The President Faces the Court

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"The President Faces the Court," The New Republic, LXXXX, No. ll63 (March 17,1937), 153.

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Those who have been complaining that President Roosevelt, in announcing his proposal for the Supreme Court, did not speak the entire contents of his mind, can do so no longer. In the series of public utterances on this subject, of which the first was the speech on March 4, he has gone straight to the heart of the matter.
The Court, he says bluntly, is preventing the things that need to be done, that can only be done by the federal government and that are desired, as the election returns showed, by a large majority of the American people. He recalls the action of the Court on the AAA, the NRA, the Railroad Retirement Act, the Guffy Coal Act, and the New York Minimum Wage Law. He points to adverse decisions of the lower federal courts on the TVA and the Wagner Labor Relations Law, decisions which he clearly expects the Supreme Court to sustain. He declares that in regard to relief for the farmer, the maintenance of minimum standards for labor, control of floods and droughts and the generation of cheap power, action is needed and needed now. He disavows any intention to break with American tradition and seek a third term for himself. His ambition is
on January 20, 1941, to turn over this desk and chair in the White House to my successor, whoever he may be, with the assurance that I am at the same time turning over to him, as President, a nation intact, a nation at peace, a nation prosperous, a nation clear in its knowledge of what powers it has to serve its own citizens, a nation that is in the position to use those powers to the full in order to move forward steadily to meet the modern needs of humanity—a nation which has thus proved that the democratic form and methods of national government can and will succeed.
The President, in short, has turned on the heat. In last week's issue of The New Republic our Washington correspondent commented on the fact that Mr. Roosevelt was permitting the Court fight to move at its own pace, that he had abstained from putting any pressure on anyone and contented himself with private discussion with members of Congress conducted in an atmosphere of gentle persuasion. In the intervening seven days, he has changed his tactics notably. He is appealing to the country in the expectation that the people will make their voices heard in Senate and House. There are already evidences that this expectation is being realized.
That the President's indictment of the Court, at last made with such vigor and frankness, is a just one, seems to us beyond dispute. It is quite true that in some of the decisions hostile to the New Deal the liberal minority participated; but it was to the devices used, and not to the end sought, that the members of the minority objected. The members of the majority have demonstrated time and time again that when there is a conflict between human rights and those of property it is to the latter that their allegiance is given. They have created, as Mr. Roosevelt pointed out last week and as The New Republic has often stated in the past, a no man's land in which neither federal nor state government is able to control. They refuse to admit the necessities of a changing world, no matter how great may be the cost of their refusal in the frustration and suffering of millions of their fellow Americans.
It is quite true that the President's proposal does not completely solve the problem presented by the fact that the Court in recent decades has arrogated to itself vast powers never contemplated by the authors of the Constitution. Indeed, his suggestion is only a first step. Everyone recognized that the future course of action of additional Justices appointed by Mr. Roosevelt or any of his successors is unpredictable. There is no magic in a Court of any given size and no guarantee that a new personnel would invariably pursue a course in the best interest of all the American people. We have repeatedly pointed out in recent weeks that the President's suggestion is but a necessary first step, a breaking of the immediate deadlock by the only device, so far as we are aware, that anyone has suggested that is both constitutional and capable of being put into effect within a reasonably brief period of time. Additional action is also needed and undoubtedly this additional action includes a constitutional amendment. It will in all probability take many years to deflate the Court and restore it to its proper relationship to other government branches.
It is now clear, in our opinion, that neither the President nor anyone else has any marked enthusiasm for the device now under consideration. But no one has any enthusiasm, either, for the situation into which the conservative majority of the Court has brought us by a series of political decisions, politically inspired. Those who are now protesting with hysterical vehemence against a "presidential dictatorship" were silent over many years about a far more serious Court dictatorship, one that carried a deeper threat to American institutions than anything President Roosevelt has done or tried to do. The chief valid criticism of Mr. Roosevelt is not that he is now seeking to mitigate that dictatorship but that for so long a period of time he should have passively accepted its consequences.