The Switch in Time that Saved Nine

The relationship between the new Republican majority in Congress to Obamacare has been much discussed. Folks following the history of US Supreme Court decisions will perhaps remember when Justice Roberts changed his mind on a crucial decision under pressure from the White House, and rendered the crucial swing vote that had the country in an uproar.

But I’m not talking about John Roberts in 2012. It was Owen Roberts, in 1937, in a decision that involved how many US Supreme Court justices there would be. The case was nominally about minimum wage, but it came about during a time when Franklin Delano Roosevelt was using his Fireside Chats to promote the New Deal. FDR’s radio addresses were popular with many, and he was arguing to the public through these chats that he needed to add liberal/progressive Democrat justices to the Supreme Court until he had a progressive majority.

Quit, Dammit!

The then-current nine justices tended to vote to protect the Constitution and free Enterprise, much to FDR’s outspoken dismay. He considered the Constitution “quaint” and outdated, placing too many restrictions on what in his mind should have been a dominant federal executive branch. But many of the most egregious overreaches of his New Deal were being struck down by the Supreme Court.

Since the President could not just fire a SCOTUS judge, he began by cajoling the conservative justices to resign. Six of the nine judges, mostly conservative, were 70 or older, so FDR harangued them about old age and infirmity, telling them their duty was to step down. This did not work.

So he came up with a plan to add new ones (with one new judge for every existing judge over 70) until he got to 15, and could guarantee that every decision and executive order he made would pass judicial muster. This plan was so outrageous that even his own Democrat vice president John Gardner Nance publicly objected. But Roosevelt had just been re-elected in a landslide (despite his policies worsening the Great Depression), and he used this new mandate to push the court-packing plan in early 1937.

A Plan Derailed

FDR was optimistic at the plan’s initial announcement, as was the New York Times. His son James Roosevelt agreed:

“The high spots,” James Roosevelt recorded in his diary, “seem to be that the conservatives are red in the face and furious. Most of the others think this is a grand method to make constitutional changes when necessary.”

Indeed; it avoided that whole messy Constitutional amendment process, which Roosevelt complained “took too long.” This “reform” allowed him to put his progressive dictates in place right away.

However, a few things happened that kept the court-packing scheme from succeeding. First, despite his fervent “fireside chat” radio pleas, it was never popular with the public; it peaked at 43% and at one point had letters coming in nine-to-one against the scheme. That didn’t really faze Roosevelt; the public simply didn’t know what was good for them, in his opinion.

Second, his Senate Majority Leader, Robinson, was placed in charge of getting the plan through the Senate. Robinson used Harry Reid-type tactics, changing the rules of the Senate to limit debate and so on — but his health was failing, and he could not keep his arm-twisting going. Picture the Senate back then, packed with senators and their entourages  stuffed into a too-hot chamber during a blistering Washington summer. (This was before air conditioning, and before “global warming” — it has never been quite as hot in the US, before or since, as it was during the 1930s.)

The Switch

Along the way, Associate Justice Roberts, the moderate-conservative who generally voted with the four serious conservatives nicknamed the Four Horsemen, suddenly switched to making some liberal decisions in support of FDR’s schemes. The first was the minimum wage case, a decision announced weeks after FDR began gunning for the conservatives on the court. This switch surprised many, and apparently Roberts’ decision came right after FDR’s re-election. He was apparently intimidated by his adversary’s popularity.  (We will never know very much about what Roberts was thinking; Roberts later burned all his papers. He did produce a note defending his action at the time, and gave it to another justice.)

Since Roberts switched sides, and another conservative was replaced by Democrat Ku Klux Klansman Hugo Black, the Court began allowing FDR to have his way with the Constitution and, whether planned or not, subject the US and the world ti several more4 years of the Great Depression. Roberts’ defection ended three decades of SCOTUS efforts to protect the Constitution and free market, a period of rulings called the Lochner Era.

So we got the tremendous expansion of the Commerce Clause, including the ruling that a man growing a crop on his own property for his own family’s consumption was still subject to “interstate commerce” rules, as he wasn’t buying that crop from the market, which could conceivably affect cross-state usage of the crop. I wrote about that case here. FDR and his now-tamed Supreme Court did much other damage as well.

Black and Robinson and the KKK

The appointment of Hugo Black, the former KKK man, has its own story to tell. For now, I will touch upon one aspect: Roosevelt had been pushing hard to get the new “court reform” plan passed, using Senate Majority Leader Robinson as his enforcer. But a technique he had employed a couple of months earlier (March 1937), allowing SCOTUS judges to retire with 100% pensions as an encouragement, produced some fruit after Roberts’ switch. Justice Willis Van Devanter, one of the conservatives, took FDR up on his offer and retired in May 1937.

This gave FDR his first chance to appoint a Supreme Court justice, as none had retired during his first term. This sounded good … but FDR had earlier promised to appoint Senator Robinson, his enforcer, to the first open spot. So FDR and Robinson, championing the new “reform” based on the Supreme Court needing “new, young blood,” put FDR in the position of appointing the elderly and ailing Robinson in that spot instead. Had he done so, it would have killed the bill’s chances by exposing the farce of FDR’s rationale. He didn’t want “young” judges, he wanted compliant ones.

FDR couldn’t do it. And, weeks later, Senator Robinson died (July 1937), which solved the problem in another way. But now, since FDR was able to put his old black- and Catholic-hating friend Senator Hugo Black on the court (where he would remain until 1971!), the need for “reform” lost steam … and the bill never passed.

(At that time, the Democratic Party was not working hard to distance themselves from the KKK they had created. It was still popular in the Democratic South — among white, non-Catholic Democrats, at least. Even a decade later, Democrats would still be calling themselves “The White Man’s Party.”)

Not Quite Reliable

Roberts did not completely support FDR’s agenda, though it didn’t much matter as new hard-left judges were being appointed to replace the retiring, dispirited, outnumbered conservatives. For example, Roberts was one of the few who voted against FDR’s internment of Japanese, Germans and Italians in US concentration camps.

(They don’t usually talk about the Germans and Italians, do they? Nor does anyone mention that the US was following the example of Canada, which had strong anti-Japanese policies even before the war and had already set up their rather brutal internment camps as I noted here. That the US must do the same was pushed by the leftist media — as the original internment had been pushed by Canadian media — and ultimately the plan was ratified by the leftist judges who were, by then, the majority on the US Supreme Court.)

By the time FDR died in 1945, he had replaced 8 of 9 justices: every judge except Roberts. And he’d tried to keep Roberts in line by offering him key commission appointments. Remember the recent movie The Monument Men? The Roberts Commission was created by FDR in 1943 and “charged with promoting the preservation of cultural properties in war areas” including “Monuments, Fine Arts, and Archives in war zones.”

But Roberts still occasionally voted to protect the Constitution and the free market that had made the US so strong. This remnant of Constitutional conservatism in Roberts was so vexing and disgusting to the hard-left justices that when Roberts finally retired, they broke with tradition and would n0t give him a letter thanking him for his long service.

The Modern Day

Now we are left with a situation containing many aspects reminiscent of that 1930s episode. More than three-quarters of a century later, we are hanging our hopes on another Roberts on the Supreme Court. We know that tremendous pressure is being brought to bear on him, and once again a key aspect of Obamacare is on the block.

Because of the publication of Gruber’s repeated assertions about the plan, and other comments from that Obamacare architect, we know that this Roberts’ decision in 2012 was flat wrong. And the public (except for those who only get their news from the leftist media) is keenly aware of what Obamacare’s intent was regarding the new case about state exchanges. As Gruber said:

I think what’s important to remember politically about this, is if you’re a state and you don’t set up an Exchange, that means your citizens don’t get their tax credits.

That is exactly what the King v Burwell asserts, not to mention what the text of the law itself literally says. Will Chief Justice John Roberts succumb to pressure again to let it get past?

We shall see.

===|==============/ Keith DeHavelle

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