Supreme Power: Franklin Roosevelt vs. the Supreme Court.

• Author: Gelman, Sheldon
• Position: I. Introduction through IV. Supreme Power, p. 451-489 - Book review

SUPREME POWER: FRANKLIN ROOSEVELT VS. THE SUPREME COURT. By Jeff Shesol. (1) New York: W.W. Norton & Company, 2010. Pp. x + 640. $27.95

1. INTRODUCTION

   As National Federation of Independent Business v. Sebelius (3) awaited a Supreme Court decision, some observers reflected on the Court-packing crisis that had roiled the nation seventy-five years earlier. (4) In 1937 the Court had performed an apparent about face, upholding laws under the Commerce and the Tax and Spend Clauses that, in the view of most, it would have struck down in 1936. According to the conventional view, Justice Owen Roberts had "switched in time" to preserve judicial review from the threat of President Roosevelt and his plan to add six new Justices to the Court.

   The Sebelius Court had seemed poised to strike down national economic legislation--in fact, a landmark federal law--for the first time since 1937. (5) And the Court came close to doing so. Five Justices declared that the Affordable Care Act exceeded Congress' powers to regulate interstate commerce. But a bare five to four majority upheld most of the law under the Tax and Spend Clause. (6)

   Sebelius seems likely to spur renewed attention to the 1937 Court-packing crisis. Anda longstanding scholarly controversy exists about what happened then. "Internalist" historians, according to Laura Kalman, "point to doctrinal, intellectual causes" for doctrinal change in the 1930's. (7) "Externalist" historians, on the other hand, cite "political reasons," including the Court-packing threat and Roosevelt's landslide reelection in November 1936. (8) In philosophical terms, internalists are supposedly legalists who view law as autonomous from politics; externalists are said to be legal realists. (9)

   Jeff Shesol's history, Supreme Power: Franklin Roosevelt vs. the Supreme Court, does not consider the contemporary echoes of 1937. But Shesol, a former Clinton White House speechwriter, surely recognized the parallels between then and now. Today, as in 1937, times are hard, the Supreme Court is conservative, and a Democratic President--elected on a platform of change--advances controversial legislation. (10)

   Shesol provides a riveting, almost blow by blow account of the Court-packing controversy. And although he alludes to internalism only briefly--and not by name--Shesol seriously undermines the internalist view of 1937. Supreme Power may mark a decisive turn in this decades old debate.

   Internalism and externalism face quite different intellectual challenges. The case for externalism seems straightforward. In 1937 Justice Roberts altered his most fundamental views in three different areas of constitutional law--commerce, tax and spend and substantive due process. He did so at the precise moment President Roosevelt threatened to pack the Court, an action that gravely threatened judicial review. With Roberts' switching sides, a five to four majority on the Court to strike down New Deal legislation and state labor laws became a five to four majority to uphold those laws.

   What happened can be compared to a shooting. A previously healthy victim falls to the ground, bleeding, at the very moment someone fired a gun in the victim's direction. Even without an autopsy, the case for an external cause of the collapse--the gunshot--seems strong. Yet internalists have to argue that a cause "internal" to the victim explains the event.

   Alluding to this challenge, Barry Cushman, a leading internalist, acknowledges that non-political explanations of 1937 require some "intellectual space" to appear plausible--some gaps between political pressure and Roberts votes. (11) Internalists argue, for example, that Roberts could not have feared for the Court because Roosevelt's proposal was certain to fail. (12) Internalists also claim that Roberts cast a critical vote in a minimum wage case before Roosevelt had proposed Court-packing. (13) In effect, they argue that Roosevelt fired blanks and, in any event, the victim collapsed before the gun went off.

   Two other arguments feature prominently in internalism. One claims that an integrated legal "fabric" or "edifice" linked questions of federal power under the Constitution to questions about substantive due process--and that Roberts' majority opinion in Nebbia v. New York, (14) a 1934 substantive due process decision, revealed the fabric unraveling three years before the Court-packing proposal. (15) On this view, Roberts changed his mind about one thing--the fabric--and not three different things (commerce, tax and spend, substantive due process).

   A related argument takes a longer view, citing developments in economics and social thought. G. Edward White, for example, argues that the "edifice of [constitutional] doctrine ... collapse[d] of its own weight" because a new "modernist epistemology" had undermined it. (16) This new understanding the world, according to White, made pre-1937 constitutional doctrine "incoherent." (17) Thus, what caused the constitutional revolution predated 1937 and was not political in nature. Furthermore, these long-term developments made a constitutional revolution inevitable. Viewed over the long-term, then, what an individual Justice did in a single case hardly mattered--and Justice Roberts was not responsible for the constitutional revolution.

   Supreme Power largely destroys the "intellectual space" that internalism requires. Contrary to internalist claims, Shesol demonstrates that Court-packing legislation seemed likely to pass. Shesol also shows that when Roberts cast his supposedly pivotal vote on substantive due process, in December 1936, the entire nation was focused on the threat Roosevelt posed to the Court. Other writers reach similar conclusions, but none so convincingly or with such devastating effect as Shesol.

   Supreme Power bears on other internalist arguments indirectly, but in important ways. It shows, for example, that some brilliant contemporary observers attached little significance to the Nebbia decision in 1934--and that virtually no one considered Nebbia significant after Justice Roberts joined majorities in 1936 to strike down New Deal measures and invalidate a state minimum wage law. If contemporaries are capable of understanding constitutional law, this alone casts doubt on internalists' claims.

   Shesol also undercuts long-view internalism in an almost aesthetic way. The long view shifts attention away from singular events to the hypothesized deep currents of intellectual and economic history. Supreme Power counters with a detailed recreation of the legal and political world of 1937. Shesol conveys the sheer contingency of events brilliantly--how things might have turned out differently. Experiencing the world of 1937, many readers will decide that long-view internalism simply misses the point.

   Part II of this review examines how Shesol's account bears on internalists' claims.

   Going beyond Shesol's arguments, Part III analyzes the internalist idea of a "fabric" of constitutional law. I argue that this concept is conceptually flawed and leads internalists to ignore or downplay facts inconsistent with their views. Indeed, the "fabric" idea rules out the very constitutional position that Justice Roberts (and many others) actually took in 1936--namely, that states should have greater latitude to regulate the economy, but the federal government should not. I also argue that Roberts' vote to strike down a minimum wage law in 1936 (rather than, as usually thought, his vote to uphold such a law in 1937) may well have been influenced by political considerations--in particular, by Roberts' aspirations for the 1936 Republican presidential nomination.

   Part IV considers Supreme Power on its own terms. I argue that despite the book's overall excellence, it overlooks the importance of political principles and the threat Roosevelt actually posed to judicial review. Shesol made these mistakes, I suggest, because a 1997 political crisis during the Clinton administration influenced his understanding of the 1937 Court-packing crisis.

   Part V argues that the very idea of an internalist-externalist debate, one supposedly driven by a philosophical disagreement about law, is mistaken. I distinguish "strong" forms of internalism and externalism from "weak" forms, and consider the different ways that legal philosophy might influence a historical debate. In light of that discussion, I examine the views of leading figures in the controversy and evaluate Shesol's claim--a surprising one, given the rest of his account--that it must be "impossible" to know what motivated Justice Roberts.

   Part VI considers how Shesol's book, along with changing views of judicial review and doctrinal upheavals, could affect the future course of historical debate. Among other possibilities, internalism may fracture, I argue, as some internalists adopt positions contrary to current internalist claims. I also examine how the Court itself has treated the events of 1937--a treatment at odds with the very idea of an internalism versus externalism debate.

2. INTERNALISM AND SUPREME POWER

   1. CHRONOLOGY AND POLITICAL PROSPECTS

      Regarding the events, Supreme Power demonstrates that key internalist claims are mistaken--and sometimes blatantly wrong.

      1. December 17, 1936--President Roosevelt announced the Court-packing plan on February 5, 1937. (18) Internalists argue that Justice Roberts changed his mind about the Constitution before then. (19)

         On December 17, 1936 the Justices conferred about West Coast Hotel v. Parrish, a minimum wage case. (20) Just six months earlier, in Moorehead v. New York ex rel. Tipaldo, (21) Roberts had joined four conservative Justices in an opinion that invalidated a state minimum wage law and endorsed a Lochner (22) era view of substantive due process. At the Parrish conference in December, however, Roberts joined the Tipaldo dissenters. The result was a 5-4 majority upholding the minimum wage law and upending Lochner. Since the conference predated...