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FDR's Losing Battle To Pack The Supreme Court

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Less than three years after President Franklin D. Roosevelt enacted the New Deal, the sweeping economic programs designed to help the United States recover from the Great Depression, the Supreme Court began overturning key aspects of Roosevelt's legislation.

"When the first New Deal case reached the Supreme Court in January 1935, the court struck down a key piece of the National Recovery Administration, the centerpiece of [Roosevelt's] plans to get the country out of the Depression," explains historian Jeff Shesol, whose new book explores tensions between FDR and the high court. "And from that point on, for the next year and a half, the court essentially struck down all of the central pillars of the New Deal. ... By the end of the term that ended in 1936, one columnist said that it reminded him of a Shakespeare tragedy: At the end of the play, the stage is strewn with dead bodies. Those dead bodies were the New Deal programs."

In Supreme Power: Franklin Roosevelt vs. the Supreme Court, Shesol examines Roosevelt's frustration with the conservative judicial branch throughout his administration -- and his attempt, shortly after his re-election in 1936, to pack the Supreme Court with as many as six additional justices.

Supreme Power: Franklin Roosevelt vs. the Supreme Court
By Jeff Shesol
Hardcover, 656 pages
W.W. Norton & Co.
List price: $27.95

Read An Excerpt

Even before Roosevelt took office in 1933, he knew that a conflict with the high court was inevitable. The court had been a powerfully conservative force in American life since the early 1880s, and at the time it included members such as Justice Pierce Butler, who opposed the federal regulation of Wall Street, and Justice George Sutherland, who frequently battled progressive legislation as a senator during the presidency of William Howard Taft.

Even more troubling to Roosevelt was the fact that none of the justices had been appointed during his first term -- and most of them had served for well over a decade.

In addition, Shesol says, an idea was floating around street corners and editorial pages that the Supreme Court shouldn't necessarily have the last word on constitutional matters.

"Some suggested that Congress ought to be able to overrule the Supreme Court," he explains. "By a two-thirds vote, Congress should be able to overturn any ruling of the Supreme Court, essentially making Congress the last word on the Constitution and not the Supreme Court."

FDR Saw Court, Not Constitution, As The Problem

Roosevelt, however, didn't endorse the ideas that Congress or the American public should be able to override the Supreme Court.

"He didn't think it was practical," says Shesol. "It takes a very long time, usually, to amend the Constitution ... enough to change the reality in the country. But secondly, and this is really important in understanding why Roosevelt packed the court, [is that] he didn't see any kind of contradiction between the Constitution and the New Deal. He didn't think there was anything in the Constitution that prevented him from doing what he needed to do. The problem as he saw it was not the Constitution; it was the conservatives on that particular Supreme Court. So what could you possibly do about them? So that's how he came to the idea of packing it."

Roosevelt's idea was that for any justice over the age of 70 who refused to retire, the president could appoint a new justice to sit beside the current justice and do his work.

"If the plan passed and no one [on the current court] retired, Roosevelt would instantly get to appoint six new liberal justices to the Supreme Court," explains Shesol. "Because he couldn't push the conservatives off the court, he thought, 'Well, at least I can outnumber them.' And what most people didn't realize then or today is that this is entirely constitutional. There's nothing in the Constitution that sets the number of justices at nine. The Constitution says nothing about how many justices there are."

Blowback To FDR's Plan

When Congress and members of Roosevelt's administration found out about the president's idea, they did not react well.

"Remarkably, John Nance Garner, who was Roosevelt's vice president, went back with him to Capitol Hill, stood in the well of the Senate and, as the plan was read aloud to the senators, Garner held his nose and gestured thumbs down," says Shesol.

Meanwhile, a number of Supreme Court Justices considered resigning en masse if the plan went through.

"Both Chief Justice Charles Evans Hughes and Justice Harlan Fiske Stone were eager to testify against the plan before Congress," says Shesol. "Ultimately, they decided that this would really bring the court too directly into the political controversy. But they both worked very hard and very effectively behind the scenes to bring the plan down."

Hughes wrote an open letter to the Senate deconstructing the plan, which Shesol says had a devastating effect. In addition, the court suddenly began upholding several parts of the New Deal, including minimum wage and the National Labor Relations Act. And then Justice Willis Van Devanter, a conservative, retired from the court, giving Roosevelt the chance to appoint his own justice. Shortly thereafter, Roosevelt's proposition died.

Shesol says the makeup of the current Supreme Court points out some of the problems with Roosevelt's argument.

"Age does not define ideology," he says. "Even though Roosevelt looked at what he called the 'nine old men of the Supreme Court' and suggested that the older justices were falling out of touch with reality, the oldest justice on that court in the 1930s was [Louis] Brandeis, the great liberal justice. And this was pointed out with glee with many of Roosevelt's opponents. ... So, you don't hear anything like that today. You hear concern on the part of progressives in this country that Justice Stevens and the other liberals are more likely to leave the court soon than any of the conservatives are, but I think we've come a long way since the 1930s, when that argument was made so forcefully by Franklin Roosevelt."

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Transcript

TERRY GROSS, host:

This is FRESH AIR. I'm Terry Gross.

As President Obama prepares to make his second appointment to the Supreme Court, we're going to go back to 1937, when President Franklin Roosevelt tried to reshape the court. It was the first year of his second term, after winning in a landslide. He had a Democratic Congress, but the Supreme Court had become his opponent. In a series of rulings, the court had struck down major parts of the New Deal.

Curtail the court or submit to judicial tyranny is how the choice was described by FDR's Secretary of the Interior Harold Ickes. After FDR's re-election in '37, he came up with a secret plan to reshape the court by expanding the number of justices, which would enable him to appoint justices who would support his New Deal reforms.

This little-known chapter of history is the subject of the new book, "Supreme Power: Franklin Roosevelt vs. the Supreme Court." My guest is the author, Jeff Shesol. He was a speechwriter for President Clinton and is also the author of "Mutual Contempt: Lyndon Johnson, Robert Kennedy and the Feud That Defined a Decade."

Jeff Shesol, welcome to FRESH AIR. What are some examples of New Deal legislation that the court declared unconstitutional and overturned?

Mr. JEFF SHESOL (Author, "Supreme Power: Franklin Roosevelt vs. the Supreme Court,"): When the first New Deal case reached the court at the beginning of 1935, the court struck down a key piece of the NRA, which was the National Recovery Administration. That was essentially the recovery act of the Roosevelt administration, the centerpiece of his plans to get the country out of the Depression.

And from that point on, for the next year and a half, the court struck down virtually all of the central pillars of the New Deal. They struck down the recovery act, as I said. They struck down the farm program, the AAA or Agricultural Adjustment Act. They struck down a coal act. They struck minimum wages. They struck down so many laws so quickly that by the end of the term that ended in the summer of 1936, one columnist said that it reminded him of a Shakespeare tragedy: At the end of the play, the stage is strewn with dead bodies. Those dead bodies were the New Deal programs.

GROSS: Now, you write that between 1933 and '36, the court overturned acts of Congress at 10 times the traditional rate. And to accomplish this, justices disinterred long-neglected doctrines and breathed new life into obscure clauses of the Constitution. Give us some examples of the neglected doctrines or obscure clauses of the Constitution that the justices cited in declaring parts of the New Deal unconstitutional.

Mr. SHESOL: That very first anti-New Deal decision at the beginning of 1935 struck down a piece of the recovery act on the grounds of delegation of power. The court said essentially that Congress had delegated too much governmental power to a body outside the government.

What was remarkable about this is that the Delegation of Powers Doctrine had essentially been dead for 30 or 40 years. The people had written it off, had said that it was a relic of the early part of the century. And so it was a great surprise to see the court not only revive it but then to use it very aggressively to overturn such a key part of the New Deal.

And this became a characteristic of this court over the next couple of years, that doctrines that nobody had heard of, clauses of the Constitution that nobody was familiar with, things like the Privileges or Immunities Clause, which really had never been applied in this fashion before, were taken up and turned into another tool, with a weapon with which to strike down the New Deal.

GROSS: My impression from your book is that the justices were actually afraid that the New Deal was going to ruin America. What were their fears?

Mr. SHESOL: The interesting thing about this conflict is that both sides in the conflict - and by that I mean Roosevelt and his supporters in the country and then the conservatives on the court and their supporters in the country - both sides felt that they were fighting for nothing less than the survival of democracy.

Roosevelt felt that if he couldn't get these New Deal programs through, if he couldn't do something to get the nation out of the Depression, that there would be a complete economic and social collapse in the country and that out of the ashes, a dictator would arise, and it would be the end of democracy.

Conservatives on the other side felt that if the government were allowed to develop such centralized power over so many sectors of the American economy and over American life that there would be no freedom in this country, that property would no longer be a sacred right and that individual initiative and all the things on which self-government rely, all of these would collapse, and again, we would be in a dictatorship.

So the interesting thing, as I said, is that both sides felt that they were fighting against dictatorship in America.

GROSS: And this was a timely moment to be fighting against dictatorship in America because you had fascism spreading through Europe.

Mr. SHESOL: Absolutely, and Americans were very aware of what was happening in Europe. I know that the portrayals of the time suggest that Americans weren't interested in what was happening around the world and were very insular during this period, hoping that they didn't get entangled in what was happening in Europe and so forth.

But while we didn't want to get entangled in Europe, we certainly were aware of what was going on in Europe. And so, the attacks from Roosevelt from the right constantly referred to Hitler, Mussolini and Stalin, constantly in right-wing editorials, in conservative papers in the country.

And so this was a very live analogy for Americans at the time, and it seemed like a very real danger. If the country couldn't get itself out of the Depression, it did seem that we would head down what Herbert Hoover called the suicide road toward dictatorship.

GROSS: Well, I hear certain parallels to today, for example, with health care. I think a lot of people on the right see health care reform as an end to democracy in the sense that they see this as the first step towards communism or socialism, whereas liberals, I think, would say that if we don't pass health care reform, it really diminishes democracy because so many people dont have health care, which should be a basic right. Do you see those parallels to today?

Mr. SHESOL: There's just a huge discrepancy in how the two sides view the situation, and the parallels really are very strong. Every New Deal program that President Roosevelt passed, whether it was the recovery act or the agricultural program, which was really a tax on processors of agricultural goods, every one of these things was denounced by the right as a government takeover of fill in the blank.

And when the agricultural act passed, the comparisons to collectivization in the Soviet Union and the regimentation of agriculture so that all farmers would be working for the federal government and so forth, this stuff was not just a fringe argument. This was very this was in editorials in the Wall Street Journal and the Chicago Tribune and heard from Republican members of Congress at the time.

So this was really how many people at the time saw it, and the emotions then and the emotions today were very deeply felt.

GROSS: There were big differences between how FDR and the conservative justices viewed the Constitution and how it should be interpreted. Do you want to describe some of those differences?

Mr. SHESOL: Absolutely. Roosevelt believed in what was called at the time and what is still called a living Constitution. The idea was that the founders or the framers of the Constitution had set certain things in stone, and those are very clearly marked out in the Constitution, but most of what exists in the Constitution is sort of vague and unclear and left to each generation to decide.

What does due process really mean? What does equal protection really mean? Roosevelt believed, and his supporters believed, that each generation essentially has to sort that out for itself and needs to do that with respect to what's going on in the country. And, of course, what was going on in the country then was this terrible depression.

On the other side of the argument, then and today, was a view that saw the Constitution as essentially fixed by the founders, that it was a Constitution of limitations. And so it always leads, in this view, to a limited government and serious limits on governmental power and presidential power and so forth.

And so there was a fundamental clash between those who saw the Constitution as essentially a living thing and as a finely tuned mechanism, which runs itself if you don't mess around with it.

GROSS: A debate that you could still see in today's Supreme Court.

Mr. SHESOL: Absolutely. There's talk in the papers this week, as we begin to debate the possibilities for replacements of Justice Stevens, in very similar terms to the argument as it was framed in the 1930s.

This is a timeless argument. It's something that really never goes away. It's always simmering, but during times of economic distress, as in the 1930s, as we have today, the argument tends to get very explosive because the stakes, again for both sides, seem to be the very survival of American democracy.

GROSS: My guest is Jeff Shesol, author of the new book "Supreme Power." We'll talk more after a break. This is FRESH AIR.

(Soundbite of music)

GROSS: My guest is Jeff Shesol, author of the new book "Supreme Power: Franklin Roosevelt vs. The Supreme Court." It's about how in 1937, FDR tried to reshape the court, expanding the number of justices so that he could appoint justices who would uphold New Deal legislation.

Okay, so we've been talking about how discouraging it was for Roosevelt to see so much of his New Deal legislation overturned by the Supreme Court, which declared these pieces of legislation unconstitutional.

So FDR was determined to change the makeup of the court so that his plan could move forward. And he proposed a Judiciary Reorganization Bill in 1937. And what this bill directly addressed, among other things, was that he was facing a Supreme Court that was the oldest court in history. How many of the judges were over 70?

Mr. SHESOL: In 1936, the average age of a justice on that court was 71. So it was, at that time, the oldest court in American history.

GROSS: So what was FDR's proposal to change the makeup of the Supreme Court?

Mr. SHESOL: FDR proposed to expand the size of the Supreme Court from nine up to 15, but it's actually, I think, useful to take a quick step back to go through the process of elimination that Roosevelt went through over the course of his first term, before he came to that fateful decision to pack the Supreme Court.

A very popular idea in the country over the course of Roosevelt's first term was that the Constitution needed to be amended in any one of a hundred different ways. In fact, in 1936, there were 100 different proposals in the Congress to amend the Constitution.

There was an increasing sense in the country that the Constitution was too constraining a document, that it just didn't allow the government to do what it needed to do to get the nation out of this economic crisis. And so there were all kinds of proposals being floated in 1935, '36. The nation had become like a rolling constitutional convention.

This was a debate not just being played out in the law reviews or within the White House. This was being played out on the front pages and the editorial pages of the newspapers, played out on the radio, arguments on street corners and at bars and so forth. This was a major topic of conversation in the country: what was to be done about the Constitution?

Some suggested that the Congress ought to be able to essentially overrule the Supreme Court, that by a two-thirds vote, the Congress should be able to overturn any decision of the Supreme Court, essentially making the Congress the last word on the Constitution and not the court. There were some very radical ideas that would have really rebalanced or unbalanced the whole system of...

GROSS: Wasn't one of the ideas that there could be a popular vote overturning a Supreme Court ruling?

Mr. SHESOL: That's right, that you would essentially take the matter back to the American people and you would have a referendum over a piece of legislation and that if the public approved it, then it would become the law of the land, no matter what the court or the Constitution said about it.

These were very radical ideas, and very many of them were in the air. Some were a little bit less radical. And if Roosevelt had thrown his weight behind any one of them, he might have gotten pretty far in the process of actually amending the Constitution.

But here's why he didn't do that, two reasons. First, he felt that it just wasn't practical. It takes a very long time, usually, to amend the Constitution, and he felt that it would be very difficult to get it done quickly enough to change the reality in the country.

But secondly, and this is really important to understanding why Roosevelt packed the court: He didn't see any kind of contradiction between the Constitution and the New Deal. He didn't think there was anything in the Constitution that really prevented him from doing what he needed to do. The problem, as he saw it, was not the Constitution, it was the conservatives on that particular Supreme Court. So what could you possibly do about them? And that's how he came to the idea of packing it.

GROSS: So what was his idea for packing the Supreme Court?

Mr. SHESOL: His idea that for any justice over the age of 70, because the age of the justices was seen as part of the problem these old justices were out of touch with modern realities for any justice over 70 who refused to retire, the president would have the right to appoint another justice, and so there would be a cap on the number of justices at 15.

If no one retired, if the plan passed and no one retired, Roosevelt would instantly get to appoint six new liberal justices to the Supreme Court. So, because he couldn't push the conservatives off the court, he thought, well, at least I can outnumber them.

And what most people didn't realize either then or today is that this is entirely constitutional. There's nothing in the Constitution that sets the number of justices at nine. The Constitution says nothing about how many justices there are and the number actually went up and down, usually for political reasons, over the course of the 19th century.

It settled at nine in 1869, and so by the time Roosevelt proposes his plan in February, 1937, it seemed to most Americans that the number nine was foreordained, that it was permanent.

GROSS: FDR kept the plan a secret until the very last minute. Why did he keep it a secret?

Mr. SHESOL: Roosevelt loved secrets. He loved mystery. He loved to withhold pieces of information, even from his closest advisors. He loved to be the only guy in the room who knew how all of the pieces fit together. And sometimes this was very innocuous, it was just a little surprise. He loved springing little surprises on the people in his world. But sometimes, it involved really significant matters.

And so this plan that I've just described was cooked up really by two people, by Franklin Roosevelt and his attorney general, Homer Cummings. And even though there had been a big national discussion, as I described it, for four or five years before they decided to pack the court, and even though Roosevelt had consulted the opinions of all of his advisors and was reading widely on the matter, when it came down to making the decision, he cut everyone out of the process except for Homer Cummings.

And the two of them went into a little bubble of their own creation, and they managed to convince themselves not only that this was the right idea, to pack the court, but also that they could get away with putting essentially a mask on the plan, and rather than attacking the ideology of the justices and saying this is about getting the New Deal past conservative justices, they said: Well, let's present this as a plan that promotes judicial efficiency. Let's suggest that because the court is full of very old guys, the nine old men, as they were known at the time, that they're falling behind in their work, and so they need some help. They need more justices on the court. And in fact, the entire federal judiciary is full of old men. Let's add justices across the entire federal judiciary.

And they managed to convince one another, because they had closed the process, that this was a very clever plan and that they would manage to get it past everyone. It the mask was ripped off in the first 24 hours of the plan being unveiled, in February '37, and this was a huge miscalculation, upon other miscalculations that Roosevelt made. His love of secrecy got away from him.

GROSS: So how did Roosevelt's own cabinet and Congress react when this pretty radical plan was finally unveiled?

Mr. SHESOL: With horror, actually, and that's not an overstatement. Most of the members of Congress and his own cabinet expected that when Roosevelt won re-election by this huge landslide, one of the biggest landslides in American history...

GROSS: Against Alf Landon.

Mr. SHESOL: Against Alf Landon of Kansas, that's right. It was not only a huge landslide for Roosevelt, but also in the Congress, there were 96 senators at the time for 48 states, and 76 of those 96 senators were Democrats. We were closer to one-party rule than the nation had been since Reconstruction.

And so, everyone expected that Roosevelt would do something about the court, but they imagined that it would be a constitutional amendment of some kind because this was such a popular idea. Really, no one expected that he would propose to pack the court, and so when they learned of it, the morning that he announced it to the nation, they were horrified.

He called his cabinet in for a meeting, revealed the plan to them, called congressional leaders in for a meeting, revealed it to them and then was wheeled into the Oval Office to announce it to the press. And so they were enraged that they hadn't been let in on this, and they were horrified by the plan itself.

So the plan, as one of Roosevelt's advisors said, began with a black eye, and that was the disapproval of all of his top advisors, almost all of his top advisors, and the Congress. And when the congressional leaders got in their cars and were taken back that morning to Capitol Hill, one of them turned to the others and said: Boys, here's where I cash in my chits. He was no longer going to support Roosevelt.

And remarkably, John Nance Garner, who was Roosevelt's vice president, went back with them to Capitol Hill, stood in the well of the Senate, and as the plan was read aloud to the senators, Garner held his nose and gestured thumbs-down. So this was an incitement to rebellion, and rebellion is very much what Roosevelt got.

GROSS: You write that the Nazi press praised the idea of packing the court. What did the Nazi press have to say about it?

Mr. SHESOL: Well, I think the Nazi press - it's hard for me to know what the motivation was, but I think they were having a little bit of fun with Roosevelt. They would praise him to create trouble for him, and they praised the centralization of power that they saw the plan as representing.

The way they portrayed it, and in fact the way that a lot of Roosevelt's conservative critics in America portrayed it, was that this was another step towards centralizing power in his hands.

GROSS: One of the things I found fascinating was that one of the people who supported packing the court was LBJ, Lyndon Johnson, who when he became president picked up where Roosevelt left off with Medicare and Medicaid. And LBJ was elected in 1937, and one of the things he ran on was packing the court.

Mr. SHESOL: LBJ ran for Congress in a special election in the spring of 1937 on a platform of court-packing. He was trying to distinguish himself. He was a young guy. He was 28, 29 years old, and he was trying to distinguish himself as the most pro-Roosevelt candidate in a crowded field.

They were all Roosevelt Democrats, and he had somehow to get an edge over the other seven candidates in this race. And so he went as far as he possibly could to support Roosevelt, and by embracing the court-packing plan, which was so controversial, this was LBJ's way of saying I'm with Roosevelt through thick and thin. Things are tough for Roosevelt right now, but I'm with him on the biggest problem that he's ever created for himself.

And Roosevelt took notice of this remarkable young man in Texas who was running on court-packing, and Roosevelt was thrilled when Johnson won. He really took this as a sign that there was more support out there in the country for court-packing than there really was.

And so, after LBJ had won, Roosevelt arranges a meeting. Roosevelt was on a fishing trip off the Gulf Coast of Texas and arranged a meeting in Galveston with LBJ, and there was a handshake photo, which I reproduce in the book. It's a remarkable moment to see Roosevelt in his suit and a beaming Lyndon Johnson, thrilled at this opportunity to meet his idol, Franklin Roosevelt.

GROSS: Jeff Shesol will be back in the second half of the show. His new book is called "Supreme Power: Franklin Roosevelt vs. the Supreme Court." I'm Terry Gross, and this is FRESH AIR.

(Soundbite of music)

GROSS: This is FRESH AIR. Im Terry Gross back with Jeff Shesol, author of the new book "Supreme Power: Franklin Roosevelt vs. the Supreme Court." It's about how in 1937 FDR tried to reshape the court fearing that it was making reform impossible. It had struck down major parts of his New Deal legislation. It was the oldest court in history. Five of the nine justices were 74 or older.

Roosevelt came up with a secret plan to add a younger justice for each justice over 70 who declined to retire. The maximum number of justices would be 15. The real goal was to pack the court with more liberal justices who would support the New Deal.

Shesol was a speechwriter for the Clinton administration and is a founding partner of a speechwriting firm.

So when this secret plan of Roosevelt's was unveiled, how did the justices react and I should say here, that as part of your research you were able to get access to correspondence between justices.

Mr. SHESOL: That's right. What you see is that even among Roosevelt's supporters on the court: Brandeis, Cardozo, these great liberal justices and Harlan Fiske Stone, there was horror at this plan. They didnt like the precedent that they thought it would set. They didnt like the idea of turning the Supreme Court into what they felt would be essentially a political body - a kind of mini-legislature.

The more justices you added, the more they felt that it would turn into a sort of small Congress with people lobbying for votes and so forth and trading votes on different cases and so forth. And they thought that it would be so awful in fact, that a number of them considered resigning if the plan passed and some of them considered resigning on mass as the debate was unfolding.

GROSS: So what finally killed FDR's plan to pack the court?

Mr. SHESOL: There were a series of blows. And one of the things that I enjoyed in writing about this are the remarkable twists and turns in this story, all of the unexpected events that ultimately conspire against Roosevelt. I should pause to say here that despite all the forces that were lined up against Roosevelt, the public was pretty evenly split on the plan through most of the six-month argument over the court-packing bill.

And so, it wasnt out of the realm of possibility that Roosevelt, with his incredible powers of persuasion might somehow pull it out. He might actually get if not six justices, maybe four. That was a popular compromise alternative that was being floated by members of Congress. So it was possible that he was going to win.

But then there were a series of events. Beginning with a public letter that Chief Justice Hughes wrote, an open letter essentially, to the Senate, taking apart the plan. When Hughes decided that he couldnt testify before the Senate Judiciary Committee, he thought well, Ill write them an open letter and let them know what I think of the plan.

This had a devastating effect. And then most significantly, the court suddenly in the middle of the court fight begins to uphold the New Deal. In a couple of decisions in March and April of 1937, the court switches. The swing man in the middle, a Justice named Owen Roberts, suddenly starts voting with the liberals and with Hughes. And so they uphold a minimum wage that's virtually identical to the one that they knocked down a year before that.

Then they uphold the National Labor Relations Act, which is a landmark piece of labor legislation. They upheld both of these and they were described at the time as: the switch in time that saved nine. It saved the nine justices from the Supreme Court from becoming 15 justices. And then, one of the conservative justices in a very well-timed, very deliberate move, retires shortly after that, giving Roosevelt his first chance to appoint a justice. So all of these things successively pull the legs out from under the plan and it ultimately collapses by the summer of 1937.

GROSS: Although President Roosevelt failed to pack the court with liberals as he wanted to do, by the time he died, he'd appointed nearly the whole court. How did it work out that way?

Mr. SHESOL: Roosevelt insisted to the end of his life that he had lost the battle, as he put it, meaning he didnt get to pack the court, but he had won the war. The court changed. The court switched in the middle of the court fight, began approving the New Deal and ushered in what even today is still called the Constitutional Revolution of 1937. Everything changed as a result.

But really, what transformed the court in the long term was, as you indicated, the Roosevelt appointees. Roosevelt had his first chance to appoint someone right at the tail end of the court fight. Justice Van Devanter, one of the conservatives who had retired toward the end of the court fight, was replaced by Hugo Black, one of the great liberal jurists of the 20th century.

And once this happened, the conservatives on the court began to retire in pretty short succession. They felt that the gig was up essentially. They saw that the balance of power had been shifted decisively and they felt that ultimately there was no reason for them to stick around. They were old, some of them were sick, and so they begin to go. And by the time Roosevelt died in 1945, he had appointed eight of the nine justices on the Supreme Court. So it was truly a Roosevelt court and it defined the second half of the 20th century, or most of it anyway.

GROSS: Some people say we have the most conservative court since 1937, the year when FDR tried to pack the court with liberals. Do you agree?

Mr. SHESOL: I think there's a strong argument to be made that this court is as conservative in many ways as the court of the 1930s. There is an eagerness on the part some of the conservative justices today to overturn many decades of precedent, as we saw in the Citizens United decision, as we saw in the gun control case last year - District of Columbia vs. Heller. There is what conservatives would call an activism on the right on this court that really has been unmatched by any conservatives on the court since the 1930s. So yes, I think that's a plausible case.

GROSS: One of the parallels between FDR and Obama is that FDR had some of his New Deal legislation overturned by the Supreme Court declaring it unconstitutional. And I know there are many Republicans who would like to see, for instance, health care reform be challenged in the Supreme Court and be overturned by the Supreme Court, same with some financial regulation and environmental regulation. Can you talk about the parallels you see?

Mr. SHESOL: Absolutely. I think what you had in the 1930s, what President Roosevelt confronted was the reality that he could pass many things - much more freely than President Obama is going to be able to in this environment. But he could pass all manner of legislation. He had big majorities in both houses of Congress. But ultimately, he had to run the gauntlet of the Supreme Court, that these big changes in government and in the economy would have to be ratified by the third branch of government. And that's very much true today.

President Obama fought a very tough battle over the last year and more over the health care legislation. He managed, as we all know, to get it through the Congress. But ultimately, the debate is not done and conservatives are carrying that argument from the Congress into the courtrooms just as they did in the 1930s.

GROSS: FDR opposed the aging court. You said in 1937 the average age of a Supreme Court justice was 71. And so Roosevelt's plan was to add a younger justice for every justice over 70 who hadn't retired. Now, it's the liberal justices who are the older justices. Best example being Justice Stevens, who's turning 90 later this month and, of course, just announced his plan to retire and will soon be replaced. So I just find that kind of an ironic twist.

Mr. SHESOL: It is an ironic twist and I think that it also points up some of the problems with Roosevelt's argument, that age does not define ideology. And even though Roosevelt looked at what he called the nine old men of the Supreme Court and suggested that the older justices were falling out of touch with reality, the oldest justice on that court in the 1930s was Brandeis, the great liberal justice. And this was pointed out with glee by many of Roosevelt's appointments. How can you tar all of the old justices with the same brush, they said, and when the oldest on the court is Brandeis?

So you dont hear anything like that today. You hear concern on the part of progressives in this country that Justice Stevens and the other liberals are more likely to leave the court soon than any of the conservatives are. But I think weve, I think, come a long way since the 1930s when that argument was made so forcefully by Franklin Roosevelt.

GROSS: If youre just joining us, my guest is Jeff Shesol. He's the author of the book "Supreme Power: Franklin Roosevelt vs. the Supreme Court."

Let's take a short break here. This is FRESH AIR.

(Soundbite of music)

GROSS: If youre just joining us, my guest is Jeff Shesol. He's the author of the new book "Supreme Power: Franklin Roosevelt vs. the Supreme Court." And its about how FDR tried to pack the court with liberals in 1937.

Now you were a speechwriter for President Clinton. And since youve worked as a speechwriter, and since youve studied FDR's speeches in writing this book -and I should mention, youve also written a book called 'Mutual Contempt" about the bad relationship between President Johnson and Robert Kennedy. I want to talk with you a little bit about speechwriting. How do you think speechwriting has changed from FDR's time to now? I mean one thing I'll say is that I think presidents are much more conversational now in their speeches.

Mr. SHESOL: I think that's right. I think most presidents are more conversational. But I think that actually looking back, its really Roosevelt who developed the conversational style of speechmaking.

GROSS: The fireside chat thing?

Mr. SHESOL: Absolutely. And I think Reagan, who grew up very fond of Roosevelt, considered himself, as many people know at the time, as a Roosevelt Democrat. Reagan really absorbed this. And so the conversational style that Reagan had in office and that I think subsequent presidents, including the president I served, President Clinton, this really goes back to FDR.

I think one of the big changes between speechmaking - presidential speechmaking in Roosevelt's time and our time is that the demands are so much greater on our current presidents. We expect them to have something to say about just about everything every day.

And so we expect to be hearing a couple of speeches by President Obama each and every day. And if he doesnt fill this slot in the news then someone else will fill it and he will be attacked for creating a vacuum, as he was last summer during the health care debate.

And so, Roosevelt was able to take much more care, I think, than presidents are able to do today because he had more time, really, to think about the kind of speech that he would deliver and the words generally would have more impact because the speeches were less frequent.

GROSS: I wonder if you think Sarah Palin has in any way changed the style of political rhetoric or political speechmaking.

Mr. SHESOL: Well, in many ways Sarah Plain's style as a speaker is a natural extension of the conversational style. It's hard to imagine politicians in other areas being willing to speak in such a constantly folksy way. Really, she can give a policy speech in the same now-trademark manner with all of her sort of catch phrases and affectations and so forth. And I think that she likes to take on her critics.

She's not particularly interested in playing out an argument and building a coalition for a particular idea. A lot of it is aimed essentially at entertainment and drawing people in and making them really appreciate her as a vehicle for these ideas and it's very effective in that regard. But I do wonder. And I guess only time will tell whether this will wear a little bit thin over time.

She has already, at least in my view, and I know not everybody would subscribe to this, but she already sounds very much like a self-parody. And its an open question whether she can continue over the years to give speeches like this that sound essentially the same and dont really say terribly much about the issues confronting the country. Can she rely on the same kinds of catch phrases, the same sorts of zingers, and the same kinds of bumper stickers and soundbites to describe her positions on the issue? I'm a little dubious about the sort of staying power of that kind of approach.

GROSS: Now you were a speechwriter for President Clinton. What are some of the speeches that you wrote or co-wrote?

Mr. SHESOL: I worked on a couple of a State of the Union addresses. Those tended to be committee-writing processes, as you would probably expect. I worked with him on his convention speech in 2000, on his farewell address and at least a couple of hundred other speeches during the three years that I was there on really pretty much any issue under the sun.

And it was a terrific process working with him. Not simply because it was an honor to get to work with the president toward the goals that he was seeking, but particularly because it was a very collaborative process. I think in the previous White House or two, speechwriting tended to be done by - through a series of layers and proxies and so forth and speechwriters didnt really get to interact much with the president.

And President Clinton really liked to work directly with his speechwriters. He gave us a lot of access to him where we would sit down and work through the drafts together, which was invaluable. It's not simply that it was exciting to get to sit down with President Clinton, it was that you had a level of exposure to the way he thought, and this would really inform the speeches. There was a richness, I think, to the speeches because you understood all of the context as it existed in his mind.

GROSS: If I asked you to say one of the lines that you are proudest of that you wrote, would you be unable to answer that because of...

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GROSS: ...a speechwriter's code of secrecy?

Mr. SHESOL: Speechwriter/client privilege. You know, it's tough to isolate it for a couple of reasons. One is it actually goes back to a question that you had a few minutes ago, and that is the conversational style of a lot of these speeches. We tended not to strive for the sorts of lines that would be carved in granite on the walls of the Clinton Library.

Certainly, every speechwriter wishes that he or she were more like Ted Sorenson and that we were writing lines for the ages. But really, you have to write for the person who's going to deliver the speech. And President Clinton had a wonderful, as he still does, a wonderful conversational style - a very persuasive manner of speaking. And he didnt respond well when you tried to put him in a JFK box or you tried to make him sound like somebody that he wasnt.

And so there were a lot of lines that we wrote that were very effective in the moment. They were effective in room and I think in the country. But again, they're not going to wind up in Bartlett's, generally.

GROSS: So they're not: Ask not what you can do for your country.

Mr. SHESOL: No. What we used to call reversible raincoat sentences.

(Soundbite of laughter)

Mr. SHESOL: No. He would tend to undercut those. You know, he really was concerned that his speeches really sound like him. And so when you gave him a line like that, that really called attention to himself and seemed like a great piece of speechwriting, we always used to think of the old Soviet proverb, that the tallest stalk of wheat is always the first to get cut down.

Any line in a Clinton speech that called attention to itself in that way was the first to get a big line through it with his black pen. He would just cross them out and move on. And it's not that he would never take a soundbite from you, but if you were trying to use his speech to impress future generations and to call attention to your cleverness, he wasnt going to let you do it.

GROSS: Can you think of a...

Mr. SHESOL: He would do it himself.

GROSS: Can you think of an example of a line of yours that was a little too writerly that got struck down?

Mr. SHESOL: Well, I'd written a speech for an East Room event in which President Clinton was announcing a series of grants that he was giving to local police departments to buy more bullet-proof vests. And this is not really an occasion for grand rhetoric, but as a speechwriter I gave it my best. And I wrote a line that said: The line of fire will always be a dangerous place, but today we make it a little less dangerous for those brave enough to walk the line.

Again, that one's not headed for the wall of the Clinton Library, but I was doing my best with a pretty non-rhetorical event. And President Clinton saw this and saw that it looked very much like a soundbite that had been written for him by somebody else. And so when he stood and gave the speech he said: The line of fire will always be a dangerous place - I mean, you know, even if you put on one of these bulletproof vests, you can still get shot in the leg and bleed to death.

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Mr. SHESOL: But today we make it a little safer for those brave enough to walk the line. So he taught me a little bit about the art of undoing a soundbite.

GROSS: Well Jeff Shesol, I want to thank you so much for talking with us.

Mr. SHESOL: Thanks for having me.

GROSS: Jeff Shesol is the author of "Supreme Power: Franklin Roosevelt vs. the Supreme Court." You can read a chapter on our Web site, freshair.npr.org. Transcript provided by NPR, Copyright NPR.

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