The Nine Justices Respond to the 1937 Crisis William E. Leuchtenburg* At about one o’clock on the afternoon ofFebru ary 5, 1937, a curious drama unfolded in the ornate chamber ofthe Supreme Court ofthe United States, then at the start of only its second full year in its marble palace. Many times over the past seventeen months the courtroom had been filled to capacity with long lines stretching far down the corridor of hundreds of would-be spectators doomed to disap pointment. On this day, however, the room was half empty, for the Justices were hearing argument on a case ofno enduring significance. Only in retrospect would it be clear that this obscure litigation pro vided the setting, from the perspective of the Jus tices, for the beginning ofthe most momentous cri sis in the entire history ofthe Supreme Court. As a New Jersey lawyer made his presentation, the clerk ofthe Court slipped behind the ChiefJus tice of the United States, Charles Evans Hughes, and laid a set of mimeographed pages in front of him. Hughes was such a stickler forpropriety that it was said that, to maintain precise time allotment during argument, he had once interrupted counsel in the middle ofthe word “if.” But on this occasion he shifted his attention away long enough to run his eyes over the document, and, after asking the attor ney a question, returnedto perusing it. When he com pleted his reading, he seemed restless. Looking exceptionally solemn, he passed the papers on to Justice Willis Van Devanter, who quickly took in what they contained and grimaced. At the lectern, the New Jersey lawyer, bewildered by what was going on but sensing tension on the dais, paused in his oration. His confusion soon became worse, for from be hind the draperies popped out a towheaded page, who set what appeared to be the same sheafbefore each ofthe other Justices. Though he tried to be as unobtrusive as a ball boy at Forest Hills, no one could recall such a trespass in the midst ofargument ever having happened before. Benjamin N. Cardozo quickly skimmed the first sentences, then set the document aside, but George Sutherland, stroking his fine beard, read it all the way to the end, as did Harlan Fiske Stone. The broad-shouldered Pierce Butlerhunched forwardto studythe handout closely, then let out a quiet laugh, in which he wasjoined by Owen J. Roberts, who had riffled through it but had stopped abruptlyto scrutinize one paragraph intently while he rubbed his chin. Louis D. Brandeis, as soon as he realized what the document was about, turned on his desk lamp to give it full attention. In the court room, spectators could see his crown of white hair silhouetted in the light. Afterhe was done, he settled back thoughtfully, then, after some reflection, pored 56 JOURNAL 1997, VOL. 1 over it again, now and then scratching his ear. On concluding his second reading, he turned toward Van Devanter, who, at one point, waved his arm as if to indicate he had no patience with such non sense.1 At the end of argument, the nine Justices rose and vanished behind the curtains without the New Jersey lawyer or anyone else in the courtroom com prehending what had just transpired. As the authors of the first contemporary account wrote: A tiny incident it would have been anywhere else, but that strange chamber, so like the interior of a classical icebox decorated by an insane upholsterer, has a routine which seems to have been fixed at the moment of the cre ation ofthe world. The justices’ brief inat tention was as striking as a small noise in a very large, very silent empty space.2 It was in this impromptu fashion that the Jus tices first learned ofan extraordinary message from President Franklin D. Roosevelt that only minutes before had been read on the Senate floor. Alerted to what had happened, a Court attendant had raced across the plaza to the Capitol to obtain copies of a state paper that seemed too important to withhold from the Justices until the close ofargument. In that communication, the President recommended legis lation providing that when a federal...