There is a fitting modern parallel to the 1930s battle between President Roosevelt and the Supreme Court justices. In the 2010 State of the Union address, President Obama brought Democrats in Congress to their feet as he panned six Supreme Court justices for preferring property rights to individual rights. Obama's criticism mirrored Roosevelt's anger at the Supremes' reactionary rulings on the New Deal. Four of the justices were dubbed “the Horsemen of the Apocalypse.”
Shesol's study begins in lively fashion: his account narrates the manner in which the New Deal legislative programme was almost wrecked by Supreme Court decisions, before eventually being saved by a surprise reversal in favour of revised legislation. He focusses not only on major players like FDR, the Justices, the pivotal Attorney General Homer Cummings and the ill-fated Senate majority leader Joseph Robinson, but also on minor players, such as Robert Jackson, best remembered as chief prosecutor at the Nuremberg war crime trials a decade later.
Shesol raises many important constitutional questions arising in 1936–37. How much power should the Supreme Court hold in the American constitutional system? How did the court decide what the Constitution means? He quotes Justice Roberts: “The only power the court has … is the power of judgment” (183), contrasting this view with Chief Justice Hughes: “The Constitution is what the judges say it is” (171). Shesol also probes the Roosevelt administration's animated interpretation of the Constitution as a living entity, to which the court was unresponsive, as it struck down one piece of New Deal legislation after another. He explores the problem of checks and balances – what powers existed in Congress or within the executive to combat judicial decisions?
Regrettably, while Shesol establishes that FDR and his advisers considered numerous solutions to prevent the derailing of their political agenda, he does not sufficiently analyse the arguments, either pro or con. Nor does he decide why most First New Deal legislative proposals, especially minimum-wage laws, proved unconstitutional. Perhaps he cannot decide the extent to which it was a result of the limitation of the political branches' powers or FDR's failure to persuade the public of the justice of his case.
After a promising beginning, therefore, problems begin to emerge. Narrative and the desire to share extensive research trump analysis and brevity. Important questions remain unanswered. Shesol analyses neither how nor, indeed, whether the court-packing controversy and subsequent pressure on the justices was responsible for the seismic shift in the court's decisions when it upheld Second New Deal legislation. He is content to vacillate between the legalistic meanderings of judicial decision and an evolution of constitutional law. In other words, he elides the main issue.
The author raises questions concerning the administration's choice to rely on a public-relations initiative when it introduced the Court Packing Bill. However, he does not explain why FDR apparently decided against taking the real case to the public, namely that the unelected court was refusing to accept the will of Congress and the executive in its program to help destitute Americans cope with catastrophic economic circumstances.
There are references which more vigilant editing might have explored. When, as a courtesy, presidential aide Tommy Corcoran visited Justice Brandeis to tell the latter that the administration's bill would be published the next day, Brandeis said it was a great mistake and that all FDR had to do “was wait a little while” (297). We are not told why it was a mistake, nor how a little wait would have made any difference. Elsewhere, in discussing the likely outcome of the 1936 presidential election and the possibility of a Republican victory, Shesol refers to the results of a Literary Digest poll, “well praised for its accuracy” (237). In fact, the poll was conducted by telephone, at a time when the majority of telephone owners were more likely to be wealthy, therefore Republican. Most middle-class Democrats were unlikely to be able to afford a telephone. Therefore the poll's process has often been lambasted, yet the text makes no mention of the criticisms.
Another example of an ill-judged assertion is Shesol's attribution of shock to FDR when told that his nominee for retired Justice Devanter's seat, Alabama senator Hugo Black, was a Ku Klux Klan supporter (514). Many southern Democrats of the time flirted with the KKK. Indeed, California senator William McAdoo fought Al Smith to a standstill at the 1924 Democratic Convention, when a compromise candidate had to be found. McAdoo was a KKK supporter. FDR may have found the issue distasteful but hardly a surprise.
Finally , the book would have benefited from careful pruning. There are so many minutiae that it is difficult to distinguish wheat from chaff. The author's unwillingness to reach firm conclusions on why the court changed direction and supported Second New Deal legislation, and why FDR might have been guilty of hubris in conflating court-packing and public relations, is frustrating. Nevertheless, the book is an interesting and often lively narrative of one of the seminal moments of the FDR presidency.
