by Amity Shlaes
Much in the Schechters’ culture would have made it easier for them to sympathize with the New Deal than with its opponents. The Schechters were first-generation immigrants: in America, but not yet entirely of America. They were the kind of newcomers who had invested their money in the Bank of United States, the one that had failed. Their vocabulary was profane. Their intonation and syntax were the sort we today associate with a stand-up comic from the Catskills. It was the sort of speech high school teachers banned from their classrooms and judges banned in courtrooms.
To people like the Schechters, the New Deal sounded good, for the old deal was problematic: their industry had declined steadily since the crash of 1929; by 1933, nearly a thousand of the 2,000 or so jobs in their field in the New York area had evaporated. There were people in Brooklyn who would have gone straight over to the Soviet model, given the choice. One of the areas served by the Schechters, Brownsville, had elected Socialists to the State Assembly in the past. A Hebrew Butcher Workers Union Local 234 had existed in Brownsville since 1909; there was even, at the time of the NRA creation, or soon after, a group that proudly called itself the New Deal Kosher Butchers Association, Inc.
But this confidence in progressive thought antedated any New York experience. European immigrants as a collective had experienced life under a random ruler—a czar, a sadistic regional governor, a Hapsburg emperor. This left people like the Schechters with a natural sympathy for the underdog, and the New Deal was a project undertaken in the name of the underdog. One of the first New York projects to win PWA funding was the Triborough Bridge, whose construction the Schechters or their fellow tradesman witnessed as they carted their fowl about New York.
The NRA code that applied to the Schechters was the Code of Fair Competition for the Live Poultry Industry of the Metropolitan Area in and About the City of New York, a lengthy and forbidding document. Section 2 of article 7 declared it was prohibited “knowingly to purchase or sell for human consumption culls or other produce that is unfit for that purpose.” Businesses could not sell unfit animals. Nor could they exchange in “destructive price cutting.” The code prohibited “straight killing,” defined it as “killing on the basis of official grade.” The rule meant that customers might select a coop or a half coop of chickens for purchase, but they did not “have the right to make any selection of particular birds.” This went directly against the old marketplace rule of customer choice.
Yet all these rules, the letter of transmittal assured, were “not designed to promote monopolies or eliminate or oppress small enterprises.” The argument was that they would help small business by eliminating competition. FDR had personally signed this code into law by executive order just a few months before the first inspectors appeared at the Schechters’ door. As for the Schechters, they had not signed on to it personally, but were bound to comply as members of the trade.
Even finding themselves under inspection over the summer of 1934, the Schechters had at first been inclined to go along. They knew of Walter Lyman Rice, the special federal prosecutor, and probably feared him. The young federal prosecutor had earlier pulled them in as witnesses—not necessarily willing ones—in his poultry corruption case of the late 1920s. Earlier in 1934 he had been in the news looking into poultry violations of the Sherman Anti-Trust Act. They had escaped that first case mostly unscathed, and sought to get through this action by keeping their heads low as well. They had tried to ingratiate themselves with investigators over the summer. Aaron Schechter reported later that he and an inspector, Philip Alampi, had gotten along “swell” except when Alampi was “insulting” the customers.
The brothers had also followed the rules involving “straight killing” as best they could. Aaron later told stories of customers who had asked to select their birds, and his own rule-abiding response: “I am sorry, but we are under the code, and that is straight killing.” This, Aaron would point out, had caused him to lose customers. Brother Alexander offered to help an investigator interpret the company books, as he would later report. “Well, I helped him. In case he needed me or the bookkeeper, I always helped. If he does not know what is what, and I knew something about it, I would help him and show him and the other gentlemen would, too.”
Joseph Schechter would later recall an inspector who had appeared “by the name of Bob.” The inspector had been a “very nice boy…. He don’t know from a chicken. And I started in to teach him what a chicken is, and my man and myself teach him what a chicken is, what a rooster is, and what a spring is.”
But what the Schechters had kept coming back to in that first trial was that the inspectors from the government had been too hard to deal with. Aaron had recalled that Alampi had started arguing with customers and had also insulted one of them. “He told the customer that he is full of shit, and ‘I am the Code Authority, and I got a right to do anything I want, and if you don’t like it, get out.’” As Aaron had noted, this had seemed wrong: “Well, that hurted me a little bit, to hear that, so I called him aside and I said, ‘Mr. Alampi; please try to restrain yourself from using language like that, because I will lose my trade, and the result will be that you will chase me out of business.’” Later, at another point, Aaron sent Alampi away. Alampi had returned with police. “Well, why don’t you let him in? He is the Code Authority,” Aaron remembered the police saying. “I said, ‘I will not. I am not going to let anybody in here to ruin my business.’”
This little exchange, between a local man with a local policeman over an intruder from some distant office, had been a sort of parable of the offense to traditional federalism that the NRA and the codes represented. A local policeman was the locals’ own guy. Washington’s representative, or even an industry representative, was a trade enemy or an intrusive foreigner. In other words, the code inspectors had now indeed been doing something that did oppress small business, to repeat the language of the poultry code. They were busting in on an intimate private relationship: that of the small businessman with his customer. When the documents arrived, the Schechters’ sense of resentment had only grown. The brothers had known that code authorities were after them, but learning of the sixty-count indictment, they realized the elaborate nature of the setup. They had been charged with selling unfit chickens to two men, Sam Tanowitz and Harry Strauber. This time, Walter Rice was not using them; he was targeting them. What’s more, “the indictment was lengthy and vague, making it impossible to understand the nature and cause of the accusation against them,” their attorney complained. The Schechters had trouble keeping up with their business while on trial; they realized they would have to spend the autumn downtown at the courthouse; they might go to jail. Their larger competitors could only profit from their misfortune.
The jury trial was presided over by the Honorable Marcus B. Campbell and took place in the District Court for the Eastern District of New York—just on the Brooklyn side of the Brooklyn Bridge. The scene in the courtroom was a culture clash. On the one side were the Schechters, clearly working people and clearly foreign born. Their lawyer was Joseph Heller, a fellow Jew who had attended Brooklyn Law School. On the other side were the gentlemen—gentlemen of the New Deal, and gentlemen of the New York legal establishment. The prosecutor was Rice. Judge Campbell was a Mason, a member of the fancy Brooklyn Club on Remsen Street, and a member of the Union League Club. He had been appointed to the federal bench by President Harding, and had been an active Republican in the Sheepshead Bay section of Brooklyn before that. He was of Brooklyn, like the Schechters and Heller, but his Brooklyn might have been the Brooklyn on another planet, it was so different.
The Schechters were especially frustrated that the government did not understand the consequences of its own “sick chicken” allegation. To sell a sick chicken broke the NRA code, and that was all the government lawyers understood. But to suggest, as they had, that Schechter chickens were unfit was also to suggest something that the Schechters viewed as far worse: that they were not good Jews. It was to suggest that their kosher sl
aughterhouse was not really kosher, and so unworthy of customers. In other words, the poultry code officers had done something worse than anger the Schechters. They had offended their dignity. These were things worth fighting over. The idea that a government regulation was higher than a religious precept was not something the Schechters were entirely ready to accept. Felix Frankfurter’s quasi-religious feeling about Harvard Law School neither the Schechters nor their shochtim would have understood.
Because of their trade, the Schechters were also able to see something clearly, something that FDR had not seen. It was that the NRA code did not make sense. The clash came in several areas. The first was prices. The code forbade setting prices too low, in part to combat a general “low price problem”—deflation. But one could not drive all prices up generally by ordering a specific business to charge more. Something larger about the currency had to change.
And the NRA’s price-fixing rule was destructive to smaller business. Their customer base was fragile: “Our business is not steady for every week,” as one brother had testified in the fall. The market was fickle. “Every wholesaler,” Martin Schechter explained to the Brooklyn Court, “has chicken dealers who go around, they are not steady customers.” And: “Chicken dealers will walk into my place and wouldn’t like my price, and he would go out again.”
In fact, if there was anger in the city in those years about the price of meat, it was anger that the price was so high. Customers of kosher meat were among the most vociferous and organized of those angry people. The new A & P supermarket was selling fryers at 19 cents a pound, whereas the market price of live birds was something like 21 cents—competitive. This was the productivity the economists had studied in the 1920s. The next year, 1935, Jewish wives in Brighton Beach and Coney Island would boycott kosher meat with the demand that prices come down. Of course the live markets had to consider such facts.
Yet the prosecutors had not. “Your price is not very stable, is it?” a prosecutor asked Martin Schechter at one point, seeking to draw out evidence that Schechter was violating the code by undercutting with low prices. “The market isn’t stable,” Schechter replied. It might be 15 cents today, the market quotation, and tomorrow 18 cents. “We got our prices according to what the market might be,” answered Martin.
The attorney, Walter Rice, accused the Schechters of competing too hard. And again, Martin Schechter struggled to grasp what to a businessman seemed an ungraspable concept.
RICE: You are in very keen competition with your competitors?
SCHECHTER: I do not understand that question.
RICE: Do you know what competition means?
SCHECHTER: I do.
RICE: There is a lot of competition between you and your competitors, is there not?
SCHECHTER: There is a lot of competition in every other business, the same thing.
RICE: Yes, and the competition in the whole slaughterhouse business is very keen, is it not?
SCHECHTER: Well it is keen in every other business in the same way.
It was not merely the word “keen” that Schechter had trouble with. It was also the difference between the language of law on the one hand and the language of economics on the other. Walter Rice was saying that the economy must operate one way because the law said so. Schechter was saying it could not. The market had its own natural laws, the laws of chicken blood, competition, and profits. It was neither good nor evil.
The Schechters especially resisted the notion that they were as immoral as the prosecution was trying to make them out to be. Their business was a small one: Martin was secretary; Alex, president; Aaron, treasurer. They were assisted by Shochet Gershon and Shochet Weisman. They paid themselves $35 a week, a wage that was less than that of the staff of the code authority who investigated them. The prosecutors repeatedly asked them about stockholders, and encountered incomprehension: there were no stockholders, other than the brothers. There was not even a formal business agreement.
And when the prosecutors ignored all this logic, it only made the Schechters and their friends move from resentment to outrage. They had seen that there was a kind of intellectual bigotry to the way the prosecutors were proceeding, and found it impossible to refrain from objecting. Walter Rice aimed to discredit as ignorant a long-standing member of the trade, a broker, Louis Spatz. He asked him: “You are against the code, aren’t you?” “Certainly,” Spatz replied. Next Rice moved onto the topic of Spatz’s qualifications for such statements.
RICE: You are an expert?
SPATZ: I am experienced but not an expert.
RICE: You are not an expert on the effect of competitive conditions upon the prices of live poultry?
SPATZ: I am experienced—
RICE: Are you an expert?…
SPATZ: I am not an expert about anything.
Later Rice went on: “You have not studied agricultural economics.” Spatz: “No, sir.” Rice: “Or any sort of economics?” “No, sir.” Rice: “What is your education?” Spatz: “None. Very little.” But Spatz got past the intimidation, and struck back: “In my business, I am the best economist.” Rice parried: “What is that?” And Spatz now qualified: “In my business I am the best economizer.”
Rice thought he had gained a small advantage in the case by making Spatz betray his lack of education through the inappropriate use of a word. More generally, both Rice and the judge had sought to use the Schechters’ social class against them. The prosecutor announced that he wished to “have that word spelled in the minutes, just as he stated it,” so that the error might go on the record.
The uneducated Joseph had often digressed on the stand to talk about a broken leg he suffered at the time of the investigation—“the only thing I can move around is with sticks or crutches.” Eventually, Rice grew impatient: “Now if your Honor please, I object to this constant repetition of his physical condition.” Schechter: “Well it was that way.” The Court: “Don’t argue.”
The four brothers could not have been entirely aware of it, but in other courts, far from Brooklyn, a similar debate over government regulation of the market was taking place. All across the country, the NRA was being litigated. The prosecution of the various illegal traders of “hot oil” was coming along. Ickes had assiduously tracked illegal sales of oil, but more had continued to pop up. Ickes told a lawmaker, “I have moved heaven and earth on the matter”—stopping the “hot oil” boys. The Belcher case was being prosecuted before a federal judge in Birmingham, though it was becoming clear that a fact about William Belcher—he was blind—made it hard to make him seem the exploiter.
Nonetheless, as the Schechter case moved forward, the scale of the prosecution’s ambitions had come to look grotesquely large. The Schechters were accused of selling unfit chickens, but this accusation, in the end, was based on the selection of ten chickens, which was then reduced to three suspect chickens, which, upon autopsy by the health authorities, turned out to include only one unhealthy chicken. It was an “eggbound” chicken—eggs, upon its slaughter, were discovered to have lodged inside it, something that would have been hard for the Schechters to detect before sale. That they had knowingly planned to sell an unfit chicken was hard to prove.
When it came time for judgment at the end of October, Judge Campbell sensed that the jurors, New Yorkers all, might be compelled by the Schechters’ story and put off by the government’s prosecutorial zeal. He warned them, “Decide it on the evidence, and not on some views you may have.” He also did what he could to stop Heller, their lawyer, from making the jurors aware of the consequences of their action. Heller spelled it out in his summation: “Gentlemen of the jury, would you like to be put behind bars for a thing like this?” At which the judge intervened: “Now about the bars, they do not do that. The sentence rests upon my conscience, not theirs.” He had warned, a few moments earlier, that “you are trying to tell them what punishment is attached to any one of these offenses; that is not the province of the jury.”
Judge Campbell fine
d them $7,425, years of salary, and he sentenced them to jail: Joseph to three months, Alex to two, and the other brothers a month apiece. This last was particularly painful, since the Schechter brothers had families—Joseph’s wife felt humiliated. As they had testified in the case, they had never been in trouble before. The game of life seemed stacked against them. “First Felony Case Is Won under NRA,” the New York Times trumpeted; Walter Rice was quoted in the paper speaking of “a sweeping victory of immense importance.”
That winter, the circuit court rejected the Schechters’ appeal. But they determined to fight on. Columnists Drew Pearson and Robert Allen would later mock the Schechters’ persistence: Joe Heller, whom they described as speaking with a “Brooklyn Hebrew accent,” and looking “hawk nosed,” “labored over his lawbooks in Manhattan, determined to rank his name alongside of that of Daniel Webster.” Still, though their case seemed improbable, they would go higher, even to the Supreme Court.
AND PERHAPS THE SCHECHTERS’ MOVE was not so improbable, for now there was a shift in the country, one that Roosevelt could not entirely overwhelm, even through his radio bond with the people.