Joshua Zeitz has taught American history and politics at Cambridge University and Princeton University and is the author of Lincoln’s Boys: John Hay, John Nicolay, and the War for Lincoln's Image. He is currently writing a book on the making of Lyndon Johnson’s Great Society. Follow him @joshuamzeitz.

On May 31, 1935, Franklin Roosevelt summoned political reporters to the Oval Office, where they found the president seated behind the Resolute Desk, a pile of telegrams and court decisions scattered before him. Normally unflappable, on this occasion, FDR appeared riled. Four days earlier, on what would come to be known as, “Black Monday,” the United States Supreme Court by a vote of 9-0 knocked down the National Industrial Recovery Act, a central component of Roosevelt’s New Deal. In a private display of rage that only his aides had witnessed, FDR had singled out the court’s two Jewish (and normally progressive) justices for special censure. “Well, where was Ben Cardozo?” he fumed. “And what about old Isaiah?”—a direct jab at Louis Brandeis.

Now, with members of the press corps present, FDR let loose another volley. The Supreme Court’s narrow reading of the interstate commerce clause, the president argued, limited his ability to address the structural causes of the Great Depression and to alleviate the human suffering that flowed from it. “We are facing a very, very great national nonpartisan issue,” he argued. “We have got to decide one way or the other … whether in some way we are going to … restore to the federal government the powers which exist in the national governments of every other nation in the world. … We have been relegated to the horse-and-buggy definition of interstate commerce.”


Conservatives were outraged at this attack on the nation’s highest court, a point that resonated in press coverage of the showdown between the court and the White House. In an underhanded compliment, Arthur Vandenberg, a senator from Michigan, offered that he did not “think the president has any thought of emulating Mussolini, Hitler or Stalin, but his utterance as I have heard it is exactly what these men would say.” Henry Stimson, a cabinet member under presidents William Howard Taft and Herbert Hoover (and, later, during World War II, under FDR as well) judged the statement “dangerous and inflammatory.”

The “horse-and-buggy” press conference was just the opening shot in a longer battle. In 1937, on the heels of winning a landslide re-election victory, Roosevelt attempted to pack the high court with additional justices and thereby achieve a pro-New Deal majority. The maneuver generated a powerful backlash, giving rise to a congressional opposition coalition of Southern Democrats and Republicans and costing Roosevelt a working majority in Congress. So the story goes.

For President Donald Trump, who has in recent weeks crossed several lines in his denunciation of federal judges who suspended his travel ban, the standard narrative seems to offer a clear warning: tangle with the judiciary at great political risk.

But that’s not all that history suggests. True, Roosevelt’s unsuccessful assault on the judiciary catalyzed a powerful opposition bloc. But it also cowed key members of the court, paving the way for a complete reversal of prevailing jurisprudence, to FDR’s benefit. Judges enjoy lifetime tenure, but they are not immune to political pressure. In 1937, the court accommodated the president in the interest of saving the institution. The same could just as easily happen today.

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Throughout his first term, from 1933 through early 1937, FDR contended with a hostile Supreme Court. A group of arch-conservative justices—the so-called “Four Horsemen”—were reliably aligned against the administration: Pierce Butler, Willis Van Devanter, George Sutherland and James McReynolds. (McReynolds—an anti-Semite who once famously refused to sit next to Brandeis for the court’s annual photograph—purportedly vowed never to “resign as long as that crippled son-of-a-bitch is in the White House.” He changed his mind in 1941.) The administration could normally—though not always—count on the more liberal Brandeis, Cardozo and Harlan Fiske Stone to uphold its policies. In the middle sat Chief Justice Charles Evans Hughes and Justice Owen Roberts, both of whom leaned toward the right but valued above all the court’s reputation and hoped to keep it above the political fray.

Narrowly construing the Commerce Clause, which allows the federal government to regulate only those economic activities that occur across state lines, and showing a great deal of deference to corporate interests, the court consistently limited the ability of the federal government—and in some cases, even state governments—to regulate the economy in ways that were intended to protect workers’ rights and stimulate jobs and growth. FDR required a broader scope of movement, given the unorthodox measures his administration took in the darkest days of the Depression. Programs like the National Industrial Recovery Act sought to stimulate the economy through wage and price setting and by coordinating the activities of rival companies in order to rationalize economic output. Similarly, the Agricultural Adjustment Act propped up sagging farm prices through production quotas and price setting. Such programs required that the courts allow the federal government leeway in regulating industries that sometimes operated across state lines but sometimes did not. Other New Deal measures, including laws establishing wage floors and maximum hours, also demanded a more expansive interpretation of federal power.

But the court had a mind of its own. In 1934 the justices by a vote of 5 to 4 struck down the Railway Retirement Act, a national pension program that many in Washington viewed as a pilot for a more expansive pension system for senior citizens. Business Week aptly noted at the time that the decision suggested that the court would “smash any social security legislation that may be passed by Congress. After the court struck down the National Industrial Recover Act in 1935, the following year, the court also invalidated the Agricultural Adjustment Act, statutes governing production and pricing the mining industry, and even a state minimum wage law in New York—an ominous sign that if the justices would not permit a state to set minimum wages, they would certainly prohibit the federal government from doing so.

“It seems to be fairly clear, as a result of this decision … that the ‘no-man’s-land’ where no Government—State or Federal—can function is being more clearly defined,” FDR warned in the wake of the court’s ruling that New York could not establish a minimum wage. “A State cannot do it, and the Federal Government cannot do it.”

The president bided his time, cognizant that he did not enjoy a political mandate to reshape the federal judiciary. But in the wake of the 1936 elections, in which he won 61 percent of the vote and Democrats achieved commanding majorities in Congress—FDR unveiled a plan to add a new justice to the bench for every sitting justice over the age of 70. He represented the measure as a way to ensure the court’s vitality, given the predominance of “aged or infirm judges,” but most Americans understood the play at hand.

Though many Democratic legislators initially supported the president, the court-packing measure fused three other disparate and uncoordinated groups of congressmen: Southern conservatives, who had supported the New Deal in its early years but worried that its programs, specifically, and the growth of the federal state, generally, might upset traditional patterns of economic power and racial deference throughout Dixie; Republicans, who were few in number but a critical component of the emerging conservative coalition; and progressive Republicans, most of them from western states, who had heretofore been reliable New Dealers but feared the growth of an imperial presidency.

Opposition flared at the grassroots level as well. Historians note that much of FDR’s support among middle-class voters eroded as a result of his court-packing scheme. In swing districts and states, angry citizens demanded that their congressmen hold firm. “SEN. SHERMAN MINTON DON’T MISTAKE,” read an angry constituent letter that arrived wrapped around a bullet. “I AM EDUCATED. IF YOU SUPPORT ROOSEVELT’S COURT BILL WE WILL GET YOU—YOU DIRTY RUBBER STAMP.”

It wasn’t just conservative congressmen and their enraged constituents who took up arms against the plan. Respectable voices in the middle—stalwart defenders of American institutions and political norms—also raised their voice in a chorus of opposition. “There are at least two ways to get rid of sitting judges,” warned a Harvard law professor. “One is to take them out and shoot them, as they are reported to do in at least one other country.” (He referred either to Nazi Germany or the Soviet Union.) “The other way is more genteel but no less effective. They are kept on the public payroll but their votes are canceled.” The noted historian James Truslow Adams warned that the courts were “the sole bulwark of our personal liberties.”

With resistance building, on March 29, 1937, the court stunned political observers when it upheld a Washington state law that was essentially identical to the New York statute that it had invalidated several months earlier. Owen Roberts provided the “switch in time that saved nine,” as the popular phrase later went. Perhaps at the urging of Chief Justice Hughes, who had dissented in the earlier case, Roberts changed his vote to take the wind out of FDR’s sails. It’s impossible to know; as some historians have noted, Roberts appears to have indicated his decision to reverse course before FDR announced his court-packing plan. It’s possible that he was motivated more by the president’s overwhelming popularity, as evident by the election results, than by a fear of a war between the executive and judiciary branches. Whatever the motivation, the ruling augured more cooperation from the high court.

Not long after, disinterested in waiting out FDR’s second term in the minority, Van Devanter announced his resignation. On most matters, FDR could fashion a certain majority of five or six—it seemed likely that both Roberts and Hughes (and whomever he appointed to replace Van Devanter) would line up with the liberals. He no longer needed to pack the court. But the president didn’t abandon his scheme. Instead, he fought tooth and nail for it, then watched it die a slow death.

Roosevelt spent down considerable political capital on what proved to be a doomed mission. In its wake, a functioning bipartisan majority of conservative congressmen ground the president’s domestic policy to a halt. As Henry Wallace, FDR’s agriculture secretary and, later, vice president, would observe that the “whole New Deal really went up in smoke as a result of the Supreme Court fight.”

But Wallace was only half right. The conservative coalition did stop the further expansion of the New Deal. But in another, key way, FDR’s gambit worked: With Hughes and Roberts now inclined to support the administration on key issues, and with Roosevelt’s ally, Hugo Black, now sitting in Van Devanter’s seat, the court upheld many of the most important New Deal initiatives that Congress had already passed, including Social Security, a new version of the Agricultural Adjustment Act, the National Labor Relations Act (which gave workers the right to join unions and bargain collectively) and the Fair Labor Standards Act (which established maximum hours and wages for workers). One by one, the Four Horsemen retired—now in the minority, they saw little reason to wait out FDR’s second and third terms. In their wake, FDR molded the court in his image.

More broadly, the Roosevelt Court embraced an expansive view of the Commerce Clause, conferring upon the federal government the right to regulate even those economic activities that were only tangentially related to the interstate sale of goods and services. In 1942 the justices went so far as to rule that a farmer growing wheat on a small plot just 23 acres in size—wheat that was to be wholly consumed by his livestock—fell under the purview of federal regulation. That expansive reading of the Commerce Clause outlived FDR and formed the legal basis for major liberal reforms over the next 75 years, including civil rights, environmental protection and consumer protection laws.

Furthermore, though the court-packing plan surely catalyzed conservative opposition to FDR, there is a strong case to be made that the anti-New Deal coalition would have materialized regardless, if perhaps later than it did. The New Deal destabilized the South’s racial caste system both by design and coincidence. Southern congressmen would likely have turned against Roosevelt and joined in a fragile coalition with Republicans sooner rather than later. What FDR lost politically was balanced at least in part by what he gained in bringing Hughes and Roberts to heel.

The lessons for today are mixed. Should Trump continue his war of words with “so-called” federal judges (or, as his senior policy aide, Stephen Miller, recently termed them: “unelected judges”) —or should he escalate matters and attempt to circumvent the courts—he will no doubt produce a powerful political backlash. He’ll also create a constitutional crisis. But how many circuit court judges and Supreme Court justices will balk at hitting back? How many will follow the path of Justice Owen Roberts and choose capitulation in the service of avoiding an all-out brawl between the executive and judicial branches, as Roberts is widely assumed to have done.

Liberals revere Franklin Roosevelt, and with good reason. But it bears remembering that he fought a bare-knuckle political fight to remold the court. Ironically, Trump could well achieve the same end, if only to achieve a court that applies a far narrower reading of the Commerce Clause and thereby throws into contention decades of progressive liberal achievements.