National Press Club

Author Describes Dramatic Struggle over Supreme Court

July 10, 2009 | By Frank Kane

“Not being a lawyer helped in writing this book,” said Burt Solomon in discussing his book, “FDR vs. the Constitution: The Court-Packing Fight and the Triumph of Democracy” at the Club July 9. It enabled Solomon to do extensive research on both the political and legal aspects of what he described as a “titanic battle over Roosevelt’s attempt to pack the Supreme Court” with six more justices.

In the mid-1930’s, the high court, dominated by a 5-4 conservative majority, had struck down a dozen New Deal laws and state legislative attempts to end the Depression and protect the poor. Average age of the justices was 71, and they were referred to as “the nine old men.” FDR, fresh from a landslide re-election victory, was determined to do something. But he ruled out a constitutional amendment because he knew that a few million dollars spent in a few states could bar ratification of such an amendment.

His answer, conceived in secrecy, was a legislative proposal to authorize appointment of one new justice for every existing justice over 70.

“FDR was not violating the Constitution,” said Solomon. The Constitution says nothing about the number of justices. “But he was attempting to subvert the Constitution,” which is based on separation of powers among the three branches of government. He had big Democratic majorities in Congress, so controlling the Court would bring all three branches under his power.

“It became the most controversial issue since the League of Nations, “Solomon said.
There was widespread opposition from business, lawyers, religious groups, even segments of Roosevelt’s allies in organized labor.

In the end, the issue was resolved when two justices, Owen Roberts and Chief Justice Charles Evans Hughes, changed to a more liberal approach. It was called “the switch in time that saved nine,” said Solomon.

Roosevelt’s plan went down to defeat, but it made him a better president, more able to lead effectively in future controversies such as Lend-Lease. The court also grew stronger, taking into account realities and public needs in future decisions but also able to withstand attempted incursions from the executive branch, Solomon said.

With a 5-4 conservative majority today, there are recurrent rumors of possible attempts to pack the court in future years, Solomon said, but he hopes the lessons of the past will be studied.

He was introduced by Paul Dickson.