A People's History of the Supreme Court

by Peter Irons

  Fahy hoped the Supreme Court would uphold the Labor Board’s power to force Jones & Laughlin to rehire its fired workers and recognize their union. But he also wanted the Court to recognize the board’s jurisdiction over smaller companies with less direct impact on interestate commerce. Fahy picked other cases to give the Court a full menu for its five-course dinner. The second case involved the Freuhauf Trailer Company, a leading truck-trailer manufacturer. Company foremen had fired six union members and threatened others with discharge if they did not quit the union. Another advantage of the Freuhauf case was that the company had infiltrated the union with spies from the Pinkerton Detective Agency; this was the kind of “interference” with unions the Wagner Act prohibited.

  Fahy picked a third case from the garment industry, a battleground of labor conflict. The Friedman-Harry Marks Company produced men’s clothing in Virginia and was an organizing target of the Amalgamated Clothing Workers Union. The company’s president, Morton Marks, had been caught spying on a union meeting at a church; the next day, his plant manager fired four workers who attended the meeting. Fahy also wanted cases involving companies that did not manufacture goods but provided services on an interstate basis. He found one in the Associated Press, which provided hundreds of newspapers with articles by its reporters. The company was locked in a bitter dispute with the American Newspaper Guild over the transfer of union activists to night-shift jobs. The news agency fired the guild’s vice president, Morris Watson, after he protested the moves. “He is an agitator and disturbs morale of staff,” wrote the company’s executive editor the day he fired Watson. Fahy’s final case was a last-minute substitution for one against the Greyhound Bus Lines, which became stalled in a hostile federal court in Philadelphia. Searching his docket for bus cases, Fahy found one against the Washington, Virginia, and Maryland Coach Company, which carried passengers in the capital area and had fired eighteen employees for union activities.

  The Supreme Court arguments in the Wagner Act cases began on February 9, 1937, and spanned three days, with eager crowds packing the chamber for hints of the Court’s reaction to President Roosevelt’s court-packing proposal. Eleven lawyers addressed the justices in the five cases, devoting a torrent of legal oratory to the government’s claim that labor strife diverted the “stream of commerce” between states and thus provided Congress with power to smooth its currents with the Wagner Act. The most noted lawyer on the corporate side was John W. Davis, a former solicitor general who now headed a prominent Wall Street firm. Arguing for the Associated Press, Davis assured the justices that he did not dispute the merits of trade unionism or collective bargaining, but he did challenge “the power of the Federal Government to make collective bargaining compulsory in all the industries of this country.” Davis aimed his fire at the government’s “stream of commerce” theory, which relied for precedent on Supreme Court decisions that upheld federal regulation of grain elevators and stockyards. “There is no current here,” Davis said of the news-reporting business. “We do not sit like the stockyards, abreast a current of commerce which other men are trying to conduct.” Charles Fahy responded for the government that strikes in one state blocked the shipment of goods to other states. He urged the Court to uphold “the right of self-organization” by workers. “Unless that right may be protected by law there is only recourse to strike in order that it may be protected by combat,” Fahy warned.

  More than a thousand people lined up outside the Supreme Court on April 12, 1937, hoping to find places among the 220 seats in the red-curtained courtroom. They wanted to witness the next act in the constitutional drama that had begun two weeks earlier with the West Coast Hotel decision. Those who crowded the chamber were treated to a bravura show by Chief Justice Hughes. Without a glance at the audience, he began reading his majority opinion in the Jones & Laughlin case, the first of the five Wagner Act decisions. “It was an amazing performance,” recalled a Labor Board lawyer, Tom Emerson. “Hughes thundered out the decision with his beard wagging. You would have thought that he was deciding the most run of the mill case, that the law had always been this way, that there had never been any real dispute about it, and that he was just applying hundreds of years of decisions to a slightly new kind of situation,” Emerson said. “And he did it with an air of absolute confidence, as if the Constitution had always been construed this way.”

  At this turning point in constitutional history, Hughes barely looked back at the Schechter and Carter Coal decisions of 1935, noting only that the distinction between interstate and intrastate commerce remained “vital to the maintenance of our federal system.” But the heart of his opinion was judicial recognition of the reality of a national economic system. “We are asked to shut our eyes to the plainest facts of our national life and to deal with the question of direct and indirect effects in an intellectual vacuum,” Hughes wrote of those who read the Commerce Clause through nineteenth-century lenses. “When industries organize themselves on a national scale, making their relation to interstate commerce the dominant factor in their activities,” he asked, “how can it be maintained that their industrial labor relations constitute a forbidden field into which Congress may not enter when it is necessary to protect interstate commerce from the paralyzing consequences of industrial war?”

  With that question and the Court’s answer, Hughes cleared the constitutional no-man’s-land of all barriers to state and federal regulation of labor relations, from hiring to firing. The Court had finally opened its eyes to the twentieth century. Charles Fahy’s careful preparation of test cases brought victory in all five. Amazingly, the Court unanimously sustained the Labor Board’s powers in the Coach Company case; even the Four Horsemen were unwilling, as their constitutional fortress collapsed about them, to deny federal jurisdiction over interstate transportation. But they remained defiant in defeat. Justice James McReynolds, the most crusty of the conservatives, read their dissent in the three manufacturing cases. A reporter described the scene: “Old McReynolds was sore as hell,” he wrote, “poking his pencil angrily at the crowd as he shouted his opinion” to the audience. His opinion cited two of the old “yellow dog” contract cases on the due process question and Schechter on the commerce issue, although none of these cases remained alive as precedent; McReynolds was attending their judicial funeral. But he wrote as if Jones & Laughlin’s plant managers were inviting guests to a garden party. “The right to contract is fundamental and includes the privilege of selecting those with whom one is willing to assume contractual relations,” he stated. “This right is unduly abridged by the Act now upheld. A private owner is deprived of power to manage his own property by freely selecting those to whom his manufacturing operations are to be entrusted.” But the court’s ruling meant that company managers could no longer evict union members from their premises.

  When McReynolds put down his pencil and stopped shouting, the Four Horsemen of Reaction left the bench in silence. The “industrial war” that raged outside the court had inflicted casualties within its chambers. Like the Articles of Confederation in 1787, the laissez-faire Constitution of the Lochner era was replaced in 1937 by a charter that “the people” ratified at the ballot box. The plainest facts of our national life” were finally acknowledged in the new Constitution, unchanged in wording but profoundly altered in meaning.

  The Supreme Court truly launched a “Constitutional Revolution” with its West Coast Hotel and Jones & Laughlin decisions, which demolished the laissez-faire doctrine of the Lochner era. But the enormous constitutional significance of these two rulings has been overshadowed by debate over their relation to President Roosevelt’s court-packing proposal. In particular, historians have scrutinized the about-face by Justice Roberts between the Morehead and West Coast Hotel decisions, which prompted quips at the time about “the switch in time that saved nine.” Many historians have repeated this quip, and have assumed that Roberts switched positions in response to Roosevelt’s court-packing plan.
But a closer look at events between the Morehead decision in June 1936 and West Coast Hotel in March 1937 will dispel the “switch in time” myth.

  The significant date in this chronology is actually December 19, 1936, when the justices voted on the West Coast Hotel case at their closed-door conference, two days after arguments concluded. Justice Roberts joined Chief Justice Hughes and Justices Brandeis and Cardozo in voting to uphold Washington’s minimum wage law. However, Justice Stone was seriously ill and did not attend the conference. Under the Court’s rule, the four-to-four tie vote left the lower-court decision standing and would have sustained the Washington law. Everyone knew that Stone would repeat his Morehead vote, so Roberts had really decided the West Coast Hotel case in December, before Roosevelt finally settled on the court-packing plan and two months before he sent his proposal to Congress.

  Chief Justice Hughes, however, had agreed to hold up decisions in close cases until Stone returned to the bench. Another reason for delay was that the Court does not issue opinions in cases decided by tie votes. Hughes wanted to write for the Court in West Coast Hotel, and he wanted Stone to read his opinion before it was issued, in case Stone had revisions to suggest or decided to write a concurrence of his own. Stone’s recuperation took longer than expected, and he did not return to the Court until February 1, 1937. According to Roberts, Stone cast his vote at the conference on February 6, the day after Roosevelt dropped his court-packing bombshell on Congress. Hughes had probably drafted his West Coast Hotel opinion by this time, but he very likely held up the decision until the justices had circulated their opinions in Jones & Laughlin and the other Wanner Act cases. Arguments in these cases had begun on February 9, and Hughes was writing the majority opinion in Jones & Laughlin, the most important Wagner Act case. It is also likely that Hughes delayed the West Coast Hotel decision until the Senate Judiciary Committee released his response to the court-packing plan on March 22.

  The combination of Stone’s illness, the uproar over Roosevelt’s proposal, and the Court’s work on the Wagner Act cases explains the long delay in the West Coast Hotel case. This chronology of events also shows that Roberts’s switch was not influenced by announcement of the court-packing plan in February 1937. But it does not explain why he switched. His own later explanation—given after he retired in 1945—is unconvincing. During the conference on March 30, 1936, to consider New York’s appeal in the Morehead case, Roberts wrote, “I said I saw no reason to grant the writ unless the Court was prepared to reexamine and overrule the Adkins case. To this remark, there was no response around the table.” None was needed, in fact, because four justices had already voted to hear the case. During the argument on April 29, New York’s lawyers tried to “distinguish” the Adkins decision and did not press for its reversal. “The argument seemed to me to be disingenuous and born of timidity,” Roberts wrote. “I could find nothing in the record to substantiate the alleged distinction. At conference, I so stated, and stated further that I was taking the state of New York at its word” and would vote against its law.

  It is more likely that Roberts was being disingenuous. If he wanted to reverse Adkins, nothing prevented him from joining a majority to do that. No canon of constitutional law requires that justices wait until lawyers ask them to overrule a precedent. In their Morehead dissent, the Three Musketeers argued that the Nebbia decision of 1934 had effectively reversed Adkins and that the Court became “free of its restriction as a precedent” in later cases. What Roberts did not say, however, was that—despite later denials—he still harbored presidential ambitions while Morehead was before the Court. The New York Times reported predictions of a “substantial ‘favorite son’ vote” for Roberts by Pennsylvania delegates to the GOP convention in June 1936. Lacking any consistent judicial philosophy, Roberts might well have decided that voting to uphold a law backed by New Dealers would not please the upper-crust Republicans who urged him to seek his party’s nomination. This is speculation, but it makes more sense than Roberts’s claim that he was waiting for an invitation to overrule Adkins, but did not receive one until West Coast Hotel reached the Court in October 1936.

  Most historians now agree that Roberts switched positions in December 1936, two months before the unveiling of Roosevelt’s court-packing plan. They conclude from this fact that Roberts’s vote in West Coast Hotel was not influenced by the plan and the ensuing uproar. But it is nonetheless possible that reports of such a plan did affect Roberts. On October 8, 1936, the New York Times reported a speech by former senator James Reed of Missouri, charging that President Roosevelt had “threatened to ‘pack’ the Supreme Court by increasing its membership.” Reed said that if FDR denied this claim, “I’ll prove it by documentary evidence.” The press reported no presidential denial or evidence from Reed, and the issue did not resurface during the final weeks of the presidential campaign. But the question had been raised, and Roberts was certainly aware that Congress had several times increased the Court’s membership and that Roosevelt might consider this an option.

  Four days after this court-packing story, Roberts voted to hear the West Coast Hotel case. This coincidence proves nothing, but its place in the sequence of events may help us understand why Roberts switched his votes in the minimum wage cases. The answer clearly lies closer to politics than to jurisprudence. Roberts was hardly the first presidential aspirant on the Supreme Court, nor the last. He did not campaign from the bench, but neither did he publicly disavow his “favorite son” supporters in Pennsylvania. Roberts cast his Morehead vote at a time when a “conservative” position might increase his political appeal to Republican delegates. By October 1936, however, no doubt remained that Roosevelt would win the election. And his crushing victory in November must have impressed Roberts, who did not share the ideological fervor of the Four Horsemen. Roberts had voted in the Home Building and Nebbia cases to uphold state laws, and we might better consider his Morehead vote an aberration and West Coast Hotel a return to this judicial path.

  So there was, after all, a “switch in time that saved nine.” The fact that it happened close on the heels of Roosevelt’s election victory and not after his blunder in sending the court-packing plan to Congress underscores the truth of Mr. Dooley’s aphorism that “the Supreme Court reads th’ iliction returns.” Political events outside the Court affect decisions within its chambers, often slowly but sometimes quickly. And things moved quickly as the Court finally responded to the “felt necessities” of the American people in 1937.

  The “Constitutional Revolution” inflicted its first judicial casualty on May 18, with the announcement by Justice Willis Van Devanter of his retirement at the term’s end in June, after twenty-six years on the Court. Ironically, the Senate Judiciary Committee retired President Roosevelt’s court-packing plan the same day, with a formal report of disapproval. Despite his legislative defeat, Roosevelt gained what he really wanted with Van Devanter’s departure, a chance to begin shaping a “liberal-minded” Court. Before his second term ended in 1941, the president had placed seven New Dealers on the bench and elevated an honorary New Dealer—Harlan Fiske Stone—to the post of Chief Justice. With these nominations, Roosevelt fulfilled his pledge to pump “younger blood” into the Court’s hardened arteries; the new justices averaged fifty-two years in age when they joined the Court, replacing men who averaged seventy-seven when they left. This quarter-century difference in age reflected a century’s difference in outlook. The older justices all began their legal practices in the nineteenth century, their successors in the twentieth.

  The man Roosevelt named to replace justice Van Devanter, Senator Hugo Black of Alabama, perfectly fit the president’s judicial mold as a fifty-one-year-old Democratic loyalist with a liberal record. The eighth child of a small-town merchant, Black grew up in rural Alabama and befriended the sharecroppers, both white and black, who patronized his father’s store. He never finished high school, but completed both liberal arts and law degrees in
three years at the University of Alabama. Black practiced law in Birmingham, also serving as police court judge. During three years as the city’s prosecuting attorney, he brought charges against several police officers for abusing black defendants. Elected to the Senate in 1927, Black staked out a liberal position well before he joined the New Deal majority in 1933. Many considered him a “radical” for championing the causes of poor people, and his nomination drew opposition from the conservative press. The Washington Post faulted him for “lack of training on the one hand and extreme partisanship on the other,” and the Chicago Tribune declared that Roosevelt had picked “the worst he could find” for the Court.

  The worst thing about Hugo Black was his membership in the Ku Klux Klan as a young Alabama politician. The press reported his Klan affiliation before the Senate confirmed Black in August 1937 by sixty-three to sixteen, with all the negative votes cast by conservative Republicans. This issue did not cost him votes; Black’s colleagues accepted his claim that he thought he was joining a social club and resigned in 1925 when he discovered the Klan’s true nature. However, shortly after Black took his Supreme Court oath on August 17, reports surfaced that in 1926 he had secretly been sworn to life membership in the Klan. Black remained silent for six weeks, but the growing press storm finally bent his resolve not to respond. He stepped before radio microphones on October 1 and spoke to a national audience. “I did join the Klan,” Black admitted. “I later resigned. I never rejoined.” He did not consider the “unsolicited” life membership card he received in 1926 “as a membership of any kind in the Ku Klux Klan,” Black explained. “I never used it. I did not even keep it.” He urged his listeners to consider instead his membership in “that group of liberal Senators who have consistently fought for civil, economic and religious rights of all Americans, without regard to race or creed.” Black’s forceful and forth-right words satisfied most critics, and during thirty-four years on the Court he consistently fought for the rights of the poor people and blacks he grew up with in Alabama. Only in his eighties, increasingly crotchety and conservative, did Black chastise young people who protested Jim Crow laws and the Vietnam War for “running loose” and rejecting the “parental discipline” of their elders.