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FDR v. The Constitution

The Court-Packing Fight and the Triumph of Democracy

Walker & Company, April 2010
ISBN: 978-0-8027-1031-4, ISBN10: 0-8027-1031-X,
5.5 x 8.25 inches, 352 pages, 16 p, b&w insert,
Trade Paperback, $18.00

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See All Categories Law & Legal Studies Law & Legal Studies - All Titles Political Science United States & Canada

The Supreme Court has generated many dramatic stories, none more so than the one that began on February 5, 1937. Franklin Delano Roosevelt, confident in his recent landslide reelection and frustrated by a Court that had overturned much of his New Deal legislation, stunned Congress and the American people with his announced intention to add six new justices. Even though the now-famous “court packing” scheme divided his own party, almost everyone assumed FDR would get his way and reverse the Court’s conservative stance and long-standing laissez-faire support of corporate America, so persuasive and powerful had he become. In the end, however, a Supreme Court justice, Owen Roberts, who cast off precedent in the interests of principle, and a Democratic senator from Montana, Burton K. Wheeler, led an effort that turned an apparently unstoppable proposal into a humiliating rejection—and preserved the Constitution.

FDR v. Constitution is the colorful story behind 168 days that riveted—and reshaped—the nation. Burt Solomon skillfully recounts the major New Deal initiatives of FDR’s first term and the rulings that overturned them, chronicling as well the politics and personalities on the Supreme Court—from the brilliant octogenarian Louis Brandeis, to the politically minded chief justice, Charles Evans Hughes, to the mercurial Roberts, whose “switch in time saved nine.” The ebb and flow of one of the momentous set pieces in American history placed the inner workings of the nation’s capital on full view as the three branches of our government squared off.

Ironically for FDR, the Court that emerged from this struggle shifted on its own to a liberal attitude, where it would largely remain for another seven decades. Placing the greatest miscalculation of FDR’s career in context past and present, Solomon offers a reminder of the perennial temptation toward an imperial presidency that the founders had always feared.

Praise

"[This] is popular history at its finest and provides many lessons about the dangers of presidential arrogance."—The Boston Globe

"This book marks Mr. Solomon's final transition from being one of the city's best political journalists to becoming a serious political historian . . . Mr. Solomon has produced a gripping tale of how Roosevelt misjudged and mishandled the two men who denied him his remedy."—The Washington Times

"This book recounts the epic battle over the legislation, and the important constitutional issues taht were at stake, in lively and compelling prose. Solomon's descriptions of the many players in the drama are vivid and entertaining."—The New York Law Journal

"During his first term as president, FDR became frustrated by a Supreme Court with a majority of Republican appointees that routinely ruled unconstitutional various New Deal initiatives in narrow 5 to 4 votes. Most particularly, the Court crippled the National Industrial Recovery Act of 1933—the very heart of FDR's prescription for economic recovery. As Solomon shows in this compelling and painstakingly researched study, after being re-elected by a large plurality in 1936, FDR attempted to revive a long-dead proposal, arguing that all Supreme Court justices 70 years or older either retire or the president be allowed to appoint a tandem judge to serve side-by-side with the older justice. This formula would have allowed FDR to shift the Court's balance of power. Solomon eloquently reveals how the proposal—hotly debated in Congress and characterized as a direct challenge to the fundamental principles of the Founders—eventually resulted in a stunning and humiliating defeat for FDR, sharply dividing members of his own party in the process."—Publishers Weekly

"Probably FDR’s most consequential political miscue as president—his proposal in 1937 to increase the membership of the Supreme Court—is the topic of journalist Solomon’s lively historical narrative. Bringing forth the important political players, Solomon highlights FDR and his conservative antagonists on the Court, who had invalidated many New Deal programs. Professing to lighten their labors with his proposal, FDR dissembled about histhat true aim of appointing new liberal justices, which even stout New Dealers sensed as a dangerous presidential power-grab: a key Democratic congressman said, 'Boys, here’s where I cash in my chips.' That, a refutation of the overwork thesis by Chief Justice Charles Evans Hughes, and an impassioned defense of the Supreme Court’s independence by Montana senator Burton Wheeler defeated the plan . . . A fluid portrayal of the court-packing episode that will appeal to history buffs."—Booklist

About the Author(s)

Burt Solomon

Burt Solomon has written about the nation’s capital and its history for three decades. A longtime correspondent for National Journal, he is the author of The Washington Century: Three Families and the Shaping of the Nation’s Capital and Where They Ain’t: The Fabled Life and Untimely Death of the Original Baltimore Orioles, the Team That Gave Birth to Modern Baseball, named one of the twenty best books of the millennium by GQ. He lives inside the Capital Beltway.