A Personalized View of the Court-Packing Episode

Joseph L. Rauh, Jr.

Editor's Note: Joseph Rauh was Justice Cardozo's last law clerk and the first law clerk of Justice Frankfurter. This article is a partial excerpt from a lecture the author delivered on February 13 and 15, 1990, as a Regents Lecturer at the University of California, San Diego. The entire speech also appeared in Volume 69 North Carolina Law Review (1990) pp. 213-249, under the title 'An Unabashed Liberal Looks at a Half-Century of the Supreme Court," and is reprinted with permission. Copyright 1990 by the North Carolina Law Review Association.

When I went to work for Justice Cardozo in 1936, the Court was hopelessly divided. The dominant faction consisted of four ultraconservative Justices: Willis Van Devanter, appointed by Taft in 1910 and no longer productive; James Clark McReynolds, appointed by President Wilson to get rid of him as United States Attorney General; Pierce Butler, a railroad lawyer appointed by President Harding in 1922, who spent an inordinate amount of his time and effort on the Court trying to reverse judgments against the railroads under the Federal Employers Liability Act; and George Sutherland, another Harding appointee and Republican Senator who had fought against Louis Brandeis's confirmation in 1916.

Against this bloc stood the three liberals: Brandeis, the people's attorney, appointed by President Wilson; Harlan Stone, former dean of the Columbia Law School and United States Attorney General, appointed by President Coolidge; and Benjamin Cardozo, the Chief Judge of the New York Court of Appeals, appointed by President Hoover. The appointment of so liberal a Justice as Cardozo, by so conservative a President as Hoover, was remarkable in itself. Moreover, Cardozo would be the second Jewish Justice on the Court and was already 62 years of age. But the Senate Republican leadership conveyed to Hoover its belief that the best politics for 1932 lay in choosing the best man for the Court, and Cardozo was almost universally acknowledged as the proper successor to the Olympian Holmes.

Hostility between the two blocs was inevitable and open; they even held intra-bloc "skull practice" regularly. The four conservative Justices rode in the same automobile to and from the Supreme Court building for oral arguments and for the Saturday conferences of all nine Justices at which the Justices decided the cases (in those days the Justices' offices were in their homes). To compete with these regular get-togethers of the conservatives, the liberals began to meet at Brandeis's home on Friday evenings to plan their strategies for the Saturday conferences. I always waited until Justice Cardozo returned to his apartment so I could get a full report on the liberal warm-up. I never found the Justice more unhappy than on the few occasions when Brandeis or Stone announced that they were not going to join his dissent in a particular case the following day despite their belief that the majority was going to make a wrong decision.

The balance of power, of course, lay with the other two Justices, Chief Justice Charles Evans Hughes and Associate Justice Owen Roberts. When Chief Justice Taft retired in 1930, there was considerable speculation about who would be named as his successor. Justice Frankfurter later relayed to me the story of Hughes' nomination as told to him by Joseph Cotton, Hoover's Under-Secretary of State. A meeting to discuss Taft's successor was held in Hoover's office, which Cotton attended. The President said he felt obligated to offer the position to Hughes, a former Associate Justice of the Supreme Court and the Republican standard-bearer in the 1916 Presidential race. One of those present at the meeting told the President he was safe in making the offer because Hughes would have to decline since his son, Hoover's Solicitor General, would resign his post as the Government's spokesman before the Court if his father became Chief Justice. So Hoover called Hughes on the telephone and offered him the position of Chief Justice. After a short period of small talk, Hoover hung up the phone, blurting out, "The son of a bitch doesn't give a damn about his son's career."[1] Despite Senator Norris's attack on Hughes on the Senate floor as the exemplar of "the influence of powerful combinations in the political and financial world,"[2] Hughes was confirmed 52-26 and became, at least in Justice Cardozo's oft-stated opinion, a "brilliant and efficient Chief Justice but one without wisdom."

Roberts' road to the Court was an equally uncertain one. Shortly after the Hughes confirmation, Hoover's nomination to the Supreme Court of Federal Judge John J. Parker of the 4th Circuit came before the Senate. Parker had upheld the so-called "yellow dog contract" against union membership.[3] This action, combined with earlier ugly racist public statements, was enough to defeat Parker. Roberts, a prominent corporation lawyer who had been the prosecutor in the Teapot Dome scandal, became the ninth Justice. Together with Hughes, Roberts held the legal fate of the soon-to-be New Deal and much state social legislation in his hands.

Justice Roberts quickly became a fellow-traveler of the conservative four, with the Chief Justice swinging back and forth sufficiently to earn the sobriquet: "the man on the flying trapeze." The Court, in the hectic years of 1935 and 1936, invalidated Roosevelt's National Recovery Act, his Agricultural Adjustment Act, Railroad Retirement Act, Bituminous Coal Conservation Act, as well as other New Deal legislation and administrative actions. These decisions, plus the Court's ruling at the end of the 1935-36 Term invalidating the New York minimum wage law[4] not only killed the laws already considered but threatened those enacted but untested such as the Wagner Labor Relations Act, the Social Security Act, the Holding Company Act and bills on the drawing board, including a federal wage-hour-child-labor law.

Something had to be done if the New Deal was to be saved and expanded. Talk was in the air about constitutional amendments, including expanding the Commerce Clause of the Constitution; prohibiting less than two thirds of the Court from invalidating federal or state legislation; permitting a majority of the two houses of Congress to reenact a law invalidated by the Court without further Court review of the law; and making laws passed by two thirds of each House unreviewable.

Roosevelt's landslide reelection in 1936 settled the matter. He would act on the Court, but the constitutional amendment route was too slow for him. Shortly after the election, he referred publicly to Congress's power to enlarge the Court and gave out hints that the time for action on the Supreme Court front was not far off. Nevertheless, Justice Cardozo seemed considerably shaken when, in early February 1937, just three months after the election, he came into the little room in his apartment where I worked to give me the news of the Court-packing plan that President Roosevelt had just submitted to Congress. He said Roosevelt wanted to add a Justice for every one who did not retire after the age of 70, up to a maximum of six. Cardozo at once spoke of his opposition to the Court-packing plan, saying rather plaintively, "No judge could do otherwise." But, at least to me, there was no sign that his devotion to Roosevelt lessened one bit.

Roosevelt's original rationale for his plan was that the Justices were behind in their docket because they were too old to do their work. This theory simply did not hold water. The Court may have been doing its work too intrusively or too harshly, but it was not behind in its docket. Hughes' brilliance and administrative drive saw to that. This weak rationale hurt the President's cause.

I had a front row seat at the ensuing battle. On the surface, the adversaries were Roosevelt and Senator Burton K. Wheeler. But at the working level, the adversaries were men who had once been bosom allies: Ben Cohen and Tom Corcoran took the Roosevelt side,[5] Justice Brandeis the other. Cohen and Corcoran, for whom I had worked in 1935, stated repeatedly that they had not participated in the drafting of the original Court-packing bill predicated on the age and inadequacy of six of the Justices. Cohen wrote Brandeis later in 1937, "Neither Tom nor I was consulted in the formulation of the Court proposals which the President did decide to sponsor.... Once the President's proposals were made, Tom and I worked for their adoption...."[6] Although Cohen and Corcoran may have been more involved in the early stages than the letter to Brandeis implies, they certainly disagreed with the initial age inadequacy rationale for the bill.

Warner Gardner, who worked closely with Attorney General Homer Cummings on the preparation of the Administration's Court-packing plan, has written in Pebbles From the Paths Behind, his 1989 memoir, that "Cummings and I spent a morning with the ubiquitous Corcoran and Cohen, finding that they were in strong support and without suggestions for change."[7] There is no record of this meeting in Cummings' diary, although there is a reference in his diary to the President telling him "he had tried it on Tommy Corcoran and the latter agreed it would work."[8] As a fervent believer in Mr. Cohen's integrity and truthfulness, I suggest that the apparent contradictions may be explained by Corcoran and Cohen's unawareness of the age-inadequacy rationale for the packing as opposed to the packing itself.

The Administration soon had the age-inadequacy rationale turned around. Roosevelt began preaching the need "to save the Constitution from the Court and the Court from itself"[9] and stressing the importance of the New Deal legislative program and the importance of having it now. Roosevelt began gaining ground.

But Justice Brandeis was also at work. Senator Wheeler's son Ed remembers how the opposition to the Court-packing plan evolved. His sister Elizabeth had just had a baby. The Wheelers and Brandeises were close enough for a visit from Mrs. Brandeis to Elizabeth and the baby. During the course of the "courtesy" call, Mrs. Brandeis casually mentioned to Elizabeth that "Louis [Brandeis] agrees with your father." As expected, as soon as Mrs. Brandeis left, Elizabeth called her father, and Wheeler promptly arranged a meeting with the Justice. Brandeis then put Wheeler in touch with the Chief Justice. Out of that conversation came the Chief Justice's letter to Wheeler demonstrating that the Court was fully abreast of its work and that any increase in the number of Justices could only impair the Court's efficiency. Wheeler fueled his attack on the bill before the Senate Judiciary Committee by presenting the letter from the Chief Justice. Hughes had only obtained the approval of Brandeis and Van Devanter for his letter to Wheeler, and I always had the feeling Cardozo was as opposed to the Hughes-Brandeis intervention as he was to the plan itself.

In any case, big goings-on occurred down at the Court. Shortly after Roosevelt announced his Court-packing plan, Roberts publicly switched to the liberal side on the validity of state minimum wage laws, providing a 5-4 majority for the constitutionality of such a law from the State of Washington.[10] Many thought that the switch came as a result of FDR's proposal, but this hardly could have been the case. Roberts had cast his vote for the Washington law in conference before Roosevelt made his proposal. If Roberts were affected by any extraneous influence, it must have been the landslide 1936 election. While humorist Finley Peter Dunne's popular creation, Mr. Dooley, put the proposition most inelegantly when he stated "th' Supreme Court follows th' iliction returns," Roberts could well have been affected by the realization that F.D.R was speaking for the hopes and aspirations of the vast majority of Americans.

Whatever the reason for Roberts' switch in the minimum wage law case, another switch soon occurred of such magnitude in so important a case that its only possible explanation was the Court-packing plan. In 1936, the Court had ruled by a 6-3 vote in Carter v. Carter Coal Co.[11] that Congress's power over interstate commerce was not broad enough to support federal regulation of labor conditions in the mines. In February 1937, just days after Roosevelt made his proposal for restructuring the Court, advocates argued the constitutionality of the National Labor Relations Act of 1935 before the Court. At the ensuing conference of the Justices, the vote was 5-4 to uphold the law, both Hughes and Roberts switching from their positions in Carter Coal. When Cardozo reported on the conference action during our ride home from the courthouse, he was elated by the switches. But about all that this kindly gentleman could bring himself to say in criticism was that he "considered it quite an achievement to make the shift without even a mention of the burial of a recent case." He did smile some time later when I told him the gag going around about "a switch in time saves Nine," but he never said anything like that himself.

When the decision upholding the Labor Act came down in April 1937,[12] the anti-New Deal conservative bloc knew that the jig was up. "Every consideration brought forward to uphold the Act before us," McReynolds literally shouted as he read from his dissenting opinion, "was applicable to support the Acts held unconstitutional in causes decided within two years."[13] Shortly after the decision, in early May, there was a knock on Justice Cardozo's apartment door: there was Justice Van Devanter asking to see Justice Cardozo. Minutes later, Cardozo brought me the news that Van Devanter was retiring. The judicial struggle against the New Deal was over.

Actually, Van Devanter had wanted to retire a few years earlier because he recognized his drastically reduced productivity. Had he done so, his action might well have obviated the necessity for any Court-packing plan. But from what I gathered from Cohen and others, Van Devanter consulted Brandeis about his retirement, and Brandeis, after conferring with then-Professor Felix Frankfurter, urged Van Devanter to stay on the Court because of his valuable input in conference. I have never been able to understand this "valuable input in conference" talk; in all Cardozo's detailed reporting of the conferences, I never remember him ever mentioning Van Devanter's name, although there were repeated references to what McReynolds, Sutherland or Butler had said. The Brandeis-Frankfurter advice to Van Devanter was a judicial tragedy.

With the retirement of Van Devanter and the favorable action of the Court in the Labor Act case, and in the Social Security cases soon afterward,[14] the urgent need for the plan was over. Roosevelt could have declared victory and departed from the battlefield with head held high. But he apparently had gone too far to turn back or, at least, that's what he must have thought. So the struggle went on.

On June 14,1937, the Senate Judiciary Committee filed a report excoriating the President and his Court-packing bill.[15] The bitterness of the Committee report is summed up in its last sentence: "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"[16] As Professor Leuchtenburg has related, however, two days later F.D.R pulled a rabbit out of his hat.[17] He invited all 407 Democratic Senators and Congressmen to picnic with him over the weekend at Jefferson Island, where he used his geniality and charm to his advantage.[18] The tide started to turn once again in his favor. The Administration offered a new bill that looked more like a compromise than it really was. When debate on the bill opened in July, Democratic Majority Leader Joe Robinson indicated that he had the votes for passage.[19] Robinson's sudden death, apparently due to the unnatural heat of that summer coupled with the tension of debate, led to the bill's defeat.[20] The Senate voted to recommit the bill to the Committee, and that was the end of the struggle.

Justice Cardozo wrote me from his summer place just afterwards: " 'It was a famous victory.' Have you any idea what I refer to?" Small wonder the Justice was jubilant. His opposition to the bill, even though on the theory that "no judge could do otherwise," had been vindicated. More importantly, he was on the verge of becoming the leader of a new liberal majority on the Court. Sadly, after only two months with the new Court, Justice Cardozo became ill and was bedridden. In July 1938, he passed away.

For myself, I thought then and I think now, that divine providence must have played a hand in what seems to me a perfect outcome of a venture that began so dubiously. The Roosevelt Court-packing plan resulted in the change of course by Justices Hughes and Roberts, and their switch saved the New Deal. At the same time, the ultimate defeat of the plan after Joe Robinson's death prevented a dangerous precedent from threatening the stability of our constitutional legal system based on the separation of powers and the independence of the federal judiciary. Both the effect of the plan, while it was alive, and its ultimate death, are monuments to the resiliency of our democratic system. Senator Hiram Johnson's shout to the galleries, "Glory be to God," right after the Senate voted to send Roosevelt's bill back to committee was an appropriate ending for one of the most dramatic periods in the Court's history.[21]

1. While I was in San Diego as Regents' Lecturer at the University of California there, I had the good fortune to encounter Chief Justice Hughes' grandson, Professor Stuart Hughes. I told him this story which I had heard from Felix Frankfurter. He smiled and said, "Well, that story was certainly told often enough inside our family."
2. S. Hendel, Charles Evans Hughes and the Supreme Court 79 (1951).
3. International Org., United Mineworkers of America v. Red Jacket Consol. Coal & Coke Co., 18 F.2d 839 (4^th Cir. 1927); see J. Rayback, A History of American Labor 319 (1866).
4. Morehead v. Tipaldo, 298 U.S. 587 (1936).
5. The role of Cohen and Corcoran, two very close advisors of President Roosevelt, is related in J. Lash, Dealers and Dreamers 291-316 (1988).
6. Letter from Cohen to Brandeis dated July 30, 1937. Box 13 Cohen papers, Library of Congress.
7. W. Gardner, "The Public Path 1909-1947," in Pebbles from the Paths Behind, at 77 (1989).
8. J. Lash, supra note 5, at 293.
9. Commager, Documents of American History Vol. II 384 (7^th ed. 1963).
10. West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937).
11. 298 U.S. 23, 297-310 (1936).
12. See N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).
13. Id. at 77 (MacReynolds, J., dissenting).
14. Steward Machine Co. v. Davis, 301 U.S. 548 (1937); Carmichael v. Southern Coal & Coke Co., 301 U.S. 495 (1937).
15. Senate Committee on the Judiciary, Reorganization of the Federal Judiciary, S. Rep. No. 711, 75^th Congress, 1^st Session, 1 (1937).
16. Id. at 23.
17. See Leuchtenburg, "F.D.R.'s Court-Packing Plan: A Second Life, A Second Death" Supreme Court Historical Society Yearbook 1988, at 80 (1988).
18. For a fuller account of the weekend at Jefferson Island and its effect on the President's plan, see Leuchtenburg, supra note 17, at 81.
19. Id. at 82.
20. Id. at 84-86.
21. Id. at 87.