Books Update: August 2021
Supreme Power: Franklin Roosevelt vs. the Supreme Court (Jeff Shesol, 2010)
A comprehensive timeline of Roosevelt’s bid for control of the Supreme Court, starting with grumblings in his first presidential campaign. The push and pull between New Deal reforms and judicial review was taught in my US History class in a few paragraphs, but I never got a sense of how sweeping the changes were, adding codes into every industry, Social Security, railroads, loan forgiveness, and the understood federal powers.
The initial test cases of the New Deal performed well. The Supreme Court affirmed that the government has additional powers during emergencies to suspend foreclosures, which today factors into pandemic eviction bans. Eventually there were so many court challenges, FDR and supporters viewed the Recovery Act as effectively dead; it was an emergency measure which could now be reworked using different constitutional mechanisms or arguments. Similarly the Attorney General was reluctant to defend the constitutionality of a tax in the Agricultural Adjustment Act and planned to propose an alternative.
The known political differences between FDR and the conservative majority on the Supreme Court became a crisis with the Schechter Poultry (9–0) and Butler (6–3) cases where the Court ruled not just to stop the Recovery Act and AAA, but to limit Congress’s regulatory powers to very strict definitions of ‘interstate commerce’ and ‘general welfare’. States were limited too by Tipaldo — which overturned a New York minimum wage law. The New Deal programs and workers’ rights were overwhelming popular, so the Supreme Court’s movements angered many voters.
FDR gambled that this anger could be converted into public support for reducing the Court’s powers. He hinted at a plan through Fireside Chats and op-eds. For years there were draft amendments circulating to add judges, set term limits or age limits, or require a 2/3 or unanimous decision to overturn laws. Privately FDR suggested that Marbury v. Madison could just be undone, but publicly his administration cooked up a bill (not an amendment) to add a new justice whenever a current justice turned 70, supposedly to lighten the justices’ workload.
The book does a good job of explaining the muted and confused reactions that made the proposal fall flat. For a president known for fireside chats and sweeping changes this bill came off as too wonkish and unrelatable. For top Democrats in Congress it was insulting that FDR sent the bill over their own amendments and Court reforms. The diminished Republican party and Supreme Court decided tactically to reserve comment, and watch public support and attention fail to materialize. Radio networks failed to bait the Chief Justice to make a public address.
A more conservative / libertarian faction, which was already accusing FDR of dictatorship, helped frame the bill as a runaround of the Constitution. One of their main speakers was former president Hoover. I thought it was interesting how despite badly handling the Depression and losing an election, Hoover did not disappear as an ex-president, but wrote books criticizing FDR and seriously considered a new run for President.
While FDR was searching for Congressional support, the Supreme Court deescalated, ending the next session with rulings in favor of Social Security, and minimum wage law. A guarantee of retirement pay led Justice Van Devanter to retire. The crisis appeared to be ending, so the calls to action were faltering. FDR had promised the first Supreme Court nomination to Senate Majority Leader Joe Robinson, but instead he stalled and used the situation to push Robinson to bring a revived bill to the Senate floor, angling for multiple seats on the Court. Under the new plan, justices could be appointed whenever a justice reached 75, but their role was now temporary, and the president was limited to one appointment per year. Sadly, Robinson died of a heart attack amid a Senate filibuster, and the revived bill returned to committee.
This was a long read, but I could see it becoming super-relevant to predict what might happen if the Biden administration makes a play for changing the Supreme Court (Similar amendments? Calling the Justices to testify in committee (threatened, but not tried during FDR’s day)?).
I had said Separate was too biographical about lawyers and justices personal histories, so I should endorse Supreme Power for eschewing that — FDR and the administration travel through a crisis, leaving World War II and much of FDR’s earlier career as governor on the cutting room floor. Eleanor Roosevelt does not appear much, beyond advising FDR on public opinion. This framing leaves room for detailed letters, meetings, retreats and fundraisers, and infighting as we follow the plot — it’s the closest that I’ve seen history reported on like a modern New Yorker political piece.
Instead of moving to light reading, I have another Supreme Court book Wild Bill up on my todo list before I leave Alaska.
An Atlas of Extinct Countries: The Remarkable (and Occasionally Ridiculous) Stories of 48 Nations that Fell off the Map (Gideon Defoe, 2020)
This had been on my reading list until I snapped this up at Arundel Books in Seattle. There are about 150 pages with usually three short pages per nation. This makes it a good format if you are traveling across the country and waiting in lines, picking it up and putting it down all the time. Less engaging if you are reading it through.
The author pokes fun at virtually all of the obscure, self-declared countries, and has a careful perspective about the Western- and colonizer-centric nature of their rise and fall. It does not include the modern declared ‘micro-nations’ of sea platforms, tax scams, and the like. The collection of stories was unclear, especially including East Germany, Yugoslavia, Crimea, independent Texas, and the Belgian Congo alongside nations invented by scam artists.
I wonder whether to appreciate this book for what it is — quick clips of history, or a gift for your family poli sci kid — or imagine what it could be if more collected and detailed.