SEVENTEEN

HUBRIS

I propose that hereafter, when a Judge reaches the age of seventy, a new and younger Judge shall be added to the Court automatically.

—FRANKLIN D. ROOSEVELT, MARCH 9, 1937

FDR KICKED OFF the 1936 campaign early. “We began the first of the year and never let up until the polls closed ten months later,” said Jim Farley.¹ Roosevelt told Farley to organize a sponsorship committee of twelve prominent Americans. “I would like to have five clergymen. I think we should have a Catholic priest, a Baptist minister, an Episcopalian minister, a Presbyterian minister, and a rabbi.”

“What about the Methodists?” asked Farley.

“Well, we could leave out the Jews,” FDR replied. “No, there are more of them than there are Episcopalians. Take the Jews and leave out the Episcopalians.”²

Roosevelt saw the election as a referendum. “There is one issue in this campaign. It is myself, and the people must be either for me or against me.”³ In FDR’s eyes the outcome was never in doubt. “We will win easily,” he told his cabinet, “but we are going to make it a crusade.”⁴

Roosevelt had good reason for optimism. By almost any measure the economic surge since 1932 had been remarkable. National income had risen by more than 50 percent, 6 million new jobs had been created, and unemployment had dropped by more than a third. Of the 8 million still unemployed, more than 70 percent worked at least part of the year for the WPA or were enrolled in the CCC. Industrial production had doubled, stock prices were up 80 percent from their 1933 lows, farmers’ cash income—which had fallen below $4 billion in 1932—rose to almost $7 billion in 1935, and corporate profits, deep in negative territory when Roosevelt took office, had zoomed to nearly $6 billion.⁵

Statistics told only part of the story. The banking system had been rescued, depositors enjoyed a federal guarantee of their savings, most farm mortgages had been refinanced, and the Home Owners’ Loan Corporation had bailed out more than 3 million debt-ridden home owners. Social Security, rural electrification, and the massive public works program now under way were changing the face of the nation. A Fortune magazine poll in June 1936 indicated that 53 percent of the nation thought the Depression was over and that 60 percent or more supported the president.⁶

On the political front, Roosevelt’s opponents were in disarray. With Huey Long’s assassination in September 1935 (Long was forty-two years old), the Share Our Wealth movement imploded. The Reverend Gerald L. K. Smith, a rabble-rousing fundamentalist from Shreveport, had seized the reins and the mailing lists, but without the Kingfish the effort floundered. The remnants of Long’s political organization made peace with the administration—critics called it the Second Louisiana Purchase—and Smith was shunted into the rhetorical wilderness.⁷ Father Coughlin, for his part, appeared to be concentrating on congressional elections, and the Townsend forces had been undermined by passage of the Social Security Act. To the Democrats’ delight, Herbert Hoover had emerged from domestic exile, traveling widely around the country, seeking vindication for what he believed had been a singularly successful four years in the White House. Napoleon said that after the French Revolution the Bourbons had learned nothing and forgotten nothing. The same might be said of Herbert Hoover. His message of retrenchment, the gold standard, and a balanced budget fell on deaf ears. Most Republican politicians shunned the former president’s embrace, certain it meant electoral defeat come November.

Roosevelt launched his campaign with a fighting State of the Union message on January 3. At Louis Howe’s urging, the president converted what is normally a request for legislation into an election keynote. “Let ’em have it,” said Howe. “They’ll lap it up.”⁸

Roosevelt spoke to Congress in a special evening session—the first president to do so—and to the delight of wildly cheering Democrats pulled every partisan plug. A vast radio audience heard FDR lambaste the “resplendent economic autocracy” that threatened to retard the nation’s recovery. “We have earned the hatred of entrenched greed,” said FDR with evident relish. Now these sinister forces were conspiring to recapture power. “Autocrats in small things, they seek autocracy in bigger things.… Give them their way and they will take the course of every aristocracy of the past—power for themselves, enslavement for the public.”⁹ It was the language of class war that Long might have used. Speaking to the party’s annual Jackson Day celebration several days later, FDR identified with Old Hickory, who like himself had

an overwhelming proportion of the material wealth of the Nation arrayed against him.

The great media … fought him. Haughty and sterile intellectualism opposed him. Musty reaction disapproved him. Hollow and outworn traditionalism shook a trembling finger at him. It seemed sometimes that all were against him—all but the people of the United States.… History so often repeats itself.¹⁰

On January 25, 1936, Roosevelt’s autocrats of privilege made their rebuttal. Two thousand guests decked out in formal evening attire gathered at Washington’s Mayflower Hotel for the Liberty League’s annual dinner. The New York Times reported that the audience “represented, either through principals or attorneys, a large portion of the capital wealth of the country.”¹¹ John W. Davis and Governor Albert Ritchie of Maryland were there, as were Newton D. Baker, Winthrop Aldrich, and assorted du Ponts, Mellons, and Vanderbilts. The keynote speech was given by Al Smith, in white tie and tails, who assailed the New Deal and FDR for more than an hour. Smith said that if Roosevelt was nominated, he planned to take a walk in November. “It is all right with me if they want to disguise themselves as Norman Thomas or Karl Marx or Lenin … but let me give one solemn warning: There can be only one capital, Washington or Moscow. There can be only one atmosphere of government, the clean, pure, fresh air of free America, or the foul breath of communistic Russia.”¹²

Smith’s audience went giddy with delight. “It was perfect,” crowed Pierre S. du Pont.¹³ But as a political effort, the night proved a disaster—“one of the major tactical blunders of modern politics,” in the words of Jim Farley.¹⁴ Senate majority leader Joe Robinson of Arkansas, who had been Al Smith’s running mate in 1928, gave the administration’s response. His voice dripping with sarcasm, Robinson told a national radio audience, “It was the swellest party ever given by the du Ponts.” Smith, “the unhappy warrior,” had turned his back on the sidewalks of New York. “Now his gaze rests fondly upon the gilded towers and palaces of Park Avenue.”¹⁵ Roosevelt’s popularity soared. The Liberty League bubble collapsed so completely that by June the GOP was frantically trying to disown it.

A pall was cast over the campaign in April, when Louis Howe died. Howe had been ailing more than usual for the past year and in August 1935 had been moved from the White House to the U.S. Naval Hospital where he died peacefully in his sleep a little before midnight, April 18. “Franklin is on his own now,” Howe confided to a visitor shortly before his death.¹⁶ Roosevelt and Eleanor had visited the little man almost daily during his confinement, and his death was a heavy blow. For ER it meant the loss of a dear friend and mentor, an ally who had continued to mediate the differences between her and Franklin. After Howe’s death “communication grew harder for each of them,” wrote Blanche Wiesen Cook, “and for their work together.”¹⁷ For FDR it meant the loss of his most intimate friend and adviser—the only person except for Missy who spoke frankly regardless of the consequences. “For one reason or another, no one quite filled the void,” said Eleanor many years later. “There are not many men in this world whose personal ambition is to accomplish things for someone else, and it was some time before a friendship with Harry Hopkins … again brought Franklin some of the satisfaction he had known with Louis Howe.”¹⁸

FDR handled the funeral arrangements himself: formal services in the East Room of the White House; flags at half-staff; interment in the Episcopal cemetery at Fall River, Massachusetts. The president and his sons stood bareheaded on the snow-covered ground as Howe’s body was carried gently from the hearse to the gravesite.¹⁹ The New York Times reported that Roosevelt “appeared oblivious to everything around him, both during the service and when he returned to his car.”²⁰ Later, FDR appointed Howe’s widow postmaster of Fall River. Admiral Richard E. Byrd, a family friend, named a peak in Antarctica “Mount Louis McHenry Howe.”²¹ As one historian has written, Howe’s influence will always remain hidden. He talked to FDR daily, but no one knows what they said. “His major service was relentless criticism. He was the ‘no’ man from whom the Boss could never quite escape.”^22*

Howe’s death marked the departure of the last of Roosevelt’s original advisers. As FDR veered left, one after another of the early brain trusters fell by the wayside: first Lewis Douglas, then James Warburg, then Moley himself. A new set of acolytes took their places—a changing of the guard that inaugurated a new direction of march. There was the former journalist Stanley High, once editor of the Christian Herald, an easy-to-get-along-with speechwriter with a gift for memorable expressions. Sam Rosenman called him the best phrasemaker he ever worked with, and it was High who gave Roosevelt’s 1936 campaign speeches their remarkable polish.²³ There were Thomas Corcoran and Benjamin Cohen, gifted legal technicians who had come to Washington under Felix Frankfurter’s aegis. The garrulous Corcoran was Mr. Outside to Cohen’s Mr. Inside—a remarkable team that not only provided Roosevelt in-house expertise in legislative drafting (sadly lacking in 1933) but was equally adept at lobbying the bills through Congress. Additional legal and economic talent was provided by Robert Jackson, William O. Douglas, and Isador Lubin, who weaved in and out of the White House.

The Republican National Convention convened in Cleveland on June 10, 1936. Caught between self-styled constitutionalists who wanted to repeal the New Deal and progressives like William E. Borah, Hiram Johnson, and Gifford Pinchot, the Grand Old Party turned to Governor Alfred M. Landon of Kansas. A former Bull Moose who had deserted the party in 1924 to vote for La Follette instead of Coolidge, Landon had survived Democratic tidal waves in 1932 and 1934, balanced the state budget, and, aside from an ingrained fiscal conservatism, was regarded as far more liberal than the party’s mainstream on social issues and civil rights. “America bids fair to join the procession of nations of the world in the march toward a new social and economic philosophy,” he said in his 1935 Topeka inaugural. “Some say this will lead to socialism, some communism, others fascism. For myself I am convinced that the ultimate goal will be a modified form of individual rights and ownership of property out of which will come a wider spread of prosperity and opportunity.”²⁴

Landon’s greatest advantage was that he was not Herbert Hoover. His liability (aside from Roosevelt’s immense popularity) was his blandness. For better or worse, Landon personified Kansas: honest, decent, self-contained, hard-working, and dull. After listening to Landon on the radio, Harold Ickes said, “the Democratic Campaign Committee ought to spend all the money it can raise to send him out and make speeches.”²⁵ Unlike the GOP platform, Landon did not seek to dismantle the New Deal and generally refrained from attacking FDR personally.²⁶ He deplored the Liberty League and vainly sought labor’s support. As his running mate he chose the affable Chicago publisher Frank Knox, another Bull Moose, who had charged up San Juan Hill with Theodore Roosevelt. In World War I Knox had enlisted as a private at the age of forty-three, seen combat in France, and ended the war as a colonel of field artillery. He was more energetic and more stridently nationalist than Landon, and still looked on TR as his political idol. What the nation needed, he told an audience in 1935, was “fewer and better Roosevelts.”²⁷

Three days after Landon was nominated, Gerald L. K. Smith announced from Chicago that he, Father Coughlin, and Dr. Townsend were joining hands to form a new political party—the Union party—dedicated to defeating Franklin Roosevelt and “the communistic philosophy of Frankfurter, Ickes, Hopkins, and Wallace.” Smith claimed more than 20 million adherents ready to join forces and elect two-term North Dakota congressman William Lemke, a weathered agrarian populist who had devoted his brief legislative career to rescuing the nation’s farmers from mortgage indebtedness. “I look upon Roosevelt,” said Lemke, “as a bewildered Kerensky of a provisional government. He doesn’t know where he came from or where he is going. As for Landon he represents the dying shadow of a past civilization.”²⁸ Added together, Lemke’s farm constituency, Coughlin’s urban Catholic base, Townsend’s following among the elderly, and the remnants of the Share Our Wealth movement made the Union party, at least on paper, a formidable opponent.

If Roosevelt was concerned, he did not show it. The Democrats met in Philadelphia on June 23. The first order of business was repeal of the two-thirds rule, which had given the South a veto over presidential nominees since the days of Andrew Jackson. “Now that the party is in power and there is no question about my renomination,” FDR told Farley, “we should clear up the situation for all time.”²⁹ Roosevelt gave notice to the party well in advance of the convention that he sought a rule change, and Farley entrusted the task to Senator Bennett Champ Clark of Missouri, whose father had fallen victim to the two-thirds rule in 1912.³⁰ Clark was selected to chair the convention’s committee on rules and resolutions and, as South Carolina’s James Byrnes said afterward, pursued his goal “with all the energy of an avenging fury.”³¹ The committee voted 36–13 to abrogate the two-thirds rule, and the committee report was accepted by acclamation. To mollify the South (and with Roosevelt’s blessing), a provision was included that in future conventions a state’s Democratic voting record would be considered in the allocation of delegates. The significance of the repeal of the two-thirds rule—virtually without a contest—is difficult to overstate. Not only did the power of the South in the Democratic party diminish, but without repeal it is open to question whether FDR could have been renominated in 1940.

The 1936 Democratic National Convention was the most placid on record. There was no fight over the platform, no contested delegations, and, for the first time since 1840, no roll calls. Senator Alben Barkley of Kentucky treated the delegates to another spellbinding keynote and brought down the house with a slam at the Supreme Court. The trouble lay not with the Constitution, said Barkley, but with the men who interpreted it. The Democratic party wanted the Court to treat the Constitution “as a life-giving charter, rather than an object of curiosity on the shelf of a museum.” When he asked rhetorically whether the Court was too sacred to be criticized, the convention roared its dissent.³² Both Roosevelt and Garner were renominated by acclamation, but it required a full day to do so. The president’s nomination was seconded by a delegate from every state and territory—fifty-five in all—and more than seventeen delegates spoke on behalf of Garner.

The high point came Saturday night, June 27, when Roosevelt addressed the convention. A crowd of more than 100,000 crammed into the University of Pennsylvania’s Franklin Field to hear the president while millions more tuned in their radios to listen. A light drizzle had fallen but the sky had cleared, and a pale half-moon rose overhead. Instead of the usual brass bands, the Philadelphia Symphony Orchestra under Leopold Stokowski played Tchaikovsky. When the incomparable coloratura soprano Lily Pons sang “Song of the Lark” from The Seasons, even reporters were on their feet cheering. “Something had happened to that audience,” wrote the Washington journalist Raymond Clapper. “It had been lifted, not to a cheap political emotional pitch, but to something finer. It was ready for Roosevelt.”³³

Shortly before 10 P.M.—seven o’clock on the West Coast—the president’s limousine entered the stadium, circled the field, and stopped near the platform from which Roosevelt was to speak. As FDR was helped to his feet and began his laborious walk to the lectern on the arm of his son James, Stokowski led the orchestra in a stirring “Hail to the Chief” while a dozen spotlights illuminated the president’s progress. The stadium shook with applause. Smiling broadly and shaking hands as he went, Roosevelt made his way to the stage. He recognized the unmistakable white beard of the elderly poet Edwin Markham, whose “Man with a Hoe” had been a battle cry for the forgotten man during TR’s time.³⁴ As Roosevelt reached out to greet Markham, he was jostled and lost his balance. The brace on his right leg came open and FDR went down, the pages of his speech spilling into the crowd. Mike Reilly of the Secret Service dived and got his shoulder underneath the president before he hit the ground. Farley and others clustered around to hide the scene, while Gus Gennerich knelt down and snapped FDR’s brace back into place.

Roosevelt was pale and shaken as he was helped to his feet. “Clean me up,” he ordered. “And keep your feet off those damned sheets.” While Farley and Gennerich brushed the dirt from the president’s clothes and straightened his tie, James retrieved the manuscript. “I was the damnedest, maddest white man at that moment you ever saw,” said Roosevelt. “It was the most frightful five minutes of my life.”³⁵ When everything was in order, FDR said “Let’s go.” He started toward the platform, but, catching sight of Markham, who was quietly sobbing, the president stopped again, smiled, and took the old man’s hand in his for a moment.

When Roosevelt reached the platform, he was greeted with another thunderous ovation. He had regained his composure and stood waving and smiling as he unobtrusively reassembled his speech and put the crumpled pages in order. When the applause died down, the president struck a bipartisan pose: “I come not only as a leader of a party, not only as a candidate for high office, but as one upon whom many critical hours have imposed and still impose a grave responsibility.” He thanked the members of all parties who had put partisanship aside to help defeat the Depression.

“In those days we feared fear. That is why we fought fear. And today, my friends, we have won against the most dangerous of our foes. We have conquered fear.”

Roosevelt reminded the audience that political tyranny had been wiped out at Philadelphia on July 4, 1776. But new tyrannies had arisen to threaten American liberty.

Liberty requires opportunity to make a living—a living which gives man not only enough to live by, but something to live for.

For too many of us the political equality we once had won was meaningless in the face of economic inequality. A small group had concentrated into their own hands an almost complete control over other people’s property, other people’s money, other people’s labor—other people’s lives.

These economic royalists complain that we seek to overthrow the institutions of America. What they really complain of is that we seek to take away their power. In vain they seek to hide behind the Flag and the Constitution.

Roosevelt’s voice rose and fell as he lifted the audience through the rhythmic cadences:

Governments can err. Presidents do make mistakes. But the immortal Dante tells us that divine justice weighs the sins of the cold-blooded and the sins of the warm-hearted in different scales.

Better the occasional faults of a Government that lives in a spirit of charity than the consistent omissions of a Government frozen in the ice of its own indifference.

The vast audience gave Roosevelt another tumultuous ovation. When quiet settled over the stadium, the president lowered his voice and continued, reciting the sermon’s lesson, as it were:

There is a mysterious cycle in human events. To some generations much is given. Of other generations much is asked. This generation of Americans has a rendezvous with destiny.

Another thundering ovation. FDR looked up, acknowledged the response, smiled, and threw his head back. He had reached his conclusion. “I accept the commission you …”³⁶ But the cheers and applause that cascaded through the stadium drowned his last words. For ten minutes the shouting continued. FDR raised his hands over his head like a boxer. Then he raised Garner’s. They were joined on the podium by Sara and the president’s family. The Philadelphia Symphony Orchestra played “Auld Lang Syne.” Roosevelt requested another chorus, began singing himself, and soon the whole stadium joined in. Soon the president returned to his car. With the top down, FDR took two victory laps around the track to an intense ovation. Even after he left the stadium the crowd remained, mesmerized by the evening’s events.³⁷

As he had done after winning the nomination in 1932, Roosevelt left after the convention for a two-week sailing vacation, this time on the Sewanna, a fifty-six-foot schooner owned by New York lawyer Harrison Tweed. Once again James, John, and Franklin, Jr., crewed for the president, joined by two professional seamen provided by Mr. Tweed. “I haven’t the faintest idea where I’m going except to work to the east’ard,” FDR told reporters on July 14 as he set sail from Maine’s Pulpit Harbor.³⁸ Instead of heading immediately to Campobello, Roosevelt sailed across the Gulf of Maine and the mouth of the Bay of Fundy to the southern tip of Nova Scotia. He made the 108-mile crossing in thirty hours and, when the weather turned heavy, personally took the 9 P.M. and 3 A.M.watches.³⁹ For twelve days FDR sailed in and out of the small coves on Nova Scotia’s south shore before recrossing the Bay of Fundy for Campobello. “His seamanship was tested by the sail in rough, white-capped seas,” reported The New York Times. “The decks were awash in a run before a stiff southeast wind. The president, at the wheel, clad in oilskin, brought the Sewannathrough the treacherous Grand passage between Digby Neck and Brier Island, where high seas and cross-currents make navigation hazardous.”⁴⁰ James said later that one of the escort destroyers had attempted to follow them, hoping to pick up survivors, but “thanks to Pa’s elegant navigating we soon lost her.”⁴¹ Roosevelt spent a day and a night at Campobello and then returned to Hyde Park by train, stopping for a weekend visit in Quebec City at the invitation of Canada’s governor-general, Lord Tweedsmuir.⁴²

When the campaign began in earnest on Labor Day, FDR left nothing to chance. He whistle-stopped across the country, delivering more than two hundred speeches in sixty days.^* Roosevelt concentrated on the heartland. He was confident of carrying the Solid South and the big cities of the North but was determined to deny the farm belt to Landon and Lemke. He spent three days in Iowa, two in the Dakotas, two each in Nebraska and Wyoming, two in Colorado, and two in Kansas. Roosevelt spoke seven times in Landon’s home state before moving on to Missouri, Illinois, Michigan, and Ohio.⁴³ Wherever he went, jubilant crowds reached out to touch him. They waved and cheered and shouted thanks for saving a farm or getting a factory reopened. Even the weather cooperated. Rain began to fall on the parched Middle West as Roosevelt moved through. The president never mentioned his opponent by name. He touted the accomplishments of the New Deal, contrasted the do-nothing years of Herbert Hoover, and did not let his audiences forget the opposition of the “economic royalists” of the Liberty League.⁴⁴

Roosevelt was a natural on the campaign trail because he enjoyed it. “He rode for hours in the 1936 campaign in motor processions, waving constantly to people along the roadsides, shaking hands with hundreds, and delivering often ten to fifteen speeches a day,” said Farley. “He never gave the impression of working hard; on the contrary he was stimulated and exhilarated.”⁴⁵ Who else would join with an American Legion chorus in Syracuse to sing “Pack Up Your Troubles in Your Old Kit Bag” or playfully invite hostile editors to the platform as FDR did with William Allen White in Emporia, Kansas?

The only glitch in the Democratic campaign came early on, when Farley, addressing a gathering of party faithful in Michigan, referred to Landon as the governor of “a typical prairie state.”

“Never use the word ‘typical,’ ” chided FDR. “If the sentence had read, ‘One of those splendid Prairie States’, no one could have picked up on it. But the word ‘typical’ coming from a New Yorker is meat for the opposition.”⁴⁶

Landon recognized he had an uphill fight. He waged a low-key campaign, showed the Republican colors to advantage, and remained on good terms with FDR.^† That was shrewd politics. Landon’s advisers calculated that rabid Roosevelt haters would vote Republican in any case and the campaign should aim at the ordinary citizen who liked the New Deal’s goals but disapproved of its methods. “None of my campaign speeches will be merely an attack upon the opposition,” Landon wrote Idaho’s senator William E. Borah in August. “I cannot criticize everything that has been done in the past three years and do it sincerely. Neither do I believe that such an attack is good politics.”⁴⁷

If Landon took the high road, Gerald L. K. Smith, Father Coughlin, and the Union party took the low. Alarmed at Lemke’s failure to gain traction, Union party rhetoric escalated to a level of vituperation seldom seen in American public life. “I’ll teach them how to hate,” Smith boasted. “Religion and patriotism, keep going on that. It’s the only way you can get them really ‘het up.’ ”⁴⁸ For Coughlin, teaching how to hate came naturally. Determined to outdo Smith, Coughlin not only attacked FDR as a liar, a double-crosser, and a Communist but placed much of the blame on the Jewish advisers who surrounded him. Called to task by the Church, Coughlin apologized for calling Roosevelt a liar but was soon at it again. In New York he declared the difference between Roosevelt and Landon a choice “between carbolic acid and rat poison.” In New Bedford, he called Roosevelt “the dumbest man ever to occupy the White House.” In Cincinnati on September 25 he described FDR as the “anti-God” and implied that bullets would be permissible to dispose of an “upstart dictator in the United States … when the ballot is useless.”⁴⁹

With that remark Coughlin stepped over the line. The Vatican summoned Coughlin’s bishop, Michael Gallagher, to Rome; L’Osservatore Romano accused Coughlin of provoking disrespect for authority; and, at the apparent suggestion of George Cardinal Mundelein of Chicago, a not-so-covert supporter of FDR, the papal secretary of state, Cardinal Eugenio Pacelli (later Pope Pius XII), embarked on a two-month vacation in the United States and remained through the election.^*

Roosevelt closed the campaign with a massive rally at Madison Square Garden on October 31. With the wind in his sails and well ahead in all opinion polls save one,^* FDR all but proclaimed victory. “I prefer to remember this campaign not as bitter but as hard-fought. There should be no bitterness or hate where the sole thought is the welfare of the United States of America. No man can occupy the office of President without realizing that he is President of all the people.”

That said, Roosevelt did not disappoint the partisan crowd. After vigorously defending Social Security—“Only desperate men with their backs to the wall would descend so far below the level of decent citizenship” to suggest that the funds collected from workers would not be available when they retired—the president recited a litany of Republican abuse:

For twelve years this Nation was afflicted with hear-nothing, see-nothing, do-nothing Government. The nation looked to Government but Government looked away.

Nine mocking years with the golden calf and three long years with the scourge!

Nine mocking years at the ticker and three long years in the breadlines!

Nine mad years of mirage and three long years of despair!

The applause, reported The New York Times, came in “roars which rose and fell like the sound of waves pounding in the surf.”⁵⁰ FDR savored every moment. “Powerful influences,” he continued, “strive today to restore that kind of government with its doctrine that Government is best which is most indifferent. Never before in all our history have these forces been so united against one candidate as they stand today. They are unanimous in their hate for me—and I welcome their hatred.”

Absolute pandemonium. The vast audience in the Garden rose and cheered and then cheered some more. Roosevelt lowered his voice. “I should like to have it said of my first Administration that in it the forces of selfishness and of lust for power met their match.” More sustained cheering and applause, then: “I should like to have it said of my second Administration that in it these forces met their master.”⁵¹

ON MONDAY, NOVEMBER 2, the day before the election, Farley provided Roosevelt a detailed assessment of the party’s chances. New Hampshire and Connecticut would be close. Also Michigan and Kansas. But he thought FDR would carry them. “I am still definitely of the opinion that you will carry every state but two—Maine and Vermont.”⁵² Since Maine had already voted, that meant a virtual clean sweep on election day.^*

Roosevelt was incredulous. Participating as he always did in a preelection poll among the newsmen who covered his campaign, FDR put his electoral vote total at 360 to Landon’s 171. That was about two thirds the number Farley had given him. As the early returns came in Tuesday night, Roosevelt continued to be skeptical. When New Haven was reported to have gone Democratic by 15,000 votes, the president said it must be a mistake. “It couldn’t be that large.” He asked Missy to have the figures checked. She was back in two minutes. The figures were accurate. Roosevelt leaned back in his chair, blew a smoke ring in the air, and said, “Wow!” Farley had been right.⁵³

When the ballots were tabulated, Roosevelt had won an unprecedented 60.79 percent of the popular vote.^† He beat Landon 27,747,636 to 16,679,543—a margin 4 million votes larger than the Democratic landslide in 1932. Lemke polled a mere 892,492 votes nationwide, and Norman Thomas, running under the Socialist banner for the third time, received 187,785.⁵⁴ That was 700,000 votes fewer than Thomas had received in 1932. The Socialist program was indeed being carried out by the New Deal, quipped Thomas: “On a stretcher.”⁵⁵ In the electoral college, Roosevelt won forty-six states with 523 votes to Landon’s 8—a majority not seen since James Monroe cruised to an all-but-unanimous victory during the Era of Good Feelings in 1820.⁵⁶

Roosevelt’s confidence about the one-party South proved out. He carried South Carolina with 98.6 percent of the vote, Mississippi with 98.0, and Georgia with 87.1. “Who are the fourteen persons who voted against you in Warm Springs?” asked Farley. “You ought to raise hell with them.”⁵⁷ Roosevelt’s top-heavy majority in Congress increased further. In the House, the Democrats gained eleven additional seats, giving them a 331–89 majority. In the Senate, Democrats outnumbered Republicans 76–16, with four independents who were solidly behind the president: Henrik Shipstead and Ernest Lundeen of Minnesota, Robert La Follette of Wisconsin, and George Norris of Nebraska. Norris had represented Nebraska in the Senate since 1913 but because of his support for the New Deal had been denied the GOP nomination in 1936 and was running as an independent. Roosevelt was particularly concerned about Norris, and the last thing he did before going to bed election night was to call Nebraska to inquire about the Senate race. “Of all the results on November third,” he wrote Norris later, “your re-election gave me the greatest happiness.”⁵⁸

The 1936 election marked the birth of the Roosevelt coalition—a unique alliance of big-city bosses, the white South, farmers and workers, Jews and Irish Catholics, ethnic minorities, and African Americans that would dominate American politics for the next generation. Gone from the Democratic party was the old hard-money, probusiness crowd: men like John Raskob and Jouett Shouse; John W. Davis and Newton D. Baker; and the checkbooks of the du Ponts and General Motors. In their stead were organized labor, led by John L. Lewis and Sidney Hillman; disaffected businessmen like A. P. Giannini of the Bank of America, who feuded with the financial establishment; and leaders of new industries, typified by Thomas Watson of IBM. Lewis, a lifelong Republican who had supported Hoover in 1932, marshaled the battalions of the CIO behind Roosevelt and contributed $770,000 (roughly $10 million currently) to the president’s campaign.⁵⁹ Labor’s votes helped swing Ohio, Illinois, and Indiana behind FDR. Pennsylvania went Democratic for the first time since James Buchanan. African Americans deserted the party of Lincoln; for the first time since Emancipation, blacks voted Democratic.⁶⁰ Not because FDR was in the forefront of the fight for civil rights. He was not. But no segment of American society had suffered more severely from the Depression, and the New Deal provided relief.

Roosevelt made no changes in his administration for the second term. Hull remained at State, Morgenthau at the Treasury, and Homer Cummings continued as attorney general. Frances Perkins, Harold Ickes, and Henry Wallace, the three most ardent New Dealers, stayed at their posts, as did Daniel Roper at Commerce and the elderly Claude Swanson at Navy. James Farley continued to wear two hats—postmaster general and party chairman—and at the War Department former Kansas governor Harry Woodring had succeeded George Dern, who had died in August.^* In the White House, Louis Howe was gone, but otherwise FDR’s personal staff, essentially an extended family, remained intact. Missy and Grace Tully ran the office seamlessly; Hackmeister handled the phones; Pa Watson, Steve Early, and Marvin McIntyre did the president’s bidding; and Admiral Ross McIntire looked after his health. On Capitol Hill, Joe Robinson of Arkansas continued as Senate majority leader, William Bankhead of Alabama was now speaker, and Sam Rayburn had become House majority leader. The chairmen of the principal committees in both houses—from Appropriations to Ways and Means—once again were uniformly from the South.

Across the Capitol grounds to the east, the Supreme Court reflected similar continuity. The Court’s membership had not changed since Oliver Wendell Holmes had stepped down five years earlier. Willis Van Devanter, the senior justice, had been appointed by William Howard Taft in 1910. Two justices, James McReynolds and Louis Brandeis, had been appointed by Wilson. Harding had appointed two, Coolidge one, and Hoover three.^† Brandeis, the oldest, was eighty. Five were in their seventies, and Owen Roberts, the youngest, was sixty-one. FDR was the first president since James Monroe (1817–21) to serve four years without making a single appointment to the Court.

Roosevelt was inaugurated on January 20, 1937—the first president to take office under the Twentieth Amendment. The weather was abysmal. An unforgiving January rain pummeled the stands and parade route. Capitol Plaza appeared roofed with umbrellas as more than 40,000 people gathered to watch the ceremony. The inaugural platform was fully open to the storm. Rain swept across the plaza, splattered against the president’s winged collar, trickled down his bare head, and blotted his speech. Twice FDR paused during his address to brush water from his face.

With an unprecedented popular mandate, Roosevelt was on the offensive from the beginning. His inaugural address was a call to battle on behalf of those still denied the fruits of the American dream:

The test of our progress is not whether we add more to the abundance of those who have much; it is whether we provide enough for those who have too little.

I see millions of families trying to live on incomes so meager that the pall of family disaster hangs over them day by day.

I see millions denied education, recreation, and the opportunity to better their lot and the lot of their children.

I see millions lacking the means to buy the products of farm and factory and by their poverty denying work and productiveness to many other millions.

I see one-third of a nation ill-housed, ill-clad, ill-nourished.⁶¹

When the ceremony concluded, Roosevelt ordered an open car. Eleanor joined him, and the two rode slowly back to the White House, waving to the rain-soaked spectators who lined the route. Mrs. Roosevelt’s inaugural dress and hat were ruined, her fur coat sopping wet. FDR looked as though he had fallen into a swimming pool with his clothes on. At the end of the fifteen-minute ride the Roosevelts changed clothes hastily to watch the inaugural parade, again from a replica of Andrew Jackson’s Hermitage. That too, at FDR’s insistence, was open to the weather.⁶²

·   ·   ·

ROOSEVELT DID NOT mention the Supreme Court in his inaugural address. But with Congress cooperative and Democrats or independents in control of forty-two of the nation’s governor’s mansions, he now took on the Court.⁶³ As a lawyer he should have known better; as a politician he should have been more cautious; as president he should have had a firmer grasp of the constitutional separation of powers.

Since 1933 the Supreme Court had declared six pieces of New Deal legislation unconstitutional.^* It had denied the president the authority to remove members of independent regulatory commissions⁶⁴ and in June 1936 had struck down New York State’s minimum-wage law for women and children.⁶⁵ Four of these decisions had been unanimous or almost so.⁶⁶

At the same time the Court had upheld emergency legislation in Minnesota declaring a mortgage moratorium and had validated similar Depression-based legislation in New York fixing the price of milk.⁶⁷ It upheld Congress’s authority to abrogate the gold clauses in private contracts,⁶⁸sustained the Tennessee Valley Authority’s right to sell electric power,⁶⁹ and on December 21, 1936, a month before FDR’s inaugural, upheld the broad power of the president to conduct foreign relations: “In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation.”⁷⁰

The problem in 1937 was not the Court but the law, compounded by the hasty drafting of early New Deal legislation. Both the NIRA and the Frazier-Lemke Farm Mortgage Act (and to a lesser extent the Agricultural Adjustment Act) were loosely drawn and excessively broad, and made little effort to navigate the shoals of constitutional precedent. Conventional wisdom considers the 1930s Supreme Court hidebound and reactionary. Yet under Hughes’s effective leadership the Court had become the nation’s principal protector of civil liberties. It had reversed a hundred years of precedent to hold the First Amendment’s guarantee of a free press applicable to the states;⁷¹ it had overturned the rape convictions of nine young black men in Scottsboro, Alabama, and made the Sixth Amendment’s right to counsel applicable to the states in capital cases.⁷² When the young men were tried again and convicted by an all-white jury, a unanimous Court overturned that conviction as well.⁷³ The Hughes Court declared California’s statute making it unlawful to fly a red flag an unconstitutional denial of free speech.⁷⁴ And in an equally important decision rendered on January 7, 1937, the justices unanimously reversed the conviction of a Communist activist in Oregon for organizing a political meeting and distributing party literature. “Peaceable assembly for lawful discussion cannot be made a crime,” said Hughes for the Court.⁷⁵ Each of these decisions was a milestone in the growth of American civil liberty, and the Supreme Court was in the forefront of that growth.

This was not a reactionary Court.⁷⁶ But the constitutional law of the last forty years was stacked against the New Deal, and the Roosevelt administration had been cavalier in its approach to the problem. When the early legislation was struck down, it came as no surprise to most informed observers. What was surprising was that FDR chose to attack the Court and not the law: that he zeroed in on the elderly justices and not the questionable precedents they were adhering to.^*

Roosevelt plotted his attack in secret. That was a tactical error. Military commanders going into battle take care to conceal their plans, but they are not dealing with Congress and the Court. For four years Roosevelt had handled Congress masterfully. On every piece of New Deal legislation he worked closely with the members involved: cajoling, co-opting, listening to their contributions. His failure to consult when it came to the Supreme Court—his refusal to include the congressional leadership in the planning stages of his proposal to alter the Court’s membership—denied him the support he needed when opposition crystallized.

The genesis of FDR’s Court-packing plan traces to a meeting in the Oval Office in January 1935 when the “Gold Clause Cases” were before the Court. Anticipating that the justices might rule against the government, Roosevelt asked what could be done should that occur. Robert H. Jackson, then the general counsel of the Treasury’s revenue arm, mentioned that when the “Legal Tender Cases” had been pending in 1870, President Grant had appointed two additional justices, causing the Court to reverse itself and validate the greenbacks that had been circulating since the Civil War.^* Roosevelt was intrigued and instructed Attorney General Cummings to look into the matter.⁷⁷ He emphasized to Cummings the need to be discreet. For the next two years Cummings, Solicitor General Stanley Reed, and two of Cummings’s assistants reviewed precedent and laid plans. No one on the White House staff was informed. Except for Cummings, no one in the cabinet knew what was afoot. None of FDR’s advisers, men like Sam Rosenman, Felix Frankfurter, Tommy Corcoran, and Ben Cohen, were made privy. And Congress was kept in the dark.⁷⁸

Unfortunately for the president, Cummings and Reed were not the sharpest knives in the legal drawer. Cummings’s skills were primarily political. He was a former chairman of the Democratic National Committee and had been a floor leader for FDR at the 1932 convention. Originally scheduled to become governor-general of the Philippines, he was tapped as attorney general to fill the vacancy caused by the sudden death of Senator Thomas Walsh two days before the 1933 inauguration. At the time it was assumed the appointment was temporary and that the president would make a high-profile legal appointment, yet he never did. As attorney general, Cummings concentrated on the law enforcement role of the Department of Justice and did an excellent job supervising the reform of federal crime legislation. But constitutional law was not his bent.⁷⁹ Much the same could be said for Stanley Reed, a small-town Kentucky lawyer whose interest in tobacco legislation had brought him to Washington during the Hoover administration. Roosevelt had originally offered the solicitor general post to Felix Frankfurter. When Frankfurter declined, he apparently lost interest in the position. Reed was an effective administrator but like Cummings had little experience in constitutional litigation.⁸⁰

Cummings met often with FDR. The president rejected the idea of a constitutional amendment to expand the commerce clause. That was the recommendation of the Democratic platform,⁸¹ and it had been employed three times in the past to reverse Supreme Court decisions.^* Roosevelt believed the amendment process too cumbersome. Even if he could get the necessary two-thirds majorities in each House, it would still require ratification by three quarters of the states. Thirteen could block adoption. “Give me ten million dollars and I can prevent any amendment to the Constitution from being ratified by the necessary number of states,” said FDR.⁸²

Roosevelt also rejected the straight-on approach of increasing the Court’s membership. The size of the Supreme Court is not constitutionally ordained but is set by Congress, and there was abundant precedent to support changing the number of justices. In addition to the “Legal Tender” appointments under Grant, Congress had altered the size of the Court six times, often for blatantly political purposes.^† Roosevelt also dismissed Senator Henry Ashurst’s suggestion that he wait the Court out.⁸³ “Justice [James C.] McReynolds will still be on the bench when he is a hundred and five years old,” said FDR.⁸⁴ A fourth approach would have been to restrict the appellate jurisdiction of the Court, as a radical Republican Congress had done after the Civil War, when it feared the Reconstruction Acts might be overturned.⁸⁵ That too had been ruled out, primarily because of objections raised by lawyers on Cummings’s staff.⁸⁶

The convoluted scheme Cummings and Reed came up with purported to improve judicial efficiency and was, on its face, nonpartisan. It was also sufficiently oblique to kindle FDR’s enthusiasm—“The answer to a maiden’s prayer,” he told Cummings.⁸⁷ Deep in the files of the Department of Justice, Cummings and Reed discovered a proposal made by the Wilson administration in 1913 that would allow the president, with the advice and consent of the Senate, to appoint a new judge for every one with ten years of service who reached the age of seventy and failed to retire. “This will insure at all times the presence of a judge sufficiently active to discharge promptly and adequately the duties of the court.”⁸⁸ The fact that the proposal had been made by none other than James C. McReynolds, then Wilson’s attorney general and now, at seventy-five, the president’s most intransigent judicial opponent, gave Roosevelt particular delight.⁸⁹

With FDR’s blessing, Cummings and Reed put the proposal into legislative language. In its final form the Bill to Reorganize the Judicial Branch of Government provided for a maximum of fifty additional federal judges, one for each sitting jurist above the age of seventy. The Supreme Court was included. Since six of the Court’s justices were over seventy, that would give FDR six additional appointments. Sam Rosenman and Donald Richberg were called in to draft a statement for the president, and at the last minute Tom Corcoran was added to the team. But the secret was held tightly.

On February 2 FDR hosted the annual dinner for the Supreme Court at the White House. The guest list of eighty included all of the justices except Brandeis, who did not attend evening functions, and Stone, who was ill. Roosevelt was at his convivial best. After the meal, when the ladies retired, Hughes and Van Devanter moved their chairs next to the president. For the next hour or so they joked and reminisced over brandy and cigars.⁹⁰ The chief justice and the president always addressed each other as “Governor” and despite their differences enjoyed cordial personal relations. Both hailed from upstate New York (Hughes was born in Glens Falls), both had begun their careers as law clerks for Wall Street firms, and both had survived the rigors of winter in Albany.⁹¹ Van Devanter, the most genial of the justices, was always good company. FDR said nothing of what he planned for the Court or the imminence of his attack. Washington journalists likened the dinner to the ball given by the duchess of Richmond on the eve of the Battle of Waterloo.⁹²

Three days later, Roosevelt struck. At 10 A.M. on February 5 he convened an emergency meeting of the cabinet at which he divulged his proposal. At eleven he met the press. At noon the president’s message was read on Capitol Hill. Rarely has a political attack of such magnitude been more tightly timed. And rarely has the nation been more surprised. The Court was in session when news of the bill was announced. Hughes ordered copies distributed to the justices on the bench, who read the president’s proposal in stoic silence: the quiet vortex of a gathering storm.

Roosevelt was confident he would prevail. “The people are with me,” he told Jim Farley.⁹³ Initially that was true. But as the debate dragged on, and as it became apparent that FDR sought a fundamental change in the constitutional order, that support eroded.

The president’s strategy was too clever by half. Rather than address the issue directly, Roosevelt maintained that the elderly justices were no longer up to the job and needed new blood to assist them. The irony was that Louis Brandeis, the only octogenarian on the Court, was the most consistent supporter of the New Deal. FDR asserted that the Court was behind in its workload.⁹⁴ Of 803 cases submitted for review, the justices had agreed to hear only 108. “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, without an explanation, to hear 87 percent of the cases presented to it?”⁹⁵

The claim was absurd, and Roosevelt should have known better. And if he did not, his attorney general should have. In 1937, just as now, there was no automatic right of appeal to the Supreme Court.^* The justices heard only those cases they deemed important. And 108 out of 803 was a remarkable percentage. In 2000–1, the Rehnquist Court, with nine thousand requests for review, heard only 87 cases. In the 2003–4 term, it heard only 73 (of 8,883 requests). Rather than being behind in its workload, the Hughes Court was dealing with more cases than any Supreme Court in the previous decade.

On Capitol Hill members listened in stunned silence as reading clerks intoned the president’s message. In the House, Speaker Bankhead resented the fact that he had not been consulted beforehand.⁹⁶ Majority Leader Sam Rayburn said nothing, leaving it to Judiciary Chairman Hatton Sumners to fire the first shot. “Boys, here’s where I cash in my chips,” he told the leadership. Sumners refused to bring the legislation before his committee. That meant the Senate would have to consider the bill first.

In the upper chamber the reaction was mixed. Vice President Garner, whose support FDR needed, held his nose and turned his thumb down as the message was read.⁹⁷ Majority Leader Joe Robinson had no enthusiasm for the plan but believed it his duty to support the president. The same was true of Judiciary Committee chairman Henry Ashurst, who just weeks before had denounced any attempt to enlarge the Court as a “prelude to tyranny.”⁹⁸

On the other hand, Roosevelt stalwarts such as Joseph Guffey of Pennsylvania, Alabama’s Hugo Black, James Byrnes of South Carolina, and Key Pittman of Nevada rallied round the bill. As usual, the center of gravity lay with Senate veterans, who were torn between their respect for constitutional tradition and their loyalty to FDR. What was most surprising was the defection of the Senate’s progressives from the president’s cause. “I am not in favor of any plan to enlarge the Supreme Court,” declared George Norris hours after the bill was introduced.⁹⁹ “The issue seems to be plain,” said California’s Hiram Johnson. “Shall the Congress make the Supreme Court subservient to the Presidency?”¹⁰⁰ Burton K. Wheeler of Montana, the first member of the Senate to endorse FDR in 1932, was scathing. “The court plan is not liberal,” said Wheeler. “A liberal cause was never won by stacking a deck of cards, by stuffing a ballot box, or by packing a court.”¹⁰¹

Wheeler emerged as the consensus choice to lead the opposition. William E. Borah of Idaho, the ranking member on the Judiciary Committee, called the shots for the Republicans. Keep your heads down, he advised his colleagues. Don’t make this a partisan issue. Let Wheeler take charge. That suited conservative Democrats as well—men like Millard Tydings of Maryland, Guy Gillette from Iowa, South Carolina’s “Cotton Ed” Smith, and Walter George of Georgia. Far better to have a certified liberal like Wheeler take on the White House than someone whose New Deal credentials might be suspect.

The Senate leadership afforded Wheeler plenty of leeway. Ashurst delayed hearings until March, and by then the nation’s bar associations had weighed in against the plan. Senators were deluged with mail from their constituents, which ran 9 to 1 against, while the press, almost without exception, condemned the president. “Cleverness and adroitness in dealing with the Supreme Court are not qualities which sober-minded citizens will approve,” said The New York Times. “Surely Mr. Roosevelt’s mandate was to function as the President, not as Der Fuehrer,” wrote the gentle William Allen White of The Emporia Gazette. Walter Lippmann was “sick at heart”; Mark Sullivan said, “We are going down the road to fascism”; David Lawrence asserted that if the Supreme Court went, “all other institutions will begin to crumble one by one.”¹⁰²

Roosevelt went all out. Senators were invited to the White House singly and in groups for the full presidential treatment. FDR held three news conferences on the Court, delivered two major speeches, and spoke to the nation in a fireside chat.¹⁰³ “Hold up judicial appointments in states where the delegation is not going along,” he told Farley. “And all other appointments as well. I’ll keep in close contact with the leaders.”¹⁰⁴

Hearings commenced March 10, and the administration held forth for ten days. Few minds were changed, and if anything the critics on the committee had the better of it. Wheeler was slated to lead off for the opposition on Monday, March 21. On Saturday afternoon Justice Brandeis asked Wheeler to stop by his apartment. The Brandeises and Wheelers were old friends, and Mrs. Brandeis and Mrs. Wheeler were especially close.

“The chief justice would like to see you,” said Brandeis. “He will give you a letter. Call him up.”

“I can’t call him,” said Wheeler, who had vigorously opposed Hughes’s appointment as chief justice in 1930. “I don’t know him.”

“But he knows you,” Brandeis replied.

The elderly justice took Wheeler by the hand, led him to the telephone, and made the call himself. Hughes, he said, would like to see him immediately.

It was 5:30 when Wheeler called on Hughes at his home at 2223 R Street. “The imposing Chief Justice greeted me warmly,” Wheeler recalled. “I told him Brandeis said he would give me a letter.”

“Did Brandeis tell you that?”

“Yes.”

“When do you want it?”

“Monday morning,” said Wheeler. He wanted it when he testified.

Hughes had already marshaled his arguments and had his facts at hand. Sunday afternoon, the chief justice called Wheeler and invited him to return. Hughes had written a seven-page letter, shown it to Brandeis and Van Devanter, and obtained their approval. He handed it to Wheeler. “The baby is born,” said the chief justice.

Wheeler read the letter in awe.

“Does that answer your question?” asked Hughes.

“It certainly does,” Wheeler replied.

As the Montana senator started to leave, Hughes asked him to sit down. “I am not interested in who are to be the members of the Court,” said the chief justice.

I am interested in the Court as an institution. And this proposed bill would destroy the Court as an institution.

If we had an Attorney General in whom the President had confidence, and in whom the Court had confidence, and in whom the people had confidence, the story might have been different. But the laws have been poorly drafted, the briefs have been badly drawn and the arguments have been poorly presented. We’ve had to be not only the Court but we’ve had to do the work that should have been done by the Attorney General.¹⁰⁵

At ten Monday morning Wheeler appeared before a capacity audience in the ornate Senate Caucus Room. He began by matter-of-factly acknowledging his reluctance to oppose the president, turned gradually to the administration’s charge of judicial delay, and withdrew from his inside coat pocket a sheaf of papers. “I have here a letter from the Chief Justice of the United States, Mr. Charles Evans Hughes, dated March 21, 1937, written by him and approved by Mr. Justice Brandeis and Mr. Justice Van Devanter.”¹⁰⁶

Consternation gripped the Caucus Room. History was being made. Not since John Marshall had taken up his pen to defend the Court’s decision in McCulloch v. Maryland in 1819 had a chief justice taken an active role in a public controversy.¹⁰⁷ Stunned senators listened intently as Wheeler began to read. Factually and unemotionally Hughes struck down one by one each of the arguments advanced by FDR and Cummings that the Court was unable to keep up with its workload. “There is no congestion of cases upon our calendar. When we rose on March 15 (for the current recess) we had heard argument in cases in which certiorari had been granted only four weeks before.” Hughes presented a detailed statistical analysis of the last six terms, demolishing any allegation that the Court had failed to keep abreast. The addition of more judges would simply mean “more judges to hear, more judges to confer, more judges to discuss, more judges to be convinced and to decide.”¹⁰⁸

Despite its dispassionate tone, the letter hit like a bombshell. The following week, Hughes struck again. On March 29, in a tense, packed courtroom, the chief justice read the Supreme Court’s decision upholding the State of Washington’s minimum wage law, which was almost identical to the New York law it had overturned six months earlier.¹⁰⁹ Again the vote was 5–4, Justice Roberts providing the margin of victory. Roberts’s switch was immediately dubbed “the switch in time that saves nine,” but the fact is that the Court had voted 4–4 in December to uphold the Washington statute with Roberts in the affirmative.¹¹⁰ Justice Stone, who was ill, had missed the vote, and Hughes had waited for his return to announce the decision. Speaking for the Court, Hughes not only sustained the Washington law but explicitly overruled the line of precedent known as substantive due process that for the last thirty years had prevented government from regulating wages and hours.¹¹¹ When Hughes finished reading his opinion, the Court went on to uphold three recent pieces of New Deal legislation, all by unanimous vote.^*

Two weeks later, in the most eagerly anticipated ruling of the term, the Court, speaking again through Hughes, upheld the Wagner Labor Relations Act—the most ambitious undertaking of the New Deal since the NRA, and the most controversial.¹¹² Hughes rejected the distinction between direct and indirect effects on commerce that had governed the Court’s approach since 1895, restored the commerce clause to the full sweep of John Marshall’s expansive definition in Gibbons v. Ogden,¹¹³ and dismissed the recent holdings Schechter Poultry Corp. v. United States and Carter v. Carter Coal Co. “These cases are not controlling here,” said Hughes majestically.¹¹⁴

When the Court subsequently sustained the Social Security Act (7–2), even the most rabid New Dealer recognized that whatever rationale there was behind FDR’s Court-packing scheme had evaporated.¹¹⁵ On May 18 the Senate Judiciary Committee voted 10–8 to report the Judicial Reform Bill unfavorably: “It is a measure which should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.”¹¹⁶ That same day Justice Van Devanter submitted his resignation to the president. With Van Devanter’s retirement and the Court following Hughes’s lead, FDR might have declared victory and called off the fight. That was Garner’s advice. When Roosevelt refused, the vice president gave up and returned to his ranch in Texas. He would be AWOL during the crucial Senate debate.

FDR refused to compromise. Despite the oppressive heat of an un-air-conditioned Washington summer, he insisted that Congress remain in session. To regain the initiative, he invited Speaker Bankhead and Sam Rayburn to the White House. Would they organize a discharge petition (which required the signatures of 218 members) to pry the bill out of Sumners’s committee and bring it to the House floor? Both refused.¹¹⁷ Back in the Senate, defections continued daily. Majority Leader Joe Robinson battled to stem the tide, but it was a hopeless struggle. FDR could have gotten half a loaf earlier, but it was now too late. His opponents smelled victory. Wilting under the pressure, Robinson collapsed. On the morning of July 14 he was found dead in his apartment in the Methodist Building, across the street from the Capitol, the victim of a heart attack.

Roosevelt declined to attend Robinson’s Arkansas funeral—a final, tragic error. As one historian suggests, FDR reacted to the news of Robinson’s death with bitterness, identifying the majority leader with the loss of his Court plan.¹¹⁸ Robinson was beloved by his Senate colleagues and died in harness fighting for a proposal in which he did not fully believe. The president’s failure to go to Little Rock was a slap in the face few senators could forgive. Roosevelt’s popularity plummeted. Vice President Garner—who attended the funeral—brought the bad news: “You are beat, Cap’n. You haven’t got the votes.”¹¹⁹ On July 22 the Senate rejected the bill, 20 in favor, 70 against.¹²⁰

Historians are fond of saying Roosevelt lost the battle and won the war. But the war was won when Roberts joined Hughes, Brandeis, Cardozo, and Stone in December 1936. In the year after the bill’s defeat, Roosevelt would appoint three justices to the Court. Ultimately he would appoint eight.¹²¹ But more important than the justices was the law. In sustaining the Washington minimum-wage statute, Hughes overruled the line of precedent that had hamstrung attempts to regulate working conditions since 1905. Those discarded precedents would not reappear. In upholding the Wagner Act, he nullified the exceptions that had shackled the commerce clause since 1895. Mining, manufacturing, and agriculture were no longer out of bounds. The victory in the Court fight of 1937 belonged not to Roosevelt but to Hughes, to the constitutional separation of powers, an independent judiciary, and the law.

^* “Oh, hell, it’s no trick to make a President,” Howe once said. “Give me a man who stays reasonably sober, shaves, and wears a clean shirt every day and I can make him President.” Lela Stiles, The Man Behind Roosevelt: The Story of Louis McHenry Howe 251 (Cleveland: World, 1954).

^* Roosevelt traveled by train, which was exceedingly time-consuming since he preferred to go at no more than thirty miles an hour. That enabled him to move about more easily when the train was in motion, and he also enjoyed looking at the scenery. No presidential candidate had seen more of the United States than FDR, and none had a better appreciation of regional differences. His slow travel by train reinforced that understanding.

^† In early September Roosevelt and Landon met at a midwest governors’ conference in Des Moines. “Governor, however this comes out, we’ll see more of each other,” said FDR. “Either you come to see me [in the White House] or I’ll come to see you.” “I certainly shall,” Landon replied. “And Governor, don’t work too hard,” Roosevelt joked.

“Harmony dripped so steadily from every rafter,” Senator Arthur Capper, a Kansas Republican, noted, “that I fully expected one of the candidates to withdraw.” Quoted in Arthur M. Schlesinger, Jr., The Politics of Upheaval 610 (Boston: Houghton Mifflin, 1960).

^* Two days after the election, Cardinal Pacelli very publicly visited Hyde Park for lunch with the president. Pacelli’s party included Joseph P. Kennedy, Frank C. Walker, and the then auxiliary bishop of Boston, Francis J. Spellman, who was the cardinal’s interlocutor in the United States. “I was very anxious to meet the President of the United States,” Pacelli told newsmen afterward. “I am very happy to have had the opportunity of seeing him and congratulating him. I enjoyed my visit very much.” The New York Times, November 6, 1936.

^* Literary Digest, which had correctly called the 1932 election, predicted that Landon would carry 32 states with 370 electoral votes against 16 states with 161 electoral votes for Roosevelt. By contrast, the Gallup and Roper organizations forecast that FDR would win in a landslide. Unlike Gallup and Roper, Literary Digest polled only persons whose names appeared in telephone books and automobile registration lists, which in 1936 skewed the sample toward more affluent voters. Peverill Squire, “Why the 1936 Literary Digest Poll Failed,” 52 Public Opinion 125–133 (1988).

^* Because of the chance of early snow, Maine historically voted early. In 1936 the state went to the polls on September 14 and gave Landon 55.6 percent of the vote to Roosevelt’s 41.6 percent.

^† In 1964 Lyndon Johnson defeated Barry Goldwater 61.05 percent to 38.47 percent, but Goldwater’s percentage was slightly higher than that of Landon, who won only 36.54 percent. Congressional Quarterly, Guide to U.S. Elections 290, 297 (Washington, D.C.: Congressional Quarterly, 1975).

^* FDR was superstitious about making changes, and he had a personal distaste for firing people. The only two cabinet changes since 1933 were because of the deaths of the incumbents: Morgenthau replaced William Woodin at Treasury, and Woodring replaced George Dern at the War Department.

^† George Sutherland was appointed to the Court by Harding in 1922; Pierce Butler by Harding in 1923. Coolidge appointed Harlan F. Stone in 1925. Hoover appointed Chief Justice Hughes (1930), Owen Roberts (1930), and Benjamin Cardozo (1932).

^* The so-called Hot Oil act, section 9c of the National Industrial Recovery Act, was overturned by the Court (8–1) in Panama Refining Co. v. Ryan, 293 U.S. 388 (1935). In Schechter Poultry Corp. v. United States, 295 U.S. 553 (1935), and Louisville Joint Stock Land Bank v. Radford, 295 U.S. 595 (1935), unanimous Courts struck down the entire NIRA and the Frazier-Lemke Farm Mortgage Act. The Railroad Retirement Act was declared unconstitutional (5–4) in Railroad Retirement Board v. Alton Railroad Co., 295 U.S. 330 (1935). In United States v. Butler, 297 U.S. 1 (1936) the Court (6–3) overturned the Agricultural Adjustment Act, and in Carter v. Carter Coal Co., 298 U.S. 238 (1936) a sharply divided Court (5–4) declared the Guffey Bituminous Coal Act unconstitutional.

^* Early New Deal legislation relied on the commerce clause of the Constitution (Article I, section 8), which authorized Congress to regulate interstate and foreign commerce. As originally interpreted by the Marshall Court in the landmark case of Gibbons v. Ogden, 9 Wheaton (22 U.S.) 1 (1824), that would have sufficed. But in 1895 the Court, speaking through Chief Justice Melville Fuller, narrowed the scope of the commerce clause to exclude mining, manufacturing, and agriculture. Such activities, said Fuller, had only an “indirect effect” on commerce. United States v. E. C. Knight, 156 U.S. 1. That restrictive interpretation was emphatically affirmed in 1918, when the Court rejected Congress’s attempt to regulate child labor under the commerce clause. Hammer v. Dagenhart, 247 U.S. 251.

In addition to the commerce clause decisions, another line of precedent invoked the due process clauses of the Fifth and Fourteenth Amendments to prevent governments from regulating wages and hours. Beginning with Lochner v. New York in 1905 (198 U.S. 45), the Court held such regulation to be a denial of an individual’s “liberty of contract.” This too had been recently reaffirmed. “Freedom of contract is the general rule and restraint the exception,” said Justice Sutherland in Adkins v. Children’s Hospital, 261 U.S. 525, 546 (1923).

These two lines of precedent were formidable, but in each of the four cases there had been powerful dissents. Hammer and Lochner were 5–4, and Adkins 5–3 (Brandeis not participating). More important, standing opposed to the contemporary commerce clause rulings was no less a figure than John Marshall, whose expansive definition of commerce in Gibbons was a judicial classic.

A wild card in the Court’s anti–New Deal holdings was the legal maxim that delegated power could not be redelegated, delegatus non potest delegare. The origin of that concept is unclear, and its application has been erratic. It has been employed only three times to invalidate legislation (Panama Refining v. Ryan, Schechter Poultry Corp. v. United States, and Carter v. Carter Coal Co.). It was rejected by the Hughes Court in Curtiss-Wright and buried in Yakus v. United States, 321 U.S. 414 (1944). Also see Morrison v. Olson, 487 U.S. 654 (1988). When the Court decided to change course in 1937, the maxim did not pose an obstacle.

^* In 1862 Congress, confronted with the need to finance the war, passed the Legal Tender Act, authorizing paper money as a substitute for gold. After the war the act was challenged, and in Hepburn v. Griswold, 75 U.S. 603 (1870), the Court (4–3) ruled it unconstitutional. The government asked that the case be reargued; Congress increased the size of the Court from eight to nine; and one justice (Robert Grier) died, giving Grant two vacancies to fill. Grant appointed two stalwart Republicans, William Strong of Pennsylvania and Joseph Bradley of New Jersey. When the case was reargued, Hepburn was overruled 5–4 and the Legal Tender Act sustained. The decision was written by Justice Strong. Knox v. Lee, 79 U.S. 457 (1871).

Jackson wrote FDR a memorandum to this effect on January 12, 1935. Robert H. Jackson, That Man: An Insider’s Portrait of Franklin D. Roosevelt 65–66 (New York: Oxford University Press, 2003).

^* The Eleventh Amendment, adopted in 1795, reversed the decision of the Supreme Court in Chisholm v. Georgia, 2 Dallas (2 U.S.) 419 (1793), and redefined the jurisdiction of the federal judiciary to exclude suits brought against a state by citizens of another state. The Fourteenth Amendment (1868), by granting citizenship to “all persons born or naturalized in the United States,” overruled the Court’s definition of citizenship in the Dred Scott case (Scott v. Sandford, 19 Howard (60 U.S.) 393 (1857)). Similarly, the Sixteenth Amendment, ratified in 1913, made the income tax constitutional, nullifying the Court’s decision in Pollock v. Farmers’ Loan and Trust, 158 U.S. 601 (1895).

^† In 1801 the outgoing Federalist Congress reduced the size of the Supreme Court from six justices to five, hoping to deprive Jefferson of an appointment. The new Democratic Congress promptly restored the number to six and increased it to seven in 1807, giving Jefferson an additional appointment. Jacksonian Democrats added two more justices in 1837, bringing the number to nine. In the Civil War, confronted with a potential proslavery majority, Congress increased the Court to ten. When Democrat Andrew Johnson succeeded Lincoln, a Republican Congress reduced the number of justices to seven to deprive Johnson of any appointments. That reduction was achieved by attrition. The Court was restored to nine in 1870 under Grant.

^* The Judges Bill of 1925, enacted on the recommendation of Chief Justice Taft, gave the Supreme Court almost complete control of its docket. A litigant who wished to appeal to the Court filed a request for a writ of certiorari—a discretionary writ—to allow the case to come forward. Rule 10 of the Rules of the Supreme Court states, “A review on a writ of certiorari is not a matter of right, but of judicial discretion, and will be granted only when there are special and important reasons therefor.” It requires the agreement of four justices for the writ to be issued. When the Court denies the writ, as it did in 87 percent of the cases in 1936–37, it customarily does not state the reason why.

^* Sonzinsky v. United States, 300 U.S. 506 (Stone for the Court), upholding the National Firearms Act; Wright v. Vinton, 300 U.S. 440 (Brandeis), sustaining a revised version of the Frazier-Lemke Farm Mortgage Act; and Virginia Railway Co. v. Federation, 300 U.S. 515 (Stone), upholding the collective bargaining provisions of the Railway Labor Act.