Supreme Court 1934-1938

Introduction

When Franklin Delano Roosevelt (served 1933–1945) took office on March 4, 1933, he faced a formidable task in trying to lead the nation to economic recovery from the Great Depression. Almost 25 percent of the U.S. workforce was jobless, amounting to over 12 million people. He also faced a conservative federal judiciary predominantly appointed by the past three Republican presidents. Particularly at the district court level, judges were hostile to the New Deal, a wide spectrum of federal social and economic programs created by Roosevelt to fight the Depression. Most of the 140 judges of the federal district courts were Republicans; they had been largely drawn from small town practice, and shared a nineteenth century view of law and economics. The typical judge was over 60 and had completed law school by the late 1890s. Judges on the next higher federal court level, the Court of Appeals, were slightly older, somewhat more cosmopolitan, but almost equally as partisan, which is favoring one particular political party over another.

On the highest tribunal seven members of the Supreme Court owed their appointments to Republican presidents and three had been active politicians before sitting on the bench. But the Court, under Chief Justice Charles Evans Hughes was not immovable on all issues. Past decisions often demonstrated that this Court was divided into three voting blocs. On the far right were four justices—Willis Van Devanter, James C. McReynolds, George Sutherland, and the most consistently conservative, Pierce Butler, who came to be referred to as the "Four Horsemen of Reaction." The Court's liberal wing was made up of three justices—Louis D. Brandeis, Benjamin Cardozo, and Harlan Fiske Stone. In the center sat Chief Justice Hughes and Justice Owen Roberts, who both represented the swing votes necessary for any majority of justices in making a ruling. Of course their partisan ideas varied to some degree from case to case. McReynolds could be a strong advocate of individual liberties in some situations while Stone showed conservative elements in many of his decisions. Nevertheless, as the New Deal progressed, these alignments on the Supreme Court became more pronounced.

After seeing Supreme Court decisions in 1934 seemingly supportive of state laws regulating business to relieve economic hardships of the Great Depression, the New Dealers had hopes the Court would also similarly support New Deal laws when they were challenged by business and others. Those hopes, however, were soon dashed as the Court threw out major New Deal programs in 1935 and 1936, including the regulation of industry under the National Industrial Recovery Act and the regulation of agriculture under the Agricultural Adjustment Act. Such decisions infuriated President Roosevelt and the public as well.

Chronology:

March 5, 1934:

In a close vote, the U.S. Supreme Court rules in Nebbia v. New York that states can regulate the prices of products when it is for the public good and it can be shown to be fair and reasonable.

June 8, 1934:

In another close vote the Supreme Court rules in Home Building and Loan Corporation v. Blaisdell that the governments can regulate business in times of extraordinary national conditions such as the Great Depression; this decision gives the New Dealers hope for future favorable rulings on federal New Deal laws.

January 7, 1935:

The Supreme Court rules in Panama Refining Company v. Ryan that the federal government cannot regulate petroleum shipments under authority of the National Industrial Recovery Act (NIRA); it is the first adverse Supreme Court ruling for the New Deal.

May 6, 1935:

The Supreme Court ruling in Railroad Retirement Board et al. v. Alton Railroad Company et al. highlights the Court's narrow interpretation of the federal government's authority to regulate commerce, a bad omen to the New Deal.

May 27, 1935:

In a set of three decisions, including Schechter Poultry Corporation v. United States, in which the Supreme Court determines that the NIRA is unconstitutional, the New Deal suffers a severe legal setback; the day becomes known as "Black Monday."

January 6, 1936:

The Supreme Court rules in United States v. Butler that the Agricultural Adjustment Act is unconstitutional dealing another major blow to New Deal programs.

February 5, 1937:

President Roosevelt sends a lengthy message to Congress proposing reorganization of the judicial branch of government, including expanding the size of the Supreme Court.

March 9, 1937:

In the face of strong public and congressional criticism of his proposed judicial reorganization plan, President Roosevelt goes on the radio with a "fireside chat" to answer his critics.

March 29, 1937:

Giving an indication of a change in direction more favorable to the New Deal, the Supreme Court upholds the right of government to regulate business in West Coast Hotel v. Parrish.

April 12, 1937:

In a major victory for the New Deal, the Supreme Court rules in National Labor Relations Board v. Jones & Laughlin Steel Corporation that the National Labor Relations Act is constitutionally valid and workers have a right to organize into unions.

Emboldened by the landslide reelection victory in November 1936, Roosevelt unveiled a daring plan in January 1937 to reorganize the Supreme Court in retribution for its rulings against his programs. The attack proved highly unpopular with the public and Congress triggering a substantial decline in the support of New Deal programs. The president's attacks on the Court substantially diminished public support for additional New Deal programs. The threats of change and the public pressure, however, did lead to more favorable Court rulings concerning other already existing key New Deal programs, such as the National Labor Relations Act and the Social Security Act.

Issue Summary

Some Early Decisions of the 1930s

Response to the Great Depression led to a host of both state and national plans to deal with the economic crisis. The problem for legal draftsmen was determining under what authority a state or the federal government could impose economic regulations. Social and economic theories of the nineteenth century were still very much alive on the bench. Courts were very willing to invalidate laws on theories of laissez-faire, which is free market capitalism using the substantive due process clause of the Constitution. Substantive due process means judging a law based on its subject matter rather than simply determining if the government had legal authority in that particular area. The Supreme Court's willingness to decide a major case on substantive due process grounds in order to protect "entrepreneurial liberty" occurred as late as 1932.

In New State Ice Co. v. Liebmann (1932) the Court reviewed a 1925 Oklahoma law that declared the manufacture and sale of ice a public business and prohibited the granting of new licenses to sell ice except where a community could show a definite need. The practical effect of the legislation was to shut out new ice businesses and as a result create a monopoly for the existing businesses. But the act was also an attempt to deal with "destructive competition" in an industry that was affected by falling prices. Concluding that the Oklahoma law unreasonably hindered the common right to engage in a lawful business, Justice George Sutherland, in writing for the six to two majority (Justice Cardozo did not participate), concluded that the statute violated the due process clause of the Fourteenth Amendment. Anticipating the division on the Court for the next several years, Justice Brandeis wrote a lengthy dissent in which he argued that this was indeed an appropriate matter for legislatures to regulate. Federal and state governments must have the power, Brandeis argued, to try different economic practices to meet society's changing social and economic needs.

The first nationally significant case that revealed the sharp divisions on the Supreme Court over issues related to the economic Depression involved the review of a critical state law passed during the worst year of the Depression. In Home Building and Loan Association v. Blaisdell, (1934), the Supreme Court ruled on the constitutionality of a 1933 Minnesota Mortgage Moratorium Law. The act authorized the Minnesota state courts to consider exempting property from foreclosure during the economic emergency but not beyond May 1, 1935. The case arose when Mr. and Mrs. John H. Blaisdell received a mortgage on a house and lot from the Home Building and Loan Association. Facing financial problems owing to the Depression, the Blaisdells sought to extend their mortgage period and avoid foreclosure through the Minnesota statute. The Loan Association challenged the moratorium (temporary suspension of an action) but a Minnesota district court sided with the Blaisdells and the Minnesota Supreme Court affirmed the ruling. The Loan Association then appealed to the United States Supreme Court. The Association argued that the Minnesota law violated several provisions of the Constitution, including the Contract Clause in Article I, section 10. The Loan Association argued that the language of the clause, "No State shall enter into any…Law impairing the Obligation of Contracts…" prohibited the state from modifying the contractual agreement between the Blaisdells and the Loan Association. In a vote of five to four Chief Justice Charles Evans Hughes and Justice Owen Roberts joined with the three liberals, Justices Cardozo, Stone, and Brandeis, in upholding the Minnesota statute. It turned out to be the most important case interpreting the contract clause in the twentieth century. Government could pass laws affecting existing private contracts.

Hughes acknowledged in the case that the Contract Clause is a safeguard against state restrictions on private contracts but that it was not an absolute ban. The majority's argument was based on two points. First, the state reserved the power under extraordinary conditions to protect the public interest and that may include temporary relief from the enforcement of contracts. Second, the national economic crisis, the Great Depression, constituted just such an emergency.

Writing for the four conservative dissenters, Justice Sutherland refused to acknowledge that emergencies could justify state governments modifying private contracts. He predicted that by the Court allowing the Minnesota law to stand, it would lead to greater invasions against the sanctity of contracts. Although the split on the Court did not bode well for future review of federal legislation, the New Dealers were at least hopeful that they might have a majority who agreed with Chief Justice Hughes' reasoning in favor of the legislation.

A third important case from this early 1930s period involving state economic regulation, Nebbia v. New York, was decided on March 5, 1934. As in Blaisdell the case involved emergency legislation passed by New York Assembly for the purpose of easing the economic hardship brought on by the Depression. In 1933 New York passed legislation to create a Milk Control Board with power to fix minimum and maximum retail prices of milk. The reason the Milk Board was created was because in 1932 the prices received by farmers for milk was so much below the cost of production that dairy farmers were going out of business. Moreover the decline of prices for milk was much greater than the decline of prices generally. Various remedies were suggested including setting minimum prices for cream and milk and imposing taxes on milk dealers that would equalize the cost of milk and cream to all dealers. The taxes would largely remove the cause of price cutting.

When Leo Nebbia, a grocer in Rochester, New York decided he was going to sell a quart of milk for more than the fixed maximum price, the Milk Board fined him. At his trial Nebbia asserted that the statute violated the equal protection and due process clauses of the Fourteenth Amendment. Equal protection refers to a constitutional guarantee that no one can be denied the same protection of the laws as other people in similar circumstances. When the case finally made its way to the Supreme Court, the five to four split upholding the New York law was exactly the same as what occurred in Blaisdell.

In the majority opinion Justice Owen Roberts concluded that a state may regulate business in any of its aspects including the prices to be charged for its products. Roberts maintained that due process did not prohibit government regulation for the public welfare but only demanded that it be accomplished fairly and not unreasonably. The four dissenters relied on half a century of substantive due process jurisprudence (history of case law) in concluding that the Fourteenth Amendment gave the Supreme Court license to strike down economic legislation they believed unreasonable. Again the decision was a close split and New Dealers watched the Court with some ambivalence as they wondered how it would rule on similar efforts by the federal government to regulate and manage the economy.

The two swing votes on the Supreme Court were Chief Justice Hughes and Justice Owen Roberts. They occupied a middle ground, although a largely conservative one, between the reactionary "Four Horsemen" and the three liberals. The New Dealers hoped that Hughes and Roberts might be as receptive to the expansion of federal power to combat the Great Depression as they seemed to be in cases involving state economic regulation. This hope was soon dashed, however, as the Court struck down one New Deal measure after another. New Deal legislation had been increasingly challenged in the lower federal courts (district courts and courts of appeals) by 1934. The assault from the highest court began in earnest in 1935 as the cases made their way up through the appeals process.

Conflict With Court Develops

The first major Supreme Court decision invalidating (determining unconstitutional) a New Deal program came on January 7, 1935, in Panama Refining Co. v. Ryan. The case involved the regulation of petroleum shipments under section 9(c) of the National Industrial Recovery Act (NIRA). The NIRA was a major New Deal economic recovery law passed by Congress in June 1933 creating the National Recovery Administration (NRA). The NRA organized hundreds of boards to regulate individual industries. Section 9(c) gave the president authority to regulate petroleum shipments and Roosevelt through the NRA established the Petroleum Administrative Board to administer the petroleum code. Through the board, executive orders were issued prohibiting the shipment of "hot oil" (oil exceeding previously set production limits) across state lines. The board was trying to control surpluses of oil. During the early 1930s oil prices collapsed as a result of both industry overproduction and consumer underconsumption due to the economic downturn. The oil-producing states, unable to limit production on their own, demanded congressional controls. The result was the "hot oil" provision of the NIRA that attempted to regulate oil production.

An employee of the Panama Refining Company was arrested and jailed for violating the rule set by the board. The company challenged not only the jailing of their employee but also challenged the regulatory authority of the Petroleum Administration Board. They argued that the executive orders made no mention of criminal liability, and the case made its way to the U.S. Supreme Court.

In a complete surprise to the New Dealers, Chief Justice Hughes not only struck down the criminal penalty provisions, but he held that the entire board was unconstitutional on the grounds that Congress, in passing the NIRA, had delegated essentially legislative power to the executive branch. The ruling based on the separation of powers doctrine was unanticipated by the Roosevelt administration. Separation of powers is a fundamental principle of the Constitution in which each of the three branches of government—executive, legislative, and judicial—are given specific unique powers that cannot be legally transferred from one to another.

Until the Panama Refining case the Supreme Court had never held that Congress had violated this principle by delegating its power to the executive. In previous cases the Court had simply insisted that Congress set standards to guide administrative decisions. The justices would typically accept general guidelines as meeting the requirement. Eight of the nine justices formed the majority in the Panama Refining case making it a decisive ruling. Hughes held that the statute established absolutely no criteria to govern the president's decisions and that Congress had not set a policy regarding the transportation of "hot oil."

Only Justice Cardozo dissented (formally disagreed with the decision) arguing that congressional intention to control the production of "hot oil" was obvious from the statute, and delegations of a similar nature had not encountered a judicial ban in the past. The statute, moreover, according to Cardozo, was designed to meet a "national disaster" in the form of the Great Depression that presented issues only the executive could deal with effectively on a dayto-day basis.

Congress responded to the Court decision by passing the Connally Act in February. The act prohibited the interstate shipment of "hot oil" altogether and authorized the President to lift the ban if prices recovered. The large majority on the Court striking down the provision, however, was a bad omen for the future of the National Recovery Administration (NRA).

The Court ruled again a month later in a series of cases collectively referred to as the "Gold Clause Cases." All four cases had been argued in January and were decided on February 18, 1935, and all essentially dealt with the same issue. As part of the New Deal program to conserve the nation's gold reserves, Congress banned clauses in private and public contracts that required payments must be made in gold. Instead Congress required that they be paid in currency. In all of these cases, parties challenged this action as a breach of their contract obligations and the taking of property without due process under the Constitution. Due process is the right of an accused party to a formal hearing.

In one case for example the petitioner, or suing party, was required to give back $10,000 in gold certificates in exchange for currency. He claimed there was a difference between the value of the gold certificates and the currency he received in exchange because of the struggling economy in the Great Depression. Speaking for the majority, Chief Justice Hughes sustained the authority of Congress to regulate the nation's monetary system. He asserted that the gold clauses in private contracts were merely provisions for payment in certain forms of money. Congress could override such clauses in private contracts that conflicted with its national authority to manage the nation's monetary system. In effect the Supreme Court permitted Congress to restrict existing private contracts. The Gold Clause Cases, however, only reaffirmed congressional power over monetary policy not in other business matters. Nevertheless Justice McReynolds led a heated and dramatic dissent joined by Sutherland, Butler, and Van Devanter in which he described the "slippery slope" toward congressional confiscation of private property leading to financial ruin. Any doubt by Roosevelt about how the conservative faction on the Court would review later cases involving New Deal programs had been erased.

On May 6, 1935, the Supreme Court handed down another five to four decision that sent shockwaves through the White House and New Deal agencies. It came on a relatively minor piece of legislation, the Railroad Retirement Act (commonly called the "Pension Act") that Congress passed in June 1934. The law provided a retirement and pension plan for all employers of carriers regulated by the Interstate Commerce Act. Contributions were required of all such carriers and their employees at two percent of their wages to create a retirement fund and pension. The pension would be provided for both current and future employees and also included those who had worked for a railroad a year before the law passed. It was not, however, considered part of the New Deal legislation. Roosevelt, in fact, was initially reluctant to sign the bill into law. The bill was hastily drafted and did not anticipate the costs to the railroads over time. The success of the bill had been the result of the powerful railway unions, or "brotherhoods," and the able piloting of the measure through the Senate by Robert Wagner of New York and through the House by Robert Crosser of Ohio.

Roosevelt was likely not too surprised when 134 railway companies and the Pullman Company filed suit in the District of Columbia in October 1934. The Supreme Court of the District of Columbia invalidated the act and issued an injunction restraining the Railroad Retirement Board from collecting the money for the pensions. The Supreme Court took the case before it could go to the Court of Appeals. What made the administration nervous was the close resemblance the law bore to a pending Social Security bill in Congress in which the White House did have a very large political investment. Most felt that the combination of Hughes, Roberts, Brandeis, Cardozo, and Stone, however, would overturn the ruling of the district court and let the law stand.

The administration miscalculated the votes on the Court, however, with Roberts siding with the "Four Horsemen" in upholding the decision by the District Court, ultimately striking down the law. It was a vote of five to four against the law. Writing for the majority Justice Owen Roberts wrote that the law was both a violation of due process and not the proper exercise of congressional regulatory power over interstate commerce. First, there had been no contractual agreement as to pensions during the period of employment. As a result railway workers had contributed nothing toward the cost of the newly granted pensions. The Court found that requiring the railroads to pay pensions for former employees who had not contributed violated the due process clause of the Fifth Amendment since it was taking the property of the carriers and giving it to the employees. This aspect of the decision was somewhat expected and largely the result of a poorly drafted law. The majority, however, also found that the Retirement Board was not a proper regulation of interstate commerce. In its brief the government argued that the act promoted safety and efficiency by increasing worker morale. This argument relating to the social welfare of the workers was not persuasive and the Court struck down the law.

Although Chief Justice Hughes agreed deficiencies existed in the act, he felt that the majority placed too narrow of an interpretation of the authority of Congress to regulate interstate commerce and he wrote the dissenting opinion. Even though he had not supported the bill initially, Roosevelt understood the peril of the Court's decision. If Justice Roberts continued to think along these lines on national welfare measures, the New Deal would be in serious trouble. As events would soon reveal, Railroad Retirement Board was an indicator of decisions to come.

Black Monday for the New Deal

Despite clues coming from the earlier Court decisions of the previous year, nothing could have fully braced the administration for the Supreme Court's announcement on May 27, 1935. The decision would soon acquire the label of "Black Monday." The Court in three unanimous decisions held that the president's removal of an administrator from the Federal Trade Commission was illegal; that the Frazier Lemke Farm Bankruptcy Act of 1934 was invalid; and most significantly, the National Industrial Recovery Act as unconstitutional. It was the most comprehensive judicial assault on the New Deal yet.

When the Court convened the previous Monday, with an overflow audience in its chamber, it became immediately apparent that the day would bring disaster for the New Deal and the Roosevelt administration. Justice Sutherland began by reading a unanimous opinion that the president had exceeded his authority over an independent regulatory agency by removing its director. In deciding Humphrey's Executor v. United States Justice Sutherland stated that a president may only remove a commissioner of an independent regulatory agency for cause (a result of inappropriate behavior). Otherwise an arbitrary removal violates the separation of powers doctrine. The case involved the removal of a conservative member of the Federal Trade Commission, William E. Humphrey, by President Roosevelt. A Republican, Humphrey was a member of Congress between 1903 and 1917 from Washington State. In 1924 he was campaign manager for Calvin Coolidge's (served 1923–1929) successful presidential bid. Humphrey had long been a bitter opponent of the Federal Trade Commission's investigations of the timber industry in the early 1920s. Coolidge appointed him to a six-year term as commissioner in 1925 with the hope that he would remake the agency into a pro-business organization. Humphrey dominated the Federal Trade Commission, transforming it from a progressive agency working to guarantee free competition into a business-dominated body.

In 1931 President Herbert Hoover (served 1929–1933) appointed him for another six-year term. Roosevelt, however, considered Humphrey to be a hopeless reactionary and fired him in 1933 shortly after taking office. Humphrey brought suit, and although he died in 1934, his estate would carry the case all the way to the Supreme Court. The Court's opinion in the case was clearly viewed by the administration as hampering the New Deal economic program. They claimed that the Court ignored that a commissioner of the Federal Trade Commission is a member of the executive branch. It was a minor ruling compared to the other two that day but Roosevelt was personally angered by the implication of the Court that he had attempted to undermine the U.S. Constitution.

The next decision was read by Justice Brandeis who again spoke for a unanimous Court in Louisville Joint Stock Bank v. Radford. This decision invalidated the Frazier-Lemke Act, which was passed by Congress to protect bankrupt farmers from loss of their farms. It provided several alternatives to bankruptcy of the mortgaged property such as allowing a bankrupt farmer to retain his land for five years. During this period of time the farmer could try to satisfy his debt obligations. In 1933 William W. Radford, a farmer in Kentucky who had twice mortgaged his farm with the Louisville Joint Stock Land Bank, defaulted on his payments. Radford failed to negotiate any agreements on his debts and the state court entered a judgment against him to foreclose his farm. Relying on the newly passed Frazier-Lemke Act a federal district court overruled the judgment and ordered the bank to comply. The bank, however, refused to cooperate with a receiver appointed by the district court in accordance with the act. The case was appealed and affirmed in favor of Radford by the Sixth Circuit Court of Appeals in February 1935. When the bank appealed to the Supreme Court Justice Brandeis wrote the opinion striking down the law. The Court concluded that the bank had been deprived of its property without just compensation. The law was therefore in violation of the Fifth Amendment. Congress later made changes to the law in the Farm Mortgage Moratorium Act of 1935.

For the third opinion of that day Chief Justice Hughes read the decision in Schechter Poultry Corporation v. United States. This was the decision the administration was dreading. In it the Supreme Court reviewed the constitutionality of the National Industrial Recovery Act (NIRA) of 1933, the Roosevelt administration's first and most important recovery program. The statute was wide ranging but its principle reliance was upon codes of fair competition approved by the president after development by a trade or industry committee. Violations of the codes were a misdemeanor punishable by a fine.

The "Live Poultry Code," the code at issue in the Schechter case, was approved by President Roosevelt on April 13, 1934. It established a 40-hour workweek in the industry, prohibited certain practices of unfair competition, established a 50 cents per hour minimum wage for poultry workers, and required the submission of weekly reports reflecting the volume of sales. The poultry code had been successful in raising wages and banning unfair practices in the industry but there remained the problem of enforcement. Based on earlier Court decisions, the Justice Department recognized from the outset of the case that the constitutionality of the regulatory scheme administered by the National Recovery Administration (NRA) would be difficult to establish before the Supreme Court.

Considerable effort was made by opponents of the NIRA to find an appropriate "test case" but none was found. Instead a case arose from a relatively minor series of violations by a Brooklyn slaughterhouse, the ALA Schechter Poultry Corporation, and the Schechter Live Poultry Market for violating wage and hour provisions of their industry's code and for selling "unfit chickens." The Schechter brothers who ran the two businesses were indicted and found guilty on eighteen counts of violations in the District Court of New York, while the Circuit Court of Appeals upheld sixteen counts. On the other two counts, those involving the wages and hours provisions, the Court of Appeals reversed the District Court decisions. The Appeals Court ruled that such matters were beyond the regulatory authority of Congress. Both the Schechters and the government appealed the decision to the Supreme Court. The case was argued on May 2 and 3, 1935.

After reviewing the facts of the case in his resounding and dignified voice, Hughes then paused, looked up, and said with a calm voice that the defendants were not involved in interstate commerce. Donald Richberg, the government attorney who argued the case, and who had also been a counsel in the NRA, literally slumped in his chair. Hughes had pronounced the death sentence of the agency.

The Court was unanimous in rejecting the government's case for the regulatory scheme. Writing for the majority, the Chief Justice quickly rebutted the government's argument that the national economic emergency justified the program by succinctly stating that difficult times do not change the Constitution. Hughes called the adoption of the codes by trades and their approval by the president a practice unsupported by law. First the statute had unconstitutionally delegated legislative power to the executive. Secondly the Chief Justice concluded that the poultry code involved regulation of local business transactions, not interstate commerce that is more properly subject of congressional regulation. The Chief Justice relied on the distinction between the "direct" and "indirect" effects on commerce that characterized commerce clause decisions at the time. Hughes asserted that the effects in the Schechter case were clearly "indirect" and not enough to warrant congressional regulation. By the end of the day, the NRA lay in ruins.

Roosevelt withheld public comment on the decisions for several days. Finally on Friday, May 31, two hundred reporters crowded into the White House auditorium to hear Roosevelt's statement on the Court decision. The President read excerpts from the letters and telegrams of citizens disgruntled with the Court's ruling. He compared the historical significance of the case to that of the Dred Scott decision. He then went on to say that the Court seemed to indicate that the U.S. government had no national economic problems. As to his view of the Schechter decision the President warned that the Court had an outdated interpretation of the Constitution's interstate commerce clause. At the time Roosevelt avoided any comment on plans to limit the power of the Supreme Court or to reform the Court through legislation. He was being reserved in his response because the second key component of the New Deal recovery program, the Agricultural Adjustment Administration (AAA), was soon to be reviewed.

The New Deal's AAA Falls

The next several months witnessed further onslaughts on the New Deal recovery program. The most devastating decision after Schechter occurred early in 1936. On January 6 in United States v. Butler the Supreme Court invalidated the Agricultural Adjustment Act by a vote of six to three. Under section 9 and 16 of the act, the federal government was authorized to pay benefits to farmers who agreed to reduce their crop acreage. Funds for the program came from a tax levied on the food processor of the commodity. Butler, a cotton processor, refused to pay the tax and went to federal district court. The court found the government's claim valid and upheld the tax. Butler then appealed to the First Circuit Court of Appeals, which reversed the order. Finally the government appealed and the Supreme Court took the case.

The case was argued in December 1935 and decided only a month later with the Supreme Court voting six to three and completely striking down the Agricultural Adjustment Act. Justice Roberts wrote the somewhat disordered opinion for the majority. In an extraordinary decision the majority invalidated the act on the argument that the regulation and control of agricultural production invaded the powers of the states reserved under the Tenth Amendment. Disagreeing with the decision Stone, joined by Brandeis and Cardozo, launched a scathing attack on the majority's ruling calling it a "tortured" interpretation of the Constitution. As in Schechter, the Butler decision aroused a storm of controversy from the public.

The final blow from the Court came on May 18, 1936, when they held in Carter v. Carter Coal Company that the Guffey-Snyder Bituminous Coal Act was also unconstitutional. The act was designed to bring some economic stability to the soft coal industry after the collapse of the NRA. The Guffey bill had guaranteed collective bargaining in the industry, provided uniform wages, and established a national commission to fix coal prices and control production. In many ways the act amounted to the bituminous coal code of the defunct NRA. Once again the Court's majority was six to three with Brandeis, Stone, and Cardozo in dissent. Sutherland's majority opinion held that the law's labor provisions violated the Tenth Amendment by having Congress intervene in state matters. He completely brushed aside the government's arguments concerning the direct effect of coal mining on the nation's economy. Chief Justice Hughes in a concurring opinion even suggested that if Americans wanted to give such power to Congress to regulate interstate commerce, then they should amend the Constitution. In dissent Cardozo attempted to argue that in a modern, industrial economy labor problems do affect interstate commerce, which was a sentiment that appeared to fall on deaf ears.

By now it appeared to most knowledgeable observers that the conservative bloc of justices were freely interjecting their own political views into opinions. When in June the Court overturned a New York minimum wage law for women in Morehead v. Tipaldo the Supreme Court appeared even more partisan. Justice Butler read the opinion for the majority asserting that no state legislation could violate the Fourteenth Amendment right of an employee and employer to bargain privately for their terms of employment. Again Justices Stone, Brandeis, and Cardozo were in dissent. Newspapers throughout the country attacked the decision and even the Republican platform of 1936 denounced it. The decision was eclipsed, however, by the landslide reelection victory of Roosevelt in November 1936. Secretly the president began planning his own assault on the Court.

Roosevelt Considers Actions

In November 1936 Roosevelt won the greatest electoral victory to date by capturing the electoral votes in all but 2 of the 48 states. The New Deal had been strongly supported though the ballot box. Roosevelt now felt it a key opportunity to direct his reaffirmed position of strength toward the Supreme Court. Of tremendous concern to New Dealers was the future of wage and hour provisions in the National Labor Relations Act, passed in July 1935, and the constitutionality of the Social Security Act, passed in August 1935. Both were the cornerstones of the Second New Deal. The prospect for these laws, given the recent history of the Court, was grim indeed. It was conceivable that at least one justice, either Hughes or Roberts, would switch allegiance and favor the New Deal legislation. The conservative faction on the Court, however, had become so arrogant by 1936 in its majority opinions that it seemed unlikely. What then, was the administration to do?

Several plans emerged. One was a constitutional amendment to broaden government powers in times of national emergency. The Justice Department had been studying the possibility since early 1935 but there was no agreement on a draft. The president's close advisor Felix Frankfurter opposed the idea and counseled the President not to pursue such a course. In the first place the amendment had to be drafted which had already proved to be difficult. Next it would have to be accepted by two-thirds of the Congress which might be possible given the recent election victories with the Democratic landslide. Finally it would have to run the gauntlet of ratification by the states. Three quarters of state legislatures would have to approve the amendment. This meant that an adverse vote in only 13 states would kill the amendment. Conservative wings of both the Democratic and Republican parties controlled many state legislatures. In addition Roosevelt did not have much faith in the integrity of several state assemblies.

Money to fight the amendment could be poured into any number of corrupt state legislatures. Both Secretary of the Interior Harold Ickes and counsel for the Reconstruction Finance Corporation Tommy Corcoran thought ratification was impractical. Even if it were possible it would take a long time, something the reformers in the administration believed the New Deal might not have. Besides there was already a childlabor amendment, in its thirteenth year, attempting to win ratification. Finally any amendment, even if passed and ratified, would still be subject to review by the Supreme Court. Eventually Roosevelt and Attorney General Homer Cummings were persuaded that an amendment would indeed be futile. A congressional statute was another possibility but seemed no more promising than an amendment before judicial review of the Court. A majority of justices could invalidate the law.

There was one other idea that had been bouncing around for some time, although in a different context. As early as 1934 judges from several districts, most notably from the Southern District of New York, had lobbied the president for an expansion of the judiciary. Judge William Denman of the Ninth Circuit had also encouraged the Chief Justice to reform and expand the federal court staff to meet the requirements of increasingly large dockets (backlogs of cases). Roosevelt was aware of the problem and discussed it with the Attorney General the night he returned to Washington after his electoral victory in November 1936. It was not until the end of December that an attorney in the Solicitor General's Office drafted a memo in which he outlined a plan to "pack" the Court by increasing the number of Supreme Court Justices. But there were many formidable objections outlined as well. The liberal justices could be antagonized by the assault on the Court to the point where they would retaliate by voting against the constitutionality of the legislation. More likely, however, was the possibility that a significant political backlash would occur. The Court after all was not viewed as a political body that could be staffed by partisan judges. Loading it with new members would appear to undermine its integrity as an autonomous judicial tribunal.

In a sort of test, President Roosevelt in a magazine interview in late 1936 suggested that the number of Justices might be increased by Congress to permit the appointment of men in spirit with the age. Surprisingly there was very little public reaction by the statement; in fact it seemed to go unnoticed. Known to only a handful of advisors in the Justice Department, Attorney General Cummings, Solicitor General Stanley Reed, and Donald Richberg had been drafting such a proposal in secret.

The draft of the bill was shown to the president for approval on January 30, 1937. The finishing touches were completed by the afternoon of February 4 and Roosevelt continued to insist on its secrecy. No advanced mention was made about any plan to address the Supreme Court issue in the upcoming State of the Union Address. But the administration did make some convenient leaks. Donald Richberg mentioned the possibility to a reporter at a cocktail party on January 20, and Roosevelt let the leader of the Congress of Industrial Organizations (CIO), John L. Lewis and the American Federation of Labor (AFL) Chair Charlton Ogburn in on the secret. In the meantime the Court was scheduled to hear arguments on the constitutionality of the National Labor Relations Act on Monday, February 8. Roosevelt wanted to submit the bill before then so that it would not be interpreted as a direct threat.

The President's Plan

On Friday, February 5, 1937, Roosevelt sent to Congress his plan for reorganizing the federal judiciary. Among his stated claims in making the proposal was that the federal docket was overcrowded. In one year for example the Supreme Court had denied 87 percent of petitions for hearings on appeal without citing reasons. The provisions included an increase in the membership of the Supreme Court from 9 to 15 justices if justices passed the age of 70 decided not to retire, adding 50 judges at all levels of the federal court system, and assigning more district judges in congested areas to improve the efficiency of the courts.

Despite a strong reaction against the proposal from the public and many in Congress, passage of the bill still looked promising. The forceful Joseph T. Robinson of Arkansas, chairman of the Senate Judiciary Committee, favored the proposal and confided to the president that he could supply the votes. Ardent backing came from Senators Hugo Black of Alabama and Sherman Minton of Indiana. The White House assessed that only 15 Democrats would absolutely not support the bill. In support of the bill Senator Robert J. Buckley of Ohio implored his colleagues to think carefully about the proposal and to realize that the Constitution is an instrument of government to be worked. That it was a document, flexible and responsive to the times. But the bill's opposition became greater than expected. Senators Carter Glass of Virginia and Josiah Bailey of North Carolina effectively defected from the New Deal in response to the court-packing scheme and the loss of Burton K. Wheeler spelled ultimate disaster. Many in Congress also took exception to the emphasis on the age of the Justices. It seemed obvious that Roosevelt wanted to pack the Court with liberal Justices of any age. By far however the dominant opposition came from moderates who feared that only the Court could protect civil liberties in the future and this would weaken their ability to do so. In the minds of most Senators and Congressmen, the Court was the last bulwark of protection against a future Congress or President who might exercise dictatorial power and strip citizens of the freedom of the press or speech. Such developments were occurring in Europe at that time.

Hearings began in the Senate Judiciary Committee in March 1937. At the urging of the Republican minority leader Charles McNary of Oregon, the Republicans kept quiet on the issue as much as possible so as not to give the Democrats cause to reunite. The president, meanwhile, continued to push his proposal at an address to the Democratic Victory Dinner in Washington, DC, and in a fireside chat. By the end of March it looked as if the administration might have a victory.

Labor Problems Capture the Public Attention

In the meantime other events unfolding in the winter of 1936–1937 did much to intensify concern over the Great Depression and the state of the country. On December 30, 1936, a great wave of sit-down strikes at General Motors began. In response to General Motors firing two workers, the entire seven thousand employees at the Fisher Body Plant No. 1 sat down on the job and refused to work. Within minutes Plant No. 2 followed them. Sit-downs soon spread to the other plants and for 40 days two thousand striking workers engaged in outright urban warfare, turning fire hoses on the police who in turn attacked them with tear gas. Eventually the police were driven back, but only after 13 workers were seriously injured. A nervous Governor Frank Murphy of Michigan had to call in the National Guard to quell the siege.

Sit-downs became a widely used tactic in other industries in 1937. In 1936 there were only 48 sit down strikes in various industries across the country. In 1937 after the wave of sit-downs in Flint, there were 10 times as many. Sit-down strikes paralyzed the automobile industry in Flint, Michigan, and the rubber industry in Akron, Ohio. Both were front-page news in every paper across the country. Many of the strikes in 1937 were violent. The most famous incident occurred on Memorial Day 1937 at the Republic Steel Plant in Chicago. Police fired upon a picket line killing 10 of the striking workers. It was a level of civil unrest not seen since the Civil War (1861–1865).

Another labor-related issue was also raising public concern. Beginning in 1936 a subcommittee of the Senate Committee on Education and Labor conducted the most extensive investigation of civil liberties infractions ever undertaken by Congress. It was authorized to investigate violations of the rights of free speech and assembly and undue interference with the right of labor to organize and bargain collectively. The committee focused on the Constitution's Bill of Rights and the National Labor Relation Act's guarantees of the right to organize and bargain, which relate directly to the First Amendment rights to freedom of speech and assembly. During 1936 the Civil Liberties Committee worked closely with the National Labor Relations Board (NLRB). Hearings had begun in April 1936 and though most of the revelations of the committee would come out after 1937, the findings released by late 1936 were shocking. Testimony was given about the extensive and lucrative business of labor espionage and strikebreaking. Revelations of spies in union leadership positions were rife. Corroborated and well-publicized incidents of violence were described such as the assassination of union leaders in the 1934 San Francisco Longshoremen strike by hired sharpshooters. The Committee also made a careful study of munitions sales. Between 1933 and 1937 Republic Steel, United States Steel, Bethlehem Steel, and Youngstown Sheet and Tube each purchased more tear gas, gas guns, and gas canisters than any law enforcement agency in the country. Republic Steel's arsenal included hundreds of revolvers, rifles, shotguns, and gas guns, thousands of gas grenades, and numerous nightsticks and gas revolvers. When newspapers and magazines referred to the prospects of an imminent "industrial war," they meant it quite literally.

The Court's Change in Direction

Of central concern to activists in the labor struggle occurring all over the country was whether workers had the right to bargain collectively as guaranteed in the Labor Relations Act. Only four days after Roosevelt's announcement of the court-packing plan, the Supreme Court began hearing arguments in a case challenging the validity of the act.

The National Labor Relations Board (NLRB) had charged Jones & Laughlin Steel Corporation with unfair labor practices in violation of the National Labor Relations Act. The corporation was accused of discriminating against union members in its hiring and tenure (job security) policies, of using intimidation to discourage union membership, and firing employees who were active in union affairs. Jones & Laughlin insisted that employees were discharged for reasons other than union membership. But counsel for Jones & Laughlin challenged the constitutionality of the NLRB and moved for a dismissal of the case. When the NLRB denied the motion, the counsel for Jones & Laughlin walked out. The NLRB investigated further and sustained the charges. In accordance with its authority granted by the National Labor Relations Act, it ordered the corporation to stop its intimidation of union members, to reinstate the discharged employees, and to post notices for 30 days that the company would not discriminate against union workers. Again Jones & Laughlin refused to comply and the NLRB petitioned the Fifth Circuit Court of Appeals to enforce the order. The Fifth Circuit denied the petition, however, holding that it was beyond the scope of federal power to appeal the case. The United States then appealed to the Supreme Court.

At issue was whether Congress had authority under the Commerce Clause to enforce those provisions of the Labor Relations Act that guaranteed the right to bargain collectively and if it also had authority to compel employers to recognize unions. Solicitor General Stanley Reed presented the government's arguments, providing substantial testimony from labor experts and economists that labor unrest had a significant impact on interstate commerce. The crux of Reed's position was that the act applied only to industry involved in interstate commerce and to businesses in which labor disputes would affect interstate commerce. In addition the NLRB decisions did not undermine the separation of powers doctrine, Reed contended. Though the Board is an administrative agency, any appeal of the NLRB's decisions goes directly to the Court of Appeals, not the lower District Courts. At 4:08 PM on February 11, 1937, the Justices left the Courtroom to convene in their private chambers and the fate of the National Labor Relations Act was entirely in their hands.

On March 29, 1937, the Supreme Court was scheduled to read its decision in the Jones & Laughlin case. The Court's ruling would determine not only the future of collective bargaining under the National Labor Relations Act, but also the future of industrial relations in the country. The decision could potentially bring an end to the New Deal but it could also potentially destroy the authority of the Supreme Court by adverse public reaction. There was little doubt that whatever the Court concluded, the decision would be a turning point in history. The Court, however, had a surprise up its sleeve and to the amazement of everyone, Chief Justice Hughes announced to a packed room that he would not be reading the decision in Jones & Laughlin that day. He then proceeded to read the opinion of an entirely different case, West Coast Hotel v. Parrish that involved a Washington State minimum wage statute almost identical to that of New York v. Tipaldo decided a year before.

The Washington statute set a minimum number of work hours for women and minors. It also established an Industrial Welfare Commission to set standards for wages and work conditions. The case was first brought forth by Elsie Parrish, a hotel maid who lived in Wenatchee, Washington. She decided to sue the Cascadian Hotel, the leading hotel in town, for back pay. She asked for $216.19, the difference between what she had been paid and what she should have been paid under the State's minimum wage mandated for her occupation. The trial court ruled that the law was unconstitutional because it violated the liberty of contract principle read into the Fourteenth Amendment. The Supreme Court of Washington, however, took a different view on appeal and on April 2, 1936, overturned the lower court's opinion. Only eight weeks later, it would be before the Supreme Court of the United States.

In one of the most dramatic reversals of past precedent in the history of the Court, the majority upheld the Washington law. Chief Justice Hughes and Justice Roberts sided with the liberal bloc with the Four Horsemen now in the minority. Chief Justice Hughes concluded that while the Constitution protects liberty of contract, it is subject to reasonable regulation in the interest of the community. State power to restrict freedom of contract was especially relevant in protecting vulnerable workers against abuses of unconscionable employers who paid less than a living wage. Most importantly Hughes acknowledged that though the wisdom of the law was debatable, it was a matter for the legislature not the courts. Despite the predictable dissent by Sutherland, McReynolds, Van Devanter, and Butler, the decision was a watershed. The majority of the Court established a position of support the States and legislature and explicitly overruled the earlier New York v. Tipaldo. Justice Roberts provided the fifth and most crucial vote in the decision. There has been much speculation as to whether the switch of Hughes and Roberts was genuine or the result of pressure on the Supreme Court.

On April 12 the Court finally read its decision in National Labor Relations Board v. Jones & Laughlin Steel Corporation. Chief Justice Hughes, writing for the majority, immediately announced that the Court had upheld the constitutional validity of the Labor Relations Act. After reviewing the major provisions of the act, Hughes discussed the complex and extensive operations of the Jones & Laughlin Steel Corporation. It left no doubt that the corporation was involved in interstate commerce on a massive scale. He concluded the following things: the act was within congressional authority; that employees had a fundamental right to organize and select representatives for collective bargaining; and, that the effect of labor strife on interstate commerce would be direct and catastrophic. In dissent the Four Horseman called for invalidation of the National Labor Relations Act on grounds that the production enterprises in manufacturing were local in nature and only affected interstate commerce indirectly. Sutherland, Butler, Van Devanter, and McReynolds, however, were no longer in the position they had been only a year before. The Court would no longer veto the federal government's attempts to regulate the economy. Jones & Laughlin became one of the most important Supreme Court decisions of the twentieth century.

The Court Battle Ends

It was a decision that heralded a turning point for the Supreme Court and in doing so it also removed the principle reason for Roosevelt's court-packing plan. In addition on May 18 Justice Van Devanter announced that he would resign from the bench. The "conversion" of Roberts had given Roosevelt a five to four majority. Soon it would be six to three with a new appointment to replace Van Devanter. Privately Roosevelt was urged to call off the fight by Senate Democrats. Before the end of May, Roosevelt's lieutenants in Congress had also concluded that they no longer had enough votes. Five unofficial polls in the Senate came out with the same result—defeat. When the Senate Judiciary Committee announced its conclusion of the bill, the language was less than complimentary. The report described the proposal both as an effort to punish the Justices, whose decisions were resented and a measure that would create a dangerous precedent in undermining the entire system of checks and balances. A new Gallup survey showed that support for judicial reform was only at about 41 percent. It now appeared Roosevelt was facing the largest legislative defeat of his presidency. All was not yet lost, though, nor was Roosevelt about to give up the fight. On June 16 the President announced that all the Democratic Congressmen were invited to spend three days with him picnicking on an Island in Chesapeake Bay. The foes of the President who had painted him as a man consumed with revenge instead found a merry host who radiated geniality and warmth. The Roosevelt charm worked its magic and the president was able to clinch a few votes needed to consider a compromise on the Court plan.

Meanwhile, Senator Joe Robinson, the Senate majority leader, was assembling a coalition that would support the bill and the debate would open in July. Robinson hoped that, although he could not predict how several in his own ranks would vote, he might prevail if he could turn the debate into an endurance contest. But secretly Robinson knew he did not have enough votes. His plan was therefore to browbeat the Democratic Senators into submission by warning of the political price his colleagues would likely pay for defying the popular president. On the opening day of the debate, Robinson charged around the floor and bellowed for two hours about the importance of passing the bill and at times his face would turn purple with anger. When the opposition Senators began peppering him with questions, he grew louder and angrier. Then suddenly, he stopped, took a match out of his pocket and struck it to light a cigar. His colleagues were stunned. One did not smoke in the Senate and for a brief moment Robinson appeared bewildered. Then he told the assembly that there would be no more questions and abruptly left the chamber. For the next several days, lawmakers had a difficult time enduring the July heat and Robinson especially looked exhausted. Then on July 14, a week after the debate had begun, Senator Joe Robinson of Arkansas died.

Robinson's death had a marked effect on the Senate. Whatever momentum the court-packing bill had gathered under his stewardship was now lost. On July 22 Senator Marvel Logan of Kentucky moved that the bill be sent back to committee. The motion passed by a vote of 70 to 20 where the bill died in the Senate Judiciary Committee. A compromise measure was passed on August 26 reforming some lower court procedures. It did not, however, touch upon the appointment of judges in the federal court system. Roosevelt's fight to pack the Supreme Court was at an end.

In many ways the court battle marked the beginning of the end of the New Deal. Although the Supreme Court no longer overturned New Deal legislation, Roosevelt would never again enjoy the political dominance on Capitol Hill that he had at the beginning of 1937. The battle created a rallying point around which his political opposition came together. The court struggle squandered the electoral advantage of the major Democratic election victories of 1936. The court battle also produced divisions in the Democratic Party that ultimately weakened the administration's reform program.

Contributing Forces

State Powers Versus Federal Powers

A predominant judicial philosophy of constitutional interpretation arose out of the nineteenth century. Prior to the 1930s the courts consistently sought to preserve certain rights for the states under an interpretation of the Tenth Amendment. The amendment specifies "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Tenth Amendment jurisprudence developed during the nineteenth century in such a way as to limit the influence of the federal government over the states.

In 1875 for example a federal Civil Rights Act was declared unconstitutional on the grounds that it was contrary to the Tenth Amendment. But almost directly in conflict with the Tenth Amendment interpretations that developed during the latter half of the nineteenth century was the interpretation of the Constitution's Commerce Power that developed in the early twentieth century. Article I, section 3 of the Constitution gave Congress power "to regulate Commerce with foreign nations, among the several States, and with Indian Tribes." This power to regulate interstate commerce was not often in conflict with the Tenth Amendment during the nineteenth century. Most of the cases involved railroads and the question as to what point and to what extent states could regulate rates on interstate lines. Courts did their best to apply an interpretation laid out in an 1852 case in which the Supreme Court adopted a rule of "selective exclusiveness" which means that when a commerce issue requires a national uniform rule, only Congress can regulate it. If the commerce is of a local nature, only states can regulate it.

It was inevitable that interpretation of the federal government's power to regulate interstate commerce would change in the late nineteenth century as the economy became more industrialized and complex. In a series of cases between 1887 and 1914 the Court upheld the authority of the Interstate Commerce Commission (ICC) to oversee rates on interstate railroads. In the Shreveport Rates Cases (1914), the Supreme Court even upheld the ICC's authority to regulate rates on carriers that were strictly within a state. In 1905 the Supreme Court was finally forced to develop a new doctrine with which to analyze the Commerce Clause. In Swift & Co. v. United States (1905), the Court unanimously agreed that a price-fixing arrangement among meatpackers, although done locally, did restrain interstate commerce. Justice Oliver Wendell Holmes formulated the "stream of commerce" theory, specifying that Congress could regulate the local business that affected interstate commerce so long as the business actions had not been simply accidental. Through the first two decades of the twentieth century, the Court increasingly relied on this doctrine to uphold an increasing number of national regulatory measures over business.

Still the courts frequently ruled that federal regulatory programs violated the Tenth Amendment. In 1903 for example the Supreme Court upheld a congressional act forbidding the shipment of interstate lottery tickets in Champion v. Ames (1903). The most obvious purpose of the act was to regulate interstate commerce but it secondarily intruded upon an area of regulation, gambling, which had always been within the exclusive domain of the States. In fact the Court upheld a number of regulatory measures during the period based on the commerce power, including the Pure Food and Drug Act (1906), the Meat Inspection Acts (1906 and 1907), and the White Slave Traffic Act (1909). The problem was that the Supreme Court was never entirely consistent in its rulings during this period. Limitations on the commerce power by virtue of the Tenth Amendment were sometimes upheld. In Keller v. United States (1909) for example the Court concluded that an act preventing alien women from immoral trafficking, which is crossing state lines for the purpose of prostitution, was an unconstitutional violation of the Tenth Amendment.

Nevertheless there appeared to be a gradual erosion of state powers under the Tenth Amendment until 1918 in Hammer v. Dagenhart (1918). In that decision the Court held that a federal law prohibiting the interstate shipment of products from mines or factories that employed children under the age of 14 was unconstitutional. Four years later the Supreme Court struck down a second child labor law. Thus a distinct conflict between the Tenth Amendment promoting state powers and the Commerce Clause promoting federal powers had distinctly emerged by the 1920s.

There were a host of other legal traditions that made conservatives, who dominated the American judiciary of the period, suspicious of regulatory legislation (laws that restrict the certain of selected industries). In theory regulatory agencies could be ruled unconstitutional under separation of powers principles such as the delegation of congressional authority to the executive branch. The U.S. Constitution had assigned distinct responsibilities to each of the three branches of government—executive, legislative, and judicial—that could not be legally transferred from one branch to another. This legal doctrine is referred to as the separation of powers. Regulatory schemes were also often found in violation of substantive due process under the Fourteenth Amendment. The Court could bar a state from enforcing legislation that would limit the freedom of contract or liberty of conducting business. Minimum wages and collective bargaining guarantees, for example, were generally considered in violation of common law's support for private property interests and the freedom to contract without state interference. Late nineteenth century judges held such measures interfered with the free marketplace and equality of economic opportunity.

A Conservative Court for the 1920s

Following World War I a distinctly conservative tone of the Supreme Court became even more pronounced with the appointment of William Howard Taft as Chief Justice in 1921. The ideology would characterize the 1920s was a steadfast opposition to both state and federal efforts to regulate the economy. The opinions of the Court reflected a classic view of economic theory that arose out of the nineteenth century. It embraced a doctrine committed to: a total free market control of the economy; a hostility to any type of government regulation; the embrace of Social Darwinism, which extolled the virtue of competition in the struggle economic survival of the fittest; and, a rigidly formal approach to court decisions that did not consider relevant social and economic issues. Underlying the hostility toward restraints on competition and the praise of American individualism was a fear of social unrest, immigration, and organized labor. This conservative ideology of the period was often referred to as " laissez-faire constitutionalism." It first surfaced in the Supreme Court decisions through the dissents of Justice Stephen J. Field and Joseph B. Bradley in the Slaughterhouse Cases (1873).

By the 1890s it commanded a majority on the Court. In 1905 for example the Court held in the landmark case Lochner v. New York, that the due process clause in the Fourteenth Amendment included the doctrine of "liberty of contract," a concept used by Field in his dissent in the Slaughterhouse Cases. The doctrine held that parties capable of entering into a contract and giving their consent to its terms ought not to be restricted by the government, unless it was to protect the health, welfare, and morals of the community.

Though this ideal looked sensible on the surface, judges from the 1890s until the mid-1930s inserted the freedom of contract doctrine much further into other parts of the Constitution including interpretations of civil liberties to the same extent as employment contracts. For example the Supreme Court held that states could not prevent an employer from dismissing an employee for joining a union (Adair v. United States, 1908) and that states or the federal government could not enact minimum wage laws (Adkins v. Children's Hospital, 1923). In the cases that followed, "freedom of contract" clearly favored powerful employers. The doctrine was not without its critics on the Court; Justice Oliver Wendell Holmes strongly contested the majority in Lochner. In his 1912 campaign for President, Theodore Roosevelt hammered at the Supreme Court's decision in Lochner and Adair. He accused them of hiding behind a veil of judicial independence while favoring the powerful and limiting the legal options of organized labor and minorities.

More About… Development of a New Deal Legal Philosophy

In a series of articles published between 1905 and 1923, Roscoe Pound of the Harvard Law School criticized the prevailing assumptions of what he considered "mechanical jurisprudence." Mechanical jurisprudence meant that judges were solely looking at the purely technical aspects of how the law in question was crafted. Pound called for a "sociological jurisprudence," a judicial outlook that would view the law as a part of the political, economic, and social situations in which the law was drafted. Judges, Pound asserted, by seeking enlightenment from disciplines outside of the law, would become more knowledgeable about the impact of legal decisions on society. The "Brandeis Brief," a legal argument submitted by Louis D. Brandeis, then a well-known attorney and social activist, in Muller v. Oregon (1908) highlighted this approach in practice. The argument supported the constitutionality of an Oregon law that limited the number of hours per day that women could work in laundries and other industries. The brief devoted only two pages to a discussion of actual legal issues, while the remaining 110 pages were devoted to evidence of the harmful effects of long work hours from medical reports, psychological assessments, statistical compilations, and conclusions of various public studies. Brandeis used the brief to demonstrate that a reasonable basis for the Oregon law existed. He won the case and the Brandeis brief forever changed legal arguments before the Supreme Court. Such evidence became routinely admitted in arguments by New Deal lawyers in arguing the need for government action to spur economic recovery from the Great Depression and thereafter.

In the 1930s another movement led by "legal realists" went even further than proponents of sociological jurisprudence. Legal realists viewed law as constantly in a state of change in response to social conditions. Karl Llewellyn, the leading proponent of legal realism, argued that one had to look not at abstract legal rules but at how a law actually came to be made to understand it. One argument of his was that judges and legislatures did not "discover" law as the traditional common law notion held, but they made it up as they went along attempting to solve society's problems. And this process of developing law was the result of any number of psychological, economic, and sociological factors. The fundamental principle of the realist movement was promoting that there must be an examination of what effect a law actually has. The law should not be judged on narrow, abstract principles, such as the fundamental right to enter into a contract without interference, the realists argued. Rather an analysis must include the law's wider impact.

The realists found a couple of allies on the Supreme Court bench in Cardozo and Brandeis, who were sympathetic to their arguments. There were many more adherents of legal realism in the New Deal agencies, however, most notably Jerome Frank who was general counsel to the Agricultural Adjustment Administration. Frank wrote an influential book entitled Law and the Modern Mind (1930), in which he argued that it was necessary for lawyers and judges to consider the real life elements at play in assessing the appropriateness and fairness of a law. The realist movement achieved several objectives in the development of American jurisprudence including during he Depression of assessing the actual social and economic need for a measure.

The ideology of laissez-faire constitutionalism also embraced a restrictive view of federal regulatory power when it so much as touched on liberty of contract. In United States v. E.C. Knight Co. (1895), the Court severely limited the scope of the Sherman Anti-Trust Act to limit business monopolies. The majority held that indirect links to interstate commerce was not a sufficient basis for Congress to pass regulatory laws. The Court also made a distinction between manufacturing and commerce. Manufacturing did not constitute interstate commerce, the Court reasoned, and therefore could not be regulated by Congress. In Hammer v. Dagenhart (1918) the Court struck down a 1916 federal law, the Keating-Owen Child Labor Act, that would abolish child labor.

The law used the constitutional authority of Congress to regulate interstate commerce to bar goods made by children form interstate commerce. The five-justice majority held that it was a matter for the states. Justice Oliver Wendell Holmes fashioned one of the most heated dissenting opinions in the Court's history. He accused the Court majority of being in defiance of the democratic will of the people. Congress responded by enacting a second federal child labor law. This time it used the taxing power to restrict the use of child labor so as to achieve the same regulatory standards contained in the Keating-Owen law. The Court, however, overturned this statute in Bailey v. Drexel Furniture Co. (1922). It was not until two decades later, after the constitutional revolution of 1937, when a unanimous bench in United States v. Darby Lumber Co. (1941) vindicated Justice Holmes' 1918 dissent and recognized the authority of the federal government to regulate child labor practices.

Perspectives

Public Perspectives

With growing public discontent over previous Supreme Court decisions that were detrimental to New Deal program, the public became enraged by the Court decisions on Black Monday. The public put considerable pressure on President Roosevelt to make a public statement in the wake of the Schechter decision striking down the NIRA. Roosevelt avoided doing so, even in a press conference two days later. For the next several days citizens sent telegrams to the White House from all over the country. Many were from small businessmen seeking protection by New Deal programs from big business in these economically difficult times. They urged the president to challenge the Court in some way, perhaps by pursuing a constitutional amendment expanding the presidential powers in times of national crisis or to enacting further legislation.

This strong public support for the president and his programs was further demonstrated that fall in the presidential election. Voters gave Roosevelt a landslide victory in his reelection bid. The president interpreted this overwhelming support as a strong vote of confidence in New Deal programs and continued dissatisfaction with the Supreme Court's obstructionist position.

The judicial reorganization plan Roosevelt unveiled that winter, however, enraged the public even more—this time against him. His persistence in promoting the plan through the early half of 1937 despite strong widespread criticism only made public disenchantment with the president more permanent.

As a result voters would never again support politicians who supported the New Deal. They would never again enjoy the election victories of the magnitude of 1936. Many middle class voters were simply too uneasy with the president's attack on the independence of the judiciary.

National Perspectives

The adverse decisions by the Supreme Court against the New Deal programs brought much scorn at the national level. For example in the media it had become commonplace to refer to the Justices as the "Nine old men." The term had been thrown out in an off-the-cuff remark by brain truster Adolph Berle to a journalist after a press conference. The widely circulated columnists Drew Pearson and Robert S. Allen made it a household expression by the publication of a book titled Nine Old Men in October 1936. Both authors suggested that scores of antiquated and senile judges were on the federal bench, and the book quickly climbed the best-seller lists. There was even a call in the Senate to investigate several of the allegations made in the book. Senator Guffey of Pennsylvania called it the most shocking disclosure on public officials he had ever read. Following in the wake of the story's interest, the widely circulated Collier's magazine published an article in December discussing the constitutional authority of the Supreme Court to declare acts of the legislature unconstitutional.

The scorn, however, was soon to include the president as well. What began as a fight between the White House and the judiciary quickly turned into a full-scale war between the administration and Congress. The "court-packing" bill introduced by President Roosevelt on February 5, 1937, attracted some of the most intense response of any legislative proposal in the twentieth century. For the next several weeks, newspapers carried headline banners about the Supreme Court issue. Constituents inundated Congressmen with letters and everyone was talking about the plan. The administration hoped to concentrate its lobbying efforts on the Senate, in part to avoid the hostile House Judiciary Committee. A storm of criticism, however, descended upon the president from both chambers.

Many of Roosevelt's faithful supporters in Congress suddenly felt blindsided, having not been alerted or informed by the president before his public announcement. Opponents of the plan labeled the bill nothing more than a superficial plan to pack the Court in order to find Justices who would be more responsive to the president's legislative aims. The charge of court inefficiency, though recognized as a real problem, was considered as nothing more than a disingenuous excuse by Roosevelt to further his aims and many conservative Democrats were outraged. They accused Roosevelt of attempting to wield dictatorial power and tamper with the separation of powers in American government. Several of the conservatives in the Democratic Party who were not strong supporters of New Deal legislation before abandoned the president for good. Bipartisan support for the New Deal from Republican Progressives seeped away. Most Senators, however, opposed the bill on grounds that it would weaken the Supreme Court in the future.

Democratic opposition was led by Senator Burton K. Wheeler of Montana, an early Democratic supporter of the New Deal who had gradually drifted away from Roosevelt's agenda. Wheeler counterattacked the President's proposal in one public statement after another. The Court battle resulted in a break in the close relationship between Senator Burton K. Wheeler of Montana, who had been instrumental in getting New Deal bills through Congress, and the president. It soon became clear that although the Democrats had an overwhelming majority in the Senate, the administration was in for a long battle.

The Court controversy also divided the Democratic Party in the states. In Massachusetts, for example, the Democratic Governor opposed the plan while the rest of his agency heads supported it. For states that had two Democratic senators, including Indiana, Missouri, New Jersey, North Carolina, Ohio, Rhode Island, South Carolina, Tennessee, Texas, Utah, and West Virginia, each senator took opposite positions on the bill from the other in his state.

Impact

The political cost of the Court fight to the New Deal was enormous. For decades many were left puzzled by President Franklin Roosevelt's dramatic actions against the Court. The court-packing fight of 1937 had greatly weakened the New Deal. As a result the proposal has been considered the most important political blunder of the Roosevelt administration. It was a debacle all the more astonishing given that it was pushed by a president who at all other times showed extraordinary political cunning. Many Democrats in Congress at the time began asking how Roosevelt could not have known that the effort would end in political disaster. Other factors, however, were also leading to a decline of political support for the New Deal in 1937 and 1938. An anti-New Deal coalition had been gaining momentum in Congress as both parties were electing more conservative politicians. Also an economic recession toward the end of 1937 did not help the administration's popularity. The battle over the Supreme Court, however, undoubtedly accelerated the New Deal demise. The Court controversy helped bind a growing bipartisan coalition that opposed the New Deal. Prospects for more far-reaching reform had greatly diminished after the Court fight. Years later former Secretary of Agriculture Henry Wallace reflected that the Court fight had been the end of the New Deal reform program. It would not be until almost three decades later in the 1960s that advocates of social reform would again see success in Congress.

Although Roosevelt may have lost the battle, a battle in changing the Court structure, that undoubtedly took a great toll on the future of his administration, he did win the war with the Court. Roosevelt saved the major programs left in the New Deal from being struck down by the Supreme Court. After 1937 the Supreme Court dramatically expanded the commerce power by its ruling in Jones & Laughlin. It also supported the Social Security Act in the Helvering v. Davis decision announced on May 24, 1937. It would not again strike down a single piece of federal legislation simply because it constrained business in some way. The Court had clearly discarded the notion of laissez-faire, noninterventionist government. A major step was made in adapting the Constitution to the needs of the twentieth century.

This victory in changing the philosophical direction of the Court was accomplished largely through appointments. By the end of 1941 only four years after the Roosevelt's Court battle had been waged, the president had been able to choose seven of the nine Justices on the Court due to deaths and retirements. This is more than any other President since George Washington. Roosevelt's nominee Hugo Black was confirmed on August 12, 1937 after Justice Van Devanter retired. Stanley Reed, who had argued for the government in Jones & Laughlin, was placed on the Court when Justice Sutherland retired in 1938. The president's long time friend and advisor Felix Frankfurter replaced Pierce Butler who died suddenly in November 1939. William O. Douglas was appointed on the Court the same year to replace the retiring Louis Brandeis. In 1940 Roosevelt named Frank Murphy, the former Governor of Michigan, and a year later the President named Robert Jackson and James F. Byrnes. The new majority on the Court ruled favorably on every New Deal measure that came before it. This new Court—the "Roosevelt Court" as it was called—ultimately became the most liberal and progressive Supreme Court in American history.

Over the next generation, the Supreme Court would expand the Bill of Rights to reach into the states ending government supported racial segregation. It also further enlarged the federal government's commerce power to the point of allowing Congress to prohibit anti-discriminatory practices in business against minorities because it affected interstate commerce. Some legal scholars refer to this change over in Court history as the "Constitutional Revolution of 1937." In the history of the Supreme Court, no event has had more momentous consequences.

Notable People

Charles Evans Hughes (1862–1948). Hughes became one of the most prominent figures in American politics and government during the first half of the twentieth century. Born in Glen Falls, New York, Hughes' father was an itinerant preacher and he grew up in the strict atmosphere of a Christian household. After graduating from Brown University he entered Columbia Law School in 1882 where he completed his degree and passed the bar in 1884. Accepted to the prominent law firm of Walter S. Carter, Hughes became both a partner and a son-in-law to the senior partner after he married Antoinette Carter in 1888. Hughes developed a busy commercial law practice.

During this time, Hughes developed an interest in Republican reform politics. In 1905 this interest began in earnest when he became a counsel to state legislative committees investigating abuses in the New York gas utilities and insurance trades. Hughes attracted the attention of New York progressives when he exposed the malpractice in these industries. The resulting notoriety enabled Hughes to run and win against William Randolph Hearst for governor of New York in 1906 in an extremely close race. In his first term as governor, Hughes was an able administrator who helped secure passage of important progressive reform legislation in utilities regulation and workmen's compensation. He was however never popular with local party bosses whom he alienated when he maintained the state's ban on racetrack betting. Hughes also managed to offend President Theodore Roosevelt by rejecting an offer from the president to intervene in a New York insurance controversy. Unfortunately the split between Hughes and Theodore Roosevelt was permanent. In 1908 Hughes was re-elected but he was isolated in his party. When President Taft (served 1909–1913) offered Hughes a seat on the Supreme Court in 1910, governor Hughes accepted without reservation.

For the next six years Hughes wrote 151 opinions, dissented 32 times only, and encountered dissent in only nine of his opinions. He was also regarded as a liberal and an activist for his decisions in the Minnesota Rates Case (1913) and the Shreveport Case (1914) in which Hughes, writing for the majority, asserted the exclusive power of Congress to regulate interstate commerce and areas of state commerce where it intertwined the national economy. In 1916 Hughes was persuaded to leave the Court and run for president against Woodrow Wilson (served 1913–1921). The campaign did not go well, however, since the Theodore Roosevelt wing shifted the party's position on foreign policy in a way that seemed overly aggressive to largely isolationist voters. Additionally Hughes could not challenge Wilson's domestic reform agenda and seemed stuck in campaigning on traditional Republican views on labor and the tariff. He failed to unite Republican progressives from the mid and far West, a move which might have helped considerably, and Hughes lost the election.

Out of politics Hughes returned to the practice of law in New York, though he continued to be outspoken on political issues. The Republicans were back in office when Warren G. Harding (served 1921–1923) won the presidency in 1920 and Hughes was appointed Secretary of State. His greatest accomplishment occurred in 1921 and 1922 when he successfully negotiated a series of treaties limiting the naval arms race and reducing tensions in the Far East.

Hughes resigned as Secretary of State in 1925 and returned to his law practice. It would not be long before he again returned to government service. In 1930 President Hoover nominated Hughes to be Chief Justice of the Supreme Court to replace Taft who retired. He had embraced progressive causes throughout his political life but was now presiding over a conservative Supreme Court in the midst of the Depression. In the early years of the New Deal, the Supreme Court seemed to stand in the way of Roosevelt's programs, striking down legislation that conflicted with the conservative view of the Constitution. Hughes often sided with the "Four Horseman," McReynolds, Sutherland, VanDevanter, and Butler, as a swing vote along with Roberts to strike down New Deal legislation. In many decisions after 1935, he took sides against the conservative faction. Consistent with his previous government service, Hughes also continued to defend the rights of labor and minorities. On June 2, 1941, at the age of 79, Hughes resigned, citing health reasons.

Harlan Fiske Stone (1872–1946). Stone was born in Chesterfield, New Hampshire. He attended Amherst College, graduated in 1894, and then went to Columbia Law School where he graduated in 1898. Stone allied himself with the Republican Party but always remained flexible and practical when it came to his political views. He opened a law practice in New York City and was invited to become a member of the Columbia law faculty in 1899. In 1910 he was appointed dean of the law school where he remained until 1923. In the wake of political scandals in the Harding administration, President Coolidge appointed Stone, an old Amherst classmate, to be the new attorney general to replace the controversial Harry M. Daugherty in 1924.

Stone hit the ground running and began immediately to reorganize the Justice Department. He initiated a reform of the Federal Bureau of Investigation, then a small and obscure division in the Justice Department, and recommended J. Edgar Hoover as director. Stone also began reforms in the federal prison system. Basically conservative, Stone strongly believed that a public servant's role carried responsibilities different from a private citizen and he sought to detach the Justice Department of any political influence. In the process, he gained a national reputation for honesty and, within the administration, earned credentials as a loyal Republican. When Justice Joseph McKenna retired from the Supreme Court in 1925, Coolidge nominated his old friend. The Senate confirmed Stone on February 5, 1925.

Stone's judicial philosophy was well known at the time of his appointment. At Columbia University he developed a reputation as a defender of civil liberties and held a belief that the law must adapt to changing social and economic conditions. Stone resented the conservatism of the Justices during the 1920s and viewed the Constitution as a living document subject to interpretation rather than rigid legal formulas. It was during the 1920s that Stone increasingly parted with the conservative members of the Court who aggressively protected private property rights at the expense of Congressional regulatory authority or state legislatures.

In a 1927 case Stone wrote a vigorous dissent against the majority led by Chief Justice Taft. He argued that before the Court tells a state it cannot regulate intrastate commerce, the Court had a responsibility to investigate the impact of the regulations. Stone was upholding a philosophy of judicial restraint, maintaining that the Court should rely on the judgment of the legislature once the Court was satisfied that the national interest was not imperiled. This view surfaced again several years later in Stone's dissenting opinion against the majority's invalidation of the Agricultural Adjustment Act in United States v. Butler (1936).

By the end of the 1920s, Stone was clearly identified with Justice Brandeis and Holmes as the "liberal minority" on the Court. Stone also grew impatient with Republican conservatism during the early years of the Depression. Though a close personal friend of Herbert Hoover, he disagreed with the President's laissez-faire economic principles in the face of economic disarray. Stone sympathized with the governmental activism of the New Deal even though he disagreed with a few measures. He dissented bitterly when the Court ruled the AAA unconstitutional in United States v. Butler (1936). In that case Stone deplored the Court's setting its own view of proper federal economic power above that of Congress, and he sided with Louis Brandeis. When the Court assaulted other New Deal programs, Stone was outraged by the conservative majority's refusal to allow the federal government to deal with the depression. When Roosevelt introduced the Court packing plan, Stone remained neutral. Although he did not like the idea of expanding the Court, he did welcome the switch in loyalty by Justice Owen Roberts and Chief Justice Charles Evans Hughes after 1937 in upholding New Deal legislation.

When Chief Justice Hughes retired in 1941, Roosevelt nominated Stone to be Chief Justice. The Senate confirmed him on June 27, 1941. Toward the late 1930s and early 1940s, Stone became increasingly concerned with civil liberties.

Benjamin Cardozo (1870–1938). Cardozo was born in New York City where he graduated from Columbia College in 1889 at the age of 19 and received a Master's degree a year later. He then attended Columbia Law School for a year before he was admitted to the New York bar. Cardozo's early career was spent working behind the scenes for other attorneys. He quickly gained a reputation for his legal briefs and scholarly publications in the law. He developed expertise in commercial law and soon developed a profitable legal practice. In 1913 he was elected justice of the New York Supreme Court and after only one month, the governor elevated him in February 1914 to a position on the court of appeals, the state's highest court. In 1926 Cardozo won unopposed the election to be chief judge on the Court of Appeals.

Cardozo never married and had few close friends, instead he engaged in intense legal work. By the 1920s, Cardozo was known internationally as an outstanding common law judge. He had an extraordinary capacity to outline the facts of a case and explaining them in a way that dramatized the broader principles of the common law. He also wrote three books, The Nature of the Judicial Process (1921), The Growth of the Law (1924) and The Paradoxes of Legal Science (1928) that established his reputation as a scholarly and brilliant jurist. During Cardozo's tenure, the New York Court of Appeals came to be regarded as the most distinguished court in the nation, rivaling that of the U.S. Supreme Court. It was a surprise to no one that Cardozo would eventually be nominated to serve on the highest court.

In 1932 President Hoover nominated Cardozo to take the place of the retiring Oliver Wendell Holmes, a friend of Cardozo whom he held in great admiration. But there were problems with the nomination. There were already two New Yorkers on the bench (Charles Evans Hughes and Harlan Fiske Stone), and there was already a Jewish member of the Court (Louis Brandeis). With the help of Senator William E. Borah of Idaho, a powerful Senate leader, the objections were overcome and Cardozo won confirmation.

Justice Cardozo came on the Court just as Hoover was leaving office. He quickly emerged, however, as the most persuasive member of the liberal faction. In his many early dissents with the conservative majority, Cardozo would blaze the path of interpretation that the Court would follow in the decades to come. His career on the Court, however, was cut short after serving only six years. He has been regarded as one of the greatest jurists to serve on the Supreme Court in the twentieth century.

Hugo Black (1886–1971). Black was one of the more interesting and controversial of the Roosevelt appointments to the Supreme Court. Beginning with a rather controversial nomination that raised questions about Black's position on civil rights, he ultimately became one of the foremost champions of individual liberties in the history of the Court.

Black was born in Harlan, Alabama, the heart of cotton country. When he was three his family moved to Ashland, a town with a population of 350, where his father ran a general store. Hugo attended Ashland College and then went on to the University of Alabama to pursue a career in medicine. After a year of medical school he switched to law and graduated from the University of Alabama Law School in 1906. Black practiced briefly in Ashland but soon moved to Birmingham where he specialized in labor and contract law. For a brief period between 1910 and 1911 he served as police court judge in Birmingham. In addition to his private clients Black also became legal counsel to the miner's union and the carpenter's union. Then in 1915 he was elected county solicitor (similar to a district attorney) for Jefferson County. When the United States entered World War I, Black resigned his position to join the army and rose to the rank of captain in the 19th Artillery Brigade. When the war ended he returned to Birmingham.

In 1926 Senator Oscar Underwood announced his retirement and Black decided to campaign for his seat and won the election. In the first term Black remained discreetly in the background and studied how the legislative process worked. At the same time, he began a life-long habit of reading in history, philosophy, and economics to make up for deficiencies in his education. He paid particular attention to the accounts of the Federal Constitutional Convention of 1787 and the State ratifying conventions, which gave him an increasing reverence for the text of the Constitution itself.

In time Black plunged into Senate business as a member of the judiciary committee. In 1932 he was reelected with the landslide Democratic Congress. Black emerged as a strong supporter of the New Deal and voted for all the major New Deal measures except for one, the National Industrial Recovery Act, which he felt was doomed to fail. In 1933 Black launched an investigation into the costs, salaries, and corruption of the United States Shipping Board, something that he personally spearheaded. He was also instrumental in passing a key piece of New Deal legislation, the Public Utilities Holding Company Act in 1935.

Black's career in the Senate ended when Franklin Roosevelt nominated him for the Supreme Court on August 12, 1937, to replace the conservative Justice Van Devanter. Soon a series of articles in the Pittsburgh Post-Gazette alleged that he had joined the Ku Klux Klan in 1923, and resigned two years later when he began his campaign for the Senate. These revelations set off a round of denunciations in the Senate. He explained that he had joined the Klan but resigned. Black later explained in an interview that many jurors and lawyers belonged to the Klan in Birmingham and he had to join to have an equal advantage.

Any lingering doubt about Black's background in the Klan was soon dispelled as he emerged as a consistent champion of individual liberties and minority rights. He consistently dissented with the Court and attracted the ire of conservatives who thought he was far too liberal. In 1940 Black wrote the majority opinions in two cases, one in which he overturned a conviction four black Americans whose confessions were obtained under duress and the other in which he asserted that a black defendant had not received a fair trial because blacks were excluded from the jury.

Black always sided with the "liberal bloc" and the "judicial activists" of the Supreme Court under Earl Warren in the 1950s and 1960s. Black carried a copy of the Constitution in his pocket wherever he went, and employed the literal text to browbeat his opponents.

Black would later be criticized for his opinion in Korematsu v. United States (1944), upholding the authority of the federal government to remove Americans of Japanese descent from along the Pacific coast. Perhaps his greatest accomplishment was to persuade colleagues to extend the guarantees of the Bill of Rights to the states in a series of cases in the early 1960s. On Sunday, September 26, 1971, Justice Hugo Black resigned from the Supreme Court, after 34 years on the Court. He died eight days later. He is generally acknowledged as one of the greatest civil libertarians in the history of the Supreme Court.

Primary Sources

The President Unveils His Court Reorganization Plan

On February 5, 1937, President Franklin Roosevelt sent his plan for reorganizing the judicial branch of government including the Supreme Court to Congress requesting legislation to carry it out. The lengthy message describes in detail his reasons for pursuing such a course (from Roosevelt, pp. 51–66).

I have recently called the attention of the Congress to the clear need for a comprehensive program to reorganize the administrative machinery of the Executive Branch of our Government. I now make a similar recommendation to the Congress in regard to the Judicial Branch of the Government, in order that it also may function in accord with modern necessities.…

[T]he Constitution vests in the Congress direct responsibility in the creation of courts and judicial offices and in the formulation of rules of practice and procedure. It is, therefore, one of the definite duties of the Congress constantly to maintain the effective functioning of the Federal Judiciary.

The Judiciary has often found itself handicapped by insufficient personnel with which to meet a growing and more complex business.…

In almost every decade since 1789, changes have been made by the Congress whereby the numbers of judges and the duties of judges in federal courts have been altered in one way or another. The Supreme Court was … increased to nine in 1869.

The simple fact is that today a new need for legislative action arises because the personnel of the Federal Judiciary is insufficient to meet the business before them.…

A letter from the Attorney General, which I submit herewith, justifies by reasoning and statistics the common impression created by overcrowded federal dockets—and it proves the need for additional judges.

Delay in any court results in injustice.

It makes lawsuits a luxury available only to the few who afford them … Only by speeding up the processes of the law and thereby reducing their cost, can we eradicate the growing impression that the courts are chiefly a haven for the well-to-do … (I)n the last fiscal year, although 867 petitions for review were presented to the Supreme Court, it declined to hear 717 cases …

A part of the problem of obtaining a sufficient number of judges to dispose of cases is the capacity of the judges themselves. This brings forward the question of aged or infirm judges—a subject of delicacy and yet one which requires frank discussion.

In the federal courts there are in all 237 life tenure permanent judgeships. Twenty-five of them are now held by judges over seventy years of age and eligible to leave the bench on full pay …

In exceptional cases, of course, judges, like other men, retain to an advanced age full mental and physical vigor. Those not so fortunate are often unable to perceive their own infirmities …

With the opening of the twentieth century, and the great increase of population and commerce, and the growth of a more complex type of litigation, similar proposals were introduced in the Congress …

It is well to remember that the mass of details involved in the average of law cases today is vastly greater and more complicated than even twenty years ago. Records and briefs must be read; statutes, decisions, and extensive material of a technical, scientific and economic nature must be searched and studied; opinions must be formulated and written. The modern tasks of judges call for the use of full energies …

A constant and systematic addition of younger blood will vitalize the courts and better equip them to recognize and apply the essential concepts of justice in the light of the needs and the facts of an ever-changing world …

I, therefore, earnestly recommend that the necessity of an increase in the number of judges be supplied by legislation providing for the appointment of additional judges in all federal courts, without exception, where there are incumbent judges of retirement age who do not choose to retire or to resign …

I attach a carefully considered draft of a proposed bill, which, if enacted, would, I am confident, afford substantial relief.

The President Defends His Court Proposal

After receiving considerable adverse reaction to his plan to reorganize the Supreme Court, President Roosevelt used a fireside chat on March 9, 1937, to discuss with the people why he is pursuing the plan. In the radio address he also attempted to answer his critics (from Roosevelt, pp. 122–133).

The Courts … have cast doubts on the ability of the elected Congress to protect us against catastrophe by meeting squarely our modern social and economic conditions …

Last Thursday I described the American form of Government as a three horse team provided by the Constitution to the American people so that their field might be plowed. The three horses are, of course, the three branches of government—the Congress, the Executive and the Courts. Two of the horses are pulling in unison today; the third is not …

It is the American people themselves who expect the third horse to pull in unison with the other two …

But since the rise of the modern movement for social and economic progress through legislation, the Court has more and more often and more and more boldly asserted a power to veto laws passed by the Congress and State Legislatures in complete disregard of this original limitation.

In the last four years the sound rule of giving statutes the benefit of all reasonable doubt has been cast aside. The Court has been acting not as a judicial body, but as a policy-making body.

When the Congress has sought to stabilize national agriculture, to improve the conditions of labor, to safeguard business against unfair competition, to protect our national resources, and in many other ways, to serve our clearly national needs, the majority of the Court has been assuming the power to pass on the wisdom of these Acts of Congress …

(T)here is no basis for the claim made by some members of the Court that something in the Constitution has compelled them regretfully to thwart the will of the people …

The Court in addition to the proper use of its judicial functions has improperly set itself up as a third House of the Congress—super-legislature, as one of the justices has called it—reading into the Constitution words and implications which are not there, and which were never intended to be there.

We have, therefore, reached the point as a Nation where we must take action to save the Constitution from the Court and the Court from itself …

What is my proposal? It is simply this: whenever a Judge or Justice of any Federal Court has reached the age of seventy and does not avail himself of the opportunity to retire on a pension, a new member shall be appointed by the President then in office, with the approval, as required by the Constitution, of the Senate of the United States …

The number of Judges to be appointed would depend wholly on the decision of present Judges now over seventy, or those who would subsequently reach the age of seventy.

If, for instance, any one of the six Justices of the Supreme Court now over the age of seventy should retire as provided under the plan, no additional place would be created. Consequently, although there never can be more than fifteen …

Those opposing this plan have sought to arouse prejudice and fear by crying that I am seeking to "pack" the Supreme Court …

More About… The New Deal's "Jones & Laughlin" Defense Team

When Charles Fahy came to the National Labor Relations Board (NLRB) as general counsel in 1935, he was only given 14 lawyers that were already on staff. Fahy had been serving as the assistant solicitor general of the Interior Department and was also chairman of the Petroleum Administration Board until it was struck down by the Supreme Court's decision in Panama Refining Company v. Ryan (1935). He welcomed the opportunity to develop a legal strategy for the NLRB, but he also inherited a large case docket and needed to hire more legal staff. The staff Fahy eventually hired was unusual for the time in two respects. First, he showed no reluctance to hire Jewish lawyers, many of whom had excellent records but due to prejudice were not able to get jobs at prestigious New York law firms. Secondly the NLRB under Fahy was the first New Deal agency to make an effort at hiring women lawyers and professional staff members on a basis of equality with men. This approach was well ahead of its time as Harvard Law School did not admit women until 1952 and as late as 1963, women comprised less than three percent of the legal profession.

If by that phrase "packing the Court" it is charged that I wish to place on the bench spineless puppets who would disregard the law and would decide specific cases as I wished them to be decided, I make this answer: that no President fit for his office would appoint, and no Senate of honorable men fit for their office would confirm, that kind of appointees to the Supreme Court …

Like all lawyers, like all Americans, I regret the necessity of this controversy. But the welfare of the United States, and indeed of the Constitution itself, is what we all must think about first. Our difficulty with the Court today rises not from the Court as an institution but from human beings within it …

This plan of mine is no attack on the Court; it seeks to restore the Court to its rightful and historic place in our system of Constitutional Government …

Two groups oppose my plan on the ground that they favor a constitutional amendment. The first includes those who fundamentally object to social and economic legislation along modern lines …

The other group is composed of those who honestly believe the amendment process is the best and who would be willing to support a reasonable amendment if they could agree on one.

To them I say: we cannot rely on an amendment as the immediate or only answer to our present difficulties …

More About… The First Assault on Racial Segregation in Education

Advances in the courts in the late 1930s not only came in the fields of regulating economic activity but in civil liberty cases as well. Roosevelt was personally reluctant to engage in any issues related to civil rights for racial minorities. He feared that supporting such causes would lose critical political support from the South for his economic programs. Some he recruited into the New Deal, however, contributed to lasting change in the recognition and protection of individual rights.

On November 9, 1938, the Supreme Court heard a case launched by the Legal Defense Fund of the National Association for the Advancement of Colored People (NAACP) in 1930 to challenge the "separate but equal" principle that had characterized racial segregation in the American South. The "separate but equal" principle came from a Supreme Court decision in 1897 saying that state laws requiring segregation of public facilities were legal if facilities of equal quality were provided for both races. The case provided an early test in the long campaign to end segregation through the courts that was earlier outlined by Nathan Margold, a young white lawyer, in the 1920s. Margold would later become Roosevelt's Solicitor General in the Department of the Interior during the New Deal. Charles Hamilton Houston, dean of Howard law school, was hired as the first full-time legal staff member of the NAACP's Legal Defense Fund in 1935 and began lawsuits to force Southern universities to admit black Americans to their graduate and professional schools. Missouri ex rel Gaines v. Canada was the first of several challenges leading to the striking down of racial segregation in public schools by the Supreme Court in the landmark case of Brown v. Board of Education in 1954.

The case involved Lloyd L. Gaines, a black American resident who sought admission to Missouri's all-white law school in the absence of a "separate but equal" facility for blacks. The university denied Gaines' admission on racial grounds and state courts upheld the denial. Gaines' attorney, Charles H. Houston, appealed to the Supreme Court and the Supreme Court took the case. Chief Justice Hughes, writing for the majority (six to two, Hughes for the Court, McReynolds and Butler in dissent, Cardozo had just died) ordered Gaines be admitted to the all-white facility. He dismissed the State's offer to pay Gaines' tuition out of state as inadequate. Nor was Hughes persuaded that Missouri's stated intention to build an all-black law school would meet the "separate but equal" test. The Gaines case thus became a pivotal case in the NAACP's campaign to end segregation. After Gaines, segregation was outlawed in graduate and professional programs. Unfortunately Lloyd Gaines never enrolled in law school. Perhaps exhausted by the process of litigation or fearful of the ordeal that would await him if he started classes, Gaines disappeared from the pages of history.

During the past half century the balance of power between the three great branches of the Federal Government, has been tipped out of balance by the Courts in direct contradiction of the high purposes of the framers of the Constitution. It is my purpose to restore that balance.

Suggested Research Topics

• It has been described that the Supreme Court underwent a "constitutional revolution" in the 1930s. What does that mean? How did the Court change in the way it interpreted the Constitution? What role did President Roosevelt and the New Deal play in stimulating this change?
• Select two key Supreme Court cases affecting the New Deal during the 1930s and briefly outline the arguments presented by both parties before the Court. The Court decisions may be found on the Internet at Findlaw (http://www.findlaw.com/casecode/supreme.html).
• Key constitutional issues before the Supreme Court in hearing New Deal cases included states rights under the Tenth Amendment to the Constitution, separation of powers in government, and due process of law. Briefly describe the key aspects of each of these legal doctrines. The U.S. Constitution may be found on the Internet at Findlaw (http://www.findlaw.com/casecode/supreme.html).

Bibliography

Sources

Bloomfield, Maxwell H. Peaceful Revolution: Constitutional Change and American Culture from Progressivism to the New Deal. Cambridge, MA: Harvard University Press, 2000.

Cushman, Barry. Rethinking the New Deal Court: The Structure of a Constitutional Revolution. New York: Oxford University Press, 1998.

Irons, Peter H. The New Deal Lawyers. Princeton, NJ: Princeton University Press, 1982).

Leuchtenburg, William E. The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt. New York: Oxford University Press, 1995.

Maidment, Richard A. The Judicial Response to the New Deal: The U.S. Supreme Court and Economic Regulation, 1934–1936. New York: Manchester University Press, 1991.

Roosevelt, Franklin D. The Public Papers and Addresses of Franklin D. Roosevelt: 1937 Volume. New York: The Macmillan Company, 1941.

Further Reading

Baker, Leonard. Back to Back: The Duel Between FDR and the Supreme Court. New York: Macmillan, 1967.

Dunne, Gerald T. Hugo Black and the Judicial Revolution. New York: Simon & Schuster, 1977.

Hockett, Jeffrey D. New Deal Justice: The Constitutional Jurisprudence of Hugo L. Black, Felix Frankfurter, and Robert H. Jackson. Lanham, MD: Rowman & Littlefield Publishers, 1996.

Irons, Peter H., and Howard Zinn. A People's History of the Supreme Court. New York: Viking, 1999.

Kaufman, Andrew L. Cardozo. Cambridge, MA: Harvard University Press, 1998.

O'Douglas, William O. The Court Years, 1939–1975: The Autobiography of William O. Douglas. New York: Random House, 1988.

Rehnquist, William H. The Supreme Court. New York: Knopf, 2001.

Schwartz, Bernard. The Law in America: A History. New York: McGraw-Hill, 1974.

"The Supreme Court Historical Society," available from the World Wide Web at http://www.supremecourthistory.org

"The Supreme Court of the United States," available from the World Wide Web at http://www.supremecourtus.gov

Note: One of the best ways to understand the issues involved in the battle between FDR and the Supreme Court is to read the cases themselves.

See Also

Farm Relief ; Labor and Industry ; National Industrial Recovery Act ; New Deal (First, and Its Critics) ; New Deal (Second) ; Social Security ; Tennessee Valley Authority