Franklin Roosevelt and the Great Constitutional War: the Court-Packing Crisis of 1937.

Author:Brownell, Roy E., II
Position:Book Review

By Marian C. McKenna. New York: Fordham University Press, 2002. 612 pp.

In her new work, Franklin Roosevelt and the Great Constitutional War, Marian McKenna, a professor emerita at the University of Calgary, takes a fresh look at the court-packing controversy of 1937, an event that can scarcely be overestimated in importance. Not only did the outcome of the controversy reaffirm the independence of the American judiciary at a time when it was very much in doubt, but the episode effectively shattered the New Deal coalition that had fundamentally altered political discourse in this country. Whether the controversy had any direct impact on judicial interpretation of the Constitution, however, is another matter altogether.

Roosevelt's court-packing scheme has been shrouded in myth from the very beginning. The traditional narrative carries with it a familiar pattern. During FDR's first term, the story goes, the infamous "Four Horsemen" set about convincing their more moderate brethren, Chief Justice Hughes and Justice Roberts, to side with them and strike down benevolent New Deal legislation. The American electorate, however, decisively rejected this constitutional vision during the 1936 election, reelecting Roosevelt in grand fashion. As a result of postlandslide hubris and righteous indignation at the Court, Roosevelt introduced hastily considered legislation designed to bring the Court to heel. Although unsuccessful in Congress, the plan accomplished the president's larger political aims by cowing the Jurassic justices into reversing themselves on the legality of progressive legislation, with the result that constitutional interpretation was recast for the foreseeable future. For generations, variations of this narrative--the "switch in time that saved nine"--have held sway.

Recently, however, a number of scholars, such as Barry Cushman, G. Edward White, and Richard Friedman, have challenged this approach. They have argued persuasively that many, if not most, of the premises upon which this familiar narrative is based are mistaken. The chronology of the "switch in time" is fundamentally flawed since the justices had already voted to reverse themselves on a key matter several weeks before Roosevelt introduced his court-packing bill. Moreover, the 1936 campaign was hardly a referendum on the Supreme Court's constitutional interpretation, as Roosevelt purposely avoided using the Court as a campaign issue, and his opponent, Alf Landon, embraced...

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