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The Breakup of the Roosevelt Supreme Court: The Contribution of History and Biography

Published online by Cambridge University Press:  28 October 2011

Robert Harrison
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Extract

‘It may not be proper to announce it,’ said President Franklin Roosevelt on June 25, 1941, ‘but today the Supreme Court is full.’ Roosevelt had just witnessed the swearing in of Justice Robert H. Jackson who would now take his seat on the Court along with the President's other appointees—Hugo Black, Stanley Reed, Felix Frankfurter, William Douglas, Frank Murphy, James Byrnes and Harlan Stone (promoted to Chief Justice).

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Articles
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Law and History Review , Volume 2 , Issue 2 , Fall 1984 , pp. 165 - 221
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Copyright © the American Society for Legal History, Inc. 1984

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References

1. Alderman Library, University of Virginia, Homer Cummings Ms Diary, July 11, 1941.

2. Jimmy Carter became the second President to serve a full term of office without being able to make an appointment.

3. Roosevelt also appointed Wiley Rutledge in 1943. (Rutledge took the seat left vacant when Byrnes resigned from the Court in order to help Roosevelt with the war effort.) If no other President since George Washington had had the opportunity to make so many Supreme Court nominations, it was primarily because no President prior to Roosevelt had broken Washington's precedent of retiring after two terms. Indeed, had Roosevelt lived but a few months longer, he would have named every Associate Justice on the Supreme Court (assuming, of course, that Owen Roberts would have gone ahead with his retirement in July, 1945 had Roosevelt not died in April); and had he completed only half of the fourth term which the American people had voted him, then all nine Justices…including the Chief Justice (Stone died in April, 1946) would have received their original commissions from the same man.

4. The cartoon is in the Washington Star, Jan. 6, 1940.

5. Between March 29 and May 24, 1937 the Supreme Court- with Roberts's help—validated Washington's minimum wage law for women, an amended Railway Labor Act, and amended Frazier-Lemke Act for the relief of farm debtors, the National Labor Relations Act, and the unemployment compensation and old-age benefit provisions of the Social Security Act. Chief Justice Hughes, who assigned himself the task of writing the most important of these opinions, tried mightily to distinguish away the precedents from the two previous terms which had seemed to portend a judicial veto of the laws now being sustained, but the accompanying dissents of Justices Van Devanter, Sutherland, McReynolds, and Butler testified to the undeniable fact that the Court had changed direction. Although Roberts later claimed that the Court-packing plan had no effect on his voting record (compare Frankfurter, Felix, ‘Mr. Justice Roberts’, 104 University of Pennsylvania Law Review 311–317 (1955Google Scholar) with Chambers, John W., ‘The Big Switch: Justice Roberts and the Minimum-Wage Cases,’ Labor History x (1969) 44–73CrossRefGoogle Scholar), his voting record had a dramatic effect on the plan: Roberts's ‘switch in time’ was said to have ‘saved nine’.

6. U.S. News x (June 13, 1941) 18Google Scholar, quoted in William F. Swindler, The Court and Constitution in the Twentieth Century, 3 vols. (Indianapolis, 1969–1974) ii, 124Google Scholar.

7. United States v. Butler, 297 U.S. 1, 81 (1936) (Stone, J., dissenting).

8. Burns Baking Co. v. Bryan, 264 U.S. 504, 534 (1924) (Brandeis, J., dissenting).

9. From 1930–1937, the Supreme Court decided an average of 164 cases per term, and dissents were filed on average in 15% of those cases (the low was 11% in 1930–1931 and the high was 19% in 1936–1937). From 1941–1947, the Court disposed of an average of 152 cases per term, and the percentage of nonunanimous opinions skyrocketed to an average of 53%, rising steadily from 36% in 1941–1942 to 64% in 1946–1947. See the statistical table in Pritchett, C. Herman, The Roosevelt Court (New York, 1948) 25Google Scholar.

10. Quoted in Jackson, Robert H., The Struggle for Judicial Supremacy (New York, 1941) 82Google Scholar.

11. Quoted in Thomas R. Powell, ‘Behind the Split in the Supreme Court’, New York Times Magazine (Oct. 9, 1949) 53.

12. Byrnes, James F., All in One Lifetime (New York, 1958) 136Google Scholar.

13. Federal Power Commission v. Hope Nat. Gas Co., 320 U.S. 591, 619 (1944). The Washington Post decried Black's concurrence: ‘Such ‘gratuitous’ rebuttals to dissenting opinions would appear unfortunate in any event. They are doubly unfortunate when they are as pointed and personalized as were the ‘added remarks’ of Justice Black this week…. The wellsprings of justice have not infrequently been fouled by bitterness and rancor within the confines of the Supreme Court. But every time feuds of this sort break into backbiting in official opinions the prestige of the court necessarily sags.’ Washington Post, Jan. 8, 1944. A month later, Frankfurter (and Jackson) asserted that they would not subscribe to an opinion for the Court by Douglas (in which Black had joined) because ‘such a wholly novel doctrine of constitutional law (as the majority was proposing) should not be resorted to gratuitously when the case before us can be disposed of on (another ground).’ Brown v. Gerdes, 321 U.S. 178, 191, (1944).

14. S.E.C. v. Chenery Corp., 332 U.S. 194, 214 (1947).

15. Pusey, Merlo, ‘The Roosevelt Supreme Court’, American Mercury lviii (1944) 596Google Scholar.

16. The full text of the cable appeared in the New York Times, June 11, 1946, p. 2. Jackson's remarks quoted in the remainder of this paragraph are from the cable. See, generally, Dunne, Gerald T., ‘Justices Hugo Black and Robert Jackson: The Great Feud,’ 19 Saint Louis University Law Journal 465–487 (1975)Google Scholar.

17. 325 U.S. 161, rehearing denied, 325 U.S. 897 (1945).

18. It was common knowledge that Jackson would have been made Chief Justice in 1941 had not Roosevelt believed that he would broaden his base of political support by promoting Stone, who was a Republican. It was also known that Harry Truman had said when he was Vice-President that Jackson fit his idea of what a Chief Justice should be.

19. One Senator introduced a constitutional amendment which would have limited to three the total number of Supreme Court appointments which any one President could make. The amendment would have been retroactive. As a Court ‘un-packing’ plan, it would have forced Jackson, Murphy, Douglas, and Rutledge (but not Black) to give up their seats.

20. Hughes’ skills as a Chief Justice—and particularly when presiding at conference—are legendary. He converted Frankfurter from a bitter critic of his behavior during the Court fight to an ardent admirer of his abilities as an administrator. Murphy and Douglas, too, held Hughes in very high esteem, and Roberts wrote to his former Chief in 1945 to tell him that things were never the same for him on the Court after Hughes stepped down in 1941. By comparison, there was no greater fan of Justice Stone than Professor Frankfurter in the 1930s, but at the time of Stone's death, Frankfurter had nothing but contempt for his Chief. Of course this may say as much about Frankfurter as about Stone, but there are also statements in published and/or private sources made by Murphy, Rutledge, Douglas, Black, and Jackson which disparage Stone's effectiveness as a Chief Justice.

21. Franklin D. Roosevelt Library, Roosevelt Mss, C. C. Burlingham to Roosevelt, Feb. 4, 1936, PSF Box 221.

22. C. C. Burlingham to Roosevelt, June 26, 1936, ibid.

23. Roosevelt to C. C. Burlingham, July 2, 1936, ibid., PSF Box 121. The President's reply did not alleviate Burlingham's dissatisfaction with the President's approach to judicial appointments. ‘The trouble with F. D. (Roosevelt),’ he later wrote to Felix Frankfurter, ‘is that he doesn't know what a good lawyer or a good judge is.’ Library of Congress, Frankfurter Mss, Burlingham to Frankfurter, June 8, 1937.

24. C. C. Burlingham to Roosevelt, May 25, 1937, ibid.

25. Roosevelt to C. C. Burlingham, May 27, 1937, ibid.

26. The Court itself delivered the most telling blows during the Court battle. Chief Justice Hughes' letter to the Senate Judiciary Committee in March, 1937 stated that the Court was fully abreast of its work, and thereby undercut the President's principal justification for ‘reforming’ the judiciary. Then came the Court's dramatic turn about from its opposition to federal and state regulatory legislation, which made passage of the Court bill seem less imperative. Finally, Justice Van Devanter's announcement in May, 1937 that he would retire at the end of the term meant that Roosevelt would now be able to begin reconstituting the Court with personnel of his own choosing—without having to ‘pack’ it. The coup de grace, however, came from outside the Court when Joe Robinson, the Senate majority leader who was supposed to deliver the votes for the measure, died suddenly in July. See, generally, Jackson, Struggle, supra note 10; Joseph Alsop and Catledge, Turner, The 168 Days (Garden City, New York, 1938)Google Scholar; Baker, Leonard, Back to Back: The Duel Between F.D.R. and the Supreme Court (New York, 1967)Google Scholar; and Leuchtenburg, William E., ‘Franklin D. Roosevelt's Supreme Court ‘Packing’ Plan’, in Hollingsworth, Harold M. and Holmes, William F., eds., Essays on the New Deal (Austin, Texas, 1969) 69–115Google Scholar.

27. During the search for Roosevelt's first Supreme Court appointee, he and Attorney General Cummings began with a list of nearly sixty names, which was pared to seventeen by early August, 1937. At that point, according to Cummings, ‘The President … asked me to look into the records of those witnesses who appeared before the Judiciary Committee on behalf of the court plan to see if amongst them were any possibilities that had been overlooked.’ Homer Cummings Ms Diary, supra note 1, Aug. 6, 1937. However, another former Attorney General under Roosevelt, Robert Jackson, later specifically denied that support for Court-packing played a significant role in the selection process: ‘I don't think that the attitude of the appointee toward the court plan was a decisive factor…. I think there was a general consideration of a man's social attitudes, yes, but I wouldn't say that his attitude toward the court plan in particular was a governing consideration.’ Columbia University Oral History Collections, ‘The Reminiscences of Robert H. Jackson’, 751–752. While loyalty on Court packing may not have been the ‘decisive factor’, it does seem to have been a prerequisite for appointment to the Roosevelt Court, and in my discussion of the men chosen by the President I will show that each played some part in the Court fight. Ironically, Jackson himself in the following excerpt from his official biography, provides evidence that there was a stronger correlation than he suggests above between one's attitude toward the Court bill and nomination to the Roosevelt Court: ‘During the Court fight in 1937 (Judge Martin) Manton made a speech indicating support of President Roosevelt. Copies of this speech were sent to the President, to Jackson and to others of the government staff who supported the President's plan, ‘I regarded this as a part of Manton's plan eventually to become a candidate for the first Supreme Court vacancy,’ said Jackson, Gerhart, Eugene C., America's Advocate: Robert H. Jackson (New York, 1958) 171Google Scholar.

28. Douglas, William O., Go East, Young Man (New York, 1974) 454Google Scholar.

29. Douglas, William O., The Court Years (New York, 1980) 244Google Scholar.

30. ‘I know why you are not enthused about Harold (Stephens, Judge of the Court of Appeals),’ Cummings once said to Roosevelt when the two men were discussing a successor to Cardozo. ‘He (Stephens) is not colorful enough for you, but it has been my experience that it is a rare thing to find a man who is both colorful and safe, and that most of the colorful people get into trouble at one time or another.’ Cummings Ms Diary, supra note 1, Nov. 18, 1938.

31. Biddle, Francis, In Brief Authority (New York, 1962) 92–93Google Scholar.

32. Library of Congress, Brant Mss, Brant to Wiley Rutledge, Feb. 19, 1939, Box 13.

33. Alsop and Catledge, The 168 Days, supra note 26, 301.

34. According to Hugo Black, Jr., his father ‘assumed that somewhere along the line, fraud was involved whenever money went from the government to private industry in the form of subsidies or contracts or whenever money came into corporations from the public in a stock or bond sale. And he developed a theory…. ‘Except for windfall land profits, most great fortunes can be traced back to transactions with the government or the public in a stock or bond sale’.’ Black, Hugo Jr., My Father: A Remembrance (New York, 1975) 86Google Scholar.

35. Among them, e.g., Moley, Raymond, the ex-New Dealer turned journalist: ‘Black looms only as a destroyer, an attacker, an inquisitor.’ Newsweek x (Aug. 21, 1937) 40Google Scholar. For a more balanced assessment of Black's Senate investigations, see Van Der Veer Hamilton, Virginia, Hugo Black: The Alabama Years (Baton Rouge, 1972) 222–234, 246–259Google Scholar; Williams, Charlotte, Hugo L. Black: A Study in the Judicial Process (Baltimore, 1950) 52–67Google Scholar; Frank, John P., Mr. Justice Black: The Man and His Opinions (New York, 1949) 63–88Google Scholar. Madison, Charles A. in his Critics and Crusaders, 2nd ed. (New York, 1959Google Scholar) wrote that Black had ‘browbeat’ witnesses. Black replied to Madison in a private letter: ‘I have always thought it was completely wrong for a Senate or House Committee to ‘browbeat’ and bully witnesses. So far as I know the record will not show that I ever did this. If even at this late date I knew that I had ever browbeat a witness, I would apologize to him if I found him living.’ Library of Congress, Black Mss, Black to Charles A. Madison, Feb. 26, 1959. Madison wrote back: ‘On further reflection I regret very much to have used the word ‘browbeat’ in connection with your Congressional investigations. I still think that you pressed your advantage hard, and rightly so, during the hearings.’ Madison to Black, Apr. 5, 1959, Black Mss.

36. Quoted in Williams, Hugo L. Black, supra note 35, 49.

37. Black to Roosevelt, Jan. 28, 1937; Roosevelt to Black, Feb. 6, 1937, quoted in Hamilton, Hugo Black, supra note 35, 262.

38. Moley, supra note 35.

39. Alsop and Catledge, The 168 Days, supra note 26, 299.

40. Frank, John P., ‘The New Court and the New Deal’, in Strickland, Stephen P., ed., Hugo Black and the Supreme Court: A Symposium (New York, 1967) 43Google Scholar.

41. Leuchtenburg, William E., ‘The Appointment of Justice Hugo L. Black’, 41 University of Chicago Law Review I, 29–30 (1973)CrossRefGoogle Scholar.

42. On the day the nomination was made public, Cummings wrote in his diary, ‘Senator Black will surely stir up the dry bones.’ Homer Cummings Ms Diary, supra note 1, Aug. 12, 1937.

43. Quoted in H. I. Phillips, ‘Pettigrew the Penguin on the High Court’, a newspaper column on file in the Black Mss.

44. Quoted in Williams, Hugo L. Black, supra note 35, 14–15.

45. Washington Post, Aug. 13, 1937, quoted in Leuchtenburg, ‘Appointment of Hugo Black’, supra note 41, 7. Arthur Krock of the New York Times added his voice to those who criticized the nomination: ‘Watchers of his (Black's) career have never discovered a trace of the judicial temperament.’ New York Times, Aug. 15, 1937, IV, 3Google Scholar.

46. Black had by then been sworn in as an Associate Justice, and calls for his resignation or impeachment came from several prominent individuals and organizations. Black went on national radio and admitted his former membership in the Klan, but he assured his listeners that he had completely severed all connections with the group, and that ‘some of my best and most intimate friends’ were Catholics Jews, and ‘members of the colored race.’ Black, Hugo, ‘I Did Join the Klan’, Vital Speeches iv (Oct. 15, 1937) 21Google Scholar. The Washington Post shot back: ‘We might reply in kind that one of our best liberal friends was a Klansman but we still don't think that he ought to be on the Supreme Court.’ Quoted in Hamilton Hugo Black, supra note 35, 296. Although many faulted Black's speech for failing to denounce the Klan, President Roosevelt was delighted: ‘It was a grand job…. It did the trick.’ Quoted in Farley, James A., Jim Farley's Story (New York, 1948) 100Google Scholar. A few months later, the new Justice remarked, ‘The fight (over his Klan affiliation) … had one very good effect. It showed that the Court and the members are human and that they can be attacked, just as a Senator or anyone else. The thing that amused me most,’ added Black, demonstrating his characteristic coolness under fire, ‘was the notion that some of them had that by some kind of way they would get me to resign. I laughed a lot over that.’ Quoted in Lilienthal, David E., The Journals of David E. Lilienthal, 7 vols. (New York, 1964) i, 69 (entry of Jan. 21, 1938)Google Scholar.

47. McCune, Wesley, The Nine Young Men (New York, 1947) 59Google Scholar.

48. Reed to Miss Le Hand, Jan. 4, 1938, Roosevelt Mss, PSF Box 76. (Emphasis in original.)

49. Cummings Ms Diary, supra note 1, Dec. 26, 1936.

50. After Roosevelt endorsed the idea of Court-packing in late December, 1936, Reed worked throughout January and into February with Cummings and a few other advisers to prepare the Court bill and the President's accompanying message to Congress. During a press conference held shortly after the Court plan was unveiled, Roosevelt specifically acknowledged Reed's contribution to the formulation of the proposal. See Complete Presidential Press Conferences of Franklin D. Roosevelt, 25 vols. (New York, 1972) ix, 164, 166Google Scholar. Thereafter, Reed stayed in the background during the political phase of the Court battle, although he and Cummings met several times throughout the month of June with various senators in an abortive effort to achieve a compromise in the number of judges to be added to the Court.

51. Among other activities, Frankfurter wrote an article which he expanded into a book about the trial of Sacco and Vanzetti, and he donated all the money he earned from publication to their Defense Committee. In the book, Frankfurter said the trial judge's opinion ‘stands unmatched, happily, for discrepancies between what the record discloses and what the opinion conveys. His 25,000 word document cannot accurately be described otherwise than a farago of misquotations, misrepresentations, suppressions, and mutilations.’ Frankfurter, Felix, The Case of Sacco and Vanzetti (New York, 1962) 104Google Scholar, quoted in Baker, Liva, Felix Frankfurter (New York, 1969) 120Google Scholar. The fact that the case was still pending on appeal when Frankfurter published his charges led one contemporary reviewer to recommend that the Harvard Law Professor be jailed for contempt. See Baker, Felix Frankfurter, 123.

52. Tom Mooney, a labor radical, was convicted of planting a bomb which killed nineteen people who were attending a ‘Preparedness Day’ parade in July, 1916. After Mooney was sentenced to death, the key witness for the prosecution was found to have perjured himself, and Frankfurter urged President Woodrow Wilson to bring pressure on state officials to grant Mooney a new trial. Mooney's death sentence was commuted to life imprisonment, but he remained behind bars for twenty-two years until he was pardoned in January, 1939—just two days after Frankfurter's Supreme Court appointment was announced.

53. Copper workers struck mines throughout Arizona in the summer of 1917. In Bisbee, an armed force of vigilantes, backed by mine officials, kidnapped over a thousand strikers and left them in the desert without food or water.

54. On November 7, 1919 and January 2, 1920, the Attorney General of the United States, A. Mitchell Palmer, ordered agents of the Justice Department and the Federal Bureau of Investigation to round up radicals, anarchists, communists, aliens, and labor agitators. Approximately 4,000 suspects in thirty-three cities were detained and held incommunicado while their homes and offices were subjected to warrantless searches.

55. When Frankfurter criticized the Mooney trial and the Bisbee deportations, it was in his official capacity as counsel to the Mediation Commission established during World War I by Woodrow Wilson. Former President Theodore Roosevelt denounced Frankfurter for ‘taking on behalf of the administration an attitude which seems to be fundamentally that of Trotsky and the other Bolshevik leaders in Russia.’ Quoted in Lash, Joseph P., From the Diaries of Felix Frankfurter (New York, 1975) 24Google Scholar. At his confirmation hearings following his nomination to the Supreme Court, Frankfurter was still in the position of having to deny that he was a communist.

56. Henry Stimson, who hired Frankfurter away from a Wall Street law firm when Stimson was the United States Attorney for New York, once asked Frankfurter why he had apparently sent Soviet propaganda to one of Stimson's former classmates at Yale. Yale University Sterling Library, Stimson Mss, Stimson to Frankfurter, Mar. 17, 1921. Frankfurter admitted he had sent out editions of the Russian Press Review on three occasions when ‘there were specific accounts of the activities or the plans of the Soviet Government that I thought would interest friends of mine, not because they were Communists, or I am a Communist, but merely as a revelation of the Soviet state of mind.’ Frankfurter to Stimson, Mar. 22, 1921. Quoted in Baker, Felix Frankfurter, supra note 51, 97.

57. Justice Oliver Wendell Holmes thought that Frankfurter was ‘so good in his chosen business that I think he helps the world more in that way than he does by becoming a knight-errant or a martyr.’ Holmes to Harold Laski, Nov. 13, 1928 in De Wolfe Howe, Mark, ed., The Holmes-Laski Letters, 2 vols. (Cambridge, 1953) i, 1109Google Scholar.

58. Although Frankfurter was not compensated by the people he represented, he did receive a substantial annual stipend from Justice Brandeis to support his legal activities in the public service. See Bruce Murphy, A., The Brandeis/Frankfurter Connection (New York, 1982)Google Scholar.

59. See, e.g., the following excerpt from a letter Frankfurter wrote to the President after Roosevelt had proposed closing certain loopholes in the tax laws which benefitted wealthy individuals and corporations: ‘How could anyone not morally obtuse fail to read your account of the shabby devices for getting civilization at a discount without a feeling of deep indignation? … How can they behave this way? And these be the ‘leaders’ of finance and industry, and, to our shame, even ‘leaders’ of the profession in whose special keeping is the law. With all the unedifying aspects of a social caste system, the English aristocracy are in the main at least under the sway of noblesse oblige. While our ‘economic royalists’, and their auxiliaries, haven't even the morality of prudence — the prudence of not undermining the very system to which they profess devotion.’ Roosevelt Mss, Frankfurter to Roosevelt, June 3, 1937, PSF Box 150. All of the correspondence between Roosevelt and Frankfurter may also be found in Freedman, Max, ed., Roosevelt and Frankfurter: Their Correspondence, 1928–1945 (Boston, 1967)Google Scholar.

60. 296 U.S. 204 (1935).

61. Harvard Law School, Frankfurter Mss, Frankfurter to Stone, Dec. 23, 1935.

62. Library of Congress, James M. Landis Mss, Frankfurter to Landis, Jan. 9, 1936. Frankfurter's letter continues: ‘Henry Hart (see infra note 67) told me that he found me much more calm and philosophic than Tom Powell on reading the A.A.A. opinion. I told him that after the Colgate decision the Court had no surprises for me — I think that is the most indefensible decision on any account, in my lifetime — and I had the calmness of one who saw expected forces in operation’

63. Harvard Law School, Frankfurter Mss, Frankfurter to Stone, June 2, 1936.

64. For Christmas, 1936, Frankfurter gave the President a copy of his latest book, The Commerce Clause Under Marshall, Taney, and Waite, which was inscribed, ‘To F.D.R., who is a better friend of the Supreme Court than its present majority.’ Frankfurter also told Roosevelt, ‘there are in it things ‘calculated’ — in the language of Mr. Justice Holmes — ‘to give the Brethren pain’.’ Freedman, Roosevelt and Frankfurter, supra note 59, 366–367.

65. Frankfurter sent the following cryptic note to Solicitor General Reed on Dec. 14, 1936: ‘As you probably know, Ben (Cohen) was up here on Friday, and we spent a good part of the day in canvassing the possibilities, and the problems they raise, should there be need for constitutional reform. Ben will report to you in detail, but let me say in a single word that Ben and I quite independently had made substantially the same analysis of the situation … and we reached the same general conclusion as to policy.’ Reed's reply, dated Dec. 17, 1936 reads, in relevant part: ‘The consensus that an amendment permitting an unchallengeable reenactment of legislation held unconstitutional best accords with tradition, preserves the value of the Court as an interpreter, eliminates possibility of arbitrary bars and continues without unnecessary interference the theory of the delegated powers and the protection of the Bill of Rights, has my adherence.’ Reed proceeded to ask Frankfurter to help in nailing down some of the questions generated by this proposal, and Frankfurter began to address those questions in a note to Ben Cohen scribbled in the margin of Reed's letter: ‘Ben — Please return with comments, so that we shouldn't be out of harness. I believe, as at present advised, (1) the same Act must be re-enacted. (2) (Therefore), it is important to do so within a relatively short time. (3) That puts more pressure for careful draftsmanship in first instance.’ It is reasonable to infer that the policy Ben Cohen and Frankfurter agreed upon on Dec. 14 was the constitutional amendment Reed discussed in his reply letter of Dec. 17. Both letters are on file in the Frankfurter Mss, Harvard Law School.

66. Frankfurter ‘slipped’ into and out of the White House for a secret overnight strategy session with Roosevelt on April 20–21. See Frankfurter to Roosevelt, April 21, 1937, Roosevelt Mss, PSF 150. Even to his close friends, however, Frankfurter pretended to be wholly aloof from the Court fight: ‘I continue a policy of sawing wood as a teacher and a scholar, and maintain indifference to the public winds that blow about me.’ Library of Congress, Frankfurter Mss, Frankfurter to Grenville Clark, March 6, 1937.

67. When Professor Henry M. Hart of the Harvard Law School wrote an article in favor of the President, Frankfurter sent Roosevelt a copy, along with the following note: ‘This is from one of my pet products here—and now among my junior colleagues. Grand person, of whom some ‘distinguished Harvard men’ do not approve. Strange—isn't it?’ Frankfurter to Roosevelt, April 27, 1937 in Freedman, Roosevelt and Frankfurter, supra note 59, 399. Roosevelt was scheduled to leave on a brief fishing vacation in Texas the following day, and Frankfurter ended his letter by saying, ‘I hope the fish will bite for you, heartily and well—both on land and at sea.’ Ibid. (My emphasis.) In July, Governor Herbert Lehman of New York, a long-time friend and ally of the President, publicly deserted him on Court-packing. Frankfurter knew well how much Lehman's defection would hurt Roosevelt—personally and politically—and he immediately tried to bolster the President's spirits: ‘I was—and am—hot all over regarding Herbert Lehman's letter. Some things just aren't done—they violate the decencies of human relations and offend the good taste and the decorum of friendship. And so I was—and am—‘hot’—but less with anger than with sadness. I wanted to tell you this—at least inadequately to hint at my feelings, and to wish for you your own powers of serenity and generosity and good humor and pertinacity in the good fight and the long, patient resourceful persistence in vindicating the democratic ideals to which this country is dedicated.’ Frankfurter to Roosevelt, July 20, 1937, ibid., 402. The President wrote back, ‘You and I will continue to think in terms of the ultimate objective and, where occasionally we run into barbed wire in front and people who take pot-shots at us from the rear, we still do not lose sight of the goal.’ Roosevelt to Frankfurter, ibid., 404.

68. On May 25, 1937, C. C. Burlingham urged Roosevelt to abandon Court-packing now that the President's main objectives had been achieved. See text accompanying note 24, supra. Roosevelt showed Frankfurter Burlingham's letter, and Frankfurter advised against any compromise. Freedman, Roosevelt and Frankfurter, supra note 59, 392.

69. Ickes, Harold L., The Secret Diary of Harold L. Ickes, 3 vols. (New York, 1953–1954) ii, 552Google Scholar.

70. Douglas liked to foster the impression that he was solely responsible for his own successes. Consequently, his first wife's contribution to his career was often overlooked. See Simon, James F., Independent Journey: The Life of William O. Douglas (New York, 1980) 74Google Scholar.

71. Douglas resigned in protest from Columbia when its autocratic President, Nicholas Murray Butler, appointed a dean for the law school, without consulting the faculty, who was not as zealous an educational reformer as Douglas's preferred candidate. See ibid., 92–99.

72. Douglas, Go East, Young Man, supra note 28, 157.

73. Douglas, William O., ‘Education for the Law’, in Allen, James, ed., Democracy and Finance: The Addresses and Public Statements of William O. Douglas as Member and Chairman of the Securities and Exchange Commission (New Haven, 1940) 278–289Google Scholar. One leader of the ‘realist’ movement placed Douglas (and Frankfurter) on a list of a dozen academicians worldwide who had gone ‘beyond theorizing … into the gathering and interpretation of facts about legal behavior.’ Llewelyn, Karl, ‘A Realistic Jurisprudence: The Next Step.’ 30 Columbia Law Review 431, 454 (1930)CrossRefGoogle Scholar.

74. Douglas, Go East, Young Man, supra note 28, 145.

75. Hoyt, Edwin P., William O. Douglas (Middlebury, 1979) 47Google Scholar.

76. Douglas, Go East, Young Man, supra note 28, 321.

77. Ibid., 318, 321.

78. Ibid., 321.

79. Ibid., 290.

80. Allen, Democracy and Finance, supra note 73, 8.

81. New York Times, Feb. 10, 1939, p. 36.

82. Ibid., Mar. 16, 1939, p. 35.

83. Ickes, Secret Diary, supra note 69, 594.

84. New York Times, Mar. 21, 1939, p. 16.

85. Douglas, William O., ‘The Lawyer and the Federal Securities Act’, Duke Bar Association Journal vol. iii (Spring 1935) 66, 68Google Scholar.

86. Ever since the death of Justice Butler on November 16, 1939, Washington observers had practically taken it for granted that the President would choose Murphy, who had replaced Homer Cummings as Attorney General, to fill the vacancy. See, e.g., the following comment by Henry M. Bates, Dean of the University of Michigan Law School (Murphy's alma mater), to Justice Stone: ‘Two of my University colleagues, returning from business in Washington, report that it seems to be understood that Frank Murphy is to be appointed to the Court.’ Stone Mss, Bates to Stone, Dec. 1, 1939.

87. ‘I fear that my work will be mediocre up there (on the Court),’ Murphy confided to his former parish priest, ‘while on the firing line where I have been trained to action I could do much better.’ University of Michigan Bentley Library, Murphy Mss, Murphy to William Murphy, Jan. 8, 1940, Box 86.

88. ‘He (Murphy) is no doubt a choice spirit, and he is a true son of the church and he is a Mid-Westerner and he is a New Dealer,’ C. C. Burlingham conceded to Roosevelt, ‘but I can't bear to think of so slight a lawyer on the Supreme Court,’ Burlingham to Roosevelt, Dec. 27, 1939, copy on file in Frankfurter Mss, Library of Congress.

89. For Murphy's pre-Court career, see Fine, Sidney, Frank Murphy: The Detroit Years (Ann Arbor, 1975)CrossRefGoogle Scholar; Fine, Sidney, Frank Murphy: The New Deal Years (Chicago, 1979)Google Scholar; Howard, J. Woodford, Mr. Justice Murphy: A Political Biography (Princeton, 1968)Google Scholar; Lunt, Richard D., The High Ministry of Government (Detroit, 1965)Google Scholar.

90. New York Times, Feb. 6, 1937, p. 1. News of the sit-down made page one of the Times on every day of the forty-four day strike.

91. Murphy said during a subsequent sit-down strike: ‘I have been urged to ‘shoot the workers out of the factories, and thus end sit-down strikes once and for all.’ When they want that done they will have to get another man for Governor of Michigan.’ Ibid., April 1, 1937, p. 12.

92. New York Times, Feb. 12, 1937, p. 22.

93. See, e.g., the following remarks by a Nebraska senator: ‘That there is a widespread and growing disregard for law and order none will deny. It evidences itself in the illegal sit-down strike and in many other ways. That this condition is due in no small measure to the (President's) unrestrained attacks upon our courts, and the judicial process will, I believe, be the verdict of history.’ New York Times, April 5, 1937, p. 4. It was the verdict of the President of the United Auto Workers, the union which called the Michigan strike, that the Supreme Court—and not Roosevelt's proposal to pack it—was responsible for the nation's problems. He said, ‘We know that nine old men have been on a sit-down for the last six years and I don't know where you stand, but I'm squarely behind the President.’ Ibid., Mar. 24, 1937, p. 21. It was possible, however, to support the President's Court bill while also favoring strong measures against sit-downs, as evidenced, for example, by the stand of Senator (later Justice) James F. Byrnes of South Carolina.

94. Murphy and Roosevelt not only seemed to be traveling in the same direction in 1937, they also each paused in their separate struggles to endorse the actions of the other. On February 2, with the G.M. strike still unresolved and the debut of the Court-packing plan only three days away, Murphy made a speech critical of the Supreme Court. ‘We are still in no-man's land,’ Murphy declared, referring to the Court-imposed limitations which prevented state and national government from protecting their citizens against what he called ‘the play of blind economic forces.’ Ibid., Feb. 2, 1937, p. 5. On that occasion Murphy proposed a constitutional amendment to rectify the situation, but after the President announced his own remedy on February 5, Murphy praised the bill as ‘a constructive plan which will liberalize the Court and, of course, quite frankly, get rid of some of its dead timber.’ Murphy Mss, Murphy to Claude S. Hyman, Mar. 9, 1937, Box 44, quoted in Howard, Mr. Justice Murphy, supra note 89, 233. Roosevelt, for his part, kept in constant touch with Murphy during the tense sit-down negotiations, publicly congratulated him for bringing the strike to a peaceful conclusion, and later openly defended Murphy when the Special House Committee on Un-American Activities sought to portray the Governor as the not-so-unwitting tool of the Communist Party.

95. Quoted in Howard, Mr. Justice Murphy, supra note 89, 218.

96. See Byrnes, All in One Lifetime, supra note 12, chapter 7, ‘All Possible Aid Short of War.’

97. Byrnes described himself as ‘a conservative liberal trying to restrain the extremists of the right and the left.’ Ibid., 105. For a comparison of Byrnes and Black as senators, see Ashby, John B., ‘Supreme Court Appointments Since 1937’ (Ph.D. dissertation, Notre Dame University, 1972) 106Google Scholar.

98. New York Times, Jan. 8, 1936, p. 4.

99. Ibid., Feb. 6, 1937, p. 10.

100. Ibid., Feb. 14, 1937, p. 28.

101. U.S. Congress, Senate, Congressional Record, 75th Cong., 1st sess., Feb. 19, 1937, lxxxi, pt. 9. App: 277.

102. Ibid., 278.

103. Ibid.

104. New York Times, April 16, 1937, p. 14.

105. Quoted in Leuchtenburg, William E., Franklin Roosevelt and the New Deal (New York, 1963) 237Google Scholar.

106. Time xxxvii (June 23, 1941) 16Google Scholar.

107. Quoted in Gerhart, America's Advocate, supra note 27, 62.

108. Quoted in New York Times, Jun 13, 1941, p. 1.

109. Jackson, ‘Reminiscences’, supra note 27, 370–371.

110. New York Times, Mar. 19, 1936, p. 21.

111. Jackson, Robert H., ‘An Organized Bar’, American Bar Association Journal xviii (1932) 385Google Scholar.

112. Jackson's recommendation was for the government to withdraw its consent to be sued.

113. See Gerhart, America's Advocate, supra note 27, 105, n. 53.

114. New York Times, Jan. 30, 1937, p. 6.

115. U.S. Congress, Senate, Committee on the Judiciary, 75th Cong., 1st sess., ‘Reorganization of the Federal Judiciary’, Hearings on S.1392 (Washington, 1937)Google Scholar.

116. New York Times, Feb. 11, 1938, p. 6.

117. Jackson, Struggle, supra note 10, 76.

118. New York Times, Mar. 25, 1937, p. 21.

119. Jackson, Robert H., ‘The Struggle Against Monopoly’, unpublished speech of May 28, 1937Google Scholar, quoted in Gerhart, America's Advocate supra note 27, 125–126.

120. Quoted in Alsop and Catledge, The 168 Days, supra note 26, 197, where the authors describe the views of Ben Cohen and Tom Corcoran as well as Jackson.

121. New York Times, Dec. 30, 1937, p. 6.

122. Ibid. Jackson was soon joined by Secretary Ickes who stirred up a hornet's nest-with his charge that ‘Sixty Families’ ran America. See Ickes, Secret Diary, supra note 69, 282–290.

123. New York Times, Jan. 2, 1938, IV, 3; Dec. 28, 1937, p. 20.

124. ‘Remarks of John Lord O'Brian’, Proceedings of the Bar and Officers of the Supreme Court of the United States (Washington, 1955) 32Google Scholar.

125. ‘The President,’ Jackson said, in retrospect, ‘had a tendency to think in terms of right and wrong instead of terms of legal and illegal. Since he thought his motives were always good (for) the things that he wanted to do he found difficulty in thinking that there could be legal limitations on them.’ Jackson, ‘Reminiscences’, supra note 27, 917.

126. Rutledge, Wiley, ‘The Federal Government and Child Labor’, Social Service Review viii (December, 1933) 556–557Google Scholar.

127. Ibid., 561, 569–570.

128. Ibid., 571.

129. Brant Mss, Rutledge to Brant, Feb. 21, 1936, Box 13.

130. Ibid., Rutledge to Brant, May 28, 1936, Box 13.

131. Ibid., Rutledge to Brant, Jan. 2, 1939, Box 12. By this point, Rutledge was fully aware that whatever he wrote to Brant might be passed on to the White House. See ibid., Brant to Rutledge, Dec. 27, 1938; Library of Congress, Rutledge Mss, Rutledge to Joseph O. Meara, Jr., Feb. 28, 1939, Box 5.

132. Brant, Irving, ‘Introduction,’ in Harper, Fowler V., Justice Rutledge and the Bright Constellation (Indianapolis, 1965) xGoogle Scholar.

133. Brant Mss. Brant to Roosevelt, Feb. 19, 1939, Box 13.

134. Ibid.

135. In general. Supreme Court Justices have come from ‘civic-minded, politically active, economically comfortable’ families, and have enjoyed ‘upper middle to high social status.’ Abraham, Henry J., Justices and Presidents (New York, Penguin Books, 1975) 53Google Scholar. John Ashby found ‘somewhat surprising,’ therefore, that Black, Reed, Douglas, Murphy, and Byrnes ‘were self-made men from not overly affluent families.’ Ashby, ‘Supreme Court Appointments,’ supra note 96, 45. If Reed, perhaps, should not have been included on Ashby's list, Rutledge definitely should have been added to it.

136. During the presidential campaign of 1932, Roosevelt made a speech in which he charged that after March, 1929, ‘The Republican party was in complete control of all branches of the government—the legislative, with the Senate and Congress; and the executive departments.; Then, departing from his prepared text, he said, ‘And I may add, for full measure, the United States Supreme court as well.’ Quoted in Byrnes, All in One Lifetime, supra note 12, 65. President Hoover responded, ‘Does that statement express (Roosevelt's) intention to attempt to reduce that tribunal to an instrument of party policy and political action for sustaining such doctrines as he may bring with him?’ Quoted in Swindler, Court and Constitution, supra note 6. 15.

137. The President had a rule that he would appoint no one to any federal court who was over 60 years old. The ages of the Roosevelt Justices at the time of their nominatons were as follows: Black (51); Reed (53); Frankfurter (56); Douglas (40)—the youngest Supreme Court nominee in 128 years; Murphy (49); Byrnes (62)—the only exception to the 60-year rule; Jackson (49); Rutledge (49). Each successive appointment lowered the average age of the Justices, which dropped from 72 in 1937 to 56 in 1943. The chief impediment to Learned Hand's potential nomination in 1943 was that he was nearly seventy years old; the President feared that his own attacks on the ‘nine old men’ would come back to haunt him. ‘Sometimes a fellow gets estopped by his own words and his own deeds,’ the President wrote to Justice Frankfurter, who was pushing hard for Hand, ‘—and it is no fun for the fellow himself when that happens.’ Roosevelt Mss, Roosevelt to Frankfurter, Dec. 4, 1942, PSF 151. Of course the irony here is that Learned Hand continued to sit on the Court of Appeals long after Rutledge (and Murphy and Jackson) had died.

138. Pritchett. The Roosevelt Court, supra note 9, 29.

139. Grace Tully, Roosevelt's secretary, has written: ‘Four Supreme Court Justices were frequent ‘off the record’ White House callers, these being Frankfurter, Douglas, Murphy and Jackson. Their counsel was often of great help to the President but it was felt that exaggerated publicity on their visits would be out of keeping with their positions on the Court.’ Tully, Grace, F.D.R., My Boss (New York, 1949) 290Google Scholar.

140. Byrnes, James F., ‘The Constitution and the Will of the People.’ American Bar Association Journal xxv (1939) 670Google Scholar.

141. Toward the end of his life, Jackson said, ‘A judge who would decide a case consciously for the administration … just because it was his administration, ought to be impeached…. Neither do I think it means that because I thought labor wasn't getting a fair deal under the old decisions, that all decisions should now be in favor of labor, or that all decisions should be conditioned by who's on the so-called liberal side. The interpretation of the law ought to be as impersonal as possible.’ Jackson, ‘Reminiscences’, supra note 27, 1101–1102.

142. It is worth speculating whether the intensity of the divisions on the Roosevelt Court may be related to the fact that so many of the nominees had been law school academics. Douglas, Frankfurter, Rutledge, and Stone had been important figures in legal education, and even Murphy had taught night law school in Detroit on a part-time basis. Douglas has said of Frankfurter, ‘Felix always insisted that people be subservient to him. Even when he was at Harvard and I was at Yale, he treated everybody, even his colleagues, like his students.’ Quoted in Simon, Independent Journey, supra note 70, 9. (My emphasis.) (Not all of his colleagues, however, seemed to be bothered by Frankfurter's manner. Justice Harold Burton replied as follows to a nice note from Frankfurter who had congratulated Burton upon his retirement: ‘I appreciate your reference to my service as a Justice. I feel as though you have awarded me a mythical grade ‘A’ in your course on Constitutional Law, of which I may be proud.’ Harvard Law School, Frankfurter Mss, Burton to Frankfurter, April 29, 1964, Box 169.) Stone was often intolerant at conference of those who disagreed with his analysis of cases, and Rutledge tended to worry over every issue in a case—even minor ones—so that he ended up writing numerous concurrences as well as dissents. But whether teaching, in general, or law school teaching, in particular, may predispose one toward being supercilious, argumentative, and opinionated, I will leave to the reader—who probably has but to look in the mirror—to decide.

143. Perhaps the most famous effort along these lines was Justice Roberts’ opinion in United States v. Butler. ‘There should be no misunderstanding as to the function of this court,’ Roberts said, ‘It is sometimes said that the court assumes a power to overrule or control the action of the people's representatives. This is a misconception. The Constitution is the supreme law of the land ordained and established by the people. All legislation must conform to the principles it lays down…. The judicial branch of the Government has only one duty—to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former…. This court neither approves nor condemns any legislative policy.’ United States v. Butler, 297 U.S. 1, 3 (1936).

144. Roosevelt, Franklin D. (Rosenman, Samuel, ed.). The Public Papers and Addresses of Franklin D. Roosevelt, 13 vols. (New York, 1938–1950) vi, 126Google Scholar.

145. President Press Conferences, supra note 50, x, 59–60.

146. Rutledge Mss, speech file, Box 203.

147. Hugo L. Black, ‘Reorganization of the Federal Judiciary,’ a radio address delivered Feb. 23, 1937, reprinted in Vital Speeches iii (September 1, 1937) 673–674.

148. Harvard Law School, Frankfurter Mss, Frankfurter to Stone, Sept. 16, 1933.

149. Library of Congress, Frankfurter Mss, Frankfurter to Monte Lemann, April 1, 1937.

150. Cummings Mss, speech material, Robert H. Jackson, ‘Landon's Troubles with the Kansas Supreme Court,’ Box 117.

151. Roosevelt, Public Papers, supra note 143, vi, 125, 126.

152. Jackson, Robert H., ‘Back to the Constitution’, American Bar Association Journal xxv (1939) 745Google Scholar. See also Robert H. Jackson, Struggle, supra note 10, xv. President Roosevelt was of the same view: the subtitle of the 1937 volume of his public papers and addresses is, ‘The Constitution Prevails.’

153. The tension in these contradictory views of constitutional adjudication is nowhere better illustrated than in Roosevelt's fireside chat of March 9, 1937, in which he levelled with the American people about the real purposes behind the Court-packing plan. The President claimed repeatedly that he wanted courts to ‘enforce the Constitution as written,’ yet in the next breath spoke of the need for judges ‘who will bring to the Courts a present-day sense of the Constitution’; he endorsed the ideals behind the concept of ‘a government of laws and not of men,’ yet he also talked of ‘a system of living law’ presided over by ‘younger men who have had personal experience and contact with modern facts and circumstances’; he vigorously denied the charge that he was out to appoint ‘spineless puppets who would disregard the law and would decide specific cases as I wished them to be decided,’ yet he conceded that one of the purposes of the Court bill was to produce a ‘liberal-minded judiciary,‘and that he would appoint justices ‘who will not undertake to override the judgment of the Congress on legislative policy.’ Roosevelt, , Public Papers, supra note 143, vi, 126–129Google Scholar. (My emphasis.)

154. Southern Pac. Co. v. State of Arizona, 325 U.S. 761, 788 (1945) (Black, J., dissenting).

155. Douglas v. Jeannette, 319 U.S. 157, 181 (1943) (Jackson J., dissenting). (My emphasis.) In 1954 Jackson wrote, ‘A cult of libertarian judicial activists now assails the Court almost as bitterly for renouncing power as the earlier ‘liberals’ once did for assuming too much power. This cult appears to believe that the Court can find in a 4,000-word eighteenth-century document or its nineteenth-century Amendments, or can plausibly supply, some clear bulwark against all dangers and evils that today beset us internally. This assumes that the Court will be the dominant factor in shaping the constitutional practice of the future and can and will maintain, not only equality with the elective branches, but a large measure of supremacy and control over them. I may be biased against this attitude because it is so contrary to the doctrines of the critics of the Court, of whom I was one, at the time of the Roosevelt proposal to reorganize the judiciary.’ Jackson, Robert H., The Supreme Court in the American System of Government (New York, 1955) 58Google Scholar. (My emphasis.)

156. Minersville School District v. Gobitis, 310 U.S. 586 (1940).

157. Stone Mss, Frankfurter to Stone, May 27, 1940. (My emphasis.) To complicate matters, Frankfurter—and Jackson—were willing for the Court to police the search and seizure provision of the fourth amendment, whereas Black and Douglas in the 1940s almost never voted to protect that particular Bill of Rights guarantee. ‘In switching over from their normal libertarian position on this one issue Black and Douglas passed Frankfurter and Jackson going in the opposite direction. The search and seizure clause thus appeared to possess the mysterious qualities of a mirror which turns left into right and right into left.’ Pritchett, Roosevelt Court, supra note 9, 155. In my opinion, Black and Douglas's early lack of enthusiasm for vigorous enforcement of the fourth amendment has to do with the economic context of the first cases to reach the Roosevelt Court. These cases involved: lawyers conspiring to violate the Bankruptcy Act, Goldman v. United States, 316 U.S. 129 (1942); the president of a corporation which owned a service station where rationed gasoline had been sold on the black market during World War II, Davis v. United States, 328 U.S. 582 (1946); and a government contractor who had attempted to defraud the government. Zap v. United States, 328 U.S. 624 (1946). Black and Douglas had made their careers investigating lawyers, businessmen, and/or government contractors whose greed had led them to engage in fraudulent or unethical practices, and Black—in particular—had chafed under the restrictions of the fourth amendment. Frankfurter, on the other hand, had learned about the importance of the search and seizure provision during his apprenticeship under Henry Stimson, who scrupulously guarded the rights of criminal defendants when he was the United States Attorney for New York. Thus, here too. history and biography contributed to the disagreement among the Roosevelt Justices about how to approach an increasingly significant area of constitutional adjudication.

158. Harper, Justice Rutledge, supra note 131, 14–15. An observer of Rutledge's record as a judge on the Court of Appeals concluded, ‘He is impatient with decisions which follow neat, logical and legalistic patterns but reach, what he considers to be, unjust results on the plain facts.’ Forrester, Ray, ‘Mr. Justice Rutledge—A New Factor,’ 17 Tulane Law Review 531 (1943)Google Scholar.

159. Douglas, Go East, Young Man, supra note 28, 171.

160. Frankfurter, Felix, ‘The Law and the Law Schools’, American Bar Association Journal i (1915) 539Google Scholar. According to Donald Ritchie, however, Frankfurter did question what he regarded as some of the excesses of the realist movement (‘too many courses, too many research undertakings, and too many second and third-rate teachers’), and he defended Harvard's more traditional approach to legal education from attacks launched by Columbia and Yale. See Ritchie, Donald A., James M. Landis: Dean of the Regulators (Cambridge, 1980) 34–37CrossRefGoogle Scholar. Frankfurter also believed that the realists' view of the judicial process was too cynical: ‘May the lord forgive me,’ he wrote to Jerome Frank, whose books on law and the judicial process were to become classics in the realist mode, ‘if I have thought, erroneously, that you have been a little too much under the influence of the notion that courts decide the way they decide apart from what they say is the way they have decided. In other words, not the least propelling force of a good deal of the bar and the bench is the simple-minded effort to square a precedent case with past formulations. And even sophisticated judges like Learned Hand and (Julian) Mack and Cardozo and Brandeis and Holmes, pay considerable allegiance to that form of intellectual loyalty.’ Yale University Sterling Library, Frank Mss, Frankfurter to Frank, Dec. 2, 1935.

161. Murphy Mss, Frankfurter to Murphy, undated note re: Carter v. Kubler, 329 U.S. 243 (1943).

162. Library of Congress, Black Mss, Frankfurter comments on draft opinion, N.L.R.B. v. Waterman S. S. Co., 309 U.S. 206 (1940).

163. Murphy, Frank, Selected Addresses of Frank Murphy, Governor of Michigan (Lansing, 1938) 9Google Scholar.

164. Quoted in Gerhart, America's Advocate, supra note 27, 114–115.

165. U.S. Cong., Senate, Congressional Record, 75th Cong., 1st sess., Feb. 19, 1937, vol. Ixxxi, pt. 9, App: 277–278Google Scholar.

166. 317 U.S. 111 (1943).

167. 317 U.S. at 123–124.

168. Frankfurter observed in his opinion for the Court in Kirschbaum v. Walling, 316 U.S. 517, 520 (1942): ‘To search for a dependable touchstone by which to determine whether employees are ‘engaged in commerce or in the production of goods for commerce’ is as rewarding as an attempt to square the circle. The judicial task in marking out the extent to which Congress has exercised its constitutional power over commerce is not that of devising an abstract formula…. The expansion of our industrial economy has inevitably been reflected in the extension of federal authority over economic enterprise and its absorption of authority previously possessed by the States. Federal legislation of this character cannot therefore be construed without regard to the implications of our dual system of government.’ Kirschbaum held that the Fair Labor Standards Act applied to maintenance employees of a building which was used to manufacture goods for interstate commerce, but in a subsequent case Frankfurter again spoke for the Court in refusing to find coverage where the employees worked in an office building housing some companies which did business across state lines, but in which no physical process of production occurred. ‘To assign the maintenance men of such an office building to the productive process because some proportion of the offices in the building may, for the time being, be offices of manufacturing enterprises is to indulge in an analysis too attenuated for appropriate regard to the regulatory power of the States which Congress saw fit to reserve to them.’ Then, responding to charges made in Murphy's dissenting opinion (in which Black, Rutledge, and Reed had joined). Frankfurter added, ‘Dialectic inconsistencies do not weaken the validity of practical adjustments, as between the State and federal authority, when Congress has cast the duty of making them upon the courts. Our problem is not an exercise in scholastic logic’ 10 East 40th St. v. Callus, 325, U.S. 578, 583 (1945).

169. In Western Union v. Lenroot, 323 U.S. 490 (1946), the Supreme Court ruled that the telegraph company was not subject to the child labor provisions of the Fair Labor Standards Act because Western Union ‘produced’ no goods for interstate commerce, nor ‘shipped’ anything material across state lines. Murphy, writing for Black, Douglas, and Rutledge, dissented: ‘In approaching the problem of whether Western Union is a producer of goods shipped in interstate commerce, we should not be unmindful of the humanitarian purposes which led Congress to adopt (the Act)…. Courts should not disregard the legislative motive in interpreting and applying the statutory provisions that were adopted. If the existence of oppressive child labor in a particular instance falls within the obvious intent and spirit of (the Act), we should not be too meticulous and exacting in dealing with the statutory language. To sacrifice social gains for the sake of grammatical perfection is not in keeping with the high traditions of the interpretive process.’ 323 U.S. at 510.

170. See United States v. Carolene Products Co., 304 U.S. 144, 152–153. n. 4 (1938).

171. Terminiello v. Chicago, 337 U.S. 1, 13, 14, (1949) (Jackson, J., dissenting).

172. Ibid. at 37.

173. Kovacs v. Cooper, 336 U.S. 77, 96 (1949) (Frankfurter, J., concurring).

174. 316 U.S. 455 (1942).

175. 332 U.S. 46 (1947).

176. Foster v. Illinois, 332 U.S. 134, 139 (1947).

177. 332 U.S. at 69, 75, 90.

178. Quoted in Frank, Mr. Justice Black, supra note 35, 90.

179. Reed, Stanley F., ‘Stare Decisis and Constitutional Law,’ Pennsylvania Bar Association Quarterly xxxv (April, 1938) 134, 142–143Google Scholar. On Aug. 24, 1936, Reed asked in a speech to the American Bar Association Resolutions Committee, ‘How definitely are the precedents of the past to limit the development of the future?…Surely we are not wise enough, at this time, to let possible implications in legislation or judicial determination to be the controlling factor in present decisions. The fear of the dryly logical conclusion must not be a bar to the adaption of our legal principles to modern needs.’ University of Kentucky, Reed Mss, untitled speech, Aug. 24, 1936, Box 219.

180. Detroit News, Aug. 6, 1936, quoted in Howard, Mr. Justice Murphy, supra note 89, 231.

181. Murphy, Selected Addresses, supra note 162, 22.

182. New York Times, Jan. 30, 1937, p. 6.

183. Ibid., Feb. 18, 1937, p. 2.

184. Robert H. Jackson, ‘Hearings’, supra note 114, 50.

185. Jackson, Robert H., ‘Foundation of Our Unrest.‘unpublished speech, June 21, 1937Google Scholar, quoted in James, Dorothy B., ‘Judicial Philosophy and Accession to the Court: The Cases of Justices Jackson and Douglas’ (Ph.D. dissertation, Columbia Univeristy, 1966), 117–118Google Scholar.

186. Hogan, Frank, ‘Presidential Address’, American Bar Association Journal xxv (1939) 630Google Scholar.

187. Byrnes, ‘Constitution’, supra note 139, 668.

188. Jackson, Robert H., ‘A Square Deal for the Court’, unpublished speech, April 9, 1940Google Scholar, quoted in James, ‘Judicial Philosophy’, supra note 184, 120.

189. 295 U.S. 495 (1935).

190. 298 U.S. 238 (1936).

191. Smith v. Allwright, 321 U.S. 649, 660 (1944) (Roberts, J., dissenting).

192. Grinnell, Frank W., ‘The New Guesspotism’, American Bar Association Journal xxx (1944) 507–511Google Scholar.

193. 247 U.S. 251 (1918).

194. 312 U.S. 199 (1941).

195. 316 U.S. 584 (1942).

196. 319 U.S. 624 (1943).

197. 322 U.S. 533 (1944).

198. 328 U.S. 61 (1946).

199. Roosevelt, Public Papers, supra note 143, vi, 123–124.

200. See Pusey, Merlo J., Charles Evans Hughes, 2 vols. (New York, 1951) ii, 733Google Scholar. ‘Roosevelt thought the court ought to cooperate with him in the emergency,’ Jackson recalled in the 1950s. ‘He would carry the cooperative theory further than I would. He would have had it carried, I think, to the extent that he would have consultation between the President and the Court as to remedies for some of the evils of the Depression, just as George Washington sought the advice of the Court on some legal matters…. Roosevelt didn't see as clearly the line of distinction between the executive and judicial power as some people did.’ Jackson ‘Reminiscences’, supra note 27, 456–457.

201. Homer Cummings Ms Diary, supra note 1, May 19, 1936.

202. Black, ‘Reorganization,’ supra note 146, 674.

203. Roosevelt Mss, Frankfurter to Roosevelt. Feb. 7, 1937, PSF 150.

204. Jackson, ‘Hearings’, supra note 114, 51.

205. Ibid., at 58.

206. Byrnes, ‘Constitution’, supra note 139. 670.

207. United States v. Lovett, 328 U.S. 303 (1946).

208. United Public Workers v. Mitchell, 330 U.S. 75 (1947) (Murphy and Jackson, JJ., not participating).

209. Hartzell v. United States, 322 U.S. 680 (1944); Keegan v. United States, 325 U.S. 478 (1945).

210. Viereck v. United States, 318 U.S. 236 (1943).

211. Cramer v. United States, 325 U.S. 1, (1945).

212. Duncan v. Kahanamoku, 327 U.S. 304 (1946).

213. Ex Parte Quirin, 317 U.S. 1 (1942)

214. Hirahayashi v. United States, 320 U.S. 81 (1943).

215. In re Yamashita, 327 U.S. 1 (1946); Knauer v. United States, 328 U.S. 543 (1946).

216. Korematsu v. United States, 323 U.S. 214, 225 (Frankfurter, J., concurring).

217. Ibid, at 248.