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tv   The Presidency FDR the Supreme Court  CSPAN  November 24, 2021 7:01am-8:02am EST

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c-span.org/history. >> hello. welcome to another edition of at home with roosevelts. i'm paul sparrow, the director of the franklin roosevelt presidential library in hyde park, new york, and we're recording this story on september 17th which is
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constitution day. what better way to celebrate constitution day than to talk about the supreme court with two outstanding experts on the subject. no president had a more significant impact on the supreme court than the, the dr -- fdr. he appointed eight9 justices during his administration. he helped change american democracy. he got to appoint no justices during his first term. the role of the supreme court has changed over the years and certainly plays a central role in our political process. but headache no mistakes -- make no mistakes, the court has always been political. joining he today is john -- at st. johns university and fellow at the robert h. jackson center. he's the biographer of justice -- [inaudible] and editor of jackson's
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acclaimed 2003 posthumous book, quote, that man: an insider's portrait of franklin d. roosevelt, the last new deal insider's memoir. also with us, paul blumenthal, former new york times reporter and continues to be a periodic contributor of the times. the author of five books including "the believer" about the harvard psychiatrist john mack who investigated u if fos -- ufos and alien encounters. we'll talk about this in a minute. we'll starlet with professor if barrett. -- start with professor barrett. give us a little bit of your background, specifically your work on justice robert jackson. >> thank you, paul, for this opportunity and really the privilege to be at the roosevelt library and homestead in every sense except actual. the path that led he to all of this us -- was really being a
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lawyer at first. i worked in the bureau of investigations for about seven years and then became a law professor. among hi areas, public life, public figures, legal ethics and constitutional law. and sort of a converging on the supreme court and the people on the court. and robert jackson in particular, someone who was in roosevelt's cabinet as attorney general, was confirmed by the senate through roosevelt appointments to five separate jobs in a very short run of years, became my big project. and for our topic, it matters that jackson was an assistant attorney general in 1937, a principal witness defending the president's court-packing plan and then the solicitor general who argued in defense of new deal laws' constitutionality before the supreme court. so it's the jackson path that brought me into this roosevelt world ask court packing, court
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reform as a topic. >> jackson was also, of course, part of the nuremberg trials which we can talk about separately. so president roosevelt, give us a little bit about your background both as a reporter and as a -- of the library's collection. one of the key members of fkr's administration -- fdr's administration. >> thank you, paul. i really appreciate being on with you and john. in hi capacity, i supervise our archives collection in the library in which we have a collection of papers of -- [inaudible] who was a hebb of the brownwell committee that really reorganized the executive branch for fdr. and that came up, actually, right in the middle of the court-packing fight. so that's interesting. i also was at "the new york times" for 45 years, and one of my happiest stories, actually, was being up at the roosevelt
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hohmann library in 2001 when it was renovated. and also i've written at the times a lot about the holocaust and, of course, about jackson's being prosecutor at nuremberg and the prosecution of the gnats i city criminals -- nazi criminals. anyway, and i should say that i came into this subject through a book called the 168 days which is a virtual diary of the court-packing controversy co-written by -- the. [inaudible] who was hanging editor of "the new york times" -- manage editor of "the new york times" when i started there. it's a wonderful account, not completely unbiased as we can discuss, of the day-to-day struggles back and forth, you know, over the court-packing controversy. so it's a privilege to be here.
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>> i'm glad to have you here. and for those who don't know, tom cottage is a home that fdr built in hyde park here during the late 1930s that he planned to move into and live in after he left the presidency. and it's one of the first houses in america that was designed to accommodate a handicap person, wheelchairs. the doors and windows, the handles had certain kind of levers. it's only open part of the time, but it's part of the national park service up here. they have the roosevelt home and eleanor's -- [inaudible] tom cottage and the vanderbilt mansion. so if think about's coming up to hudson valley, make sure you stop here and visit it. so let's talk about fdr's court-packing scheme. so, john, we'll start, what were the circumstances that head fdr so frustrated with the court?
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and talk about why did he try are, what did he try to do to change it? >> well, i think you have to go back a little bit before his presidency and remember that we're in the great depression. the stock market crash in the tall of 1929. concern in the fall of 1929. and coincidentally, during that term president herbert hoover had three supreme court appointment opportunities. and he made great appointments. no denying that. and it's the luck of the draw whether a president gets vacancies and the chance -- president trump got three, president hoover had three. franklin roosevelt elected in 1932, inaugurated in '33. during that first four-year term got zero, as you mentioned, paul. he had a supermajority in both the house and the senate, and there was an attack of legislation on the problems of the depression. the volunteerism of the hoover area was replaced by the new deal.
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and the new deal ran into a supreme court roadblock. in the course of that four-year term, not only did roosevelt have no chance to appoint justices, but the nine who were there struck down major reform relief laws. this is a quick laundry list, the national industrial recovery act, the railroad retirement act, section three of the national recovery act, the frazier-lemke act, the tax component of the agricultural adjustment act, the coal conservation act, the amendments to the bankruptcy law and a state new york minimum wage law that was kind of state-level counterpart progressive effort. so roosevelt was the popular, powerful and democratically-responsive president, and the supreme court was a tremendous obstacle. and so reelected overwhelmingly in 1936, he decided to use his political capital on his supreme
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court problem. >> what did he do? what was his strategy? what was he trying to accomplish here? >> well, he took it very personally, actually. he had this dream of, that the supreme court would cooperate with him in getting his programs through, his new deal program. now, maybe john can help me understand and our listeners whether roosevelt was being disingenuous or whether he really believed that the separation of powers didn't apply to him. because the idea that, you know, that he would -- as he came up with the idea, appoint six new justices and he would cooperate with them or they would cooperate with him in getting his program through is, you know, insane to our way of thinking today. so it's a mystery to me, you know, how much he believed, you know, that he could really merge these two branches of government. but what happened is he got, he was really smarting urn these re-- under these rejections
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although the court overturning of the nra actually probably helped him in that respect because it was so unpopular. but anyway, but he was resolved. and this is really unlike him with his perfect temperament and his great sense of timing, you know, his wonderful way of reading the country. he kind of lost it. and he decided to put all his chips on this plan to change the court. and there were several, there were four actual proposals given to him by homer cummings, his attorney general. one was a constitutional amendment which would be very difficult. one was statutory to change the jurisdiction of the court. and there were, you know, various ways of tipg therring. ask the -- tinkering. and the last one was to add a provision that whenever a justice reached 70, he or she -- in those days he, no she -- would have to step down or roosevelt could appoint somebody to take his place.
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so that was his plan, and he somehow got convinced that this was doable. and as john said, i mean, he had this wonderful supermajority, he had coasted in with 27,000 votes, a huge majority in 1936, so he had every reason to think that the country was just waiting and that this would be welcomed and, of course, it was not. >> well, i -- a little context here. so the 1936 presidential election, as you mixed, was the -- mentioned, was the largest electoral landslide in american political history. and i want to think that fdr had just an extraordinary political instinct that had gotten him to where he was. the fact that he was elected and then reelected in a wheelchair is simply incredible on every level. during one of the darkest times in hearn history.
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i'd also like to point out he made three of his biggest headaches during that period after the landslide victory. he decided to try to pack the court, he decided he was going to primary the conservative southern democrats -- legislation in congress, and he cut the budget leading to the roosevelt recession of 1937. so he, as you said, he lost it. think he was so enthralled with his own success and popularity that he tried to do things that were way off path of what the hearn public wanted. the american public wanted. john, talk a little bit about what the reaction was when he put this forward. even his own party had trouble supporting him in this court-acting scheme. >> yeah. the constitution does not prescribe a -- for the supreme court. it's a creature of statute. and originally the court was six, it went down to five. it oscillate ared around in the 19th century. but since the 1870s we've had
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a nine-member court. and so it's now about 60 years of the country being used to nine. as if it's etched this marble. in marble. and i think that's a visceral source of the reaction. trying to somehow in one fell swoop potentially grow the court to 15 and, of course, fill it with like-minded new dealers was somehow un-american even though it's not unconstitution a. and it opened up some of the fault lines in the democratic party. there were old barons who were the committee chairmen, and there were southern segregationists who were part of this coalition that roosevelt was trying to hold together. and the court as a target was not such a publicly notoriously evil institution. especially the way roosevelt spun it out. he claimed in the announcement that justices were so far behind on their work, there was a pile of unaddressed certiorari
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opinions which is, of course, jargon and wasn't true. he also claimed that justices no longer had their fastball, and that was a hard thing to claim about louis brandeis. and so that sort of spin hit a wall of hostility. and it immediately became controversial. now, roosevelt did try to recalibrate, and robert jackson was one of the people who told them you need to start telling the truth about this. it's not about age, it's not about backlog, it's about interpretations that particularly the foremost conservative jobs have poured into the constitution. they've read congress' power to regulate interstate commerce, you know, too narrowly. and they've read states' powers to protect social welfare and use their police powers much too restrictively. this is about the court putting itself and its political preferences in the place of the proper understanding of the
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constitution. and so democracy and should respond by can and should respond by appointing more straight shooters. i would even say more conservative justices in terms of constitutional interpretation than these four horsemen radicals who were roosevelt's problem. >> you know what i found interesting, if i could just jump in here, this was dead in the water from the beginning. it might have seemed it would be because, you know, vice president garner came out of the meeting holding his nose, going like this. but i think he had a shot, a good shot, at getting this through because of all the reasons we mentioned; his popularity, his, you know, election landslide, etc. but through a series of almost, you know, biblical greek, whatever you want to call it, missteps, he just succeeded in sabotaging himself, roosevelt. so even though it was not a
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popular thing to, you know, change the third branch of government, it could have been done, it seems to me, the it had been handled differently. >> and it's not just self-sabotage. there are external events. there are a couple of things that sort of happened in that first 30, 40 days. announcement of the plan in february. by early march the senate hearings are starting. the supreme court justices send a letter to the chairman of the committee that basically says we're current on our work. so they blow up the cover story. but then the supreme court in mid march starts to hand down decisions upholding new deal laws. all of a sudden this supreme court problem is receding. a state minimum wage is upheld, the national labor relations act is upheld. social security is argued that spring by robert jackson and charles la zahn sky, and its constitution toally is upheld. so that kind of confluence of events, i think, really made it much less necessary to do something dramatic. >> and, of course, that change
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in some of their decisions led to one of the great catch phrases of the supreme court history which is a switch in time saves nine, right? you want to explain that, ralph? >> i mean, roosevelt, as i made a note in my notes here, he wouldn't take question for an answer. the court went out of its way -- i don't know whether they designed their decisions in order to placate him? i mean, that's a good question. whether it was by design or whether they saw the light and realized they had to uphold these programs. for whatever reason, the court started to give him what he wanted, and they basically -- i don't know if you want to use this image, but dug his grave for him. but he didn't have to. and he just, i mean, it really is amazing how he missed all these signals and just plowed ahead. heft determined to -- he was determined to remake that court to put on the six justices or up to six to carry through his
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programs. but it's just astounding. and i think there's sort of still a political mystery because the book that i referenced, he and allsop interviewed everybody but the president, is so we don't know. i mean, i don't know how much -- maybe john knows, you know, in roosevelt's own writing and what has come out in his papers about what a his thinking was about why he wouldn't take yes for an answer. >> oh, he was much too careful to leave a paper trail on that, on anything. [laughter] >> we have a question from the audience, from carr hello, i hope i pronounced that right. she asked, how do we know court packing was unpopular outside of the conservative voices of the court? did average americans in the 1930s depression have a strong opinion on the court? >> the constituencies of roosevelt, the farmers and labor and the liberals, all turned
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against it pretty quickly. so he lost his natural constituency. so it was not popular from the beginning. it's interesting, he thought, obviously, roosevelt thought that it might be, which is why he embarked on it. but he started losing his natural allies from the beginning. am i right on that, john? >> no, i think that's correct. and look at the mail bags, some of which is archived there -- >> yeah. millions of letters. >> right. i mean, you can measure page by page the lick reaction, and a lot of -- the public reaction, and a lot of it is very critical. and you can look at the congressional committee votes, and ultimately, the senate committee report rejects the first version of the proposed bill. but as the urgency is receding in the springtime, the president does pull back, and this is a second version that would have only expanded the court by two seats that, you know, i think he -- one if that had been pushed through to a vote. he kind of had a deal with the
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senate majority leader, senator joseph robinson from arkansas, who was going to get that over the finish line and roosevelt, francly, had promised -- frankly, had promised him one of the two seats. roosevelt was making nice at a picnic early that summer, and robinson dropped dead right after the fourth of july. and at that point, you know, one more development, another justice had announced that he was resign ising, so roosevelt finally had a vacancy to fill. so at that point just none of it is the worth more trouble. we can live with nine, and you can see the dominoes. stanley reid, felix frankfurter and william o. douglas, frank murphy the next year, robert jackson and james burns the next year, and those eight roosevelt a appointees are just, you know, one after another in the wings starting in the summer of '37. >> and there were so many opportunities for him to compromise, and they came to him -- not so much cummings he
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was a true believer, his attorney general, but others came to him repeatedly with -- [inaudible] wheeler from montana, with offers to compromise, and he just wouldn't have it. i mean, he was dead set on moving ahead. you wouldn't even recognize the reality -- he wouldn't even recognize the reality of what was happening. his own allies were coming to him with stories of what was going on out there and how he was losing, you know, support in his constituencies. but he was very bullheaded in that, and it is extraordinary, again, with his sense of timing we created him with and his exquisite sensitivity to political winds, he just was dead set on this. >> there's a little kernel in in that i think is maybe an explanation of this. homer cummings, the attorney general, was really the draftsman of this. and art of the problem on the supreme court was justice james
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mcif reynolds. he was one of the four horsemen. he was a wilson appointee. he was in the wilson administration with fdr. and as attorney general, mcreynolds had drafted, in effect, a court-packing plan. when cummings found that and told it to roosevelt, they both thought it was just such an incredibly wonderful, karmic thing to take on mcreynolds with the mcreynolds proposal, if you will, that i think they got too attached to the idea, and that kind of held their enthusiasm in february and march and into the springtime before, finally, recalibration starts. >> so we've got another question here. from hi wife, she wants to know what determines how many justices can be on court? if does congress have the power to change that number, and can they change it down? as you said earlier, it's been five, it's been seven, you know?
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basically -- >> that is entirely a statutory matter. it's an ex-judiciary act, if you will. it could create a supreme court seat, or the one became vacant, it could abolish one. i don't think a law could abolish a sitting justice. the constitution protects against that. and also in older history and in recent history we've seen that the senate has the power to sit on a nomination -- [inaudible conversations] >> that happened urn president andrew johnson and, of course, under president obama for a stretch in 2016. >> and also congress has the our to limit the jurisdiction of the court. i mean, it could say that the court would need a supermajority to overrule any decisions or, i mean, they could tinker with the mandate of the court in so many different ways which is interesting. we think somehow that's protected in the constitution, but it's not. so congress could have not only changed the number of justices, but reorganized their
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responsibilities. >> i want to go back to something that john was talking about which was this -- in the second administration, second term of the administration, the disappointment of eight justices. i'm going to ask you a difficult question. who's your favorite child, of those eight, who do you think was the most significant appointment that he made in terms of changing the court and changing america? >> john, to you first. [laughter] >> i've got a bias, but it's, i think, well founded in favor of robert jackson who i think was a special, an incredible talent, a beautiful pen, probably the best writer in the court's history and a case-by-case jurist. it turned out to be quite a fractious court, this roosevelt court that began in the late '30s and lived on through the 1950s. and jackson was kind of more on
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the conservative side but in the middle, if you will, and much more a case at a time person. so he's a dissenter in the japanese-hearn exclusive -- american exclusion case, core hat sue. -- core mats sue. in terms of significance, i really think maybe hugo black because he broke the ice. you know, that really started the flow and, of course, black served until 1971, a long and wished career. perhaps to overcome the stigma of having been a ku klux klan hebb and that coming out -- member and that comes out just after he's appointed to the court undeniably, he charted an egalitarian path to our constitutional law. and by the late 1940s, really was becoming the leading civil liberties justice. and was that for most of the rest of his career. so i think he's also very important. but i have two children. i don't pick favorite children.
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i look at these justices and think really it is an all-star team. it is quite a talented roster with almost no exception. >> ralph, put your money on it, ralph. >> i would say black also. it is interesting that roosevelt claimed later and probably true, he was blindsided. he didn't really do his homework on black and his klan membership, although it ended up pretty irrelevant based on the direction he took on the court. but, you know, it was also interesting that there was this deal to appoint joe robinson to the vacancy after -- retired. and robinson, of course, was carrying the president's water all through the court-packing case. he was the senate majority leader who literally worked himself to death and died before he could be appointed to the court. roosevelt had turned on him, and he was afraid that as a southerner he wouldn't carry through his liberal agenda. so he left robinson hanging and really a very sad episode in
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history. and robinson, i found out his best friend was bernard baruch. i didn't know that. >> the -- tower's named after him, isn't it? >> that's where i work. ask, of course, being a famous financial adviser to fdr. but it is strange that just, you know, the way things turned. the whole thing could have been settled long before it went down to defeat if the plan had been carried through the. roosevelt was going to appoint rob. enson -- robinson to compromise, maybe appoint two justices, not go for the full six. but as i keep coming back to this, he was adamant that he was going to have it his way or the highway. >> paul, i have two more quick comments about the appointees. i want to flag felix frankfurter
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because he was, of course, brilliant -- >> my personal favorite. >> -- and sort of in his career stood, i think, most closely to the judicial restraint model that actually the court-packing proposal is about. our policies in our country should, by and large, be made by our elected representatives, and it's the supreme court's job to get out of the way of a government, the national government and also state government had ample powers this our system. and so frankfurter is the kind of through line and also just a charming ask fascinating character. -- and fascinating character. the other person that i think we all forget is that roosevelt elevated harlan stone to be chief justice. he was already a justice, he was a coolidge appointee in the 1920s, and roosevelt did that in the summer of 1941 as a sort of bipartisan, nonpolitical move. and that's a lost art.
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that was a great thing that the president -- >> he's a member of the liberal minority though, budget he? >> he was not one of the four horsemen. >> right. and interesting, frankfurter actually opposed the court-packing plan, right? i mean, he was -- >> in his private heart. he held it and did not do anything publicly. >> roosevelt became very frustrated with frankfurter. so we're going to go back this time for a minute, and then we're going to come up to the present day. so i want to go back and talk about why the supreme court has this power to determine what's a constitutional law and what's not. and it really goes back to the very founding days, the early 1800s, with a rather extraordinary legal case of marbury v. madison. and we'll start with you, ralph, talk a little bit about this and why this lays the foundation that basically said, well, the supreme court gets the final
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say. >> was that to me? >> yes. >> well, marbury v. madison established the right of the supreme court to rule on all legal matters in the government, and it's not in the constitution. it's from our -- [inaudible] and later on it was deemed worthwhile in terms of balance of powers. without that, the court would have been really a weak sister to the other two branches. so it's an interesting example of how the founding fathers hadn't thought of that, but once the court came up with it, everybody said this is a good idea, the court should have that power. so, and it became, you know, ingrained in our system, and today we can't think of, you know, what it would be like without it. so it really is a great example of how the constitution actually is a living document. i mean, it just added this element that it had never had in the beginning, and everybody said that's a good idea.
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>> there is in marbury a sort of logic that gets them to the assertion of the power to engage in judicial review. the court has to decide cases, it decides cases that arise under the constitution, sometimes a provision of the constitution might be this conflict with a statute. deciding the case means decides which of those carries the day. and so the answer is that the constitution defeats the statute if the court strikes down an unconstitutional statute in the context of a case. that power of judicial review though is different than that answer becoming the authoritative last word. >> right. >> in other words, judicial review becoming judicial supremacy. and i think that process is something that we all sort of wrestle with because what the court-packing plan was pushing back on was judicial supremacy being asserted over new deal laws in the early 1930s. >> right. >> robert jackson wrote a book called "the struggle for
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judicial supremacy" published in 1940 which is about, historically, the supreme court as an institution inflates itself as big as it can get away with, as we will let it get away with, and marbury was the start, and we have kind of admired the craft and let that grow too big. and at other times, we've you shoulded back -- 1937 and court packing is one, individual restraint by justices is another and proposals for court reform today, you know, obviously would be in that vein. >> so we've got some good questions coming in here now, and, please, if you have a question, just put it in the chat. joanne morris, she wants to know what argument is given for increasing the court from six to nine in the first place, and when and who did this? and did they face similar opposition? >> that's a great question. >> yeah, it wasn't in one fell swoop. but generally, it relates to the structure of the creation of the lower federal courts. so as the number of circuit
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courts grew, a corresponding supreme court justice because of the circuit-writing responsibilities largely explains the early growth in the oscillation because those circuit panels were a justice visiting and writing and joining in the circuit court activities. and then i think it's workload-driven as there's more and more cases coming within the jurisdiction of the case. i'm sure the supreme court was communicating to the congress, we could use another guy up here. and so laws grow the size of the court. and so, you know, that's largely what got us to nine. >> less political and her workload. >> -- more workload. >> i think structural for the judiciary and workload. >> right. >> the political moment is more in the post-civil war, non-filling of vacancies. legal tender case was pending before the supreme court, and basically the congress leapt the
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court shrink rather than let ann crew johnson throw the -- grow the court in the wrong direction. >> right. one of the original proposals for reforming the court along with the packing was to designate different districts for each of the justices, right? that they would come from nine different parts of the country and all that and actually trying to -- roosevelt was trying to think of two people. wasn't robinson from one of the places, arkansas? somebody came from a distinct place as another justice, so he had to be ruled out. but that was one of the ideas, to try to get the justices picked from different parts of the country. >> we have a question from princess michelle. your highness. do you have any information about how president roosevelt celebrated thanksgiving? my how many and dad were born here during that time, they joined the holiday -- i can
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answer a little bit of this which is for years fdr would celebrate thanksgiving in warm springs, georgia, at the rehabilitation center for polio that he created down there. he bought this rundown spa and turned it into a rehabilitation center. he would go down there every thanksgiving and send time -- [inaudible] in the mid 1920s. so he went there for quite a while before he became president. but even as president he would go down there. he could drop his act, and he could let people though that he was crippled and handicapped, and he would swim in the pool down there. they called him doc roosevelt. it was a tradition that really meant a great deal to him. so good question. >> that image from photographs is the first thing that came to mind when i heard the question. the other thing that that i know but not in detail is that the date of thanksgiving, the sort of -- that particular thursday
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was standardized under roos vel. roosevelt. so it head it her of a national holiday -- held it more of a national holiday. >> well, it was standardized because he made it a controversy. the retail industry asked him to move it up earlier so there was a longer time for people to buy things. so he moved it, and there was such an outcry, he had to move it back. >> you mentioned his polio. we should not let -- >> oh, we lost ralph. >> technical wizardry. ralph, we've lost -- are you back? okay, go ahead. >> how's that? this is the anniversary of fdr's polio in 1921. and that, of course, made him, you know, the great leader he was. it gave him the empathy, it gave him the strength, the power to overcome, you know, adversity,
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skills that kind of, you know, he abandoned -- [laughter] or that abandoned him during the court-packing thing. i mean, the empathy, his wisdom. he was left with his strength which, of course, he had in excess if, maybe too much in this case. but it is interesting that this is an important anniversary, how history would have been different. he may never have developed into the leader he was if he hasn'ted had that -- hadn't had that adversity to battle against. >> i absolutely believe that. we have a great question from christopher. would james hepburn's appointment roosevelt's way to pay him back for not taking him on as vice vice president? political history as well as court history. he was planning to run against roosevelt as well. any comments on that? >> yeah, i'm not sure how explicit that was. i mean, it's 1941, so it's after
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1940 has occurred and it's over and done, and i'm not sure what senator burns would have cone to a third-term president -- done to a third-term president. they actually had a fine relationship. roosevelt had a high regard for his talent not only because he put him on the court, but a year later when burns, frankly, hated the job anyway, roosevelt brought him into the white house to basically manage the economy during the war. i think temperamentally burns was just an executive branch manager or a legislator way ahead of being a judge. >> right. you agree with that, ralph? >> i'll defer to john here, much more of an expert than i am. >> but it is interesting, the people who ended up being with the president on this court-packing thing and the ones against him, it was a very, very select group that gathered around him, a loyal group, tommy corcoran and others who really stood with him at a time when so many other people were abandoning him, wheeler and
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connolly and others, and garner, of course. so it is interesting that that he had this, you know, small circle of people who -- jackson. i mean, jackson was one of the people who really stood by the president, right, john? >> no, that's right. jackson is that man. his memoir that was never published in his lifetime the, i had the luck to find the hand you script, and the family supported publishing it. he, in about four pages, tells his experience with court packing, and he recounts going over to the white house for a meeting of that inner team in february when this has been announced and it's off to a bumpy start, and jackson's telling the president before you go fishing, before you head out of washington, you really need to sort of have another crack at explaining this because a pile of unaddressed certioraris is really not curing the day. and roosevelt, according to jackson, kind of paused and
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said, yeah, that really is a pretty terrible explanation, isn't it? is. [laughter] and then he went into a fireside chat and started to tell the truth and, you know, it was much more of a political process that had a chance thereafter. >> right. all right. we've got a lot of questions coming in, but i want to jump up, there's a question here from camilla again about the connection between justices and political perspectives and the question is did the 1930s justices have similar controversies, or is this more of ad modern development in terms of overt political connections outside of the court system? we'll start with you, ralph, on that one. >> well, i would say that the joe allsop book, 168 days, really opened my eyes to the poisonous atmosphere in washington then. i had this sort of vision of the new deal as a program that everybody's, you know, subscribed to, roosevelt saved the country.
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and you look back, and we hi our time is, you know -- we think our time is full of strife and political poison. my god, what went on then, the back and government -- back and forth, it's amazing. i don't know how much the court itself took part in that because we don't know, and the book itself says we don't really know what went on behind closed doors at the court. we still don't. but certainly all around the court the atmosphere in washington in those days was more rouse. -- murderous. so in that sense nothing was changed. >> right. but if i'm understanding the question, if she's asking about supreme court appointments and were there poisonous fights in that context, generally, no. the one that, i mean, roosevelt had a big majority in the senate, and he could get his appointees confirmed. that's a fundamental difference from his time to our time. the one who had not failing, the
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you will, but an ugly, ugly whispering campaign around it from the bad side was the nomination of frankfurter in january of 1939. and the anti-semitic reaction to that. and that whole nomination was roosevelt not giving a damn about anti-semitism and, in fact, maybe sort of flicking his chin a bit at adolf hitler by putting america's leading lawyer and prominent american jew on the supreme court. >> yeah. also, you know, the senatorial courtesy in those days was really strong, so if and when roosevelt nominated a senator like hugo black,. [inaudible] because of senatorial courtesy. which i don't know if we'd still have that today. >> it seems highly unlikely, but there is a sense, i think, that many people have today, particularly people who aren't history buffs like we are that,
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you know, this contentious nature of the supreme court is new, this is a new phenomenon. and that it used to be they would just, you know, sit in their black robes and everything was fine. and i always like to point out, have you heard of brown v. board of education. which i think is an interesting thing to look at here because of the connection it has back to the roosevelt court. and there was perhaps no decision in hearn history that has -- in american history that has had -- maybe roe v. wade -- more significant consequences on the way millions of americans live. talk a little bit about brown v. board and how that came about and why it was such a revolutionary decision because it really did take them out of their traditional roles. to you, john, sorry. >> well, that's such a huge question. i mean, the turning point is, obviously, the creation of this country as a slave country with
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our constitution ducking that fundamental moral question as the price of ratifying a unity of slave states and free states. and race through the 19th century and the civil war and the amendments after the war is, you know, our fundamental historical reality, our permanent challenge, our deepest sin, and we won world war ii with a segregated army fighting against, you know, racial supremacy theory opponents. that all came home and had to get sorted out. the dissidents of naziism and imperial japan and coming home and being a racially segregated country is what the naacp attacks and what a court filled with roosevelt appointees, frankfurter, black, jackson, douglas, are the heart of that court, and they begin to deal with it in the 1940s.
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and they're the leading edge. for them, this is not at all a hard question morally or personally. in various ways it's a challenging legal question because the guys who wrote the 14th amendment were segregationists. and, frankly, jimmy burns, who we were talking about earlier, by this point is the governor of south carolina, and he's a segregationist, and a lot of the country is still segregationist. the supreme court, with earl warren's leadership and completing the roster, in a series of decisions worked its way to getting to the equal protection clause. and i think it is our finest moment in constitutional history. >> and you couldn't draw a more clear division between the congress and the court at that time. the congress was controlled by southerners with the seniority system, and, you know, all segregationists, powerful committee chairmen, people who roosevelt, of course, had dealt
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with all through his administrations. and yet here we have a supreme court that's taking a radically, you know, different approach to equality and, you know, the new shape of american society. so if it had been up to congress, we never would have desession regated the schools. -- desession regated the schools. >> yeah. i find it an interesting -- and the other japanese incarceration cases that came up during the roosevelt administration where this idea of protections of american citizenship was essentially thrown out window. and i have to wonder what those conversations were like as you pointed out jackson, of course, dissenting voice in the nonjudicial sense, but the corps hat sue case really, i think, stretched the court this a way that forced it to make a decision because you're in the hid ifst of this war, and you have -- midst of this war and and if you have this sort of fear gripping the country.
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how did that decision come down, and why did they not acknowledge the constitutional rights of american citizens who happen to have japanese ancestorsesome. >> well, they did and they didn't. the court decides the series of japanese-american cases in a kind of slow walk. so the curfew case doesn't get decided until '43, and the exclusion and internment cases don't get decided until late '44 by which point the war in the pacific is far, far, far offshore and approaching japan. you know, through the island-hopping carnage that we were winning. and so the imperative of national security is gone by that time. the courts, the majority fictionalizes that we're still at the time when the president of the army decided that we had a security concern, and the court majority defers to that. national security is, of course, a real thing and a vital thing,
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but it's also something that can be used as a cudgel, and the supreme court, you know, was beaten down by the claim of national security. >> and, you know, you only have to look at the climate in this country after 9/11 to see how enflamed, you know, the society can be by pearl harbor back then and the nerve attacks now more -- 9/11 attacks now more recently, statutes that were passed about militarizing the police and invading, you know, privacy and monitoring the muslim community. i mean, the patriot act. so we don't have to look back that far to understand the mentality of the country after pearl harbor. just look at what happened after 9/11. >> no, i think interesting that the supreme court, again, played a key role there in determining whether the muslim ban, travel bans and things were constitutional. and, you know, again, it found itself in the middle of this
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political tour -- firestorm as it has this so many cases. so when president biden was elected after the three supreme court justices being appointed by trump, there was this movement that he should pack the court and sort of walk us through, we'll start with you, john and then ralph, walk us through what that would mean. how could that even happen in today's political environment and what that process would actually look like today. >> well, that's key qualifier. there are not the votes, and there's not the political priority to do that. the means would be exactly what roosevelt proposed in 1937. it would just be a new law that grows the court. and there is a fair basis to think that the ordinary process was hinted both in 2016 -- manipulated both in 2016 and 2020 after the death of justice scalia and president obama not
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getting to fill that seat and then after the death of justice ginsburg, president trump very promptly being able to fill that seat and those two being consequential appointments that distorted something that, you know, naturally should have been the the other way. president biden, i think very properly, wants to spend no political capital on this anytime soon. he has created a commission that's filled with over 30 very brilliant, largely legal academics who have been talking and studying and writing, and there's a range of proposals ranging from statutes to constitutional amendments to retirement schemes and rotations that would try and depoliticize the court. i think that could be done without a constitutional amendment. in other words, a justice the serves for good behavior under article iii which is interpreted to mean for life, but that doesn't necessarily mean a right to sit on supreme court cases until one expires. and so after a period of time,
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it could be structured that justices rotate into service on circuit courts or become a senior bench waiting in reserve in the event of a recusal or something. so these people continue to be justices, but in the meantime, it would be a vacancy that would be created, and let's say every president in a four-year term got two appointments and that became a much more regular thing. that might take some of the political venom out of this process. but, of course, it would take a statute, and it might be challenged. it's ironic to think about how the supreme court would be asked to participate in deciding that. and after we got all past that, it would take some thurm of years -- number of years before we were in the new regime of orderly and less politicized supreme court appointments. >> it's a very hard question. >> you know, also when roosevelt came up with this court plan, it was the immediately seized on
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that one of the justices, i'm trying to think -- not cardoza, was it brandeis who was 80? so he would have been knocked out. and he was very popular. so now, of course, people are living longer, so that age doesn't seem so old anymore. secondly, look at the differences between biden and fdr. i mean, biden is hutch her more careful -- much her careful and not as sure-footed a political animal although he's very good politically as roosevelt. and he, biden didn't come off of a landslide, 27 million vote landslide like fdr did in '36. their very different people. biden is not committed to this issue, there what i can see. and yet the latest refusal of the court to delve into the texas abortion law really, i
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think, flung a new element into the debate. for a long time people were thinking, well, biden's not going to -- his prestige on this issue, and now this, of all issues, is very volatile and caused a lot of furor around the country. so i think that that's in the realm. that's interesting. a few her if decisions like that by the court, and, you know, it hay move, this 32-member possible biden appointed to -- panel biden appointed to come up with something. >> we've got a couple of questions that have come in that aren't strictly about the court. i'll try to answer a few of them. princess michelle said who was president roosevelt friends from the monarchy government. very famous that he invited the queen of england to come to america in 1939. americans back then didn't particularly like the british monarchy, matter of fact, they had very low popularity the
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ratings. the previous king had abdicated because he married an american, a real sense that the english monoor key -- monarchy -- [inaudible] and roosevelt knew he had to solidify a relationship with great britain because the war was coming, and he knew the war was coming. he invited the king and queen, and they had the big, fancy dinner in washington, and they come up here to hyde park and fdr famously -- [inaudible] in tom cottage where he served hot dogs to the king and queen. i think you talk a little bit about that, ralph, in your article -- >> i did. he tried to serve some kind of a fruity cocktail to winston churchill who spat it out. [laughter] but, no, absolutely, that was a famous episode, and roosevelt saw the need to cultivate their closer relations with england which was a battle and could have very well lost the war once
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and for all for the west. and he had this wonderful relationship with churchill, of course. i think roosevelt addressed him as -- i forgot, it was a navy title -- >> he was the former naval person. >> former naval person, right. >> and he started the correspondence with churchill before he became prime minister this which case he referred to him as the naval person. the president was not supposed to be talking with -- then fdr referred to him as former naval person. >> right. i spent the pandemic reading all six volumes of churchill's history. the only good thing that came out of the pandemic. [laughter] >> we're running out of time. question from andrew smith, i appreciate the importance of the supreme court stuff, but i wonder if you were going to have another conversation about other fdr stuff in the future. first of all, we've been doing
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this for a year and a half. every week or two we do a new program, they're all available on our youtube page and our facebook videos. we've done everything from fdr's relationship with different presidents, eisenhower and johnson, to the great depression, to yalta conference. since we had to stop doing live public programs, i think we're up to about 75 of these conversations with authors and historians. so, please, there's a lot of content. we're going to continue to do this and, hopefully, someday as the pandemic eases we'll go back to doing live programs at which point we will continue to live stream them and put them on our youtube so that we have a collection of this content. okay,s this is going to be our last question, and it's a really good one. joanne wrote us, isn't the lifetime appointment supposed to be a way to avoid politicization and justices feeling beholden to a certain president or political
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party? john? >> that was thed idea. first of all judges on the supreme court as well as the court. and, you know, it's a mechanism for insulating them from, you know, the day-to-day political pressures. used to be the fbi director had a 10-year term, that insulated him. so i think that's, you know, it's worked well historically. i think it'd be very difficult to take that away. i defer to john's expertise here. >> no, i agree completely. it is valuable insulation. the question is how much do you need, and lifetimes today can be very long things. so so if there's a way to sort of emptier a justice to serve -- permit a justice to serve out beyond the politics or his or her appointment, that is desirable.
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but i don't think that needs to be 30, 40 or 50 years. although due to the heart disease, robert jackson died at age 62 after serving only 14 years on the court. and one of those he was awol being a prosecutor at nuremberg. so one can make his or her mark and do great service as a supreme court justice without needing many, many decades. and also if we're not trying to play for forever, we might not prioritize appointing ever younger people and perhaps we would get more of the career wisdom and experience of more senior people. 60 and 70-year-old people, including people who have held high public offices, are not viable supreme court candidates today. i think that's a terrible loss. >> right. >> ralph, john, thank you very much, great conversation. and i think we all know that u.s. constitution day, they just
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did a survey and 30% of americans can name all three branches of government. there's the executive branch, the legislative branch and the judicial branch. they're supposed to be equal, although many
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