The court-packing threat and the “switch in time”
Bob Zadek treats Roosevelt’s 1937 court-packing plan as a fixed point in New Deal history. In the 2017 episode with William Watkins Jr., he calls February 3, 1913 — ratification of the 16th Amendment — a black week in American history, and pairs it with 1937, when Roosevelt announced his plan to pack the Supreme Court. As Bob tells it, the Court had been finding Roosevelt’s New Deal legislation unconstitutional, which in his view it was; Roosevelt “stared down the court and threatened to pack the court and to increase the number of justices to 15 unless the court backed down.” The result, in the phrase Bob quotes from the period, was that “a switch in time saved nine” — the Court backed down to Roosevelt’s will, and the country “has been changed forever” [[episodes/crossroads_for_liberty__with_william_watkins_jr|Crossroads for Liberty with William Watkins Jr. (2017)]].
Bob returns to the same episode in the 2016 show on minors and the sex-offender list, where it serves an argument about court size rather than about Roosevelt. There he notes that the original Supreme Court had five justices, that the number jumped to 10, and that in the late 1860s it was reduced back to nine — a decision of Congress, not of the Constitution — because there were nine federal judicial districts. Into that history he inserts Roosevelt: during the court-packing era of the late 1930s, Roosevelt, unable to get his way with a conservative Court that was not backing his New Deal proposals, “threatened to obtain legislation to increase the number of justices from nine to 15.” The Court, Bob says, “all of a sudden became less conservative, more sympathetic to the New Deal era legislation, which was under existing jurisprudence unconstitutional,” and the switch produced the famous “switch in time that saved nine” Sarah Stillman on Minors on the Sex-Offender List (2016). In both tellings the mechanism is identical: Roosevelt threatens enlargement, the Court changes course, and the New Deal survives.
The Commerce Clause and the New Deal Court
The 2021 episode with Timothy Sandefur locates the constitutional damage later than the court-packing fight itself. Sandefur describes a project of rescuing the Constitution from Supreme Court decisions that got things wrong, and offers the Commerce Clause as the perfect example: beginning in the late 1930s, the clause was expanded to give Congress what he calls a blank check of power. Asked by Bob whether the work amounted to restoring a pre-Supreme Court Constitution, Sandefur agrees, and when Bob objects to the passive phrasing — the clause was not “expanded” metaphysically, the Supreme Court assigned it a meaning it never had — Sandefur concurs and places responsibility: “The blame rests squarely on the shoulders of Franklin Delano Roosevelt and the Supreme Court that toadied up to him,” beginning primarily with National Labor Relations Board v. Jones & Laughlin Steel Corporation. That decision, in Sandefur’s account, upheld the National Labor Relations Act on the theory that without the Act there would be a problem with the labor market that would disrupt the nation’s economy, and therefore Congress has power to regulate every employment contract in the nation. He calls the reasoning ludicrously expansive and says it opened the door to Congress regulating practically anything with any economic effect Timothy Sandefur on The Libertarian Constitution (2021).
The income tax under Roosevelt
Ashley Varner, in the 2023 episode on the IRS hiring spree, gives Roosevelt a place in the history of federal taxation. After recounting that the Supreme Court struck down the second federal income tax in 1895 and that the first income tax levied 1% on personal income greater than $3,000, she says it took only one generation to hike taxes sky-high: under President Roosevelt, she states, he raised the income tax to 79% of income and then to 99%, and wanted to go after a 99% income tax, which she calls insane and says would never have passed muster with the founders What the IRS’s Hiring Spree Means for You (2023). The same episode has Bob framing the founders as appalled at the modern tax system and the IRS, and Varner describing the 16th Amendment as an example of later amendments that became instruments of government encroachment rather than protections against overreach.
Public sector unions
In that same 2023 episode, Roosevelt appears in a different role — as a critic, on Varner’s telling, of the very arrangement she and Bob are discussing. Distinguishing public sector from private sector unions, Varner says that private companies have shareholders and customers, and that even private membership organizations must prove their membership offers something worth paying for. She then says that Roosevelt — whom she calls “that champion of small government,” noting she is being sarcastic — loved private sector unions but was against public sector unions, because he said it was inherently unfair for union representatives to sit across the table from the politicians whose campaigns they directly support without the representation of the taxpayer who funds it all there at the table to negotiate What the IRS’s Hiring Spree Means for You (2023). The remark is offered as an authority against public sector unionism, not as a study of Roosevelt’s labor policy.
Education and the general welfare
The earliest episode in the set, a 2009 conversation with Andrew J. Coulson, uses Roosevelt’s administration as evidence about the original understanding of federal power over education. Coulson says the claimed right to education is legally rubbish and was understood to be rubbish all the way through Roosevelt’s presidency. He notes that in 1941, during Roosevelt’s presidency, a book was published by the US Printing Office jointly by Congress and the administration, a history meant to educate children about the origins of the system of government, containing a question-and-answer section. The question is where in the Constitution education is mentioned; Bob guesses “General Welfare,” and Coulson answers that the book’s answer is that there is none, and that education is a matter reserved for the states. Coulson’s conclusion is that under FDR it was still believed, at least by functionaries lower down the political chain, that there was no federal role and no federal right to an education End the Unconstitutional Federal Involvement in Education (2009). The excerpt breaks off as the discussion turns to the General Welfare Clause.
LBJ as an acolyte
The 2019 episode with Amity Shlaes touches Roosevelt only in passing, through Bob’s framing of Lyndon Johnson. In his notes for the conversation, Bob describes LBJ as an acolyte of Franklin Delano Roosevelt and “Roosevelt on steroids,” offering the comparison for Shlaes’s comment as part of a broader question about the philosophical underpinnings of the JFK, LBJ and Nixon administrations Close Enough to Socialism: Amity Schlaes on The Great Society (2019).
Across episodes: the court-packing story
The court-packing episode is the one Roosevelt topic argued in more than one episode, and the treatment is consistent rather than developing. Bob Zadek tells it in the 2016 show as an argument for enlarging the Supreme Court by statute — nine being a random number, and a larger bench diminishing the power of any single justice — and tells it again in the 2017 show as part of a lament over the 16th Amendment and the New Deal. The 2021 Sandefur episode shifts the emphasis from the threat itself to the doctrinal result, naming National Labor Relations Board v. Jones & Laughlin Steel Corporation and assigning blame to Roosevelt and the Court that “toadied up to him.” No guest in the excerpts disputes Bob’s account of the switch in time; the change between episodes is one of emphasis and of the specific constitutional provision at issue, not of interpretation.
What the sources do not cover
The excerpts contain no biography of Roosevelt: no birth or death, no elections, no cabinet, no foreign policy, no wartime leadership. They name no statute of the New Deal other than the National Labor Relations Act as described by Sandefur, and no case other than National Labor Relations Board v. Jones & Laughlin Steel Corporation. Roosevelt’s own words appear nowhere; every characterization of his views, including his position on public sector unions, is reported by a guest or by Bob. The 2009 excerpt breaks off mid-discussion of the General Welfare Clause, and the 2023 excerpts end mid-sentence or at a section break, so the arguments they open are not resolved in the material available.