by Jeff Shesol. New York: W.W. Norton Press, 2009. 656pp. Hardcover. $27.95. ISBN: 9780393064742.

Reviewed by Christopher Malone, Department of Political Science, Pace University. Email: cmalone [at]


In his State of the Union address on January 27th, 2010, President Barack Obama looked squarely at the six justices of the Supreme Court seated before him and declared, “With due deference to separation of powers, last week, the Supreme Court reversed a century of law to open the floodgates for special interests – including foreign corporations – to spend without limit in our elections.” Immediately Democrats from both the House and Senate rose to their feet in enthusiastic applause. As the camera focused in on the stone-faced justices, Samuel Alito is seen mouthing the words “not true” as the three top Senate Democrats, Harry Reid, Richard Durbin, and Chuck Schumer, hovered behind him with wide smiles on their faces. That outburst prompted Chief Justice John Roberts to respond a month and a half later: “The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering, while the court, according to the requirements of protocol, has to sit there expressionless, I think is very troubling.” Roberts concluded: “To the extent the State of the Union has degenerated into a political pep rally, I’m not sure why we’re there.”

Thus the latest flare up in a long history of skirmishes between presidents, members of Congress, and justices of the Supreme Court – a history that goes back at least to Andrew Jackson’s retort to the 1832 Supreme Court decision WORCESTER v. GEORGIA (31 U.S. 515 1832): “John Marshall has made his decision, now let him enforce it!” Such conflicts are at the core of our constitutional system of separation of powers and checks and balances, and serve to crystallize James Madison’s famous declaration in Federalist #51 that “ambition must be made to counteract ambition.” Indeed, we would be shocked if the three national institutions of American government didn’t butt heads regularly, or even bitterly at times.

Perhaps fittingly, the 2010 State of the Union controversy coincides with the publication of Jeff Shesol’s SUPREME POWER: FRANKLIN ROOSEVELT VS. THE SUPREME COURT. Shesol, a former speechwriter in the Clinton administration and author of MUTUAL CONTEMPT, has provided us with the definitive work to date on certainly the most notorious conflict between a president and the Supreme Court – FDR’s failed effort to “pack” the Court in the spring of 1937. While the story of Roosevelt’s court packing plan is familiar to constitutional scholars and historians, it is most likely not widely known among the lay public. Which makes this book all the more important: Shesol has taken a buried piece of [*137] American history on a highly esoteric topic and transformed it into an easy-to-read tale that unfolds like a thrilling novel.

During Roosevelt’s first term, the Supreme Court struck down key parts of his New Deal legislation, including the National Industrial Recovery Act in SCHECHTER POULTRY CORP. v. UNITED STATES (295 U.S. 495 1935), and the Agricultural Adjustment Act in U.S. v. BUTLER (297 U.S. 1 1936). In the summer of 1936, the Court also announced in MOREHEAD v. NEW YORK STATE ex rel. TIPALDO (298 U.S. 587 1936) that New York state’s minimum wage laws were unconstitutional. In each of these cases, the Court relied on various precedents – most stemming from the “liberty of contract” doctrine set forth in LOCHNER v. NEW YORK (198 U.S. 45 1905) – to argue that state and national governments had exceeded their authority to regulate commerce. On the eve of his bid for reelection in 1936, Roosevelt feared that most of the rest of the New Deal (the Wagner Act and the Social Security Act foremost) was now in jeopardy.

Nonetheless, FDR won in a landslide that fall and brought with him an even larger Democratic majority. After a much needed vacation, Roosevelt then plotted with his staff and his allies in Congress to do something about the Nine Old Men. Shesol meticulously recounts the genesis and development of each of the proposed schemes to curb judicial power. Most surprising, perhaps, were the efforts at constructing a constitutional amendment aimed at restricting judicial review of Congress – an act that would essentially eviscerate the powers of the judiciary. By February 1937, Roosevelt had decided on a plan: he would ask for legislation that sought to expand the Court by one member for every justice over the age of 70, for a total of six new justices. Roosevelt argued that the Court was overworked, and fresh blood would help to clear the docket of pending cases. Of course, no one really believed him – not Roosevelt’s allies, not his opponents, and not the general public. In fact, Roosevelt himself never consistently stuck to his own argument; within weeks of his announcement, Roosevelt was advocating for the court packing plan on purely ideological grounds.

In fascinating detail, Shesol explores the major players in this 136-day battle between the executive, legislative, and judicial branches, stopping to provide crucial biographical information on the principles in the conflict or offering insights from diaries and personal letters. By late spring, as support for the court packing plan waned in Roosevelt’s own party, we witness a proud and stubborn FDR unwilling to accept the inevitable, pushing his staff and allies in the Senate to the breaking point. The plan even causes a serious rupture between Roosevelt and his vice president, John Nance Garner, who in the midst of the furor leaves rather abruptly for a fishing vacation in his home state of Texas. He returns only upon learning of the sudden death of Senate Majority Leader Joe Robinson who had led the fight for FDR’s plan. Garner returns to Washington to take up the “cause” of the reform bill in the Senate – and ends up driving the last nail in its coffin.

Just as the wheels were coming off of Roosevelt’s legislation in Congress, a [*138] surprising thing occurs across the street in the chambers of the Supreme Court: a series of 5-4 decisions are announced that uphold crucial elements of the New Deal. On March 29th, 1937, the Court held in WEST COAST HOTEL v. PARRISH (300 U.S. 379 1937) that Washington state’s minimum wage law for women was constitutional, undoing the TIPALDO decision handed down a year earlier and overturning the Court’s landmark ADKINS v. CHILDREN’S HOSPITAL (261 U.S. 525 1923). Several more victories for Roosevelt follow, and by the time the 1936-1937 term ends, the Supreme Court had upheld New Deal legislation no fewer than sixteen times without overturning one law. At the center of the maelstrom stood Justice Owen Roberts, who provided the crucial fifth vote in many of these cases and appeared to have reversed himself once Roosevelt threatened to pack the court. Yet, as Shesol recounts, Roberts had voted to uphold the minimum wage law in PARRISH before Roosevelt made his scheme public. Contrary to opinion at the time, this was not the “switch in time that saved the nine.” Further, Roberts himself argued years after the controversy that his decision in PARRISH was constitutionally consistent with his vote in TIPALDO. In his own mind he had not in fact reversed himself for political or other reasons.

Though Shesol writes with a lay audience in mind, SUPREME POWER nonetheless raises many constitutional, legal, and theoretical questions that professors of law and political scientists should find useful in their classes. The first centers on the difficult question of how much power the Supreme Court really does have in our constitutional system. In Federalist 78, Alexander Hamilton argued that the courts were “the least dangerous branch” simply because they had none of the formidable powers granted to the executive (the power of the “sword”) or legislature (power of the “purse”). Hamilton, perhaps wryly, contended there that courts have nothing more than the power of “judgment.” Courts cannot enforce laws and justices should not “legislate” from the bench. In his majority opinion in U.S. v. BUTLER, Justice Roberts echoed this sentiment emphatically while striking down the Agricultural Adjustment Act: “All the court does, or can do, is to announce its considered judgment upon the question. The only power it has, if such it may be called, is the power of judgment. This court neither approves nor condemns any legislative policy” (p.183). And yet, the power of judgment is as potent a power as any granted in the Constitution. On several occasions, Shesol quotes Chief Justice Hughes when he was governor of New York: “We are under a Constitution, but the Constitution is what the judges say it is” (p.171). The Constitution says what it says, but the Court tells us what it means. We abide whether we like the decision or not.

But how does the Court decide what the Constitution means? Especially when urgent action is required amid a national crisis? Should the Constitution’s meaning change over time? SUPREME POWER offers a fascinating look into the problem of judicial interpretation, and thereby provides us with a second set of questions worth exploring. Behind Roosevelt’s plan, however ill-conceived and poorly executed, was the fundamental belief that the Supreme [*139] Court’s decisions were a “barrier to social progress” (p.404). According to FDR, the Court held fast to a constitutional interpretation ill-equipped to meet the demands of twentieth-century, industrialized America. Time and again Shesol points to comments by Roosevelt or his Attorney General Homer Cummings which indicate that the Court’s blindness to a muscular interpretation of the government’s commerce powers was a result of the inability to comprehend the very concept of the “living Constitution.” So what should guide justices in their deliberation? Original intent? Precedent? Here we return once again to Justice Roberts, whom Shesol quotes at the very end of the book:

It is, in the end, impossible to know what sways a judge. Even the judges themselves do not always know whether their decisions are driven, in the main, by doctrine or emotion, by the dictates of law or politics or conscience. “Who knows what causes a judge to decide as he does?” [Justice] Roberts once shrugged, reflecting on PARRISH. “Maybe,” he joked, “the breakfast he had has something to do with it.” (p.516)

A third set of questions which runs through SUPREME POWER fasten on the problem of checks and balances. No matter how the justices of the Supreme Court decide what they decide, they ultimately tell the other branches what is constitutional and what is not. Faced with that reality, what powers do presidents and Congresses have to check judicial power once a decision has been handed down? Especially if it derails their political agenda? The answer from SUPREME POWER is: relatively few. Roosevelt and his staff explored just about every one of them – from a series of proposed constitutional amendments restricting the powers of judicial review, to several legislative proposals that would either mandate retirement or alter the ideological balance of the Court by increasing the number of justices. The fact that none of these proved successful is as much a testament to the limits the “political branches” have on judicial power as it is to the clumsy way Roosevelt’s court packing plan made its way over the public airwaves and through Congress.

And yet in the end, Roosevelt got what he wanted: the Hughes Court began to rule in his favor after he turned up the heat. By the end of the Court’s 1937 term, judicial interpretation of the interstate commerce clause had been completely transformed. This fact points to a last set of questions at the core of this excellent book: in the end, SUPREME POWER is a meditation on the Supreme Court’s role in the push and pull of the political process. If Hamilton argued that the courts are the least dangerous branch, he and James Madison also made the case that the courts should be the least “political branch.” But the least political branch does not mean that the Supreme Court is wholly divorced from politics. Roosevelt’s court packing plan drew the Court into the political arena in a way that few events in constitutional history have. After all, here was a popular president, coming off a landslide victory in his reelection bid who knew he had a mandate handed to him through the legitimate mechanisms of democracy. The “unelected” Supreme Court stymied his efforts to give the people what they voted for. Roosevelt had no other choice, to his mind at least, but to simply turn up the political pressure on the members of [*140] the Court. Shesol’s account makes it clear that not one member of the Court greeted Roosevelt’s actions favorably – not even Justices Brandeis, Stone, and Cardozo, the liberal block of the Court who consistently voted to uphold New Deal legislation. Even Roosevelt’s dear friend Felix Frankfurter, who would join the Court several years after the court-packing plan failed, consistently disapproved of Roosevelt’s actions because he felt FDR had dragged the Court through the mud with his plan.

Yet this does not mean that the members of the Court are “apolitical.” In fact, one of the most fascinating elements of Shesol’s account lies in the particular actions of Chief justice Hughes throughout the crisis. As Shesol points out, Hughes had been working behind the scenes nearly since the moment Roosevelt announced his plan to counter the narrative that the Court had fallen behind on its work. On March 21st, as the Senate Judiciary Committee began hearing testimony on the plan, Hughes sent a letter to Roosevelt’s foe, Senator Burt Wheeler, who surprised everyone in the hearing room and beyond by reading it aloud before the committee. Point by point, Hughes refuted Roosevelt’s assertions about the Court’s incapacity. It was a political masterstroke, and it signaled the beginning of the end of the court packing plan.

This brings us back to Chief Justice John Roberts’ comment about whether justices of the Supreme Court should be present at the “political pep rally,” better known as the State of the Union address. If Chief Justice Hughes were summoned to provide Chief Justice Roberts with some advice, he would probably say: don’t have such a thin skin, John. At least Obama is not threatening to pack your court. More importantly, we justices of the Supreme Court don’t make decisions in a vacuum. Yes, we judges get to decide what the Constitution says. The power of judgment will always have political consequences. If I was able to handle FDR, I’m sure you will be just fine.

Alexander Hamilton, John Jay, James Madison. 1961. THE FEDERALIST PAPERS, ed. Clinton Rossiter. New York: New American Library.

ADKINS v. CHILDREN’S HOSPITAL, 261 U.S. 525 (1923).
LOCHNER v. NEW YORK (198 U.S. 45 1905).
MOREHEAD v. NEW YORK STATE ex rel. TIPALDO (298 U.S. 587 1936).
U.S. v. BUTLER (297 U.S. 1 1936).
WEST COAST HOTEL v. PARRISH (300 U.S. 379 1937).
WORCESTER v. GEORGIA (31 U.S. 515 1832).

© Copyright 2010 by the author, Christopher Malone.