Vol. 14 No.12 (December 2004), pp.981-986

RECONSIDERING ROOSEVELT ON RACE: HOW THE PRESIDENCY PAVED THE ROAD TO BROWN, by Kevin J. McMahon. Chicago: University of Chicago Press, 2004. 308pp. Paper $20.00. ISBN: 0-226-50088-8. Cloth. $52.00. ISBN: 0-226-50086-1

Reviewed by Lauren Bowen, Department of Political Science, John Carroll University. Email: bowen@jcu.edu.

In this thoughtful and meticulously researched volume, Kevin McMahon advances the argument that presidents, especially reconstructive presidents like Franklin Roosevelt, are powerful agents of constitutional change. The United States Supreme Court is, according to McMahon’s argument, predisposed to follow the commands of the executive branch.

McMahon constructs this argument using primarily civil rights decisions that culminated in BROWN v. BOARD OF EDUCATION (1954 and 1955). He suggests that these decisions are the by-product of an institutional mission, one embraced by the U.S. Supreme Court and shaped by the judicial policy of FDR, that southern democracy was incompatible with the vision of a thoroughly liberal Democratic party. In other words, FDR was driven by the demands of intra-party management rather than race per se. Nonetheless, as McMahon makes clear in his conclusion, Roosevelt was more proactive on issues of race than usually assumed among scholars. McMahon argues that had FDR allowed southern Democrats to shape judicial policy in racially exclusive fashion, then the U.S. Supreme Court would not have challenged segregation when it did. Thus, this work makes a significant contribution to our understanding of the political climate and reality of the New Deal era as well as informing our explanations of judicial policy and the rise of the modern civil rights movement.

McMahon frames his argument within historical institutional analysis lending credence to his notion that this approach adds much to our understanding of origins of the Supreme Court’s civil rights decisions in the 1940s and 1950s. He is clear in stating that the presidency-focused approach, grounded in historical-institutionalist analysis, does not dismiss the value of the other approaches (e.g. the attitudinal model), but rather his research asserts the importance of the executive branch in the construction of constitutional and statutory doctrine. Indeed, much of the book reads as though it is part of an ongoing conversation about Supreme Court decision-making between the attitudinalists and new institutionalists. My only mild criticism is that sometimes the tenor becomes defensive as if the author is anticipating a critique by attitudinalists.

As he suggests in the introduction, McMahon is seeking to understand why courts act on certain issues when they do. In other words, he wants to identify the forces that tore down PLESSY v. FERGUSON (1896) and constructed BROWN (1954), and further how [*982] BROWN came to be accepted as an icon in the United States. This inquiry, then, is firmly rooted in the tradition of the new instititutionalism, while offering a different emphasis or reference point—the presidency. McMahon is clear that he does not reject the contributions of attitudinal model research, but instead is challenging the model by his presidency-focused approach. As he notes, his argument does not diminish the role of the NAACP, nor does it reduce Justices to clones of the president (p.8).

McMahon sets out to assess three questions. First, he explores how the post-1937 Roosevelt Court could be so activist. Second, he is interested in why a Democratic Court would damage southern democracy. Finally, he seeks to explain why the BROWN Court relied upon social science data. As I will detail below, he is most successful in addressing his second question and nearly as successful with regard to the first. He is much less explicit, however, in answering the third question. Still, the volume should be viewed as a solid contribution to the literature.

After this ambitious introduction, McMahon develops his argument in the second chapter entitled “The Incongruities of Reform: Rights-Centered Liberalism and Legal Realism in the Early New Deal Years.” Here he suggests that FDR’s constitutional vision was possible because of the illegitimacy of the previous government order that canonized property rights via federal judiciary’s construction of liberty. The Great Depression, of course, rendered this view of government’s role as illegitimate, giving FDR license to experiment with a wide range of policies in the early years of his administration.

McMahon suggests that FDR was timid with regard to the federal judiciary until 1935 when the Supreme Court struck down key parts of his recovery program while invalidating the Wagner and Social Security Acts. This sets up a confrontation with the High Court. Of course, much of this discussion will be familiar to readers of the Law and Politics Book Review. What McMahon contributes, however, with his explicitly historical-institutionalist framework is the observation that Roosevelt’s commitment to the federal expansion of rights hinged on the state of his vexing relationship with the South and what McMahon terms “southern democracy.” It was clear that FDR needed Southern Democrats to get elected (and re-elected). Yet many Southern Democrats were supportive of the Court’s pre-1937 interpretation of the relationship between government and the economy, as well as federalism. Southern Democrats in Congress also wielded considerable influence in Congress, and their support was necessary if Roosevelt was to enjoy legislative success. To some extent, then, McMahon is suggesting that the courts became the emphasis for progressive reform on race because it was not likely to happen in Congress. More significantly, though, McMahon posits that legal realist thought meshed with FDR’s desire to challenge orthodoxy, including the orthodoxy of apartheid in the American South. The courts were intentionally the vehicle for change, and McMahon boldly argues that FDR’s judicial policy was about more than validating the New Deal. It was also about dismantling southern democracy in a favor of a more inclusive, egalitarian version. [*983]

Chapter 3, perhaps the richest and most insightful chapter, is entitled “FDR’s Constitutional Vision and the Defeat of the Court-Packing Plan: The Modern Presidency and the Enemies of Institutional Reform.” McMahon examines the Court packing plan by focusing on opponents of the plan, rather than analyzing FDR’s mistakes as so many others have done. That emphasis provides a significant contribution to our understanding the post-1937 Court and its role in the political process.

McMahon suggests convincingly that the Court packing plan represented criticism of law inspired by realist thought. Indeed, McMahon goes on to assert that one cannot appropriately comprehend the plan without locating it within the critical juncture in the New Deal struggle against preexisting legal order and appreciating how it fit into FDR’s program and advanced his vision.

The intent of the plan was not simply to constitutionalize the New Deal, according to McMahon. Instead, the plan to pack the Court was part of a far more ambitious agenda. McMahon posits that FDR was seeking to reconstitute not only the presidency but the entire constitutional design. This does not mean that FDR was trying to pervert the constitutional system, but he was acting with the belief that he was in alliance with democratic principles and the vision of the founders.

In FDR’s view, a nearly perfect democracy violently changed by industrialization and the creation of the modern presidency would restore those principles (p.66). Thus, progressive democracy as imagined by the New Deal was more consistent with the beliefs of the founders than was laissez-faire capitalism. This was American democracy but amended to meet the needs of industrialized America.

The court packing plan, in McMahon’s words, “rocked” his relationship with Southern Democratic Senators. Some would argue that the court packing plan and its defeat was a driving force in the rise of a conservative coalition in Congress. Still, as described in Chapter 4, McMahon persuasively argues, that less attention has been given to the Roosevelt Administration’s “ongoing effort, through its judicial policy, to remake the Supreme Court into a fortress of liberalism, institutionally constructed to buttress the modern presidency and destabilize southern democracy” (p.97).

McMahon analyzes appointments to the Supreme Court and the Justice Department’s effort to extend and federally protect the rights of African-Americans. This, of course, challenges much of traditional thought about FDR’s commitment to civil rights which, according to McMahon, has overemphasized his legislative record and underemphasized his judicial record. He further argues that these pillars of FDR’s judicial policy were driven by his distaste for southern politics. The Roosevelt Supreme Court appointments, of course, allowed for the shift in the Court’s institutional mission after 1937. McMahon acknowledges that FDR’s efforts to expand the rights of blacks were constricted in scope and certainly did not meet the needs of the African-American community. Further, he notes that members of the Administration may have taken his direction further than the president intended. Still, McMahon’s fundamental argument here is that [*984] FDR’s judicial policy was used to erode the constitutional bedrock underlying the constitutionality of one party politics in the South. That erosion helped lead to the demise of southern democracy which in turn created a climate ripe for the civil rights movement and various advances with regard to racial equality.

While McMahon is quite effective in detailing these events, offering a compelling narrative, his ultimate conclusion is that FDR was quite intentional when crafting the three pillars of his judicial policy and anticipated much of what transpired. The evidence for that is rather speculative, and occasionally the text reads as though the discussion of causation and intent is a bit forced. For example, he notes “that there is no clear evidence that Roosevelt nominated jurists with a specific desire to advance African-American right. His nominees’ adherence to rights-centered liberalism combined with their devotion to the executive branch ensured that the NAACP would find fertile ground to lay anti-segregation precedential seeds that would one day, nourished in part by the Justice Department, would sprout into BROWN v. BOARD OF EDUCATION” (p.142), suggesting that his argument is most convincing when he is clear that Roosevelt was committed to dismantling Southern democracy and the courts were one way to do that. A series of events create a context and environment that culminate in BROWN, without suggesting the outcome of the decision was inevitable or intended in the late 1930s.

Chapter 5, entitled “A Constitutional Purge: Southern Democracy, Lynch Law and the Justice Department,” examines the third pillar of FDR’s judicial policy. Acknowledging that judicial appointments were insufficient to advance the desired policy, Roosevelt recognized the need to back up those appointments with an assertive effort designed to re-order the federal judiciary. McMahon’s discussion focuses on challenges to the white primary, the poll tax, lynching and police brutality, to explain the significance and consequences of Justice Department strategies when prosecuting crimes. Ultimately, McMahon suggests that the arguments generated within the Justice Department laid foundational precedent for Supreme Court decisions that constitutionally undercut southern democracy and white supremacy.

This chapter includes a rich discussion of the Civil Rights Section of the Justice Department (CRS) and Frank Murphy’s leadership role, suggesting that the formation of the CRS was Murphy’s most lasting achievement as Attorney General. The CRS was created by Murphy at the Roosevelt’s behest and became the center for testing creative legal theories that sought to halt lynchings and police brutality, expand voting rights and stamp out police corruption. McMahon details the theories advanced by the CRS in federal court and examines relevant Supreme Court decisions including the white primay cases, U.S. v. CLASSIC (1941) and SMITH v. ALLWRIGHT (1944), and SCREWS V. U.S. (1945), a police brutality case.

In perhaps the least compelling chapter, “The Commitment Continues:  Truman, Eisenhower and the Civil Rights Decisions” chronicles presidential and judicial actions from 1945-1954 that contribute to the outcome in BROWN I [*985] (1954). The most interesting element of the chapter is McMahon’s assertion that international pressure was not the vital impetus for civil rights advances in postwar U.S. Instead, he suggests that domestic pressures mattered more. He does acknowledge that international forces were significant in the commitment to civil rights reform but insists that he does not support the idea that international influences “swung the pendulum” (p.185). Instead, this chapter crystallizes his argument that judicial policy can be analyzed via his presidency-centered approach. He suggests that three motivations drive presidential action. They include the desire to consolidate and expand the electoral coalition, the goal of achieving immediate legislative policy preferences, and the intent to implement a constitutional vision defined simply as his image of an ideal institutional order (p.179). This very helpful framework allows him to detail how the Solicitor General’s office usurped the CRS during the Truman years and provides a framework to analyze briefs filed in key cases like SWEATT, MCLAURIN, and SHELLEY during the Truman years. While suggesting that “the distinctiveness of Truman’s constitutional vision centered on the creation of an international order that successfully responded to the difficulties of a new global reality” (p.191), he goes on to argue that if “U.S. ideological conflagration with the Soviets was the driving force in the Truman Administration’s call to end segregated schools, then it seems unlikely the Justice Department would have produced a brief” that angered the NAACP because it was seen as too gradualist (p.195). The incremental approach was chosen, in McMahon’s view, because it was considered to be the most successful with the justices; a Cold War inspired view would have demanded more radical change.  

In sum, this chapter advances the argument that both domestic and international concerns pushed the Truman and Eisenhower Administrations to ask the U.S. Supreme Court to review the legality of Jim Crow, a strategy to promote the black vote as well as to combat the rhetoric of the foreign enemy (p.201). The chapter informs the overall argument of the book nicely but is less satisfying, perhaps because it reads with an air of inevitability that seems incongruous juxtaposed against the intent and agency of the actors in the Roosevelt Administration, most notably FDR himself. And I am not convinced that McMahon’s conclusions about the relevance of international concerns are that different than the views he purports to challenge. He concedes that it was a mix of factors, and my sense is that those advancing the Cold War hypothesis have largely been demanding its inclusion—not that it supplants the domestic explanations.  

In the conclusion, “The Road the Court Trod,” McMahon returns to a discussion of James Byrnes and Hugo Black that opens the narrative, suggesting that the attitudinal model does not predict their behavior while on the U.S. Supreme Court. Byrnes is discussed frequently throughout the book because of his role in Congress during the Roosevelt Administration and his significance to Southern democracy. It is a nice thread that gives the narrative useful context and suggests that the text would be accessible and interesting for an [*986] undergraduate audience. McMahon uses the conclusion to revisit the three issues that framed the book: the activism of the Court that rendered BROWN, the willingness to challenge Southern democracy, and the use of social science data to justify the decision. He reinforces the arguments about his presidency-focused approach, suggesting that individual and institutional actions cannot be ignored. In other words, BROWN was not inevitable in 1954 as many have suggested. Instead, the role of the executive in shaping the Court’s institutional mission for the middle part of the twentieth century offers additional insight to why BROWN was decided how and when it was.  

Overall, this is an interesting and captivating volume, well-suited for undergraduate courses in judicial process, constitutional history, or the presidency. McMahon is clear in suggesting he is seeking to augment and enrich our understanding of how and why the Supreme Court decides as it does. In this, he is very successful as his discussion complements without refuting the attitudinal model. Moreover, the wealth of background and detail will engross students of the Supreme Court. If at times McMahon overdraws the distinctions he is trying to make and occasionally overstates his argument, such concerns are minor quibbles that should not discourage scholars and students from reading this book.  


BROWN v. BOARD OF EDUCATION I & II, 347 US 483 (1954); 349 US 294 (1955). 


PLESSY v. FERGUSON, 163 US 537 (1896). 

SCREWS V. U.S., 325 US 91 (1945). 

SHELLEY v. KRAEMER, 334 US 1 (1948). 

SMITH v. ALLWRIGHT, 321 US 649 (1944). 

SWEATT v. PAINTER, 339 US 629 (1950). 

U.S. v. CLASSIC, 313 US 299 (1941).


© Copyright 2004 by the author, Lauren Bowen.