Thursday, March 18, 2010

Posner on Shesol on Franklin Roosevelt vs. the Supreme Court

Supreme Power: Franklin Roosevelt vs. the Supreme Court by Jeff Shesol was reviewed by Judge Richard Posner last month in The New Republic. Roosevelt's court-packing plan, Posner writes,
is known to few Americans, and interests still fewer--mainly students of the Supreme Court. It is therefore surprising that in 2010 a book of more than six hundred pages should appear written not by a law professor or an academic historian but by a speechwriter for President Clinton, and aimed at a popular audience, though its seventy-two pages of notes and bibliography attest to the depth of the author’s scholarship. It is still more surprising that Jeff Shesol’s book should be timely, for the light it casts on the politics of our current economic situation and on the situation itself. The book is also splendid to read. It will fascinate anyone who is interested in Roosevelt, the New Deal, the 1930s, Congress, the presidency, the Great Depression, judges, the Supreme Court, or constitutional law....

What finally killed the plan was an unbroken string of surprising victories for the New Deal in the Supreme Court--twelve in all, with no defeats--while the Court-packing plan was being debated, coupled with the sudden retirement of Justice Van Devanter, one of the four extreme conservatives (who accelerated his retirement in order to help defeat the plan), and topped off by the sudden death of Senate Majority Leader Joseph Robinson....

Hughes and Roberts abandoned the other conservatives in all twelve cases. They may have done so in order to defeat the Court-packing plan. It is true that the first of the decisions--which, overruling an earlier decision of the Court, upheld the federal minimum-wage law, and which is generally regarded as the turning point for the Court because it was the first decision in the string--was voted on by the justices (though not issued) before the plan was announced. But the vote came after the 1936 election, and it was believed that Roosevelt would mount some kind of serious challenge to the Court....The two justices may have come to believe that to kill the New Deal would be playing with fire in the name of dubious constitutional doctrines to which neither of them was as emotionally committed as their extreme conservative colleagues. If that was their thinking, I am enough of a legal realist to withhold criticism of their “political” decision making.

No comments: