Part Three: FDR Subjugates the Judicial Branch

At the beginning of 1937, there were more problems for FDR than a recalcitrant Supreme Court. By the end of his first term, the New Deal had not accomplished much of what it was supposed to do, and there was widespread doubt about whether it ever would. Nevertheless, the electorate apparently wanted to see where this was all going. FDR defeated Alf Landon in the 1936 elections by a bigger margin than he had four years previous; in fact, the electoral margin of this victory was unprecedented.^[1] He became the first president inaugurated on the date we now use, January 20, in 1937. Bear in mind that Butler, a particularly bitter pill for the administration to swallow among the growing list of unfavorable Supreme Court decisions, was handed down in the interim between the elections and the second inauguration.

Now, we begin to get some insight on what a pragmatist FDR really was, and it starts to illustrate how the infringement on human rights came to pass under EO 9066.

To appreciate what a headache Black Monday created for the administration, you have to contemplate the enormity of the mandate they were handed in 1932. It was unprecedented in American history. Some within the administration may have been seduced by the intensity of the public’s desire for change, and simply forgot where the boundaries of constitutional restraint rightfully lay. Others may have been morally bankrupt and never cared from the get-go. Into which of these two camps the President belonged, is a matter of opinion. But the arrogance the administration showed, whenever someone or something obstructed it, was astonishing. They knew the man at the top was charismatic, and in the court of public opinion they could win steadily - even if, now and then, they knew they had no righteous or legal grounds to win at all.

This is well cited, for the first time, right after FDR’s 1936 victory. The proposal mentioned here changed the course of American judicial history forever.

In late November 1936 the solicitor general Stanley Reed had asked...for a memorandum on the Court situation and followed up in December with a request that they draw up some specific amendments "in case of need."^[2]

"Need," of course, referred to opinions that dissented from the President becoming inappropriately relevant, as defined by the President. This effort by the administration was brought about by the gradual realization that, within the twentieth century, Roosevelt was so far the only president to go four years without the opportunity to appoint a Supreme Court Justice. He was now in his second term - where was the "Roosevelt Supreme Court"? FDR’s attempt to fix this was to eventually be known as the "court-packing plan." The night before Roosevelt announced the plan, he gave the nod for Justice Brandeis to be given a heads-up on what was coming. Brandeis immediately saw the plan for exactly what it was, and communicated his displeasure.

He walked with me in the hall while the balance of the Court filed by not knowing of the bombshell that was awaiting them. Brandeis asked me to thank the President for letting him know but said that he was unalterably opposed to the President’s action and that he was making a grave mistake.^[3]

On February 5, 1937, the President sprang the news on a Congress whose reaction was mixed at best. He had shown this to some of his staff on January 30, his own 55th birthday. Now, the entire nation was privileged to know about it. It touched off a debate in the capitol, on the street, in magazines and newspapers.

I HAVE recently called the attention of the Congress to the dear need for a comprehensive program to reorganize the administrative machinery of the Executive Branch of our Government. I now make a similar recommendation to the Congress in regard to the Judicial Branch of the Government, in order that it also may function in accord with modern necessities. ...The Judiciary has often found itself handicapped by insufficient personnel with which to meet a growing and more complex business. ...Its difficulties in this respect were superficially lightened some years ago by authorizing the court, in its discretion, to refuse to hear appeals in many classes of cases. This discretion was so freely exercised that in the last fiscal year, although 867 petitions for review were presented to the Supreme Court, it declined to hear 717 cases. ... can it be said that full justice is achieved when a court is forced by the sheer necessity of keeping up with its business to decline, without even an explanation, to hear 87 percent of the cases presented to it by private litigants?

[...]

Apart of the problem of obtaining a sufficient number of judges to dispose of cases is the capacity of the judges themselves. This brings forward the question of aged or infirm judges - a subject of delicacy and yet one which requires frank discussion.

[...]

Life tenure of judges, assured by the Constitution, was designed to place the courts beyond temptations or influences which might impair their judgments: it was not intended to create a static judiciary. A constant and systematic addition of younger blood will vitalize the courts and better equip them to recognize and apply the essential concepts of justice in the light of the needs and the facts of an ever-changing world.^[4]

Brandeis’ comment about a "mistake" eventually proved to be right. But it took time for the legislature and the electorate to figure out the President was trying to sell a boondoggle, since they had been accustomed by then to doing whatever FDR wanted for the day. Also, FDR was correct in predicting that the public had some measure of agitation for the Court’s decisions. Nevertheless, as 1937 swung from winter into spring, the Reorganization of the Judiciary ran into serious trouble.

The immediate reception of the court plan as a whole by Congress was not unfavorable. But the stock market fell with the news, and before the first day out ex-President Hoover had publicly accused the President of wanting to pack the Supreme Court. The first opposition in Congress came from those who would not be expected to support an administration measure, chiefly Republicans. A movement of more than normal opposition was soon afoot. State legislatures began to pass resolutions condemning the proposal.

Many private organizations with names such as "Committee to Save the Constitution" sprang up. The larger part of the press launched and sustained a comprehensive attack. Bar associations, educators, clergymen, and other groups took sides, with the weight of opinion seeming to be in opposition. The burden of the argument as it reached the popular mind was that the plan would give the President the powers of a "dictator," and that it was "unconstitutional." Letter-writing and telegram campaigns were directed at Congressmen.

The legislators began to show reluctance. ... A number of conservative Democrats joined Republicans in open opposition. These, the President might have been willing to lose as unnecessary to pass the bill. Many Democratic Congressmen, particularly Southerners, who could not be called liberals on the score of their personal philosophies, but who on the basis chiefly of party loyalty and the economic emergency had generally supported the administration, joined the opposition. The danger sign came when leading liberals declared against the bill. Senator Wheeler of Montana, a Democrat, campaigned through the country and over the radio on the theme that the Bill would make the Supreme Court subservient to one man, and he became the ardent and skilled leader of the opposition forces. It became the tactic of Republicans to remain in the background while the Democrats split themselves into two warring camps. The Senate, where the main fight took place, seemed divided almost evenly on the issue. The great Democratic majorities in Congress had fallen into disunity within two months after the session began.^[5]

FDR began to fight back. On March 4, 1937, which was the fourth anniversary of his inauguration, he gave his famous "Now!" speech. His weapon-of-choice was very similar to what Democrats use today. He appealed directly to the voters, hoping that by agitating people with his own agenda he could make them forget about such things as rules, laws, fairness, constitutionality etc. which were just bothersome obstacles to him. His argument is very clever. You don’t have to do a lot of conscious thinking, to realize he’s illustrating two very different and personal future courses for the pocketbook of each person listening. On the other hand, it’s difficult to remember that his proposal is out of harmony with the Court’s purpose. That’s when you’re reading it; imagine what it’s like when a skilled, charismatic orator is delivering the message to you.

We tried to establish machinery to adjust the relations between the employer and employee. And what happened? You know who assumed the power to veto, and did veto that program. The Railroad Retirement Act, the National Recovery Act and the Guffey Coal Act were successively outlawed as the child labor statute had been outlawed twenty years before.

Soon thereafter the nation was told by a judicial pronunciamento that, although the Federal Government had thus been rendered powerless to touch the problem of hours and wages, the States were equally helpless; and that it pleased the "personal economic predilections" of a majority of the Court that we live in a nation where there is no legal power anywhere to deal with its most difficult practical problems-a no man’s land of final futility.

Furthermore, court injunctions have paralyzed the machinery which we created by the National Labor Relations Act to settle great disputes raging in the industrial field and, indeed, to prevent them from ever arising. We hope that this act may yet escape final condemnation in the highest court. But so far the attitude and language of the courts in relation to many other laws have made the legality of this act also uncertain, and have encouraged corporations to defy rather than obey it.

[...]

I defy any one to read the opinions concerning AAA, the Railroad Retirement Act, the National Recovery Act, the Guffey Coal Act and the New York Minimum Wage Law, and tell us exactly what, if anything, we can do for the industrial worker in this session of the Congress with any reasonable certainty that what we do will not be nullified as unconstitutional.

[...]

I defy any one to read the opinions in the TVA case, the Duke power case and the AAA case and tell us exactly what we can do as a national government in this session of the Congress to control flood and drought and generate cheap power with any reasonable certainty that what we do will not be nullified as unconstitutional.^[6]

Fireside Chat

Three days later, Roosevelt held a Fireside Chat intending to explain the parameters of his plan in plain English, and redouble his efforts to invigorate public support for it. He re-explained the three-horse analogy, which I personally find to be an insult, and supported his own plan with the argument that it would strengthen the Constitution. He’s consistent if nothing else; to FDR’s way of thinking, an opinion is valid if it matches his. The opinion is not valid if it does not square with his. Probably the most transparent effort he shows in his demagoguery is to go through the cases he didn’t like, one at a time, and pick-and-choose which of the dissenting Justices he’d like to name to bolster his own viewpoint. Roosevelt didn’t mention that this tactic couldn’t be applied to the Schechter decision, which ran against his plan by nine-zip.

...the majority of the Court has been assuming the power to pass on the wisdom of these acts of the Congress - and to approve or disapprove the public policy written into these laws.

That is not only my accusation. It is the accusation of most distinguished justices of the present Supreme Court. I have not the time to quote to you all the language used by dissenting justices in many of these cases. But in the case holding the Railroad Retirement Act unconstitutional, for instance, Chief Justice Hughes said in a dissenting opinion that the majority opinion was "a departure from sound principles," and placed "an unwarranted limitation upon the commerce clause." And three other justices agreed with him.

In the case of holding the AAA unconstitutional, Justice Stone said of the majority opinion that it was a "tortured construction of the Constitution." And two other justices agreed with him.

[...]

Last Thursday I described the American form of government as a three-horse team provided by the Constitution to the American people so that their field might be plowed. The three horses are, of course, the three branches of government - the Congress, the executive, and the courts. Two of the horses, the Congress and the executive, are pulling in unison today; the third is not. Those who have intimated that the president of the United States is trying to drive that team, overlook the simple fact that the president, as chief executive, is himself one of the three horses. It is the American people themselves who are in the driver’s seat. It is the American people themselves who want the furrow plowed. It is the American people themselves who expect the third horse to fall in unison with the other two.^[7]

About this time, those among us who actually believe in the American system of checks and balances are thinking to ourselves: What a silly ass. "Fall in unison with the other two"? Who does he think he’s fooling?

Such horse-talk would be anathema to those of us who live in the 21st century, when a war President enjoying 85%-and-up approval ratings is nevertheless subjected to loyal dissent on a daily, sometimes hourly, basis. But if the 3-horse story nudges you closer to the brink of disbelief, the primary thrust of the Fireside Chat will send you headlong over the edge.

FDR’s true motives may never be completely known for what he was trying to do. Perhaps the enormity of his popular mandate, and the ease with which he rammed his alphabet-soup programs through Congress, had convinced him he could sell anything, and he wanted to push the envelope like Bill Clinton. Or perhaps, like Hillary, he’d simply had enough of whatever object or institution had the unmitigated gall to get in his way. Most likely, it was some happy medium between those two that truly motivated him. Wherever the drive came from, he chose to react in a radical way.

It’s a fact of history that the future jailer of Japanese/American citizens decided things weren’t going his way, simply because the wrong people were in charge. Today’s Democrats vent their grief in such situations by simply re-defining what it means to be "conservative," "moderate" and "extreme." FDR went way further than that. He did something that’s far less allowable today, and attributed the problem to age.

For nearly twenty years there was no conflict between the Congress and the Court. Then in 1803 Congress passed a statute which the Court said violated an express provision of the Constitution. The Court claimed the power to declare it unconstitutional and did so declare it. But a little later the Court itself admitted that it was an extraordinary power to exercise and through Mr. Justice Washington laid down this limitation upon it: he said, "It is but a decent respect due to the wisdom, the integrity and the patriotism of the legislative body, by which any law is passed, to presume in favor of its validity until its violation of the Constitution is proved beyond all reasonable doubt." But since the rise of the modern movement for social and economic progress through legislation, the Court has more and more often and more and more boldly asserted a power to veto laws passed by the Congress and by state legislatures in complete disregard of this original limitation which I have just read.

[…]

It is well for us to remember that in forty-five out of the forty-eight states of the Union, judges are chosen not for life but for a period of years. In many states judges must retire at the age of seventy. Congress has provided financial security by offering life pensions at full pay for federal judges on all courts who are willing to retire at seventy… But all federal judges, once appointed, can, if they choose, hold office for life, no matter how old they may get to be. What is my proposal? It is simply this: whenever a judge or justice of any federal court has reached the age of seventy and does not avail himself of the opportunity to retire on a pension, a new member shall be appointed by the president then in office, with the approval, as required by the Constitution, of the Senate of the United States.

That plan has two chief purposes. By bringing into the judicial system a steady and continuing stream of new and younger blood, I hope, first, to make the administration of all federal justice, from the bottom to the top, speedier and, therefore, less costly; secondly, to bring to the decision of social and economic problems younger men who have had personal experience and contact with modern facts and circumstances under which average men have to live and work. This plan will save our national Constitution from hardening of the judicial arteries.

The point is well worth noting, surfacing as it does from time to time in arguments about Supreme Court decisions, that there is nothing in Constitution defining a role for the high court to interpret the Constitution. Nor is such a duty implied by any of the Federalist papers. This role was "seized," say FDR and the liberals, in the case of Marbury vs. Madison, 1803. Such a vituperative verb as "seized" is chosen because the Court was effectively defining this role for itself, from that day ’til the end of time.

Now you must be saying, how could such a thing be possible? Isn’t that like putting one end of a vacuum cleaner into it’s own nozzle, and watching as it sucks itself into a contracting wad and vanishes in a puff of smoke into another universe? Put a more relevant way, if you were privileged to watch Marbury vs. Madison delivered in 1803 on live television, but didn’t have the initial belief that the Court had such a jurisdiction, then how can you possibly take this decision at face value? It seems like a catch-22, and it’s possible FDR has a good point here.

And so it is, until you actually read Chief Justice John Marshall’s 1803 opinion.

The above quandary is resolved through straightforward logic - and no "seizing" is taking place at all. Like much of the legal-speak from the 18th century, this decision is a real gem. Such epistles are so logical - making easily digestible, simple sense out of an initially complicated question - you not only enjoy reading it, you end up wanting to trade brains with the guy who wrote it.

Here is the "seizing," verbatim - in which the fourth Chief Justice explains why the Supreme Court should act as national interpreter of the Constitution. Based on what FDR said in his Fireside Chat, it’s doubtful he would ever have wanted you to see it.

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.

Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law.

This doctrine would subvert the very foundation of all written constitutions.

It would declare that an act, which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory.

It would declare, that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.

That it thus reduces to nothing what we have deemed the greatest improvement on political institutions--a written constitution, would of itself be sufficient, in America where written constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the constitution of the United States furnish additional arguments in favour of its rejection.

The judicial power of the United States is extended to all cases arising under the constitution.

Could it be the intention of those who gave this power, to say that, in using it, the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises?

This is too extravagant to be maintained.

I will attempt to "cook" this into a single paragraph, more modern and concise, and at the same time do proper service to Marshall’s opinion.

The jurisdiction FDR questions, is defined from two layers: The "teeth" the high court has, in that no higher court is available to appeal the decisions it makes. This much is already stated in Article III of the Constitution, and within this argument has never been up for serious contradiction. The second layer, which Justice Marshall articulates here, is the process by which constitutional interpretation lands in the Supreme Court’s bailiwick. This is not stated in the Constitution; here, Marshall is saying, and effectively proving, it’s implicit and inseparable, with the observation of the Constitution as the supreme law of the land. It is proven simply by defining requisite beliefs the opposing side would have to pursue in order to maintain the very mildest existing argument. Marshall then declares these requisite beliefs unworkable, so to counter Marshall you have to challenge his definition of the requisites, or his declaration that they’re "too extravagant to be maintained."

The fact is, both of these are beyond dispute. It’s simple logic and clear-headed thinking! I think very highly of Justice Marshall’s style of thought here, and it would be a refreshing change if there was a mind like this working in the matter of U.S. v. Microsoft a few years back. You can already tell from FDR’s earlier comments that he was none too happy with the way this worked, and this is probably why he didn’t say too much about Marbury v. Madison when he mentioned it in passing.

Damn that wayward horse!

New Deal Turns Sour

This tiff between FDR and the Supreme Court marked a pivotal moment for the administration and for the nation-at-large. Up to this point, America had some clear winners and losers in the Great Depression: FDR won, nightmarish federal bureaucracy won, people who were previously in some terrible financial situations, won. Economic indicators won, due to the furious activity artificially stimulated by all these social programs. The traditional balance of power in Washington, never intended by anyone to be a beneficiary of anything in this administration, lost big time. Wealthy people lost, and with them, the American-dream also lost. It seems becoming a mindless cog in a vast machinery is okay, when your belly is full. Congress won, as long as it did exactly what FDR wanted. The Supreme Court, wisely, stayed above the fray.

1937 was a turning point. It would be a dismal year for all these parties; all of them would lose, in all the ways that mattered.

First of all, FDR spent way more political capital than he had on this goofball plan. The "court-packing scandal" is regarded by history as the first big black mark against his presidency, even among sources that view the New Deal in a favorable light.

To all appearances, Justice Brandeis was not the only jurist "unalterably opposed" to the plan. Chief Justice Hughes decided to fight this tooth and nail. All of the Supreme Court justices having declined an offer of free air-time to challenge the plan directly, Hughes sent a letter to Senator Wheeler to refute the idea that more justices were needed to help with the court’s caseload:

The Supreme Court is fully abreast of its work. When we rose on March 15 (for the present recess) we had heard argument in cases in which certiorari had been granted only four weeks before, Feb. 1. During the current term, which began last October and which we call October Term, 1936, we have heard argument on the merits in 150 cases (180 numbers) and we have 28 cases (30 numbers) awaiting argument. We shall be able to hear all these cases, and such others as may come up for argument, before our adjournment for the term. There is no congestion of cases upon our calendar.

That winter and spring, the National Labor Relations Board’s neck was on the Supreme Court chopping block - or, the Constitution was on the NLRB’s chopping block, depending on your point of view. The issue was the very constitutionality of a controversy that frequently comes up today: The Minimum Wage. In West Coast Hotel vs. Parrish,^[8] the high court was to decide whether the National Labor Relation Board’s purview was violated in establishing a limited wage. West Coast Hotels had sued for relief, and was denied. The plaintiff appealed to the High Court.^[9]

This is truly a landmark case, not just with regard to the NLRB or to minimum wage laws, but it’s a watershed moment in the court-packing story. S. 1392, the court-packing plan, was wending it’s way through the legislature. It was rapidly losing steam, but was a danger nonetheless - one shudders in contemplating the precedent it would have started had it taken effect. At this time, the most potent argument in favor of this disastrous idea was one of need, a contention of bias and recklessness on the existing court. A significant debate was developing as to whether or not this need actually existed. With a President wielding unprecedented power and public mandate, planting a widespread fatigue and uncertainty with the Supreme Court’s power to interpret the Constitution, it was hard to say what would happen if the NLRB joined the list of New Deal programs ruled unconstitutional.

Court-watchers were astonished to see Justice Owen Roberts change his vote to affirm the appellate court’s decision. This is the outcome the President wanted, and is today referred to as the "Switch in Time That Saved Nine." It is widely alleged, perhaps to add some drama to the story, that this was a last-minute decision on Robert’s part, but it’s more likely that the decision was made before the court-packing plan was announced.

Whatever the case may be, this let even more steam out of S. 1392, and the committee recommended against the bill on May 18.

To the credit of the 75th Congress, they were indeed concerned - on paper, at least - about constitutional issues, and not just political currents. The Adverse Report on the status of the bill, is exceedingly harsh as it winds down to its conclusion:

We recommend the rejection of this bill as a needless, futile, and utterly dangerous abandonment of constitutional principle.

It was presented to the Congress in a most intricate form and for reasons that obscured its real purpose.

It would not banish age from the bench nor abolish divided decisions.

It would not affect the power of any court to hold laws unconstitutional nor withdraw from any judge the authority to issue injunctions.

It would not reduce the expense of litigation nor speed the decision of cases.

It is a proposal without precedent and without justification.

It would subjugate the courts to the will of Congress and the President and thereby destroy the independence of the judiciary, the only certain shield of individual rights.

It contains the germ of a system of centralized administration of law that would enable an executive so minded to send his judges into every judicial district in the land to sit in judgment on controversies between the Government and the citizen.

It points the way to the evasion of the Constitution and establishes the method whereby the people may be deprived of their right to pass upon all amendments of the fundamental law.

It stands now, acknowledged by its proponents as a plan to force judicial interpretation of the Constitution, a proposal that violates every sacred tradition of American democracy. Under the form of the Constitution it seeks to do that which is unconstitutional. Its ultimate operation would be to make this Government one of men rather than one of law, and its practical operation would be to make the Constitution what the executive or legislative branches of the Government choose to say it is - an interpretation to be changed with each change of administration.

It is a measure which should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.

WILLIAM H. KING, FREDERICK VAN NUYS, PATRICK MCCARRAN, CARL A HATCH, EDWARD R BURKE, TOM CONNALLY, JOSEPH C. O’MAHONEY, WILLIAM E. BORAH, WARREN R. AUSTIN, FREDERICK STEIWER ^[10,11]

Ouch!

However, debate continued on the court-packing proposal. By July, Washington DC was in one of the worst heat waves of it’s history. The bill ran into more and more trouble; further reducing the pressures behind it’s momentum, Supreme Court Justice Willis Van Devanter announced his retirement. This allowed Roosevelt to name a justice without the provision of his proposal. Finally, the constitutional crisis was brought more-or-less to a close by an unexpected death. Joe Robinson, the Senator from Arkansas who was the Majority Leader, was found dead in his apartment on July 14th. This made it all-but-impossible to bring together a coalition to pass the bill, even in with the more offensive provisions removed. This seems to have been the straw that broke the camel’s back, and the administration removed any consideration of the judiciary from the bill.^[12]

***

Happy ending? Not by a long shot. If the "switch in time" folks are to be believed, Roberts was going to vote with those who sought to strike down the provisions of the NLRB. FDR, you might imagine, would have been outraged and held Fireside Chat after Fireside Chat, rallying the public to his support. Had the Supreme Court then ruled to overturn, so goes the argument, the dwindling impetus behind S.1392 might have been re-invigorated as the public became again disenchanted and agitated with the ramifications of the high court’s decisions for the poor laborer.

West Coast vs. Parrish represents, therefore, an instance in history in which the high court was checked by the legislature and the executive, rather than the other way around. Thus, 1937 was the year that the Supreme Court was finally brought in line, S.1392 or no S.1932.

If that is indeed what took place, that’s a disaster. The intent of design of the Supreme Court is quite clear. Justices are nominated by the President, confirmed by the Senate,^[13] and retained indefinitely during their good behavior.^[14] Thus at any given time, the Supreme Court shall have a set number - that’s nine, both now and in 1937 - of justices who represent the values prioritized during previous administrations and legislatures, for a long stretch of time backward. The "good behavior" clause is inferred to mean that these Justices cannot be removed by any other supervising party or by any term limit.

The intent is evident to anyone who reads between the lines. The High Court is supposed to be a chamber ultimately accountable to public opinion during appointment, but shielded from the exigencies of public whim thereafter. Just as the Senate is a cooler and more stoic & shielded chamber than the House of Representatives, owing to a six-year term as opposed to a two-year term,^[15] the Supreme Court is supposed to be even cooler, more stoic, and more shielded. For the President to twist the arm of the High Court, especially in response to his perception of public opinion, is decidedly contrary to this intent, and to the concept of impartial justice.

From that point on, things just went from bad to worse both for the constitution and the economy. The New Deal had been exhausted of its ability to artificially prop up the country’s standard of living; by this time, Roosevelt had the federal budget to think about. A schism had begun within his party as to whether the bellwether objectives of the New Deal justified deficit spending. In a move that would have been characterized as conservative in our contemporary times, FDR ultimately had come down against the idea of deficit spending. Unfortunately, he had thoroughly addicted the nation to the social programs that had been enacted, and when he elected to cut them, the result was a reversal, for the most part, of what he had hitherto achieved. It was a painful weaning that caused a brand-new recession that summer. The Wagner Act also took effect at the beginning of that year. With the cost of labor rising, and available government jobs dwindling, unemployment shot back up past 20 percent.^[16]

Don’t forget, these effects were all added in with the Social Security Act of 1935, making labor even more expensive.^[17] By this time, Sweden had pulled out of the world-wide Great Depression three years ago. Even worse, our future enemy, Germany, had cured themselves of their own depression the previous year. Under FDR, this late in the game our wheels were still spinning. The U.S. would eventually get her turn pulling out of the global Depression, essentially bringing up the rear of the line with the other "superpower" nations.^[18] This helps to explain why, when you ask people who were alive at the time what the New Deal did, you get back opinions that are divided. Some say the Great Depression ended because of FDR; others say it ended in spite of him.

So 1937 was a bright year only if you were looking for Roosevelt to truly become an "American Caesar" in all respects. It was a wonderful year for that, but the economy was in a shambles and the constitution was doing even worse. At this point, the first two terms were looking like a real ho-hummer. We are a fickle nation; our 41st president lost an election only twenty months after he was enjoying a 91% approval rating. This does not substantially prove that Hitler saved Roosevelt from defeat in the 1940 elections, but it certainly raises the question credibly.

Going To War

The United States joined the other nations in intensifying its buildup of military hardware and other resources. Significant economic activity developed from this; much more so, in fact, than that which had transpired as a result of New Deal legislation.^[19] This adds further to the intelligent doubt that exists about what the New Deal really did for our economy.

Meanwhile, blow fell upon bitter blow for those who value the separation-of-powers doctrine and what it stands for. In 1941, Chief Justice Hughes, who had contributed somewhat to the impetus behind the court-packing plan by occasionally ruling against FDR, finally called his long career of distinguished public service to a close. Brandeis had already been retired by this time for two years.^[20] Soon after that, FDR was truly a war President, just like the President we have now - enormous public mandate, murdering madman overseas, the whole ball of wax.

Unlike our 43rd President, the 32nd one had also created for himself a nine-year legacy of shoving the Constitution out of his way when it couldn’t be reconciled with his ambitions. Over time, this did not frustrate public opinion; instead, it shaped it. By February of 1942, this had become a force of habit for all concerned; there really was nothing left to stop him, from anything. Reports of public outrage over the court-packing plan, while no doubt true in some places, on inspection prove inadequate to have killed the plan outright. Newspaper editorials from 1937^[21,22,23] show that the opposition to the plan was far from unanimous.

So if the public sentiment was inadequate to hold FDR’s vituperative attitude toward constitutional restraint in check, the public servants that should have provided the loyal dissent at such crucial times, were doubly ineffective. Perhaps they were even negligent. Senators and Congressmen became mere puppets, doing the wartime President’s bidding in true "three-horse" fashion. Here was a public official who could have done anything he wanted to do. He was being re-elected, repeatedly, to an unprecedented term in office. Such re-election was based not so much on his vision of what needed to be done, but instead on the electorate’s desperation. So if a thought transpired between the ears of this unchecked public servant, it was as good as the law of the land.

Anyone who doubts this needs only to peruse the Supreme Court decisions that came in the wake of Japanese Internment. There are only four of them.^[24]

Hirabayashi v. United States^[25] and Yasui v. United States^[26] were argued in front of the Supreme Court on May 10 and 11, 1943, and decided on June 21.

As a result of all these conditions affecting the life of the Japanese, both aliens and citizens, in the Pacific Coast area, there has been relatively little social intercourse between them and the white population. The restrictions, both practical and legal, affecting the privileges and opportunities afforded to persons of Japanese extraction residing in the United States, have been sources of irritation and may well have tended to increase their isolation, and in many instances their attachments to Japan and its institutions.

Viewing these data in all their aspects, Congress and the Executive could reasonably have concluded that these conditions have encouraged the continued attachment of members of this group to Japan and Japanese institutions.^[27]

Korematsu v. United States^[28] and Ex Parte Endo^[29] were argued before the Supreme court on October 11 and 12, 1944, and decided on December 18.

We uphold the exclusion order as of the time it was made and when the petitioner violated it...In doing so, we are not unmindful of the hardships imposed by it upon a large group of American citizens...But hardships are part of war, and war is an aggregation of hardships. All citizens alike, both in and out of uniform, feel the impact of war in greater or lesser measure. Citizenship has its responsibilities as well as its privileges, and in time of war the burden is always heavier. Compulsory exclusion of large groups of citizens from their homes, except under circumstances of direct emergency and peril, is inconsistent with our basic governmental institutions. But when under conditions of modern warfare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger...^[30]

Now this cuts to the quick of exactly what I’ve been saying for all these 15,000 words or so. It’s just my opinion, but use of the word "hardships" is an abrogation of the judicial duty. It seems to me, that the Court has embarked on a slippery slope if an appellant can challenge the constitutionality of a questionable act of the government - and in the court’s findings, an unconstitutional act is transposed into a different description, a "hardship." This is a sin of nomenclature that has a direct bearing on the Court’s ability to decide the issue. Notice that the Majority opinion goes on to excuse this new noun by saying "war is an aggregation of hardships." Justice Black would never, I would hope, presume to write an opinion stating "war is an aggregation of potentially unconstitutional measures" but that is essentially what he is writing here.

I would also question how he has defined "war." There is no doubt that in December of 1944, we were in one, but if the High Court has sanctioned war as an "aggregation of hardships" - what else can be so labeled? After 1944, the United States has been in many "conflicts," "police actions," et al, that are not technically wars. What about our current situation? Again, Congress has not actually declared war, but we are in a state of conflict. Ask anyone who has traveled by air, whether it is an aggregation of hardships. Certainly it is! Does this mean I can go around kicking persons of Middle Eastern descent in the shins? It would be a hardship for them. When I get busted under the Hate Crime legislation, can my attorney cite Korematsu and simply tell the judge our present situation is an aggregation of hardships?

Such things a Justice must consider in deciding cases like this. He must say, What boundaries am I establishing with my decision? What precedents have I created? In this case, the Supreme Court created a very stupid one, evidently because the majority didn’t ask themselves those questions. I think they didn’t embark on that train of thought because it was atrophied for them. What they did in Korematsu is the kind of thinking that comes from habitually sweeping aside the Constitution for a dozen years or so. Which is what they had been doing.

In Ex Parte Endo, Mitsuye Endo, a Japanese internee, had sought a writ of habeus corpus. This time, the Supreme Court acted reasonably and approved the petition.

A citizen who is concededly loyal presents no problem of espionage or sabotage. Loyalty is a matter of the heart and mind not of race, creed, or color. He who is loyal is by definition not a spy or a saboteur. When the power to detain is derived from the power to protect the war effort against espionage and sabotage, detention which has no relationship to that objective is unauthorized.^[31]

However, even with this generous concession the Supreme Court again declined to rule any part of the process unconstitutional. I would hope these four cases would go differently today, although by rights, such inconsistency is outside of what I should expect from a symbol of stability and tradition that is supposed to be the hallmark of the Court.

Obviously, Roosevelt’s efforts to mold and shape the checks and balances of our government, into a shape of his choosing and his liking, were entirely successful. They succeeded in the legislative branch, and they succeeded in the judicial branch. Given that set of circumstances, how in the world could we ever have avoided something like EO 9066 even under the best of circumstances?

Morgan K. Freeberg

You can e-mail Morgan at mkfreeberg@hotmail.com.

About Morgan K. Freeberg

Copyright © 2002 by Morgan K. Freeberg
All Rights Reserved.

-Published with permission