SUPREME POWER: FRANKLIN ROOSEVELT VS. THE SUPREME COURT. By Jeff Shesol. (1) New York: W.W. Norton & Company, 2010. Pp. x + 640. $27.95
As National Federation of Independent Business v. Sebelius (3) awaited a Supreme Court decision, some observers reflected on the Court-packing crisis that had roiled the nation seventy-five years earlier. (4) In 1937 the Court had performed an apparent about face, upholding laws under the Commerce and the Tax and Spend Clauses that, in the view of most, it would have struck down in 1936. According to the conventional view, Justice Owen Roberts had "switched in time" to preserve judicial review from the threat of President Roosevelt and his plan to add six new Justices to the Court.
The Sebelius Court had seemed poised to strike down national economic legislation--in fact, a landmark federal law--for the first time since 1937. (5) And the Court came close to doing so. Five Justices declared that the Affordable Care Act exceeded Congress' powers to regulate interstate commerce. But a bare five to four majority upheld most of the law under the Tax and Spend Clause. (6)
Sebelius seems likely to spur renewed attention to the 1937 Court-packing crisis. Anda longstanding scholarly controversy exists about what happened then. "Internalist" historians, according to Laura Kalman, "point to doctrinal, intellectual causes" for doctrinal change in the 1930's. (7) "Externalist" historians, on the other hand, cite "political reasons," including the Court-packing threat and Roosevelt's landslide reelection in November 1936. (8) In philosophical terms, internalists are supposedly legalists who view law as autonomous from politics; externalists are said to be legal realists. (9)
Jeff Shesol's history, Supreme Power: Franklin Roosevelt vs. the Supreme Court, does not consider the contemporary echoes of 1937. But Shesol, a former Clinton White House speechwriter, surely recognized the parallels between then and now. Today, as in 1937, times are hard, the Supreme Court is conservative, and a Democratic President--elected on a platform of change--advances controversial legislation. (10)
Shesol provides a riveting, almost blow by blow account of the Court-packing controversy. And although he alludes to internalism only briefly--and not by name--Shesol seriously undermines the internalist view of 1937. Supreme Power may mark a decisive turn in this decades old debate.
Internalism and externalism face quite different intellectual challenges. The case for externalism seems straightforward. In 1937 Justice Roberts altered his most fundamental views in three different areas of constitutional law--commerce, tax and spend and substantive due process. He did so at the precise moment President Roosevelt threatened to pack the Court, an action that gravely threatened judicial review. With Roberts' switching sides, a five to four majority on the Court to strike down New Deal legislation and state labor laws became a five to four majority to uphold those laws.
What happened can be compared to a shooting. A previously healthy victim falls to the ground, bleeding, at the very moment someone fired a gun in the victim's direction. Even without an autopsy, the case for an external cause of the collapse--the gunshot--seems strong. Yet internalists have to argue that a cause "internal" to the victim explains the event.
Alluding to this challenge, Barry Cushman, a leading internalist, acknowledges that non-political explanations of 1937 require some "intellectual space" to appear plausible--some gaps between political pressure and Roberts votes. (11) Internalists argue, for example, that Roberts could not have feared for the Court because Roosevelt's proposal was certain to fail. (12) Internalists also claim that Roberts cast a critical vote in a minimum wage case before Roosevelt had proposed Court-packing. (13) In effect, they argue that Roosevelt fired blanks and, in any event, the victim collapsed before the gun went off. …