Supreme Power: Franklin Roosevelt vs. the Supreme Court

In  Supreme Power: Franklin Roosevelt vs. the Supreme Court , Jeff Shesol manages to do something rare: combine excellent research and a gripping narrative. (For those familiar with Rick Perlstein's  Before the Storm: Barry Goldwater and the Unmaking of the American Consensus , I think the writing style and amount of detail are similar). The book deals with Franklin D. Roosevelt's attempt to pack the Supreme Court with extra justices in 1937 - an attempt that ultimately failed and, unfortunately, few people remember today. Shesol brings this important episode in our history to life.First of all, Shesol resists the temptation of many historians to make the past prologue. He doesn't recite the whole history of the U.S. Supreme Court, nor does he stretch historical analogies to draw "lessons" or "comparisons" for today. Rather,  Supreme Power  stays focused like a laser on the subject of the book, beginning in 1932 with FDR's election. This allows Shesol to really delve into detail, spending almost all of the book's 530 pages on FDR and the court. (Incidentally, if you know absolutely nothing about the Supreme Court or its history, you might want to scan wikipedia quickly before reading this book).And the detail in the book is extraordinary. I studied FDR's court-packing scheme in law school and read the major cases discussed in the book, but I felt I learned much more reading  Supreme Power  than I did in 3 years of law school. For example, I had read the Schecter case, which invalidated important New Deal legislation, but I did not even know about the businessmen and activists who formed associations, such as the American Liberty League, to launch test cases like Schecter. It turns out the Schecter brothers even voted for FDR in the 1936 elections! Another fascinating trivia bit revealed early in the book is that the whole issue almost became moot because Justices Sutherland and Van Devanter almost retired in 1932 - but refused to do so when Congress lowered their pensions.Shesol also strives - and for the most part achieves - the ideal of historical objectivity (pay the reviewer who claims Shesol is sympathetic to FDR no heed). He is quite willing to point out the flaws of the New Deal and the fact that it wasn't universally popular (raising concerns similar to Amity Shales'  The Forgotten Man ). He also seeks to uncover the ulterior motivations of men like Senator Burton K. Wheeler (against court-packing) and Joe Robinson (for).However - and this I found remarkable - Shesol also tries to understand the logic and motivations behind the court-packing plan itself. All too often, historians deride the plan as a mistake or doomed to fail. Yet, Shesol shows that the plan did in fact have an organic history and genesis of its own. He discusses the longstanding concern that many observers, including former president and chief justice Taft, had regarding judges over the age of 70. In fact, FDR's chief foe on the Supreme Court, arch-conservative Justice McReynolds, proposed a similar plan during the Wilson administration. In short, Shesol shows readers the type of information bombarding the White House about elder judges, as well as how FDR and his advisors could convince themselves that adding additional judges for each over the age of 70 was a brilliant solution.My one complaint - and it is a small one - is that Shesol does not seem to make much use of the political science literature about courts and judicial review. This is a shame. I think political science offers many compelling explanations about why elites would oppose limits on judicial review. For example, Tom Ginsburg's  Judicial Review in New Democracies: Constitutional Courts in Asian Cases  advances the theory that elites view judicial review as important to protect themselves if they ever become relegated to minority status (for example, Republicans becoming the minority party in Congress). Some of these theories can be found in some form in  Supreme Power , but Shesol, who is primarily a historian, primarily credits the political dynamics of the 1930s for defeating FDR's plan rather than larger political and institutional forces. Supreme Power  will probably become the primary account of FDR's court-packing scheme for some time. Highly recommended for anybody interested in American history or the politics of courts.

Imagine a time in American history in which Wall Street collapsed under the weight of its own machinations, the right wing press regularly accused the president of implementing communism and socialism, the Supreme Court undermined reform acts of congress in favor of big business and phony populist movements were established by the wealthy. Is this America under Obama? No it is the United States under FDR.Jeff Shesol, as a former member of the Clinton speech-writing team charts the conflict between FDR and the court. And what a story this is! Anyone who believes that there was once a time in which power politics were never upper most in people's should stay away from this book since it will shake this world view to its foundations.Roosevelt came into office during a time when most institutions had fallen into disrepute. The only way Herbert Hoover's reputation could have been worse would have been had he bungled a war or two somewhere beyond the boundaries of the United States. The times demanded new leadership and new solutions, and with that in mind, Roosevelt was elected to the presidency.The problems that the 32nd president faced were monumental and truth be told despite an unparalleled period of legislative accomplishment, the 100 Days, not every law passed by congress and signed into law was conceived under optimal conditions. Two of the first hallmarks of Roosevelt's first term, the AAA and NRA were rushed through an obedient congress. The flaws of both would make them among the most controversial measures of the day.These programs also set the administration in conflict with the Supreme Court. Congress did something else to help create an unfavorable environment by cutting the pensions for federal judges. This minor economy ensured that none of the justices had any incentive to retire and quite a number of reasons to stay on. Some like the reactionary McReynolds stayed on out of sheer dislike for the FDR and a desire to outlast him.Roosevelt's primary opponent was Chief Justice Hughes, himself another former governor of New York, and also an unsuccessful candidate for president in 1916 (it came down to a few thousand votes in California). Hughes proved himself a master politician largely by pretending not to be. As the public face of the Supreme Court, Hughes understood the significance of less is more.Shesol shows just how important perceptions are in politics. During 1935, many people viewed Roosevelt as vulnerable, not really understanding the volatility of public opinion. During this time, the Liberty League (a sort of precursor of the Tea Party Movement) was founded and underwritten largely by the Dupont family and staffed by disappointed former Democrats like Al Smith and Jouett Shouse who with Roosevelt's election, lost all influence in the party. Then as now patronage usually trumps principles.The Supreme Court rather blindly managed to restore Roosevelt's fortunes by eliminating both the NRA and AAA, measures dear to the New Dealers, but disliked by the public at large and dismissed as failed experiments by FDR himself. With these potential drains on FDR's popularity ruled as unconstitutional, FDR was able to triumph on 1936 over a Republican Party which was beholding to the Liberty League for funds and an agenda.The battle over the court consumed much of the political life of the country from February 1937 to August of that year. Hughes proved to be surprising supple on controversial issues like Social Security and Collective Bargaining. This former candidate for the presidency knew how to read and election return. Roosevelt who usually was a political mastermind was defeated largely though his own inability to know when to give up the fight to expand the court from nine justices to fifteen. In the process he established the basis of the socially conservative Southern and pro-big business alliance that has defined the Republican Party since the Civil Rights era. In the short term, Roosevelt may have lost the battle, but won the war. The judicial activism that favored business interests that characterized the court in Roosevelt's term was gone. Progressive legislation could stand constitutional muster. Roosevelt unfortunately would not really recover his relationship with congress until WWII.This is an excellent book and well worth savoring since Shesol has peppered his narrative with many interesting period details concerning the main players in the executive, legislative, and judicial branches of the government in the 1930s.

Well done.Thank you.