Jeff Shesol recently granted me an interview on his new book, Supreme Power: Franklin Roosevelt vs. the Supreme Court. The book explores the origin and execution of President Roosevelt’s ultimately unsuccessful plan to add more than nine Justices to the Supreme Court in order to secure a majority in favor of his New Deal legislation, focusing on the perspective of the Justices and of Roosevelt himself. Shesol is a former speechwriter for Bill Clinton and is a founding partner at West Wing Writers, a political speechwriting company.
Below is the second half of our interview transcript. Part I appeared yesterday.
5. Your book is harsh on Roosevelt for deceptively justifying the Court-packing plan to the public. What role do you think that deception played in the plan’s ultimate failure?
I think that was a huge misjudgment, and it had a huge effect on the way the debate played out, and it was very high on the list of factors that contributed to the defeat of the plan. It suggested for the first time that Roosevelt was not playing straight with the American people. For years the right had suggested shrilly that Roosevelt was a dictator, that he aimed for absolute power. And these concerns were laughed off by most Americans. But suddenly, given the scale of the victory in 1936, and the size of the Democratic majority that to that point had never shown any real independence from the president, there was growing concern about the concentration of power in Roosevelt’s hands.
And when Roosevelt came forward with this proposal to curb the Supreme Court, and did so on a patently dishonest basis, concerns about his motivations went through the roof. It became much easier to believe that Roosevelt couldn’t be trusted, that he had designs on dictatorship. And so much of the discussion – really a shouting match – over the next several months played out with this as a premise: Roosevelt hasn’t been honest with the people, so what’s he really after?
6. Could Roosevelt have succeeded if he’d been straightforward?
Absolutely. I think Roosevelt could have been successful, and we’d have a Court of fifteen today. I think that if he had made the case for packing the Court on the grounds of the Court’s ideology, its obstructionism, and so forth, and he had spent time making that case before he unveiled his plan, I think he could have built a majority of support for the plan in the county. Keep in mind that, despite the false premises of the plan, and the hysteria that followed it, the public was pretty evenly split about it throughout the fight. Support went up and down over the course of the fight. Increasingly, the anti-packing forces had a majority, but it was a pretty narrow majority even at the end. So if Roosevelt had educated the public, brought them along to his point of view, I think it is certainly arguable that he would have got what he wanted—he almost got what he wanted anyway.
7. You were a speechwriter for President Clinton, and write speeches for a living now.  A great deal of your book highlights speeches delivered by Roosevelt, and even by the Justices. How did your experience as a speechwriter influence your writing of this book?
Well, the first thing I would say, with all due respect to myself and my former colleagues in the Clinton White House and the occupants of the present White House, speeches mattered more then than they do now. Certainly President Obama gives speeches that are of great consequence for his presidency. But he gives many more speeches – as did President Clinton and President Bush – that don’t count for much. Presidents are expected to be talking constantly now. That wasn’t the case with Roosevelt. His speeches were less frequent, and so they in many ways carried more weight.
What interests me as a speechwriter and also as a historian about the speechwriting process is that it’s really on the page of the speech that the battle is waged. Very often a president hasn’t clarified his thinking until he’s got to reckon with what he might say to an audience about his ideas, about his policies. And it’s in the course of writing the speech that a lot of these hidden conflicts and self-contradictions are teased out and – hopefully – worked out.
I tried to be careful that I wasn’t giving too much play to the presidential speeches as opposed to Supreme Court opinions or anything else in this book, but there were a few crucial speeches and press conferences where Roosevelt weighed in in a public way and fairly dramatic way about his conflict with the Supreme Court that really changed the direction of the discussion. Even if I’d never written a speech in my life I think I would have been drawn to those very same speeches and press conferences because they were so important in the course of this conflict.
8. Your book recounts a good deal of the Court’s internal dialogues about the New Deal legislation cases. How did you find out about these discussions?
Letters provide some real insight into the way the Justices were thinking. This was a time when people wrote letters, and pretty candid ones, because they didn’t worry about their ending up on smokinggun.com.
Fortunately for me, Justice Stone was a prolific letter-writer. That slants the history a particular way, because Stone had a particular point of view. But there are rich volumes of correspondence between Stone and Felix Frankfurter and between Stone and many others. Van Devanter was surprisingly a letter-writer. He might go months without writing anything of great significance to anyone. You could flip through six hundred pages of his correspondence without finding anything of interest. But when you found something, it was really interesting. He would report to his sister, or a political associate, how all of the conservative Justices were thinking about one thing or another. Justice McReynolds – the most implacable of the conservatives – didn’t write often but when he did write one, boy was it a good one.
9. There’s quite a lot of speculation about whether the Court-packing plan caused Roberts and Hughes to switch their votes on New Deal legislation. You don’t really take a position on that in the book. Can you tell us why?
I think we can never really say for certain. As Roberts said, who knows why judges decide as they do in the end? Maybe it’s something they had for breakfast. In the end I don’t think the Justices themselves knew what led them to go in one direction rather than another. I think it’s folly to suggest that any of us know for certain why an individual Justice moved. That said, I think you can lay out the facts. You can sketch an individual’s personality and his thinking as fully and honestly as you possibly can and let your readers conclude. I think that, given what we know about Roberts and Hughes, and what decisions on either side of this moment [the “switch in time”] suggest, it’s hard to believe that external events didn’t play some role in Roberts’ transformation. Now whether the external event was the Court-packing plan, the 1936 election, or the fierce resistance to the minimum wage decision of 1936 is another question. If Roberts was indeed influenced by external events, they would have to be, first, the fierce reaction of the country to the first minimum wage decision, which struck down New York state’s very carefully drawn minimum wage law.
Or, second, the results of the 1936 election, which just can’t be overstated. They were staggering. There had been polls suggesting that Roosevelt might lose that election. Van Devanter thought Roosevelt would probably win, but it would be pretty tight. And it was one of the greatest landslides in American history. This was a staggering fact for them [the conservative justices] to confront.
10. There are many proposals today to restructure the Court. Can we learn anything from Roosevelt’s experience that applies to these proposals?
I think we can. Any changes to the function or the structure of the Supreme Court will require a significant commitment by the president and Congress to educate the public, and bring them along, before any change is finally proposed or achieved. There is still a sacrosanct quality to the Supreme Court. Whatever one might think about a particular decision, the Court manages to stay pretty high in America’s esteem. I think most Americans would not stand for the so-called political branches trifling with the so-called nonpolitical branch. For any reforms [of the Court] to pass, it would take some real work building a consensus in the country. And absent a crisis like the one in the 1930s, it’s hard to imagine that any upcoming Supreme Court decision would have the afterlife required to build a consensus for substantial reform of one kind or another. I’m not saying it’s impossible, but it’s hard for me to see it happening. During the 1930s you had more than a year of buildup before there was the general feeling – not just Roosevelt’s feeling – that something had to be done. Unfortunately Roosevelt picked the one path that was going to require a lot more work.
We saw a burst of [court reform proposals] in 2005 on the right, and if the Supreme Court starts to strike down some of the reforms of the Obama Administration, you’re going to hear some of the same suggestions on the left. These are expressions of frustration that you hear periodically over the course of American history, but generally they don’t go anywhere.
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