Legal historian Laura Kalman, author of FDR’s Gambit: The Court Packing Fight and the Rise of Legal Liberalism; Ken Kersch, professor of political science at Boston College; and Jeff Shesol, author of Supreme Power: Franklin Roosevelt vs. the Supreme Court, discuss Franklin D. Roosevelt’s constitutional legacy, the court-packing fight, and how his Supreme Court appointees transformed America. Jeffrey Rosen, president and CEO of the National Constitution Center, moderates.
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This episode was produced by Melody Rowell, Tanaya Tauber, and John Guerra; it was engineered by Center's A/V team. Research was provided by Sophia Gardell and Lana Ulrich.
Participants
Laura Kalman is distinguished research professor of history at the University of California, Santa Barbara. She is also a member of the California Bar, and past president of the American Society for Legal History. Kalman is the author of several books, the most recent of which is FDR’s Gambit: The Court Packing Fight and the Rise of Legal Liberalism.
Ken Kersch is professor of political science at Boston College. He is the author of five books, including Conservatives and the Constitution: Imagining Constitutional Restoration in the Heyday of American Liberalism, The Supreme Court and American Political Development, and his most recent book, American Political Thought: An Invitation. Kersch is also a contributor to “The Gilded Age through the New Deal” section of the National Constitution Center’s Founders’ Library.
Jeff Shesol is a founding partner of West Wing Writers and former speechwriter for President Bill Clinton. He is the author of Mutual Contempt: Lyndon Johnson, Robert Kennedy, and the Feud That Defined a Decade; Supreme Power: Franklin Roosevelt vs. the Supreme Court; and most recently Mercury Rising: John Glenn, John Kennedy, and the New Battleground of the Cold War. Shesol has also taught presidential history at Princeton University, where he was the Anschutz Distinguished Fellow in American Studies.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
Excerpts from Interview
On the legacy and current effects of the 1937 court fight
Laura Kalman: I don't think that the Court fight should be remembered as a failure, and I don't believe that we should conflate all contemporary proposals to increase the size of the court with that Court fight in 1937 itself.
Ken Kersch: And to a certain extent the memory of the court fight, which where we view it as this pivotal moment where FDR challenged the court and then ultimately prevailed, the memory of that sticks for real reasons. While the changes that happened after 1937 had been in motion for a long time doctrinally on the Court and outside the Court, the Court fight has come to symbolize a major shift in an understanding of the Constitution. And I think the conservative justices of the Court were anchored and recognized that reality.
Laura Kalman: I think [Roosevelt] made a good call. I think the Court did need to change. The Court had always shown some interest in civil liberties and civil rights, but I think it was useful that it shifted more towards that. There was a problem here, however. With the court-packing fight, FDR shattered the bipartisan coalition in Congress that had supported him, and made conservative domination of Congress possible, which mean for the next 25 years, reform could only come from the Supreme Court, in effect.
Ken Kersch: I think obviously the current Supreme Court, and the conservative movement generally since the 1930s, has targeted New Deal constitutionalism as its political enemy. And I think that many people are actually quite surprised by this because for much of the 20th century, that was actually not the position of the Republican Party.… It wasn't until Ronald Reagan that the conservative movement took control of the Republican Party, and their agenda had always been—at least a major part of the conservative movement—had always targeted Franklin Roosevelt and New Deal constitutionalism.
On how FDR interpreted the Constitution
Jeff Shesol: There was another tradition that Roosevelt hewed to. I don't think it's quite right to say that Roosevelt was utterly unconcerned with law. He certainly understood the Constitution to be a more flexible instrument than conservatives did. But he was fond of citing a quote from Chief Justice Edward Douglas White from an earlier period who described the Constitution not as a barrier to progress, but as he put it, "The broad highway through which alone true progress may be enjoyed."… I think Roosevelt appealed to a different mode of interpreting the Constitution, which allowed a much broader range for both state and federal officials to make democracy work.
On how President Biden should speak about the Court and employ constitutional rhetoric
Jeff Shesol: What I think [Biden] needs to do, and is his responsibility to do, is to do what Roosevelt did. And by that, I don't mean pack the Court…. I mean that he should, as Felix Frankfurter advised Roosevelt to do in the middle of the court-packing crisis, take the country to school. To educate the country, to make clear to the country that originalism, textualism—whatever name or doctrine we apply to it—is only one way of considering the Constitution….Roosevelt was fond of saying, and one of his favorite lines was that the Constitution is not a lawyer's contract, it's a layman's document. And by that, he meant that it ought to be able to be explained to everyone, and it shouldn't just be a matter for people who have a law degree or are wearing judicial robes.
Transcript
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This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
Additional Resources
- Laura Kalman, FDR’s Gambit: The Court Packing Fight and the Rise of Legal Liberalism
- Laura Kalman, The Strange Case of Legal Liberalism
- Ken Kersch, The Claremont Review of Books, “All Sail, No Anchor”
- Ken Kersch, Constructing Civil Liberties: Discontinuities in the Development of American Constitutional Law
- Ronald Kahn and Ken Kersch, The Supreme Court and American Political Development
- Jeff Shesol, The New York Times, “The Supreme Court is Broken. Where’s Biden?”
- Jeff Shesol, Supreme Power: Franklin Roosevelt vs the Supreme Court
- Franklin D. Roosevelt, First Inaugural Address (1933)
- National Constitution Center, The Founders’ Library, “Franklin D. Roosevelt: Address on Constitution Day (1937)”
- Franklin D. Roosevelt, State of the Union Address (1941)
- Colgate v. Harvey (1935)
- Franklin D. Roosevelt, Fireside Chat on Court-Packing (1937)
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