers’ Union.and;Mathew Woll, Ao.Fo of L. vice-president. Although John L. Lewis made pub lic statements endorsing the bill and publicly ordered

29 - , ■; ; ■■ : Wesley McCune, The Hine Young - Men ~(Hew Yorks Harper & Brothers, Publishers^ 194-7), p. 23. 30 ‘ ; • • ; - ' •. ■ ■ Alsop and Ca.tledge, op. cit., p. 165. ;; v ; v ' ' . ■ ■■■ ' 114 labor’s Non-partisan league to fight for the bill? he .never, really turned on the heat* -As. gr at if yihg as ' the many 1 ' official endofsemeht's were ? what the Court Bill needed was ■ support; by actions— not • talk™-and there was no really ef

fective labor lobbying to, scare, the 'congressional waverers into line behind tho Court B.ill.- \ Presumably if \the ^Wagner _ act had been invalidated,flabor lobbyists would have swarmed over-the Capitol in support of the Court Bill? but since the' labor law was sustained, there was no great impetus for la- ;■ bor to support fervently the President’s plan, Roosevelt, however" remained ■ confident with no intentions of compro mising, and on April 28, he left Washington to go on a fish- ; ing trip in the Gulf of Mexico,

Although the President may have been confident of ulti mate success in the passage of his Court Bill, his, adminis tration forces both in the White House and on Capitol Hill

were notMany of the administration. leaders. were certain . -

of defeat unless, . the President was willing to compromise his original proposal for something less extreme. Senate .. . Majority Leader B.obinson urged Jimmy Roosevelt,, a presiden tial secretary, to gO meet his father; af Port Worth and to

tell him that his plan seemed to be headed for defeat, and- _

to ask him to accept a compromise,. Eobinson was backed by his lieutenants, Senators Barkley and Harrison, in his. talk

31 - Ibid,, p, 171o . - ' . ' / : - - ■ ' :; ^ . 115 with James Roosevelts Jimmy Roosevelt then discussed the situation with the Cotirt Bill's White House staff composed • of Thomas Corcoran, Joseph Keenan, Charles West, Charles . . Michel son, and Homer Cummings <> The White' House staff: told him to follow Robinson's advice«, Postmaster General Par ley- who met the President in .Indianapolis was apparently sent on a similar mission by the administration forceso Of this meeting Parley reports that he found the President, unwilling to. compromise, despite his warnings that polls showed the Senate so evenly divided that the Viee-President might have, to cast the deciding vote, and the. possible irreparahle dam age that the fight might do to the Democratic partyB Parley

later wrote, "He said with all the finality at' his command ; that he would not; withdraw as much as an inch and he would 3*+ " " ' : ' ' - - ' not compromiseo" ■

The President arrived In Washington from, his fishing -P trip on May 14, and soon after his arrival he had a confer

ence with Robinson, Speaker Bankhead, and House Majority Leader Rayburno- He presented to them a "must" list of legis

lation for the remainder of the session and at the head of

32 " ' ::: : ■; . ;; ' . ■ ; Ibid = , pp» 2.02-203 0 - "

’33 1 ' • ■ - / . ' - . . ' Time, m m (May 2.4, 1937),. 9. . : . ' 34 . -h" • - ' ' - : ’ ■ P. ' ; ■ ' ; - , Parley0 oo« cit,«, p» 82o '' - :: :: ' ^ :: -' : ' :: : ';.-: .,••/’> •, 116 • the list was § "The full plan for reorganization of the Su preme Court, involving the immediate appointments of six " ' 1 - 3 5 : ' - ' ' new justices*" - After his meeting'with the President, Robin

son told the press that "the battle will go on" and at-that

time he saw no prospect of any adjustment or compromise * He also said that the vote on the bill in the Senate would: . . " V : ' ' . ; : : : : - J : -: : t t'l - ' '/' Y ' ’ 3 6 be close, but that it had a "fair/prospect" of being passed* Bankhead and Rayburn illustrated the President's ao-oompro^ mise stand with the remarks "The President has on his fight-' ' ; : ■■ ■ 37 . ' V : '- ' -.. ... ' , / ■ ';': , lag clothes»" Parley was repprted to have remarked s "Why , •: . compromise?: The Democratic Senators' were elected- on the /basis of supporting the President’s program. It’s up to them to back it nowo" ^ As events later demonstrated, Robin

son’ s "fair prospect" prediction was as optimistic as Par

ley's question "why compr oral set" was absurd* .. Despite the President's determination to rush through his,original Court Bill, there was a great deal of. compromise

talk and predictions in the Washington air. The Senate Ju diciary. Committee had before it about thirty proposals nf-

35 ' - t - , lew York Times. May, 15, 1937? p*. 1.

36 h' ;':::':'' , ■ Ibid. ■ : : : ; ; / - : 1 // ' :

37 ■ / ' ' . - . . ' Time a - XXIX (May 2h, 1937), 9.

3.8 : " ■.; / ^ ' - % : Ibid. - • . - r 117 offered -as possible substitutes for the President8s Court Billo The proposed substitutes ranged from Senator Key Pittman's proposal calling for an immediate increase in the Court to fifteen members without regard to retirements?to ? . Senator Pat McCarran*s proposal to increase the court by two ■■ : ■ ; • 39 •f.v members immediately and unconditionally. The President was also being urged to compromise by. some members of his White - ; - -: , . 40 , - -: ' .w . " ; House "general staff8** May l8«,.was an extremely eventful day in the Court fighto On this day the President received a letter of resignation w

from Associate Justice Van Devanter9 and the Senate Judiciary Committee rendered its adverse vote of ten to eight on the 4l: ■■ ' . ■ . : - 5 . - w Court:Billc ' / w '\h , ^

Fan .Devantef had previously; •told Senator Borah, his : ; • close friend, that he wanted to retire* It was reported

that Borah consulted with Senator Wheeler and that they agreed, that. Fan Bevainteris resignation would strengthen their side, and he was prompted to do so; in fact, it was planned

that the letter should arrive.at the White House on the same

39 ■ '■ v :■ . -• ■■ > ■ ■ New York Times* May 15? 1937? p» 1* 40 . : "V -'i; : ' Alsop and CatledgeV on* clt., pp* 206-07, 41 ■ . - ' : ' . ■ ; New York Times* May 19? 1937? P* 1» V -V;; : .-v,. . ' v--;: ; ■ : . - ■ 118

day that the predicted unfavorable vote of the Judiciary - - : • ^2 :: . . Committee was to be given® lan Deventer's resignation was to take -effect on June 2 ? the day after the Supreme Court would complete its term» On that same day, the President

sent a reply accepting his resignation in dry but polite . , ^ ^3 ■ ; ■ ■■■ ■ ; : : '' . ■' . terms, - .. ' ■: - .. Soon after the President received Van Devanter's letter of resignation, the Senate Judiciary Committee met and voted ten to eight to report adversely the President’s Court Bill, and commissioned. three of its members to. .write a recommenda tion to the Senate to this effect, The ten, who voted to send the bill:.to the Senate with an adverse report, were composed

of seven Democrats and three Republicans, and the eight who voted for a favorable report constituted seven Democrats . . :'V . W i : ' - : : ' • - ■ . ' and one independent, The .three member's commissioned to write the adverse report were,Senators King, KtcCarran, and .0 !Ma=-

' xhohey,) lh the committee meeting Senator -M,uMo Logan of n-

42 :: ■ : ; ; ' u \ '' '' Alsop and Catledge, ppo_jcito, p, 206,

43 v : "::f-■. ; New fork Times, May 19? 1937; p, 1, V-;; ^4 '■ i ' : " 4■<■;>/ 4 The majority were as follows: Democrats— William Hi King, Frederick Van NuysPatrick McCarran$ Carl .A*,: Hatch, . Edward R, Burke, Tom Connally,- Jbseph C,' 0'Mahoney5 Repub licans— William E» Borah, Warren R, Austin, Frederick Steiwer The minority were as follows s Democrats— Henry F, As burst, • M, M, Neely, M„ M, Logan, William H, Dietrich, George McGill, Key.Pittman, James H, Hughesy; Independent— Geoige W, Norris, V . ■ ■ 119 Kentucky, who favored the President's plan, proposed a new bill which would have provided f or a nirie-member: ^Snpreme

Court, which could be temporarily increased by one justice for each justice over seventy-five years of age who. did not choose to resign, however, with the limitation that not more than one justice- .could be. appointed in any one year. This • bill was originally proposed by Senator Carl:Hatch of.Wew

Mexico. Although Bogan assured the committee members that his proposal had Robinson's approval and felt that it would be satisfactory to the President^ it was defeated by a ten

to eight vote, which was different than the other vote in t that.Hatch voted for it along with the former minority and

Pittman voted against it with the majority. The committee rejected some other proposals, one of which was Senator

Norris' proposed amendment requiring a concurrence.of more

than .two-thirds of the members of the Supreme Court to hold

an act of Congress unconstitutional. Time wrote that the

President lost three times in- the Judiciary Committee--onee on the original bill, once when his supporters., except Pitt man, voted to compromise, and "again when even compromise was rejectedo” •

With. Van Devanter 's resignation, the question arose as

45 ' -' - - ■ ' - - - . 'New York Times. May 19, 1937? pp. 1 18, 46 ■ - • - ■ t ; . ; Time. ZKIX (May 31? 1937)? 18. to filling the. vacancy= Some of the possibilities suggested . weres Attorney General Cummings5'Solicitor General Reed, Assistant Attorney General Jackson^ Governor Frank Murphy : vpfvSidhigan9 Professor' Felix Fra.nkfurter of Harvard, and : others: but within twenty^four hours Senator Robinson*s - : ^ ; 48 ■ y . name headed the list0 It was reported that Robinson had }twice been promised the first vacancy to occur on- the Court by the Presidento The senators? both Democratic and Republi

can? were close to unanimous in urging his .appointment> - Sehators Byrnes and Harrison called on the President to

■ press his appointment? and Benator Borah wrote Roosevelt a

letter on Robinson’s behalfo. It seemed as though the United States Senate j ’’Greatest Club in the World” was of -the op

inion "that for long loyalty to the lew Deal9 its member

i 49 ’ ,y . Joe Robinson should be rewarded*’’ - From- the administration’s standpoint the appointment of Robinson had two definite drawbacks, .First? Robinson was

sixty-four years' of age and thus.would not have been able to retire with pay under the recently passed Sumners-Mc- Carran Act until he had served ten years and reached the

47 - : . Haw York Times. May 19, 1937; p. 18. 48 7 • i . lew York Times«, May 20, 1937? pi It .

49 - ' a Time, XXIX (May 31,. 1937) sil8o : : age of seventy~four? Since Roosevelt had set seventy as the arbitrary age limit at which justices should elect to resign, it would in a-:sense have been defeating his purpose to appoint Eobinson to the Gourto Second, and more Important, Eobinson was not a Mew Dealer’s Hew: Dealer in■ that he supported Roosevelt Es program more out of party loyalty than conviction. It was. said that his pre=-Efew Deal . ' -- 50 record showed him to be something of a conservative, Never theless^ Eobinson had been promised the vacancy, and his Senate colleagues were determined to see that the promise was kept, Roosevelt, however, remained non-committal much to Eobinson!s and his colleagues chagrin. The Virginia congressional delegation unanimously endorsed Robinson's appointment to the Court, and when Robinson saw.Senator Harry Byrd of Virginia the following day, he is reported to have said: : ' .

. Harry, .1 can't tell you.what it means to me to have fellows like you and Carter Glass come out for me. It's moved me very deeply these last few days to see how many friends I .have, Why, I tell you, Harry, everybody'S ■ told me they're•for me except that fellow in the White House, and I swear I won't say a " word to him until he says it first to me, 51 '

The administration could probably have capitalized on

50. Ibid, 51 " . " 5 ■ h : -• \ ' V V Alsoo and Catledge^ on, cit,, pp, 212-13® - : . .. .. ■. .. ■ .. 122 the Senate9s pleasure in seeing Hobinson elevated to the high bench and through this have achieved a compromise« .The administration^ however; did not make a move for two very important weeks9 and during this period they were out of cohtact with kobinson, their main strength in the Senate, : whioh' grew more and more rebellious over the possibility

that its.majority•leader would not get;the job* There was cloakroom talk to the effect that if .Bobinson were not ap- ■ ■ : ; ■■ 53 : ' pointed, no appointment would be confirmed«, Finally a mes senger was sent to Robinson to explain the President’s po

sition on his appointment ,. that in view of the previously mentioned objections "other appointments were needed to make

his own look respectable =11 Robinson reluctantly accepted

this positiono. - •Meanwhile on Monday, May 24, the Supreme Court, handed

down three very significant decisions which upheld the con- .. -v; !■' ' ■ • f ■; ' 55 • " ' - ■ stitut1onal11y of the Social Security. Act» The first decis

ion, ■ five to four., sustained the Alabama Unemployment Com

pensation Act which was passed in pursuance of the Rational

'52 , Ibido, po 213o 53 5' \ : h' ; : . , .■ : Time ,. XXIX (May 31, 1937), ! &

54 '5; , Alsop and Oatledge, op0 cit*q p. 213«

55 •■'; ■ . ... ; - - 1: . ; Mew York Times Q May 25, 1937? P® 1» Social Se ciority Ac to.- The. Alabama law set up a system where by. employees an# employers contributed to a fund, out of

which came the compensation distributed to employees out of a Job.. The minority held that .this type of system, as did the majority with respect to a similar system in the Railroad Pensions ease, was unconstitutional as a violation of equal protection of the laws as guaranteed by the Four

teenth Amendment in that the employers who did not discharge many employees would have "to bear the burden of paying the • discharged employees of a competitor who let more of them : 57 V: ' h " ■ • - - . ■/ go." The new majority^ however, upheld the Alabama law in an opinion delivered by Justice Stone who wrote that a law

to relieve unemployment was for a proper .public purpose and did not violate the constitutional limitations of being ar- ‘ 58 bitrary and discriminatory... The second decision^ delivered by Justice Cardozo for a five-to-four Court, upheld the National Social Security ' 59 Act with regard to the unemployment insurance provisions.

56 \ ; • ■ - Carmichal v. Southern Coal & Coke Co.. 101 U.S. i+95 (1937)o •' ' ■■ . ■ ■ ' . Charles P. Curtis, Jr., Lions Under the Throne .(Bostons Houghton Mifflin Co. , 1957), pp. 176-77»

Jackson, on..cit.. p. 226.

59 ■ ' . : Charles C . Steward Machine Co.. v. Davis. 301 U.S. 558 (1937)• The.Court ruled that separate sovereignty did not prohibit, the state and the federal government from combining their

efforts in order to prevent or combat a common evil such as imemploymento The minority did not dissent as a unit* Jus~ tice cReynoIds disspnted on the basis of principles which he definedpby reciting ah entire message "from Franklin .Pierce to the .Senate dated. May 3 ^ , 18$t, in which he vetoed a grant of public lands to the several states for the bene- fit of indigent insane personso11 About this Robert H. Jack-' son remarked j. "It was unusual for a Justice of the Court to base his Judicial judgment upon the political philosophy of ah Executive? even one who had been off the political scene ■ - . • ■ ■ ■ . ■ . ■ • . ■■ ■ ■ 6l' " " ; \ " /: '' ; ■' . for over three-fourths of a centuryj" Justice Butler wrote .

a second dissenting opinion9 and Justice Sutherland a third dissent 9 which, was concurred in by. J ustice Van Be van ter« The third decision? .seven to; two? Justices McReynolds and Butler dissentingj delivered by Justice Cardozo, upheld ' ' 1 j''' ' . 1" ' ; . 62 the old-age benefits, provisions of the Social Security Act o The Court held that Congress may constitutionally spend money 11 in aid of the general w e l f a r e ? " and providing the

60 o • ■ p . : Jackson, ODo cit»s p, 227*

61 • ' ' Ibid, : • : . / - :

62 ' ' Helverlng Vo Davis, SOI 0,8, 619 (1937), _ ' - ; ' ^ ^ 125 aged with economic security is to promote such - welfare^; „M.

Robert H» Jackson later wrote that after the Social

Security decisions many in the administration were of the

opinion that with this new attitude of the Court that the Court Bill might be dropped? but went on to say that "other . ^ ' • - \; - - ' . ' y 6h counsels •prevailed? and the plan was not withdrawn." 'Re porters Joseph Alsop and Turner. Cat ledge wrote that Jack son was one of the "counsels" whd prevailed, Jackson was. reported to be of the school; that when "you're going to pack a court? you've.got to really pack it," and was said to be against compromise:.

In a.press conference on the next day after the Social Security decisions, the President indicated that he was

pleased over the decisions but that much remained to be

passed upon by the Court, and that he intended to go ahead with hisvoriginal Court proposal in that a five to four

63 ■ ' :>;V :V A; / 3 - . V '' ''' ■ Cushman. on. citV . p„ 265®

". 64 - : Jackson, 00. -c.lt.., p.* 234. . ■ ; ...■

‘ 6 5 : ' 4 : v .;:- ^ ‘ : " -^ ' . -Alsop and Catledge, - op. cit.. p. 214. ■ . . - ■ ■ ■ : - 126 ■; : : '' . 66 ' "- “ : . " majority was not very secureo At that time Jackson and

presidential advisers Thomas.Corcoran and Behjamin Cohen were attempting to persuade Roosevelt not to .compromise hut to permit the bill to go over until the next congress" - ' ' ' - . '■■■ :; - ' 67 ■ ional session and thus have allowed passions to cool« It seemed that the President had to decide on whether to go ahead as originally planned 9 to follow the Jacksoh-Corcoran"

Cohen plan? or to compromiseI Meanwhile - Senator Robinson had not come to the White

House since Van Deyanter! s announcement of resignation..' Finally the President sent his son.James Roosevelt to talk to Robinson and to drop the hint that the President was.anx ious to talk to him. Robinson took the hint and on the

night of June 3 , 1937? had a very important conference with the Presidento Apparently«, it was during this conference that the President decided to compromise and to relinquish 68 his personal command of the Court fight to Senator Robinson0

After his conference with the President? Robinson issued the following statement to the presss The measure will be proceeded with and

: 66 . ' - . ' . - Public Papers and Addresses of Franklin Do Roosevelt<> ■1937 Fol0? pp= 220-21.

67 ' ■ V . , Alsop and Catledge, 00» ci-t., p« 214.

6 8 .. .. '■ . Ibido 9 p. 2l6o ■ / ' ■ - . ; ■■ - . ' . -v. 127 : it is expected that action will be taken on v it during the present session. Aside from the provisions that relate to the Supreme Court, other features of the bill are to be % ■; regarded as of vital importance» It is felt ■ that during the last few months some changes have occurred which modify the situation^ but ^ .. there still' exists" the' necessity for the: 'in-: . ,: ^ f 1 jection of new blood into the Court <> 69 : The following day at a press ,conferenee 5 the President re-expressed his desire for judicial reform, and indicated that the number of justices that might have been added was a mere detail compared to the aim of his plan— judicial re- - . • form. He criticized the recently recessed Ootirt for having

left important Hew Deal eases'Undecided? as well as causing ■judicial, .-'delays through, out the federal, court system by making adverse rulings to the interests of the federal gov

ernment, The President:pointed out that despite the im- ■ portant government cases pending before the Court, it had

taken a four-month8s recess. He did not discuss compromise as such j and when asked; about the number - of new justices, he

passed this off with a remark that this was talking about the "trees" and he was only interested in the ’’forest,,r Nevertheless, the 'President had agreed to compromise and turned the problem;over to Senator "Bobihson, who some ;

time previously realized that compromise was necessary to

69 :: '■ ' ■ ; : ' : New York Times, .June 4, 1937? p, 13*

70 : . ' ; . •. .; ■ - ; ' ; ' New York Times, dune 5? 1937? pp«: 1? 4. ' save the M i l 9 but the President apparently did not listen then. After the Court Vs Magner=Act decisions? the bill seemed doomed to certain defeat^ as many liberals and labor V leaders saw less and less need for Roosevelt's six new jus tices ? but the President still would not compromise. Al- '

though an anti-climax to1 the ■¥agner ‘Act decisionsthe So cial Security decisions seemed to lessen the urgency for ju dicial reform.

Then came the administration's week of adversity with • Justice Van Devanter1s .announced resignation? the.adverse

vote of the Senate Judiciary Committee on the President's ■ Court. Bill9 the Senate's seemingly unanimous nomination of Bobinson to succeed Van Devanter5 and finally. Fortune maga

zine's .poll indicating a drop in the President's popularity . and an,increase in the popular opposition to the President's Court Billo . The results of the poll by Fortune were sup

ported by similar results of a poll taken on May 3 3 1937? - ■■■- : . ■' - v : : - -■. 72 : by the American Institute of Public Opinion. As pointed.

"' ■■■ 71 ■- ,, -• . . ' • "Fortune Quarterly SurveyBtlX,'' Fortune. XVI (July, 1937) s 96-98-q According to Fortune1 s poll, since ,the an nouncement of the Court Bill the majority favoring Roose velt's re-election had shrunk to a minority— from .52.6$ in April, 1937, to 4 5 . 0 $ in June, 1937°

72 v • . ■ . . - ' Cantril (ed.), on. cit., p. 799. According to the Institutes's poll taken on May 3 , 1937? the results to the question? "Do you think President Booseveit is more popular or less popular today than he was when elected last November?" were h2$ more popular? 52$ less popular, as compared to a similar poll taken on January 25? 1937? when the results were 77$ more popular, 23$ less popular. . : ./ , o . 129 but t)ef or e ? the appointment of Bob ins on was much: less than what the administration desired 9: and -his possible appoint- ■ " . \ . " : ■ • - - ; ■ • ' 7 3 sent was condemned by editorials in both the Hew/Republic

7^: ^ ^ '' - " and the Nation, ■ illustrating some liberal reaction. The

Senate Judiciary Committee not only rendered 'an adverse . vote on the six-justice Court Bill but. also, oh more: moder- ''- ate amendments» Van Devanter"s resignation weakened the ■:- administration’s fight for the bill in. that it permitted the President to make an appointment as well as foreshadowed 'V- ' 75 ■ ;• • - other possible resignations, ;• ^ ^ : J . . After this- week9 there were two weeks during which the administration made no positive move and lost a lot of

ground ? : Instead of capitalizing on. the Senate * s' pleasure ■ of seeing its majority.leader appointed to the Court? by .

pushing through a compromise in this short period of good ' ■feeling? the ‘administration hesitated and waited two weeks./ while the Senate seethed, Ihe results of this delay seemed

to indicate that the two justices the President might have ■,:; had after Van Deventer's letter of resignation, through the

" New- Republic, EXXXXl.(June. 9? 1937)>114-19, : 74 : v ; . *. ' . . ' Nation, CihlV (May 29, 1937) ? 607-08, : .■

.75 - ' ■ 1 ■ i ' ' ' - '■.i : ■ ' j . " - It was reported, however,' in Time, XXIX (May 31? 1937)5 17? that Hughes, Brandeis, and McReynolds stated quite definitely that they had no intention of retiring. 1 3 0 announcement of Robinson’s appointmentr were, highly doubt ful two weeks later <» Besides this ? after having agreed to compromise, the President was unable to dictate its terms, and had to put the whole matter into the hands of Senator Robinson. ' . ‘ t CHAPTER V

DEATH OP THE COURT BILL

During the [email protected] conference oh the night of June 3, 1937? the President placed the fate of his Court reform measure in the able hands of Senator Robinson®

Joseph Taylor Robinson had represented the state of Arkansas in the United States Senate since. 1913? He was completely devoted to the Democratic Party, which he consistently fol lowed. no matter what course it took— to the right or to the left® Although he was essentially a Southern conservative« he obediently served the President, and was continually able to secure full support for the President's program in the

Senate®/ Robinson worshiped the Democratic Party, and be cause the President was the party leader, Robinson allowed him full authority® It was said that his life's goal was to become a justice of the Supreme Court— perhaps another : ' ; . - , - ■ '■ ■ i ■ ; , :■ . . reason that he served the President so well® ■ The following day after.his conference with the Presi dent, Robinson met with Alben Barkley of Kentucky, assist ant majority leader, and Senators Sherman Minton of Indiana,

M®M® Logan of Kentucky, and some other administration

1 V. • ■■ ' ■ - ■ . - - ■: United States . News®- Y. (June 7? 1937) ? 9 = ■: • : 132 supporters. At this eonference they, considered two alterna tives to the original bills (l) a plan advocated by Senator

Carl S., Hatch of New Mexico s authorizing the President to . appoint an additional justice for: any .justice who;.had' passed

the age.of seventy-five and had not retired ? but was pro hibited froiH- staking more than one such appointment in any r one year? (2) a plan sponsored by;,Senator Charles 0„ Andrews of Florida, authorizing a Supreme Court of ten associate

justices, each representing one of the ten judicial districts,

and a Chief Justice appointed at large. The latter plan was rejected, partly because Justice Butler was from the .same ;ju dicial district which included Arkansas, and its.provisions would, thus, have excluded Bobinsoh from' membership on the i Court, After a few days the Hatch plan was decided upon, : and Senator Logan was appointed to draft it into a bill. .■■■:/. - This plan was also approved by the Attorney General and presi-

dential assistant'Joseph Keenan, . v . ' p . Meanwhile Bobinson began the job of lining up senators to ensure the passage of'this compromise bill. .Although he was helped in this job by Senators' Barkley, Black, Minton,

and La Follette, the responsibility and the.greatest part

of the work was with Bobinson. This work consisted of in

dividual conferences with each senator, which were time-con suming, exacting, and often frustrating. At the end of the

M ' Alsop and Oatledge, op, cit. <, pp. 222-26. - . : . . . .. :■; 133 conference? Robins on would attempt to pin the senator down on which way he was going to standv The work was painstak- .. ' ' ■ : . ' 3 . ; ■■■■' ing and the results.were often doubtfulo , On June 1937 ? the Senate; Judiciary Committee sub mitted its -majority report condemning the President’s Court • ■. Bill* The three committee members? king, McGarran? and O ’Mahoney9 appointed to draft.the report were assisted by -

■Senators Borah, Burke, and others with its style and con- : 5 ' - 7 . : ' ■ . . tent» This adverse report on the bill l*with the recommenda tion that it do not pass,” was an indictment of the President as well as his. Court Bill. ... The report began with a summary of the proposed bill and then listed the committee’s argu- ' : 6 ' ' ;■ , . - . y 3 ■■ Bients against its passage, / The report contained a crushing analysis of the provisions of the bill, dire predictions of its effects on the judiciary and. the constitutional: form. of. government, and a defense of the Supreme Court and its place

Ibido, pp. 227-28o '7 .

4 ' ■ • 7- v ; 7 ;-' ■... -. - -■ 7 . Qo $* Congress, 'Senate* ConCTesslonal Beeord^ 79th • Congo, 1st Sesso, LXXXI, Part F7 5^397 7. ' v 7 ., . 5 : : . . , - • 7; - : ' , ;.7 ■ United States News, ¥ (June; 21, 1937) ?. 3 = ...76 . : 3 . ■ ^ . ■' : ; ... UoSo Congress, Senate, Beorganization of the Federal Judiciaryo 75th Cons» 7 1st Sess., Senate Report No». 711 'oh • So bill 1392 (Washington: Government Printing Office, 1937), 1-3» 77 -7 7 : “ - : fj in the constitutional system»/ The majority spared no words of denunciation^ In the summary, ^the report denounced the proposed bill as a "needless, futile, and utterly dangerous '- abahdonment;of constitutional principle," and, "was presented . to the Gongress: in a most intricate form. and for; reasons. that obscured its rear purpose®" The summary continued s r; i : It is a proposal without precedent and - without . justification* , . ' t ■ It.would Subjugate the courts to the will . of Congress and the President and thereby des- ■ troy the independence, of the -judiciary, the■ only -■ certain shield of individual rights * * It points the way to the evasion of the Con- stitution and establishes the. method,.whereby the. . : people may be deprived of their right to pass . ; ■ ; upon all amendments of the fundamental law,»,: ■A proposal that violates every sacred tradition of American democracy, r d' Under the 'form of the Constitution it seeks' ' . ' v;, : to do that which is unconstitutional,,,* ' , _ It is a measure which should be so emphati cally rejected that- its parallel will never again : be presented to the free representatives of the free people of America, 8 , .- According to the committee s majority, of which seven were ' Democrats, the President was attempting, to evade the terms of the Constitution, subjugate the courts, deprive the peo ple of their rights, violate every' sacred tradition of Am~ erican democracy, and on top of this he was also guilty .of deceit, Charles A, Beard observed, "Those were contemptous

7 Ibid,, pp, 3-23*

8 ' ; Ibid,, Po 23, •- words for seven Democratsvto horl at the leader,of their ■ ; - ' ' . ■ ■ . ■ : ' " - ■ ■ - 9 - ■- ; party? the President of the United;States.”

' The report was signed hy the ten opposition members of

the Judiciary Committee, including- S'enator- Hateh? who had . appended to the report his individual views that the evils of the bill could be remedied by .the adoption of the com- : - - . : : -: 10. ■ : - ; • .■ • • ■ ■ promise plan that he had - proposed = : .

Although a minority report was supposed to come out

and set forth.essentially the direct arguments presented by : Assistant Attorney General Jackson before the Judiciary " Committee, it never materialized, because of the reported inability of the minority committee members to reach an

11 ' " ' agreements.

In the middle of June, John Nance Garner, Vice-Presi dent of the United States left Washington for a vacation at his home in Uvalde, Texas» Garner's departure seemed to* in

dicate that, either nothing significant was, going to happen

in the'next few weeks or that if something did happen, he - 12 ; ~ - : wanted no .part of it , - At first he had given the President

9 - .. ■ - . . • Beard and Beard, op* clt»«, p.. 198*

■ 10 ■ — A ■U.S. Congress, Senate, Reorganization of the Federal - Judiciary,, :75th Cong., 1st Sessa, Senate Beport Ho_0 711, on So bill 1392, 24o ' - '

’ 11 t ■ ' . - Alsop and Catledge, 0Po clt.o pp. 234-35= ■ - 1 P - ■ " ' . ' - Time, XKJX (June 21,.1937), 15= • : - . ; ' some help with the Court Bill, but in the main his policy had been one of - ’’hands-off o0 It was believed that ;he pri vately' disliked, the bill and all--.that it represented« Gar

ner was one of the most influential men in the Senate and a great preserver of Democratic unity* . He was of immeasura

ble aid to the President in pushing through Hew Deal legis lation^ Despite his policy toward the Court Bill,,his cotmsel and assistance to Bobinson were greatly missed and . 13 I — needed after he left Washington* During the month of June, Bobinson and his lieutenants had conference after conference with individual. senators i n . order to make certain a sure majority for the compromise

bill. Bear the end of the-month, Bobinson told the.President that he felt that he had secured a majority for the bill, but said that he believed the bill should not be announced until Ik after the Democratic harmony party, which was held over the week-end of June 26 at Jefferson'Islands Club off the Mary- 15 land coasto This Jefferson Islands Conference was an attempt to unify and to conciliate a badly splitting Democratic party. On July 1, Bobinson announced to the press that on the

13 ' . " / ■ : ' : - ' - - . v' Alsou and Catledgei on* cit., pp. 236-38. 14 ■ ' ' t . Ibid., p. 241.

15 ; ? New York Times. June 26, 1937? p«- 4. . ; • ■ . : 7- ■ V . 137 following day a compromise bill would- be introduced in the Senate» . It was reported that the opponents; of any change in

the Court whatever privately admit ted-, that a compromise bill would be difficult to beat<> • Robinson declined to make known the provisions of the bill until it was introduced in the

16 - r : • - • . ■. .. Senate» . Oh July 2 ? Senator Logan rose in the Senate and said: MrV President 9;on:behalf of the Senator from Mew Mexico (Mro Hatch)3 the^Senator-from Arizona (Mr0 Ashurst)9 and myself9 I submit an amend- - ment in the nature of a substitute intended to be proposed to the bill (Sv 1392) to reorganize the judicial branch of the Government, which I ask may be printed and lie on the table« I also ask that the proposed amendment be printed in the Con gressional Record. 17

There was no objection to Senator Logan's motion, and the

amendment was ordered to lie on the table and was printed is 7 ; ■ . in the Record. A The amendment in the nature.of a substitute was set up '

so that everything after the enacting clause was to be

struck out in the original bill (S. 1392) and the amendment' was to be inserted in its place. . Its chief terms as compared to the original bill were as follows: (1) instead of an

16 - - / ./ 7' ' . ■ . " : . . - : ■ . Hew York Timesq July 2 9 1937s P». 1= ’ ■ 17 ' . ' ■■■ ' - : ■ / V U.S. Congress. Senate. Congressional Record. 75th Cong-, 1st-: Sess-, LXXXI-, P a r t 6, 6740. ' 7 . 18 ■ V ; ^ 7 . ' ; -; ' ■" ,: ; ■ ' - Ibid- ; . , M.v: ...... : :, 138 ; ; additional justice for each member over seventy and. one-^half

years of age? it provided for a new justice for each, member: t who had reached the age of seventy-five years; (2) in con

trast to the original'provisions, the President was author ized to appoint only, one^ justiee un any calendar year; (3 ) unlike under the original bill5 it would not permanently enlarge the Court for as justices who had reached the age of seventy-five-years retired (except the Chief Justice), they could not have been replaced unless the Court had been

left with less than nine m e m b e r s (4) similar to the origi- : hal bill:; provision was made for the' appointment of additional judges in the lower federal courts to replace or supplement those" having reached the age'of seventy years, but a limit ::

of twenty was imposed"as the total number of such additional

judges who might have been appointed’,■ (5 ) the substitute bill, also, provided for appointment of a Supreme Court proctor to

gather information for the Chief Justice as to the volume,

character5 and status of litigation in the lower courts; (6 ) like the original bill, it also gave the Chief Justice power to assign district and circuit court judges to other courts

than those to.which they had been, commissioned; (7)- unlike the original bill, the substitute carried out the President's proposal for permitting- the Attorney General to intervene in litigation involving a constitutional question, regardless of whether the federal government was a litigant; (8) not included in the original bill; the substitute provided for direct appeal of constitutional questions from district % : ' - - ■ ■ ■' ■■ . ■ ; 19 ." ■ ' court decisions to the Supreme Courto Although most opponents.of the old bill declared them- : selves against the new bill on principle, they also had

agreed that if it could have •.been brought to a vote 9 Eobin™ . ; , . , / ; : • ■■■■"■ 1 20 '' " p son had lined up enough votes.to pass ito The ‘!ifn meant •

that after the debate there might have been a filibuster. After having been- introduced^:the substitute bill received the public support of three more senators6 They were Sena tor Hatch5 who on the Judiciary Committee voted for reject- - tion of the original bill9 and Senators Allen.Jo .Ellendef

of" Louisiana and Clyde J = Herring of Iowa? who previously " . - : -1:11 - >•:; /:21' p'; - . . had not committed - themselves publicly.

The substitute, bill was formally introduced in the ’-Sen ate on July $ 3 and the debate-on it began.July 6. During this fSuB-day interval both sides prepared for the fight= .

Robinson and his lieutenants? Minton, Barkley, Black, and logan circulated- through the Senate— talking, influencing, /

re assuring--in order to try to consolidate, the .-administration-*

• 19 ; ; ■' : . ; ' ’ ' ’ ' . Ibid . % no o 67^0-67^1 <, 20 - : ' • - ' • : " '1 i p Time. XXIX (July 12i 1 9 1 7 ) . Ik. _ ; . ..p-:

■ 2 1 ; : ^ -i,,:' : i. \.''i-:i^: '' "pi / ' : : i - ;i ; : lew_Tork_Timesi3. July 3, 1937,- p. N-.p p. :■ ' / ; ■ i^o ' forpe.So . They were also assisted by the administration8s

Sphate lobbyist.) Joseph Keenan =. . The opposition also con

solidated. its forces9 and made preparations for a possible filibustero At' this. time there were apparently forty-two senators' 'Who were sure opponents of the substitute bill? and out of this number, about twenty seemed willing to speak until "doomsday to defeat, the; President and "'hin hillY11 ■ They each planned.if necessary to.speak twice on the bill itself and;.; twice more on each one of the amendments 9 of .which they

were ■preparing a large number with the assistance of the

American Bar Assoeiatioho ■ . , d - In the: morning of: the day that- the debate began, the , , ; ^ ' ;■ ' .. /: -"23 " v; President had a conference with Senator.Wheeler* It was re- . . ported that Roosevelt attempted to persuade Wheeler not to

take such an actiye part in the opposition, but rather to let the Republicans come out and lead the fight against the bill. It was also reported .'that Wheeler flatly refused as he realized that'the Republican consniracyof silence was . /.: . . . - ' ■ . : - . . p: ; p p 24 ■ ; p one of the.essential strong points;of the opposition.

That afternoon when the morning business had been :

22 : ' ;■"■ ' ' ' . ' : ' : • ■; - ; p . - Alsop and Catledge, op, cit,, ppo 244-$0,

■■ 23 'p1-p. 4 ;--p; '':': s ' V ' ■; ' ' p" • ■ p • ' Hew York Times, July 7, 1937, P° 1» b 24 - ,-■ ;-p:' p / ■ ' b' -' : > '\; ■ "' • Alsop and Catledge, op. cit., p , 2^3<> •• ' . ■ v ; ; :: ■ ■ V 1M ; closed9 Senator Robinson moved 11 that the Senate proceed to the consideration of the bill (8, 1392) to reorganize the judicial branch of the Government =.11 After the motion was agreed to5 Robinson offered the amendment in the nature of a substitute for the pending bill and asked that it be read„ After the substitute bill was read ^-Roblnsbh began the de~ .' ; . . . r _ : /' ; . ‘ ' : V- . : ■ •: : 2$ bate on the substitute bill with a: speech in its behalf„

Robinson gave a forthright speech, lasting two hours,

in defense of the substitute bill,; which was presented by Senators Logan,; Hatch, / Ashursi, and. himself = He declared

that the substitute bill was; constitutional and greatly needed to rejuvenate the judiciary with new blood and to prevent the Court from usurping legislative functions» . He

warned the opposition against, filibustering and stated that he would not tolerate any obstructionist tactics and that he would spare no/method to supress them0

All through his speech, he was Interrupted by questions ' from opposition senators, such as Burke,/Wheeler, and Borah® Senator Burke especially plagued him with question after

question from the beginning to the very end when the follow ing colloquy took place s .. -

U®S® Congress, Senate, Congressional Records 75th Cong®, 1st Sess®, LXXXI, Part 6, 6787-89. ' ; ^ .

/ '26 ■ - ■ - ; ' b ' ■ v : ’v - : Ibid®. op® 6789-96® ; . ' ' Mr o Burke,, ,. Mr» President9 I should like to ask the Senato.ror another question® . - Mr® Eobinsdn® Eo; I am through« : .. " ; Mro Burke = Eo more questions? Mr ® Robinson® r Eo more questions today® ; The Senator may reserve them until next week®' - Good-bye® (Laughter) 27 . ■

- Senator Hatch followed Robinson that same day and' made a very able defense of his; substitute bill,®. He also at-

tacked the Court for usurping legislative^funotipns® As . a, .. member who signed the adverse majority report of the Senate Judiciary Committee 9 he denied that the report was an at tack on the President® Senators Wheeler and 0 ‘Mahoney sup ported this view® Senator Bogan9.' however ? emphasized the point that although members of the Senate may,not have- in

terpreted the report.as an attack on the President, it had

been accepted as such an attack throughout the country®

Senator Hatch spoke for. the remainder of the. day, ' over two hours, and was constantly • interrupted by. questions from op- i ;■ : 2 3 ' " : :v ■: position senators® .v : ■ _ ' % ■ ; The following day, July 7, Senator Guffey spoke first in behalf of the substitute bill, and he was followed by Senator Bogan whose remarks continued on the next day, July 8® At the beginning of his .speech, Guffey requested his V '

2? Ibid®, pp. 6797-98,

Ibid., pp. 6798-6813® ; ::: -v V ^: . V ; v : • ' 1^3 ■. _ ' , •' . V ' . ’ - ■ ' " ' " 29 ' colleagues 1161 to interrupt UHtll he had concluded„ ■ He at- ■ tacked the members of the Supreme Court in general and,Chief Justice Hughes in particular9 who 9 he claimed? was the mas-

. ter politician behind the scenes for the opposition! . He,"

sarcastically complimented .Senate Minority header--McNary on the Republican's Conspiracy of silence while the Demo-' ; crats were splitting up' and fighting among themse,lves> ‘ ■;

Guffey declined to. hnswer, any :questions during his speech, and upon 'concluding, he was only willing to answer a few before yielding the floor to Senator Logan, who began his

speech by saying that he had no objections to interruptions, as long as the senators were orderly about it. He warmly

defended both the bill and the President, and stated that . the basis of support for the bill was party loyalty. This statement was refuted by Senators Wheeler, Burkey 0 'Mahoney, and Connally--who all held that the real issue was an attempt

by the administration to reorganize the Supreme.Court so

.that it would be subservient to the administration. - Logan deplored,the. sharp language of the Senate Judiciary Report ,

and said that if the statements and inferences in the. report

were true, "the. President of the! United States ought to be

impeachedo" Logan complained of the ingratitude of the ~

■ 29 V- ■.' : .: i ; ... ; ;V:V/f ■;.. : ihid., pp. 6873-78. . ; . . ;

■ 30 : . i - ' - /at ,' /31 \ . :... ■' : Ibid. , p. 6879,. . Ibid., p .: 6 8 8 3 - ' ■ ' ■ : - ■ ^ i;. : . ; ' ;v 144 Democratic opponents of the President’s plan to which .Wheeler replied - that, there is no gratitude' in politics but that "the - only thing,one gets in politics is the comfort derived from tti.e knowledge that - he is doing what his conscience tells . - . ■; 32. ' ; - : . , . .... ' him to do." . , - . ' ' • . bogan was so'harassed by the.opposition with questions that he was unable to finish his Speech that afternoon. In

the evening^ Robinson at a conference with his lieutenants decided to enforce the rules of the Senate, Robinson con

tacted in advance Key Pittman of Nevada9 President pro tem pore of the -Senatea. who was presiding in the absence of Vice- ...... : . . ' ' . - . ' •; - ■ 33" President Garner ?, and was an ardent administr a11 on -supporter« The following morning, July 8 9 Robinson raised a point of

order to the effect that, a senator .who had the floor may /' f . yield only for a question and that he may not yield to other c. ■ y.. y;..- ^4 ' ^ ' ;: ■ - : f senators for speeches within his time = Pittman announced that he would enforce the rule and that if a senator yielded

for anything but a question, after such a yielding, he.would be making another and separate speecho .Pittman added that part of .this same rule provided that n° senator, could make . more , than two speeches on a bill in any "day,", which he

- j 3a : " ■ .3 . 3 3 : ;;;; ; Ibid , s Ob 6884, : V 33 , , ■ : .y: ; - ' ; ,. ' . . Aisop and Catledge, op, clt,V p, 298, 34 : - .. : ' y ^ ■ . H, S , Congress, S b n a t e Congressional. Record, 76th Cong,, 1st Sees,, #X%I,' Part 6~ 6896o i— “ \ interpreted to mean "legislative day," and that this part V -i;-;- : d- 35 : . : . - - <'■■■ -.'3 -: would be enforced also® The legislative day. began on July \ 6 , and Eobinson said that the Senate would recess each af- - ternoon instead of adjourning formally, so that the same legislative day would.continue until the final disposal of" the Cour t Bill ® ' ' " ' .. .

The enforcement of these rules■ was directed against a,;

possible filibuster by the opposition, as well as. slow-down

or obstruction tactics which would p r o l o n g the debate® Af

ter Robinson made his point of order, there were many heated and. bitter .words .between the supporters and the opponents of

the billo Order was lost for a time, when senators of both : sides rose to their feet and shouted angrily back and forth : i-td; 37 f .w : d ' "d'd d' "' .'d^d y-vd- ■ ■ ■ ; . d . . at each Othero It was .described as the angriest session in

: twenty-five years® The opposition especially scolded .and re buked Robinson, who was described as "purple and trembling" ' ■■ 3 ':d'. d- d 38 . : d ' : , ; d. at the end of. the debate® It was reported that Robinson

during the heat of debate forgot himself and almost lit a

35 Ibid.

36 - -' ^d-. '' : d " - ■' New York Times. July 9. 1937, p= 1= 3 m : d ' Ibid. " ;d 38 - v ■ : : ■ " ■ Alsop and Catledge, on. cit.. p. 259» . ' ' " ■ ■' ; - \ ' : ' •: : ' ' 3 9 ■ ■ ,/ . cigar "on the sacred floor of tbe Senate =n ■ After Senator Logan concluded his remarks on that heated

day of July o9 .Senator Minton spoke for about an hour until near the end of the day1 s seision®..: Minton roundly enndemned the majority report of the judiciary committee and asserted that uthe / committee eould have accomplished a great deal . more by considering the fundamental proposition submitted by the President of the United States9 and trying to bring ; / - "/, / ■ : . - - ho ' " / . ; in some legislation to meet that problem/" Ee cited many \ historical precedents to support the charge that the Supreme

Court had set itself up as a super-legislature® He pointed. . out that the issue was not a ease, of Court packing? but rather a case of unpacking the Court; which in. a sense packs itselfo He pointedly asserted: „ '

; / What do Senators think Mr® Justice'McHeynolds . > has been doing on the Supreme Court for the past : 3. years ? when he has averaged only-a little more than five opinions a year? .He is .not workingc : . : He is sitting there packing the Court" so" that .President Hooseveit .cannot appoint his successor« 4l At the end of Minton’s r era ark s.? Senator O' Mahoney., sarcasti cally asked 9- "Are we to understand that the Senator is going

: 39 ■ . / ■ v ' : :: ' •/' Time „ XXIX (July 19? .1937) 9 10. 40 - . : V; ' ■ 'i ' v; . ‘ ' ■ ■ - ■ ■. -. U.S. Congress? Senate. Congressional Record:. 75th .Co n g 1st Sess., UXXXI, Part W, 6 9 l 5 T ~ 41 . : ■ . ■ : : ■■ Ibid.. o. 6919, - y : • ; \ i w . . to conclude without talking about the bill?” ' To which Min ton retorted 9 nI have talked about it* The Senator was out . in the cloak room telling a. joke* I heard itoH

-" The following day, July 9, the opposition began with a • ; stirrihg hpe'ech by Senator Wheeler who thoroughly denounced " the:;hdmlnistratipn’s tactics. during the Court fight« He condemned the speeches made by Postmaster General Farley? ' Works Progress Administrator Harry Hopkins, Secretary of . Agriculture Wallace ? and others in the administration/ whoy - he alleged, had used unjustified influence and pressure on . Democratic party members, W.P«As workers, and drought-strick en farmers ? respectively, to secure their support for; the ■ 43 • / >; ' / _ ' ' ' . " ■ - " i ' " ' President's bill. As for lack of loyalty to the President

and,ingratitude after having ridden in on his coattails, • Wheeler exclaimed s /: ; 1

Thank'God, I did hot ride in on the coattails of the President of the United’ States! Thank God, I do not have to go' to him and ask him whether or‘ - not I have to follow the Democratic' leader ih this new proposal! Those of you who rode in on the” : , coattails of the President of the. United States • will fide out on the coattails of the President of the United States if that is the only reason you are here. 44 . \

42 Ibid., p. 6922.

43 Ibid.p. 6967. 44 ' Ibid. - -■ ' ' "V ' U: V. ' ' - ' ■ 148 ' He deplored Senator. Guffey1s attack on Chief Justice Hughes

and decried its lack of taste» Wheeler was especially ve

hement against the tactics employed as he alleged by Parley^

who, according to Wheeler5, threatened that the "Senator from Wyoming (0’Mahoney) and the Senator from Nevada (McCarran)

probably would not get what they were seeking from the ad- ■ -■ ' . 45 ministration if they did not go along with the bill," After having defended the company that he was accused of keeping by listing the liberals on his side, Wheeler allegeds Yes, I am in bad company Indeed«. I am practically with every liberal who has stood on the floor of the Senate and.fought for the. : liberal -cua.se long before Jim Farley was ever' heard ofo<.»6 , ' - ■ ' .. The minute a Senator, is known to be op posed to the President's bill he is denounded as a."defeatist" and "economic royalist 9" who has sold out to. Wall Street v What bigotry I . Only those who vote for everything the Presi dent wants .are liberals»; /Those .whose.: con- ;;;:.'.'-..jSciences impel them to disagree even once im mediately are "defeatist lawyers" or "economic royalists46 : Wheeler-said that he and the other liberals like him were

fighting the bill on principle, and.claimed that :the.bill "stripped of all its subterfuge" was a blatant attempt.to

. usurp the powers of the Supreme Court and make it a sub- -: ' t ' ' ". . • : 47 servient instead of an independent branch*

4^ • 46 Ibid., p. 6968. ' Ibid.p. 6972. b7 - Ibid.. p. 6979. ■ ■ ■ / 149 : After Wheeler spoke for over three- hours9 Senator Min ton obtained the floor to answer him, Minton stated, that for the greater part of the three hours Wheeler had.merely recited to the Senate on the record that .he had made as a great liberal in the country, and added: "1 am glad to sub scribe to everything he said about himself®. I entertain for him the same high .epahi on'that he has for himself 011 Minton ' declared that for years Wheeler had,been his ideal as a truly, great liberal and that he had fairly "worshiped" him as his liberal "hero," and then remarked:

Bu t : J never thought that; 1'would::live id I see the day when my hero, the liberal Senator . from Montana, would be found on the floor of • the United States Senate-leading a solid"pha- - - -lanx of.reactionary Republicans against the' ' . bulwark manned by the loyal sons"of Democracy . and captained by the greatest captain of Demo cracy this Nation has produced in 100 years. 48. ; ,

Minton made an effective reply to Wheeler; for example, he chided Wheeler1 s' condemnation of the speeches made by Parley, Cummings, and Hopkins,. and pointedly expresseds1 "To the Senator from Montana that is ?intoleranee in all of its hor- . rible aspects; but it is all right for the liberty League and the American Bar Association and Mr® Gannet to go out ■ : ;■■■ ■ ■■ w ' . working for the other side®11

48 Ibido ® p® 6981o

49 Ibid®:, p® 6982® While Senator Minton was speaking f or the second time .. in behalf of the bill,he yielded to permit a conference re port : on ' a W f pepartment appropfiat1on bill to be made to ( the 'Senate.1 Senator Clark a short ^ time later made the: poin't - . of order that since Minton had yielded for other than a question, his second opportunity to speak was. ended . and he thus

must give up the floor. Minton asserted that he had yielded for a conference report, which was a privileged motion. At that time. Senator P. Ryan Duffy'of Wisconsin was the presid

ing officer and for twenty,minutes there was a heated debate over parliamentary rules. When President pro tempore Pitt- man returned to the chair, he ruled that Minton was within ■. ;:: : ' .. . ' ; ' / : ' 50 ■■■■;. ■■■ his: rights and could continue to keep the floor. ‘ ■>- The next day? July 10, Senator McCarran delivered- rather a dramatic speech against the substitute bill. ; He said that

he was a ,,sickM man and was speaking against his doctor's orders but that he felt the "cause was worthy of any man's

. life,.", -He stated that he-probably was committing political .

suicide for following his own conscience and'going against' . - • • ■ .. . ^ y : . - ■ ■ v ;: ' the "mandate" of Jim Parley. Although McCarran was said to be ill ? he spoke for hours and held, the floor throughout, that .Saturday ”s: 'sesslono • ; ^

50 • ■ . . . Ibid. ? pp. .6982-85o.

5i': . ■ rb2d. 5.. pp. 7019-27 = • . : i5i Sunday was a day of rest for the senators, especially Senator Robinson9 who was an ill man and badly needed it» It was reported that Robinson was deeply hurt over the per- ' sonal attacks: made against him because of his reviving the ... old Senate rulesthat he was deeply distressed over the .way the Democratic party was tearing itself apart on the. floor of the Senate9 and that his heart was constantly both ering him? causing him Indigestion and that he was living ; . .1 - 52 . • - . 11 almost entirely on buttermilks" ' .

Monday, July 12, Senator 0 1Mahoney spoke for the oppo

sition. He analyzed' the bill itself and described it as a ■ planned attempt'to centralize the control of justice in Washington. He decried' its effect on the people's liber ties and warned his colleagues that if the bill should pass

they would be thrown out of office by an "outraged" elec-i 53,. .; .. :.r;v:- : . tor ate. .. : ' .. . " : : .

After O'Mahoney concluded, Senator Bailey held the floor for the remainder of the day and continued holding V ■. .. :■ • ■ ; ■ ■ ■ : . - 54 ' , . . . the floor on the following day, July 13= Bailey's speech was said to be one of the most eloquent given in the great debate and that it seemed to come from the depth of his

■ ' 52 ; : Alsop and Catledge, op. cit.. p. 260. 53 - : . . U.S. Congress. Senate, Congressional Record. 75th Cong. , 1st Sesso, LXXXI,; Part ^ 54 : '■ , f. h;’-- h'' V, .. 4 C ;-.h . Ibid.. pp. 7049-53, 7091-7102. : ;.: ■ convictions o It was said that he had held the' rap-t atten tion of the entire body present with a convincing argument«,

which seemed to stir many of the freshman senators who had : - -v-' . ■ ';■■■■ .■: 55 ■ v> ■ been counted "on-to. support the substitute bill„ He deliv

ered his speech with religious zeal and concluded, "Mr« ■ - iPresideht 9' our cause is holy. It is the holy cause of jus tice in 'the BepubliCo -; We will not yield. You are dealing ' with devoted men," . _ Upon the conclusion of Bailey's talk, Senator Hoyal S 0

Copeland of New York, obtained the floor and spoke against the substitute bill. He warned the Democrats of impending disaster if they passed the bill. He blamed the uncOnsti- tutionality of so much legislation not on the Supreme Courts

but on the administration^ which carelessly and hurriedly drafted legislation, which should have been carefully drafted by members of Congress, He appealed to the President to drop -

■the Court reorganization bill and to reunite the Democratic

party, • ; .. . . ; 'Senator Robins on be came ill on the night of July 12 ,

and was unable to attend the Senate the following day when

55 - y' :-:: \ ; New York Times, June 13? 1937? P° 8, - 56 ' . . '■ ' • . ■ : : ;■ ■■■ : ' ' : ■ U,S, Congress, Senate, Congressional Record, 75th Cong, ? 1st Sess.o ? LXXXI? Part 6 S 7102, —

' . 57 . ■ . . ^ • ■ ' .y :-.- Ibid,, 7102-13 , . ' . : .; ,153 Bailey finished his speech and Copeland spoke= Assistant Majority Leader Barkley took his place. While Copeland was speaking, four freshman senators, Edwin C» Johnsonof Colo- . rado, Prentis M, Brown of Michigan, Charles O,- ’Andrews' of > Florida, and Guy Mo Gillette of Iowa were reported to have decided together to go to the President and tell hid that

they could not support any hill involving an increase in the Supreme Court, Although Gillette had previously come

. out for the opposition. Brown and Andrews were on Robinson8s list of fifty-one senators committeddtdnthe bill, and John- . ; :: v;-: 58' son was: counted on as a probable administration vote,

; Meanwhile on the saiae day of the Johns on-Brown-Andrews- Gillette conference, Chairman Hatton Sumners of the House

Judiciary Committee delivered a ringing denunciation of the

.substitute bill on the floor of the House of Representatives He declared: - : ■ ... ■ . ' ; : : ’

,o,I have not tried to makea speech this ■ afterhoon| but if these advisers who are coun seling the President to force that bill into - this House under pressure which they may be able to command,, when we are trying to preserve ’ d- strength and unity required to do the Ration's - : work, if they force that bill into this House for the sake of saving their faces or their hides, they:ought not to have hide enough left to be worth bothering about, . (Applause,.) 59

58 ; 'v :- - Alsop and Catledge, op, cit,, p, 265,

59 - ' . • ■ . T U,S, Congress, House, Congressional Record, 75th Cong,, 1st Sess, , HXXXI, PartT, 7l4J7 Sumner’s speech1 seemed to be enthusiastically received by the members of the House 5 who gave him severai:standing ova- . " , 60 - ' ' ; : ; ' tionso .. . ■ : ' . 1 . : . On July 12? the imerican Institute of Public Opinion conducted a popular poll,' To the question? "The Senate is

now debating a plan which permits the President to enlarge the Supreme Court by adding one new judge each year0 Do you favor this plan?” 9 were the following resultst Yes 38%, Ho 62$o These results? compared to the results of a previous

poll conducted by the Institute on June 79 1937, on the orig inal bill— indicated a popularity drop, of two percent despite

the more moderate provisions of the substitute billV It seemed as though the public was increasing in its determination to see that the Supreme- Court ..remained unchanged« V ;

In the. early morning of July 14, Senator Joseph Taylor v , 63 ■ , v.-: - ■ . ; Robinson died of a heart attacko He was- found on the floor

:: - ■ 60 > ■ ■ v:;’ - ;: ;v . -, . : . New York Times, July 14, 1937, p» 1» . ' 61 - • ■ . ' " , - ' ' ; - ' :... ■ Cantrils on. cit., po;l50o Out Of all those questioned, fifteen per cent had no opinion® 62 '■ ■ v.- ■ . . • ;■ - • Ibid® To the question asked on June 7? 1937? ’’Should the Congress pass the President's plan to enlarge the Su preme Court?'?, were the following results: Yes 40^, No 6 0 «

63 ; ■ V.- ■ 4 ■■-■'■v:-: '.v / ' f ,4 ■ ' New York Times® July 15? 1937? p® 1= Robinson's death occurred the day after the Sumners speech and the Johnson- Brown^Jlhdrews-Gillet'te cohference«: - "v'; ' :; >■ , beside his bed with a copy of the Congressional Record of - the day before beside him* His death was generally attrib

uted to the tremendous strain that he had endured as the ad- ministration1 s Senate leader, especially in the fight over the proposals to reorganize the federal judiciaryHis death ■ _ . ' - ' : ■ V ■ ' .t "■ 6 4 ' , came suddenly and the Capitol was grief-stricken. The Sen ate was stunned at the loss of its majority leader and its grief was spontaneous, genuine * and unmistakable <. Ordinarily after a senator's death the Senate appoints a day when his friends may eutlogize him|;but when the Senate convened at noon, Senator Hattie Car a w a y ,: Robinson' s colleague from Ar kansas , proposed a resolution for a committee to supervise

his funeral, whereupon fifteen Senators, representing all . .. factions, rose one after another to pay spontaneous tribute to Joe Robinson® After these eulogies were over, Mrs. Cara- way rose and saids -,!Mro President,: as a further mark of re

spect to the memory of the deceased Senator, I move that the

Senate do now ad jour n»11 Her motion was unanimously agreed - " '■ ■ ' ' ' ; • , ' : . - ■ ' 66 to, and the Senate adjourned until noon the following day*

Therefore the legislative day of July 6, 1937 was ended on

64 ' Ibid. '

6 5 '-;v" - : '' :. ; ' 5 UoSo CongressSenate9 Congressional BecordQ 7 5 t’h Cong. , 1st; SesS.o, LXXXI,' Part July 14, 1937 e

The death of Robinson brought a number of serious pro

blems to the administration* The President paid a glowing tribute :to his deceased leader in the Senate» Eobsevelt not only had lost a faithful frieM and servant, but-also the leader of a fight, • which was> all but lost- without his '. leadership o- .. Robinson1 s death took the heart out of the -fighters for the Court Bill, and many ofr the senators who \

were committed to Robinson to vote for the bill had done so on a personal pledge basis to Robinson which they felt that ' . • ; ; : . . : ■ 68 : - they had been released from upon his death» His death also brought the problem of selecting a new majority leader for ~ a: Sehate, which had. been badly divided by the Court contro versy into two bitter and antagonistic -f actionsf ,. The two O; main candidates proposed for the job were Pat Harrison of

Mississippi', who represented the Democrats more independent of the .dbmini str a tie n, and -Alben Bar kley of; Kentucky, who represented the Democrats united more closely to the White Houseo Although Harrison had remained loyal to the Presi dent on his Court Bill, he was basically more of a conserva-. tive than Barkley and had not taken as active a part in the controversy as had the lattero Although the President

67 V. Mew York Times, July Id„ 1937, p® 13» 68 I-' 3 : : Alsop_ and Catledge, oo. cit ,« p, 268, ' ■ : -■ ; 157 stated that-he Mas neutral with regard to the leadership fight9 it was generally believed? ,and. with good cause, that • - 69 he strongly:favored Barkley and was pushing for him, ' Mith •Robinson’s death9 the opposition appealed to the President to drop.the Court Bill« Senator Wheeler was

quoted as sayings ,fJoe Robinson was both a political and personal friend of mineo Had it not been for the Court Bill

he would be alive today. I beseech the President to drop . the fight,lest he appear to fight against God.* However? after a conference with the President SenatOB Pittman and Berry announced that, after a.brief interlude for the funer al, the Court fight would continue until the final: disposal : 71 : - : : it ■• i'':-: . 'li- of the bill. This announcement was re-affirmed by a letter "

dated JifLy 17? 1937? to Senator Barkley from the President who said in parts ,

My Dear Albans . : " I am glad you called my attention to certain events of yesterday and today. .Best there be ■ any misunderstanding in regard to judicial reform, ' please let me clarify the situation. .. v. Since the untimely death of our majority: leader I had hoped with you, that at least until his funeral services had been held a decent re- . spect for his memory would have deferred discus sion of political and legislative matters.

69 Time, XXIX (July 26, 1937), 12.

70 . V • ■. Hew York Times, July 15, 1937? P< 13«

71 : : : V " . Ibid., p. I. , , • 158 It is, therefore? with regret that I find that advantage is being taken .of what, in all decency should be a period of mourninge Because of this sltuatipn> however9 1 am compelled in the public interest9 though against every inclination, to write to you, I do this ■i ; because you are the: acting majority leader in the Senate a <, =« 1 ‘ ' May I, therefore tell you very simply once ; more that the objectives of the President, and I : believe the great majority of our citizens,'re-" main the same, and that I-believe that.it is,the : . duty of the Congress and especially of the members of the- majority party in the Senate and the' House ’ ’’■ of Representatives, to pass legislation at this' session to carry out. the objectives., , . ; : Very sInc erely yours^ . ■ ; . • ; / y . FRiHKLIH Bo BO€)SH?BbT> - ; : : Hone Alben W. Barkley , . . ' r ; • ■ . . . V ■ , nnlted States Senate,/ 1 . Washington, B.C. 72 , ■ '

The letter to Barkley was written after the four■freshman senators--Johnson, Brown, Andrews, and Gillette--had called upon the President to tell him of their opposition to the bill and to request him to. withdraw it before, the .I- : . Democratic party was irreparably split. They told him that he was defeated in the Senate. It was;also reported that all except Johnson informed the. President that they could - not support the Court Bill any further, and that they would ' ■ ' '■ ; ' ■ ■- ", 7b vote to recommit the bill if such a motion were made. Pre vious to this Barkley had Informed the President of the

72 / . Ibid.. July 16, 1937? PP= 1, 2.

73 . -■ ' Ibido, pp. 1, 2o . : ■ \ ; .. ' • : , ■ 159 announced results of a meeting of tjie Senate opposition's steering committee to the effect that they had enough votes

to .recommit the bill to vthe'd'udiChary.Committee when the . Senate reconvened after its members returned from Eobinson's : v , : ' t ' 74 ' . ■ . funeral and burial in Little Bdck? Arkansas = ■; ' On Friday9 July 163 Robinson was given a-very impress ive state funeral in the Senate Chamber, which was attended

by the President, his Cabinet, and other leading Washington - . :: 75 : .. ' , u ' /y ■ - ' dignatarieSo After the funeral, Eoosevelt conferred with ; Harrison and told him that despite the interpretations made

of his letter to Barkley, he had and would remain "absolutely neutral” in the majority leader contest, Notwithstanding Eoosevelt5s assurance to Harrison and the latter8s subsequent

announcement to that effect, both the supporters of Harrison . and those of Barkley.believed that the President was support

ing the Kentuckian, and the letter created considerable ani mosity on the part of the opponents of the Court Bill who

were supporting Harris on o Eoosevelt's decision not to atr- tend" Eobins on1 s funeral and burial in Arkansas also caused ■ ' ■' : > 76 . v rancor among certain members of the Senate» ; ... ; .;

7 4 ' - ' y Ibid., p. 2.:

75 ' ‘ y - Ibid., July 17? 1937? pp. 1?. 3« 76 ' : . . Ibid.o p p 0 1 3 2= : ; : - - : . - ".,-;: , 160 The following: day? SatUrday9 July 175 a new compro mise proposal was offered by spokesmen .for the administra tion on board the Robinson funeral train en route to Little Rock* The substance, of -the cdm|)rofeise-was to exempt the present members of the-Supreme Court from the pfovisions of the - pehding; substitute bill» The 'spokesmen’for' the adminis-. tration on the funeral train were;- dim Farley9 Under-Secre tary of Interior Charles West9 and Joseph. Keenanwho were all conferring with the thirty-eight senators and twenty- three representatives on board the train going to the funer al* It was reported from the, train that "certain opponents of the bill" were still determined to recommit the bill the ' following week, and believed that they had the votes to do it. It was also reported from the train that administration senators were resolved to fight the bill through to passage9 Despite the solemnity of the occasion^ senators on both sides and the administration's emissaries were negotiating1-back; and forth over both the Court Bill and the majority leader to be elected in a Senate Democratic caucus which had been 77 set for the following Wednesday, July 21* v

The train arrived in Little Rock9 Sunday morning, July l8? and the funeraL and burial services were held that af ternoon* Vice-President Garner arrived in Little Rock that day for Robinson's funeral, and went back on the train to

77 ; v; .. y ' ' -■ . - f Ibid*, July 18, 1.937, PR, 1, 24* Wasbington witti the congressional delegation, terminating . his five weeks 1 vacation in Uvalde, Texas„ While in.Little Rock, Jim Farley urged Governor of Arkansas Carl Bailey to appoint an: administration supporter to succeed Robinson as■ soon as possible,, The special train left for Washington -■ : 78 ^ ^ ...: . :,:: v/ ti.i- t ' - ' ' /that night. ■ / ./- yl ■ ; ' /■ ': , . V ' - , . Oh Monday, July 19, Governor Herbert Ho Lehman of New York, wrote Sehator Robert F* Wagner Of New York, a letter

which asked'Wagner to vote against the Court Billo Lehman wrote in parts / My dear Benat or Wagneri, y I am writing to you as a citizen of the . .State of New York, which you represent in the . ’ .: United States;Senate, -yfco yoice my; Oppbsition . to the Court Bill and-to express the hope that . . you will vote'against it = - i ' : ^ "- "/'' ' /"/ , " ' The President is already familiar with my ' • • views with regard to the. billo ooo From the broad standpoint of the public : interest whatever, immediate gain might be h- / achieved through the proposed change ih the court would, in my 'opinion, be far more than ' h h ;offset by a loss of confidence in the independ- 1 ; ence of the courts and in governmental proced- '/■• '/;/" ure0 /// ' \ .. . /. 1 have whole-heartedly: supported most of the President * s' social program, 0 0 = social re- /; f orm'o»• -> in the interests of the social well being of our people, ; This bill, however, 1 believe to be con trary to their interests. Its enactment would create a greatly dangerous precedent which could be availed of/by future.less well-intentioned . administrations: for the purpose of oppression

78 / Ibid o, • July; 19, 1937 ? PP« 1 ?/ 2> ; ; : ' ■ ; ■ 162 br/f.df the curtailment of . the eonstitutlonal' : rights, of our citizens» : - Very sincerely yours,

- : ■ ---raBpi:h;..:i,ehm4;n:7 9 .• ^ . The White House issued no official statement on the Lehman Letter 9 but it was unofficially reported that it was

deeply resented* Needless to say9 /the -opponents, of the/ bill were elated with the letter and the bill’s supporters were unhappy with it> although the latter group generally contended that it would have no effect on the outcome of ■the bill* Meanwhile the congressional train from Little v : , - V. :/ - • / 80 Hock, arrived in Washington late Monday night * - On Tuesday, July 20, Vice-President Garner called on the President * When he arrived in Washington, the problem Garner faced was a President determined that his Court Bill would be passed and a large group of senators determined that it would hot* Garner believed that, with the way things were going the bill was doomed to defeat, and if it were forced any further,, the Democratic party would be irrepara- 81 . - ■ bly split o' It was reported that he told the.President that he had been beaten and "that he had best fold his tents and

79. ' ./ Ibid.-. July 20, 1937, py 1. 90 Ibid., pp. 1, 29 3o n 81 ' ■ ' Time, XXIX (August 2, 1937), 11. ■ ■ - : ';:;k 163 steal away from the court issue as rapidly as possible." Apparently the President had resigned himself to defeat?

as he was reported to have accepted Garner's' view of the "

situation and placed its solution in Garner’s hands„ Where upon the Vice-President went to the Senate Office Building to confer with.:some oppohents:;fo; the bill* Garner later re turned with Senators Barkley, Harrison? and Pittman to con fer with the Presidento Different methods of disposing the bill were discussed, but the final decision was postponed until after the majority leadership vote on the following : 8 2 : ■ ' . ' ' ■ ' ' : r " ; - . - ' „ - V . . - ' ■. day. . y , ; ; \ - '/ . ’■ Wednesday,; July 21, the Senate Democratic party caucus elected Barkley majority leader by a vote.of thirty-eight to thirty-seven* After Barkley’s election, Garner called on Wheeler, and, it was -reported that he told him that the op- ;

pohents could write their own Court bill* Whereupon Wheeler announced that the opponents would prepare a bill to submit , V i . - ., i " ■ ■■ 8 3 . to the administration leaders by the following week* Pre viously Garner reportedly had offered the compromise of ex

empting the then present members of the Supreme Court from the provisions of the substitute bill, but he was turned down on that| then, he had offered a plan to appoint a commission^

. : 82 h ' ' ' : ■ ' ■ ■; , :' ;' ;. : - Alsop and ■ Cat-ledop*. pit * e . pp *- 28O-282.0 -

8 3 -I- : 1:'; : i'V - New York Times* July 22, 1937? p* 1* ■ . . , . 16b composed of five opposition senators and five administra tion senators^ but this too was rejected| consequently? the

final plan was to permit the opposition to write their own ' bill, with supposedly Garner 's admonitidh: ''but for God's

sake and the sake of the party, be reasonable=H The op- . position was jubilant and they met and agreed that their bill would not effect a change in the Supreme Court at alio . They also agreed that the Court Bill should be recommitted \ ■ / - : - : ;V':V- ; ■ ■■ ■ ■ '.84 ■■■ to the judiciary committee with this end in mind* . On Thursday, duly 22, the Senate judiciary committee, met in the morning and decided on how to dispose of the Court Bill in accordance with the expressed desires of the -

oppositioho After some discussion they finally adopted Senator Burke ! s motion that, the judiciary committee formally request the Senate to recommit the Court Bill to - it= It was

then agreed that Senator Logan, a supporter of the Court B il l w o u l d move for its. recommittal„ It was also agreed

that in deference to the President the words "Supreme Court" would not be mentioned in the motion or in any discussion of : -8:> ■ . . - the-: mot i on o

The Senate convened at noon and later on that afternoon, Senator Logan made the motion to recommit the bill as agreed

84 . - - : " ■ . - ' - ... : Alsop and Catledge 5 ona citi, pp0 284-88». .

.■ ■■' 85 ■ ' . ...; ;; ■ - -v'.;.4 : ■ r Ibid., pp, 288- W .y . : : .4 , : - 165 upon in the meeting of the judiciary committee that morn- : ' 86 . ■ ■ ■. • ■ . - ... ■ . .. : ' ■ •..ingo He made no mention of the Supreme Court nor did the ,

other senators who discussed the motion until old Senator Sir am ¥«, Johnson rose to his feet, and s aid 3 "Mr o President 9 I desire to know what the judicial reform refers to. Does it refer, to. the Supreme. Court or to the Inferior courts?" , SenatorLogan unhappily;explained- to Johnson what .had heen agreed on; by the judiciary committee "did not refer to the Supreme. Court =," .. .%....

Senator Johnson still unsatisfied asked) "The Supreme Court is out of the way?" •' ; - ; V

Senator Logan replied soberly, "The Supreme Court is out of the way." ;; \ r \ , - - : . ' 1 "Glory be to God!", cried Johnson, and the galleries; 87 'h'-h i,/ ': - % 1 ; burst into applauseo ; ; The Vice-President then stated the question and Sena tor McWary called for a vote, and the Chief Clerk proceeded to call the roll* The final vote on Senator Logan's motion "to recommit1 to the Committee on the Judiciary Senate bill 1392, to reorganize the judicial branch of the Government with all amendments thereto" was seventy yeas and twenty. . V . , : ; r 88 ;: ' nays. Five senators did not voteo

" 86 ' - ' r i ■ ' '■ U 0S 0. Congress', Senate, Congressional Record* 75th Cong,, 1st Sesso, bXXXI, Part 7, 7375° ■ 87 ■ ' " ' ' 88 ■■ ■ : : :: v ' Ibid,, p. 7381, ; , Ibid, . . • : ^ 166 After the result-: was announced. Senator As hurst observed that in-accordance with Senator Logan1s motion, instructed by the judiciary committee, that the Senate had ordered the bill returned to the judiciary committee with instructions to report.within ten days. He added that his committee "will with - zeal and fidelity- attempt to follow the wishes of the t Senate and bring within ten days such a bill as the Senate desires,'1 In order to re-emphasize the situation, Senator Burke saids u . Am I to understand from the statement of the ' Senator from Arizona, the Chairman. o£ the Judiciary , Committee, that in the deliberations which the com mittee is’to hold beginning tomorrow morning ho con sideration is to be given to adding judge's to the Supreme Court or to any court on any other basis" '- than that of need in order to perform the functions . of the. court? 89 Ashurst replied that his understanding of the situation was correctf and so President Roosevelt1s Court Bill, after five and one-half months of bitter controversy,' was formally , killed in the United States Senate.at;2855 P»M, on July 22,

1937c : ; ■ ; ' ' - ; ■ : ■ " ■

89 Ibid,, p, 7382, CHAPTER VI

CQNCLUSIQWh FORCES .AHD FACTORS THAT DEFEATED THE COURT BILL

On July 22, 1937? Franklin D» Roosevelt probably suf- ' fered bis 'greatest political defeat since the election of - 1920, when James M, Cox and he were defeated by Warren G. " Harding and Calvin Coolidge. It was probably also the worst defeat any President had- experienced at the hands of the Senate since the time this body .rejected. Woodrow Wil son’s: League of Nations in 1919 o . In 19365 Roosevelt was elected by the largest popular mandate in American history, and was given overwhelming Demoeratic majorities in both Houses of Congress» At the beginning of 19379 he enjoyed probably the greatest popu-- larity ever accorded the President of the United States, and had powers which previously had never been granted to a President in time, of peace« As evidenced by the 1936 election, his New Deal program .was overwhelmingly approved by the people, yet at the same time much of this program was being nullified by the. Supreme Court, Politically the conditions seemed ideal for the President to put through y his Court reorganization bill® '

From.an historical standpoint, there was nothing, new about Roosevelt's attack on the judiciary.' Jefferson, . : : >./ " :/v , ' 168 Jackson9 Lincoln. Grant, and The odore - Boosevelt 9 faced with :a similar situation, had responded much the"same way. With : regard to the size of the Supreme Court, it had been changed a number of times. The Court originally consisted of'six membersThe number was reduced to five in 1801, restored to six in 1802, increased to seven in 1807, increased to

nine in 1837? increased to ten in 1863, reduced to seven in 1866, and increased to nine in I869, where: it has remained

ever since. Robert E. Carr writes, ’’In every instance of ; increase or decrease .in the ■ number of justices there is at ■ least some evidence that the change was designednto affect ' V " V; ' 2 ' : - -t ; the Court1s decisions." Charles Grove Haines pointed out v.

that the increase from nine to seven in I837 was brought

about "in order to make Democratic control secure."When the size of the Supreme Court fiuctuated between seven and

ten members during the period from 1863 through 1869? the. changes seemed to be effected by political considerations . . - 1+ rather than merely to make, the Court more efficient. CUv/oV

1 ■ ■ ■ ■ ■ - Aloheus Thomas Mason. Free Government in the Making (lew Torks Oxford University Press, 19%1 ? p . 786.

v , ■: ■: : : .-'6 Carr. op. cit.. p. 270. " ; . . ■ .3 " ■ ■ 1 :'v ; t ' Ibid. , ■ . , "

' ■ - k - v : : V-b Ibid.: ' : Therefore with the above precedents and seemingly ideal conditions in mind, why was President Roosevelt so se verely defeated in his Court reform bill'?

Analyzing - the -%ltnatlon/ it appears that there was a -

combination df forces and factors, varying in importance and degree9 which defeated the. Court Bill„ Although not necessarily in order of importance, they might he listed as follows s (1) the method used in adopting and presenting the bill| (2) the popular opposition! (3) the President's rejection of compromise! (4) the change in the Court's de cisions! (5) the pressure groups8 lack of enthusiasm! (6)

the opposition’s liberal leadership and Republican silences

(7) the retirement of Justice Van Devanter; (8) the death of; Senator Robinson! (9) the Lehman letterf and (10) Vice- President Garner's role.

The method by Which the bill was adopted and presented

was extremely significanto- The decision to adopt an in direct rather than a direct approach to the problem of Court . .• ' : ' ' ' ' ' . 5 reform, in Roosevelt's own words,; .was a "maoor mistakeo” Although the indirect approach Of emphasizing delayed jus tice, clogged judicial dockets, and aged,infirm, and over worked judges was for the most part discarded in the Presi dent’s later speeches that emphasized the Court’s decisions

5 - ■ ' V . , : i - : ■. ■ • - - - ■ Public Addresses and- Papers of Franklin D. Roosevelts 1937 Vol.) p. Ixv. % hii: ■ V V . v:v^ :/ ■■■, . ; m . ' whieh were nullifying EFew Deal measures ? it was apparently.

a too late to rectify the damage which already had been done« ■ - From the very, beginning the bill appeared “devious 511 "half-

baked 9" and "dishonest ?11 as though the President was trying . • -V-' . ' % ; ; ; . ' .. : • ■: - -- 6 / ■ ' : .' - ; ; . ■ - to put something over on the country« The preparation of - the, bill in so much secrecy and the President *s decision ' • to present the bill to Congress without first adequately

consulting his congressional; leaders- appear.ed ::alsQ. tp: be a . mistakeo However, even if the;opposition leaders in the v

Senate had been contacted and consulted in.advance? they probably still would not have accepted the Roosevelt plan,:

and whether 'Roosevelt'could have been dissuaded from using his plan and persuaded to adopt another plan by his con- b : ' ■■■ b 7 "b : ' gressional leaders is open to question,, v - Public opinion polls, conducted by the American Insti-

- tute of Public Opinion, indicated that a majority of voters : . - ■' .: : .■. 8 were opposed to the Court Bill throughout the controversy*

■ 6 v .-;.b:- ’ 7;bv - : . : f : .b/' /v.bh John Guntheri Roosevelt in Retrosreet (New Yorks ' • .' Harper and Brothers, Publisher s., 1950) ^ p. 29!) * / :

Grace Tullv«, F.D,R* My Boss (New York: Charles - Scribner ’ s Sons, 1 9 W ) ; PP- 223-2b* 7-: '

■ 8 : ; b t V v - ' ; • . n - •’ . y t ■ George Gallup , "The Testing of - Public Opinion Public Opinion in a D e m o c r a c y (special supplement-' to the January, 1938'? ’ issue of the -• Public :Opinion Quarterlv £Prince- tons Princeton University Press, 1937J)? pi 12* After the President made his proposal5 results of the first poll showed 53% (Pehruary 15) of the voters opposed to the 9 ;' - - " % • ' - bill= After the President delivered two speeches in defense, of the bill (March 4 ? and. 9) 9 two subsequent polls indicated a-decrease in those opposed to 52^ (March 10). and then to V. ' - 10 It : ■ . . : . ' -■ ' • - • 51^ (March. 15 )o ' After the Washington Minimum Wage, Railway labor ? and Frazier-lemke decisions (March 29).? favorable to labor, agriculturej and the Hew Deal, were delivered, the percentage of persons opposed to the bill increased to 53% : . : 11 ■ ■ - : : ' i (April 5)° After the Wagner Labor Act decisions were handed - down (April 1 2 ) the number opposed increased -to 5 ^ (April 26)^ and after Justice Van Devanter tendered his resignation (May 18), it increased to 59^ (May 24); and after the Social

Security decisions were delivered (May 25), it increased to 60% (June 7) 0 lespite the more moderate: provisions of the substitute bill introduced:: on July 2 ? in a poll taken on both July 12, and July 19? the number opposed had increased ; : 13 ' ': -'-I'::: : ' : ■ : • ' A . I to 62% o The bill was recbmmitted on July 22. , - .

9 • Santril (edo), op. cit., p. 149. ; •■■■■ ; -\ :/:- ;V ' - : 172 Popular opposition to the Court/Bill wa.s not only re

flected in public opinion polls, but also .in Congress® It was not a positive current in that it did not result mainly from a.great number of letters and telegrams to senators and representatives from their constituents; nor did it come primarily from the newspapers, radio, or 11 other molders or r - ' : 14 ' : ■ - reflectors of public thoughto” It was reported, that a great

many senators, who voted to recommit the bill, believed the popular opposition to be a negative current, in that there was no popular demand for the Court Bill as there previously had been for the relief, recovery, and reform measures en acted during the first Boosevelt administration® • With what Seemed to be a divided or apathetic public and, therefore, less fearfUl of successful .reprisals .by the administration, many senators, who otherwise would not have, voted to IdLll ■ ' ' 15 ' , V ' ... ' : ' ' ' ' . ■ ' ■ . ; .. the billo Why was the public so apathetic towards the Court

Biii? , : . ■ ' ' . ' ■ . • • :

Although the people approved of Roosevelt and his New

■ Deal as evidenced by.the 1936 election and subsequent polls

■ 14 ■ /:■ • : . :h.; ; ■■ ■ ' , ■ ' 4 :' New York limes, July. RR. 1947® p. E-3 »

-15 ; - '-I: Y" : : I 4 - ', ; V ■ . . . Ibid, . - (except those on the Cpnrt Bill)?f they also had a “sense . of the: sanctity of- the 'bour.t9M which Max Berner called the \ "divine right of judges.-* According to Berner9 this belief stems from the following factors? Cl) the fact that people have been encouraged so long "to make a fetish of the Con stitution"; (2) "the belief that the Supreme Court is the special guardian of the Constitution— and a better guardian than Congress or. the .President"; and (3 ) "the tradition of judicial neutrality"— completely objectives neutral, and - . infallible in spite of all evidence.to the contrary. Un doubtedly many people were torn between their loyalty to

Roosevelt and their veneration of:the Supreme Court. ; This

might have been the cause of .what appeared to be a divided or apathetic public = : v ' ' : . ; B v

16 . v B- ' '/B ' B . ' " B- ' v-. : Cantr 11 (ed.)3, bp. cit.«, n . 756<= The results of the American Institute of Public Opinion*s poll, "If you were voting today, would you vote for or against Roosevelt?",' were as follows? July 26, 1937%-For 60.3#, Against 39.7^;' August l6? 1937— For 600 4%, Against 39 = 6^; and October 2o, 1937--For 62.8^, # a i n s t 3 7 ^ .

' 1 7 _ - ' ; : • b "b" • : Max Berner , "The Bivine.Right: of ^ Judges,* The People. Politics, and the Politicians^." ed. by_ A, Sy Christehsen and Bvron Mo Kirkpatric (New' York?"Henry "lidIt -and Company, 1950 p. 6 1 5 . .,. : - , . 18

I - b i d o Despite the above5 the Presideat insisted throughout the Court controversy and afterwards, that the•people were; with h im He was extremely confident from the very begin- ■ ing and would not agree to compromise until it was too late;0 At first he called any suggestion of compromise as “defeat ist „ " long after his congressional and, administration leaders suggested a compromise ? the President remained ada mant . After Van. Pevanter Vs announced resignation and the Senate's “nomination" of Robinson to fill the vacaney?.in

stead of taking advantage of this situation by immediately appointing Robinson to.the Court and then pushing.through a compromise 5;’the President waited for two very important weeks before he agreed to compromise? which then seemed to be too lateo f ;- ■ - '

The factor which probably defeated the Court Bill--more . . than any other was the. .complete change in the decisions of : '

the Supreme Court1 The same Court which invalidated a. New V York minimum wage law some months previously to Roosevelt1s

announcement of his Court Bill? upheld an exceedingly simi

lar Washington minimum wage law less'than two months after his announcement» The same Court upheld the Wagner Labor y .

:AcbVand.'the Social Security Act? after the Court Bill's- an nouncement ? when before it had Invalidated the Guffey Goal Act and the,Agricultural Adjustment Act because of certain provisions and principleswhich were later contained in the - Wagner, Act and Social Security Act? .respectively«, President ■ : • ; : ■ . ' ■ ' : : ^ Roosevelt later wrote ? The start ling fact which did more than .. ■anything el&e to bring about the defeat of ’ the plan in Congress was a eleaf cut" victory on the bench of the Court for the.objectives of the fight. The Court yielded. The Court changed. The Court began to interpret the Constitution instead of torturing it. " '■ And^ it was still the same Court s with , the sAme” justices. ' Ho 'hew appointments had" been made. And yet9 beginning shortly after the message of February, 5V 1937 ? what a change i 19 The change in the Court’s decisions was largely because

Justice Roberts had changed his mind9 and why he switched to the liberal.minority Seems to be a mystery and probably will remain one. Perhaps it was merely a result of the 1936 election returns 9 or possibly it was the result of the political pressure of the Court fight, or perhaps it was because of internal pressure on the Court from the Chief ; Justice and the three liberals,, or possibly it was a com bination of all these and more. Roosevelt wrote, ’’I feel convinced =..that the change would never have come, unless

this frontal attack had been made upon the philosophy of

the majority of the Court." One wag aptly summed up the Court’s change with "a switch in time saves nine."

. 19 ' ■ ' ' ■ , ' Donald Day (ed.). Franklin D. Roosevelt1s Own Story (Boston: Little, Brown and Company,'195l7T~P» 281. ■ : ■ 20 ' ■ Ibid. ' - • : ; . -;; -., . '.. ' - .. \ . \:; ,. 1 7 6 - Reportedly, the President had couhted on the assistance of agriculture and labor to put through his Court Bill, With exception of a comparatively small; part of the farm pressure groups, organized agriculture exerted no real pres sure on behalf of the bill,' A number of farm commitments were received, but what little lobbying was done was ex

tremely ineffective. Although at times organized labor

seemed to rally behind "the Court Bill, for the most part its lobbying was impotent in that it demonstrated the lack of enthusiasm among labor which, on previous measures, had . been closely allied with the President, whereas after the Court upheld the constitutionality of the National Labor .Relations Act, labor pressure for the Court Bill's enact ment decreased considerably.

Needless to say the defection of such staunch New Dealers as Senators Wheeler and 0 'Mahoney and the Republican.- conspiracy of silence helped immeasurably to defeat the bill.

Senator Wheeler, leader of the opposition, had a well estab

lished reputation as a liberal and could not be discredited, although attempted, as a hopeless reactionary or ^defeatist

lawyer" who had sold out to the "economic royalists" of Wall '

Street, Without exception the .liberal opposition to the Court Bill condemned the Court8 s•usurpation of the legisla tive function and recognized the need for judicial reform,

but by some other-way, usually an amendment. The fact that

the Republicans for the most part remained comparatively • ; ; ■ , : . :v ; 177 silent9 prevented the administration from placing the enact ment of the bill on the basis of party loyalty= The fact that Senator Wheelers ably assisted by Senator 0 -Mahoney, was the leader of the opposition, also prevented, to a great

extent, the administration from making the basis of voting for the bill as loyalty to the lew Deal0 Of course many, who opposed the bill, were opposed to Roosevelt and his en

tire lew Deal program For a great many, opposition to the Court Bill merely afforded an opportunity to seek revenge for the 1936 election rout» The leadership of a liberal like .Senator Wheeler was a godsend to the opposition® /The"admin istration leadership in the Senate had no common enemy to solidify its ranks, and, therefore, seemed.to be always at a disadvantage0: The administration had to rely .primarily; t-- :■

on force--"force of the President's personality, force of the majority by which be was re-elected 'last November, force of his position as President and force of the Democratic- po- ' -■ ;: . ■ ; / : " V I . v - ■ - ' 21 : -V ; litical machine to develop sentiment in the country.o“ Vlt .was-difficult to believe that this force could failo .. - ■ The announced retirement of Justice Van Devanter coupled

‘with the Senate' s almost' unanimous end or semeht of Senator Pi o bins on for the vacancy were important factors in the ulti mate defeat of the Court Bill® Van Devanter!s letter of re--

. signation signified that Roosevelt would be permitted to -

21 ,V : -Vh.t 1 V ^ V ’ '' ’ ' ; " ' ' New York Times, July 25, 1937, p» E-3® appoint a new justice:'without the Court Bill. And since the

administration^ after the recent Court decisions 9 .seemed to have a five to four majority and Van Devanter was one of the four in the minority, the President's new appointment should

give the administration a' six to three majority without the Court Bille Van Deventer's retirement also foreshadowed other possible Court retirements9 which would permit the President to make some more appointments without the Court .

Bill „ ' : ■ '■ : r f >: • ' '' :V; . fhe 'President was politically committedv. to give this first appointment to Robinson, who was objectionable to the administration because of his age. (64) and his inclinations towards conservatism, which he might revert.to after acquir— ing the security of the bench* Perhaps Woodrow Wilson's

appointment of Justice'Mcleynolds:;was in the back of Roose- f velt's mind» .Nevertheless, the President remained silent - as to appointing Robinson for some time, and although later the

imp11cationywas that Robinson would be appointed to fill the

Van Devanter vacancy, it was never publicly announced to that effect * Roosevelt’s silence caused considerable" rancor in the Senate. The feeling in the Senate was that he should

have made i h unmistakably clear that Robinson was to be given « the Van Devanter vacancy on the Supreme Court.

; ■ 2 2 ' -v V' " ^ : ' : ' : ‘p-” : ; f _ • . Moley, pp. cit.o p. 261. : : 'f t- ; p. •: : . ■ ' ■ ■ . : ^ 179 Perhaps the most immediate- reason for the- defeat of . the Court Bill was the untimely death of Senator Robinson, - : .■■■■ ■ - ■ ■ : ’ : : - 23 which Jim Farley very aptly called the "knockout blowv" Robinson held together the administratibn’s forces in the Senate by- the sheer force of his dynamic personality<, Part' of the so-called fifty-one majority for the; bill in the

Senate was on the basis of .personal pledges to Robinson whose -death apparently dissolved these personal pledges.

With the death of Robinson the bill1s proponents in the: Senate not only lost their leader but also the only leader who was probably forceful and aggressive enough to ride out , v 24 , - : ' : ' ' , - • / , - ' a filibuster o Robinson was- the spearhead' for /the adminis tration and there was no one who could adequately take his place on this measure— with his death, the Court Bill died9

too« - ■ ■■ ■■■ •.■.' - / .:■/ ■ : /• /.// The finishing touches ,'to the death of the Court Bill were added by Governor Lehman and.Vice-President Garner=

The Lehman Letter was another indication that to vote against :the Court Bill did not necessarily imply voting against lib eralism. It undoubtedly re-affirmed the faith of the liber als, already against the bill, and possibly it won over to the opposition liberals who did not like the bill., but who

23 -V ' " 3 4 - : ■ ' ■ : : : ./- ^ : : /. . Parley, op. cit. p. 82 =

24 ■ ■ -■ : 4- . / New York Times, July 25, 1937. n. . ■ ' \ ...• 180 hated to vote against the Hew Deal„ • / Garner's role in the death of the bill has been dis^ puted| that is $ whether he sold ont to the opposition or did everything possible for the President* According to Farley^ Roosevelt felt that Garner had made no effort to secure a

compromise, as he had been instructed to try to do, but had ■ : 25 ■ ■■: ■■■' ■• ' ' ■ '■ - "capitulated to the opposition*" Parley, himself, held that Garner, after having-done what was possible, had to ask what Senator Wheeler "would settle for and was forced to capitu- - ; : ■ ' '■ - ' ' ■; '■'' ■; : ' / 26 late when the Senator called for unconditional surrender*" Alsop and Catledge;wrote that in attempting to secure a com- ' promise, Garner had done all that was possible for the. Presi- : 27 : ■:/ : ' -v ■■■■■: '' - - dent,' whereas Grace Tully, the President's secretary, later • wrote s

It was our information that the Vice- President announced to the opposition leader ship that "we 're licked" and' accepted reeom-- mittal of the bill to -the Senate Judiciary Committee without any effort to obtain a cpm- promise* 28 ' ' '

Secretary of Interior Harold L* Ickes wrote in his diary

25 ■ ' - : . Farley, bn* cit* *.n* 94*

26 ' „ ' ^ - ' - • ' V:' Ibid* * p*:\9^* \ 27 ... . v . / i'" . - _ : , - . Alsop and. Catledge, op* elf *, p* 285*••

28 ■■■' ' Tully* op* clt* * p* 225* 181 on May 15? 1937? the followings .. ' Tom Corcoran says ""Vice-President John Garner is "off the reservation” and has been doing a lot of damageo He is in almost open revolt<> The "Vice- President is opposed to the relief program. But it goes deeper than that. He has been lukewarm toward the court bill since the beginning? and I think he has been mastering his courage to bore from the inside0 29 In his diary9 dated July 25? 1937? Iekes described Garneris role in the following way: . ■ He was yefy busy on - the train? and as soon : ^ : as he reached Washington? he. called on -the Presi dent = He offered his services?a.s mediator and the President gave him authority to undertake a compromise on the court bill* Garner went' to the.' hill for conferences and came back to the Presi dent with a compromise = It would have meant the' enlargement of the. court to eleven members» Then he started to trade with the Presidents As I get it, he offered to put through this compromise if. • the President would agree to terms he sought to impose with respect to labor .and:'rblief o 'The ' ' . : President refused and Garner went back and ditched - . ■ the whole program. Later5 the President told me . that on the r etwn trip from Little Book some of - the senators seemed disposed to agree to a satis- .. factory amendment =.: They went with it to Sen, Bur- ■ ton Wheeler [Dem, Mont? and Wheeler said t . . ;■ "Nothing doing, We must teach that man in , the - White House a lesson. We must show him that , the . ..United States Senate has to be consulted and is going to have something to say about how the'j’Gev- .; v ernment is fun," 30 ' ' ' Iekes on.August 1937? described a. growing coolness•between .:

Harold Lo Iekes7 "Revolt .against Roosevelt," Look, XVIII (May 18? 1955)? 99® Look magazine in this latest issue published seleetions from the second volume of the secret diary of the late Harold L, Iekes„ entitled The -’;- Inside Struggle, which covers the period.from the second election of Roosevelt to September,'l939o . ’30 ■ ' 1 'g:' : : Ibid. . p. 100. V ; . : ; ; . V i ; -V ..- - ' ; . :i ... >82 Roosevelt and Garner, wJaose discomfort he set forth: "Even if he Is the great statesman that the newspapers proclaim

him [for scuttlihg^the court bill] he knows in his heart . that he is also a double-crosser, and I think that gener-

. ' 31 .. ally speaking. Garner does not enjoy the role," Although Iekes pictured Garner as the "double-crosser," he also pointed out that, according to the President, .Sena tor Wheeler would not agree,to a "satisfactory amendment" which, reportedly, was suggested :• to him by some opposition \ senator So / .Therefore, if Wheeler would not accept a compro

mise suggested to him by his own side, why would he ever have considered any -compromise offered by; thh. Vice-President.i

for the White House? It appears that lekes, an ardent sup porter of the Court Bill, in his attempt to depict both Gar ner and Wheeler as the blackest of democratic traitors,

came up with this inconsistency In view of what has;been re ported on Garner’s efforts at compromise by Alsop and Cat- . . - ■ 32 ■ ■ ■ : ; ■ ledge and Jim Parley. Whatever may have . actually been Gar ner’s motives and actions, he, nevertheless, was confronted with the fact that the •opposition had the votes to recommit or kill the Court Bill® -' "y ^

31 . ■ . , ■'h: : a . Ibid. . ' - -l.: . ' ' 32 ' : • V’ . . ■ - / ...... With regard to Garner’s loyalty to Roosevelt and the administration, see his letter to Farley quoted in Parley, op. cito, p p . 84-86. All the above forces and factors constituted the in- ■ gradients of what Raymond Moley .called "the most elaborate• ;crow pie any American President had eaten for eighteen • •% ' 33 . ’ y year So" Rooseyelt may have lost a. political battle, but he won a ephp111utional warL» He won his principal objective t which was to stop .the Supreme Court from invalidating lew

•Deal measures through a tortured interpretation of the Con stitution* His objective was attained without the means of . a constitutional amendment or _ impairing judicial review* •All;, of the ppoposed eonstitutional • amendmentswhether they in some way curbed ■iudiclal review,' expanded the: Cons tit u-. tion, or compelled the retirement of aged justices,, suffered fr om two principal dr awb ac k s-rtime:and feasibility* Even

;if an amendment ..could have been ratified, it would probably ~ have taken years even with popular support, and with regard to feasibility, it was quite probable that despite popular ; ;

support an amendment could and would have been successfully 3*+ • ■: ' : •;v-: ’ y" blocked* Time was of the essence as there was an immediate

33 • ,./ ;.'; ' : Moleys op, bit*, 0 * 26l, . .,> • r '

3^ ; " • . . ‘ , . ■ : : ' For example, . to the. qn^stibn^ d8Dpy you ifavorlah ame ment to the Constitution giving Congress the power to regu- yylate,the labor of persons under eighteen?11, asked. In two pop ular polls by the American Institute of Public Opinion were the following results § April 169 1936— Yes .‘61$, No 39$! Feb- - yruary 1, 1937— Yes 76$, No 24$| on April 16, 1936, only three states (South Dakota, Kansas, and . Maryland) had popular maj or1 ties against the amendment, and on February 1, 1937?;all 48 ' states had popular majorities/for the bill* Cantril, opt cit* PP® 97-980 Yet the required three-fourths of the states/never ratified the proposed. Child Labor Amendment». ■■ • . • " , v ; 184 need for social and economic legislation, which would not be nullified by the Supreme Court= Perhaps in addition to Roosevelt’s proposal, an amendment curbing judicial review •. and/or compelling the retirement of justices upon reaching a certain age might have been proposed to afford a more permanent solution. However, in Roosevelt’s own words ’’an

amendment was wholly unnecessary; the Constitution was not to blame, and the-Supreme Court was not.to blame; the trouble . \ • ; i '' '■ 35 was with some human beings then on the Court.” As for alternative legislation to the Court Bill, Con- gress might have passed an act abolishing judicial review for all legislation, or for social and economic legislation, but without even considering the merits of such an act, it would have undoubtedly been declared unconstitutional by the Supreme Court. Or Congress might have enacted a law which V .restricted judicial review by making exceptions and regula tions to the Supreme Court *s appellate jurisdiction— under the authority.of^Article III, Section II, which says in parts ”In all the ■other Gases before mentioned, the Supreme .Court shall have appellate Jurisdiction,, both as to Law and'

Fact, with such Exceptions, and under such Regulations as the

. Day (ed.). op. cit., p. 280. Congress shall make <,n However, it was highly improbable that the Supreme Court would have upheld such an act in view of the firmly, established doctrine of unrestricted'ju dicial review in our system of government no matter what may have been its original Justification^ A congressional act establishing voting rules for the Court's internal procedure is highly questionable from a constitutional standpoint and would have been nullified by the Court. A congressional act enlarging the Court ? without regard to age .and retirement, might have solved the immediate problembut would: not have provided for future years» V:

Roosevelt Vs bill -to attain his objective by reorganizing the judiciary9 As previously .illustrated, had precedentso - The bill was of undoubted constitutionality^ in fact,.: even the American Bar Association had to concede this point» .Po litically the bill was a failure for reasons that' the writer has attempted to show in this thesis, but it was not a fail ure in the political consequences» Ho longer did the Supreme

Court nullify legislation on the basis of their own social, political., and economic philosophy; nor was' the electorate . powerless to demand .the solution of its national problems by its President and Congress; nor was the national Govern ment impotent to meet the needs of the people»

The Constitution of the United States (Washington: V : The Haskin Service, Qa«d3 ), p« 23» .. 186

111.conclusion9 I quote the following from Associate Justice ■Robert ; Ho Jacksons V; ;. .1; ■ ' So the court reorganization debate came to an inconclusive endo But even as-the'Sena tor s 'and lawyers shouted ringing defenses of ' '\■ the old and changeless order? the Court made certain that the old order should yield rapidly . h; ■ and.decisively6 In politics the black-robed reactionary Justices had won over the master • liberal politicah of our day. In law the President defeated the recalcitrant Justices v- in their own Court. 37. ■ "

37 . \ ‘ ■ ; y ' Jackson?; on. cit.4. pp. 195”96 = 187 BIBLIOGRAPHY

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-■ .. . - ,, t' ; Newspapers ' Arizona Daily Star, XCIV (February 7. 1937)? 10= New York Times, LXXXIV.(June 1, 1935) and LXXXVI (November 1, ' ~ 1 9 3 ^ — July 25, 1937), : ; .. ■ ■ . . -. , : V - - .193 ' Miscellaneous - \" Sears Family World Atlaso Chicagog Sears Roebuck and. Co0 ? : 1953o : T|iei_<_Gons_iiJbui^oni^_^f_ibMe_JC[nlied__^>iateSo Washingtons The Ha skin Service, . World Almanac and Book of Facts for 1917° Hew Yorks New York Wor1d~Te1egram, 1937°