Cspan. Org history. Hello. Welcome to another edition of at home with roosevelts. Im paul sparrow, the director of the Franklin Roosevelt president ial library in hyde park, new york, and were recording this story on september 17th which is Constitution Day. What better way to celebrate Constitution Day than to talk about the Supreme Court with two outstanding experts on the subject. No president had a more Significant Impact on the Supreme Court than the, the dr fdr. He appointed eight9 justices during his administration. He helped change american democracy. He got to appoint no justices during his first term. The role of the Supreme Court has changed over the years and certainly plays a central role in our political process. But headache no mistakes make no mistakes, the court has always been political. Joining he today is john at st. Johns university and fellow at the robert h. Jackson center. Hes the biographer of justice [inaudible] and editor of jacksons acclaimed 2003 posthumous book, quote, that man an insiders portrait of franklin d. Roosevelt, the last new deal insiders memoir. Also with us, paul blumenthal, former New York Times reporter and continues to be a periodic contributor of the times. The author of five books including the believer about the harvard psychiatrist john mack who investigated u if fos ufos and alien encounters. Well talk about this in a minute. Well starlet with professor if barrett. Start with professor barrett. Give us a little bit of your background, specifically your work on Justice Robert jackson. Thank you, paul, for this opportunity and really the privilege to be at the Roosevelt Library and homestead in every sense except actual. The path that led he to all of this us was really being a lawyer at first. I worked in the bureau of investigations for about seven years and then became a law professor. Among hi areas, public life, public figures, legal ethics and constitutional law. And sort of a converging on the Supreme Court and the people on the court. And Robert Jackson in particular, someone who was in roosevelts cabinet as attorney general, was confirmed by the senate through roosevelt appointments to five separate jobs in a very short run of years, became my big project. And for our topic, it matters that jackson was an assistant attorney general in 1937, a principal witness defending the president s courtpacking plan and then the solicitor general who argued in defense of new deal laws constitutionality before the Supreme Court. So its the jackson path that brought me into this roosevelt world ask Court Packing, court reform as a topic. Jackson was also, of course, part of the nuremberg trials which we can talk about separately. So president roosevelt, give us a little bit about your background both as a reporter and as a of the librarys collection. One of the key members of fkrs administration fdrs administration. Thank you, paul. I really appreciate being on with you and john. In hi capacity, i supervise our archives collection in the library in which we have a collection of papers of [inaudible] who was a hebb of the brownwell committee that really reorganized the executive branch for fdr. And that came up, actually, right in the middle of the courtpacking fight. So thats interesting. I also was at the New York Times for 45 years, and one of my happiest stories, actually, was being up at the roosevelt hohmann library in 2001 when it was renovated. And also ive written at the times a lot about the holocaust and, of course, about jacksons being prosecutor at nuremberg and the prosecution of the gnats i city criminals nazi criminals. Anyway, and i should say that i came into this subject through a book called the 168 days which is a virtual diary of the courtpacking controversy cowritten by the. [inaudible] who was hanging editor of the New York Times manage editor of the New York Times when i started there. Its a wonderful account, not completely unbiased as we can discuss, of the daytoday struggles back and forth, you know, over the courtpacking controversy. So its a privilege to be here. Im glad to have you here. And for those who dont know, tom cottage is a home that fdr built in hyde park here during the late 1930s that he planned to move into and live in after he left the presidency. And its one of the first houses in america that was designed to accommodate a handicap person, wheelchairs. The doors and windows, the handles had certain kind of levers. Its only open part of the time, but its part of the National Park service up here. They have the roosevelt home and eleanors [inaudible] tom cottage and the vanderbilt mansion. So if think abouts coming up to hudson valley, make sure you stop here and visit it. So lets talk about fdrs courtpacking scheme. So, john, well start, what were the circumstances that head fdr so frustrated with the court . And talk about why did he try are, what did he try to do to change it . Well, i think you have to go back a little bit before his presidency and remember that were in the great depression. The stock market crash in the tall of 1929. Concern in the fall of 1929. And coincidentally, during that term president Herbert Hoover had three Supreme Court appointment opportunities. And he made great appointments. No denying that. And its the luck of the draw whether a president gets vacancies and the chance President Trump got three, president hoover had three. Franklin roosevelt elected in 1932, inaugurated in 33. During that first fouryear term got zero, as you mentioned, paul. He had a supermajority in both the house and the senate, and there was an attack of legislation on the problems of the depression. The volunteerism of the hoover area was replaced by the new deal. And the new deal ran into a Supreme Court roadblock. In the course of that fouryear term, not only did roosevelt have no chance to appoint justices, but the nine who were there struck down major reform relief laws. This is a quick laundry list, the National Industrial recovery act, the Railroad Retirement act, Section Three of the National Recovery act, the frazierlemke act, the tax component of the agricultural adjustment act, the coal conservation act, the amendments to the Bankruptcy Law and a state new york minimum wage law that was kind of statelevel counterpart progressive effort. So roosevelt was the popular, powerful and democraticallyresponsive president , and the Supreme Court was a tremendous obstacle. And so reelected overwhelmingly in 1936, he decided to use his Political Capital on his Supreme Court problem. What did he do . What was his strategy . What was he trying to accomplish here . Well, he took it very personally, actually. He had this dream of, that the Supreme Court would cooperate with him in getting his programs through, his new deal program. Now, maybe john can help me understand and our listeners whether roosevelt was being disingenuous or whether he really believed that the separation of powers didnt apply to him. Because the idea that, you know, that he would as he came up with the idea, appoint six new justices and he would cooperate with them or they would cooperate with him in getting his program through is, you know, insane to our way of thinking today. So its a mystery to me, you know, how much he believed, you know, that he could really merge these two branches of government. But what happened is he got, he was really smarting urn these re under these rejections although the court overturning of the nra actually probably helped him in that respect because it was so unpopular. But anyway, but he was resolved. And this is really unlike him with his perfect temperament and his great sense of timing, you know, his wonderful way of reading the country. He kind of lost it. And he decided to put all his chips on this plan to change the court. And there were several, there were four actual proposals given to him by homer cummings, his attorney general. One was a constitutional amendment which would be very difficult. One was statutory to change the jurisdiction of the court. And there were, you know, various ways of tipg therring. Ask the tinkering. And the last one was to add a provision that whenever a justice reached 70, he or she in those days he, no she would have to step down or roosevelt could appoint somebody to take his place. So that was his plan, and he somehow got convinced that this was doable. And as john said, i mean, he had this wonderful supermajority, he had coasted in with 27,000 votes, a huge majority in 1936, so he had every reason to think that the country was just waiting and that this would be welcomed and, of course, it was not. Well, i a little context here. So the 1936 president ial election, as you mixed, was the mentioned, was the largest electoral landslide in american political history. And i want to think that fdr had just an extraordinary political instinct that had gotten him to where he was. The fact that he was elected and then reelected in a wheelchair is simply incredible on every level. During one of the darkest times in hearn history. Id also like to point out he made three of his biggest headaches during that period after the landslide victory. He decided to try to pack the court, he decided he was going to primary the conservative southern democrats legislation in congress, and he cut the budget leading to the roosevelt recession of 1937. So he, as you said, he lost it. Think he was so enthralled with his own success and popularity that he tried to do things that were way off path of what the hearn public wanted. The American Public wanted. John, talk a little bit about what the reaction was when he put this forward. Even his own party had trouble supporting him in this courtacting scheme. Yeah. The constitution does not prescribe a for the Supreme Court. Its a creature of statute. And originally the court was six, it went down to five. It oscillate ared around in the 19th century. But since the 1870s weve had a ninemember court. And so its now about 60 years of the country being used to nine. As if its etched this marble. In marble. And i think thats a visceral source of the reaction. Trying to somehow in one fell swoop potentially grow the court to 15 and, of course, fill it with likeminded new dealers was somehow unamerican even though its not unconstitution a. And it opened up some of the fault lines in the democratic party. There were old barons who were the committee chairmen, and there were southern segregationists who were part of this coalition that roosevelt was trying to hold together. And the court as a target was not such a publicly notoriously evil institution. Especially the way roosevelt spun it out. He claimed in the announcement that justices were so far behind on their work, there was a pile of unaddressed certiorari opinions which is, of course, jargon and wasnt true. He also claimed that justices no longer had their fastball, and that was a hard thing to claim about louis brandeis. And so that sort of spin hit a wall of hostility. And it immediately became controversial. Now, roosevelt did try to recalibrate, and Robert Jackson was one of the people who told them you need to start telling the truth about this. Its not about age, its not about backlog, its about interpretations that particularly the foremost conservative jobs have poured into the constitution. Theyve Read Congress power to regulate interstate commerce, you know, too narrowly. And theyve read states powers to protect social welfare and use their Police Powers much too restrictively. This is about the court putting itself and its political preferences in the place of the proper understanding of the constitution. And so democracy and should respond by can and should respond by appointing more straight shooters. I would even say more conservative justices in terms of constitutional interpretation than these four horsemen radicals who were roosevelts problem. You know what i found interesting, if i could just jump in here, this was dead in the water from the beginning. It might have seemed it would be because, you know, Vice President garner came out of the meeting holding his nose, going like this. But i think he had a shot, a good shot, at getting this through because of all the reasons we mentioned; his popularity, his, you know, election landslide, etc. But through a series of almost, you know, biblical greek, whatever you want to call it, missteps, he just succeeded in sabotaging himself, roosevelt. So even though it was not a popular thing to, you know, change the third branch of government, it could have been done, it seems to me, the it had been handled differently. And its not just selfsabotage. There are external events. There are a couple of things that sort of happened in that first 30, 40 days. Announcement of the plan in february. By early march the Senate Hearings are starting. The Supreme Court justices send a letter to the chairman of the committee that basically says were current on our work. So they blow up the cover story. But then the Supreme Court in mid march starts to hand down decisions upholding new deal laws. All of a sudden this Supreme Court problem is receding. A state minimum wage is upheld, the National Labor relations act is upheld. Social security is argued that spring by Robert Jackson and charles la zahn sky, and its constitution toally is upheld. So that kind of confluence of events, i think, really made it much less necessary to do something dramatic. And, of course, that change in some of their decisions led to one of the great catch phrases of the Supreme Court history which is a switch in time saves nine, right . You want to explain that, ralph . I mean, roosevelt, as i made a note in my notes here, he wouldnt take question for an answer. The court went out of its way i dont know whether they designed their decisions in order to placate him . I mean, thats a good question. Whether it was by design or whether they saw the light and realized they had to uphold these programs. For whatever reason, the court started to give him what he wanted, and they basically i dont know if you want to use this image, but dug his grave for him. But he didnt have to. And he just, i mean, it really is amazing how he missed all these signals and just plowed ahead. Heft determined to he was determined to remake that court to put on the six justices or up to six to carry through his programs. But its just astounding. And i think theres sort of still a political mystery because the book that i referenced, he and allsop interviewed everybody but the president , is so we dont know. I mean, i dont know how much maybe john knows, you know, in roosevelts own writing and what has come out in his papers about what a his thinking was about why he wouldnt take yes for an answer. Oh, he was much too careful to leave a paper trail on that, on anything. [laughter] we have a question from the audience, from carr hello, i hope i pronounced that right. She asked, how do we know Court Packing was unpopular outside of the conservative voices of the court . Did average americans in the 1930s depression have a strong opinion on the court . The constituencies of roosevelt, the farmers and labor and the liberals, all turned against it pretty quickly. So he lost his natural constituency. So it was not popular from the beginning. Its interesting, he thought, obviously, roosevelt thought that it might be, which is why he embarked on it. But he started losing his natural allies from the beginning. Am i right on that, john . No, i think thats correct. And look at the mail bags, some of which is archived there yeah. Millions of letters. Right. I mean, you can measure page by page the lick reaction, and a lot of the public reaction, and a lot of it is very critical. And you can look at the Congressional Committee votes, and ultimately, the Senate Committee report rejects the first version of the proposed bill. But as the urgency is receding in the springtime, the president does pull back, and this is a second version that would have only expanded the court by two seats that, you know, i think he one if that had been pushed through to a vote. He kind of had a deal with the Senate Majority leader, senator Joseph Robinson from arkansas, who was going to get that over the finish line and roosevelt, francly, had promised frankly, had promised him one of the two seats. Roosevelt was making nice at a picnic early that summer, and robinson dropped dead right after the fourth of july. And at that point, you know, one more development, another justice had announced that he was resign ising, so roosevelt finally had a vacancy to fill. So at that point just none of it is the worth more trouble. We can live with nine, and you can see the dominoes. Stanley reid, Felix Frankfurter and william o. Douglas, frank murphy the next year, Robert Jackson and james burns the next year, and those eight roosevelt a appointees are just, you know, one after another in the wings starting in the summer of 37. And there were s