by Peter Irons
There was plenty of discussion after Roosevelt’s message reached Congress and reporters had digested it for the public. The presidential message itself did not even mention the potential increase in Supreme Court membership; that was buried in the accompanying bill prepared by Homer Cummings. Roosevelt, clothed his message in concern for the judicial workload: “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.” The president noted that in the past year the Supreme Court had declined to hear 695 of 803 cases presented for review by nongovernmental parties. “Many of the refusals were doubtless warranted,” he conceded. “But can it be said that full justice is achieved when a court is forced by the sheer necessity of keeping up with its business to decline, without even an explanation, to hear 87 percent of the cases presented to it by private litigants?”
Roosevelt made another argument that sounded more like a doctor’s report. “The modern tasks of judges call for the use of full energies. Modern complexities call also for a constant infusion of new blood in the courts.” He continued his diagnosis. “A lowered mental or physical vigor leads men to avoid an examination of complicated and changed conditions. Little by little, new facts become blurred through old glasses fitted, as it were, for the needs of another generation; older men, assuming that the scene is the same as it was in the past, cease to explore or inquire into the present or the future.”
The president made a serious blunder in portraying the justices as doddering graybeards who needed help to shoulder their load. His two premises were demonstrably false. First, there was no evidence that the Supreme Court docket was clogged with a backlog of cases. When Chief Justice Hughes finally shed his reluctance to embroil the Court in the controversy, he sent a letter to the Senate Judiciary Committee citing statistics to show that the Court “is fully abreast of its work,” with “no congestion of cases upon our calendar.” Second, Roosevelt’s equation of age with incompetence deeply wounded Hughes, who was vigorous at seventy-four, and Brandeis, at eighty still one of the Courts’s most productive members.
Roosevelt made another blunder in not allowing discussion of his court-packing plan by the Democratic leaders who had to shepherd it through Congress. Had he asked for comment before February 5, or even at the meeting that morning, he might have avoided the debacle that followed. Hatton Sumners of Texas, who chaired the House Judiciary Committee, refused to introduce the bill. “Boys, here’s where I cash in my chips,” he told friends. The Senate Judiciary Committee chairman, Henry Ashurst of Arizona, gave the plan lip-service backing in public but worked behind the scenes to sabotage it. Senator Burton Wheeler of Montana, a New Deal stalwart, broke with Roosevelt and headed the opposition. The list of Democratic defectors swelled in the month after the President dropped his plan on Congress like a bombshell. There were not enough to defeat the bill, should it come to a vote, but the congressional opponents were prominent and powerful.
The growing realization that his legislative bombshell was a dud prompted Roosevelt to look beyond Congress for support. The first—and perhaps greatest—political master of the airwaves held a lengthy Fireside Chat with the American people on March 9, 1937. Dropping all pretence about judicial overwork and senility, the president revealed his real complaint about the Court: he disliked its decisions. He charged that the Court “has improperly set itself up as a third House of the Congress—a 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.” One by one, Roosevelt ticked off decisions that struck down federal and state laws, quoting with approval from the dissents of Chief Justice Hughes and Justice Stone. He omitted, of course, the Schechter case, in which the Court unanimously voided the industrial Recovery Act.
Roosevelt struck a messianic note in his appeal. “We have,” he argued, “reached the point as a Nation where we must take action to save the Constitution from the Court and the Court from itself.” He made clear his intention to create a “liberal-minded Judiciary” of “younger men” who were not “fearful of the future” but who understood the “modern facts and circumstances under which average men have to live and work.” Embracing the slogan of his critics, the President said that “if the appointment of such Justices can be called ‘packing the Courts,’ then I say that I and with me the vast majority of the American people favor doing just that thing—now.”
The public majority behind Roosevelt’s plan was hardly vast, but his Fireside Chat did shift opinion to his side, although most of those polled indicated a preference for constitutional amendment rather than legislative court-packing. But the calculations of politicians who counted votes on Capitol Hill, on both sides of the issue, were abruptly revised when the Supreme Court issued its decision on March 29, 1937, in West Coast Hotel v. Parrish, a case that challenged Washington State’s minimum wage law for women. This case reflected, in Elsie Parrish’s suit for back wages, the struggles of many workers to “keep body and soul together” during the Depression, as Justice Stone wrote in his Morehead dissent. Parrish worked at the Cascadian Hotel in Wenatchee, Washington, the center of the state’s apple-growing region. The Cascadian, which was owned by the West Coast Hotel Company, paid her twenty-two cents an hour for cleaning toilets and making beds. When the manager discharged her in 1935, Elsie Parrish discovered she had been paid less than the weekly minimum wage of $14.30, set by state law. She demanded $216.19 in back wages, and the manager offered to settle for $17. She turned him down and found a local lawyer who took her case for a small fee. The Supreme Court agreed to resolve this $200 dispute after Washington’s high court thumbed its nose at the Adkins decision and ruled for Elsie Parrish.
The Supreme Court’s ruling on the Washington law surprised many people. Justice Owen Roberts, who had voted with the Four Horsemen to strike down New York’s virtually identical law in the Morehead case, switched sides in West Coast Hotel v. Parrish to join Chief Justice Hughes and the Three Musketeers. What historians have called the “Constitutional Revolution” of 1937 had begun, with a most unlikely revolutionary on the judicial ramparts. In his majority opinion, Chief Justice Hughes laid out three reasons for his “reexamination of the Adkins Case.” He first noted the “importance of the question” to the many states with minimum wage laws similar to Washington’s. The “close division” of the Court in Adkins provided a second reason. Hughes finally cited “the economic conditions which have supervened” since Adkins was decided in 1923. This last factor was clearly the most important in his mind. “We may take judicial notice of the unparalleled demands for relief which arose during the recent period of depression and still continue to an alarming extent despite the degree of economic recovery which has been achieved,” Hughes wrote. He did not need statistics to show the extent of suffering that was “common knowledge through the length and breadth of the land.” Hughes sounded more like a Socialist than a Republican in calling the “exploitation of a class of workers” like Elsie Parrish a “compelling” reason to protect them from “unconscionable employers” like the West Coast Hotel Company.
Hughes turned his guns on the crumbling fortress of laissez-faire doctrine. Those who challenged minimum wage laws, he noted, always claimed they deprived workers of their “freedom of contract.” Hughes posed a rhetorical question and answered for the new majority. “What is this freedom? The Constitution does not speak freedom of contact. It speaks of liberty and prohibits the deprivation of liberty without due process of law. In prohibiting that deprivation the Constitution does not recognize an absolute and uncontrollable liberty.” The Chief Justice fashioned a modern definition of “liberty” from ancient terms. “Liberty in each of its phases has its history and connotation. But the liberty safeguarded is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, mora
ls and welfare of the people. Liberty under the Constitution is thus necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process.” Hughes stated the obvious when he concluded that “the case of Adkins v. Children’s Hospital should be, and it is, overruled.”
Chief Justice Hughes spoke for “the people” and their “community” in his West Coast Hotel opinion, but his words were not new. Exactly a century earlier, in 1837, Chief Justice Roger Taney proclaimed in Charles River Bridge that “the community” had “rights” under the Constitution and that “the happiness and well being of every citizen depends on their faithful preservation.” But Taney spoke for a “community” that denied slaves and women and working people most of the “rights” enjoyed by white men with property. A century later, the Constitution had been amended to abolish slavery and give blacks and women the vote, and the Court had upheld state power to require minimum wages for workers. These rights of a broader community were not always respected, particularly those of blacks in the South, but the Supreme Court had finally defined “the people” without distinctions of race, sex, or wealth. How the Court would rule in cases seeking vindication of those rights by people who had long been denied them remained to be seen.
The Four Horsemen—all over seventy, and with eighty years on the Court between them—knew they had fought and lost their final judicial battle. Justice Sutherland, who spoke for the Court in Adkins, wrote its epitaph in his West Coast Hotel dissent. But he was truculent in defeat. He found no power in the Constitution to protect “exploited” workers against “unscrupulous” employers. “The remedy in that situation—and the only true remedy—is to amend the Constitution,” Sutherland wrote. In a real sense, the new majority had done just that. Hughes had written that legislation “adopted in the interests of the community is due process.” Those words transformed the Due Process Clause from a negative restraint on state power into a positive force to promote the “public interest.”
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“Hughes Thundered Out the Decision”
The Court’s decision in West Coast Hotel v. Parrish on March 29 was simply the opening salvo in the “Constitutional Revolution” of 1937. Two weeks later, the justices handed down another ruling of equal constitutional significance, in a case that tested congressional power to protect the right of workers to organize unions and bargain with their employers over contract terms. This case, National Labor Relations Board v. Jones & Laughlin Steel Company, grew out of legislation first passed by Congress during the “Hundred Days” session in 1933. Responding to pressure from union leaders who had supported President Roosevelt’s election, Congress provided in Section 7(a) of the National Industrial Recovery Act that “employees shall have the right to organize and bargain collectively through representatives of their own choosing, and shall be free from the interference, restraint, or coercion” of employers. Union organizers promptly swarmed to factory gates with leaflets telling workers, “The President Wants You to Join the Union!” Roosevelt, in fact, only grudgingly accepted Section 7(a) as a concession to union leaders who backed Senator Hugo Black’s proposal to increase employment through a thirty-hour work week. The president had both economic and constitutional objections to Black’s bill, and adding “Labor’s Bill of Rights” to the Recovery Act paid his campaign debts to organized labor.
But unions did not organize many workers under the Recovery Act, largely because the National Labor Board, set up to enforce Section 7(a), could not force anti-union employers to obey its orders. The board ruled that unions chosen by majority vote had “exclusive” rights to represent all workers in a bargaining unit. Employers insisted that members of “minority” unions—most often “company unions” they funded and controlled—be allowed to bargain for separate contracts. Roosevelt himself undercut the board’s powers when he intervened in March 1934 to settle disputes between striking autoworkers and industry leaders over union election rules. Without consulting the board, Roosevelt forced union leaders to make room at the bargaining table for the company union.
The president’s endorsement of the “minority rule” made the National Labor Board totally impotent. His support of industry’s position had two other effects. Angry workers responded in April to Roosevelt’s “sellout” with a strike wave that began in Toledo with auto parts workers and quickly spread to truck drivers in Minneapolis, longshoremen in San Francisco, and textile workers throughout the South. The country was engulfed in virtual class warfare, as strikers battled police and the death toll mounted. Faced with a threatened national strike by steelworkers, Roosevelt persuaded Congress to create a new body, the National Labor Relations Board, with power to order and supervise union elections. The new board, however, relied on Justice Department lawyers for enforcement, and they did not support the “majority rule” policy on union representation. The vice president for industrial relations of U.S. Steel told the press that the new board “is not going to bother us very much.”
But the president’s move greatly bothered Senator Robert Wagner of New York, a New Deal loyalist and labor’s chief ally in Congress. Wagner challenged Roosevelt by introducing the National Labor Relations Act in February 1935. This bill retained Section 7(a) of the Recovery Act, but added a list of “unfair labor practices” that prohibited employers from supporting company unions, firing workers for union activities, and refusing to bargain with unions. The Wagner Act also codified the majority rule policy by granting “exclusive representation” to unions that won elections and placing enforcement powers with the Labor Board’s lawyers. Roosevelt first adopted a hands-off position that encouraged Wagner’s opponents, including Labor Secretary Frances Perkins and Attorney General Homer Cummings, whose departments shared enforcement duties under the Recovery Act and stood to lose ground in this political turf war. Several factors, however, pushed Roosevelt off the fence. The 1934 elections added to labor’s clout in Congress, some two million workers joined industrial unions, and the Supreme Court struck down the Recovery Act in the Schechter case. Roosevelt finally gave his blessing to Wagner’s bill, and the former antagonists smiled for the cameras when the president signed the National Labor Relations Act at the White House on July 5, 1935.
Having cleared the hurdles of Congress and the White House, the Wagner Act faced its greatest obstacle in the Supreme Court. The bill’s preamble declared that denying workers the rights to organize and bargain collectively led to “strikes and other forms of industrial strife and unrest,” which in turn constricted the flow of goods into the “channels of commerce” and adversely affected levels of employment and wages. The preamble also stated that the “inequality of bargaining power” between employers and workers deprived the latter of “actual liberty of contract,” and that this deprivation “substantially burdens and affects the flow of commerce” between states. Given the twin pillars of Due Process and Commerce Clause precedent blocking their path, the bill’s drafters hoped that pushing one against the other would topple both.
The Labor Board’s general counsel, Charles Fahy, came from the Interior Department, where he had drafted the “hot-oil” regulations the Supreme Court struck down in the Panama Refining decision. Fahy was determined not to lose another case, and he directed the young lawyers on his staff—as one later recalled—to “search out good test cases” that fit into his “master plan for testing the constitutionality” of the Wagner Act. Fahy wanted to present the Court with a package of cases that reflected the range of industries—both large and small—covered by the Wagner Act. He also directed his lawyers to carefully prepare records with strong evidence of “unfair labor practices” by employers who fired union members or refused to bargain with them.
Armed with these marching orders, Fahy’s legal platoon fanned out across the country and conducted dozens of “unfair labor practice” hearings. They returned to Washington with b
ulging files of testimony and affidavits, which they presented to the Labor Board for decision and enforcement orders. They went back to federal circuit courts for judicial enforcement of orders that employers had refused to obey. After consulting Fahy’s “master plan” for guidance, they offered him five cases that fit his criteria for presentation to the Supreme Court. All they had in common was records of “unfair labor practices” by employers and their refusal to obey the Labor Board’s orders.
Fahy wanted one case against an industrial giant with interstate activities and a record of labor strife. He found a good candidate in the Jones & Laughlin Steel Company in Pennsylvania, the nation’s fourth-largest steel producer and an anti-union bulwark since 1897. With some 22,000 employees, Jones & Laughlin owned iron ore, coal, and limestone properties in several states, and railroad and barge subsidiaries for shipping raw materials into Pennsylvania and finished products out of the state. The Labor Board filed charges after the company fired some twenty union supporters before an election scheduled for June 1935. “There is an exceedingly vicious history of terrorism in this community,” the board’s regional director reported of the company’s anti-union campaign at its main plant in Aliquippa, Pennsylvania.