by Damon Root
Cousin Franklin not only embraced that idea, he spent tremendous political capital in a failed attempt to make it the law of the land. On February 5, 1937, after he had been safely reelected to a second term, FDR submitted to Congress his proposal for reorganizing the federal judiciary. At the center of the controversial bill was a provision granting Roosevelt (and all future presidents) the power to appoint one new federal judge to match every sitting judge that had served at least ten years and had not retired or resigned within six months of turning seventy years of age. Under the plan, FDR could add as many as forty-four new federal judges and, most important, up to six new Supreme Court justices.
“A lower mental or physical vigor leads men to avoid an examination of complicated and changed conditions,” FDR explained. “Little by little, new facts become blurred through old glasses fitted, as it were, for the needs of another generation.”103 It was a disingenuous argument, to say the least. The Court’s oldest sitting justice at that time was none other than Progressive hero Louis Brandeis. And although Roosevelt may have had his differences with the eighty-year-old justice over Schechter and the other “Black Monday” cases, Brandeis was an otherwise reliable vote in favor of liberal reform. Nor did “old Isaiah” show any signs of slowing down with age. In reality, of course, it was no secret to anybody what Roosevelt’s true motives were. He wanted to appoint a fresh slate of liberal justices who were ready, willing, and able to practice judicial deference and uphold future New Deal legislation.
Unhappily for the president, the plan backfired spectacularly. Brandeis, offended at both the personal insult and the frank attack on the independence of the judiciary, maneuvered behind the scenes to bring about the bill’s defeat. Most significantly, he put the bill’s chief congressional opponent, Democratic Senator Burton K. Wheeler of Montana, in touch with Chief Justice Charles Evans Hughes, who had prepared a memo, signed by himself, Brandeis, and Justice Willis Van Devanter, testifying that the Supreme Court was completely on top of its workload and was in no need of any young blood to pick up the non-existent slack. During testimony on the court-packing proposal before the Senate Judiciary Committee, Senator Wheeler unveiled that memo to great effect. Thwarted by such legislative maneuverings, not to mention by the broad public opposition to his apparent tinkering with a co-equal branch of government, Roosevelt failed to garner the necessary votes and the court-packing plan went down to defeat in the Senate.
The New Deal Revolution
Although FDR lost the court-packing skirmish, there’s no doubt that he won the larger battle for control of the Supreme Court. By 1937 the anti–New Deal coalition centered on four justices—dubbed the “Four Horsemen” by their political foes. There was James C. McReynolds, author of the Supreme Court’s libertarian ruling in Meyer v. Nebraska, which struck down that state’s ban on teaching children in a foreign language; Willis Van Devanter, a one-time railroad lawyer and appointee of President William Howard Taft; Pierce Butler, the Court’s only Catholic, and the lone dissenter from Justice Holmes’s pro-eugenics ruling in Buck v. Bell; and George Sutherland, the intellectual leader of the group and the author of the Court’s libertarian rulings in Adkins v. Children’s Hospital, which struck down a minimum wage law for women, and New State Ice Co. v. Liebmann, which voided a state-sanctioned ice monopoly.
But as every court watcher knows, the magic number at the Supreme Court is five, not four. And in the late 1930s, that crucial fifth vote was in the hands of Justice Owen Roberts, a former U.S. attorney and appointee of President Calvin Coolidge. In 1936, Roberts had provided the fifth vote needed to strike down New York’s minimum wage law. That same year, he authored the Court’s opinion nullifying the Agricultural Adjustment Act. But Roberts had also broken stride with the Horsemen on several other occasions, most notably in the 1934 case of Nebbia v. New York, where he authored the majority opinion upholding the state’s regulation of dairy prices and reaffirming the conviction of a local grocer for selling low-priced milk. That ruling was a paragon of judicial deference and a taste of things to come. With all eyes now focused on FDR’s showdown with the Supreme Court, the question of the hour was whether Roberts would side with the Four Horsemen or with the New Deal when the next test of economic regulation reached the bench.
The country got its answer on the morning of March 29, 1937, promptly dubbed “White Monday” by the Washington press corps. By a vote of five to four, with Roberts siding with the liberals and the Horsemen united in dissent, the Supreme Court upheld a Washington state minimum wage law for women under the principle of judicial restraint in West Coast Co. v. Parrish. “The Constitution does not speak of freedom of contract,” announced the majority opinion of Chief Justice Hughes. “It speaks of liberty and prohibits the deprivation of liberty without due process of law.” And as far as the Supreme Court was now concerned, “regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process.”104 Besides, Hughes added, striking a note of paternalism, “What can be closer to the public interest than the health of women and their protection from unscrupulous and overreaching employers?”105
In other words, liberty of contract was now finished as a viable legal argument. Justice Sutherland, author of the suddenly defunct majority opinion in Adkins v. Children’s Hospital, filed a blistering dissent accusing his colleagues in the majority of a cowardly retreat from basic judicial principles. “The meaning of the Constitution does not change with the ebb and flow of economic events,”106 Sutherland wrote. To say “that the words of the Constitution mean today what they did not mean when written—that is, that they do not apply to a situation now to which they would have applied then—is to rob that instrument of the essential element which continues it in force as the people have made it until they, and not their official agents, have made it otherwise.”107
Sutherland was outraged, but whether he liked it or not, the tide had turned decisively against him. Just two weeks later, on the morning of April 12, the same five-vote liberal majority—Charles Evans Hughes, Owen Roberts, Louis Brandeis, Benjamin Cardozo, and Harlan Fiske Stone—sustained the constitutionality of the National Labor Relations Act, popularly known as the Wagner Act in tribute to its chief advocate, Senator Robert Wagner of New York. At issue in National Labor Relations Board v. Jones & Laughlin Steel Corp. was the scope of congressional power under the Commerce Clause, the very issue that had previously spelled doom for the National Industrial Recovery Act in 1935.
The question now before the Court was whether a dispute between the Jones & Laughlin Corporation and its unionized steel workers inside the state of Pennsylvania counted as interstate commerce for the purposes of the new federal labor law. The Court held that it did, thereby validating the constitutionality of the New Deal’s most extensive labor regulation. To begin, wrote Chief Justice Hughes, the Court must acknowledge its own fundamentally deferential role in the political structure. Our job “is to save, and not to destroy. We have repeatedly held that, as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the act.”108 (Chief Justice John Roberts would employ that same argument seven decades later to save President Barack Obama’s health care law.) Turning to the labor law at issue, Hughes found no difficulty in construing it as a permissible exercise of congressional power. “Although activities may be intrastate in character when separately considered,” Hughes wrote, “if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise that control.”109
All told, it was one of the most striking turnarounds in legal history. In less than a decade, the Supreme Court had not only rendered liberty of contract a dead letter, it had embraced a sweeping form of judicial deference toward state and federal
legislation while also greatly expanding congressional power by allowing federal lawmakers to reach activities that would previously have been seen as off-limits under the Commerce Clause. As the legal historian William E. Leuchtenburg would put it, “From 1937 on, the relationship among the branches of government shifted dramatically, as an era of ‘judicial supremacy’ gave way to deference by the Supreme Court.”110
When it came to government regulation of the economy, Americans would now be living in the world envisioned by Justice Oliver Wendell Holmes.
Three
“Robert Bork’s America”
On July 1, 1987, President Ronald Reagan introduced the American people to the man he had selected to replace retiring Justice Lewis Powell on the U.S. Supreme Court. Robert Bork “is recognized as a premier constitutional authority,” Reagan announced, with the nominee standing by his side. A former solicitor general of the United States, a distinguished former professor of law at Yale University, and a sitting judge on the prestigious U.S. Court of Appeals for the District of Columbia Circuit, Bork did indeed come well qualified for the position. Furthermore, Reagan continued, Bork is “widely regarded as the most prominent and intellectually powerful advocate of judicial restraint,” which the president described as the view “that under the Constitution it is the exclusive province of the legislatures to enact laws and the role of the courts to interpret them.” As a justice, Reagan concluded, Robert Bork “will bring credit to the Court and his colleagues, as well as to his country and the Constitution.”1
Less than an hour later, Senator Edward “Ted” Kennedy of Massachusetts, a prominent liberal Democrat, took to the floor of the Senate to offer a very different take on Reagan’s pick. “Robert Bork’s America,” Kennedy declared, “is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.”2
Although Bork would later spend five grueling days in September sparring with Kennedy and other members of the Senate Judiciary Committee over his legal views, the basic script for his entire confirmation process had been set on that first fateful day. Following Reagan’s lead, Bork’s Republican supporters characterized him as the heir to a long and noble tradition of responsible judging, a tradition firmly rooted in the judicial deference favored by the turn-of-the-century Progressive movement. “I would ask the committee and the American people to take the time to understand Judge Bork’s approach to the Constitution,” said Republican Senator Bob Dole of Kansas. “That approach is based on ‘judicial restraint,’ the principle that judges are supposed to interpret the law and not make it. Now, Judge Bork did not invent this concept,” Dole continued. “It has been around for a long time. One of the most eloquent advocates was Oliver Wendell Holmes.”3
Bork’s Democratic opponents, meanwhile, followed Kennedy’s example and zeroed in on the ways Bork’s jurisprudence threatened to overturn landmark liberal rulings and upset the current political balance. “As I understand what you have said in the last 30 minutes,” said Senator Joseph Biden, a Democrat from Delaware and chairman of the Senate Judiciary Committee, who was then questioning Bork about whether or not the Constitution secured a right to privacy, “a State legislative body, a government, can, if it so chose, pass a law saying married couples cannot use birth control devices.”4
Bork would repeatedly object to that characterization of his views, but there was no denying that Biden had a point. If the Supreme Court had followed Bork’s restrained approach to legislative determinations in the 1965 case of Griswold v. Connecticut, it never would have invalidated that state’s ban on the use of birth control devices by married couples. Similarly, if the Court had followed Bork’s deferential approach eight years later in Roe v. Wade, Texas’s anti-abortion restriction would still be on the books and women would not enjoy a nationally protected right to terminate a pregnancy.
But Bork’s supporters on the other side of the aisle also had a point. Reagan and Dole were right: Bork was a principled advocate of judicial minimalism. Bork not only opposed what he saw as the Court’s liberal activism in Griswold and Roe, he also rejected what he saw as the conservative activism of Lochner v. New York, the same case denounced by Progressive luminaries such as Holmes, Felix Frankfurter, and Theodore Roosevelt. Indeed, during his confirmation hearings, Bork took pains to remind his Democratic interrogators “that there was a time when the word ‘liberty’ in the Fourteenth Amendment was used by judges to strike down social reform legislation.” Those conservative and libertarian judges, Bork argued, “were wrong because they were using a concept to reach results they liked, and the concept did not confine them, and they should not have been using that concept.”5
It was a sentiment worthy of Justice Holmes himself. Yet not only did Bork’s ode to legal Progressivism fail to win him any additional Democratic supporters, it almost certainly helped doom his already troubled nomination, which eventually went down to defeat in the Senate by a vote of 58–42. That’s because American liberals had long ago abandoned the sort of all-encompassing judicial deference espoused by Holmes and his followers. Instead, modern progressives like Kennedy and Biden took their cues from a new breed of liberal jurist, best represented by figures such as Chief Justice Earl Warren and Associate Justice William O. Douglas. Those justices had led the mid-twentieth-century Supreme Court through what has been dubbed a “rights revolution,” a busy stretch during which state actions were routinely overturned in the name of voting rights, privacy rights, abortion rights, the rights of criminal defendants, and many other rights besides. Put differently, in the half century that fell between the presidencies of Franklin Roosevelt and Ronald Reagan, the American left had learned to stop worrying and love judicial activism.
Footnote Four
The story of this sweeping liberal transformation begins in the most humble of places: a footnote. In 1938, hot on the heels of its famous about-face on the question of liberty of contract versus judicial restraint, the Supreme Court considered the constitutionality of a federal statute charged with depriving entrepreneurs of their economic freedom. At issue in United States v. Carolene Products Co. was a federal law forbidding the interstate shipment of so-called filled milk, which is basically a milk product made with oil rather than milk fat. Because filled milk looks like normal milk or cream while containing a cheaper non-dairy ingredient, the dairy industry viewed the product as a competitor and lobbied successfully for the restriction. Adopting a deferential posture, the Supreme Court concluded that Congress must have had its reasons for passing the Filled Milk Act, and therefore voted to sustain the ban over the objections of the Carolene Products Company, which had hoped to earn a profit by shipping the foodstuff across state lines for sale. When it came to “regulatory legislation affecting ordinary commercial transactions,” the Court declared in its Carolene Products ruling, “the existence of facts supporting the legislative judgment is to be presumed.”6 In other words, judges should give lawmakers the benefit of the doubt and vote to uphold the overwhelming preponderance of economic regulations.
Lawyers today know this approach as the “rational-basis test,” and, in the words of Black’s Law Dictionary, it “is the most deferential of the standards of review that courts use in due-process and equal-protection analysis.”7 Essentially, the rational-basis test requires judges to respect the wisdom of the elected branches and to examine the details of a law only if it seems to lack any conceivable connection to a legitimate government interest. Thus in Carolene Products, because Congress did have a legitimate interest in monitoring the interstate milk market, and because the regulation in
question did not appear to be a completely nonsensical way to advance that interest, the Supreme Court made no attempt to determine whether or not Congress had any verifiable scientific evidence for declaring filled milk to be “an adulterated article of food, injurious to the public health.”8 Had the justices looked further, they might have discovered that filled milk was a perfectly safe (and affordable) alternative to whole-fat milk, as countless consumers could have attested then and could still attest now.
Armed with the rational-basis test, the Supreme Court proceeded to grant overwhelming deference to a range of regulatory measures. In the 1948 case of Goesaert v. Cleary, for example, the Court upheld a Michigan law forbidding women from working as bartenders unless they happened to be “the wife or daughter of the male owner” of a licensed establishment. “We cannot cross-examine either actually or argumentatively the mind of Michigan legislators nor question their motives,” declared the opinion of Justice Felix Frankfurter. “Since the line they have drawn is not without a basis in reason,” he continued, “we cannot give ear to the suggestion that the real impulse behind this legislation was an unchivalrous desire of male bartenders to try to monopolize the calling.”9
Similarly, in the 1954 case of Williamson v. Lee Optical Inc., the Court unanimously upheld an Oklahoma law requiring a prescription from an ophthalmologist or optometrist before an optician was allowed to fit or duplicate eyeglass lenses. Among other results, the law served to ban the longstanding practice of getting an optician to fit old lenses into new frames without a prescription, thereby costing the consumer extra money by mandating a pointless trip to the eye doctor. “The Oklahoma law may exact a needless, wasteful requirement in many cases,” admitted Justice William O. Douglas in his opinion for the Court. “But it is for the legislature, not the courts, to balance the advantages and disadvantages of the new requirement.”10 Furthermore, the ruling added, in what would become shorthand for the Court’s new deferential regime, “It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.”11