History That Doesn't Suck - 176: FDR v. “The Nine Old Men” (The New Deal pt. 3): Court Packing and Closing the New Deal

Episode Date: March 24, 2025

“No matter how great and good a man may be, executive aggrandizement is not safe for democracy.” This is the story of Franklin’s second term and his battle with the Supreme Court.  It’s no secret that SCOTUS hasn’t really been ruling in the New Deal’s favor. But with such an overwhelming victory at the polls, Franklin feels confident that he can circumvent that by upping the number of judges from nine to fifteen and appointing people who see the vision. But what does the public make of it? What does Congress think? Is this court-packing plan a timely reform? Or is it a blatant disregard for the constitutional concept of checks and balances?  It’s incredibly polarizing, so much so that members of Congress are willing to argue, filibuster, and even die over the bill. Literally.  ____ Connect with us on HTDSpodcast.com and go deep into episode bibliographies and book recommendations join discussions in our Facebook community get news and discounts from The HTDS Gazette  come see a live show get HTDS merch or become an HTDS premium member for bonus episodes and other perks. HTDS is part of Audacy media network. Interested in advertising on the History That Doesn't Suck? Contact Audacyinc.com To learn more about listener data and our privacy practices visit: https://www.audacyinc.com/privacy-policy Learn more about your ad choices. Visit https://podcastchoices.com/adchoices

Welcome to History That Doesn't Suck. I'm your professor, Greg Jackson, and as in the classroom, my goal here is to make rigorously researched history come to life as your storyteller. Each episode is the result of laborious research with no agenda other than making the past come to life as you learn. If you'd like to help support this work, receive ad-free episodes, bonus content, and other exclusive perks, I invite you to join the HTDS membership program. Sign up for a 7-day free trial todaytdspodcast.com slash membership, or click the link in the episode notes.

["The Star-Spangled Banner"] It's Tuesday evening, February 2nd, 1937. Likely seated at the resolute desk, President Franklin Delano Roosevelt is with close friends and associates in his oval-shaped study on the second floor of the White House, later to be known as the Yellow Room, enjoying some cocktails. Basically, they are pre-gaming before a formal White House dinner, which is pretty standard for Franklin and his crew. But as the ice clinks and the libations pour, the atmosphere feels a touch more stifled than usual.

See, tonight is the annual White House dinner for the judiciary, attended by all the Supreme Court justices. Well, all the justices other than Harlan Stone, who's still recovering from an almost fatal illness, and Louis Brandeis, who would rather catch a fatal illness than be out socializing. Anyhow, even dealing with seven of the quote unquote nine old men, as this oldest ever iteration of SCOTUS is known, is going to be awkward given the current tension between the New Deal President and the oft no New Deal ruling Supreme Court. Indeed, the New York Times reports that the Supreme Court has shot down no New Deal ruling Supreme Court. Indeed, the New York Times reports

that the Supreme Court has shot down the New Deal in 11 out of 16 cases that it's heard. And it's with that two times out of three losing record in mind that Franklin offers a toast. Calling for the oval shaped room's attention, FDR begins. The time for action with respect to the Supreme Court really cannot be postponed, and unpleasant as it is, I think we have to face it. He then raises his glass to the Supreme Court as it is, and as he intends it to become. Alright, there's another thing that makes tonight a bit awkward. Franklin and his team are going to this dinner on the heels of sorting out, well, an attack plan to take on SCOTUS. So tonight is kind of like having dinner with

the enemy. Yet that's just what they'll do. Fortified with cocktails, everyone heads downstairs. They greet guests like former First Lady Edith Wilson, then passed the hours eating, drinking, and laughing with seven of the nation's nine Supreme Court justices. Just what Franklin intends to do remains mostly under wraps. Until Friday, that is. It's now three days later. 11am. Friday.

February 5th, 1937. Having just come from a special cabinet meeting, FDR is seated behind his desk in the West Wing's newly renovated and recently added Oval Office. Newspaper correspondents are packed in the room, standing before the President. An assistant stands behind the correspondents, blocking the door. Confident and chipper, FDR begins. I have a somewhat important matter to take up with you today, and I am asking that this message be held in very strict confidence until the message is released. Copies will

be given to you as you go out. And don't anybody go out until that time. Ah, that classic FDR delivery and charm. The press core laughs, and a touch of banter ensues, but then it's down to business. FDR continues, as you know, for a long time the subject of constitutionality of laws has been discussed, and for a good many months now I have been working with a small group in going into what I have thought of as the fundamentals of the subject rather than those particular details which make the headlines. Franklin then pulls out a letter from the Attorney General. He reads the AG's description of backed up and delayed federal courts and suggests a

remedy, appointing new judgeships. But as Franklin reads on, sometimes adding witticisms that get a few laughs, he comes to a section in which the AG discusses the changes to the number of justices on the Supreme Court throughout history. To quote again, the Supreme Court was established with six members in 1789. It was reduced to five in 1801. It was increased to seven in 1807. It was increased to nine in 1837. It was increased to ten in 1863. It was reduced to seven in 1866. It was increased to nine in 1869. The reporters fall perfectly silent. Franklin has their undivided attention. He describes the Supreme Court's heavy and still growing workload.

He then mentions a 1919 law that allows the President to appoint more district and circuit judges if incumbent judges over 70 were no longer mentally competent. He adds that no President would ever exercise this option, but surely some in the room are thinking about how the average age on SCOTUS at this point is 71. Finally, FDR comes to his big reveal. He wants a bill that will empower the President of the United States to be able to appoint another Supreme Court Justice every time a current judge hits a combined 10 years of service and 70 years of age.

These new justices would, of course, need approval by the Senate, as the Constitution instructs. And the older judges would continue to serve for life if they so choose, again, as the Constitution instructs. And Franklin clarifies, there would be a Supreme Court cap of 15 judges. Can't let it get too crazy after all. But for all the talk of workload and age, the reporters who know all about Franklin's losing record against SCOTUS can read between the lines. FDR means to change the makeup of this court that keeps shooting down his new deal one case at a time. It sounds like he wants to

pack the court so he can win. Franklin concludes, that is about all in the act. The rest is technical. And that is all the news. Mr. President, this question is for background, but is this intended to take care of cases where the appointee has lost mental capacity to resign. Nervous laughter fills the room as most if not all here appreciate the coy questioner indirectly calling out Franklin for wanting to change the Supreme Court for his agenda's benefit. FDR answers, that is all. Was that the reason for the special cabinet meeting? Yes. Can you tell us what the reaction was this morning? There was no discussion.

Welcome to History That Doesn't Suck. I'm your professor, Greg Jackson, and I'd like to tell you a story. That's right. President Franklin Delano Roosevelt is fed up with Chief Justice Charles Evans Hughes Supreme Court, aka the horse and buggy court of the quote unquote nine old men. As far as the president is concerned, these judges are less useful checks and balances and more relics of the past you need to get with the times. It's the 1930s after all. Elected with a mandate from the people, FDR sees his plan to bump SCOTUS from 9 to 15 judges as a much-needed

reform. But as FDR and we are about to find out, his opponents see something else. A court-packing power grab. That battle is today's story. We'll begin with a little context via a quick overview of the history of the Supreme Court, aka SCOTUS. We'll come away from that knowing what is constitutional, what is law, and the importance of tradition and precedent. From there, we'll take in the fallout that comes after this press conference we just attended as the nation hears about Franklin's court packing plan. Spoiler alert, it's not as popular as the popular president expects.

And then the battle is on. FDR will try to win hearts and minds with a fireside chat. Senator Burton Wheeler will bring the heat in a Senate Judicial Committee. And finally, we'll experience an all-out battle of wits in Congress as FDR's faithful take on Republicans and their fellow but dissenting Democrats. It'll end with the death of not only the bill, but a Senator. No joke. Once the tale of Franklin's battle with SCOTUS comes to an end, we'll look at the rest of his second term and wrap the story of the Roosevelts in the 1930s. We'll reflect on the New Deal's

accomplishments and failures, then close with a story from Eleanor Roosevelt's fight against the norms of Jim Crow America. It's a story that will end her membership in the Daughters of the American Revolution and lead to a historic concert on the steps of the Lincoln Memorial. So ready to pack more history into the next hour than FDR can pack judges on the Supreme Court? Sorry, I really couldn't resist that dad joke. But with that, let's back up to the Constitution's birth and get our needed background on SCOTUS. Rewind.

So just what does the Constitution say about the Supreme Court's organization? And how does the institution evolve between its first iteration and the conservative-leaning Hughes Court that FDR knows and doesn't love? Starting with the first of those questions, Article 3, Section 1 of the Constitution tells us that, quote, the judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish. Close quote. the Congress may from time to time ordain and establish." The next sentence adds that all federal judges, quote, shall hold their offices during good behavior, close quote, and shall receive compensation at stated times.

But that's it before Section 2 gives a likewise vague explanation of the federal judiciary's authority. No clarification is given on how many inferior courts to set up or how many judges to appoint. Yeah, there was a lot of disagreement here that we won't get into, but through the Madisonian Compromise, the convention makes the Constitution's judiciary describing Article 3 intentionally vague so that Congress can make most of the decisions about the federal courts. The first U.S. Congress does just that, with the Judiciary Act on March 4, 1789.

This includes establishing the One Supreme Court. They figure six is a good number of judges, one chief judge and five associates. Though now up and running, the Judiciary of the 1790s is the weakest of the federal government's three branches, and the Supreme Court justices have little to do apart from debating whether to wear wigs and traveling to each of the young nation's distant circuit courts. Riding the circuit, as this judicial travel is known, is intended to keep the judges in tune with the people, but the justices hate it. Seriously, Chief Justice John Jay threatens to resign, and he does in 1795, but that's to serve as

Governor of New York. Congress responds by lessening Circuit Writing demands in 1793 and will lower the requirement all the more in 1869 before killing Circuit Writing altogether in 1911. But right now in the 1790s, SCOTUS's writing and its judges, like those of the lower federal courts, are bored. As Circuit Judge Thomas Adams writes to his mother, First Lady Abigail Adams in 1799, "'Little business was done because there was little to do.'"

That changes in 1803 as Chief Justice John Marshall's Court rules in Marbury v. Madison. We covered this case in episode 21, but I'll remind you briefly that William Marbury's goal is to force the Jefferson administration's Secretary of State, James Madison, to deliver his midnight judicial commission from former President John Adams. Ultimately, SCOTUS rules that, yes, little Jemmy Madison is breaking the law. But here's the kicker. The law itself was unconstitutional.

In effectively claiming the power to decide if laws are constitutional or not, something we call judicial review, the Marshall Court solidified that SCOTUS is, in fact, a big boy branch with real power to check and balance. But speaking of balance, checkmating SCOTUS gets checked too. Under a now far older John Marshall in 1832, the Supreme Court rules against Georgia's conviction of missionary Samuel Wooster for the crime of being on Cherokee land without a Georgia state permit. But as we learned in episode 28, the court can't force Georgia

to release Samuel. As for the executive branch, well, Horace Greeley will later famously claim that President Andrew Jackson responds, John Marshall has made his decision, now let him enforce it. So it seems that federal judges have the power to rule on constitutionality, but enforcement is another story. And speaking of checks, Congress uses its legislative power in the wake of Abraham Lincoln's assassination to check Andrew Johnson's influence on the court. As we heard FDR say in his press conference, the number of SCOTUS justices was growing with the nation as it hit ten in 1863.

Well, not interested in laying the nation's first impeached president back to court, the Republican-dominated Congress passed a bill stating that a president can't install judges unless there are less than seven. With Andy out of office three years later, Congress brings the number of Supreme Court justices back up to nine in 1869. Ah, that's the number that will solidify and hold. Finally, as we enter the 20th century and the progressive era,

let's note that the Supreme Court is entering its not progressive Lochner era. That is an era of striking down progressive laws, particularly those imposing economic regulations. This frustrates Theodore Roosevelt, but the Rough Rider president has his ways. As he puts it, I may not know much about the law, but I do know that one can put the fear of God in judges. By that, T.R. means he'll threaten judicial reform. Meanwhile, the Lochner

era continues well after the Progressive era and is still going strong when Republican Herbert Hoover nominates Charles Evans Hughes and his exceptional beard to replace former president-turned-chief justice William Howard Taft upon his death on March 8th, 1930. And we are still in the Lochner era as FDR rolls out his new deal. So, returning to February 1937 with that background, we can appreciate that Franklin's plan to add six new justices to the Supreme Court's current nine justices isn't challenging the Constitution, but it is challenging a precedented number set by an act of Congress and therefore a law that stood for nearly 70 years.

The pushback is swift. Most newspapers are sour on the idea, seeing Franklin making a power grab. The Des Moines Register cautions, quote, no matter how great and good a man may be, executive aggrandizement is not safe for democracy, close quote. The Baltimore Sun calls his rationale, quote unquote, disingenuous. The Chicago Tribune proclaims, quote, Roosevelt's court program precipitating the greatest constitutional crisis since slavery, close quote. Meanwhile, other groups and papers talk of the path to dictatorship.

The New York Times reports that Congress is, quote, snowed under by mail on court issue, close quote. And just to be clear, that's not fan mail. And Congress itself is rather upset. This includes Democratic leaders who are not pleased that the President did this without asking them first. Phew, Franklin. That's quite the PR nightmare, sir.

But FDR is nothing if not tenacious. He presses forward. A month later, on March 4, 1937, he uses his speech at the Victory Dinner celebrating his and the Democratic Party's wins across the country to pitch the need for the government to pull together. Using the analogy of three well-matched horses plowing a field, he says that the team of three must pull as one. Yeah, Franklin may not say Supreme Court, but everyone gets what he's saying.

They can read between the lines and know that, in this analogy, Scotus is the horse not pulling in the same direction. And the crowd is cheering. Does this mean Franklin is starting to turn the tide? The evidence is entirely anecdotal, but encouraging. He'll take that as he makes his pitch directly to the American people. That's right, it's time for one of Franklin's famous

fireside chats. It's 10.20 p.m., March March 9, 1937. Likely in his wheelchair, Franklin is entering the oval-shaped ground floor diplomatic reception room of the White House. Beyond the large desk decked out with microphones and a glass of water, there is an actual fireplace in this room, which is the perfect ambiance for another one of Franklin's broadcasts, now well-established and known as Fireside Chats. Franklin greets the press seated in the room and pulls out a small heart-shaped silver

box which contains his single tooth bridge. He hates wearing it, but it's that or making a whistling sound on certain letters. Can't have that tonight. Anyhow, it's time. Turning to the three microphones in front of him representing the three major broadcasting companies, FDR puts out his cigarette, takes a drink, and begins reading his carefully crafted speech that he hopes will convince Americans that he's right to want to expand the Supreme Court.

Tonight, sitting at my desk in the White House, I make my first radio report to the people in my second term of office. I'm reminded of that evening in March four years ago when I made my first radio report to you. We were then in the midst of the great banking crisis. Soon after, with the authority of the Congress, we asked the nation to turn over all of its privately held gold, dollar for dollar, to the government of the United States. Today's recovery proves how right that policy was. But when almost two years later, it came before the Supreme Court, its constitutionality was upheld only by a five to four vote.

Reminding the American people of their trust in his leadership, pointing to the Supreme Court's knife-edge decisions and tendency to pull in the opposite direction, Franklin's clearly laying the groundwork to use that horse analogy that went over so well the other night. Here it comes. Last Thursday, I described the American form of government as a three-horse team provided by the Constitution to the American people so that their field might be plowed. The three horses are of course the three branches of government, the Congress, the executive, and the courts. Two of the horses, the Congress and the executive, are pulling in unison today.

The third is not." Ah, Franklin's even more direct this time, expressly pointing out that the Supreme Court is the out-of-line horse. In FDR's view, these judges, whom he's called overworked, aren't providing an important check, but rather running contrary to the spirit or what he calls the quote-unquote main objectives of the Constitution. Hence, Franklin's plan to expand the court. But what about those who accuse Franklin of simply wanting puppets to fill the bench? He gets to that as well. If by that phrase, packing the court, it is charged that I wish to place on the bench spineless puppets who would disregard the law and would

decide specific cases as I wished them to be decided, I make this answer, that no president fit for his office would appoint and no Senate of honorable men fit for their office would confirm fit for their office would confirm that kind of appointees to the Supreme Court. But if by that phrase the charges made that I would appoint in the Senate would confirm justices worthy to sit beside present members of the Court who understand modern conditions, if the appointment of such justices can be called packing the court, then I say that I, and with me the vast majority of the American people, favor doing just that thing now." Okay, so Franklin doesn't see this as packing the court with his puppets, but adding judges

who understand modern conditions. Sounds like he's saying the court's nine old men are out of touch with the times. That's a little personal. But he gets a little more personal as he continues his critique of the Hughes Court. Our difficulty with the court today rises not from the court as an institution, but from human beings within it. But we cannot yield our constitutional destiny to the personal judgment of a few men who, being fearful of the future, would deny us the necessary means of dealing with the present. You who know me will accept my solemn assurance

that in a world in which democracy is under attack, I seek to make American democracy succeed. You and I will do our part. With that, Franklin's message is complete. While the nation's radios change over to the star-spangled banner, it's now up to the American people to decide which side they're on. Taking a breather at his small colonial revival house, aka the Little White House, at his beloved resort in Warm Springs, Georgia, Franklin can only hope that his fireside chat is changing hearts and minds.

But as he enjoys swimming, the one activity where his partially paralyzed legs really seem to respond, Senator Burton Wheeler is doing everything he can to fight back. A Massachusetts native who studied in Michigan, then practiced law in Montana. What can I say? He loves the M states. Burt is actually a familiar face.

We met him briefly back in episode 156, when the freshman Democratic Senator joined progressive party presidential candidate, Bob LaFoll Senator joined Progressive Party presidential candidate Bob LaFollette's ticket as the VP candidate for the 1924 election. Of course, as we know, that run didn't work out, and since then, the bespectacled, strong-jowled, and thin-haired Montanan has stayed in the Senate and returned to the Democrats. But despite being a progressive Democrat and an ardent proponent of the New Deal, Burt is not a fan of FDR's plan.

He doesn't see reform. He sees court packing plain and simple. He sees the death of checks and balances. So, as the Senate Judiciary Committee is preparing its findings on Franklin's plan, now proposed as the Judicial Procedures Reform Bill, but often known as the Court Bill. Burt is looking for anything and everything he can to prevent this bill from becoming

law. And soon, he finds exactly what he needs. It's 10.30 in the morning, March 22, 1937. We're in Washington D.C. at the Russell Senate Office Building in the enormous Corinthian Column marble decorated Senate caucus room. The same room where Senate hearings have investigated everything from the sinking of the Titanic in 1912 to Wall Street's role in the 1929 stock market crash. And now it's filled with newspaper correspondents,

spectators, and of course, US senators, including Burt Wheeler to investigate the court bill. The bespectacled Montana man is pretty anxious. In his coat pocket is a figurative bombshell, powerful enough, he hopes, to stop FDR's court packing plan in its tracks. He'll find out if he's right soon enough. Senator Henry Aschhurst calls the committee to order.

He addresses the room. Senators, we are signally honored this morning. We have before us one of the most, if not the most, distinguished member of the United States Senate, Senator Burton K. Wheeler of Montana. Taking the floor, Bert starts by making it clear that he is not here in opposition to his Democratic Party, the New Deal, or the President. This is purely about the Constitution and the Supreme Court.

It is with some reluctance that I appear here this morning. I have only appeared because of the insistence of many of my colleagues who are opposed to the bill. I want it to be understood that anything I may say is not because I have any unfriendly feeling toward the President. I have felt compelled to disagree with him at times. I regret that I have to disagree with him on this fundamental issue which confronts the Congress and the people." Burt goes on to say that he was

shocked and surprised by Franklin's proposal to Congress. He jokes that, I don't know when this administration first became adverse to old men. Then details his search for an answer to Franklin's assertion that the elderly justices couldn't keep up with their workload. He tells the gathered crowd, "'I went to the only source in this country that could know exactly what the facts were.'" Coming to his big reveal, Bert now reaches into his pocket and produces a piece of paper. He tells the crowd,

I have here now a letter by the Chief Justice of the Supreme Court, Mr. Charles Evans Hughes. Burt then reads out loud from the letter. The Supreme Court is fully abreast of its work. During the current term, we have heard 150 cases. There is no congestion of cases upon our calendar. Following that devastating rebuttal of one of Franklin's main arguments, the Hughes

letter proceeds with legalistic precision to take down the rest of the President's complaints about the Court. It then concludes by depicting Franklin's plan as a logistical nightmare. An increase in the number of justices of the Supreme Court would not promote the efficiency of the Court. There would be more judges to hear, more judges to confer, more judges to discuss, more judges to be convinced and to decide. The present number of justices is thought to be large enough. I am confident that this statement is in accord with the views of the justices is thought to be large enough. I am confident that this statement is in accord with the views of the justices.

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1993. How did we go from sending faxes to connecting the world through the internet? I'm Sally Helm, and on the podcast History This Week, we'll bring you into moments just like these, and some you've never heard of. Find History This Week on the free Odyssey app or wherever you get your podcasts. Franklin's hopes to change, pack, reform, or however else you want to describe his goals with the Supreme Court aren't looking great in March 1937. His fireside chat didn't win over the people. As his biographer H.W. Brands puts it, quote, for once the Roosevelt wizardry failed, close quote.

Meanwhile, I can't summarize the impact of Senator Burton Wheeler reading Chief Justice Charles Evans Hughes letter better than the political cartoon that the Christian Science Monitor publishes the next day, March 23rd. Under the title Bullseye, it depicts the Hughes' letter as a cannonball blowing a massive hole through a sign that reads, The Supreme Court is overworked. If a picture is worth a thousand words, this cartoon must be worth 10,000.

But even if wounded, this doesn't mean Franklin's hopes are dead. He still has ample allies in the democratically controlled Congress. Meanwhile, the Supreme Court has more New Deal cases to rule on. And if they keep shooting down New Deal laws, well, who's to say how that might not impact the nation's attitude? Now before we head to the Supreme Court for one such ruling, let's break down just what the court looks like. There are actually only four dependably conservative anti-New Deal justices, the apocalyptically nicknamed Four Horsemen, and opposite of them are three liberal justices,

aka the Three Musketeers. In the middle are two justices providing the moderate swing votes, Chief Justice Charles Hughes and Justice Owen Roberts. It's the Chief Justice who is most likely to peel off and join the Three Musketeers. Owen is the more conservative of the two, and that court make-up is what has repeatedly led to those 5-4 rulings that the President hates so much. But as the court handles still more cases in March, the question is, will that trend

continue? It's 12 noon, Monday, March 29, 1937. We're in Washington, D.C., just next to the Capitol, inside the still rather new Supreme Court building. It's unfortunate that the building's leading advocate, former U.S. President and Chief Justice William Howard Taft, didn't live to see it open in 1935, but he would be proud of this gorgeous

Corinthian-columned castle where the court now resides. But the people packed in here, like sardines, aren't interested in appreciating the Alabama marble and gold leaf courtroom. No, they're here to see sparks fly on this opinion day as the court hands down some very important decisions. In fact, let me fill you in on a big one as we await the arrival of the judges. The big case today is a Washington state minimum wage law, West Coast Hotel Company v. Parrish. In this case, Elsie Parrish,

a chambermaid employed by the West Coast Hotel Company, sued her employer for missing wages, which she calculates at $216.19 over the course of a year. The hotel offered a settlement of $17. A low ball to be sure, but the hotel has every expectation of winning its appeal because of two precedents set by the Supreme Court. First was the Taft Court's 1923 decision in Adkins v. Children's Hospital, which declared a minimum wage for nurses at a children's hospital in Washington, DC to be unconstitutional. This was based on an interpretation of the 14th Amendment as having an unstated, quote-unquote, freedom of contract,

meaning that employers and employees are free to make whatever contract suits them best, without the government interfering in their private contracts. Second was just last year, in in June when the Hughes Court ruled against a New York state minimum wage law for women and children in Moorhead v. New York, X-Rail Topaldo, declaring with the same logic that, quote, the state is without power by any form of legislation to prohibit, change, or nullify contracts between employers and adult women workers as to the amount of wages to be paid." And yes, Topaldo was one of those five to four decisions in which Charles Hughes joined

the three musketeers while Owen Roberts sided with the four horsemen. It's crazy to think that this same court could rule differently on such a similar case less than a year later. But Elsie wouldn't back down, and Owen agreed to hear the case. Oh, and here are the judges. They're getting settled in. Let's listen and see what they have to say. The gavel silences the room, and all rise as Frank Green, Marshal of the Court, yells

out, Oh, yay, oh, yay, oh, yay. All persons having business before the Honorable the Supreme Court of the United States are admonished to draw near and give their attention for the court is now sitting. God save the United States and this Honorable Court. The court presents its rulings in a number of cases. As this goes on, Chief Justice Charles Evans Hughes studies the crowd as Justice Harlan Stone reads the unanimous ruling in support

of the 1934 Railway Labor Act. The audience is glazing over with boredom. Charles smiles with anticipation. He knows they're here for West Coast Hotel Company V Parish and can't wait to see their response. Adjusting some papers, Charles then stands. As he does, one of the four horsemen, Justice James McReynolds, suddenly rises and storms out of the room. Ignoring that, Charles begins. This case presents the question of the constitutional validity of the minimum wage law of the state of Washington. The violation alleged by those attacking minimum wage regulation for women is deprivation of freedom of contract.

What is this freedom? The constitution does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law. We think that the decision in the Adkins case was a departure from the true application of the principles governing the regulation by the state of the relation of employer and employed. Our conclusion is that the case of Adkins v. Children's Hospital supra should be, and it is, overruled. The judgment of the Supreme Court of the State of Washington is affirmed.

Wait, affirmed? So Elsie gets her payday and minimum wage laws are now good to go? Who flipped? Ah, that's easy to see as Justice Owen Roberts tries desperately to disappear into his chair. Headlines the next day proclaim that the court has reversed course, but really it's only Justice Owen Roberts. The dissenting opinion by Justice George Sutherland rakes Owen across the coals, as well as Charles, the three musketeer justices, and finally, FDR, before stating, quote, If the Constitution stands in the way of desirable legislation, the blame must rest upon that instrument, and not upon the court for enforcing it.

The remedy in that situation is to amend the Constitution. Close quote. Sounds like the conservative justices are standing firm. But why did Owen Roberts side against the Four Horsemen in a move that historians consider the end of the Supreme Court's three-decade-long Lochner era? Did he change his mind? Or did he collapse under public pressure? Maybe he thought it could save SCOTUS from Franklin's court packing.

I'm sorry, but I can't tell you what the answer is. All I can do is agree with Congressman Maury Maverick, who calls Owens' change, quote, the greatest constitutional somersault in history, close quote. Regardless of why, Owen has clearly turned over a New Deal leaf. He continues to be team one for all and all for one, as the Court upholds Labor's right to organize under the Wagner Act that we learned about in the last episode, only weeks later in April. But even with Charles Hughes' letter crushing the claim that SCOTUS is behind on its work,

the Senate Judiciary Committee voting 10-8 against the court bill while calling it quote a needless futile and utterly dangerous abandonment of constitutional principle close quote and on Roberts amazing constitutional acrobatics Franklin and his supporters can't exactly just drop the whole court packing reform idea They still don't want the nation to live on a knife's edge of 5-4 SCOTUS decisions. Then there's the age thing. And so, with that line drawn in the sand, there's nothing left to do but fight it out on the Senate floor. It's 12 noon on a hot afternoon, July 6, 1937. We're in the U.S. Capitol's Senate chamber, its air-conditioned Senate chamber. That's a luxury that Senate Majority Leader Joe Robinson much appreciates

as his blood runs just as hot as the summer's day. See, the time has come for the Senate to debate the court bill, and Joe knows that Senator Burt Wheeler and other opposing senators will want to filibuster this thing until it dies. But as FDR's New Deal marshal, Joe won't have it. And so, the heavily balding and full-figured Arkansas native charges down to the green-carpeted Senate pit to make it known that he can outlast any of them. Joe forcefully announces, I am prompted to make reference to the subject of a threatened filibuster. There is not the slightest disposition to prevent any senator from saying

what is in his mind and heart on this subject, but I have no patience with and no disposition to submit and I do not believe that a filibuster will find justification in the conscience and judgment of those who believe in democratic institutions. I hope the questions at issue will be fairly and fully discussed without staying here long days and long nights in a test of physical endurance." Joe then turns and faces Burt directly as he declares,

"'I think I could endure it longer than the senator from Montana. Burt fires back. I am in very good physical condition. I have been training for it. Let me say then, I am not threatening the senator with a filibuster. However, it will take considerable time to discuss the bill. Oh yes, and do not imagine my dear friend that I am going to interfere with that freedom which you so much enjoy of discussing it liberally and fully.

But I think I will know when you turn from a debater into a filibusterer. And then, as the old saying goes, it will be dog-eat-dog. With Joe Robinson and his fellow court bill defenders on one side and Burt Wheeler and his fellow court bill opponents on the other, the Senate carries on with sarcastic, witty, and diatribing attacks the whole day, and the next two days.

Naturally, they break on July 7th to watch Franklin throw the opening pitch in Major League Baseball's All-Star Game. The American League crushes it eight to three, as one would expect with Yankees Lou Gehrig and Joe DiMaggio playing. But then, it's right back to the fighting. FDR's champion Joe Robinson Robinson, is losing ground.

By July 10th, the number of senators in support of the court bill has slipped from 54 to 51. Two days later, it's at 50. It's on that day, in fact, Monday, July 12th, 1937, that the real showdown happens as Wyoming's oppressively eyebrowed Senator Joe Amani takes Senator Joe Robinson to task. A battle of Joes, if you will. It all but comes to blows as Amani jams his finger into the red face of the Arkansan. But suddenly Joe Robinson has to end his shouting match.

He stumbles out of the chamber with a stabbing pain in his chest. He rests under the shade of the North Portico and takes a day off. It proves to be his last. On Wednesday morning, Joe's maid finds him on his apartment floor dead from a heart attack. The Senate carries on debating for another week, but without the majority leader, the already shaky bill has no chance. On July 23, 1937, the Senate votes 70 to 20 against it, rendering the court packing plan as dead as Senator Joe Robinson. Franklin has lost.

Or has he? Although Franklin and his supporters saw the court bill through to the end and got crushed, the real point to packing the court was getting SCOTUS to uphold the New Deal, and that started happening with the ruling in West Coast hotel company V Parish. Thus Franklin feels that, we lost the battle, but we won the war. FDR later frames the court battle as a victory, writing, The court yielded. The court changed. The court began to interpret the Constitution instead of torturing it. Indeed, in a nod to the old proverb that a stitch in time saves nine, it is soon said that Justice Owen Roberts' Constitutional somersault was the

switch in time that saved nine, as in nine judges from becoming fifteen. Is this a fair assessment? Did Franklin, like his fifth cousin predecessor, TR, put the fear of God in judges? Chief Justice Charles Evans Hughes never sees it this way. He calls the claim utterly baseless. Meanwhile, many historians will describe FDR's court packing plan much as his biographer, Roy Jenkins, does when he calls it, quote, the greatest political defeat of Roosevelt's career, close quote. Maybe they all have a point. FDR burned a lot of political capital and failed to pack the court.

But be it correlation or causation, the Supreme Court started playing ball toward the end of and after the fight. Pressing beyond the ambiguities of who won, we might also ask who was in the right? Perhaps we're best served here by avoiding the temptation to cast Franklin, Charles, or any of the associate justices as heroes or villains

while realizing that they all did what they understood to be best in the midst of the Great Depression. To quote historian Jeff Chesel, all sides responded to the emergency as they themselves defined it. Franklin and the three musketeer liberal judges felt that expanded roles of government with room to experiment was the best way to relieve the nation's suffering, while the four horsemen conservative justices truly believed that they were protecting, as Justice George Sutherland puts it, quote, individual initiative, self-reliance, and other cardinal virtues which I was always taught were necessary to develop a real democracy, close quote. But we'll give Justice Owen Roberts the last word.

Later reflecting on this time, he declares, who knows what causes a judge to decide as he does? Maybe the breakfast he had has something to do with it. Beyond the court packing battle, 1937 really isn't FDR's year. In October, the stock market takes a plunge with yet another Black Tuesday. Unemployment climbs into the eight digits again, exceeding 10 million. Yikes. Franklin is unsure of what to do. Should he go hard on balancing the budget, as his post-Louie Howe best friend and Secretary

of the Treasury Henry Morgenthau suggests? Or should he hold to his New Deal and Keynesian playbook with more deficit spending, like his valued advisor and future Commerce Secretary, Harry Hopkins suggests. Seeing a correlation if not causation between that year's budget cuts and the latest economic downturn, Franklin goes with the latter, announcing in an April 1938 fireside chat that he will put close to $1.5 billion into expanding public works projects. Franklin sees more New Deal legislation that year as Congress creates a federal minimum wage of 40 cents an hour and a 40-hour work week through the Federal Labor Standards Act

of 1938. It also bans child labor for interstate commerce. Yet, FDR is frustrated with it. The bill is filled with so many compromises, exemptions, and loopholes, including a lower minimum wage law in the South than in the North, that one Texas Democrat has to ask, whether anyone is subject to this bill? Franklin feels that too. Rather than make a witty remark while signing it, he merely jots his name on the page, then tosses his pen and declares, that's that. Meanwhile, Franklin finds that the court battle

and fights over taxes on capital gains has cost him some democratic loyalty in Congress. They want the New Deal to turn more moderate, but Franklin isn't willing to play ball. Elected by the largest electoral college majorities since James Monroe and George Washington, Franklin feels he has a strong mandate from the people to continue

with New Deal legislation. It's his fellow Democrats who need to get on board with the will of the people. Thus, Franklin moves to oust non-compliant members from his party in the 1938 midterm elections. The primary targets are New Deal-opposing Southern Democrats. Franklin supports primary challenges to long-standing senators and congressmen. For instance, even as the president calls three-term Senator Walter George a gentleman and a scholar, he adds that, on most public questions, he and I do not speak the same

language. As such, Franklin asks George's Democratic voters to reconsider if Walter's truly fighting for the party's objectives. Oh, wrong play. Southerners instead back their incumbent Democrats, and that November, Republicans pick up eight seats in the Senate and 81 in the House. The Dems hold their majority in both houses of Congress, but the retention of anti-New Deal Democrats and boost of Republicans

means that, as Congress gathers in January 1939, the New Deal's era is effectively over. But the Great Depression is not. In 1939, 9.4 million Americans, or 17.2 percent of the population, are unemployed. Far from a return to 1929's roughly 2 million unemployed. So when does it end? Well to channel American poet T.S. Eliot, we might say that the Great Depression ends not with a bang, but a whimper, as it slowly fades away with wartime spending after the United States enters World War II. So after three episodes on the subject, what do we make of the New Deal?

Well let's start with a little recap, get the historical professions take, then wrap it up. First, it's important to remember that, as we saw in episode 174, Franklin took the reins of the country in the midst of the worst financial crisis in U.S. history. A genuine crisis and meltdown, with unemployment over 24%, failing banks looking less trustworthy than buried coffee tins, and mortgages failing by the tens of thousands each month. The American way of life, of democracy and capitalism looked like it was dying.

That led to FDR's storied first 100 days, in which Congressional Democrats and Republicans alike pulled together to go with FDR's toss out the playbook and try whatever approach and pass 15 major pieces of legislation. In trusting FDR with more authority than any peacetime president ever, they expanded the federal government with alphabet agencies, perhaps most notably the National Industrial Recovery Act, or the NERA, and its National Recovery Administration, aka the NRA, and Public Works Administration, or the PWA. This seemed to improve things.

Unemployment dropped as production rose. Now not to overstate, but to this extent, conservatives and liberals largely agreed. Indeed, we should remember that even Republican Herbert Hoover was moving toward more government intervention by the end of his days in the White House. As Rex Tugwell of FDR's brain trust said decades later, We didn't admit it at the time, but practically the whole New Deal was extrapolated from programs that Hoover started. It was after the emergencies, and particularly as the so-called Second New Deal began in

1935, that the divisions grew more divisive. This was because, as we learned in the last episode, the second New Deal represented a significant and lasting shift. One that historian Joseph A. McCartan describes as a, quote, demand-side approach that represented a departure in fiscal policy, inaugurating what became the Keynesian Revolution in the U.S. political economy. Close quote. Ah, this is where the divide over the New Deal really grows between these political groups. Conservatives see emergency measures growing into unnecessary permanent fixtures

of an expanded government, measures that fail to stop the Great Depression, which only ends with the economic demands created by World War II. Meanwhile, liberals see important regulations, policies, and agencies that reign in the worst excesses of unchecked capitalism. They also see government spending during World War II

not as a simple response to wartime demand, but a vindication of the Keynesian approach. Finally, that brings us to the far left of the political spectrum, which was as disappointed as conservatives in the New Deal's ultimate outcome, but for the opposite reason. Socialists and communists thought it didn't go far enough. These perspectives will largely hold among each political group's thinking in the decades

to come. As for historians, the prevailing interpretation will shift over the years. In the 1950s, the New Deal will largely be praised as the savior of democracy and capitalism. In the 1960s, historians will become more critical, particularly of the New Deal's failures for minorities. As we've mentioned in past episodes, the CCC, the AAA, and basically all New Deal programs disproportionately help white Americans. That's why Southern Field Secretary for the Urban League, Jesse O. Thomas, questioned in his 1933 article, quote, will the New Deal be a square deal for

the Negro? Close quote. FDR also disappoints black supporters when, in deference to southern Democrats, he refuses to support an anti-lynching law. Meanwhile, for all the good that the 1934 created Federal Housing When, in deference to Southern Democrats, he refuses to support an anti-lynching law. Meanwhile, for all the good that the 1934 created Federal Housing Administration does, assisting many Americans with their mortgages, its officials purposely avoid helping Black families by simply not providing government-insured mortgages to predominantly non-white neighborhoods. These neighborhoods are colored in red on their maps. This practice

is known as redlining, and it will continue for decades. That being said, Franklin isn't deaf to black voices. When he first took office in 1933, he created what's later dubbed his Black Cabinet. Led by Mary McLeod Bethune, this unofficial group made up of Black intellectuals includes economists like Robert Weaver, lawyers like William Hasty, and academics like Ira Reed. They provide Franklin with advice and guidance on issues and inequalities facing Black Americans across the nation. Thanks to their help and Franklin's honest desire to uplift Black communities, much is done to address some of these inequalities. And as we'll see later, the President will issue Executive Order A802 prohibiting discrimination

in the defense industry when American factories begin ramping up to meet his call for an arsenal of democracy at the start of World War II. Finally, in the 21st century, the New Deal's legacy will take greater complexity, rightfully noting where it failed to perform, yet also recognizing the enormity of the unprecedented problems that FDR and Congress faced. It will also rightly be seen as the moment Americans put far more trust in Uncle Sam than ever before, embracing a federal government with a far larger role in American life. As historian Robert McElveen puts

it, quote, whether or not more could have been achieved in the political atmosphere of the depression years is beyond question that the economic collapse and Franklin Roosevelt's response to it decidedly altered the course of the nation, close quote. Altered indeed. Between the Civilian Conservation Corps, the Public Works Administration, and the Works Progress Administration, the United States added trails, trees, parks, roads, dams, airports, and many other works that will endure

into the 21st century. The Tennessee Valley Authority will continue to serve its several states as well. The Federal Deposit Insurance Corporation, Social Security, the Wagner Act, the Securities and Exchange Commission, and so many other agencies and programs we've learned about in the last few episodes will become all but permanent stitches in the fabric of American society. But as we wrap up the Roosevelt story for the 1930s, we can't forget about Eleanor.

Between her newspaper column entitled My Day, speaking engagements and other pursuits, the First Lady is plenty busy. As you may recall from the last episode, the First Lady is increasingly doing her own thing, living a life very separate from Franklin. This includes her strong stance against discrimination and segregation, which brings us to our final story for today. In 1939, Eleanor learns that the daughters of the American Revolution, or the DAR,

refused to allow one of her favorite singers and a former guest at the White House, Marian Anderson, to perform in Constitution Hall. The reason? Marian is black. A member of the DAR herself, Eleanor considers her options, then sends the organization a letter reading, I am in complete disagreement with the attitude taken in refusing Constitution Hall to a great

artist. You have set an example which seems to me unfortunate, and I feel obliged to send into you my resignation. You had the opportunity to lead in an enlightened way, and it seems to me that your organization has failed." Not mincing words, and Eleanor's resignation and rationale create quite a stir across the still Jim Crow segregated nation. Meanwhile, Eleanor and others like Secretary of the Interior Harold Ickes upped the ante by providing Marion with an incredible venue,

the Lincoln Memorial. Franklin approves the plan. And on Easter Sunday, Marion Anderson puts on a historic performance. It's sunset, Easter Sunday, April 9th, 1939, and world famous contralto, Marian Anderson, is just stepping out of her limousine near Washington, D.C.'s Lincoln Memorial. Police escort her through a passage behind the memorial, and as they walk, she can hear the crowd roaring.

The sound alone tells her this will be her biggest audience ever. In a small room inside the monument she's introduced to Secretary of the Interior Harold Ickes. He outlines the program that he's put together and then the signal comes. It's time. Harold leads Marion past the 19 foot tall Georgia White Marvel sculpture of Abraham Lincoln and down to the landing in the middle of the stairs that descend to the long reflecting pond. She draws her mink coat close in the chilly April wind and can hardly believe her eyes. The gifted singer sees a crowd of 75,000 people thronging the space between her and the distant Washington Monument.

As she will later recall, All I knew then as I stepped forward was the overwhelming impact of that vast multitude. From church groups to NAACP chapters, people have come from all over the nation to hear her sing. And right in front of her is her family, her mother and sisters, as well as national leaders, including senators and Chief Justice Charles Evans Hughes. God, it's an incredible sight.

Seriously, dig up the photos. It's incredible. Standing next to Marion, Harold comes to the microphone and makes a speech. In this great auditorium under the sky, all of us are free. When God gave us this wonderful outdoors, and the sun, the moon, and the stars, he made no distinction of race or creed or color. And so it is as appropriate as it is fortunate that today we stand reverently and humbly at the base of this memorial to the

great emancipator, where glorious, is blind. Genius, genius draws no color line. She has endowed Marian Anderson with such a voice as lifts any individual above his fellows, as is a matter of exultant pride to any race. And so it is fitting that Marian Anderson should raise her voice in tribute to the noble Lincoln whom mankind will ever honor. With that, Marian takes the stage. She performs My Country Tis of Thee. She also sings several arias, Ave Maria, and a selection of well-known African-American

spirituals. With tears in her eyes, she closes the concert with an encore of Nobody Knows the Trouble I've Seen. The concert ends as Marion declares to the cheering crowd, I am so overwhelmed. I just can't tell you what you have done for me today. But as Marion leaves the stage and the crowd surges forward, Walter White, president of the NAACP, notices something. And I think it well summarizes what makes this concert a special and an iconic moment in the history of civil rights. As he'll later recall, a single figure caught my eye in the mass of people below.

It was a slender black girl. Hers was not the face of one who had been the beneficiary of much education or opportunity. Her hands were particularly noticeable as she thrust them forward and upward, trying desperately to touch the singer. They were hands that, despite their youth, had known only the dreary work of manual labor. Tears streamed down the girl's dark face. Her hat was askew, but in her eyes flamed hope. Life, which had been none too easy for her, held out greater hope because one who was colored and who, like herself, had known poverty, privation, and prejudice

had by her genius gone a long way toward conquering bigotry. If Marian Anderson could do it, the girl's eyes seemed to say, than I can too." Close quote. Marion's own recollection of her importance isn't as grand, but nonetheless, she states, I hadn't set out to change the world in any way. Whatever I am, it is the culmination of the goodwill of people who, regardless of anything else, saw me as I am and not as somebody else.

saw me as I am and not as somebody else. And so we come to the end of our three-part investigation of FDR's new deal, of the Roosevelts of the 1930s. Not that we're done with Franklin or Eleanor. We'll visit with them again soon enough as FDR runs for an unprecedented third term. But for now, it's time for us to say goodbye to Washington DC, to head out across the country and experience some of the achievements and trials of this decade on the ground. I want to tell you the story of an enormous, life-altering dam being constructed on the

Colorado River outside the small town of Las Vegas. I want you to know the drama behind the rise of two bridges that will forever alter San Francisco. I want to regale you with the tales of a little friendly competition in New York for the world's tallest building and the creation of the nation's aviation industry. Yes, after mentioning so many great projects constructed in the 1930s, it's time to go in closer and hear their stories. So even though there's no OSHA to require it yet, I recommend you grab your hard hat, because we're about to begin a cross-country road trip filled with the dramatic,

deadly, and incredible stories of some of America's most iconic infrastructure. iconic infrastructure. arrangement and additional composition by Lindsey Graham of Airship. For a bibliography of all primary and secondary sources consulted in writing this episode, visit HTDSpodcast.com. HTDS is supported by fans at HTDSpodcast.com slash membership. My gratitude to you kind souls providing funding helps keep going. Thank you. And a special thanks to our patrons whose monthly gift puts them at producer status. and Jake Gilbreth, James Bledsoe, Jani McCreary, Jeff Marks, Jeffrey Moots, Jennifer Roof, Jessica Poppock, Joe Dobis, John Frugal Doogle, John Boovey, John Kellett, John Ridlewicz, John Schaeffer, Jonathan Sheff, Jordan Corbett, Joshua C. Steiner, Justin Insprigs, Justin May, Kristen Pratt, Taryn Bartholomew, Kim R, Kyle Decker, L. Paul Goeringer,

Borance Neubauer, Linda Cunningham, Mark Ellis, Matt Siegel, Matthew Simmons, Melanie Jan, Nick Seconder, Nick Cafferle, Noah Hoff, Owen Sedlak, Rhys Humphreys-Wadsworth, Rick Brown, Robert Drazovich, Sarah Trewitt, Sharon Thiesen, Sean Baines, Stacey Ritter, Steve Williams, Creepy Girl, Thomas Sabbath, and Zach Jackson. Join me in two weeks, where I'd like to tell you a story.