(article is
from the news section)
2/11/2004 - By JOHN WHITTAKER
Robert H. Jackson's appointment to the U.S. Supreme Court is part of a new academic
argument seeking to place President Franklin Delano Roosevelt's racial politics
in a new light.
Kevin McMahon, a State College at Fredonia political science professor, recently
published the book Reconsidering Roosevelt On Race: How The Presidency Paved
The Road To Brown. McMahon spoke about his findings Tuesday at the Robert H.
Jackson Center.
Many legal historians have argued that FDR should have done more to fight against
Jim Crow laws during his tenure as president. Indeed, every one of the 150 bills
related to race proposed during the Roosevelt years was defeated by Congress.
McMahon argues that most scholars focus on actions taken by Congress and thus
overlook Roosevelt's most compelling racial advances.
''My argument is more on the power of the presidency, or what political scientists
like to call the reconstructive presidency,'' McMahon said. ''A president has
a great deal of political authority and that these are powerful agents of constitutional
change. FDR is considered one of these reconstructive presidents.''
Roosevelt's impact can be seen beginning with his 1936 plan to pack the Supreme
Court. While many scholars write that FDR was simply trying to appoint justices
sympathetic to his Second New Deal, McMahon said the plan can also be seen as
a way to appoint liberal judges who were sympathetic to both progressive economic
packages but willing to make social changes through judicial activism.
Among the plan's many supporters was Jackson, one of the most vocal defendants
of the court packing plan and a 1941 Roosevelt appointee to the Supreme Court.
In a 1937 speech to the National Lawyer's Guild, Jackson foretold the court's
role in defending First Amendment freedoms in a 10-year-long string of decisions
beginning in 1944 with Smith v. Allwright and ending with Brown v. Board of
Education in 1954.
''We too are founders,'' McMahon said, quoting Jackson's words. ''Founders of
what will tomorrow become the tradition of our profession in this day of change.
We, too, are makers of a nation, the nation of tomorrow. We, too, are called
upon to write, to defend, to make live new bills of right.''
Though the court packing plan was defeated by the Senate, Roosevelt was still
able to appoint nine justices to the court. Those justices came from a broad
representation of states - including the deep South - while supporting arguments
made by the National Association for the Advancement of Colored People and the
U.S. Justice Department.
In addition to Roosevelt's appointment of justices that followed the doctrine
of legal realism, Roosevelt directed the Justice Department to investigate racial
abuses in the South by attacking the ''Four Pillars'' of Southern democracy:
the white primary, the poll tax, anti-lynching efforts and police brutality.
While Roosevelt constructed his Supreme Court to actively protect the First
Amendment, there was concern at the time that the Supreme Court was contradicting
itself by taking an active stance with civil rights cases while using a lower
level of scrutiny on cases involving the New Deal. McMahon credits Jackson with
reasoning through the different levels of scrutiny.
''You have a time where you have sympathetic justices and the Justice Department
arguing for that,'' McMahon said. ''And, again, Jackson is important. ... With
(his) thinking, the court can still be active in protecting democracy, protecting
free speech, freedom of assembly and, in the case of race, the right to vote
in the white primary. The result, I argue, is that you get a Roosevelt court
that is instructed in a fashion to be instructed in matters of race.''