In the spring of 1934, Rexford Guy Tugwell, a former Columbia University economist and an original member of Franklin Roosevelt’s brain trust, scribbled in his diary that Louis Brandeis “was declaring war” against the New Deal. The problem was simple: Brandeis stood against the enlargement of government functions.
Tugwell and other proponents of the early New Deal measures saw the aging justice as the champion of an outmoded atomistic individualism, but Brandeis had mixed feelings about Roosevelt’s programs. On the bench, his credo of judicial restraint led him to support most congressional attempts to ameliorate the Great Depression, and he strongly approved of some of the experiments of the 1930s. But when Roosevelt, frustrated by the conservative bloc on the Court invalidating one New Deal law after another, tried to pack the Court with friendlier judges, a furious Brandeis took an active and highly effective role in helping to defeat the plan.
Roosevelt once said, “Brandeis is one thousand percent right on principle,” and then added, “But in certain fields there must be a guiding or restraining hand of Government because of the very nature of the specific field.” The justice might have agreed with that sentiment, but not with the way the New Deal implemented it.
BRANDEIS HAD KNOWN about Franklin Roosevelt ever since the young man served as assistant secretary of the navy in the Wilson administration and had run as the vice presidential candidate on the Democratic ticket in 1920. During the following decade Felix Frankfurter and Roosevelt, who had met during the war, became friends, and after the 1928 defeat of Al Smith for the presidency Frankfurter saw Roosevelt as the likely Democratic nominee in 1932. A few weeks after the election the justice met with the president-elect and reported, “He has learned much; and realizes, I think, the difficulties of the task.”
Franklin D. Roosevelt, 1933
Although Frankfurter turned down—partly at Brandeis’s insistence—the position of solicitor general, the Harvard professor remained an important adviser to the president, and became a one-man employment agency as he directed dozens of his former students to Washington to work in New Deal agencies. Some of these young men had been clerks to Brandeis or Holmes, and kept the justice informed on the latest developments in their work. Frankfurter also served as the conduit by which Brandeis sent bits of advice to the White House. Occasionally, the president asked Brandeis to come to the White House, and after one visit declared, “I had a most satisfactory talk with Justice Brandeis before he left [for Chatham]. He has and is a ‘great soul.’”
Brandeis and his ideas had such a powerful influence because the Depression laid bare many of the problems that had been hidden by Republican prosperity, and that Brandeis had been arguing about for more than two decades: manipulation of stocks and securities, the overweening power of big banks, irregular employment, and, of course, the curse of bigness. While the men gathered in the original brain trust, such as Tugwell, Adolf A. Berle Jr., and Raymond Moley, preached government regulation of business and protection of labor—both ideas requiring the expansion of government power—many of the young men who came to Washington in the 1930s found the Brandeis view more attractive, and people such as Thomas Corcoran, Benjamin Cohen, William O. Douglas, Jerome Frank, and David E. Lilienthal gravitated toward Brandeis. With his shock of white hair, the aging justice looked more and more like an Old Testament prophet, and the president and others in the administration began referring to him as “Isaiah.”
Paul Freund, clerk for the 1932 term
Hosts of young New Dealers came to see the justice at the Monday afternoon teas, where he would grill them on their work and the accomplishments of their agencies, and he basked in their company. To a cousin he wrote, “Life in Washington now is striving, intellectually far more so than I have ever known it. There is much noble thinking and high endeavor,” although he noted also a great deal of impatience. Occasionally, Brandeis could offer solutions to particular difficulties. Hallie Flanagan, the director of the Federal Theatre Project, had a problem, and she talked about it with James Landis, a former Brandeis clerk who had roomed with her husband at Harvard. The law creating the project prohibited the payment of royalties to authors, which Flanagan considered decidedly unfair to the playwrights. Landis took her to see Brandeis, who after a moment came up with a perfect way out: instead of paying royalties, they should rent the plays on a weekly basis.
Because of his extensive connections, New Dealers from the president down asked the justice if he knew someone for a particular slot, or for his opinion of a potential nominee. For only one position did Brandeis go directly to Roosevelt. In late November 1932, Alice Brandeis called Paul Freund, the justice’s clerk that term, and told him to arrange a car for the next day to take her husband to the Mayflower Hotel, where the president-elect had set up his headquarters. Then, she said, you must call Roosevelt’s people and tell them that all the windows must be closed because the justice cannot tolerate drafts. Freund decided to go down to the Mayflower that afternoon to scout the area, determine where the meeting would take place, and locate the elevators. He rather diffidently conveyed Mrs. Brandeis’s instructions, only to be told not to worry; Roosevelt did not like drafts either.
The next day Freund accompanied the justice to the hotel, went up in the elevator with him, and then waited outside the door while Brandeis and Roosevelt spent about a half hour together. On the way back in the car the jurist told his clerk that he had had only one mission that day, to recommend Frances Perkins as secretary of labor. Roosevelt, of course, knew Madam Perkins well from his days in New York politics, and already had her under consideration. When Roosevelt announced his cabinet—including Perkins—in late February, Brandeis heartily approved. In Perkins, he declared, “we have the best the U.S. affords, and besides it is a distinct advance to have selected a woman for the Cabinet.”
Although influential, Brandeis did not have the power that critics attributed to him. A recrudescent anti-Semitism in the 1930s charged that Cardozo, Frankfurter and his “happy little hot dogs” (all Jewish of course), Herbert Lehman, and the president (whose real name was Rosenfelt) worked under the direction of the chief Jew, Brandeis, in the “Jew Deal.” The house of Morgan blamed many of its troubles on Brandeis, and believed that the recent reissue of Other People’s Money had led to the Glass-Steagall Act and its prohibition against banks selling stocks. Russell Leffingwell told Thomas Lamont that he had no doubt that Brandeis had been directly responsible for the law, perhaps even had drafted it. “The Jews do not forget. They are relentless,” he claimed. “I believe we are confronted with the profound politico-economic philosophy, matured in the wood for twenty years, of the finest brain and the most powerful personality in the Democratic party, who happens to be a Justice of the Supreme Court.”
Scholars disagree on whether there have been one, two, or three New Deals, but there is a consensus that the laws passed in 1933 differed significantly from those passed later. The so-called First New Deal reflected the ideas of Theodore Roosevelt’s New Nationalism, as well as ideas of cooperation between business and government gleaned from the war. The Second New Deal had as its antecedent the New Freedom as expounded by Wilson and Brandeis, as well as a strong aversion to monopoly and Wall Street. But during the alleged New Nationalistic phase Congress passed a decidedly Brandeisian measure in the 1934 Securities Exchange Act, while some of the post-1935 laws could hardly be described as “Brandeisian.”
Because of the severity of the Depression, Roosevelt and his advisers had insufficient time to plan a coherent policy and instead attacked particular problems piecemeal, trying to satisfy as many constituencies as they could. Roosevelt compared the Depression to a crisis as grave as war itself, and the New Deal in its various measures called upon powers never exercised by the government in peacetime. No one doubted that nearly every one of them would be challenged in the courts.
BY ROOSEVELT’S INAUGURATION on 4 March 1933, thirty-eight states had closed their banks, and night seemed to have fallen when the governors of New York and Illinois suspended banking operations in the nation’s two leading financial centers. That same day the New York Stock Exchange closed, as did all the regional commodity and stock exchanges. When Roosevelt took the oath of office, he exclaimed with as much literal as figurative truth that “the money changers have fled from their high seats in the temple of our civilization.” When Brandeis heard of the Michigan closings, he termed it “a striking manifestation of the Curse of Bigness,” an example of how great corporations, with huge amounts of cash at their disposal, can ruin not only a bank but the individual depositors by transferring their balances. Until they could get honest bankers, however, no remedy would fix the system.
The morning after he took office, the president called Congress into special session, to start on 9 March, and then, acting under the rather doubtful authority of the old 1917 Trading with the Enemy Act, issued a proclamation halting all transactions in gold and declaring a national bank holiday. Roosevelt understood that most of the banks were sound but lacked the liquidity to survive a sustained run on deposits. He went on the radio and told the American people that government examiners were auditing the banks and that after the weekend, if a bank opened, then depositors could be sure their money would be safe. In fact the government lacked the personnel for more than a cursory examination of the banks’ books, but psychologically the ploy worked. Although in some ways little more than showmanship, the bank holiday gave the appearance of action—something that had been sorely missing in the Hoover years. On the following Monday people lined up well before the banks opened, but this time to put money into their accounts.
The Congress that convened on 9 March waited for word from the White House as an army awaits orders from a commanding general, and one after another Roosevelt sent bills up to the Capitol—bills on banking, relief, agriculture, public works, labor, conservation—and the Democratic Congress passed them, at times without copies available for all the members to read.
On 21 March, Roosevelt asked Congress to approve a relief measure to put some 250,000 people to work and to send large amounts of money to the states for relief programs. The men would be put to work on conservation, flood control, and other public works projects. The proposal “was just what I should have wished him to say,” Brandeis explained, “except that it asks for only a trial order. I want 10 times as much. Perhaps he does also, and this is merely his trial balloon. He certainly has the most extraordinary political sagacity.” In fact Roosevelt did want more, and in the Public Works Administration, the Civilian Conservation Corps, and the Works Progress Administration the government would give jobs to millions of unemployed men and women.
Then, on 12 April, at the president’s request, Brandeis went to the White House and “had a satisfactory hour with FDR.” They discussed where Dean Acheson would best fit into the administration, reform and expansion of postal savings as an alternative to banks, the need to protect the common person’s savings account, and the demand for greater public works programs. Roosevelt mentioned that Myron Taylor, the president of U.S. Steel, had recently been in, and as the justice told Frankfurter, this gave him the opportunity “for a few words on Bigness and Overcapacity.” Roosevelt wanted Brandeis to look at some papers that Taylor had left, and since he could not find them immediately sent them over later by courier. The one thing Brandeis and Roosevelt did not get a chance to discuss involved the growing plight of German Jews at the hands of the Hitler regime, a problem that would concern Brandeis for the rest of the decade.
One facet of the president’s leadership that caused dismay among conservatives did not bother Brandeis all that much—the willingness to experiment. During the campaign, when critics tried to pin him down on what specifics his New Deal would include, Roosevelt would not tell them (primarily because he did not yet know) but instead said that if they tried one program and it did not work, then they would try something else until they found the right answer. “F.D.’s readiness to experiment is fine,” Brandeis said, although he had doubts about the financial manipulations involved with going off the gold standard. “I wish he would experiment instead with banishing the bankers … and putting on heavier estate taxes.” When he learned the full implications of the abandonment of the gold standard, the justice was horrified.
ON 19 APRIL, Roosevelt announced that he had taken the United States off the gold standard. He did so in part to forestall more radical measures that proinflationists had introduced into Congress, and also to counter the severe deflation in wages and prices then gripping the country. Gold would no longer be used for the satisfaction of either public or private obligations, although all government bonds and nearly all private contracts specifically called for payment in gold as a hedge against devaluation of paper currency. While the action appalled some conservatives, others recognized it as a stroke of near genius. Russell Leffingwell of the house of Morgan wrote to the president that the action “saved the country from complete collapse. It was vitally necessary and the most important of all helpful things you have done.”
Brandeis expressed himself in far less complimentary terms. The action “is terrifying in its implications.” A declaration of bankruptcy, he charged, “is honorable if warranted by existing conditions. But the deliberate repudiation by the Government of its own obligations, entered into freely in contemplation of the contingency which has arisen and for the purpose of dealing with it, involves an alarming application. If the Government wished to extricate itself from the assumed emergency, taxation would have afforded an honorable way out.”
The Court heard three challenges to the gold policy in January 1935, and seven of the justices considered the government repudiation of the gold clause in its own obligations unconstitutional, while a narrow 5–4 majority upheld the government’s right to alter the terms of private and corporate contracts. In fact a majority would have liked to strike down the nullification of the gold clause in private contracts, but Hughes and four other members of the Court, including Brandeis, understood that for the past two years the business of the country had been on a paper currency basis, and to require debtors to pay back their borrowings in gold would have driven many small firms out of business. To allow the holder of a government bond to collect $16,931.25 on a $10,000 bond would be unjust enrichment. Moreover, even if the government had acted unconstitutionally, John Perry had not shown, or even tried to show, that as a government bondholder he had sustained any loss whatsoever. Not since Marbury v. Madison had a chief justice come up with such an ingenious way out of a political thicket.
But Hughes would not let the government off the hook so easily, and Brandeis approved of the tongue-lashing the chief justice administered the government. Hughes scolded the government, according to one witness in the courtroom that day, “in a voice that sounded like that of a Secretary of State rebuking Latin American banana republics for their repudiations.” As to the Roosevelt administration’s claim “that the Congress can disregard the obligations of the Government at its discretion and that, when the Government borrows money, the credit of the United States is an illusory pledge,” he replied, “We do not so read the Constitution.” Hughes’s denunciation of the government may have been the only thing that kept Roberts from joining the Four Horsemen, who, speaking through McReynolds, objected in all of the gold clause cases. In his dissent McReynolds declared that “loss of reputation for honorable dealing will bring us unending humiliation,” but he brushed aside his written opinion and in a rage declared, “This is Nero at his worst. The Constitution is gone. Shame and humiliation are upon us.”
When Felix Frankfurter came down to Washington the following week, he asked Brandeis why he had not asked any questions at oral argument. The justice replied that he already knew where he stood, and he was completely out of sympathy with what the government had done, so “I thought it best to say nothing.” He was glad that Hughes had not asked him to write the decision, since he completely abhorred the morality of the repudiation.
A jittery president received news of the decision with a sigh of relief, and he rather smugly told Joseph Kennedy that the Court had finally “put human values ahead of the ‘pound of flesh’ called for by the contract.” The administration had been prepared to shut down the New York Stock Exchange to avoid what it anticipated would be the financial chaos resulting from an adverse ruling. Roosevelt had also prepared a radio address to calm the nation, and he could now put it away. Raymond Moley drily suggested that Roosevelt keep the speech in a drawer nearby for the time when the National Industrial Recovery Act, or NIRA, would be declared unconstitutional.
NO PART OF THE NEW DEAL went so much against Louis Brandeis’s beliefs as did the NIRA, nor did any other law so personally discomfit him. The heart of the NIRA revolved around Roosevelt’s belief that the crisis of the Depression could revive the spirit of cooperation that he believed marked business-government relations during the Great War. Business and labor leaders had come to Washington ready to work together to do what the country needed to produce war material and get it to the men at the front. Everyone had realized that the normal rules, such as antitrust laws, made no sense in wartime, and that to secure the full contribution of workers, concessions had to be made to their legitimate demands. To Roosevelt, fighting the Depression would give Americans the chance to show their better side by working together for a common goal—recovery.
The basic idea involved getting all of the firms in a single industry to work together in hammering out a code of fair conduct that would have the force of law. Everybody got something. Business received permission to draft code agreements free from the antitrust laws, although another section declared that nothing in the bill would suspend the Sherman and Clayton acts. The long-standing proposal for federal incorporation of interstate business emerged in a new form, with federal licensing through approval of the codes. Section 7(a), patterned after the policies of the National War Labor Board, guaranteed the rights of workers to join unions and to bargain collectively with management. The fair labor provisions set out both maximum hours and minimum wages. The National Recovery Administration would oversee all of these provisions (with the exception of the massive $3.3 billion public works program), enforce the codes, and, when an industry could not reach agreement, had the power to impose a code. All codes approved by the president would have the force of law. The preamble to the act read like a lawyer’s brief, justifying the measure as a legitimate response by Congress to removing burdens on interstate commerce. Some of the drafters believed the law would not withstand a constitutional challenge, and many in Congress voted for it in the belief it would be in effect only two years, and thus could possibly evade review by the Supreme Court.
Even if there had been no conservative bloc on the Supreme Court, the sloppy legislative draftsmanship of most of the early New Deal measures, as well as the poor quality of the lawyers in the attorney general’s office who defended these cases before the Court, would inevitably have caused the administration trouble with the judiciary. The cavalier attitude of many New Dealers toward constitutional considerations bothered all the members of the Court. Brandeis, while sympathetic to some of the Roosevelt program, commented caustically on what he called the president’s kunststücke, or “clever tricks,” by which he tried to sneak things through. Even while they adhered to their stance of judicial restraint and gave the administration the benefit of the doubt, Brandeis, Stone, and Cardozo found some of the New Deal measures personally distasteful.
The first case involving the NIRA, Panama Refining Co. v. Ryan (1935), displayed many of the problems New Deal laws would face, and would be a harbinger of those to follow. To maintain stable oil prices, several states had imposed maximum production limits on wells within their borders. Section g(c) of the NIRA, the so-called hot oil clause, gave the president power to bar interstate shipment of oil produced in excess of state limits, a policy akin to the earlier Webb-Kenyon Act of 1913, where federal power had been used to enforce state prohibition statutes.
The justices listened in amazement as counsel for the oil producers told how they had been unable to secure copies of the regulations and of the slapdash way in which these rules, which had the force of law, had been promulgated. At one point Brandeis asked Assistant Attorney General Harold Stephens, “Is there any way by which to find out what is in these executive orders when they are issued?” An embarrassed Stephens confessed that no general government publication carried the orders and that they would be “rather difficult” to obtain, although he believed that certified copies could be gotten from the NRA.
By a vote of 8–1 the Court held section g(c) unconstitutional. Al though Congress could certainly delegate power to the president to regulate aspects of interstate commerce, in this instance the legislature had failed to provide the executive with sufficient guidelines. Chief Justice Hughes considered the delegation so sweeping that approving the law would wipe out any “limitations upon the power of Congress to delegate its law-making functions.” Only Justice Cardozo dissented, arguing that the statute had been designed to preserve natural resources and that Congress had not abused its authority. But even he condemned the administration for its slipshod practices.
(Later in 1935 the House Judiciary Committee deplored the “utter chaos” involved in promulgating NRA rules, and Congress created the Federal Register in which all administrative rules having the force of law and proposals for changing them must be published. The proposal for such a publication had been made earlier by Erwin Griswold of Harvard Law School, who sent the article to Brandeis, who no doubt had it in mind when he grilled Stephens. Griswold now wrote to commiserate with Stephens, and got his cooperation in pushing the measure at the same time that other members of the administration recognized the need for it.)
UNLIKE THE GOLD CLAUSE CASES, in which Brandeis had for the most part remained silent, he was quite active in the “hot oil” case. He not only vigorously questioned the government attorney but also had prompted his “brethren on either side to ask some of their questions.” After the conference the chief justice asked Brandeis if he would care to write the opinion in light of an extremely unfortunate episode involving General Hugh Johnson. Brandeis thought about it, but believed it would be better if the chief wrote it. He wanted to call no more attention to what had been a painful matter.
Roosevelt had named Johnson to head the National Recovery Administration. The general had helped organize the draft in the war, and Roosevelt had known him as the army liaison to the War Industries Board. A bombastic man, he flung himself into the work, helping industries write codes and drumming up support for the program. The NRA adopted a symbol, a blue eagle, with the legend “We Do Our Part.” Johnson led a parade of a quarter-million people down New York’s Fifth Avenue, and the NRA eagle appeared everywhere, in shop-windows, on newspaper mastheads, and even on chorus girls.
Shortly after his appointment Johnson had called Brandeis, then at Chatham, to ask his advice. Brandeis had met Johnson during the war, when he had been an aide to General Enoch Crowder, who occasionally came to the justice to discuss problems of war production. Brandeis told Johnson that labor unions had to have real protection and that unless the government could secure regularity of employment, there would be no hope for recovery. He promised that he would meet with Johnson when he returned to Washington at the end of September. When they did get together, Brandeis laid out his concerns about the NRA, namely, the impossibility of enforcement, the dangers to small businesses, and the innate inefficiency of the big unit. He said that he thought Johnson as capable a man as any, but that he had an impossible job.
By the spring of 1934 the initial public enthusiasm for the NRA had faded, and criticism poured in from every side. Brandeis told his daughter Elizabeth that he thought the NRA was “going from bad to worse.” In March, Roosevelt created the National Recovery Review Board and named Clarence Darrow to head it. After a brief study, the Darrow group reported that giant corporations dominated the NRA code-making practices and squeezed small business, labor, and the public. A furious Johnson began to drink even more heavily than usual. In May he came to see the justice, who described him as “a crushed man.” Brandeis again told him that the job was impossible, and the best thing that could be done was to liquidate the NRA as soon as possible. To Frankfurter he said he thought Johnson “had showed manliness in coming to me who had predicted failure, instead of avoiding me as most men would have done. I am sure he felt I was his friend.”
Then, in a radio address on 14 September, in which Johnson criticized labor in general and textile union leaders in particular, he suddenly blurted out: “During this whole intense experience, I have been in constant touch with that old counselor, Judge Louis Brandeis.” The next few weeks saw Brandeis pilloried in some newspapers; the Chicago Tribune called it a departure from American custom and from judicial ethics which “is as truly revolutionary as any project in the program of the New Deal.” Several newspapers demanded that Brandeis recuse himself from cases involving the NRA.
Brandeis could not understand Johnson’s actions and noted that “the General seems to be worse. One from the Labor Dept. spoke of him as a ‘maniac.’” It must have been more than liquor, he concluded, because it was not only an indiscretion but also a lie. From the very beginning he had told Johnson that he “was ag’in the Experiment.” He warned Frankfurter that if Roosevelt did not shut Johnson up or remove him, the president would also be embarrassed. Frankfurter contacted the White House, but Roosevelt already knew he had to rid himself of Johnson. Within a few days Johnson had offered his resignation, which Roosevelt immediately accepted.
The president thought about having Johnson apologize publicly to Brandeis, and through their common friend Julian Mack asked the justice what to do. Mack called the Brandeis apartment to set a time when he could talk to the justice. Mrs. Brandeis immediately called Paul Freund, then in the solicitor general’s office, and had him come to California Street to handle the conversation. Mack explained to Freund what the president offered; Freund relayed the message, and Brandeis responded, “Tell the General to say nothing.” Freund told Mack what Brandeis had said, and Mack exploded. “Did you tell him what I said?” “Yes,” Freund answered. “Tell him again!” Freund did, and Brandeis repeated his answer, adding that he would explain the facts to the chief justice. Brandeis understood that the incident should be allowed to die as quickly as possible, and the erratic Johnson might well add fuel to the flames in his “apology.”
The idea of having to recuse in the upcoming NRA case was “not agreeable to contemplate,” but Brandeis did not want to do anything that would jeopardize the Court or the legitimacy of the ruling. The justices were then filing back into Washington in advance of the opening of the October 1934 term, and he went to see each of them personally to explain the facts. None of them thought he should recuse. Neither did he answer Johnson, but wrapped the judicial robe around himself and kept silent, correctly anticipating that before long the whole episode would be forgotten. The incident, he said, “must be regarded as a casualty, like that of being run into by a drunken autoist, or shot by a lunatic.”
Neither Brandeis, the press, nor most of the men and women he spoke with during the 1930s considered his advice a breach of judicial ethics. One syndicated news story carried the headline “BRANDEIS’S VIEWS VITAL FORCE WITH NEW DEAL,” and noted that Washington insiders could not recall any justice in their memory who would not discuss social and economic questions “with at least a select few.” Brandeis during the 1930s, however, spoke with more than just a “few.” As one of his clerks noted, he did not tell them anything new, but rather repeated the ideas he had been developing all of his life. Nor did the unpleasantness of the episode stop him from continuing to meet with New Dealers seeking his counsel.
NEW DEALERS WORRIED about the conservatism of the Court saw their fears justified on 27 May 1935—Black Monday—when in three cases a unanimous Court not only struck down the NIRA but also called into question the extent of presidential and congressional power to fight the Depression.
The Court handed down its decisions that day in the new building that William Howard Taft had planned, and which one of the justices called the Temple of Karnak. Justice Brandeis began the morning by invalidating the 1934 Frazier-Lemke Act. Faced with the growing number of farm foreclosures, Congress changed the bankruptcy law to allow a farmer to buy back his farm and then make deferred payments on the debt. If the bank refused to enter into such an agreement, the farmer could then make payments to a court that would disperse the money to the bank. A Louisville bank had foreclosed on William Radford Sr. and taken possession of his farm. When he tried to make an arrangement under the new law, the bank refused, and the two parties went to court, with the bank arguing the unconstitutionality of the Frazier-Lemke Act.
A unanimous Court agreed. Although Brandeis conceded that the government had the power to change the terms of federal bankruptcy law, it could not out and out transfer property to a debtor that now belonged to the creditor. If Congress changed the law, it could apply only to future mortgage arrangements. The Louisville bank owned the former Radford farm, and the government could not force it to give it back. The law, Brandeis held, violated the Fifth Amendment prohibition against taking private property without just compensation. As for the Court’s holding in Blaisdell a year earlier, Brandeis noted that the state mortgage moratorium had done no more than change the time and manner for debtors to pay their loans and avoid foreclosure. Here the debtor no longer had a property interest in the farm.
Brandeis then sat back and, while he kept his face impassive as always, listened with deep satisfaction as Justice Sutherland read the Court’s opinion in Humphrey’s Executor v. United States. Brandeis had entered a strong dissent in Myers v. United States less than a decade earlier, protesting Taft’s opinion that the president had authority to remove any executive branch officer without senatorial approval. In that dissent Brandeis had pointed out that separation of powers had been adopted by the Framers “not to promote efficiency but to preclude the exercise of arbitrary power.”
Roosevelt had consulted with James Landis, who had been Brandeis’s clerk at the time of Myers and who, although sympathetic to his judge’s dissent, had assured Roosevelt of his authority to fire William Humphrey, a conservative advocate of big business, from the Federal Trade Commission. The president had dismissed Humphrey because he feared the adamant conservative would sabotage New Deal programs.
The reasons for the firing mattered not to the Court. In Myers the president had fired a postmaster, a position that had traditionally been part of the federal patronage system. While Sutherland, Van Devanter, and Butler had joined Myers out of deference to Taft, they clearly had not agreed entirely with his broad assertions of presidential power. Sutherland noted that Congress, in setting up the independent commissions, had intended them to be just that—independent—and therefore protected from political firings. Unlike the post office, the FTC “cannot in any proper sense be characterized as an arm or an eye of the executive.”
The most important case that day, the one that everyone had been waiting for, involved the National Industrial Recovery Act, Schechter Poultry Corp. v. United States. The Court had heard arguments over two days on 2 and 3 May, and the decision came down only three weeks later. Although the Court as a matter of jurisdictional practice tries to decide cases on the narrowest basis possible, Chief Justice Hughes posed three major questions: Did the economic crisis create extraordinary government powers? Had Congress lawfully delegated power to the president? Did the act exceed the government’s authority under the Commerce Clause? This radical departure from the traditional procedures convinced many observers that not only Hughes but the entire bench wanted to kill off the NRA and then make sure it stayed dead.
In Blaisdell, Hughes had agreed that emergencies could call forth latent powers not explicitly spelled out in the Constitution, but in Schechter he reversed himself completely, declaring that “extraordinary conditions do not create or enlarge constitutional power.” Hughes dispatched the second question by reiterating the Court’s objections in Panama Refining. Congress had the power to delegate, but the NIRA gave “a sweeping delegation of legislative power,” a blank check by which private parties could write codes that would then be enforced as the law of the land. (Justice Cardozo, in his concurrence, described the problem as “delegation running riot.”)
In answering the third question, Hughes took an exceptionally restrictive view of commerce. He revived the old—and what many thought had been abandoned—distinction between the direct and the indirect effects of local activity on interstate commerce. Only those activities that directly affected interstate commerce fell within the reaches of federal power. The kosher chicken market run by the Schechter brothers in Brooklyn had no direct effect, and very little indirect effect, on interstate commerce, and thus could not be regulated by Congress.
Roosevelt received the news in shock and could not believe that all three decisions had been unanimous.
“Well, what about old Isaiah?”
“With the majority,” replied one of his legal advisers.
“Where was Cardozo? Where was Stone?”
“They too were with the majority.”
Why Roosevelt should have expected “old Isaiah” to support the NRA is puzzling. Throughout 1933 and 1934, Brandeis had made clear to a number of top New Dealers and to the president himself that he considered the program wrongheaded as well as impossible to administer. He and his followers had reiterated their opposition to government centralization and the curse of bigness, and had called for vigorous enforcement of the antitrust laws. Brandeis believed that “our Court did much good for the country,” and he asked Ben Cohen to deliver a message to Felix Frankfurter. “You must see that Felix understands the situation and explains it to the President. You must explain it to the men Felix brought into the Government. They must understand that these three decisions change everything. The President has been living in a fool’s paradise.” When Hughes had wondered whether three such defeats should be inflicted on the administration the same day, Brandeis declared that he saw no problem. He wanted to jolt the president and his advisers awake.
ALTHOUGH ROOSEVELT DECLARED that the Schechter decision relegated the country to the horse-and-buggy definition of interstate commerce, many in the New Deal breathed a sigh of relief. Other than its public works components, the NRA had never worked, and even the president had become aware of its flaws. Other New Deal programs, however, had worked, and with one exception the Court attacked them as well, only this time with Brandeis, Stone, and Cardozo in the minority.
Brandeis had never liked the Agricultural Adjustment Act. The law imposed crop quotas and gave government price guaranties to those who participated, paid for by a tax on processors, and had proved successful in raising farm income. Although concerned about the plight of the rural poor, Brandeis worried about the growing size of government agencies, and he expressed his doubts to Tugwell, Henry Wallace, and Gardner Jackson, who served in the AAA as legal counselor of consumer affairs. Instead of reducing output through government-imposed quotas, the government, he thought, should buy up land and then lease it to farmers who would work it in smallholdings. The program paid no attention to sharecroppers, tenants, and migrant workers. Brandeis warned that the AAA would speed up the trend toward fewer farmers owning larger and larger spreads, thus increasing monopoly and absentee ownership. The New Dealers would not listen. Although there were reports that Brandeis had threatened to vote against the AAA, when a group of agriculture officials went to see him on Cape Cod in the summer of 1934, supposedly to discuss problems of monopoly, they came away with a sense that when push came to shove, old Isaiah would support the program.
The AAA came before the Court in United States v. Butler, and by a 6–3 majority the justices declared it unconstitutional. Officials of the Hoosac Mills Corporation had attacked the processing tax that underwrote the costs of the program as an unconstitutional means of doing what the government could not do directly, namely, control agricultural production. Although the Court had previously ruled that taxpayers had no standing to challenge in court how the government spent tax revenues, Justice Roberts brushed this concern aside, since the tax was no more than “a mere incident of such regulation.”
The Roberts opinion is one of the most tortured and confusing of all the New Deal decisions. The tax, he wrote, could not be considered a true tax, since the proceeds went not into the general coffers but rather into a special fund; agriculture constituted a local activity, and therefore could not be regulated under the commerce power; even if the sum of many local conditions had created a national problem, Congress could not ignore constitutional limitations. Denying that the decision reflected the personal economic views of the majority, Roberts offered a wooden and mechanistic definition of what the Court did, the so-called T-square rule: “When an act of Congress is appropriately challenged in the courts as not conforming to the constitutional mandate the judicial branch of the Government has only one duty—to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former.” The only positive aspect of the opinion is that Roberts, and supposedly the other five justices who voted with him, affirmed that the taxing power, as Hamilton had argued, could be used to promote the general welfare.
Justice Stone, joined by Brandeis and Cardozo, lacerated the Roberts opinion, showing up its manifest contradictions with past rulings as well as the logical inconsistencies of the argument. How could one say that “there is a power to spend for the national welfare while rejecting any power to impose conditions reasonably adapted to the attainment of the end which alone would justify the expenditure”?
The attack on New Deal legislation continued. In Jones v. Securities and Exchange Commission, the Court seriously curtailed the power of the Securities and Exchange Commission to monitor proposed stock issues; Cardozo, joined by Brandeis and Stone, dissented. Then, in Carter v. Carter Coal Co., the Court struck down the Guffey-Snyder Act of 1935, passed in the wake of the Schechter decision. The NRA code had brought a desperately needed stabilization to the coal industry, which had been especially hard-hit by the Depression. The law essentially replicated the NRA code, with protection of labor and price agreements, but through statute. Congress also declared coal production affected with a public interest. The Four Horsemen and Roberts held the entire statute unconstitutional based on Schechter’s definition of commerce, holding coal mining a local activity beyond the reach of federal control. Cardozo dissented, joined by Brandeis and Stone, and Hughes dissented in part.
ASIDE FROM PUBLIC WORKS, the one major New Deal initiative to escape wholly unharmed was perhaps the most radical measure, the Tennessee Valley Authority. The ambitious experiment covered a seven-state area for the nominal purpose of erecting dams for flood control. But the TVA, under the direction of a confirmed Brandeisian, David Lilienthal, also set out to reclaim land, build parks, and raise the standard of living in one of the poorest parts of the country. The dams also produced electricity, and the TVA sold this power to distribution companies, not to the general public. Roosevelt and Senator George W. Norris wanted to use the TVA’s hydroelectric production as a yardstick to determine what the proper cost of electricity should be to the public, an idea vehemently opposed by the electricity interests.
Hughes, no doubt aware of the growing concern about the Court’s anti–New Deal decisions, persuaded all of the four conservatives except McReynolds to go along with a very narrow decision on whether the government had the authority to enter into a contract selling electricity. Congress clearly could build dams for national defense and to facilitate interstate commerce; the electricity produced by these dams was a mere by-product, and its sale could be justified under Article IV, Section 3, which allows the government to sell property it owns.
Before he could get this agreement, however, Hughes had to deal with an important technicality: Did minority shareholders in this case have standing to sue? Brandeis, Stone, Cardozo, and Roberts said they did not, and Brandeis felt so strongly that he prepared a partial dissent on this point. Courts, he declared, should not interfere in the internal policies of corporations at the behest of a minority. Without a proper cause of action, they wanted to dismiss, but the four conservatives wanted some assurance that the plaintiffs would not be thrown out of a court on a technicality, and Hughes agreed, so the Court accepted jurisdiction and kept the decision centered on the single question of selling power.
Brandeis entered a concurrence in Ashwander v. TVA, joined by Stone, Roberts, and Cardozo. Though he had no quarrels with the chief justice’s opinion on the merits, he believed the case should have been dismissed, and he detailed the reasons why. From the time he had come on the Court two decades earlier, Brandeis had been concerned about maintaining strict jurisdictional standards. He had also warned his colleagues time and again not to decide more than necessary to determine the matter. Often he had declared that “the most important thing we do is not doing,” and now he set out his mature philosophy in seven points that have since become the definitive statement of what types of cases the Court should take, and how justices should decide matters before the bench:
Refuse jurisdiction of collusive suits. The Court should not pass upon the constitutionality of legislation in a friendly, non-adversarial suit.
Do not anticipate constitutional questions, but decide them only when legitimately in front of the Court.
Do not formulate constitutional rules broader than required by the precise facts in the case.
Do not decide a case on constitutional grounds if there is also present a nonconstitutional argument that can be dispositive.
Do not pass upon the validity of a statute unless the complaining party can show that he is injured by its operation.
Do not pass upon the constitutionality of a law at the request of one who has benefited from it.
Whenever possible, a statute should be construed in a way to avoid constitutional issues.
Brandeis also argued what many consider an eighth point. Reciting a string of authorities, he then quoted Chief Justice John Marshall: “In no doubtful case, would [the Court] pronounce a legislative act to be contrary to the Constitution.” Although the conservatives on the bench in the 1930s refused to pay heed, later courts affirmed the wisdom of Brandeis’s rules.
THE TVA was one of the very few early New Deal proposals of which Brandeis approved, but by the time the Court decided Ashwander, the Roosevelt administration had taken a sharp turn to the left, and began enacting legislation more to the justice’s liking. Some of the so-called Second New Deal measures had been on the president’s agenda since his election, but had taken a backseat to relief measures. The Banking Act of 1935 strengthened the Federal Reserve Board and fulfilled Roosevelt’s plan to bring all banking and currency under government control. The National Labor Relations Act, or Wagner Act, finally secured labor’s right to organize and bargain collectively and established the National Labor Relations Board to enforce that policy. In Social Security the government took the first steps to providing a safety net for the elderly and the infirm. The bete noire of the 1920s, the gigantic public utilities holding companies, were broken up by statute, and the Wealth Tax Act for the first time imposed significant taxes on the richest segment of society. The Emergency Relief Appropriation Act gave birth to one of the most remarkable programs in American history, the Works Progress Administration, which not only funded large-scale public works but also provided meaningful labor in their own fields to unemployed artists, writers, playwrights, and historians, and did much to enrich the cultural life of the country.
Throughout this time Brandeis maintained good relations with most of the high-ranking members of the administration, including Franklin Roosevelt. When the president did something of which the justice approved, such as moving all fifteen thousand postmasters into civil service categories, Brandeis called it “superb.” He supported the decision to seek tighter regulation of the stock market and to lower tariffs in order to stimulate foreign trade. As business attacks on Roosevelt increased, Brandeis hoped the president would recognize the real enemies of reform, and he applauded when Roosevelt began striking out at big business and authorized the Justice Department to step up antitrust activities. “F.D. is making a gallant fight,” he told Norman Hapgood, “and seems to appreciate fully the evils of bigness.”
Brandeis, of course, had his own ideas of what should be done to end the Depression, and although he never set them down in any formal or organized document, we can piece them together from various sources:
Limit the power of bankers by expanding the postal savings bank system and giving it the authority to provide checking ac counts and to underwrite corporate debentures.
Increase sharply the income tax at the upper ends of the spectrum both on corporations and on individuals.
First borrow and then appropriate revenue from federal taxes to finance major public works programs and put people to work on projects of social utility, such as dams, parks, irrigation, and schools.
Break up the banking system into separate commercial, savings, and investment units to avoid the evils of a concentrated money power.
Use federal excise taxes in such a way as to limit the size of corporations.
Impose a steep federal inheritance tax to limit the amount that any one person could pass down to the next generation to $1 million.
Create a system of unemployment insurance that put responsibility upon individual companies to guarantee regularity of employment and maintain the purchasing power of laid-off workers.
One of his former clerks, Harry Shulman, thought that his critics would say that Brandeis wanted to turn back the clock. Why not? The justice responded. Why not turn back the clock after the failed policies of the present? People had repudiated other failed programs, such as prohibition. “We must determine what is desirable to do and then we can find ways and means to do it.” But the federal government could become too big, and this had to be avoided. He warned his daughter to remember that “if the Lord had intended things to be big, he would have made man bigger—in brains and character.”
Many but not all of his proposals wound up in New Deal legislation in one form or another, although not always as he would have preferred it; taxes were increased, but never to the near-confiscatory levels he wanted, and despite increased antitrust prosecutions the government did nothing to break up big business. Brandeis, however, heartily approved of the unemployment insurance plan and took a great deal of satisfaction from the key roles that his daughter Elizabeth and her husband, Paul, played in drafting the plan and then seeing it through to acceptance.
Brandeis had for years preached the importance of regularity of employment, but he understood that during the Depression even the most willing employer could not afford to keep workers on if no market existed for the plant’s goods. His daughters had heard his sermon on this many times, and Elizabeth, a labor economist at the University of Wisconsin, saw a chance in 1931 to start putting it into effect. She and Paul helped draft the Groves Employment Act, which set up a state-administered insurance fund. Employers would pay into the fund, and their contribution would be determined by the number of workers in their business and also by the stability of their workforce. Those firms that managed to keep their people working regularly would pay a lower premium than ones who had high turnover.
When Elizabeth reported this accomplishment to her delighted father, he pronounced it consonant with the “one true faith.” Even with the Depression distorting the usual labor market, the plan rewarded those employers who tried to ensure regular employment for their workers, penalized those who did not, and provided unemployed workers with at least some money for subsistence until they could get other jobs. Best of all, a state, and not the federal government, had adopted it; Wisconsin, by leading the way, served as a laboratory for democracy.
Brandeis worried that state experimentation would be stopped if Congress passed a national unemployment insurance law, which he opposed. In September 1933 he wrote to Elizabeth that he had thought of a way to finesse the problem. Providing unemployment insurance to workers should be left wholly to the states, but the federal government should serve as a “discourager of hesitancy” by laying a tax on every employer who had not joined some program under state law. This tax should go into a general fund and not into an unemployment compensation account, “lest by so doing we start national provision.” The president had asked him to come to the White House, and the justice planned to talk about irregularity of employment. He asked Elizabeth and Paul to send him their views and if possible a rough suggestion for a bill. After that he began to talk up what he called the “Wisconsin idea” so that by the time Roosevelt was ready to act, the idea had wide circulation in Washington.
Brandeis had to fight what he called the “social worker error,” whereby there would be a single unified program for the whole country administered by Washington. The justice talked about the Wisconsin plan to Secretary of Labor Frances Perkins, who promised to try to curb some of the nationalists. Elizabeth attended a dinner in Washington in January 1934, where Lincoln Filene introduced her to Senator Robert F. Wagner of New York, and she took the opportunity to explain the Wisconsin plan to him. Wagner and Representative David J. Lewis of Maryland introduced a bill in April 1934. The heart of the plan was an ingenious tax scheme devised by Brandeis and modeled on the Wisconsin idea, a payroll tax on employers with the provision that in those states where employers were already contributing to state funds, the amounts paid to the state would be deducted from the federal tax. This way states could establish new programs without new costs to handicap industries involved in interstate commerce. The Wagner-Lewis bill set minimum standards, but allowed the states much leeway. The proposal picked up support in Congress, much to the annoyance of some of Roosevelt’s nationalistic advisers, who pressured him to stop the bill.
Roosevelt prepared a message adopting the nationalist view, when Tom Corcoran and Ben Cohen reminded him that Brandeis had discussed this subject with him soon after the inauguration. The president invited old Isaiah to the White House on the afternoon of 7 June and started to read the message he had prepared on proposals to deal with several issues, including “social insurance.” Brandeis immediately stopped him and told Roosevelt he had it all wrong; he then spent forty-five minutes explaining to him why the Wisconsin plan would be better than the federal government proposal. The president said that the message had already been sent up to the Capitol, but that he would make sure that the right steps were taken. Brandeis immediately contacted friends both in Congress and in government agencies and, as he put it, set them “to work for the true faith during the summer.”
Labor Secretary Frances Perkins, 1945
By then sentiment had grown in Congress not only for unemployment insurance but also for some sort of old-age assistance. The Wisconsin plan had many champions, but others criticized it on the grounds that it did not provide a big enough pool, and that in any event unemployment insurance should be national. Roosevelt tentatively endorsed the Wagner-Lewis bill but asked Congress to delay further action until the fall, and then to combine unemployment compensation with a sweeping program to provide for “the security of the men, women, and children of the nation.” He proposed that unemployment insurance be national in scope and standards, but that management be left to the states with the federal government investing and safeguarding the reserves. The Wagner-Lewis bill failed, but the final program, although more nationalistic in scope than Brandeis would have liked, preserved enough of the Wisconsin plan and a large enough role for the states to satisfy him.
DURING THE 1936 CAMPAIGN Roosevelt barely mentioned the Court, and in November he won the most lopsided victory in American history, carrying every state except Maine and Vermont. He rightly interpreted the election results as a popular mandate, but worried not only about how the Court would deal with measures Congress had passed in 1935 and 1936 but also about other proposals he had in mind for his second term. The president and a small group of advisers had been mulling over the Court problem for two years. Given the age of most justices, there should have been a retirement or death to give him a vacancy. Beyond that, the most reliable member of the Court was Louis Brandeis, who was also the oldest; the Four Horsemen, all in their seventies, seemed indestructible. A constitutional amendment, either limiting the Court’s jurisdiction or requiring six or seven votes to declare a congressional law unconstitutional, would take time and could be blocked by only thirteen states refusing to ratify. Then Homer Cummings brought him a plan he found in the old files of the Justice Department prepared, ironically, by one of his predecessors as attorney general, none other than the current Justice James Clark McReynolds. Roosevelt loved it.
Supporting the National Recovery Administration—
”We Do Our Part”
Had Roosevelt been open and aboveboard, had he said to the American people that their political mandate, that the measures they and their elected representatives had approved, that all chances of economic recovery, and that democratic government itself were being thwarted by five men, and that he needed to change that if the country were ever to regain its economic vitality, he would have had a fight on his hands, but it would have been straightforward. Instead, in what Brandeis had called his kunststücke, he tried to justify his plan by claiming that the elderly members of the high court had fallen seriously behind in their work, with a huge backlog of unresolved cases. To remedy that situation, he asked for the authority to add one new member to the Court for every current justice over seventy, to a maximum of six new appointments. No one was the least bit fooled; Roosevelt wanted to pack the Court with men who would approve New Deal measures.
Roosevelt quietly prepared a special message to Congress, but just before he sent it to the Hill on 5 February 1937, Tommy Corcoran said, “What about Isaiah?” The president agreed that the justice should be given the courtesy of an advance warning, and sent Corcoran over to the Supreme Court. The justices were in their robing room, preparing to go onto the bench, when Corcoran came in, and as they walked to the Court chamber, he quietly told Brandeis about the president’s proposal. The justice thanked Corcoran for coming over, and asked him to thank the president for letting him know, but said that he thought the plan was absolutely terrible and that the president had made a very great mistake.
At a little after one o’clock, as the Court listened to oral argument in a minor case, the clerk of the Court stepped through the velvet curtains and handed Chief Justice Hughes a sheaf of mimeographed papers. Shortly after that, a page came through the curtains and put a copy of the document before each justice. When the page handed Brandeis his set, he turned on the antique desk lamp he had brought over from the old courtroom, and the spectators could see only his shock of white hair as he bent over to read. When he finished, he looked over to Van Devanter, who waved his arm as if in dismissal.
That evening Brandeis wrote to Felix Frankfurter asking, “Whom did F.D. rely on for his Judiciary Message and bill? Has he consulted you on any of his matters of late?” In fact, Roosevelt, knowing of Frankfurter’s close ties to Brandeis, had deliberately not informed him, but had written on 15 January, “Very confidentially, I may give you an awful shock in about two weeks.”
Judicial propriety prevented the justices from openly attacking either Roosevelt or his plan, but quietly they let it be known how much they opposed it. Moreover, all of them deeply resented the rationale he had used, and this estranged those members of the Court who had been at least partially supportive of New Deal measures and who had themselves criticized the conservative bloc for its activism. The scheme particularly alienated eighty-year-old Louis Brandeis, by then an icon of the liberals and considered by many of them the original New Dealer.
Opponents of the scheme knew they faced an uphill battle. Roosevelt’s victory in 1936 had given the Democrats a four-to-one majority in the House of Representatives, while in the Senate Republicans held only sixteen of the ninety-six seats. Critics of the president’s plan needed the Court’s help and approached Hughes and several other justices, asking them to testify; all refused. With hearings scheduled to open before the Senate Judiciary Committee on Monday morning, 22 March, there seemed little hope of derailing the Court-packing plan.
Then, on Saturday, 20 March, Alice Brandeis drove down to Alexandria, Virginia, bringing a gift to the new baby born to Elizabeth Colman, the daughter of Senator Burton Wheeler of Montana. Although a Democrat, Wheeler had had a falling-out with Roosevelt, and he now opposed the Court bill. As Alice Brandeis left the Colmans, she turned to Elizabeth and said, “Tell your father I think he’s right.” Closing the door, Elizabeth immediately called her father. A veteran of Washington politics, he correctly read the message Mrs. Brandeis had sent: Contact the justice! Wheeler telephoned the Brandeis apartment, where the justice, awaiting the call, invited Wheeler over immediately.
Brandeis confirmed that he would not testify, but told him to call the chief justice, who would give him a letter. Wheeler, who had opposed Hughes’s appointment, responded that he did not know him. “Well, the Chief Justice knows you,” Brandeis responded, “and knows what you are doing.” Brandeis, despite his well-known aversion to the telephone, then went over and called Hughes, who told Wheeler to come right over. Wheeler went to the chief justice’s apartment, Hughes agreed to write a letter, and the next day, after consulting with Brandeis and Van Devanter, the chief justice summoned Wheeler back, handed him the letter, and with a big grin on his face declared, “The baby is born.”
It’s a good story, but actually a little more complex than Wheeler’s recollection. Mrs. Brandeis did go to Alexandria, Wheeler did come to the Brandeis apartment and then went over to see Hughes, but at least two days earlier the Montana senator had spoken with Hughes on the phone. The chief justice had told Senator William H. King, a conservative Democrat from Utah who also opposed the bill, that while neither he nor any of the other justices would testify, if the Judiciary Committee wanted specific information and wrote to the Court, he would of course be glad to give the Senate the facts. Hughes then called Wheeler and repeated this information, so even before he went to see Brandeis, Wheeler knew that Hughes would provide a letter.
Although the documentary evidence is sparse, the following scenario seems to have occurred. King had gone to see Hughes to ask him to testify about the facts of the Court’s work, and the chief had been amenable, but only if another justice accompanied him, and he thought the best choice would be Brandeis because of his standing as a Democrat and a liberal. When Hughes spoke to Brandeis, he found him strongly opposed to having any member of the Court testify. The two men agreed that a letter would be appropriate, and Hughes so informed King and Wheeler. The critical factor was time. By the time the Judiciary Committee met and framed a letter to Hughes, the huge Democratic majorities in both houses could already have steamrolled the bill through. Hughes, an experienced politician himself, understood this and, after consulting with Brandeis and Van Devanter, decided to push the schedule up; he would prepare a letter, but needed the cover of having been asked to do so. Mrs. Brandeis (who vehemently opposed the plan because of the aspersions it cast on the older judges, especially her husband) went to Alexandria, Wheeler was guided from the Brandeis apartment to that of Hughes, and he got the letter to take with him on Monday morning to the Judiciary Committee meeting. Beyond that, in a city where secrets usually cannot be kept, no one in the White House had any inkling about this.
Wheeler began his testimony in a sort of rambling manner and then suddenly expressed shock at the allegations by Attorney General Homer Cummings that the Court had fallen behind in its work. He just could not believe that and knew that only one man could really provide the facts to rebut that accusation. Wheeler now had the full attention of the committee and of the spectators as he reached into his pocket and announced, “I have here now a letter by the Chief Justice of the United States … written by him and approved by Mr. Justice Brandeis and Mr. Justice Van Devanter.”
“The Supreme Court is fully abreast of its work,” Hughes declared. “There is no congestion of cases upon our calendar, and this gratifying condition has obtained for several years.” In fact, before rising for their recess on 15 March, the Court had heard argument in all cases for which certiorari had been granted only four weeks earlier on 15 February. There were indeed large numbers of petitions for review, but most of them had little merit, and the members of the current Court, with their years of experience, could easily winnow out the chaff from the wheat. Brandeis had earlier admired Hughes for his command of the facts in the insurance investigation, and like Brandeis, Hughes believed in marshaling facts and letting them make the case. He presented data from the time he had become chief justice to show that the Court had not shirked its work, and in fact the solicitor general’s report for 1936 showed no backlog of any sort. The proposal to put more judges on the bench would not improve efficiency but have just the opposite effect—”more judges to hear, more judges to confer, more judges to discuss, more judges to be convinced and to decide.”
The letter proved to be the beginning of the end, as opposition swelled to the president’s plan, not only among conservatives but among many liberals as well. Roosevelt tried to rally the troops, but to no avail, and finally, after 169 days, he conceded defeat and accepted a substitute bill that embodied some procedural reforms and provided better terms for judicial retirement.
During this fight Henry Friendly, one of Brandeis’s former clerks, had been scheduled to debate Charles Clark at Yale Law School, but with the announcement of the Court plan the sponsors asked if Friendly would mind if they changed the debate to the merits of the scheme. Friendly agreed, provided he could speak against it. The next morning he was horrified to see a newspaper headline, “BRANDEIS LAW CLERK ATTACKS COURT PLAN.” Knowing how the justice felt, Friendly immediately wrote to him explaining what had happened, and Brandeis wrote back, “Don’t let the incident give you concern. I have only heard of it from you, and cannot believe anything you may have said will do any harm.”
Brandeis, although he remained on amiable terms with Roosevelt, never forgave him for this Kunststück, nor did he forgive Felix Frankfurter for backing the proposal. Relations between the justice and the professor cooled considerably after 1937, as they did with some of Frankfurter’s acolytes who also backed the plan, such as Tommy Corcoran, who had served as the administration’s hatchet man during the fight. In turn Corcoran and other New Dealers, such as Harold Ickes, thought Brandeis had let them down by signing onto the Hughes letter. “He did not shoot straight with us,” Corcoran fumed, and refused to see Brandeis again. Corcoran and Ickes both thought that Brandeis ought to have stepped down from the Court, so that Roosevelt could have named Frankfurter to his seat. When Brandeis heard about this, he tartly remarked that “he was not sure that Frankfurter could not do more by teaching the younger generation.”
IRONICALLY, HAD ROOSEVELT WAITED only a little longer, he could have had victory without paying such a heavy political price. On 29 March, exactly one week after Wheeler presented Hughes’s letter, the Court handed down a 5–4 decision upholding the constitutionality of a Washington State minimum-wage law indistinguishable from the New York statute it had struck down the previous June. Speaking for the Court, Chief Justice Hughes specifically rejected Adkins v. Children’s Hospital (1923), declaring it to have been wrongly decided. Sutherland, dissenting for the Four Horsemen, lashed out against what he saw as the theory that the Constitution’s meaning changed depending on current economic conditions. A pleased justice Brandeis dropped a note to Frankfurter, the man who had argued the 1923 case. “Overruling Adkins’ Case must give you some satisfaction.”
“You gave me the authority to pick my kind of umpire last November!”
C. K. Berryman, Washington Star, June 1937
That same day the Court approved three other federal statutes. Brandeis spoke for a unanimous Court in Wright v. Vinton Branch, upholding the revised Frazier-Lemke bankruptcy law for farm debtor relief, now cured of the defects that had led to invalidation of the first act in Louisville Bank v. Radford two years earlier. In two other unanimous cases, the Court upheld the constitutionality of the regulatory firearms tax and an amendment to the Railway Labor Act permitting collective bargaining. The way was now clear for the Court to approve the National Labor Relations Act, which it did two weeks later.
A few days before the Court handed down two decisions on 24 May upholding provisions of the Social Security Act, Justice Willis Van Devanter announced his retirement after twenty-seven years on the bench. Then, in January 1938, George Sutherland stepped down. With Hughes and Roberts seemingly ensconced in the liberal camp, Roosevelt appointees could presumably ensure safe majorities in cases testing New Deal legislation. Despite their differences of opinion, Brandeis expressed regret at the departure of the two conservatives. He had always gotten along well with Van Devanter, and in 1934 and then again in 1935, when he thought that Van Devanter had considered resigning, he implored him to remain on the Court. In the spring of 1935, Brandeis wrote, “Dear Van, I am sorry to learn that you have not been feeling well. Take the best care of yourself. The Court never needed you more.” He told his son-in-law that Sutherland’s resignation would be regretted by the entire Court despite their disagreements. “He is a man of unusually high character and of true patriotism, as he considers the public welfare.”
Roosevelt later commented that he had lost the battle but won the war, although it would be more accurate to say he lost the battle, won the campaign, and then lost a war. Opposition to the Court-packing plan rejuvenated the Republican Party, which had been left for dead after the 1936 election. It also energized southern conservatives who disagreed with much of the New Deal program and whom Roosevelt unsuccessfully tried to purge from the party in 1938. Although he managed to get a few more measures through, the New Deal ended with recovery still not achieved.
Roosevelt would eventually get to make more appointments to the Supreme Court than any president since George Washington, and after 1937 the Court rarely struck down economic regulations. But the Court emerged as institutionally stronger, with liberals like Brandeis and Stone and conservatives like Van Devanter and Sutherland uniting to oppose the Court-packing scheme. Brandeis took little satisfaction from the victory, angry at how Roosevelt had subjected the Court to unwarranted attack. Now eighty years old, he had other challenges confronting him in the 1930s.