In Washington, D.C., what’s rarer than bipartisan agreement these days? It might be a new idea.
Marc Johnson, author of a new book called “Political Hell-Raiser: the Life and Times of Senator Burton K. Wheeler of Montana,” told an audience in Ketchum on Tuesday night that some Democratic presidential candidates are reviving an idea that former President Franklin Delano Roosevelt tried in the 1930s.
Johnson, the press secretary and chief of staff for former Gov. Cecil Andrus, delivered a lecture at The Community Library to an audience of about 30 people.
In March, Democratic Sens. Kamala Harris, Elizabeth Warren and Kirsten Gillibrand told Politico that they would “not rule out” proposing to increase the number of U.S. Supreme Court justices from the current number of nine, if they were elected president in November 2020. The number of Supreme Court justices is set by statute, not a provision in the U.S. Constitution.
FDR tried—and failed—to increase the number to 15 in 1937, thanks to stubborn opposition from Wheeler, a Democrat, and U.S. Sen. William Borah, an Idaho Republican.
The pair led opposition to Roosevelt’s court-packing scheme in the Senate, ultimately defeating the proposal and scoring one of the most resounding legislative defeats of Roosevelt’s 12 years as president.
How peculiar would the Wheeler-Borah partnership seem today? Johnson said that in 1936, while Borah was campaigning for re-election, Wheeler unabashedly supported his friend and told Idaho voters not to support the nominee from his own party.
“That is unheard of today,” Johnson said. “That just doesn’t happen.”
They were opposing a president riding an incredible wave of electoral strength. By 1935, Roosevelt had scored a series of legislative triumphs that established Social Security and the Securities and Exchange Commission, and broke up huge public utility holding companies.
However, a conservative majority on the U.S. Supreme Court struck down a number of laws supported by Roosevelt.
In the 1936 election, Roosevelt won all but two states—Maine and Vermont—and 74 Democrats won seats in the Senate, out of 96 total.
In February 1937, Roosevelt unveiled his plan to remake the Supreme Court and add six new justices.
“It seems even more audacious today,” Johnson said. “This will remake the court.”
Wheeler was a strong believer in Congress’ role as a co-equal branch of government, and its duty as a check on the executive branch’s overreaching.
He faced considerable political risk in Montana, which at that time had a Legislature that was stacked with Democratic lawmakers and supporters of Roosevelt.
“Wheeler faced great political peril,” Johnson said. “He determined that he was going to lead the opposition to the president in the Senate.”
The debate and controversy built steadily until the legislation expanding the number of justices reached committee hearings in the Senate over the summer.
Witnesses in support of the Roosevelt administration testified that the court’s nine justices were old men who were hopelessly overwhelmed by their workloads, and could never catch up.
As the opposition was preparing its testimony, Wheeler received a phone call from Justice Louis Brandeis. Brandeis told Wheeler that he should meet with Chief Justice Charles Evans Hughes.
Wheeler met with Hughes and was provided a letter that refuted the charge that the justices were overwhelmed by their caseload. The letter also stated that adding more justices would make managing the caseload even more difficult.
At a critical moment in the committee hearing, Wheeler revealed the letter from Hughes, who had declined the invitation to testify.
“It was a political bombshell,” Johnson said.
Roosevelt met with Wheeler at the White House in an attempt to broker a compromise and a request that Wheeler step aside as leader of the opposition, which he refused.
“The Supreme Court to many people is like a religion,” Johnson said, quoting Wheeler from the meeting. “You don’t mess around with a religion.”
The legislative effort foundered, and did not recover. Despite the huge number of Democrats in the Senate, the chamber voted 70-26 to kill Roosevelt’s proposal.
“FDR has his idea completely repudiated by the Senate,” Johnson said. “He really, really stumbles into the worst legislative defeat of his presidency. He never forgave Sen. Wheeler for this.”
Johnson said Wheeler’s opposition reflected his ideology as an opponent of concentrated power in the executive branch and in global affairs. Wheeler opposed the U.S. entry into World War II, and much later in his life, the expansion of the country’s involvement in the Vietnam War.
“You can be an honorable person and disagree with the president of your own party,” Johnson said of Wheeler. “Something, sadly, that seems to be missing in our politics today.”