A People's History of the Supreme Court

by Peter Irons

  Wood persuaded the Court that Congress had no power to regulate either kosher chickens or bituminous coal. Writing for the Carter majority, Justice Sutherland deplored federal meddling in “local” disputes between miners and their bosses. “Every journey to a forbidden end begins with the first step,” he warned. Sutherland feared that federal regulation of labor relations in the mining industry was the first step toward reducing states “to little more than geographical subdivisions of the national domain.” His journey to this conclusion stopped at the mineshaft, before the coal was loaded into railroad cars for shipment to other states. Coal production, Sutherland ruled, “is a purely local activity.” Congress had declared in the Guffey Act that strikes over wages or union recognition disrupted interstate commerce in coal. Sutherland answered that “the evils are all local evils over which the federal government has no legislative control. The relation of employer to employee is a local relation.”

  Writing for the Three Musketeers in dissent, Justice Cardozo disputed Sutherland’s claim that strikes in the mining industry did not affect interstate commerce. Cardozo agreed that coal production itself might be distinguished from commerce, but he cited the voluminous evidence in the government’s brief of labor conflict in the coalfields. “Commerce had been choked and burdened” by the “violence and bloodshed and misery and bitter feeling” on both sides, he wrote. Noting that 97 percent of the coal produced by Carter’s company was shipped out of state, Cardozo linked the industry’s labor relations with its coal shipments and argued that their relation to interstate commerce “may be such that for the protection of the one there is need to regulate the other.” But again, the Four Horsemen had corralled the votes of Hughes and Roberts to strike down another New Deal law.

  The Carter decision removed Congress from the battlefield of labor relations as workers formed ranks on picket lines and employers stockpiled tear gas. In early 1936, workers at the Firestone rubber plant in Akron, Ohio, devised a new tactic to protest the firing of several union members: they sat down in the tire factory and refused to move. Workers at the nearby Goodyear plant soon joined the “sit-down” strikers, who ignored a court injunction to leave the plants. After some ten thousand striking workers brought the tire industry to a complete stop, they won recognition for their union. And their new tactic spread across the country, as workers in other industries waged forty-eight sit-down strikes during 1936. With labor conflict growing, and with elections approaching, the Supreme Court faced the issue off state power to regulate wages and working conditions in a challenge to a New York law that set minimum wages for women. The question in Morehead v. Tipaldo became more significant in the wake of the Carter decision. If Congress lacked power under the Commerce Clause to regulate labor conditions, did the “police powers” of the states allow them to occupy this field?

  The ostensible parties in the New York case were Joseph Tipaldo and Frederick Morehead. Tipaldo, a Brooklyn laundry owner, had been arrested and jailed for violating the minimum wage law and field a habeas corpus petition against Morehead, warden of the Kings County jail. Concealed behind the petition’s caption, Morehead v.Tipaldo really pitted the state’s New Deal politicians against business leaders who saw the “specter of socialism” in minimum wage laws. New York’s highest court upheld Tipaldo’s challenge to the wage law on March 3, 1936, and the state filed its appeal with the Supreme Court two weeks later. The case’s timing raises an intriguing—but unanswerable—question about judicial politics. The Court rarely accepts cases for decision this late in its yearly term, which normally ends in June, but the Morehead case was briefed, argued, and decided in less than ninety days. Not only did the lawyers on both sides write briefs and prepare arguments, but the Court received amicus curiae briefs supporting the New York law from six other states, and briefs opposing it from the New York Hotel Association and the National Women’s Party. Another relevant fact is that only the Four Horsemen voted to hear the Morehead appeal; the Court’s unwritten “rule of four” permits any four justices to put a case on the docket. These facts suggest—but do not prove—that the Four Horsemen wanted to mount one last charge against the New Dealers before the 1936 elections. If they succeeded, Franklin Roosevelt—the New Deal’s commanding general—would have suffered another defeat as he rallied his troops for the decisive battle in November. And if they failed, Roosevelt’s complaint about the “horse-and-buggy” Court would lose appeal as a potential campaign slogan.

  Despite their string of judicial losses, New Deal partisans held out some hope for a narrow victory in the Morehead case. After all, the Court had upheld state powers in two important 1934 decisions, sustaining Minnesota’s “mortgage moratorium” statute in the Home Building case and New York’s milk-pricing scheme in the Nebbia case. But these were “emergency” laws, and the worst days of the Great Depression had given way to recovery, however slow and uneven. New York’s appeal in Morehead faced another obstacle, because the New York law had great similarities to the District of Columbia statute the Court had ruled unconstitutional in its Adkins v. Children’s Hospital decision of 1923. The only significant difference in the two cases was that the same minimum wage applied to all female workers in the District, regardless of occupation, while New York set wages for each industry based on “the reasonable value of services rendered” by women. Grasping this weak straw, New York’s solicitor general, Henry Epstein, argued to the Supreme Court that differences in the two laws “make the rule of the Adkins case inapplicable to this case.” Epstein could have urged the Court to overrule Adkins, but he claimed instead that his case was “distinguishable” from this troubling precedent.

  Epstein’s opponents dismissed as “fanciful” his effort to distinguish the cases. “We have had a depression,” they conceded, but this fact did not justify a minimum wage law; on the contrary, “a depression makes such a law the more harmful and oppressive by increasing the difficulty of the least efficient in securing employement.” Tipaldo’s lawyers warmly embraced the Adkins decision. “A social philosophy in conflict with the fundamental principles of the American Constitution has doubtless gained many adherents since that case was decided,” they granted, “but every argument that can be presented in favor of minimum wage legislation was heard and considered then.”

  The Four Horsemen did not need argument to decide the Morehead case. They did, however, need one additional vote to strike down the New York law, and Justice Owen Roberts gave them the crucial vote; the ruling came on June 1, 1936, two weeks after the Carter decision. Between these two cases, the Court effectively created a constitutional no-man’s-land from which both Congress and the states were barred. The Commerce Clause blocked federal regulation of labor relations, and the Due Process Clause of the Fourteenth Amendment erected a barrier against state laws.

  Justice Pierce Butler spoke for the Morehead majority in the laissez-faire words of the Lochner era. “The right to make contracts about one’s affairs is a part of the liberty protected by the due process clause,” he wrote. Butler gave an economics lecture to New York’s women workers: “In making contracts of employment, generally speaking, the parties have equal right to obtain from each other the best terms they can by private bargaining. Legislative abridgment of that freedom can only be justified by the existence of exceptional circumstances. Freedom of contract is the general rule and restraint the exception.” The Great Depression did not impress Butler as grounds for breaking this rule.

  Butler’s reaffirmation of Lochner and Adkins provoked a stinging dissent from the Three Musketeers. Harlan Fiske Stone, joined by Brandeis and Cardozo, professed disbelief that Justice Butler could ignore economic reality. “There is a grim irony in speaking of the freedom of contract of those who, because of their economic necessities, give their service for less than is needful to keep body and soul together,” he wrote. “In the years which have intervened since the Adkins case we have had opportunity to learn that a wage is
not always the resultant of free bargaining between employers and employees,” Stone reminded the Court’s majority.

  The public did not need any reminder of the Depression. More than any other decision of the New Deal period, the Morehead ruling unleashed a barrage of criticism against the Court. Conservatives joined liberals in denouncing the decision. Irving Brant, the respected St. Louis Star-Times editorialist, responded caustically: “Because five is a larger number than four, and for no other reason, the law is unconstitutional.” With the presidential election just five months away, President Roosevelt once again held his tongue. Turning the Supreme Court into a campaign issue had both advantages and risks that were hard to calculate. Attacking the “horse-and-buggy” Court would please his partisans, but many voters still venerated this august institution. Besides, Irving Brant and other widely read columnists were blasting the Court in harsher terms than Roosevelt had ever employed. The president decided to issue his dissent to the Court’s decisions after the polls. The almost universal condemnation of the Supreme Court’s decision in the Morehead case, and President Roosevelt’s refusal to join the chorus of critics, placed Republicans in a dilemma as they gathered in June 1936 to choose a candidate to oppose the popular incumbent. Should the GOP nominee warn the voters that Roosevelt could not be trusted to respect the Supreme Court as an independent branch of government? Claims that he wanted to tamper with the Court might appeal to those who viewed it as a counterweight to the elected branches. On the other hand, many voters saw the Court as a logjam that blocked the flow of laws and programs they had launched at the ballot box. The fact that Roosevelt had not criticized the Court since his “horse-and-buggy” remark in May 1935, and had not suggested or endorsed any plans to limit its powers or reshape its structure, made it harder to convince voters that the Court faced an imminent assault from the White House.

  The Republican delegates to the party’s convention in Cleveland, Ohio, first cheered a rousing speech by former president Herbert Hoover, who warned that a second term for Roosevelt might give him enough Supreme Court nominations to turn Americans into a “regimented people.” But when the cheers died down, the delegates turned to Alf Landon of Kansas, the only Republican governor returned to office 1934, as their candidate. Landon supported federal aid to agriculture, welfare benefits, and social security. The party’s platform also signaled the decision to offer voters a “moderate” alternative to the New Deal. The delegates inserted a plank committing the party to seek “the adoption of state laws . . . to protect women and children with respect to maximum hours, minimum wages, and working conditions. We believe that this can be done within the Constitution as it now stands.”

  Landon’s campaign speeches avoided direct attacks on Roosevelt, and he fired his rhetorical guns at anonymous New Deal bureaucrats with accusations of waste and mismanagement. Only in the closing days of his lagging campaign did Landon make an issue of the Supreme Court. Speaking to a throng at Madison Square Garden in New York, and to a national radio audience, he charged that Roosevelt “has been responsible for nine acts declared unconstitutional by the Supreme Court.” The president “has publicly belittled” the Court and “has publicly suggested that the Constitution is an outworn document,” Landon charged.

  But these charges lost their sting as Landon continued. “Our Constitution is not a lifeless piece of paper,” he said. “But if changes in our civilization make amendment to the Constitution desirable it should be amended.” Landon told his audience, “I am on record that, if proper working conditions cannot be regulated by the States, I shall favor a constitutional amendment giving the States the necessary power.” He questioned Roosevelt’s intentions toward the Constitution. “Does he believe changes are required? If so, will an amendment be submitted to the people, or will he attempt to get around the Constitution by tampering with the Supreme Court?” But Roosevelt had given his opponent no answers. “No one can be sure,” is all that Landon could say about the questions he had posed. This was hardly a ringing conclusion to a speech that asked millions of voters to turn an incumbent president out of office.

  Roosevelt buried Landon at the polls in 1936 with more than a landslide, winning every state but Maine and Vermont. New Deal candidates rode the president’s coattails to victory across the country as Republicans were left with only eighty-nine House seats and sixteen in the Senate. With the campaign over, the president tucked his electoral mandate in his pocket and left Washington for a South American tour. Before departing, Roosevelt held a cabinet meeting to discuss plans for his second term. Interior Secretary Harold Ickes noted in his diary that “there was a good deal of discussion about the Supreme Court. I think that the President is getting ready to move on that issue and I hope that he will do so.” Before his trip, Roosevelt. also told publisher Joseph Patterson, whose New York Daily News supported his reelection, that the Court problem “is a mighty difficult one to solve but one way or another I think it must be faced.”

  Which way would the president move? The fact is that only one trusted adviser, Attorney General Homer Cummings, knew what Roosevelt intended to do. For more than a year, since the Schechter decision in May 1935, Cummings had sent young lawyers to the library with research tasks: How much had the Supreme Court docket grown over the years? What was the age distribution of all federal judges? What were the retirement benefits of Supreme Court justices? What arguments had been made for giving Congress the power to override Court decisions? None of these lawyers knew why Cummings asked for this material, or what he did with their reports. Those who may have guessed the purpose did not reveal their thoughts.

  Most of Roosevelt’s advisers, formal and informal, leaned toward constitutional amendment as the best solution to the “Court problem.” They could not agree, however, on whether to pursue “procedural” or “substantive” amendments, to borrow language from judicial doctrine. One example of the first approach would require a “supermajority” of six or seven justices to strike down federal laws. Similar proposals had been made—but never adopted—by many politicians over the years. Another procedural approach would allow Congress to override Supreme Court decisions by two-thirds vote of each chamber, after an intervening congressional election. The competing “substantive” approach would limit the Court’s power to decide certain kinds of cases, or grant additional powers to Congress in fields such as agriculture or labor relations. None of these proposals was new; similar efforts to “curb the Court” went back some fifty years, and all had failed. Other problems faced those who pressed for amendments: the process took time and ratification could be blocked by the legislatures of thirteen states. With important New Deal cases on the Court’s docket, Roosevelt had little patience for a process that might take years.

  The president wanted a quick solution, and Attorney General Cummings handed him one from an unlikely source. Back in 1914, an earlier attorney general had proposed adding one judge to lower federal courts for every sitting judge who reached the age of seventy. “This will insure at all times,” the proposal’s author wrote, “the presence of a judge sufficiently active to discharge promptly and adequately all the duties of the court.” That proposal came from James McReynolds, now seventy-two and the most dogmatic of the Four Horsemen of Reaction on the Supreme Court. McReynolds was not the first “court-packing” advocate; as Roosevelt, later noted, the House had approved a similar plan in 1869, although that bill never became law Cummings learned of the McReynolds plan shortly before Christmas in December 1936, and he offered it to Roosevelt like a gift-wrapped present. A legislative solution to the Court problem had two great advantages over the amendment approach. First, it could be enacted quickly, before the Court inflicted further damage on the New Deal program. Second, with 331 Democrats in the House and 76 in the Senate, the president could absorb the defections of 113 representatives and 25 senators from his own party and still win majorities in both chambers. Considering that most congressional Democrats had just
ridden Roosevelt’s electoral bandwagon into Washington, the prospect of substantial defections on this issue was virtually unthinkable.

  The “judicial reorganization bill,” as Roosevelt dubbed his court-packing plan, was hammered out and polished during January 1937. The final version authorized the president to nominate up to fifty new federal judges, one for each sitting judge who failed to resign or retire within six months of his seventieth birthday. No more than two judges could be added to each circuit court, or six justices to the Supreme Court. The number six had not been picked from a hat; there were currently six justices over the age of seventy. Attorney General Cummings supervised the bill’s drafting and secured the President’s approval on January 30.

  Roosevelt hosted his annual White House dinner for the federal judiciary on February 3. All the Supreme Court justices attended except Brandeis, who rarely ventured from his apartment, and Stone, who had been ill with amebic dysentery since October. The other guests included Senator Williams Borah of Idaho, who had warned the president the day before in a Senate speech to keep his hands off the Court. But at this festive dinner, Roosevelt chatted warmly with Borah and even with Justice Van Devanter.

  Two days later, on the morning of February 5, the president summoned the Democratic leaders of Congress, including the men who chaired the House and Senate Judiciary Committees, to a White House meeting. Briskly and without introduction, Roosevelt began reading the message he would send to Congress at noon. It took him an hour to complete his reading, after which he made just one request of the powerful men who sat around the cabinet table. “If we can pass the legislation,” he said of his bill, “the whole country will move forward.” With that, Roosevelt returned to his office to meet with reporters who had been told only that the president had a “confidential” message for the press. When they gathered around his desk, Roosevelt read his message again and then answered a few questions. One reporter asked about the reaction from congressional leaders at the earlier meeting. “As soon as I finished I came in here,” Roosevelt responded. “There was no discussion.”