by Robert Schlesinger

Shortly after winning re-election by a landslide in 1936, President Franklin Roosevelt made one of U.S. history's most audacious power plays, proposing to expand the Supreme Court by a half-dozen justices. The court had struck down several key New Deal programs, and FDR hoped new blood on the bench would make it friendlier. While this is often described as a rash, hubris-fueled overreach, it was actually a carefully conceived, if ultimately incorrect, plan, Jeff Shesol argues in Supreme Power: Franklin Roosevelt vs. the Supreme Court. Shesol, a Rhodes scholar and former speechwriter for President Bill Clinton, recently spoke with U.S. News about FDR and what happens when a president feuds with the court. Excerpts:

So, a liberal president at odds with a conservative Supreme Court? How novel.

The battle that's brewing in Washington between the executive branch and the legislative on one hand and the judiciary on the other is really unlike anything we've seen since the 1930s. You have an economic crisis. You have a progressive president with large majorities, for the time being, in both houses of Congress. You have a conservative majority [on the court] that's made clear that it's not at all shy about issuing sweeping rulings that go well beyond the narrow constitutional issues at hand and is not at all shy about overturning many decades of precedents. One can only imagine what this court, as presently constituted, is going to do if healthcare mandates come before it. It's very hard to see how these things are going to pass constitutional muster with these five justices. So this has the potential, anyway, to be one of the defining conflicts of the Obama presidency, just as it was for the Roosevelt presidency in the years before World War II.

What could Obama learn from your book?

There is a tremendous risk in personalizing the conflict with the Supreme Court. Even during periods of great controversy, when the Supreme Court is doing things that people intensely dislike, there is a great allegiance to and respect for the institution of the Supreme Court. And there is the feeling that while the Supreme Court sometimes makes decisions that are politically driven or ideologically driven, that it is the least political or ideological branch of government. So there's a real risk in attacking an institution that many regard to be sacred. That isn't to say that President Obama shouldn't forcefully criticize Supreme Court decisions that he disagrees with. I think he was right to do it in the State of the Union address. That said, a running conflict with the court, a back and forth as we have seen between the chief justice and the White House, is risky politically. The other thing that he can learn is how important it is to educate the public about the role of the Supreme Court and what the Supreme Court is doing in any given case. That takes patience, and that takes a sustained public dialogue. But back-and-forth critiques issued from the White House press office are not going to do it.

Is there anything the justices can learn?

There's a risk for them, too, in overstepping their role: that the public does engage, that these issues aren't so complex or arcane that people aren't able to see what the court is doing. And that while there is a lot of public affection for and loyalty to the Supreme Court as an institution, people today also understand, more than they did in the 1930s, that the court is in politics and the justices are political actors with strong political beliefs.

Is there anything we as citizens and spectators can learn from the book?

These complicated questions of law and the Constitution are not arcane legal matters that are best left to judges and constitutional lawyers and professors, that these are vital matters that determine the course of our national history.

You say that the court-packing fight transformed the political landscape.

There was an increasing amount of pressure on the court to make democracy work, as FDR put it. The will of the people had been expressed in landslide elections in 1932 and 1936. Roosevelt had a clear mandate and huge majorities and felt very strongly that the country had decided what needed to be done and the court was the only thing standing in the way. And the court ultimately yielded in the middle of the court-packing fight. The court recognized what was going on in the country, and the swing justice, Owen Roberts, yielded to the will of the people. And he basically acknowledged that later in life.

How did the fight change the relationship between the court and the other branches?

Congress and the executive branch both had a much freer hand in deciding what was in the general welfare, what was in the national interest. And the court, particularly in the area of economic policy, would get out of the way. And there was a very important decision in 1938 in which the court essentially said, "We're getting out of the business of deciding whether economic policies are constitutional or not. We think the Constitution gives very broad power to Congress to enact whatever economic policies are wise. And it's not up to us to say that they're unwise, and it's not up to us to say that they're unconstitutional, because they're not." So they got out of the business of policing these policies for many decades. The court became much more interested in that moment in civil rights and civil liberties.

What surprised you the most writing this?

The decision to pack the court, which is usually described as a rash, impulsive, vindictive act, was actually the product of very long, careful, thorough discussions that FDR had over a period of years with members of his administration, his outside advisers, law professors, and any number of people. He didn't decide to do this overnight. When you understand the atmosphere of crisis in the country, the very real threat of bloodshed in the country, and the other options that seemed to be in front of Roosevelt, then you can understand how he came to believe that packing the court was the most reasonable and moderate and wise thing that he could do. A lot of people around him thought that what he needed to do was to amend the Constitution and to take away some of the powers of the Supreme Court, to give Congress the power to overrule the Supreme Court by two-thirds vote. And Roosevelt said again and again over a period of years, "There's nothing wrong with the Constitution. The problem is this bunch of conservatives on the Supreme Court. How can we get rid of them?" He couldn't come up with a way to get rid of them, so ultimately he settled on a completely constitutional method of outnumbering them.

 

Available at Amazon.com:

Supreme Power: Franklin Roosevelt vs. the Supreme Court

The Political Fix: Changing the Game of American Democracy, from the Grassroots to the White House

 

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