On FDR and packing the Supreme Court. What you know ain’t so, and the Platner Plan

Courtesy of the Library of Congress

https://tile.loc.gov/streaming-services/iiif/:service:gdc:gdcwebcasts:10:05:21:ct:b1:20:0:100521ctb1200:100521ctb1200_640x480_800/full/full/0/full/default.txt

It is the conventional wisdom that FDR’s threat to pack the Supreme Court in 1936, after a series of decisions that blocked much of his New Deal legislation, was a complete failure. (search on FDR and court packing and see how it’s generally presented)

That is not a correct interpretation of what happened, according to Jeff Shesol. He holds degrees in History from Oxford and Brown Universities. Served as distinguished Fellow in American Studies at Princeton University and is a Rhodes Scholar.

His book is titled, Supreme Power: Franklin Roosevelt versus the Supreme Court.

I’m going to include a few excerpts from his talk and then pivot onto Platner.

With every review that is kind enough to mention the research that went into this book I owe yet another debt of gratitude to Jeff and to the whole team in the Manuscript Reading Room. It’s a very collaborative environment down there, as some of you may know, it really isn’t just a space where you show up with a list of things that you want and pull boxes and files from the shelf, it’s really a conversation. And so much of what went into this book was generated, not by my own dog headed research, but by suggestions from Jeff in particular and others on his team down there.

I remember a conversation that Jeff and I had really just in passing one day where he said “Have you ever heard of Admiral Hobson?” And I said “Never heard of the guy”; I’d been working on this book for years. And he said “Well he’s an interesting guy. Why don’t you take a look at some of his files I’ll call up some boxes for you?”

And it just opened up a whole world for me about the grassroots organizations on the right that… agitated against Roosevelt’ s Court Packing Plan. None of that would be there in this book if not for that passing suggestion by Jeff.

He goes on to say:

In 1936, in November of 1936 as many of you know, Roosevelt was elected by one of the biggest landslides in American history. It was not simply a landslide for Roosevelt but for the Democratic Party generally. And the new Congress that began in January in 1937 was so dominated by Democrats that we were closer to one party rule than America had been since reconstruction. And the Senate at that time had 96 members, 96 for 48 states of course. Out of those 96 Senators 76 were Democrats and not even all of the remaining 20 were Republicans. And so in February of 1937 when Roosevelt launched his plan to pack the Supreme Court he seemed almost certain to prevail, in fact just about everybody including Roosevelt himself, was sure that he would get exactly what he wanted. And one member of the Senate said “Well look, if the President asked Congress to commit suicide tomorrow we’d do it.”

Six months later Roosevelt had suffered the most spectacular defeat of his political life. The New Deal was stalled, Congress, his own party in Congress and in the country was divided, his popularity had suffered the steepest decline of his presidency, and he had helped to create by introducing this Court Packing Bill.

The new conservative coalition in the Congress and a coalition of conservative Democrats, mostly from the south, and the few remaining Republicans who would confront him increasingly and block the New Deal for essentially the remainder of his presidency.

I found as I began my research that the court fight is one of those events in American history that is often referenced. It comes up in all kinds of accounts and even in the popular press today references to Roosevelt’s ill-fated Court Packing Plan. It’s one of those things that’s often mentioned but it’s never really well explained. If it’s explained at all it tends to get reduced to a neat parable of presidential overreach.

So what this creates then is a sense that there are really these two Roosevelt’s. That there’s this Roosevelt of the 100 days, the Roosevelt who dispelled fear itself simply by giving that magnificent speech in March 1933, the Roosevelt that we all know and that many of us love.

Then there’s the Roosevelt of the court fight who seems to be arrogant, hubristic, and clouded in his judgments. And then after the court fight the clouds clear and he goes back to being the Roosevelt that we all know and many of us love, the Roosevelt who leads us to victory in World War II.

This never really washed for me. It never really seemed to me that there could be two different Franklin Roosevelt’s. And so I got into this really to answer a question for myself, can you reconcile the Roosevelt that we think that we know, and then the Roosevelt in this weird apparent aberration of the court fight.

That was one question that led me to decide to write this book. There were a couple of others concerning the other two branches of government with the respect of the Supreme Court, which switched in the famous Switch and [sic] Time That Saved Nine.

The court that had been striking down the New Deal, as I’ll describe, suddenly began upholding the New Deal in the middle of the Court Packing fight.

Was it really simply giving into political pressure or was there something else going on? This too I wanted to understand. And finally, what led the Congress, which had given Roosevelt essentially everything he had asked for of any significance during his first term, what led this Congress that came in on his coattails to defy him on the first thing he asked them to do in his second term?

So I came to see the court fight as essential to understanding Roosevelt’s presidency and really his times. This was the defining conflict, this conflict between Roosevelt and the Supreme Court, and Roosevelt and his conservative critics. It was the defining conflict of his presidency in the years before World War II.

And the stakes, as both sides saw it, were nothing less than the survival of democracy.

Roosevelt and his supporters really felt that if they couldn’t find a way to pass social and economic reforms, if they couldn’t find a way to pull the country out of the Depression that there would be a total social and economic collapse in the country there would be violence and dictatorship in the way that you say in Europe.

This was a very real fear for many people in this country, including Roosevelt himself.

On the other side, on the right there was a very strong belief that if Roosevelt was able to centralize power in Washington to the extent that he was seeking to do, and if he was able to pass these experiments in the form of the New Deal, then it would extinguish many of the principles on which this country was founded.

It would erode property rights, it would extinguish individual liberty, we would be living in their view in a socialist, collectivist, regimented society and democracy would be extinguished.

So both sides saw the stakes in similar apocalyptic terms. And really in this moment America is poised in the middle of a fundamental argument.

Much like our situation today…. Do we fall to a fascist, authoritarian regime, or can we save the country with a democratic form of government?

From LeverNews

When asked by The New York Times about his theory of political power, he (Platner) used the opportunity to tell the paper’s liberal audience what actually happened: 
“I’m going to use the example of F.D.R. F.D.R. implements a bunch of New Deal programs. The Supreme Court says a lot of these might be unconstitutional. We’re going to rule that they’re unconstitutional, and we’re going to shut down the New Deal programs and progress. 
Then F.D.R. — much to the chagrin of his own party, I may add — threatens to pack the court. Suddenly, overnight, no change to the words in the policies, everything became constitutional. 
Power is more than just the words on the page. Power is something that needs to be used when you have it.
When you look at American history, when you look at moments in which the nation was in crisis and when large programs were necessary, when things needed to be protected or when new things needed to be built, it wasn’t enough to simply stay within the norms of the institutions as they had been built recently. You had to create new forms of power. You had to use them. I would say in the recent past, the Democratic Party has not had a theory of power.”

Graham Platner

Back in 2022, Biden rejected trying to reform the Supreme Court, in what I would call a big mistake, given the ideologically driven decisions the Court has made since then, based on little more than their own political preferences.

Why is President Joe Biden opposing court expansion and why is House Speaker Nancy Pelosi refusing to allow a vote on the idea?
Why is the Democratic Party defending a GOP-packed, corporate star chamber that polls show most Americans no longer trust?
One answer is political malpractice. Another answer: complicity.
Party leaders may be sending out fundraising emails slamming the John Roberts Court, but they have eschewed court expansion, halted the once-common practice of legislatively overriding justices, and declined to quickly fill lower-court vacancies before a midterm election that could eliminate their Senate majority.

David Sirota, 2022
https://jacobin.com/2022/07/fdr-was-right-to-attack-the-supreme-courts-power-democrats-should-do-the-same-today?ref=levernews.com

In closing, Platner is the only political candidate calling for Democrats to get up and get things done. To take the power that, providence willing, the voters will hand them in November. Power never cedes anything willingly, power must be taken (and used for goodness).

If LBJ wasn’t as skilled as he was in the art of power and political arm twisting as he was, we would never have had a Voting Rights Act of 1965 for today’s Supreme Court to dismantle; or a Civil Rights Act of 1964, that I firmly believe the Supreme Court has set its sights on for the near future.

With any luck, the threat of Supreme Court reform will be enough to cause the court to, at least, dial back its headlong rush to erase the 20th Century. That will give us time to thoughtfully plan Supreme Court reform and to enact it.

If the Democratic Part fails to act once again, we are doomed.