As the first election returns reached his family estate in Hyde Park, New York, on a November night in 1936, Franklin Delano Roosevelt leaned back in his wheelchair, his signature cigarette holder at a cocky angle, blew a smoke ring and cried “Wow!” His huge margin in New Haven signaled that he was being swept into a second term in the White House with the largest popular vote in history at the time and the best showing in the electoral college since James Monroe ran unopposed in 1820.
The outpouring of millions of ballots for the Democratic ticket reflected the enormous admiration for what FDR had achieved in less than four years. He had been inaugurated in March 1933 during perilous times—one-third of the workforce jobless, industry all but paralyzed, farmers desperate, most of the banks shut down—and in his first 100 days he had put through a series of measures that lifted the nation’s spirits. In 1933 workers and businessmen marched in spectacular parades to demonstrate their support for the National Recovery Administration (NRA), Roosevelt’s agency for industrial mobilization, symbolized by its emblem, the blue eagle. Farmers were grateful for government subsidies dispensed by the newly created Agricultural Adjustment Administration (AAA).
Over the ensuing three years, the cavalcade of alphabet agencies had continued: SEC (the Securities and Exchange Commission); REA (the Rural Electrification Administration) and a good many more. The NYA (National Youth Administration) had permitted college students, such as the future playwright Arthur Miller, to work their way through college. The WPA(Works Progress Administration) had sustained millions of Americans, including artists such as Jackson Pollock and writers such as John Cheever. In a second burst of legislation in 1935, Roosevelt had introduced the welfare state to the nation with the Social Security Act, legislating old-age pensions and unemployment insurance. During the 1936 campaign, the president’s motorcade, mobbed by well-wishers wherever he traveled, had to inch along the streets in towns and cities across the nation. His landslide victory that year signified the people’s verdict on the New Deal. Franklin D. Roosevelt, wrote Arthur Krock, the chief Washington correspondent for the New York Times, had gotten “the most overwhelming testimonial of approval ever received by a national candidate in the history of the nation.”
The election-night jubilation was tempered, however, by an inescapable fear—that the U.S. Supreme Court might undo Roosevelt’s accomplishments. From the outset of his presidency, FDR had known that four of the justices—Pierce Butler, James McReynolds, George Sutherland and Willis Van Devanter—would vote to invalidate almost all of the New Deal. They were referred to in the press as “the Four Horsemen,” after the allegorical figures of the Apocalypse associated with death and destruction. In the spring of 1935, a fifth justice, Hoover-appointee Owen Roberts—at 60 the youngest man on the Supreme Court—began casting his swing vote with them to create a conservative majority.
During the next year, these five judges, occasionally in concert with others, especially Chief Justice Charles Evans Hughes, struck down more significant acts of Congress—including the two foundation stones, the NRA and the AAA, of Roosevelt’s program—than at any other time in the nation’s history, before or since. In May 1935, the court destroyed FDR’s plan for industrial recovery when, in a unanimous decision involving a kosher poultry business in Brooklyn, it shot down the blue eagle. Little more than seven months later, in a 6 to 3 ruling, it annihilated his farm program by determining that the Agricultural Adjustment Act was unconstitutional. Most of the federal government’s authority over the economy derived from a clause in the Constitution empowering Congress to regulate interstate commerce, but the court construed the clause so narrowly that in another case that next spring, it ruled that not even so vast an industry as coal mining fell within the commerce power.
These decisions drew biting criticism, from inside and outside the court. Justice Harlan Fiske Stone, a Republican who had been Calvin Coolidge’s attorney general, denounced Roberts’ opinion striking down the farm law as a “tortured construction of the Constitution.” Many farmers were incensed. On the night following Roberts’ opinion, a passerby in Ames, Iowa, discovered life-size effigies of the six majority opinion justices hanged by the side of a road.
Fury at the court intensified when, in its final action of the term, it handed down a decision in the Tipaldo case. Until that point, defenders of the court had contended that the justices were not opposed to social legislation; the jurists merely wanted such laws to be enacted by the states, not the federal government. But early in June 1936, the court, by 5 to 4, struck down a New York state law providing a minimum wage for women and child workers. Laundry owner Joe Tipaldo, said the court, could continue to exploit female workers in his Brooklyn sweatshop; the state was powerless to stop him. “If this decision does not outrage the moral sense of the country,” said Secretary of the Interior Harold Ickes, “then nothing will.” And, indeed, people of all political persuasions were incensed. On its editorial page, the Knickerbocker Press, an upstate New York Republican newspaper, asserted, “The law that would jail any laundryman for having an underfed horse should jail him for having an underfed girl employee.”
The Tipaldo ruling persuaded Roosevelt that he had to act, and act quickly, to curb the court. As he told the press, the court had created a “ ‘no-man’s-land’ where no Government— State or Federal—can function.” He had been waiting patiently for popular dissatisfaction with the court to mount; now anger at the Tipaldo decision surged. That ruling, the historian Alpheus T. Mason later wrote, “convinced even the most reverent that five stubborn old men had planted themselves squarely in the path of progress.” The president recognized, however, that he must tread carefully, for despite widespread disgruntlement, most Americans believed the Supreme Court sacrosanct. When, in 1935, FDR had criticized it for adopting a “horse-and-buggy definition of interstate commerce,” editorial writers had lashed out at him. Thereafter, the president had said little, even as he quietly heeded the counsel of his attorney general, Homer Cummings, who told him, “Mr. President, they mean to destroy us. . . . We will have to find a way to get rid of the present membership of the Supreme Court.” With Roosevelt’s encouragement, Cummings sought to come up with a workable plan to ensure a more favorable response to the New Deal from the court. These explorations proceeded stealthily; the president never mentioned the court during his campaign for reelection.
Roosevelt, however, had concluded that he could not avoid a confrontation with the court; it had already torpedoed the two principal recovery projects of his first term. It would soon rule on the Social Security Act and the National Labor Relations Act (the Wagner Act), regarded by the administration as a factory workers’ Magna Carta. Legal analysts anticipated that the court would strike down both laws. In Tipaldo, it had gone so far as to say that the state was “without power by any form of legislation” to modify labor contracts between employers and women workers. Roosevelt surmised that he would be unable to take advantage of his landslide to sponsor new measures, such as a wagesand- hours law, because that legislation, too, would be invalidated.
In the days following the 1936 election, FDR and Cummings put the final touches on an audacious plan to reconfigure the court. Dissents by Stone and other justices, notably Louis Brandeis and Benjamin Cardozo, persuaded Roosevelt that he need not undertake the arduous route of a constitutional amendment, for it was not the Constitution that required changing but the composition of the bench. Naming a few more judges like Stone, the president believed, would do the trick. FDR recognized, though, that a direct assault on the court must be avoided; he could not simply assert that he wanted judges who would do his bidding. The most promising approach, it seemed, would be to capitalize on the public’s concern about the ages of the justices. At the time of his reelection, it was the most elderly court in the nation’s history, averaging 71 years. Six of the justices were 70 or older; a scurrilous book on the court, The Nine Old Men, by Drew Pearson and Robert Allen, was rapidly moving up the bestseller lists.