2. Check Mike Check Sound Circulate Attendance Time

3. Today’s Lecture: Custard’s Last Stand: Laissez Faire Obstructs the New Deal 1.“Black Monday” and the Denial of the Second New Republic 2.The Court Packing Plan

4. Lecture Organization: Class Announcements Time Review Franklin Delano Roosevelt Roosevelt’s Solution Schechter Poultry Carter Coal The Four Horsemen

5. Class Announcements Class Cancellation -- There will not be class on THURSDAY, MARCH 27 TH (Not this Thursday, next Thursday). -- Also, I will be away at the Midwest Conference on Thursday, April 3 rd. (That one is already in the syllabus).

6. Class Announcements Quality Point Totals -- Won’t be possible to tally until after the Midwest Conference (I have too many obligations)

7. Class Announcements Next Quiz -- Next quiz will be posted on Monday, March 24 th. -- Expect it to be HUGE (about an hour to take) -- Deadline to submit questions is today

8. Class Announcements Next Cases -- Today: Schecter Poultry Carter v. Carter Coal -- Next Time: Jones & Laughlin Steel Wickard v. Fillburn 2 briefs – 1.2 briefs accepted Time Questions?

9. The Laissez Faire Decisions -- We looked at the Laissez Faire taxation decisions Review

10. 8/26/2015 Copyright, Sean Wilson. 20079 Taxing Power Congress has the power to … “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and General Welfare” So long as they are not written like “penalties” or “fines” for purpose of “regulation” (Bailey)

11. 8/26/2015 Copyright, Sean Wilson. 200710 Taxing Power Congress has the power to … “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and General Welfare” Laissez Faire Butler

12. The Laissez Faire Decisions -- This had complimented the commerce-clause decisions that we saw before … Review

13. 8/26/2015Copyright, Sean Wilson. 200712 Understanding the problem Factory commodity Uncle same wants to get at this activity

14. 8/26/2015Copyright, Sean Wilson. 200713 Understanding the problem Factory Before production, it is not federal business --E.C. Knight

15. 8/26/2015Copyright, Sean Wilson. 200714 Understanding the problem Factory After it comes out, it is not federal business if it NEVER leaves (Gibbons)

16. 8/26/2015Copyright, Sean Wilson. 200715 Understanding the problem Factory 1. it can still cross a border 2. yet not be “federal business” 3. if it is “social legislation” Dagenhart

17. 8/26/2015Copyright, Sean Wilson. 200716 Regulation does not mean banning

18. 8/26/2015Copyright, Sean Wilson. 200717 Congress has the power to … “Congress shall have the Power to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes” Govern Anything Economic So long as it is not purely local within a state May preempt the Laissez Faire Commerce Clause

19. 8/26/2015Copyright, Sean Wilson. 200718 Congress has the power to … “Congress shall have the Power to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes” Govern So long as it is not purely local within a state May preempt the Laissez Faire Commerce Clause

20. 8/26/2015Copyright, Sean Wilson. 200719 Congress has the power to … “Congress shall have the Power to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes” So long as it is not purely local within a state May preempt the Economic Things Laissez Faire Commerce Clause

21. 8/26/2015Copyright, Sean Wilson. 200720 Congress has the power to … “Congress shall have the Power to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes” So long as it is not purely local within a state May preempt the Economic Things But not the prepping of things for shipment Laissez Faire Commerce Clause

22. 8/26/2015Copyright, Sean Wilson. 200721 Congress has the power to … “Congress shall have the Power to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes” So long as it is not purely local within a state May preempt the Economic Things But not the prepping of things for shipment So long as it is not for purposes of social morality Laissez Faire Commerce Clause

23. The Laissez Faire Decisions -- We saw that substantive due process was also used to deny the states the right to regulate certain aspects of industry (particularly wages and conditions of labor) Review

24. 8/26/2015Copyright, Sean Wilson. 200723 The Laissez Fare Fortress Factory Production (labor) Manufacturing (the function) No taxing, either Motivation counts (No general welfare) “Local” (never leaves) Substantive Due Process Shield

25. The Great Depression -- We saw that the Great Depression had resulted in the election of FDR -- That the depression was particularly severe Review -- capitalism sort of “broke” (banking system collapsed) (banks going bankrupt, etc.) Statistics -- Great depression and new deal: the stock market lost almost 90% of its value (between 1929-1933), and industrial production fell by more than 50%. 15 million workers -- almost a third of the workforce -- lost their jobs. In 1919, farm income was 17 billion. By 1932 it was 5 billion.

26. 8/26/2015Copyright, Sean Wilson. 200725 Hoover’s Election in 1928

27. 8/26/2015Copyright, Sean Wilson. 200726 Roosevelt’s Election in 1932 Time

28. Political Philosophy Franklin Delano Roosevelt A reporter asked him, "are you a communist," FDR said "no." The reporter asked, "are you a capitalist," FDR said "no." The reporter asked, "are you a socialist," and FDR said "no." And the frustrated reporter said, "then what is your philosophy?" And FDR said, "philosophy? philosophy? I'm a Christian and I’m a Democrat.

29. 1932 Election Franklin Delano Roosevelt -- Interesting strategy: the country needs experimentation analogy to the war powers (Wilson, WWI) (nationalized industries, took over sectors of the economy) -- Election victory is a huge realignment

30. Activist Government Franklin Delano Roosevelt -- All sorts of new government programs -- The most productive first 100 days in history (The FDIC law passed in something like 24 hours)

31. Activist Government Franklin Delano Roosevelt -- All sorts of new government programs -- The most productive first 100 days in history (The FDIC law passed in something like 24 hours) 1.The federal deposit insurance corporation (FDIC) 2. Emergency Farm Mortgage Act 3. Emergency Homeowners Loan Corporation 4. Federal Emergency Relief Association (assistance to needy Americans) 5. Civil Works Administration, Civilian Conservation Core and the Public Works Administration (programs for the unemployed). 6. Federal Surplus Relief Corporation, distributed food to the poor 7. Tennessee Valley Authority (provided electricity and economic development for quite a number of states in the Tennessee river area) 8. The Security Act, followed by the Security and Exchange Commission (began the regulation of the securities market. The stock and bond markets had been notoriously unregulated. irregularities in those markets had contributed, many thought, to the great depression. Joseph Kennedy was the first chairman of this commission). 9. The agricultural adjustment administration (AAA) and the national recovery administration (NRA) were designed to break the depression in agriculture and industry. The AAA reduced agricultural production in order to boost prices 10. the NRA suspended the anti trust laws to authorize the negotiation of compensation, production, and pricing agreements enforced by the authority of the federal govt.

32. The Philosophy of the New Deal Franklin Delano Roosevelt -- The New Deal really was a NEW DEAL -- The idea: let’s have a new constitutional bargain let’s let the Federal government lead in policy matters let’s no longer have a “horse and buggy” commerce clause (“New Deal” is a literal not figurative theme)

33. Government’s New Role in Capitalism Franklin Delano Roosevelt -- government has a different role now -- government must correct market failure -- it must buffer society from the harsh effects of capitalism -- capitalism is now a three-party transaction Sellers Government Buyers

34. 8/26/2015Copyright, Sean Wilson. 200733 1929 1931 1933 1935 1937 House Dems 163 216 313 332 333 House Rep: 267 218 117 103 89 Senate Dems 39 47 59 69 75 Senate Rep 56 48 36 25 17 The Gift That Kept Giving Time

35. Facts: Question: What are the facts of this case? Schechter Poultry v. United States (1935) (a.k.a., “sick chicken case”) Background Facts: -- National Industrial Recovery Act (NIRA) -- applied to every sector of American industry -- authorized the creation of “codes of fair competition” NIRA … key piece of New Deal legislation which regulated the wages and hours of workers in many different industries. Most comprehensive piece of legislation: applied to every sector of American industry. Called for the creation of “codes of fair competition” for business. Regulated trade practices, wages, hours, and other business activities.

36. Facts: Schechter Poultry v. United States (1935) (a.k.a., “sick chicken case”) Background Facts: -- capitalism as a three-party transaction -- policing “bad apples” (explain) -- developing and codifying an industrial custom -- government pushing capitalism along in the right direction Significance of the NIRA

37. Facts: Schechter Poultry v. United States (1935) (a.k.a., “sick chicken case”) Background Facts: -- temporarily relieved industry of anti-trust laws (allowed them to form cartels, and to collude) -- but it required them to submit to a set of government- policed business regulations -- If you did this, you received a “blue-eagle” sticker that you could place in the window of your business, showing that you were engaged in honest and good business practices. NIRA provisions: NIRA The NIRA legalized cartels and created between 4,000 and 5,000 prohibited business practices that carried the force of law, which were contained in some 3,000 administrative orders running to over 10,000 pages.

38. Facts: Schechter Poultry v. United States (1935) (a.k.a., “sick chicken case”) Poultry Code: maximum work week of 40 hours minimum hourly wage of 50 cents a health and inspection system regulations to govern the slaughtering of poultry compulsory record keeping

39. Facts: Schechter Poultry v. United States (1935) (a.k.a., “sick chicken case”) “Direct Facts:” -- four Schechter brothers -- operate a wholesale poultry business in Brooklyn -- known for shady business practices (e.g., selling diseased birds) (hence the name, “sick chicken” case)

40. Facts: Schechter Poultry v. United States (1935) (a.k.a., “sick chicken case”) “Direct Facts:” -- four Schechter brothers -- operate a wholesale poultry business in Brooklyn -- known for shady business practices (e.g., selling diseased birds) (hence the name, “sick chicken” case) The Schechter Business The four Schechter brothers ran a wholesale business of poultry in Brooklyn that slaughtered and dressed kosher poultry. Every day trucks from the Schechter Poultry Co. would cross the Brooklyn Bridge to the Manhattan railway terminal. Strong men would move hundred of coups that contained about 100 chickens on to their trucks and return with their cargo to the Schechter slaughter house. Butchers would then slit the throats of the chickens and drain the blood. After plucking and dressing, the birds went to retail shops that catered to the city’s large Jewish population. -- source xx [paraphrased]

41. Facts: Schechter Poultry v. United States (1935) (a.k.a., “sick chicken case”) “Direct Facts:” -- four Schechter brothers -- operate a wholesale poultry business in Brooklyn -- known for shady business practices (e.g., selling diseased birds) (hence the name, “sick chicken” case) Shady Practices The Schechter brothers had a reputation for shady business practices, and they soon leaned that they could gain a competitive advantage by breaking the code. Federal investigators found that they had sold 1000 pounds of diseased birds. They were indicted on a 60 count indictment. One alleged that a chicken unfit for human consumption was sold to a someone. It was that count that eventually named the case the “sick chicken case.” Another count alleged that they were paying their workers less than 50 cents per hour and that they were taking pay offs for allowing favored customers to pick the best chickens from the coups. The jury convicted the Schechter's on 19 counts. -- source xx [paraphrased]

42. Facts: Schechter Poultry v. United States (1935) (a.k.a., “sick chicken case”) “Direct Facts:” -- Indicted for breaking the poultry code -- game theory: cheating for competitive advantage (making “suckers” out of the rule followers)

43. Facts: Schechter Poultry v. United States (1935) (a.k.a., “sick chicken case”) wide distribution: -- 96% of the chickens sold were shipped from outside the state -- after delivery, chickens were stored briefly before being slaughtered (“came to rest”)

44. Issues: Question: What is the issue in the case? -- There are two issues: Schechter Poultry v. United States (1935) (a.k.a., “sick chicken case”) “delegation” -- whether you can delegate this much authority to the president. We’re not concerned with this one right now. Part III of the course will look at that

45. Issues: -- There are two issues: Schechter Poultry v. United States (1935) (a.k.a., “sick chicken case”) “commerce clause” Question: What is the ruling in the case on this issue? -- The NIRA violates the commerce clause -- Once the chickens were purchased, their journey had ended! (Note: there are other reasons, but this is the main one) -- Note the significance of this maneuver … Question: Does this violate the commerce clause?

46. 8/26/2015Copyright, Sean Wilson. 200745 Factory 1 Formation of the Manufacturing Corporation E.C. Knight The labor or work performed inside 2 Hammer & E.C. Knight 3 Putting it in shipment Hammer & E.C. Knight “Social Welfare Motive” Cannot ban it, either The Commerce Power 4 After it arrives Schechter “the journey is done”

47. Issues: Schechter Poultry v. United States (1935) (a.k.a., “sick chicken case”) Roosevelt’s Reaction “Horse and Buggy Commerce Clause” … 2 days after the decision, Roosevelt said that the case “relegated the recovery initiative to the ‘horse-and-buggy definition of interstate commerce.’ The implications of this decision are almost certainly greater than any decision you or I will make in our life time, more important probably than any decision since the Dred Scott case.”

48. Facts: Question: What are the facts of this case? -- Bituminous Coal Conservation Act (1935) creates a federal commission to regulate the coal industry goal: a fair price, fair wages, and good business practices Carter v. Carter Coal (1936)

49. Facts: Carter v. Carter Coal (1936) One big difference: -- using the taxing power to enforce it, not the commerce power industries are taxed 15% of the value of their production they get a 90% rebate if they agree to the industry code -- “theoretically voluntary”

50. Facts: Carter v. Carter Coal (1936) -- Carter is a stockholder who brought an action to keep the company from paying the tax for non-compliance

51. Holding Carter v. Carter Coal (1936) -- Can’t do this; production is local. -- the key: movement of coal had not yet started yet “Production is local” -- Employing workers, setting wages and working hours, and mining coal were found to be part of the local process of production, separate from any trade of goods that could be regulated under the Commerce Clause. Justice Sutherland argued that "[e]verything which moves in interstate commerce has had a local origin. Without local production somewhere, interstate commerce... would practically disappear”

52. -- the supreme court had struck down 8 of the 10 major pieces of New Deal legislation : Louisville Bank v. Radford: Mortgage relief for farmers Humphreys Executor v. United States: limited the power of the President to replace members of independent boards; Schechter Poultry -- NIRA is unconstitutional. (So is the National Agricultural Adjustment Act). Panama Refining Company v. Ryan – program for overproduction of oil is struck down U.S. v. Butler – the taxing and spending power can’t be used either The Four Horseman “Black Monday”

53. -- In addition to Black Monday, there were other cases throughout 1935 and 1936 that tried to cripple the New Deal -- Many of the decisions were 5-4. -- The four conservative justices who were in the majority on these anti-New Deal decisions were called the “Four Horsemen” The Four Horseman “Black Monday” Other decisions:

54. -- The term is a Biblical term “4 horsemen of the apocalypse” (biblical reference to the end of the world in Revelation) -- The justices are: Willis Van Devanter (Wyoming Republican) James Clark McReynolds (Tennessee Democrat) George Sutherland (Republican from Utah) Pierce Butler (Democrat from Minnesota) The Four Horseman “Four Horseman”

55. 8/26/2015Copyright, Sean Wilson. 2007 The Court inherited by Herbert Hoover The Court‘s Membership LeftRight Oliver W. Holmes Louis Brandeis Harlan F. Stone Willis Van Devanter James Clark McReynolds George Sutherland Pierce Butler William H. Taft Edward Sanford “Four Horsemen”

56. 8/26/2015Copyright, Sean Wilson. 2007 The Court inherited by FDR (Hoover’s Picks) The Court‘s Membership LeftRight Oliver W. Holmes Louis Brandeis Harlan F. Stone Willis Van Devanter James Clark McReynolds George Sutherland Pierce Butler William H. Taft Edward Sanford “Four Horsemen” Benjamin Cardozo Owen Roberts Charles Hughes “Three Musketeers”

57. The Four Horseman Other Significant Decisions Minimum Wage Cases Adkins v. Children’s Hospital (1923) -- Only involved 3 of the 4 horseman (too early) -- Facts: Congress enacted a law to provide for minimum wages for women and children -- Held, unconstitutional (5-4 decision)

58. The Four Horseman Other Significant Decisions Minimum Wage Cases Adkins v. Children’s Hospital (1923) -- Only involved 3 of the 4 horseman (too early) -- Facts: Congress enacted a law to provide for minimum wages for women and children -- Held, unconstitutional (5-4 decision) Here is what the Constitution says … “Freedom of Contract” -- Congress has authority to create all the laws for the District of Columbia. And it created a wage board that set the wages for women at $71.50 per month. The figure was based on detailed studies of prices for food, housing, and clothing and other budget items in the district. Felix Frankfurter was the lawyer in the case, and he submitted a “Brandeis-type brief” with studies documenting the economic plight of working women. The Court dismissed the studies with one justice calling them “interesting, but only mildly persuasive.” Southerland’s basic position: liberty of K controls this, and that women were now equal because they got the vote. -- source [paraphrased]

59. 8/26/2015 Copyright, Sean Wilson. 200758 Exclusive Power over DC! Congress has the power to … “To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings” Complete authority – 1.Congress has complete authority over DC. Not limited government. 2. Substantive due process case.

60. The Four Horseman Other Significant Decisions Minimum Wage Cases Moorehead v. New York: (1936) -- Another 5-4 decision -- New York wage case that the Court puts on a fast track (rushes to get it heard and resolved)

61. The Four Horseman Other Significant Decisions Minimum Wage Cases Moorehead v. New York: (1936) -- Another 5-4 decision -- New York wage case that the Court puts on a fast track (rushes to get it heard and resolved) “Freedom of Contract” -- New York legislature had created a board that set minimum wages for women. Joseph Dipaldo had been arrested for violating the law and filed a habeas corpus petition. The state court struck down the minimum wage legislation and let him out of jail. The state then appealed to the Supreme Court. The lawyers filed the appeal very late in the term in March. The Court rarely accepts cases to be heard for that term at that late date. The Morehead case was briefed, argued and decided in less than 90 days, with the final decision on June 1. Question: Why is the Court rushing the gun? What’s the rush to take this case so quickly? Why violate Court procedure? Answer: Probably it is because the 4 Horsemen wanted to issue another blow to the New Deal before the next election. It’s an election year. The Court probably wanted Roosevelt to suffer another defeat and have to face the electorate over these policies “Backlash” -- Whatever strategy the 4 horseman had, it unleashed a barrage of criticism more than any other new deal decision. Or perhaps that was the cumulative effect of the new deal decision. 1 newspaper columnist in St. Louis wrote sarcastically that “because 5 is a larger number than 4 -- and for no other reason -- the law is unconstitutional.

62. The Four Horseman States are different? -- One of the interesting things is that the Court does allow the states to enact some New-Deal type legislation. e.g., Minnesota Moratorium case (mortgage relief)

63. 1936 Re-election -- Black Monday occurred in 1935. -- During the 1936 election, Roosevelt is running against Ralph Landon Governor of Kansas and the only Republican governor returned to office in 1934. Even Landon supported federal programs for welfare benefits, social security and hours and wage laws (Progressivism is taking over) Roosevelt’s Solution

64. 1936 Re-election -- Black Monday occurred in 1935. -- During the 1936 election, Roosevelt is running against Ralph Landon Governor of Kansas and the only Republican governor returned to office in 1934. Even Landon supported federal programs for welfare benefits, social security and hours and wage laws (Progressivism is taking over) Roosevelt’s Solution The GOP and Progressivism -- The GOP platform also committed the party to press for state laws that set maximum hours and minimum wages for women. Landon said that if this could not be accomplished by the states, then he would be support a constitutional amendment giving them the power.

65. 1936 Re-election -- The business culture is solidly against Roosevelt, yet he wins easily Roosevelt’s Solution David keeps slaying Goliath -- FDR won election in 1936 despite the concerted opposition of American business. Businesses lined up solidly against FDR and against the new deal. republicans would far outspend Democrats in 1936 and many newspapers were against FDR. Despite this, he won a smashing success. His victory would frustrate deeply his business opponents.

66. 1936 Re-election -- There is evidence that American political culture is changing. Roosevelt’s Solution American culture fundamentally changed -- American business would never again enjoy the kind of freedom and confidence that they had in the 1920s. In the 1940s, the committee of the mighty National Association of Manufacturers summed it up this way: "rightly or wrongly, the people have attributed the business collapse and the depression of the 30s to short sighted selfishness and to a lack of vision on the part of businessmen. The concept that the basic control of economic policy properly rests with the people through their government and not with businessmen or any other private group is permanently established in American culture."

67. 1936 Re-election -- The FDR coalition is HUGE. Roosevelt’s Solution The FDR Coalition -- The FDR coalition was huge: it included African Americans, northern white ethnic groups, industrial workers and the poor, joining forces with traditional conservative southern Democrats. It became a majority coalition that dominated American politics really until the arrival of Reagan.

68. What to do about the Supreme Court? -- doesn’t mention the Court in his campaign -- but he has already devised a secret plan Roosevelt’s Solution Court Packing Plan Replace one judge for each sitting judge who failed to retire within 6 months of their 70th birthday but no more than 2 judges could be added to each circuit ct, and no more than 6 for the supreme court. All 4 of the horseman were over 70. 6 total justices were over 70

69. What to do about the Supreme Court? -- doesn’t mention the Court in his campaign -- but he has already devised a secret plan Roosevelt’s Solution Court Packing Plan Replace one judge for each sitting judge who failed to retire within 6 months of their 70th birthday but no more than 2 judges could be added to each circuit ct, and no more than 6 for the supreme court. All 4 of the horseman were over 70. 6 total justices were over 70 The Planning -- A year before the election, FDR had called his attorney general into the oval office to begin drafting plans that would tamper with the Court. He wanted him to research questions such as the age distribution of federal judges, the retirement benefits of Supreme Court justices, and proposals for Congress to override the Court’s decisions.

70. What to do about the Supreme Court? -- doesn’t mention the Court in his campaign -- but he has already devised a secret plan Roosevelt’s Solution Court Packing Plan Replace one judge for each sitting judge who failed to retire within 6 months of their 70th birthday but no more than 2 judges could be added to each circuit ct, and no more than 6 for the supreme court. All 4 of the horseman were over 70. 6 total justices were over 70 Court Packing -- The product of the internal research was hammered out and polished and during January of 1937. FDR approved the final draft of the Judicial Reorganization Bill on January 30 th. One week later on Feb 5th, Roosevelt summoned Democrats into the White House for a meeting. He told them what he was going to do and, after that meeting, went out to meet the press. But he had never really consulted with members of congress; he merely told them what he was going to do. His plan would have added 50 new justices to the federal judiciary. It did not apply just to the Supreme Court, but to any judge in the federal system.

71. What to do about the Supreme Court? Roosevelt’s Solution Court Packing Plan -- Under the plan, the Court would grow to 15 members -- Court packing had been done before: Court Packing – Adams in 1800 (from 6 to 5) [denying Jefferson] Jefferson (back to 6, then 7) 1837 (goes to 9) Lincoln in 1863 (10) Radical Republicans in 1866 (back to 8) [to deny Johnson any appointments] Grant in 1869 (9)

72. The marketing of the plan Roosevelt’s Solution -- Roosevelt markets the plan first by claiming that the work is too strenuous these days for older people. The Feeble and the Aged -- FDR’s rationalization of this sounded like a doctor’s report: “the modern task of judges call for the use of full energy. A lowered mental or physical vigor leads men to avoid an examination of complicated and changed conditions. Older men look at new facts through old glasses that blur their vision. These older judges cease to explore or inquire into the present or the future.”

73. The marketing of the plan Roosevelt’s Solution -- Roosevelt markets the plan first by claiming that the work is too strenuous these days for older people. Hughes -- Justice Hughes was upset by the suggestion that aging justices couldn’t do their job. He sent a letter to the judiciary committee, saying “the Court was fully abreast of its work with no congestion of cases upon our calendar.”

74. The marketing of the plan Roosevelt’s Solution -- The opposition begins to mount to the plan. (Some Congressmen don’t like the medicine) Congressional Enemies -- Patton Sumner of Texas, the chairman of the house judiciary committee, refused to introduce the court packing plan (example of defection within fdr’s ranks). He said, “boys, here is where I cash in my chips.” The senate judiciary chairman, Henry Ashurst of AZ, gave the bill lip service, but privately tried to sabotage it.

75. The marketing of the plan Roosevelt’s Solution -- FDR then takes to the airwaves (fireside chat). -- He changes his message! It’s not age that is the problem; it is that the Court is acting as a super legislature The problem isn’t age; it is ideological activism We need more liberal judges!

76. The marketing of the plan Roosevelt’s Solution -- FDR then takes to the airwaves (fireside chat). -- He changes his message! It’s not age that is the problem; it is that the Court is acting as a super legislature The problem isn’t age; it is ideological activism We need more liberal judges! A Court with Progressives? -- FDR made clear his intention “to create a liberal-minded judiciary of young men who understood that modern facts and circumstances under which average men have to live and work. If the appointment of such justices can be called ‘packing the court,’ then I say that the vast majority of the American people favor doing just that thing now.”

77. The marketing of the plan Roosevelt’s Solution -- FDR then takes to the airwaves (fireside chat). -- He changes his message! It’s not age that is the problem; it is that the Court is acting as a super legislature The problem isn’t age; it is ideological activism We need more liberal judges! A Court of Ideologues? -- “the Court is improperly set itself up as a third house of the congress, a super legislature, reading into the constitution words and implications which are not there and were never intended to be there.... we have reached the point as a nation where we must take action to save the Constitution from the Court, and the Court from itself.” Question: Is he right about that?

78. The Pending Showdown? Roosevelt’s Solution -- polls temporarily shifted in his favor, but just barely -- The plan remained unpopular after April -- Two cases were pending during all of this NLRB West Coast Hotel (On March 29, 1937, the court issued a decision in West Coast Hotel three weeks after FDR’s appeal for public support)