Christine M. Flowers: The moment when even FDR went too far

Posted: August 12, 2011

SOME READ to inform themselves, some to distract themselves and some to finish Sister Joann McIlhenny's summer reading list. I've done all three. Right now, I'm engrossed in a 601-page book (with footnotes) that reads like a thriller even though I already know what happens in the end: The president loses.

It's called "Supreme Power," and it's about President Franklin D. Roosevelt's disastrous court-packing plan, the one he devised to save his New Deal from annihilation by a conservative Supreme Court majority. Author Jeff Shesol provides a fascinating view of the controversy, which tarnished Roosevelt's otherwise sterling reputation. And it holds some important lessons for us some 75 years later.

The New Deal was designed to pull us out of the Depression, creating federal jobs, repairing infrastructure and establishing the first and (until recently) least-controversial entitlement in history: Social Security. FDR was able to sell the deal to citizens desperate for more than the dime that Big Brother was willing to spare. The conventional wisdom is that the New Deal played some role in helping us rebound from a major economic slump.

And yet Americans also felt uncomfortable about the increasing power of the federal government. Uncle Sam began to look like a guy on steroids, flexing what some believed were unconstitutionally enhanced muscles.

So the fight began. A five-man conservative majority, including Philadelphia homeboy Owen Roberts, started striking down New Deal legislation, including parts of the National Recovery Act. After one particularly bad day for the feds, the Wall Street Journal opined that "the Constitution had survived the Depression."

Those six words summed up the crux of the controversy.

People who supported FDR believed that the Constitution authorized the type of federal control over the economy championed by the administration. But there were an awful lot of Americans (not just the ones wearing black robes) who believed we were edging ever-closer to being a socialist state where private enterprise would be demolished.

Sound familiar?

FDR's response was to try to pack the court with liberal yes-men who'd follow his lead. He decided that if the court was going to stand in the way of his grand plan, he was going to neutralize it and protect his New Deal from the judicial onslaught by getting Congress to enlarge the court by two.

He failed, of course, much to the relief of everyone who believes the Constitution isn't a plaything for petulant presidents.

Fortunately for Roosevelt, the memory of that fiasco was overshadowed when the Japanese decided to bomb Pearl Harbor. We now remember the 32nd president as the man who ushered us through the darkest days of World War II with eloquence and courage. And after we learned about his very personal struggle with polio, it only enhanced his standing in the history books.

But had his public life ended immediately after the court-packing was defeated, it's unlikely that Eleanor's hubby would be judged so indulgently by posterity.

This book has given me some insight about what's happening today in Washington.

The parallels, while not identical, are strikingly similar. Democratic presidents are elected to change direction after unpopular GOP administrations. Both are Ivy-educated elitists who make appeals to the common man. Both see government as the agent of social change, less concerned with the legality of particular actions than their results.

FDR had the New Deal, and became so convinced he had a mandate from the American people that he was willing to trash a co-equal branch of government.

President Obama has had his own opportunity to show that same kind of hubris. He's let the Justice Department refuse to defend laws he doesn't like, such as the Defense of Marriage Act. He pushed through a health-care law that contains constitutionally questionable requirements (like the individual mandate) when most people thought he should have been working on creating jobs.

He even had his own Supreme Court moment when he insulted the justices at the State of the Union because he disagreed with the ruling in the Citizens United case.

The final word hasn't yet been written on his legacy. But, unfortunately for the president, the skies over Pearl Harbor are looking pretty clear these days.


Christine M. Flowers is a lawyer.

Email cflowers1961@yahoo.com.

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