Roosevelt (41 page)

Telling long anecdotes, playing poker until late at night, making fun of Hopkins and Ickes, jubilantly landing huge sailfish, the President was in high spirits. He had time after his return for trips to Hyde Park and Warm Springs, and for some of the horseplay that he loved to indulge in with subordinates. When told that his genial military aide, “Pa” Watson, and Admiral Grayson were arguing jocularly over their exploits in a turkey shoot, Commander in Chief Roosevelt solemnly compiled formal charges and ruled that after being tied to trees one hundred paces apart, “each be armed with a bow and arrow, that each be blindfolded, that each be required to emit turkey calls, and that thereafter firing shall begin.…”

It was a pleasant lull, but it could be no more than that. Events were marching on. In October 1935 Italy invaded Ethiopia, and in December Britain and France agreed to the dismemberment of Haile Selassie’s beleaguered country. At home, lines were forming for the election year that lay ahead. Late in December Roosevelt told Moley he wanted a “fighting speech” for his annual message—a keynote speech for 1936. Once again the President set the stage carefully. Over Republican protests he insisted on a joint session in the evening, when he could reach the widest radio audience.

The atmosphere was heavy with partisan feeling on the night of January 3, 1936, when the President slowly made his way up the
ramp to the House rostrum, carefully placed his pince-nez beside his manuscript, took a firm grip on the sides of the desk, and launched into his speech.

He recalled, as usual, the dire days at home of March 1933, when he took office. But the world picture of that day had been an image of substantial peace. This image had lasted in the Americas. In the rest of the world—“Ah, there is the rub.” Were he to give an inaugural speech now, he could not limit his comments on world affairs to one paragraph. In Europe and Asia were growing ill will, aggressive tendencies, increasing armaments, shortening tempers. And what was the policy of the United States?

“As a consistent part of a clear policy, the United States is following a twofold neutrality toward any and all Nations which engage in wars that are not of immediate concern to the Americas. First, we decline to encourage the prosecution of war by permitting belligerents to obtain arms, ammunition or implements of war from the United States. Second, we seek to discourage the use by belligerent Nations of any and all American products calculated to facilitate the prosecution of a war in quantities over and above our normal exports of them in time of peace.”

Suddenly Roosevelt’s voice seemed to take on a more vibrant, sonorous tone. His bipartisan state paper completed, he was now giving a campaign speech. Within our own borders, as in the world at large, he said, popular opinion was at war with a power-seeking minority. “In these latter years we have witnessed the domination of government by financial and industrial groups, numerically small but politically dominant.…” These groups, happily, did not speak the true sentiments of the “less articulate but more important elements that constitute real American business.” Since 1933 he and Congress had contended for and established a new relationship between government and people. They had appealed from “the clamor of many private and selfish interests, yes, an appeal from the clamor of partisan interest, to the ideal of the public interest.” Control of the federal government had been returned to Washington.

Lowering his voice confidentially, rocking back and forth behind the rostrum, Roosevelt was now drawing blood. Cheers and rebel yells burst from the Democrats, while the little band of Republicans looked on sourly.

“We have earned the hatred of entrenched greed.” After abdicating in 1933, these groups were seeking “the restoration of their selfish power.” Inexorably Roosevelt went on. “They steal the livery of great national constitutional ideals to serve discredited special interests. As guardians and trustees for great groups of individual stockholders they wrongfully seek to carry the property and
interests entrusted to them into the arena of partisan politics. They seek—this minority in business and industry—to control and often do control and use for their own purposes legitimate and highly honored business associations; they engage in vast propaganda to spread fear and discord among the people—they would ‘gang up’ against the people’s liberties.

“The principle that they would instill into government if they succeed in seizing power is well shown by the principles which many of them have instilled into their own affairs: autocracy toward labor, toward stockholders, toward consumers, toward public sentiment.…”

Spiked with searing phrases, the speech was a far cry from the mellow, philosophical discourse of the year before. Partisan Democrats greeted it joyously as the kickoff for the presidential campaign. Republican congressmen, who had burst into derisive laughter when Roosevelt in closing referred to his speech as a message on the state of the union, called it a great stump speech but a dismal address for a chief of state. The Liberty League and other conservative groups feverishly prepared replies. Radicals had a mixed reaction. They liked the bristling words, but where was Roosevelt’s program? The President had proposed no new legislation. With millions out of jobs, with farmers still desperate, was he going to coast on the New Deal record?

The answer came four days later.

For months now, a heavy judicial hand had been smothering vital parts of the New Deal. Federal district judges had issued over one thousand injunctions restraining the government from carrying out acts of Congress. Corporation lawyers went shopping for the most helpful courts, and often they were rewarded both with the requested injunction and with a stump speech from the bench. “Usurpation,” one judge had snorted about the NRA. By the beginning of 1936 appeals were piled up, awaiting action by the Supreme Court.

Sitting loftily behind the immense mahogany bar in their magnificent red-draped chamber, the nine old men of the Supreme Court seemed far above the reach of partisan politics. Never in all its history had the Court so faithfully met the popular stereotype of majestic judges enunciating almost divinely inspired law. In the exact center sat Chief Justice Hughes, with his chiseled features, white goatee, and bushy eyebrows. Flanking him were eight other elderly, dignified men, whose tenure stretched back over the decades. One had been appointed by President Taft, two by Wilson,
the rest by Harding, Coolidge, and Hoover, none by Franklin D. Roosevelt. Their average age in 1936 was seventy-one.

But if all was quiet in the High Court, it was, as Justice Holmes had once said, the quiet of a storm center. Behind the judicial masks there burned passionate convictions about politics and policy. Judges are human, and their decisions, in the words of a close student of the judiciary, are not brought by constitutional storks, but are born out of the travail of economic and social circumstances. Most of the justices had once been vote-seeking politicians; all of them had climbed to their judicial eminence through the push and jostle of the competitive world.

Like a legislature, the Court had its right, its left, and its center. Lined up as a solid phalanx on the right were the learned Willis Van Devanter, an Old Guard Republican who had helped McKinley beat Bryan in 1896; the churlish James Clark McReynolds, successively a Gold Democrat, Wilson’s Attorney General, and now the most outspoken conservative on the Court; the bewhiskered George Sutherland, a Taft man in 1912, president of the American Bar Association in 1918, rewarded by Harding with a seat on the high bench in 1922 after he had failed of re-election to the Senate; and the tall, bulky Pierce Butler, an Irish Catholic railroad attorney and conservative Democrat appointed by Harding over the bitter protests of Senator Norris. The main tie binding these men was their common origin in or near the pioneer life of the frontier, their common belief in the ideology of
laissez faire,
individualism, and free competition.

“Steady the boat,” Chief Justice Taft had admonished the four shortly before he retired, and they were still steadying the boat.

On the left was a remarkable trio. Most distinguished was the ascetic-looking Louis D. Brandeis, the famous “People’s Advocate” whose appointment to the Court by Wilson had met the bitter opposition of Taft, Root, and five other ex-presidents of the American Bar Association. Harlan F. Stone, a granite-faced New Englander, had been dean of Columbia Law School and Coolidge’s Attorney General before his fellow Amherst alumnus appointed him to the Court. White-thatched Cardozo had been a brilliant New York State judge and legal craftsman for many years before Hoover elevated him on Norris’s and Borah’s urgings.

In the middle were the “swing men”: Roberts and Chief Justice Hughes. At sixty-four the youngest member of the Court, Roberts had been a law professor, corporation lawyer, and Coolidge’s prosecutor of the oil cases, before Hoover chose him for the Court in 1930. First appointed to the Court by Taft, Hughes had resigned to campaign for President against Wilson in 1916; he served as Harding’s and then Coolidge’s Secretary of State and returned to
the Court as Chief Justice in 1930. An old acquaintance of Roosevelt’s, Hughes had a meticulous sense of constitutional checks and balances; although the President had written Cardozo that he hoped he could have at least in part the same type of “delightful” relations with the Supreme Court that he had had with the Court of Appeals in Albany, Hughes, aside from official functions, had carefully kept his judicial distance from the White House.

Teetering on these three- or four-way divisions, the Court had followed a mixed course in passing on the social and economic measures of the 1930’s. It had upheld state moratorium laws on mortgage foreclosures, state price-fixing legislation and milk control laws. Five to four it had sustained the congressional resolution voiding gold payment requirements in private contracts, with McReynolds storming that the Constitution was “gone.” Then in staccato blows in the spring of 1935 the Court had struck down the Railroad Retirement Act, the NRA, the Frazier-Lemke Farm Mortgage Act. Most ominous for the New Deal was the solidity of the conservative four and the unpredictability of the swing men. Was Roberts—perhaps even Hughes too—now enlisted on the right for the duration?

At precisely high noon on January 3, 1936, the Chief Justice parted the center curtains and he and his eight brethren suddenly appeared behind their chairs while the clerk intoned his “Oyez” and concluded, “May God save the United States.” Slowly, precisely, hardly looking at the pages before him, Justice Roberts began the Court’s opinion in
U.S.
v.
Butler,
involving the constitutionality of the Agricultural Adjustment Act. This case concerned no horny-handed farmer rebelling against bureaucratic controls from Washington, but the refusal of receivers of a bankrupt New England textile company to pay processing taxes under the act. Their counsel, conservative old ex-Senator George Wharton Pepper, attacking the constitutionality of the act, had concluded his argument with a plaintive plea that not in his time would “the land of the regimented” be accepted as a worthy substitute for “the land of the free.”

While the packed audience waited anxiously for some clue, Roberts’ dry voice went interminably on. First he reviewed the old story of Hamilton’s broad view versus Madison’s narrow view of the power of Congress to tax for and spend for the general welfare. When Roberts plumped for the Hamiltonian view, the audience stirred with the thought that the AAA was safe. But no —now Roberts was saying that the processing tax was not merely a tax but part of a plan. And what was the plan? By the AAA “the amount of the tax is appropriated to be expended only in payment under contracts whereby the parties bind themselves to regulation
by the Federal Government.” Congress was trying to buy a compliance it was powerless to command. The asserted power of choice was an illusion.

Then Roberts conjured up a parade of imaginary horribles—things that Congress might regulate, such as shoes and education, if the claimed national power was sustained. This brought him to the heart of his real, though veiled, position. Although Roberts early in the case had said that the Court could not consider the merits of laws but could merely lay the Constitution beside the statute to see if the latter “squares with” the former—this later came to be called the “slot machine” theory of judicial review—Roberts went on to violate his own theory by questioning the whole idea of legislative power. He simply had no confidence in the capacity of Congress to act with self-restraint, or ultimately in the wisdom of the people who elected it. He feared that Congress would become “a parliament of the whole people, subject to no restrictions save such as are self-imposed.” And for this position Roberts had enlisted not only the “steady four” but Hughes as well.

“A tortured construction of the Constitution,” Stone declared in an indignant dissent for himself, Brandeis, and Cardozo. “Courts are not the only agency of government that must be assumed to have capacity to govern. Congress and the courts both unhappily may falter or be mistaken in the performance of their constitutional duty. But interpretation of our great charter of government which proceeds on any assumption that the responsibility for the preservation of our institutions is the exclusive concern of any one of the three branches of government, or that it alone can save them from destruction is far more likely, in the long run, ‘to obliterate the constituent members’ of ‘an indestructible union of indestructible states’ than the frank recognition that language, even of a constitution, may mean what it says: that the power to tax and spend includes the power to relieve a nationwide economic maladjustment by conditional gifts of money.”

Stone reminded the Court of Holmes’s famous injunction: “It must be remembered that legislators are the ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.” Perhaps the subtle barb struck home, but the “steady four” remained impassive. They had the votes.