In 1995, a book was published that explained why FDR was able to get his way with the Court even before he managed to put his own people on it, and the key was the Gold Clauses case.
In 1937, Roosevelt had heard through the grapevine that the Court was going to clobber him in a 5-4 vote over the Gold Clauses, and a defeat there would have undone the 1933 gold confiscation and probably the New Deal itself. FDR quietly passed word to the Federal Marshals Service that soon he might give an order to not enforce an edict of the Court. He made sure that Chief Justice Hughes got word of what was about to happen to him and the Court.
Under normal circumstances, this would have been an impeachable offense. But Roosevelt had just won re-election in a landslide, and his party was in absolute control of Congress. No one was going to impeach FDR over refusing to enforce an order of the Supreme Court.
Like Roosevelt, Hughes had once been the governor of New York, and he was an intelligent political animal. He knew that if push came to shove, Roosevelt would revive his previously defeated court-packing plan, and this time he would win. FDR had within his grasp the means to destroy the Supreme Court as an institution, and he knew that Congress would be on his side, perhaps even the people.
Hughes switched his vote, and Roosevelt won the Gold Clauses case by 5-4. During the remainder of 1937, and before he got enough of his people on the Court, Roosevelt bullied the Court, getting the decisions he needed to create his new paradigm of the federal government in every aspect of life, the foundation of the New Deal. And he did it with a secret threat.
James Madison Federalist 47
This is a GREAT thread!!
Thanks. That filled a gap in my knowledge. What is the name of the book?