Franklin D. Roosevelt and the Great Constitutional War: The Court Packing Crisis of 1937

Published by EH.Net (May 2003)

McKenna, Marian C., Franklin D. Roosevelt and the Great Constitutional War: The Court Packing Crisis of 1937. New York: Fordham University Press, 2002. xxvi + 612 pp. $60.00 (cloth), ISBN: 0-8232-2154-7.

Reviewed for EH.NET by Dr. Harvey G. Hudspeth, Department of Social Sciences, Mississippi Valley State University, Itta Bena, MS.

As a young graduate student at the University of Mississippi, I had originally planned to devote my dissertation to the subject of the Roosevelt Court and the Court Packing Plan of 1937. Having just read professor McKenna’s study on that very subject, I am frankly relieved that my graduate advisor talked me out of it. Franklin Roosevelt and the Great Constitutional War is a brilliantly researched, thoroughly documented book. It is probably the most definitive work ever written on the entire 1937 controversy.

In her introduction, Dr. McKenna, Professor Emeritus of Alberta’s University of Calgary, clearly outlines the points she intends to establish, namely:

1) How a “popular political leader can climb to dizzying heights” only to plunge within a short time to “an all-time low”; 2) How presidents can often assert even less influence over domestic affairs than exercise over foreign affairs; 3) How FDR was not the “master politician” that most historians have made him out to be; 4) How FDR’s Court Packing Plan, far from being a last-minute reaction to an “obstructionist Supreme Court,” was instead, “a long time in the making”; and 5) How FDR’s threat to remake the Court ultimately had no effect on subsequent Court decisions.

McKenna’s argument that neither Owen Robert’s notorious “Switch in Time that Saved Nine” vote in Parrish and Willis Van DeVanter’s subsequent decision to retire had not in any way been influenced by constitutional concerns as to the future political integrity of the High Bench are at best half-hearted. Even if these decisions were reached before Roosevelt’s formal announcement of his judicial scheme, neither justice could have possibly been unaware of the president’s ultimate intent. As McKenna repeatedly points out, the Roosevelt Administration had been working on a plan for “judicial reorganization” even before it took command of the government in 1933.

Nevertheless, McKenna does an excellent job in establishing her other points. In much the same way as Julius Caesar clearly yearned to become Emperor of Rome (before his assassination at the hands of senators concerned for the future of the Republic), Franklin Roosevelt’s de facto control of both executive and legislative branches of the federal government obviously were not enough to satisfy his perceived desire for absolute power. His “judicial reorganization bill” was consequently seen by most Americans (even his most devoted admirers of that time and afterwards) as a bald-faced attempt to achieve his final goal. In his effort to accomplish this, he single-handedly demonstrated McKenna’s point that a political leader can sacrifice his popularity without need of a Vietnam or a Watergate. He can also prove to be as ineffectual in domestic maters as a Bill Clinton with universal health care.

Dr. McKenna has also more than successfully established the fact that while Franklin Roosevelt may have been a “master politician,” he was apparently not the master politician that he thought he was – at least not to the extent that he could manipulate both the Congress and the American people into allowing him to take personal control over the judicial branch of the government. No matter how out-of-touch it might have seemed to most Americans with regard to their current economic and social problems, the idea of a future Court being at the mercy of Roosevelt or a future less-enlightened despot cut against the grain of American Democracy. As McKenna makes clear, patrician elitist that he might have been, even Franklin Roosevelt should have recognized this basic reality and responded accordingly. Coming at a time when such erstwhile tyrants as Adolf Hitler and Benito Mussolini were demanding similar “emergency” powers so as to allow them absolute power in Germany and Italy respectively, this was especially true for Roosevelt.

The book, regrettably, is not without its technical flaws. To my knowledge, Jim Farley was never secretary of the treasury (page three – of course, a simple comma could have avoided that error). Additionally, Olin T. Johnson was never governor of Alabama, but even if he had been as McKenna suggests (page 545), he never could have legally contested “Cotton Ed” Smith’s 1938 re-election bid to the US Senate from South Carolina. All of that notwithstanding, McKenna has made an excellent contribution to both the political and constitutional history of the United States – not to mention to a new understanding of our heretofore Teflon-like thirty-second president. Apparently, not even our so-called “gods” are quite as bullet-proof as some of us would seem to prefer.

In her epilogue, Dr. McKenna makes no bones in her by-now well-established contention that, as beloved and as talented and as well-intentioned as he might have been, America’s would-be emperor essentially had no clothes. In her final analysis of the President’s performance, she shines “a different and far less flattering light on Roosevelt’s political leadership, personal integrity, and character from that presented in previous accounts.” Citing both FDR and his advisors for “a series of political mistakes, bad miscalculation, and failures of judgment,” McKenna concludes that the Court-Packing fiasco constituted “the worst political defeat ever endured by a president at the pinnacle of his power.” Excluding scandals and wars, it is difficult to find fault with her conclusions.

Dr. Harvey G. Hudspeth is past president of the Economic and Business Historical Society. His essay, “The Roosevelt Court and the Changing Nature of American Liberalism: An Uncertain Legacy,” is scheduled for publication as part of Franklin D. Roosevelt and the Transformation of the Supreme Court in March 2003.