Jackson Lennock
Well-known member
In 1932, Congress cut the Supreme Court's pensions as a deficit-fighting measure during the depression. This, for example, saw Oliver Wendell Holmes (who retired in 1932) go from a $20,000 a year pension to a $10,000 a year pension [basically going from $407,000 to $203,500 in 2022 dollars]. At least two Justices - Willis Van Devanter and George Sutherland - put off their retirements because of this.
What if Congress didn't cut the pensions? FDR would get two appointments in his first term.
Senate Majority Leader Joseph Robinson of Arkansas would probably get the first open seat. FDR promised it to him, Robinson really wanted it, and provoking the Senate Majority Leader is not a good way to get a legislative agenda through. He was a Woodrow Wilson Progressive but also a southern favorite son (and unlike Black, had no indication of being a kind of closeted social liberal). But he might be more property-rights minded than FDR would like (FDR went for 15 Justices in the Court Packing Plan because he figures 4 horsemen + Hughes and Roberts + Robinson [7] would need to be countered by 3 musketeers + 5 dependable liberals [8]). Robinson died in 1937, but that was also after ignoring his doctor about avoiding too much stress and the Court Packing fight was probably what killed him.
As for the second opening, picks like Frank Murphy, Hugo Black, Sherman Minton, William O Douglas, or Stanley Reed just aren't happening in 33/34. Rutledge became famous because of the Court Packing Bill, so that isn't happening either.
Learned Hand might be a possibility, since Frankfurter lobbied hard for him and he was a TR-style progressive. But many TR-Progressives were skeptical of the New Deal, and FDR preferred younger nominees who would camp out for a long time. Hand also voted for Hoover in 1932.
Felix Frankfurter is an option, but a third Jewish Justice might provoke backlash. The same issue would apply to Irving Lehman, a NY Court of Appeals Judge and Brother of FDR's Lieutenant Governor who had been elected in 1923 as nominee of the Democratic and Republican parties. He was friendly to Wall street and Finance but also the Democratic Party and the New Deal.
No matter who the second nominee is, they're going to be some kind of moderate progressive at least. Hand might be more conservative though; he struck down the NIRA as a Second Circuit Judge in 1935. "The line is no doubt in the end arbitrary," Hand wrote in a memorandum, "but we have got to draw it, because without it Congress can take over all the government." But the NIRA was unique, because it got struck down 9-0. If he's a moderate progressive like Hughes, then he's a fifth vote for a bunch of things.
No Joe Robinson in the Senate might make getting some New Deal legislation passed difficult; but I doubt it'd be a big change.
Hand and maybe Robinson would probably be like the progressive version of Owen Roberts - they'd likely swing against the New Deal in a number of cases (Hand especially).
Some Lochneresque cases like New State Ice Co v. Liebmann would probably go the other way; but there'd be more respect for some things like Takings Clause and Interstate Commerce limits.
It's worth saying that a bunch of historic 6-3s (three musketeers dissenting) were cases where Hughes just joined the majority to grant it legitimacy and avoid the bad image of a 5-4. So a bunch of historic 6-3s (US v Butler comes to mind) could end up as 7-2s in the opposite direction.
OTL FDR didn't really care too much about losing in Schecter Poultry, Panama Refining Co, or Carter Coal (all of which 9-0). What drove him nuts was US v Butler, since commodities regulation (i.e., price regulation of agriculture) was a thing the Feds had done for a while already and was a big thing of FDR's while he was Governor. Hughes in Butler wanted to write a dissent saying that the law should have been only partly struck down and partly upheld (majority struck it down entirely) but instead went with the majority. So it's possible that even when FDR 'wins' in a few cases, they'd be narrow wins where stuff gets narrowed or partly struck down.
What if Congress didn't cut the pensions? FDR would get two appointments in his first term.
Senate Majority Leader Joseph Robinson of Arkansas would probably get the first open seat. FDR promised it to him, Robinson really wanted it, and provoking the Senate Majority Leader is not a good way to get a legislative agenda through. He was a Woodrow Wilson Progressive but also a southern favorite son (and unlike Black, had no indication of being a kind of closeted social liberal). But he might be more property-rights minded than FDR would like (FDR went for 15 Justices in the Court Packing Plan because he figures 4 horsemen + Hughes and Roberts + Robinson [7] would need to be countered by 3 musketeers + 5 dependable liberals [8]). Robinson died in 1937, but that was also after ignoring his doctor about avoiding too much stress and the Court Packing fight was probably what killed him.
As for the second opening, picks like Frank Murphy, Hugo Black, Sherman Minton, William O Douglas, or Stanley Reed just aren't happening in 33/34. Rutledge became famous because of the Court Packing Bill, so that isn't happening either.
Learned Hand might be a possibility, since Frankfurter lobbied hard for him and he was a TR-style progressive. But many TR-Progressives were skeptical of the New Deal, and FDR preferred younger nominees who would camp out for a long time. Hand also voted for Hoover in 1932.
Felix Frankfurter is an option, but a third Jewish Justice might provoke backlash. The same issue would apply to Irving Lehman, a NY Court of Appeals Judge and Brother of FDR's Lieutenant Governor who had been elected in 1923 as nominee of the Democratic and Republican parties. He was friendly to Wall street and Finance but also the Democratic Party and the New Deal.
No matter who the second nominee is, they're going to be some kind of moderate progressive at least. Hand might be more conservative though; he struck down the NIRA as a Second Circuit Judge in 1935. "The line is no doubt in the end arbitrary," Hand wrote in a memorandum, "but we have got to draw it, because without it Congress can take over all the government." But the NIRA was unique, because it got struck down 9-0. If he's a moderate progressive like Hughes, then he's a fifth vote for a bunch of things.
No Joe Robinson in the Senate might make getting some New Deal legislation passed difficult; but I doubt it'd be a big change.
Hand and maybe Robinson would probably be like the progressive version of Owen Roberts - they'd likely swing against the New Deal in a number of cases (Hand especially).
Some Lochneresque cases like New State Ice Co v. Liebmann would probably go the other way; but there'd be more respect for some things like Takings Clause and Interstate Commerce limits.
It's worth saying that a bunch of historic 6-3s (three musketeers dissenting) were cases where Hughes just joined the majority to grant it legitimacy and avoid the bad image of a 5-4. So a bunch of historic 6-3s (US v Butler comes to mind) could end up as 7-2s in the opposite direction.
OTL FDR didn't really care too much about losing in Schecter Poultry, Panama Refining Co, or Carter Coal (all of which 9-0). What drove him nuts was US v Butler, since commodities regulation (i.e., price regulation of agriculture) was a thing the Feds had done for a while already and was a big thing of FDR's while he was Governor. Hughes in Butler wanted to write a dissent saying that the law should have been only partly struck down and partly upheld (majority struck it down entirely) but instead went with the majority. So it's possible that even when FDR 'wins' in a few cases, they'd be narrow wins where stuff gets narrowed or partly struck down.
