Supremely Challenging: Obama, FDR and the Courts

Dec 17, 2010David B. Woolner

Roosevelt historian David Woolner shines a light on today’s issues with lessons from the past.

The recent decision by a federal judge in Virginia to rule that the key element of the Obama health care law is unconstitutional has raised speculation that the ultimate fate of the Patient Protection and Affordable Care Act will be decided in the Supreme Court. Indeed, the vehemence of the politically charged legal challenge to the health care bill (which is also being heard in a Florida court in a suit filed on behalf of 20 states) brings to mind another potential parallel between the Obama administration and the presidency of Franklin Roosevelt. Both leaders took office in the midst of an unprecedented economic crisis. Both men also faced a serious threat to America's national security,  in FDR's case the rise of fascism in Europe and Asia and in President Obama's case the rise of a pernicious form of international terrorism. It now looks as if President Obama, much like FDR, will also face a serious legal challenge to what is likely to be the single most important piece of social reform legislation to be passed during his tenure in office: his health care bill. In fact, in the wake of the Virginia ruling, some commentators have even gone so far as to argue that it is the Court -- not Congress -- that represents the biggest threat to President Obama's legislative agenda.

Such an analysis would be familiar to FDR, who long before he took the oath of office anticipated that his election might one day result in a showdown with the Court. Nor was FDR alone in this thinking. His cousin Theodore Roosevelt (a man whom FDR greatly admired and emulated) was often heard to bemoan its shortcomings. In his famous address proclaiming his "New Nationalism" in 1910, he argued that the New Nationalism regards "the executive power as the steward of the public welfare. It demands of the judiciary that it shall be interested primarily in human welfare rather than in property, just as it demands that the representative body shall represent all the people rather than any one class or section of the people."

It was this tendency of the Court to concern itself mostly with property rights -- and in doing so, to rule largely in favor of entrenched and often wealthy interests, rather than in favor of legislative reform -- that so frustrated those in favor of social legislation in the late 19th and early 20th centuries. Given this record, FDR logically concluded that he might run into difficulties -- though not with the Constitution, which, as he noted in his first inaugural, was "so simple and practical that it is possible always to meet extraordinary needs by changes in emphasis and arrangement without loss of essential form."

In his first two years in office, it looked as if perhaps the Supreme Court might be willing to uphold much of the New Deal legislation, but in the spring of 1935 it became clear that this was not the case. Beginning on "Black Monday," May 27, 1935, and over the course of the next 13 months, the Court struck down more acts of Congress than in any period in our history, including such key New Deal provisions as the National Industrial Recovery Act and the Agricultural Adjustment Act. Roosevelt was furious, and in a press conference held the next day remarked that the nation must decide one way or the other "whether...we are going to... restore to the Federal Government the powers which exist in the national Governments of every other nation in the world."

Fearing for the ultimate fate of such landmark pieces of legislation as Social Security and the National Labor Relations Act, FDR eventually decided that he had no choice but to take steps to try to safeguard the New Deal. In February 1937, therefore, he unleashed his famous "Court Packing Plan" in a message to Congress. "Life tenure for judges," he argued, "was not intended to create a static judiciary. A constant and systematic addition of younger blood will vitalize the courts." As such, the president recommended that in cases where a given justice who had served at least ten years waited more than six months after he had reached his 70th birthday to resign or retire, the Executive should be allowed to add a new judge to the bench. He also recommended that under this scheme a president should be allowed to appoint up to six new justices to the Supreme Court and a potential 44 new judges to the lower courts.

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Contrary to current public perception, FDR was perfectly within his legal bounds to request a change in the make-up of the Court. Moreover, other advocates of judicial reform had occasionally floated the idea of expansion on previous occasions. But given the widespread belief in the sanctity of the Court -- a sentiment as powerful today as it was in 1937 -- his proposal, as the noted historian William Leuchtenburg has written, "generated an intensity of response unmatched by any legislative controversy of [the twentieth] century, save perhaps the League of Nations episode."

In spite of the controversy in generated, it looked at first as if it the bill would pass. But in the end, FDR's Judiciary Act never reached the floor of the Senate. Ironically, it was the actions of the Court itself, as much as the opposition of those who stood against it, that undercut the need for the proposal. For in the three months before the bill was dropped, the Court embarked on a dramatic change of course, thanks largely to Justice Owen Roberts' change in attitude. It unexpectedly upheld the legality of the Social Security Act, the Wagner Act, and a state minimum wage law that was very similar to one the Court had struck down just a few months earlier. Shortly thereafter, one of the so-called conservative "Four Horsemen," Justice Van Devanter, announced his decision to retire, thus giving the president the opportunity to appoint a justice more sympathetic to the New Deal.

The defeat of the Court packing scheme was a major political blow, but as the president himself once commented, it seemed as if he had lost the battle but won the war. For the consequences of the struggle with the court and the debate it generated were far reaching and are widely regarded as initiating what is often called the "Constitutional Revolution of 1937." From that moment forward, the Court not only upheld every New Deal statute that came before it, but also embarked on a new era of jurisprudence that fundamentally altered the character of its activities and the nature of its decisions. In so doing, it also recognized the need in a modern economy for an expanded role of the state.

It is this latter point on the role of government, as much as the particulars of the health care law, that is now under siege in the courts. Moreover, much like the case in 1937, one could also argue that it is our legal system itself that is on trial in this debate. Are we really going to return the Supreme Court -- as was the case in much of the 19th and early 20th centuries -- to a narrow focus on property rights? Or will we recognize that in a modern society it is right and proper for the Federal Government to ensure the health and security of its citizens?

To succeed in winning over the public and the judiciary to the view that government can and should act to ensure the general welfare of the people, President Obama might steal a word or two from FDR's cousin, Teddy, who in the same speech as quoted above said:

The American people are right in demanding that New Nationalism, without which we cannot hope to deal with new problems. The New Nationalism puts the national need before sectional or personal advantage. It is impatient of the utter confusion that results from local legislatures attempting to treat national issues as local issues. It is still more impatient of the impotence which springs from over division of governmental powers, the impotence which makes it possible for local selfishness or for legal cunning, hired by wealthy special interests, to bring national activities to a deadlock.

Those who oppose all reform will do well to remember that ruin in its worst form is inevitable if our national life brings us nothing better than swollen fortunes for the few and the triumph in both politics and business of a sordid and selfish materialism.

David Woolner is a Senior Fellow and Hyde Park Resident Historian for the Roosevelt Institute.

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