A good deal of the fun in reading Jeff Shesol's masterful work, Supreme Power: Franklin Roosevelt vs. the Supreme Court, is contained in the first half of the book, when the author's description of the American political scene under President Franklin D. Roosevelt in the early years of the Depression sounds so familiar. From the charges by Republicans that Roosevelt's New Deal policies represented a "socialist takeover," to the emotion-laden, worshipful fixation on the Constitution by opposition groups, the script and the cast of today's political opposition to President Obama's economic-recovery program look strikingly like those marshaled against Roosevelt.
Even the business sector has followed the same script as in 1934 when, as Shesol explains, as the worst of the Depression eased, business leaders began to gripe that the protective labor initiatives of the New Deal were promoting class warfare. Their list of complaints mirror almost exactly those lodged against Obama today: that his policies are "picking winners … and losers; running a deficit … and … creating uncertainty by changing the rules of the market."
One can almost hear CNBC's Rick Santelli's tirade against those who held subprime mortgages in the words of Bertrand Snell, a Republican congressman from New York, who declared that the New Deal was designed to "punish those who have earned and saved money, to redistribute wealth by taking it … and passing it to those who have been and still are shiftless." President Herbert Hoover's treasury secretary issued a charge that seems straight out of the Tea Party playbook: that the president was creating an "all-powerful central government … to control and direct the lives and destinies of all."
In fact, the rise of the Tea Party is eerily similar to the creation of the conservative American Liberty League (ALL) in 1934. Shesol cannily explores the origins and wealthy supporters of the organization whose members saw themselves as working to "save our form of government." This salvation took the form of protesting against Social Security and initiatives enacted to help agricultural workers, promoting the importance of maintaining the gold standard and decrying what they regarded as a wholesale redistribution of wealth in New Deal programs.
Shesol's description of the American Liberty League — as made up of "Americans [who] felt increasingly like an embattled minority … outcasts and aliens in their own land" — seems like a spot-on snapshot of the paranoia expressed by many elements within the contemporary Tea Party, although the league consisted primarily of wealthy industrialists rather than grass-roots activists.
Like Obama, Roosevelt also took his share of hits from the left, which regarded the president as insufficiently radical in his approach to relieving destitute Americans from financial disaster.
One hopes that Obama has read this important book, if only as an encouragement to stay the course. Because, as we now know, the naysayers and anti-New Dealers were wrong. History has credited Roosevelt with possessing the necessary courage and confidence to, as he said, "be the big, bad wolf" in order to save the country.
Supreme Power is also a cautionary tale. Roosevelt was overly confident and possessed of the kind of sense of his own rightness that could be impervious to the views or concerns of others. And so, when the Supreme Court began to issue a set of decisions striking down New Deal initiatives as unconstitutional, Roosevelt hatched the "court-packing plan."
The essence of the plan was to allow the president to add new justices to the court for each justice then serving who was over the age of 70. The reasons for the plan were fairly transparent. Legal challenges to New Deal programs were filed almost as quickly as the initiatives were enacted. Raising arguments that are similar to those in current legal challenges to the health care reform legislation winding through the federal courts, business interests and states opposed to New Deal legislation and programs argued that laws protecting workers and wages interfered with the private contractual rights of management.
Roosevelt's cabinet and circle of advisers paid close attention to the cases as they made their way up to the Supreme Court. In the early cases, the administration's programs fared well. But in Schechter Poultry Corp. v. United States, a case that challenged the imposition of a national code that regulated wages and hours at live-poultry plants, a unanimous Supreme Court struck down the National Industrial Recovery Act. Roosevelt was furious. Deeming members of the court as too out of touch to recognize the consequences of striking down New Deal programs, Roosevelt conceived a plan that would enable him to appoint at least three more justices to the court.
Congressmen (including Democrats), some of the president's own advisers and many ordinary Americans were stunned and deeply opposed to the president's attempted power grab. His transparent effort to remake the court to obtain favorable rulings in New Deal litigation was a direct challenge to the independence and integrity of the court and to the separation of powers. Fortunately, Congress rejected the president's plan in 1937. But in the interim, the court had shifted its rulings — upholding the Wagner Act and finding that Congress' power to regulate interstate commerce extended to industrial labor relations. And so, Roosevelt got what he wanted after all.
Not all of the comparisons between Roosevelt's world and Obama's hold up, of course. Roosevelt enjoyed enormous popularity before his Supreme Court power grab. In fact, Roosevelt benefited from the Democrats' landslide victory in the midterm elections of 1934, when, according to The New York Times, the Democrats "literally destroyed the right wing of the Republican Party." This year the Democrats may fare better than current prevailing predictions for the November elections. But no one imagines that the result will be a landslide for the Democrats or that the right wing of the Republican Party will be crushed.
And Roosevelt and our current president are not doppelgangers. Obama is by no means reckless. In fact, he's cautious by nature. But he does have a certain cool confidence that is reminiscent of Roosevelt. Obama also has the courage to be temporarily demonized in order to do what he thinks is best for the country. Obama's willingness to speak forcefully and directly to the Supreme Court (in fact, to the justices' faces at last year's State of the Union address) about the court's wrongheaded decision in the Citizens United campaign-finance case also brings to mind some of Roosevelt's public criticism of unfavorable Supreme Court decisions.
But it's hard to imagine Obama trying to go gangster on the Supreme Court. In fact, his nominees to the court have hardly been the stuff of radical takeover. Moreover, Obama's constitutional-law background is a powerful internal check that Roosevelt lacked, despite Roosevelt's having gone through the motions of an early law practice before jumping into politics.
Still, in Roosevelt's willingness and determination to save the U.S. economy and the people at the bottom of the economic ladder, there is much to encourage Obama. Despite his own patrician background, and pressure from Wall Street, Roosevelt understood what the moment called for. He determined that, no matter what, he would "not restore the ancient order." Obama should do no less.
Sherrilyn A. Ifill is a professor of law at the University of Maryland and a regular contributor to The Root.