SIX The Case of the Wenatchee Chambermaid [When my former Columbia University colleague John A. Garraty asked me to suggest some Supreme Court cases that might be included in a revision of his book, Quarrels That Have Shaped the Constitution , I put foremost on my list West Coast Hotel v. Parrish because in the history of the Court it marked a historic divide. In addition, that ruling had a not inconsiderable impact on the fate of FDR’s Court-packing plan. For the expanded version of his volume, Garraty invited me to contribute the article on the Elsie Parrish case. Before being included in the new edition of Quarrels , which was published by Harper and Row in 1987, it appeared in the December 1986 issue of American Heritage . In neither instance was it annotated, and it has been left in that form —a piece written for a popular audience. I have, though, altered it slightly, mostly in order to incorporate some new material.] When on a spring day in 1935 Elsie Parrish walked into the office of an obscure lawyer in Wenatchee, Washington, to ask him to sue the town’s leading hotel for back pay, she little realized that she was linking her fate to that of exploited women in a Brooklyn laundry a continent away. Still less did she think that she was setting off a series of events that would deeply affect President Franklin D. Roosevelt’s plans for his second term. Least of all did she perceive that she was triggering a constitutional revolution that, even today, remains the most significant chapter in the two centuries of existence of the U.S. Supreme Court. All Elsie knew was that she had been bilked. Late in the summer of 1933, Elsie Lee, a woman of about forty who would soon be Elsie Parrish, had taken a job as a chambermaid at the Cascadian Hotel in Wenatchee, entrepôt for a beautiful recreation area reaching from the Columbia valley in Oregon to the Cascades and the country’s foremost apple market. “Apples made Wenatchee and apples maintain it,” noted the WPA Guide to Washington. “It is surrounded by a sea of orchards, covered in spring with a pink foam of blossoms, mile upon mile, filling the valleys and covering the slopes; the air of the town is sweet with the fragrance.” Here, in the land of Winesaps and Jonathans, where “in summer and fall the spicy odor of apples is everywhere,” Parrish worked irregularly over the next year and a half cleaning toilets and sweeping rugs for an hourly wage of twenty-two cents, later raised to a quarter. When she was discharged in May 1935, she asked for back pay of $216.19, the difference between what she had received and what she would have gotten had she been paid each week the $14.50 minimum mandated for her occupation under state law. The Cascadian, which was owned by the West Coast Hotel Company, offered to settle for $17, but she would not hear of it. Instead, she and her husband Ernest brought suit for what she insisted was due her. The Parrishes rested their case on the provisions of a statute that had been enacted by the state of Washington a quarter of a century before when, catching the contagion of reform from neighboring Oregon, it had taken steps to wipe out sweatshops. The 1913 act declared it “unlawful to employ women or minors . . . under conditions of labor detrimental to their health or morals, and . . . to employ women workers in any industry . . . at wages which are not adequate for their maintenance.” To safeguard the welfare of female employees, the law established a commission that was authorized, after investigation, to call together employers, employees, and representatives of the public to recommend a wage standard “not detrimental to health and morals, and which shall be sufficient for the decent maintenance of women.” On receiving that recommendation, the commission was to issue an order stipulating the minimum wage that must be paid. For chambermaids, the weekly minimum was set at $14.50. Twice the statute had been challenged in the courts, and on both occasions the Washington Supreme Court had validated it. Elsie Parrish appeared to have an airtight case. Alas, any law student in the land could have told her that her case was hopeless, for twelve years before, the U.S. Supreme Court had ruled, in a widely reported decision in Adkins v. Children’s Hospital , that a minimum wage act for women was unconstitutional because it violated the liberty of contract that the Court claimed was guaranteed by the Constitution. Though the opinion by Justice George Sutherland commanded only five votes and elicited vigorous dissents, it reconfirmed a notion incorporated in constitutional doctrine only a generation before: that a great corporation and its employee— even someone as powerless as a chambermaid— each had an equivalent right to bargain about wages, a fantasy that Justice Holmes dismissed as “dogma” and the renowned commentator Thomas Reed Powell of Harvard Law School called “indefensible.” Adkins , said one commentator, “makes forever impossible all other legislation along similar lines involving the regulation of wages.” The case involved an act of Congress rather than a state statute, but there was no difference in principle. Any law that transgressed the due process clause of the Fifth Amendment would, if enacted by a state, be held to violate the due process clause of the Fourteenth Amendment. Though the Washington law remained on the statute books, it was presumed to be null and void. Hence, it startled no one when in November 1935, after hearing Elsie Parrish’s case, the presiding judge of the superior court of Chelan County ruled against her, explaining that Adkins bound every court in the nation. Surprisingly, the Supreme Court of the state of Washington took a different view. On April 2, 1936, it overturned the lower court’s decision. To get around the huge obstacle of Adkins , the court pointed out that the U.S. Supreme Court had never struck down a state minimum wage law, which was true but irrelevant. The decision gave the Parrishes a moment of euphoria, but it hardly seemed likely that this opinion would survive a test in the U.S. Supreme Court, given the Adkins ruling and the manifest hostility of Justices such as Sutherland to legislation of this nature. Only eight weeks later, the Court settled any doubt on the matter by a decision on a case that, three thousand miles from Wenatchee, had begun to wend its way through the judicial system while Elsie Parrish was still making beds in the Cascadian Hotel. It arose out of the hope of social reformers in New York, especially women active in the Consumers’ League, that the Court, despite Adkins , might look favorably on a minimum wage law for women and minors if wage setting was related not just to the needs of women but to the value of the services they rendered. To that end, Felix Frankfurter of Harvard Law School and Benjamin Cohen, a former Brandeis law clerk who was to be a prominent New Dealer, crafted a model law. New York State adopted it in 1933, the fourth year of the Great Depression, which had reduced some young women, living on starvation wages, to sleeping in subways; and other states copied the New York act. Frankfurter warned that it was “foolish beyond words” to expect the Court to reverse itself, but he hoped that the Justices might be willing to distinguish this statute, with its added feature of “value of services,” from the one struck down in Adkins . “Every word of the New York law,” explained a prominent woman reformer, was “written with the Supreme Court of the United States in mind.” In accordance with the provisions of the model legislation, New York State obtained an indictment against Joseph Tipaldo, manager of the Spotlight Laundry in Brooklyn, who had been brutally exploiting his nine female employees, first by paying them far below the minimum wage and then by pretending to pay the minimum but forcing the laundresses to kick back the difference between what the state required and what he actually intended to pay. When Joe Tipaldo went to jail to stand trial on charges of disobeying the mandatory wage order and of forgery, the hotel industry (the same business that would be involved in the Parrish case) rushed to his side with an offer to bankroll a test of the constitutionality of the New York law. Since hotels were working their employees twelve hours a day, seven days a week, they had a high stake in the case. In fact, the state had already begun minimum-wage proceedings against them. Consequently, each hotel put money in a kitty to finance Tipaldo’s petition for a writ of habeas corpus to compel Frederick L. Morehead, warden of Brooklyn’s city prison, to release the laundry manager from custody. While his case was being prepared, Tipaldo renamed his sweatshop the Bright Light Laundry and made a big investment in expanding his business. Utterly shameless, he explained, “I expect to get it back eventually on what I save in wages.” On June 1, 1936, the U.S. Supreme Court appeared to justify his optimism when, in a 5– 4 decision in Morehead v. New York ex rel. Tipaldo , it struck down New York’s minimum wage law. In a sweeping opinion written by Pierce Butler, the Court found no meaningful difference between the New York statute and the District of Columbia act that had been invalidated in Adkins . Both, it said, violated the liberty of contract that safeguarded equally the rights of employer and employee to bargain about wages. After quoting from Adkins with obvious approval, the Court declared, in language that shocked champions of the exploited, “The decision and the reasoning upon which it rests clearly show that the State is without power by any form of legislation to prohibit, change or nullify contracts between employers and adult women workers as to the amount of wages to be paid.” Those words all but doomed Elsie Parrish’s cause, and gave cocky Joe Tipaldo the victory of a lifetime. That victory, however, turned out to carry a very high price. “After the court decision, business looked good for a while,” Joe told a reporter three months later. “I was able to undercharge my competitors a little on what I saved in labor costs.” But then business started to fall off, then fell some more. “I think this fight was the cause of my trouble,” he said. “My customers wouldn’t give my drivers their wash.” Before the summer was over, the Bright Light Laundry had folded, and Joe Tipaldo was one of the army of unemployed. “I’m broke now,” he confessed. “I couldn’t stand the gaff.” Elsie Parrish was made of sterner stuff. She was determined to carry on her struggle, though her prospects seemed bleak indeed. Given the precedent of Adkins , her case had never been promising. When the attorney for the West Coast Hotel Company asked the judge who had written the opinion of the Supreme Court of Washington sustaining that state’s minimum wage law in Parrish how he could possibly have done so in view of what the U.S. Supreme Court had said in Adkins , he replied, “Well, let’s let the Supreme Court say it one more time.” Now, in Tipaldo , the Court had “one more time” stated unequivocally that minimum wage laws for women were invalid. So gloomy was the outlook that, on the advice of Ben Cohen and Felix Frankfurter, the Consumers’ League did not even file a brief in Parrish . “We are both rather pessimistic regarding its outcome,” Cohen confided. Elsie Parrish had every reason to expect the worst. The Tipaldo decision, though, engendered a powerful backlash, not least from some of the members of the Supreme Court. In a strongly worded dissent, Chief Justice Charles Evans Hughes upbraided the majority for failing to acknowledge either that the New York law could be distinguished from the act of Congress struck down in Adkins or that the state has “the power to protect women from being exploited by overreaching employers.” Far more biting was the separate dissent filed by Justice Harlan Fiske Stone on behalf of himself and Justices Louis Brandeis and Benjamin Cardozo. In one of the most scathing criticisms of fellow jurists ever uttered from the bench, Stone accused the majority of indulging its “own personal economic predilections.” He found “grim irony in speaking of the freedom of contract of those who, because of their economic necessities, give their service for less than is needful to keep body and soul together.” In an impassioned warning to his brethren to exercise more selfrestraint, Stone wrote: “The Fourteenth Amendment has no more embedded in the Constitution our preference for some particular set of economic beliefs than it has adopted, in the name of liberty, the system of theology which we may happen to approve.” Much of the nation shared Stone’s sense of indignation about Tipaldo . People of the most diverse political views were appalled by a ruling that seemed to deny government, state or federal, any kind of authority over working conditions. New Dealers were irate, and a Republican newspaper in upstate New York declared, “The law that would jail any laundryman for having an underfed horse should jail him for having an underfed girl employee.” Apart from business interests, only two groups applauded the decision. One was the press in a scattering of cheap-labor towns undismayed by the fact that, following the ruling, the wages of laundresses— mostly impoverished blacks and Puerto Rican and Italian immigrants— were slashed in half. The other was a small faction of advanced feminists centered in Alice Paul’s National Woman’s Party. “It is hair-raising to consider how very close women in America came to being ruled inferior citizens,” one of them wrote Justice Sutherland. Most women activists, though, were horrified by that view, which they believed reflected the dogmatism of upper-class ladies who had no familiarity with the suffering of workers. They were as devoted as Alice Paul to equal rights, and they must have shuddered at the paternalism implicit in earlier opinions sustaining separate treatment for women on the grounds that they were wards of the state. But they were sure that female employees required protection, and they knew that insistence on the principle of equal rights meant no minimum wage law whatsoever, since the Court, as constituted during FDR’s first term, would never sanction social legislation for men. “Thus,” the historian Mary Beard wrote Justice Stone, Alice Paul “plays into the hands of the rawest capitalists.” Stone himself had no doubt of the implications of Tipaldo . “We finished the term of Court yesterday,” he wrote his sister, “I think in many ways one of the most disastrous in its history. . . . Our latest exploit was a holding by a divided vote that there was no power in a state to regulate minimum wages for women. Since the Court last week said that this could not be done by the national government, as the matter was local, and now it is said that it cannot be done by local governments even though it is local, we seem to have tied Uncle Sam up in a hard knot.” Tipaldo , handed down on the final day of the term, climaxed an extraordinary thirteen months in which the Court struck down more important socioeconomic legislation than at any time in history, before or since. During that brief period, it turned thumbs down on a number of New Deal laws and state reforms and cavalierly rebuked the President and his appointees. Most of the rulings had come from a split court, with the “Four Horsemen,” Pierce Butler, James McReynolds, George Sutherland, and Willis Van Devanter, a quartet of adamantly conservative judges whose ideas had been molded in the heyday of laissez-faire in the late nineteenth century, voting in the negative. From the spring of 1935 on, they were often joined by the youngest member of the bench, Owen Roberts. At the end of the term, a nationally syndicated columnist wrote, “After slaughtering practically every New Deal measure that has been dragged before it, the Supreme Court now begins its summer breathing spell, ending a winter’s performance which leaves the stage, as in the last act of a Shakespearean tragedy, strewn with the gory dead.” Despite the enormous setbacks the New Deal had sustained, Roosevelt gave every indication through the fall of 1935 and most of 1936 that he was accepting his losses virtually without complaint. While Elsie Parrish’s feeble case was advancing toward its final reckoning in the U.S. Supreme Court, the President gave not the slightest indication that he had any plans whatsoever to make the Justices any less refractory, for it seemed altogether inadvisable in the 1936 presidential campaign to hand his opponents, who were hard put to find an issue, an opportunity to stand by the Constitution. On February 5, 1937, however, the President stunned the country by sending a special message to Congress that constituted the boldest attempt a chief executive has ever initiated to remold the judiciary. He recommended that when a federal judge who had served at least ten years waited more than six months after his seventieth birthday to resign or retire, the President could add a new judge to the bench. Since this Court was the most aged in history— its members were referred to as “the nine old men”—Roosevelt would be able to add as many as six new Supreme Court Justices. Though FDR’s scheme provoked fierce protests, political analysts anticipated that it would be adopted. By winning in a landslide in 1936, Roosevelt had carried so many members of his party into Congress that the Republicans were left with only sixteen of the ninety-six seats in the Senate and fewer than one hundred of the more than four hundred seats in the House. So long as the Court continued to strike down New Deal reforms— and such vital legislation as the Social Security Act was still to be decided on— it was highly unlikely that enough Democrats would desert their immensely popular President to defeat the measure. The very first evidence of the attitude of the Court would come with its decision on Elsie Parrish’s case, and there was every expectation that, acting not many months after Tipaldo , the Court would render an adverse ruling that would improve Roosevelt’s already excellent chances of restructuring the Court. On the very day the Parrish decision was handed down, March 29, 1937, the president of the National Women’s Republican Club declared, “I don’t see how the President’s bill can fail to get a majority.” March 29 came during the Easter holidays, always a gala season in Washington, D. C. On that bright Monday morning, a host of cameratoting tourists and children carrying Easter baskets crowded the steps of the recently opened Supreme Court building and queued up in record numbers to enter the marble palace. The unusually protracted time of 103 days had elapsed since Elsie Parrish’s case had been argued, and some twelve thousand visitors flocked to the building in the belief that this would be journey’s end for the suit that had begun nearly two years earlier. An hour before the session was scheduled to start at noon, four thousand visitors had already been admitted to the building, where many lined up two abreast from the courtroom doorway almost to the suite of Justice Stone in the idle hope of getting a peek at the activity. For some minutes it appeared that the spectators who had been fortunate enough to get into the courtroom were also to be frustrated, for the proceedings began with a recital of an opinion on another case by one of the Four Horsemen that left the audience nearly numb with boredom. But no sooner had he finished than the Chief Justice leaned forward in his chair, picked up some sheets of paper, and announced, “This case presents the question of the constitutional validity of the minimum wage law of the State of Washington.” It was to be Elsie Parrish’s day after all, and the spectators stirred in anticipation. Hughes, fully aware of the effect he was having and surely conscious of his magnificent appearance (with his patrician manner, sparkling eyes, and well-groomed beard, he was often likened to Jove), raised his voice to overcome the bustle, then paused and peered out over the crowded chamber for a moment before returning to his written opinion. Anxious minutes passed as Hughes labored through a reprise of the facts in the case. When he finally took up one of the arguments of Elsie Parrish’s attorneys, he did so only to reject it disdainfully. It was “obviously futile,” he said, for counsel to claim that the present case could be distinguished from Adkins on the ground that Mrs. Parrish had worked for “a hotel and that the business of an innkeeper was affected with a public interest.” As it happened, he noted, one of the cases Adkins had disposed of had dealt with a hotel employee. If the state of Washington law was to survive the day, it would need a better justification than this rickety effort. The Court was going to have to meet Adkins head on. It took only a moment more for Hughes to reveal that the Court was prepared to do just that. In Tipaldo , the U.S. Supreme Court had felt bound by the ruling of the Court of Appeals of New York that the New York minimum wage act could not be distinguished from the statute in Adkins and hence was invalid; Parrish , the Chief Justice declared, presented a quite different situation. Here the highest tribunal of the state of Washington had refused to be guided by Adkins and had sanctioned the law in dispute. “We are of the opinion that this ruling of the state court demands on our part a reexamination of the Adkins case,” he continued. “The importance of the question, in which many States having similar laws are concerned, the close division by which the decision in the Adkins case was reached, and the economic conditions which have supervened, and in the light of which the reasonableness of the exercise of the protective power of the State must be considered, make it not only appropriate, but we think imperative, that in deciding the present case the subject should receive fresh consideration.” To do so properly, he observed, required careful examination of the doctrine of freedom of contract that had bulked so large in Adkins . “What is this freedom?” Hughes inquired, his voice rising. “The Constitution does not speak of freedom of contract.” Instead, the Constitution mentioned liberty and forbade denial of liberty without due process of law. The Constitution did not recognize absolute liberty, however. “The liberty safeguarded is liberty in a social organization,” he declared. “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’s delivery of the opinion in “a clear, resonant voice,” noted one correspondent, “electrified and held spellbound the spectators who crowded every corner of the majestic Supreme Court chamber.” As the Chief Justice spoke, members of the bar in the choice seats near the bench followed his every word as though transfixed. The Court had long since established that the state had especial authority to circumscribe the freedom of contract of women, the Chief Justice continued. In Muller v. Oregon (1908), he pointed out, the Court had fully elaborated the reasons for accepting a special sphere of state regulation of female labor. In that landmark case, the Court had emphasized, in the words of Justice David Brewer, that because a woman performs “maternal functions” her health “becomes an object of public interest and care in order to preserve the strength and vigor of the race.” Hence, Brewer had gone on, a woman was “properly placed in a class by herself, and legislation designed for her protection may be sustained even when like legislation is not necessary for men and could not be sustained.” The state could restrict her freedom of contract, the Court had determined in Muller , not merely “for her benefit, but also largely for the benefit of all.” The precedents established by Muller and several later rulings had led the dissenters in Adkins to believe that the District of Columbia minimum wage law should have been sanctioned, and with good reason, Hughes asserted. The dissenting Justices had challenged the distinction the majority in Adkins had drawn between maximum hours legislation (valid) and minimum wage statutes (invalid), and that challenge remained “without any satisfactory answer.” The state of Washington law was essentially the same as the Washington, D. C., act that had been struck down in Adkins , he acknowledged, “but we are unable to conclude that in its minimum wage requirement the State has passed beyond the boundary of its broad protective power.” In that sentence, however convoluted, Hughes had in effect said what for some minutes it had been clear he was going to say: the Supreme Court was sustaining Washington’s minimum wage law. Against all odds, Elsie Parrish had won. Lest anyone miss the implication of the Court’s reasoning, the Chief Justice spelled it out: “The Adkins case was a departure from the true application of the principles governing the regulation by the State of the employer and employed.” In short, Adkins , written by Sutherland and carrying the votes of several of Hughes’s other brethren, was being put to death in its fifteenth year. One could not possibly reconcile Adkins , Hughes maintained, with “wellconsidered” rulings such as Muller . “What can be closer to the public interest thah the health of women and their protection from unscrupulous and overreaching employers?” he asked. “And if the protection of women is a legitimate end of the exercise of state power, how can it be said that the requirement of the payment of a minimum wage fairly fixed in order to meet the very necessities of existence is not an admissible means to that end?” With an eloquence, even passion, few thought him capable of, the Chief Justice added: The legislature of the State was clearly entitled to consider the situation of women in employment, the fact that they are in the class receiving the least pay, that their bargaining power is relatively weak, and that they are the ready victims of those who would take advantage of their necessitous circumstances. The Legislature was entitled to adopt measures to reduce the evils of the “sweating system,” the exploiting of workers at wages so low as to be insufficient to meet the bare cost of living, thus making their very helplessness the occasion of a most injurious competition. Since many states had adopted laws of this character to remedy the evil of sweatshops, the enactment of such legislation by the state of Washington could not be viewed as “arbitrary or capricious, and that is all we have to decide,” Hughes said. “Even if the wisdom of the policy be regarded as debatable and its effects uncertain, still the legislature is entitled to its judgment.” Delighted at what they were hearing, the New Deal lawyers in the chamber smiled broadly and nudged one another. In his closing remarks, the Chief Justice advanced “an additional and compelling” reason for sustaining the statute. The exploitation of “relatively defenceless” employees not only injured those women, he asserted, but directly burdened the community, because “what these workers lose in wages the taxpayers are called upon to pay.” With respect to that reality, he said, the Court took judicial notice of the “unparalleled demands” the Great Depression had made upon localities. (That comment revealed how far he was reaching out, for the state of Washington had submitted no factual brief about any added responsibilities, and the statute in question had been enacted long before the Wall Street crash.) Hughes did not doubt that the state of Washington had undergone these tribulations, even if it had not troubled to say so. That deduction led him to declare, again with unexpected acerbity: “The community is not bound to provide what is in effect a subsidy for unconscionable employers. The community may direct its lawmaking power to correct the abuse which springs from their selfish disregard of the public interest.” Consequently, the Chief Justice concluded, “The case of Adkins v. Children’s Hospital . . . should be, and it is, overruled,” and the judgment of the Supreme Court of Washington on behalf of Elsie Parrish “is affirmed.” Some two years after she had changed sheets in the Cascadian Hotel for the last time, the Wenatchee chambermaid was to receive her $216.19 in back pay. It would require some time for Court-watchers to grasp the full implications of Hughes’s opinion in Parrish —to write of “the Constitutional Revolution of 1937”—but George Sutherland’s dissent revealed that the Four Horsemen understood at that very moment that their long reign, going all the way back to Adkins and even before, with only slight interruption, had abruptly ended. When he had spoken the final words, the Chief Justice nodded to Justice Sutherland seated to his left. The author of Adkins surveyed the chamber silently, almost diffidently, then picked up the sheaf of papers in front of him and began to read. Sensing his day had passed, Sutherland— who, with his pince-nez, high collar, goatee, and hair parted in the middle, seemed never to have left the nineteenth century— appeared barely able to bring himself to carry out his futile assignment. He started off speaking in a curiously toneless murmur, and even those near the dais had trouble at first catching his words. On the rear of the room, all was lost. As a consequence, not a few missed altogether Sutherland’s first sentence, and even those who did hear it needed a moment to take in its full import. “Mr. Justice Van Devanter, Mr. Justice McReynolds, Mr. Justice Butler and I think the judgment of the court below should be reversed,” Sutherland began. A commonplace utterance. Yet that sentence signaled a historic shift in the disposition of the Supreme Court. Once again, the Justices had divided 5– 4, but this time, Owen Roberts had abandoned the Conservative Four to compose a new majority that on this day, and in the days and months and years to come, would legitimate the kind of social legislation that in FDR’s first term had been declared beyond the bounds of governmental authority. The loss of Roberts did not go down easily. In the course of the afternoon, noted one captious commentary, “the Four Horsemen of Reaction whom he had deserted looked glum and sour.” After no more than a cursory paragraph maintaining that all the contentions that had just been advanced in Parrish had been adequately disposed of in Adkins and Tipaldo , Sutherland delivered a dissent that for several minutes constituted less a reply to Hughes and the majority in Parrish than to Justice Stone’s 1936 calls for judicial restraint in cases such as Tipaldo . Undeniably, a Justice was obliged to consider the contrary views of his associates, Sutherland acknowledged, “but in the end, the question which he must answer is not whether such views seem sound to those who entertain them, but whether they convince him that the statute is constitutional or engender in his mind a rational doubt upon that issue.” He added: The oath which he takes as a judge is not a composite oath, but an individual one. And in passing upon the validity of a statute, he discharges a duty imposed upon him , which cannot be consummated justly by an automatic acceptance of the views of others which have neither convinced, nor created a reasonable doubt in, his mind. If upon a question so important he thus surrender his deliberate judgment, he stands forsworn. He cannot subordinate his convictions to that extent and keep faith with his oath or retain his judicial and moral independence. Though Sutherland had been directing most of his barbs at Stone (Hughes’s opinion had been all but forgotten), these last words may well have had a different target. His remarks, one writer conjectured, must have been intended as a rebuke to Owen Roberts. Perhaps so, for the minority opinion did appear to be irritating Roberts. The San Antonio Congressman Maury Maverick, who was sponsoring the Court-packing bill in the House of Representatives, reported: A murmur, something of a titter, went up in the courtroom among the lawyers. Justice Roberts flushed and looked with evident displeasure in the direction of Sutherland. He looked his usual part— the big football hero, angry at the other side, and as though he should like to start a freefor-all. He pulled out his handkerchief and wiped his face and showed evident marks of disapprobation. Sutherland, for his part, had hit full stride. After sipping some water he seemed to gain strength, and his voice resounded throughout the chamber. Indeed, the Washington Post characterized the reading by “the usually mild-mannered Sutherland” as nothing less than “impassioned.” The elderly judge, described in another account as “pale, grim-lipped,” even went so far as to rap his knuckles on the bench as he took issue with the President, though never by name; with Roberts, no longer his ally; and even more vigorously, again without mentioning him directly, with Stone. (“A flicker of a smile came over Justice Stone’s face,” Maverick noted.) In rebuttal to the Chief Justice’s assertion that the case before the Court required a fresh examination, in part because of “the economic conditions which have supervened,” Sutherland stated bluntly, “The meaning of the Constitution does not change with the ebb and flow of economic events.” When, having read nearly five pages of his opinion, Sutherland finally turned to the case before the Court, he said little more than that West Coast Hotel replicated the situation in Adkins . In every important regard, the two statutes involved had identical “vices,” Sutherland maintained, “and if the Adkins case was properly decided, as we who join in this opinion think it was, it necessarily follows that the Washington statute is invalid.” It was beyond dispute, he asserted, that the due process clause embraced freedom of contract, and Sutherland remained convinced, too, that women stood on an equal plane with men and that legislation denying them the right to contract for work was discriminatory. “Certainly a suggestion that the bargaining ability of the average woman is not equal to that of the average man would lack substance,” he declared. “The ability to make a fair bargain, as everyone knows, does not depend upon sex.” If anyone thought that those last sentences had a hint of jocularity, they quite misperceived Sutherland’s mood. The Parrish decision blew taps for the nineteenth-century world, and Sutherland, born in England in 1862 and reared on the Utah frontier, knew it. Having had his say, he understood that there was no point in going on any longer. Wearily, he concluded, “A more complete discussion may be found in the Adkins and Tipaldo cases cited supra .” Then he carefully laid his opinion on the dais and, stern-visaged, settled back in his chair. When news of the momentous decision, relayed swiftly to every part of the nation over press association wires, reached Sutherland’s supporters, they shared his sense of dismay. Conservatives were outraged. If FDR wanted a political court, said a disgruntled Senator, he had one now, for the decision was blatantly political, a transparent effort to kill the Court-packing bill by demonstrating that the judges would no longer misbehave. Ardent feminists were no less incensed. One of them wrote Sutherland: “May I say that the minority opinion handed down in the Washington minimum wage case is, to me, what the rainbow was to Mr. Wordsworth? . . . You did my sex the honor of regarding women as persons and citizens.” Most reformers, though, women as well as men, hailed the Parrish ruling as a triumph for social justice and a vindication for FDR, who had been accorded an altogether unexpected victory in the least probable quarter. One outspoken progressive, the columnist Heywood Broun, commented: “Mr. Roosevelt has been effective not only in forcing a major switch in judicial policy, but he has even imposed something of his style upon the majority voice of the court. There are whole sections in the document written and read by Chief Justice Hughes which sound as if they might have been snatched bodily from a fireside chat.” Partisans of the President jeered at the Court for its abrupt reversal of views on the validity of minimum wage legislation. Because of “the change of a judicial mind,” observed Attorney General Homer Cummings sardonically, “the Constitution on Monday, March 29, 1937, does not mean the same thing that it meant on Monday, June 1, 1936.” The head of one of the railway brotherhoods carried that thought a step further in noting, “On Easter Sunday, state minimum wage laws were unconstitutional, but about noon on Easter Monday, these laws were constitutional.” It was “the Greatest Constitutional Somersault in History,” Maverick concluded. “For Owen Roberts, one single human being, had amended the Constitution of the United States by nodding his head instead of shaking it. The lives of millions were changed by this nod.” That development perturbed some longtime critics of the Court—“What kind of respect do you think one can instill in law students for the process of the Court when things like this can happen?” Felix Frankfurter asked— but gave others no little satisfaction. A former United States Senator from West Virginia wrote: Suppose you have noticed that the untouchables, the infallible, sacrosanct Supreme Court judges have been forced to put upon the record that they are just a bundle of flesh and blood, and must walk upon the ground like the rest of human beings. I got quite a “kick” out of reading that the Supreme Court said, right out loud in meeting, that it had been wrong. Like most of the wrongs done in life, there is no compensation for the great wrongs which that old court has been doing the country; but like all democrats, I am forgiving. The performance of the Court proved especially embarrassing for the Chief Justice. Commentators, observing that Hughes had once said of a nineteenth-century decision that “the over-ruling in such a short time by one vote, of the previous decision, shook popular respect for the Court,” pointed out that “Now, within a period of only ten months, the Supreme Court has reversed itself on minimum wages, again by one vote.” To be sure, Hughes did not admit that the Court had shifted, and years later Roberts claimed that he had voted with the Four Horsemen in Tipaldo only because New York had not presented the issue in the right manner. Furthermore, we now know that Roberts in Parrish was not responding to the Courtpacking threat since he cast his vote before the plan was announced. Nonetheless, scholars, despite their access to information not generally available in 1937, find Roberts’s contention that he did not switch unpersuasive. At the time, no one doubted that the Court, and more particularly Mr. Justice Roberts, had crossed over. “Isn’t everything today exciting?” wrote one of the women who led the National Consumers’ League. “Just to think that silly Roberts should have the power to play politics and decide the fate of Minimum Wage legislation. But, thank God he thought it was politically expedient to be with us.” In a more whimsical vein, The New Yorker remarked: “We are told that the Supreme Court’s about-face was not due to outside clamor. It seems that the new building has a soundproof room, to which justices may retire to change their minds.” Yet notwithstanding the ridicule directed at the Court, Hughes read the opinion in Elsie Parrish’s case with an unmistakable note of exultation in his voice, for by being able to show that he had won Roberts to his side in Parrish , he had gone a long way toward defeating the Court-packing scheme. Once Roosevelt had a 5-4 majority for social legislation, there no longer appeared to be an urgent need for so drastic a remedy. Not for nearly four months would FDR’s proposal be finally rejected, and it would retain substantial backing almost to the very end, but never was it as formidable a proposition as it had been on the eve of the ruling on Elsie Parrish’s suit. Within days after the decision was handed down, Washington insiders were regaling one another with a saucy sentence that encapsulated the new legislative situation: “A switch in time saved nine.” The Court’s shift in Parrish proved to be the first of many. On the very day the case was decided, “White Monday,” the Court also upheld a revised farm mortgage law (the original one had been struck down on “Black Monday” in 1935) as well as other reform statutes. Two weeks later, once more by 5– 4 with Roberts in the majority, it validated the Wagner Act (the National Labor Relations Act) and in the following month it turned aside challenges to the Social Security Act. Indeed, never again did the Supreme Court strike down a New Deal law, and from 1937 to the present, it has not overturned a single piece of significant national or state socioeconomic legislation. Many commentators believe that the Court has forever abandoned its power of judicial review in this field. Hence, they speak of “the Constitutional Revolution of 1937.” Battle-scarred veterans of the minimum wage movement found themselves in a universe remade. The seventeen states with minimum wage statutes on their books now took steps to enforce them, and New York made plans to enact new legislation to replace the law struck down in Tipaldo . Even more consequential were the implications of Parrish for the national government. Late in 1936, President Roosevelt had told newspapermen of an experience on the streets of New Bedford when his campaign car was mobbed by enthusiastic well-wishers, twenty thousand of them crowded into a space intended to hold a thousand: There was a girl six or seven feet away who was trying to pass an envelope to me and she was just too far away to reach. One of the policemen threw her back into the crowd and I said to my driver, “Get the note from that girl.” He got it and handed it to me and the note said this: “Dear Mr. President: I wish you would do something to help us girls. You are the only recourse we have got left. We have been working in a sewing factory . . . and up to a few months ago we were getting our minimum pay of $11 a week. . . . Today the 200 of us girls have been cut down to $4 and $5 and $6 a week. You are the only man that can do anything about it. Please send somebody from Washington up here to restore our minimum wages because we cannot live on $4 or $5 or $6 a week.” That is something that so many of us found in the Campaign, that these people think that I have the power to restore things like minimum wages and maximum hours and the elimination of child labor. . . . And, of course, I haven’t any power to do it. Now, thanks to the Constitutional Revolution that the Wenatchee chambermaid had detonated, Congress was able to give Roosevelt that power, and when the Fair Labor Standards Act of 1938, which set minimum wages and maximum hours for both men and women, was challenged in the courts, a reconstituted Supreme Court found no difficulty in validating it. Long before then, Elsie Parrish had faded into the anonymity from which she had risen. She had remained in the public eye only long enough to comment on the Court’s decision in 1937. News of it had reached her in Olympia, Washington, where she was now employed— ironically enough, in the light of Joe Tipaldo’s trade— in a laundry. “I am happier over what it will mean to the working women of the state than over the money I will receive,” she said. “There have been thousands of girls and women working for whatever they could get in this state, and now they will get a break.” When more than thirty-five years later Adela Rogers St. Johns, a reporter who had won renown as the “sob sister” of the Hearst press, tracked her down in Anaheim, California, Mrs. Parrish expressed surprise that anyone would pay attention to her. Surrounded by grandchildren, looking much younger than her years, “dressed in something pink and freshwashed and ironed,” she said that she had gotten little notice at the time “and none of the women running around yelling about Lib and such have paid any since.” But she was quietly confident, she indicated to the author of Some Are Born Great , that she had accomplished something of historic significance— less for herself than for the thousands of women scrubbing floors in hotels, toiling at laundry vats, and tending machines in factories who needed to know, however belatedly, that they could summon the law to their side. PART I Copyright © 1998. Oxford University Press. All rights reserved. RETHINKING THE NEW DEAL COURT 19 Cushman, Barry. Rethinking the New Deal Court : The Structure of a Constitutional Revolution, Oxford University Press, 1998. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/sfsu/detail.action?docID=241597. Created from sfsu on 2017-10-17 23:02:58. 1 Roosevelt’s Shadow The Court-Packing Thesis Copyright © 1998. Oxford University Press. All rights reserved. On February 5, 1937, President Roosevelt sent Congress a proposal to “reorganize” the federal judiciary. Buried in the text of the bill was a provision that would have permitted the president to appoint to the Supreme Court an additional justice for each sitting justice who had not retired within six months of his seventieth birthday. Because six of the Justices then sitting were over seventy, this provision would have permitted the president to appoint six additional justices immediately. In his accompanying message, Roosevelt offered a disingenuous rationale for his proposal, one that was to come back to haunt him. “[T]he personnel of the Federal judiciary,” the president contended, “is insufficient to meet the business before them.” Roosevelt pointed out that in the preceding year, the Court had denied petitions for certiorari in 695 of the 803 cases presented for review by non-governmental litigants. “[C]an it be said,” Roosevelt queried, “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?” The reason for this failure to achieve full justice, the president opined, was the advanced age of the justices. “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. … 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 20 Cushman, Barry. Rethinking the New Deal Court : The Structure of a Constitutional Revolution, Oxford University Press, 1998. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/sfsu/detail.action?docID=241597. Created from sfsu on 2017-10-17 23:02:58. 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.”1 Copyright © 1998. Oxford University Press. All rights reserved. Because each of the decisions comprising the revolution was handed down after Roosevelt’s February 5, 1937 announcement of the plan, commentators quite naturally posited a causal link. Chief Justice Hughes vigorously denied any such connection, but “cynical and sober” observers refused to take him at his word.2 Some historians have been inclined to attribute the Court’s behavior solely to the impending threat of Roosevelt’s proposal;3 others have been more circumspect, listing the plan as one of a number of circumstances inducing judicial capitulation.4 In all of these accounts, however, the Court plan figures as, if not a sine qua non, a substantial factor influencing the Court’s decisions. Upon closer examination, however, it appears unlikely that the Court-packing plan can shoulder the heavy explanatory burden it has been asked to sustain. The recent history of legislative attempts to control judicial behavior was not one from which Roosevelt could draw much encouragement. There had been regular agitation for the election of federal judges and the limitation of their tenure at least since the 1890s. Some proposals would even have required sitting Supreme Court justices to vacate their offices. None of these proposals had ever achieved enactment. Between 1913 and 1921, Congress had rebuffed measures to curtail or abolish judicial review, as well as proposals for the impeachment of or automatic forfeiture of office by any justice attempting to nullify federal legislation.5 After the Supreme Court had handed down its decisions in Bailey v. Drexel Furniture6 and Adkins v. Children’s Hospital7 in 1922 and 1923, numerous bills designed to limit the power of the Court to declare acts of Congress unconstitutional were introduced in Congress. All of these bills had died in committee. Comparable proposals had foundered again in the early 1930s.8 Following a series of decisions striking down New Deal initiatives, several proposals to restrain judicial power were introduced again in 1935. Some would have required a supermajority of the Court to invalidate legislation; others would have deprived the Court of the power to review questions of social and economic policy. A Gallup poll taken in September of that year showed that only 31 percent of the population favored limitation of the Court’s power of judicial review, and again these proposals came to naught.9 Similarly, in early 1936, in the wake of the Court’s decision striking down the Agricultural 21 Cushman, Barry. Rethinking the New Deal Court : The Structure of a Constitutional Revolution, Oxford University Press, 1998. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/sfsu/detail.action?docID=241597. Created from sfsu on 2017-10-17 23:02:58. Copyright © 1998. Oxford University Press. All rights reserved. Adjustment Act (AAA), congressmen introduced more than one hundred bills designed to restrict the federal courts. Among these was the Cross bill, which sought to strip the federal courts of the power of judicial review; a measure sponsored by Ernest Lundeen of Minnesota, which would have increased the number of justices on the Supreme Court to eleven; and a bill introduced by Representative James L. Quinn, which would have increased the number of justices to fifteen.10 Representative Joseph P. Monaghan of Montana backed a bill to remove from office any justice voting to strike down the Tennessee Valley Authority (TVA). Senator Lynn J. Frazier of North Dakota offered a bill that would have forbidden the justices, on pain of impeachment, to invalidate any congressional statute. Senator Peter Norbeck of South Dakota introduced a measure that would have permitted such invalidations only by a majority of seven justices, and Senator James P. Pope of Idaho sponsored a similar measure. Senator George Norris of Nebraska advocated an amendment that would have permitted invalidation of federal statutes only by a unanimous vote of the justices. Such national luminaries as Karl Llewellyn and Norman Thomas publicly supported comparable Court-curbing proposals.11 None of these bills gained congressional approval during 1936 (nor, indeed, thereafter); yet the Court continued, while these bills were pending, to eviscerate the New Deal.12 The Hughes Court had successfully ignored congressional threats in 1935 and 1936, and if the recent past were to be read as prologue, the justices had reason to believe that they could do so again in 1937.13 The Court could likewise draw confidence from the size and vehemence of the opposition to the plan. From the beginning, the press voiced near-unanimous outrage and disdain. Joining the chorus of protest were numerous bar associations across the nation, including the prestigious American Bar Association. Resolutions opposing the Court bill were introduced in several state assemblies. The plan was denounced by numerous civic, patriotic, fraternal, professional, political, and religious organizations. The plan also encountered opposition from such eminent liberal reformers as Oswald Garrison Villard, John T. Flynn, and Morris L. Ernst; from college presidents like Harold W. Dodds of Princeton; from law school deans such as Young B. Smith of Columbia; from such eminent journalists as Dorothy Thompson; and from such prominent former members of the administration as erstwhile presidential aide Raymond Moley. “No day passed without some more or less eminent citizen, often one who had 22 Cushman, Barry. Rethinking the New Deal Court : The Structure of a Constitutional Revolution, Oxford University Press, 1998. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/sfsu/detail.action?docID=241597. Created from sfsu on 2017-10-17 23:02:58. Copyright © 1998. Oxford University Press. All rights reserved. favored the President for re-election, bitterly denouncing his court plan.” The voices of these eminent citizens were supplemented by the propagandistic efforts of several organizations: Frank Gannett’s “National Committee to Uphold Constitutional Government”; “America Forward,” a religious adjunct of the Republican National Committee; and various “Associations to Preserve Our Liberties.” Conservatives and liberals alike denounced the plan as a threat to civil liberty and democratic rule.14 While the opposition was extensive and well organized, key constituents of the New Deal coalition failed to get solidly behind the plan. Roosevelt had decided not to consult with labor or farm leaders before springing his plan on the country, and their consequent alienation was to cost him their needed support. Despite official endorsements from the American Federation of Labor (AFL) and the Congress of Industrial Organizations (CIO), organized labor failed to deliver any real support for the president’s proposal. But while labor damned the plan with faint praise, the farm bloc mounted a concerted campaign against the president. The radical Farmers’ Union, the progressive National Cooperative Council, the Farm Bureau Federation, and the Grange all publicly opposed the plan. E. E. Everson of the Farmers’ Union and Louis Taber and Fred Brenckman of the Grange testified in opposition to the plan in the hearings before the Senate Judiciary Committee. The Grange, which denounced the plan as a threat to fundamental liberties, took the extraordinary step of conducting a campaign against the bill over the radio and in the farm press.15 The strength of the opposition was most trenchantly expressed by the general public. “Perhaps no presidential message,” wrote one historian, “has excited such an immediate and enraged outcry.” Almost immediately after Roosevelt’s announcement, the Congress was deluged with letters and telegrams.16 One historian estimates that senators received an average of 10,000 letters each in the first two weeks of the struggle.17 Nine of every ten were opposed to the plan.18 Polls taken between February and May of 1937 indicate that the first major domestic initiative of Roosevelt’s second term was consistently opposed by a majority of the same American people who had so overwhelmingly returned him to office the preceding November. Indeed, polls taken during the same period reveal a steady decline in Roosevelt’s personal popularity.19 23 Cushman, Barry. Rethinking the New Deal Court : The Structure of a Constitutional Revolution, Oxford University Press, 1998. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/sfsu/detail.action?docID=241597. Created from sfsu on 2017-10-17 23:02:58. Copyright © 1998. Oxford University Press. All rights reserved. The justices were not left unaware of the public’s sentiments toward the plan. The thousands of letters and telegrams sent to the Court were nearly unanimous in their opposition to the president’s proposal. Justice Brandeis received hundreds of letters from a diverse collection of correspondents: women, children, lawyers, doctors, farmers, and grocery clerks all wrote “the original New Dealer” to outline their views on the Court bill. Ninety percent of his correspondents expressed opposition to FDR’s plan. “If there had been any doubt as to the standing of the court with the people,” wrote Merlo Pusey, “the flood of mail that went both to the court and to Congress quickly removed it.” The “roar of protest,” wrote Joseph Alsop and Turner Catledge, “was unified, reverberant, and clearly meant business.”20 This roar of protest was heard and echoed in the halls of Congress. Opposition from the Republicans was to be expected. But the president also faced potential opposition from within his own party. Approximately twenty conservative Senate Democrats were openly hostile to the New Deal, and “could be expected to leave the party reservation on the first major issue.” Many congressional Democrats, believing that Roosevelt would step down after the customary two terms as president, “had that second-term feeling of independence which comes with the knowledge that another name will head the ticket at the next voting.” Moreover, the enormity of the Democratic majorities in both houses diminished the partisan cohesiveness characteristic of more nearly balanced Congresses.21 The initial signals from Congress were ominous. Every Republican came out against the plan in the first few days. Conservative Democratic senators also quickly lined up against the plan. Edward Burke of Nebraska, Harry Byrd and Carter Glass of Virginia, “Cotton Ed” Smith of South Carolina, Walter George of Georgia, Peter Gerry of Rhode Island, David Walsh of Massachusetts, and nearly a dozen others joined the opposition shortly after the president’s announcement.22 But the president also faced early opposition from less expected quarters. The president had consulted neither his cabinet, nor party leaders, nor members of Congress before revealing the plan to the American public. His decision to eschew the counsel of congressional chieftains not only deprived Roosevelt of an important sounding board for his proposal; it also left many Democrats feeling disgruntled at having been excluded from the process of making a decision of such 24 Cushman, Barry. Rethinking the New Deal Court : The Structure of a Constitutional Revolution, Oxford University Press, 1998. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/sfsu/detail.action?docID=241597. Created from sfsu on 2017-10-17 23:02:58. import.23 Thus, shortly after the president’s announcement, his own vice president, John Nance Garner, was to be seen outside the Senate chamber flagrantly brandishing the “thumbs-down” sign while holding his nose in distaste. Senator Nathan Bachman, of Tennessee, expressed misgivings about the bill the very day it was introduced and ultimately became an opponent of the plan. George Norris, the highly regarded liberal senator from Nebraska, similarly announced his opposition February 5. Norris was to recant his opposition after a White House meeting with Roosevelt, but as Alsop and Catledge noted, “his first distaste had been too public; his subsequent lack of enthusiasm was too marked. A deal of damage was already done.”24 Copyright © 1998. Oxford University Press. All rights reserved. Perhaps the most devastating defection in the early going was that of Hatton Sumners of Texas, Democratic Chairman of the House Judiciary Committee. His famous February 5 remark to his congressional colleagues, “Boys, here’s where I cash in my chips,” was not merely the first announcement of Democratic opposition to the plan;25 it also augured two important maneuvers that were to sap the plan of much of its initial vitality. Sumners’ first move concerned judicial retirement policy. It was widely rumored that both Van Devanter and Sutherland had wanted to retire before 1937. Van Devanter had been on the Court for twenty-six years, and at the age of seventy-eight was anxious to leave the bench. Sutherland suffered from high blood pressure, and as a result was required to write most of his opinions while lying in bed. Both were discouraged from retirement, however, by the treatment Justice Holmes had received from Congress after his retirement in 1932. Shortly after Holmes had resigned Congress had enacted the Economy Bill of 1933, which had the effect of reducing the retirement compensation of all retired Supreme Court justices. The ironic effect of this measure was to keep judicial opponents of other New Deal legislation on the Supreme Court longer than they otherwise would have remained.26 In 1935, Sumners’ committee had reported out a bill to allow Supreme Court justices to retire at full pay. Perversely, the House rejected the bill when it came to the floor for a vote.27 But once the extreme measures contained in the president’s bill had been proposed, Sumners’ bill found new life. Seeking to obviate the president’s bill, Sumners managed to rush his retirement bill to passage by the House within five days of the president’s announcement.28 The bill was quickly hustled through the Senate and signed by Roosevelt on March 1.29 The 25 Cushman, Barry. Rethinking the New Deal Court : The Structure of a Constitutional Revolution, Oxford University Press, 1998. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/sfsu/detail.action?docID=241597. Created from sfsu on 2017-10-17 23:02:58. Congress’ alacrity in enacting the previously moribund Sumners bill surely sent both Roosevelt and the Court a powerful early signal of legislative hostility to the president’s plan.30 Copyright © 1998. Oxford University Press. All rights reserved. Sumners’ second blow to Roosevelt’s proposal was also delivered in his capacity as chairman of the House Judiciary Committee. Sumners was quickly able to line up a comfortable majority of the members of the committee against the president’s bill. “Such a state of affairs in the usually servile House was a severe blow.’’ It meant not only that the administration would be unable to control the committee’s hearings on the bill, but also that the bill could be brought to the floor only by extraordinary parliamentary techniques requiring a public display of administration strongarming. House leaders Speaker William Bankhead and Majority Leader Sam Rayburn strongly opposed the resort to such tactics. “They could, they argued, dragoon the bill through the House, but they judged that they would leave the House sore and angry and all the more ready to rebel once the bill came back from the Senate.” Bankhead and Rayburn therefore prevailed upon Roosevelt to follow the unusual course of initiating the bill in the Senate rather than the House.31 But even if the bill managed to pass the Senate, the obstacles created by Sumners’ opposition remained lurking in the House. Again, Sumners had sent a strong signal to the justices that the president’s plan was in trouble. Meanwhile, the Senate opposition was planning its strategy. The Republicans recognized that they could defeat the president’s plan only if they were able to draw over a sufficient number of moderate and liberal Democrats. Realizing that their purpose would best be served by remaining in the background while the Democrats fought among themselves, they hoped in the early days to find a liberal Democrat to champion their cause. By February 13, they had found him. That day Senator Burton Wheeler, liberal Democrat of Montana, publicly announced his opposition to the plan and thereafter became the leader of the opposition forces.32 Wheeler’s decision was a coup for the opposition. The White House had been counting on young Bob LaFollette to recruit the independent leftwing votes of the Northwest. Wheeler was able to bring Gerald Nye and Lynn Frazier of North Dakota, and Henrik Shipstead, FarmerLaborite of Minnesota, over to the opposition before LaFollette had a chance. By mid-February, Joseph C. O’Mahoney of Wyoming and Tom Connally of Texas had both announced their opposition to the 26 Cushman, Barry. Rethinking the New Deal Court : The Structure of a Constitutional Revolution, Oxford University Press, 1998. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/sfsu/detail.action?docID=241597. Created from sfsu on 2017-10-17 23:02:58. Copyright © 1998. Oxford University Press. All rights reserved. bill.33 Shortly thereafter, eighteen Democratic members of the opposition met for dinner at the home of Senator Millard Tydings of Maryland for the purpose of forming a steering committee for the opposition forces.34 Meanwhile, the signs of congressional coolness continued to proliferate. Such freshmen Democratic senators as Prentiss Brown of Michigan, John Overton of Louisiana, and Charles Andrews of Florida all remained noncommittal.35 The resistance of these freshmen, brought in on Roosevelt’s considerable coattails, to the first major domestic initiative of the president’s term, amplified the signal sent to the Court by the noncommittal or antagonistic posture of many other Democrats. Senator Robert Wagner of New York, who had made a tremendous personal investment in the National Labor Relations Act and the Social Security Act and thus had a great stake in seeing the Court uphold them, might have been expected to be a voluble supporter of the president’s bill. Yet Wagner privately opposed the bill from the start, censuring the president through silence on the matter.36 As of February 15, Henry Morgenthau, Roosevelt’s secretary of the treasury, gave the plan at best a fifty-fifty chance of passage.37 By February 19 there were approximately thirty senators committed to support the plan, approximately thirty committed to oppose it, and the remainder undecided. However, the unanimity of the Republicans and the conservative Democrats, the defection of such regulars as O’Mahoney and Connally, and “the painfully evident lack of enthusiasm among the rank and file, all suggested that the situation [in the Senate] was doubtful.”38 By late February, administration support had further deteriorated. At that time Roosevelt had a falling out with leading southern senators over the issues of deficit relief spending and the handling of the sitdown strikes. As a result of this split, such influential figures as Pat Harrison of Mississippi, James Byrnes of South Carolina, and Vice President John Nance Garner of Texas would no longer do any heavy lifting for Roosevelt on the Court bill. After Roosevelt defended the plan during a March 9 fireside chat, writes William Swindler, “[i]t was quite evident—to everyone but the President and his hard core of advisers—that the scales were beginning to tip permanently toward the opposition.”39 When the Senate Judiciary Committee opened its hearings on the bill March 10, eight members of the committee supported the plan,40 eight 27 Cushman, Barry. Rethinking the New Deal Court : The Structure of a Constitutional Revolution, Oxford University Press, 1998. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/sfsu/detail.action?docID=241597. Created from sfsu on 2017-10-17 23:02:58. opposed it,41 and two were as yet officially undecided.42 Recognizing that time was on the side of the opposition, the administration forces sought to expedite the hearings by suggesting that each side take no more than two weeks putting on its testimony. The opposition refused to agree, and Chairman Ashurst declined to force the issue. The opposition took full advantage of Ashurst’s aversion to haste. The American Bar Association, which opposed the plan, had put together a staff of researchers to aid the opposition in their cross-examination of the administration’s witnesses. Each witness was questioned exhaustively, and most were caught in some sort of inconsistency. The senators’ lengthy interrogations and elaborate orations consumed nearly as much time as the witnesses’ prepared testimony. At the end of two weeks, the administration had managed to put on fewer than half of its witnesses.43 Copyright © 1998. Oxford University Press. All rights reserved. Members of the administration were privately convinced that the opposition was conducting a filibuster. When the opposition offered to give the administration more time to put on its witnesses, the proponents of the bill saw the offer as an attempt to trap them into helping the opposition to draw out the hearings. The offer was accordingly refused. In retrospect this proved to be a serious error, for it allowed the opposition forces to dominate the news headlines for the next month.44 The opposition was to open its testimony Monday, March 22. Wheeler and his Senate colleagues William King of Utah and Warren Austin of Vermont approached Chief Justice Hughes on Thursday, March 18, requesting that he appear to testify before the committee. After consulting with Brandeis and Van Devanter, the chief justice informed Wheeler that his colleagues on the Court were strongly opposed to any justice appearing before the committee. Wheeler was undeterred, however, and on Saturday, March 20, he called on Brandeis. Brandeis, who as the Court’s only octogenarian was profoundly offended by Roosevelt’s charge that the elderly justices were incapable of dispatching their duties promptly, suggested to Wheeler that he ask Hughes for a letter answering the charges Roosevelt had leveled against the Court’s efficiency and management of its caseload. Wheeler telephoned Hughes from Brandeis’ home, and Hughes agreed to prepare the letter to be read by Wheeler before the committee on Monday, March 22. Brandeis and Van Devanter both read and 28 Cushman, Barry. Rethinking the New Deal Court : The Structure of a Constitutional Revolution, Oxford University Press, 1998. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/sfsu/detail.action?docID=241597. Created from sfsu on 2017-10-17 23:02:58. approved the letter Sunday, March 21, and Wheeler picked up the letter at Hughes’ home later that afternoon.45 Copyright © 1998. Oxford University Press. All rights reserved. Wheeler’s dramatic recitation of Hughes’ letter before the committee was staged the following morning. The letter rebutted point by point each of the arguments deployed by Roosevelt in his February 5 message. “There is no congestion of cases upon our calendar,” wrote the chief justice. “This gratifying condition has obtained for several years.” To the contention that the Court had been stingy in granting petitions for certiorari, Hughes replied that the Court had instead been, if anything, overly generous. Most of the petitions denied, Hughes contended, were so utterly without merit that they ought never to have been presented for review. The addition of new justices, Hughes wrote, “apart from any question of policy, which I do not discuss, would not promote the efficiency of the Court. It is believed that it would impair that efficiency so long as the Court acts as a unit. There would be more judges to hear, more judges to confer, more judges to discuss, more judges to be convinced and to decide. The present number of justices is thought to be large enough so far as the prompt, adequate, and efficient conduct of the work of the Court is concerned.”46 “On account of the shortness of time,” Hughes confessed in the final paragraph, “I have not been able to consult with the members of the Court generally with respect to the foregoing statement, but I am confident that it is in accord with the views of the Justices. I should say, however, that I have been able to consult with Mr. Justice Van Devanter and Mr. Justice Brandeis, and I am at liberty to say that the statement is approved by them.” This final paragraph created a widespread impression that the Court endorsed the letter unanimously.47 This impression of unanimity was what gave the Hughes letter its pivotal impact. Wheeler claimed that after the letter had been read, Vice President Garner telephoned FDR at Warm Springs, where the president was vacationing, and said: “We’re licked”48 Associate Justice Robert Jackson, who was assistant attorney general and one of the key administration witnesses during the Senate hearings, later remarked that Hughes’ letter “did more than any one thing to turn the tide in the Court struggle.”49 Brandeis biographer Melvin Urofsky notes that “the reading of [Hughes’] letter marked the end of the Courtpacking bill.”50 It is worthy of note that this pivotal event in the already-troubled life of the Court-packing plan occurred before the 29 Cushman, Barry. Rethinking the New Deal Court : The Structure of a Constitutional Revolution, Oxford University Press, 1998. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/sfsu/detail.action?docID=241597. Created from sfsu on 2017-10-17 23:02:58. Copyright © 1998. Oxford University Press. All rights reserved. Court had handed down any of the decisions comprising the constitutional revolution, and indeed before the Social Security cases had even been argued.51 On March 29, the Court handed down its 5 to 4 decision upholding Washington State’s minimum wage law for women.52 The new majority consisted of Brandeis, Stone, Cardozo, and Hughes, all of whom had voted to uphold similar laws in the past, and Justice Owen Roberts, who had voted to strike down a similar New York law the previous term.53 Despite the appearance at the time, however, the decision in West Coast Hotel was not influenced by the pendency of the Court-packing plan. The case was actually voted on by the justices in conference on December 19, 1936. The vote was 4 to 4, with Roberts joining Hughes, Brandeis, and Cardozo. Justice Stone was unable to attend the conference due to a severe bout with amoebic dysentery, which kept him away from the Court for more than three months. All of the justices knew how Stone would vote, however, and Hughes decided that it would be better to affirm the lower court’s decision by a 5 to 4 vote rather than by the vote of an equally divided Court. The case was therefore held until Stone could return to the Court and cast his deciding vote. Stone did return and cast his vote at the beginning of February, and Hughes set about drafting the opinion of the Court. Roosevelt shortly thereafter announced his Court-packing scheme, however, and Hughes decided that if the Court were to hand down the Parrish opinion so soon after the president’s announcement, it would convey the false impression that the Court was capitulating to political pressure. He therefore decided to hold the opinion for release at a more propitious date. That date was to be March 29, exactly one week after Wheeler’s dramatic reading of Hughes’ letter before the Senate Judiciary Committee.54 Though Hughes was largely unsuccessful in his attempt to avoid conveying the impression that Parrish was an act of judicial obeisance to an aggressive executive, it is amply clear that the constitutional revolution was actually initiated more than six weeks before the Court-packing plan, a very closely guarded secret, became public knowledge.55 The impact of the minimum wage decision on the fate of the Courtpacking bill was, arguably, substantial. “[I]t was obvious,” writes Leonard Baker, “that the decision upholding the minimum wage would make it more difficult to push FDR’s Court plan through the Senate.” “Particularly after the Roberts switch, there was no nationwide desire 30 Cushman, Barry. Rethinking the New Deal Court : The Structure of a Constitutional Revolution, Oxford University Press, 1998. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/sfsu/detail.action?docID=241597. Created from sfsu on 2017-10-17 23:02:58. for altering the Court, and, as a result, no great desire in Congress either.”56 “By April,” reports James MacGregor Burns, “the chances for the court plan were almost nil.”57 The justices could no doubt have anticipated the effect that the Parrish decision would have on the plan’s chances for passage. And they knew, even as they were deliberating over the Wagner Act cases, what the decision in the minimum wage case would be. Even before Wheeler’s presentation of Hughes’ letter and the Court’s decision in Parrish, there was good reason to doubt that the president’s proposal would ever be approved by the Senate. The Democrats’ overwhelming majority in the upper house did appear to give the plan a significant leg up, and there were times, especially early in the Court fight, when the proponents of the plan thought that they had a slender majority of the votes in the upper house.58 But as Alsop and Catledge pointed out, these optimistic estimates were always subject to serious question. Among the proponents Copyright © 1998. Oxford University Press. All rights reserved. [t]here was no orderly daily pooling of information.… They could not even manage an accurate list of their own supporters—and this in a fight in which the opposition had admirably prepared, carefully checked, semiweekly lists from their whip, Gerry, who was able to say at a moment’s notice whether any Senator was sure, inclined to the opposition, wavering, inclined to the administration or sure for the administration. Robinson and Keenan both tried to make lists. So did Corcoran.… But Robinson carried all his information in his head, and some of it was confidential and not to be revealed even to the White House. And some Senators talked double, giving one impression to Keenan and Corcoran and quite another to James Roosevelt when they called on the President. And other Senators would not talk at all, and no two could agree on how they should be counted.… The administration actually never possessed a reliable list of its friends and enemies until the very final weeks of the struggle.59 Not in even their most optimistic moments, however, did the plan’s proponents believe that they had the sixty-four votes necessary to prevent a filibuster. The leaders of the opposition recognized that delay would permit them to extend their propaganda and to augment their forces. They also realized that the consumption of time entailed by a filibuster might persuade uncommitted senators to oppose the plan for the purpose of getting rid of that bill and on to others. Accordingly, the 31 Cushman, Barry. Rethinking the New Deal Court : The Structure of a Constitutional Revolution, Oxford University Press, 1998. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/sfsu/detail.action?docID=241597. Created from sfsu on 2017-10-17 23:02:58. leaders of the opposition had always considered the option of mounting a filibuster to defeat the bill, and “were obviously prepared” to do so. Their determination to employ tactics of delay in order to weaken the bill was demonstrated by the quasifilibuster they conducted, with Ashurst’s complicity, in the Judiciary Committee hearings.60 Copyright © 1998. Oxford University Press. All rights reserved. Even before the hearings began, plans for a filibuster had already begun to crystallize. Senator William Borah of Idaho “made plans to filibuster the Court bill to death if enough Democrats did not defect from Roosevelt. He would talk about constitutional law and history for a month if necessary. One of his associates declared many years later that Borah had planned to fight the Court bill with his voice until he fainted with exhaustion.” Journalists encountered Borah at his Senate desk preparing a filibuster speech as early as March 4.61 On March 8, a prominent Republican wrote to William Allen White, “unless there is a change of attitude caused by the tremendous propaganda of the Administration, there are enough senators pledged to speak against the President’s proposal to prevent a vote upon it.”62 This view was confirmed by Senator Arthur Capper, who on February 26 wrote, “I think the Roosevelt program in its present form is blocked. I feel quite sure we have enough votes to upset him.”63 Throughout most of the Court fight, members of the opposition were in close touch with certain of the justices. The justices doubtless suspected, if they did not in fact know, that a filibuster was in the offing. The opposition kept very accurate lists detailing the various senators’ leanings,64 and it does not seem at all unlikely that certain members of the Court were privy to some of those lists. We know, for example, that an agent of the opposition informed Hughes in late February that thirty-seven senators were “hostile” to the bill and that twenty more were “doubtful.”65 We do not know what else was said in the conversation, but we do know that Hughes could count, and surely recognized that thirty-seven senators were four more than the thirtythree that would be required to prevent cloture of floor debate on the bill. Members of the Court were therefore aware as early as late February, and probably at other times as well, that the opposition had enough votes to sustain a successful filibuster, if not to defeat the bill outright. It is therefore likely that the justices never saw the president’s bill as a serious threat to the Court’s independence, because the administration forces never held a card capable of trumping what appeared to be the opposition’s one sure ace—the filibuster. 32 Cushman, Barry. Rethinking the New Deal Court : The Structure of a Constitutional Revolution, Oxford University Press, 1998. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/sfsu/detail.action?docID=241597. Created from sfsu on 2017-10-17 23:02:58. Copyright © 1998. Oxford University Press. All rights reserved. All of this was clear by the time the Court upheld the National Labor Relations Act in a series of cases handed down April 12.66 Here the Court gave the government far more than it needed to in order to avert the Court-packing threat. As Richard Friedman has argued, “the Court might have held for the NLRB [National Labor Relations Board] in its case against Jones & Laughlin and the giant Fruehauf Trailer Company, but held against the Board in its case against the smaller Friedman-Harry Marks Clothing Company. Such a result would greatly weaken any argument that the Court was trying to scuttle the New Deal.… ”67 Yet Hughes and Roberts voted to grant the NLRB victory in each of the five cases. Moreover, Hughes’ opinion upholding the Act offered a more expansive conception of the commerce power than was required to reach such a result.68 The Four Horsemen were presumably as devoted as were their brethren to the Court and its preservation as an independent institution. Yet the Court-packing plan not only did not intimidate them, it appeared to harden their resolve. In Parrish and all but one of the Wagner Act cases,69 the Horsemen filed ringing dissents.70 As noted earlier, the announcement of the plan actually persuaded Van Devanter and Sutherland to delay their retirements. If the plan had this effect on the Four Horsemen, one must wonder whether it would have had any different effect on Hughes and Roberts. It was by no means obvious that upholding the Wagner Act would dampen congressional support for the plan. In addition to deflating a justice’s selfimage, a manifestation of cowardice in a time of crisis might well have diminished the prestige and public support that were the Court’s principal defenses against the plan.71 Hughes was surely mindful of this possibility when he delayed release of Parrish to avoid giving the appearance that it was the sacrificial offering of a timorous Court cowering before the prospect of institutional evisceration. Had the Court wished to hold against the government but to avoid releasing an adverse opinion in the midst of the Court fight, it had options. It could have delayed release of the opinion, as it did in Parrish, until later in the term when the plan was in still deeper trouble. It could also have done what it later did with such controversial cases as Wickard v. Filburn72 and Brown v. Board of Education:73 ordered reargument and held the cases over until the next term, by which time the plan would have presumably lost most, if not all of its momentum. Awarding the government victory in all five of the Wagner Act cases 33 Cushman, Barry. Rethinking the New Deal Court : The Structure of a Constitutional Revolution, Oxford University Press, 1998. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/sfsu/detail.action?docID=241597. Created from sfsu on 2017-10-17 23:02:58. in mid-April was not the only way to defeat the plan, and it probably was not even the best. This suggests again that the decisions were not a direct response to the Court-packing threat. Copyright © 1998. Oxford University Press. All rights reserved. Within ten days of the Wagner Act decisions Senator Joe Robinson of Arkansas, floor manager of the bill, knew of at least forty-five senators committed to vote against the president’s bill.74 The opposition now clearly had the votes to sustain any attempted filibuster. When the Judiciary Committee’s hearings finally ended April 23, it was clear that a majority of the committee opposed the bill and was preparing to write a critical report.75 The following day Chairman Ashurst admitted to reporters, “[E]verybody knew from the start that the committee was not for the bill.”76 Roosevelt summoned Ashurst to the White House to try to persuade him to report the bill to the Senate “without recommendation.” Ashurst and Robinson looked into the possibility and discovered that such a course of action was “not feasible.”77 On April 28 Senators McCarran and Hatch, the two undecided members of the committee who, along with Senator O’Mahoney, had tried unsuccessfully to persuade Roosevelt to agree to a compromise bill, publicly announced their opposition to the plan.78 The vote was now eight in favor, ten opposed. The opposition, however, was not to be contented with the parliamentary advantages entailed by a victory in committee: it was their intention to defeat the bill in a roll-call vote on the floor of the Senate. “Everywhere waverers were beset by members of the opposition, who wheedled, persuaded, threatened and cajoled until waverers wavered no longer.”79 A poll taken near the end of April showed forty-four senators in favor, forty-seven opposed, four doubtful, and one seat vacant.80 By the beginning of May, more than three weeks before the Court was to hand down its opinions in the Social Security cases, the steering committee of the opposition concluded that they commanded an absolute majority in the Senate.81 Even the optimistic backers of the bill soon had to face the fact that they simply did not have the votes. Five different polls of the Senate taken in May had all spelled defeat for the Plan.82 The lack of senatorial support for the bill was mirrored by public opinion. By May 12 a Gallup poll indicated that only 31 percent of the public supported the president’s plan.83 And on May 18, the Senate Judiciary Committee, by a vote of 10 to 8, determined to report the bill out with an unfavorable recommendation.84 34 Cushman, Barry. Rethinking the New Deal Court : The Structure of a Constitutional Revolution, Oxford University Press, 1998. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/sfsu/detail.action?docID=241597. Created from sfsu on 2017-10-17 23:02:58. Copyright © 1998. Oxford University Press. All rights reserved. In the meantime, Justice Van Devanter had finally decided to retire. After consulting with his close friend Senator William Borah, a prominent member of the opposition, Van Devanter decided to send his letter of resignation to Roosevelt on the very day that the committee was to issue its adverse recommendation.85 The timing could not have been more exquisite. Already facing defeat in the Senate, the president’s plan was rebuked by a Democratic committee on the very day that one of its principal raisons d’être submitted his resignation. The retirement for which both Roosevelt and Van Devanter had thirsted so long had sealed the fate of the Court-packing plan. Roosevelt managed to undermine the bill’s chances even further in the days following Van Devanter’s retirement announcement. It was widely known that Roosevelt had promised Joe Robinson the first vacant seat on the Supreme Court. On the day of Van Devanter’s announcement, Robinson’s colleagues gathered round the popular senator’s desk and congratulated him heartily. But the expected announcement from the White House was not forthcoming. Because he saw Robinson as a conservative, Roosevelt was loath to appoint him to Van Devanter’s seat. The replacement of one conservative with another would result in no net gain for Roosevelt’s constitutional agenda. Rather than facing the inevitable with grace, the administration hemmed and hawed for nearly two weeks before calling Robinson to the White House. Members of Roosevelt’s staff even began to circulate reports that Robinson would not be appointed. Robinson was incensed by such shabby treatment and made no secret of his anger among his Senate colleagues. His outrage was shared by many of his fellow senators, and their disgust at Roosevelt’s graceless handling of the situation undoubtedly further compromised the bill’s chances for passage.86 It was on May 24, in the midst of Roosevelt’s mishandling of the Robinson appointment, that the Supreme Court handed down its decisions in the Social Security cases. In Carmichael v. Southern Coal & Coke Co., a majority composed of Hughes, Roberts, Brandeis, Stone, and Cardozo upheld the Alabama Unemployment Compensation Act, which had been enacted by the State of Alabama pursuant to the unemployment compensation provisions of the Social Security Act. Here the solidarity of the Four Horsemen, who had stood shoulder to shoulder in dissent in West Coast Hotel and the Wagner Act cases, began to unravel. Justice McReynolds dissented alone without opinion. 35 Cushman, Barry. Rethinking the New Deal Court : The Structure of a Constitutional Revolution, Oxford University Press, 1998. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/sfsu/detail.action?docID=241597. Created from sfsu on 2017-10-17 23:02:58. Copyright © 1998. Oxford University Press. All rights reserved. Justice Sutherland, joined by Justices Van Devanter and Butler, contended that certain provisions of the Alabama statute violated both the due process and equal protection clauses of the Fourteenth Amendment. Theirs was not a blanket condemnation of unemployment compensation legislation, however. Rather, these justices opined that, were the Alabama legislature to redraft the objectionable provisions so that they more resembled the Wisconsin unemployment compensation act, then the Alabama act’s constitutionality would be beyond cavil.87 In Steward Machine Co. v. Davis, the same five-man majority upheld the unemployment compensation provisions of the Social Security Act. Here again the Four Horsemen broke ranks. Justices McReynolds and Butler dissented, contending that the Act invaded the powers reserved to the states by the Tenth Amendment. Justice Sutherland, joined by Justice Van Devanter, again wrote separately, objecting only to certain easily correctable provisions of the Act.88 And in Helvering v. Davis,89 Sutherland and the retiring Van Devanter actually joined the majority in sustaining the old-age pension provisions of the Social Security Act. These largely superfluous gestures of support for the New Deal were offered when backing for the Courtpacking plan was at its ebb. If the Court-packing plan had been the efficient cause of the Court’s decisions in the spring of 1937, one might have expected the Court’s receptivity to the New Deal to vary in direct proportion to the plan’s chances for passage. Yet the relationship was, if anything, inverse: the compliance of the justices appeared to increase even as the fortunes of the plan waned. Even disregarding the weakness of the plan when the Social Security cases were decided, there are chronological reasons to doubt that the president’s proposal influenced the decisions. Sutherland’s Carmichael dissent90 suggested that the deficiencies plaguing the Alabama act were those that had prompted the Four Horsemen to vote to strike down its New York counterpart in Chamberlin v. Andrews. There the lower court decision upholding the New York statute had been affirmed by an equally divided Court on November 23, 1936.91 The missing justice was again the ailing Stone. Hughes and Roberts must therefore have joined Brandeis and Cardozo in Chamberlin, as they did in Carmichael, in voting to uphold a state unemployment compensation act enacted in accordance with the provisions of the federal Social Security Act. And they did so more than two months before the unveiling of the Court-packing plan. 36 Cushman, Barry. Rethinking the New Deal Court : The Structure of a Constitutional Revolution, Oxford University Press, 1998. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/sfsu/detail.action?docID=241597. Created from sfsu on 2017-10-17 23:02:58. In sum, then, Parrish was decided six weeks, and the first Social Security case ten weeks, before the Court-packing plan was known to any but the most intimate of Roosevelt’s advisers; the Wagner Act cases were handed down six weeks after it was clear that the opposition had sufficient support to sustain a successful filibuster against the bill; and the remaining Social Security cases were handed down over three weeks after it was widely known that the committee would issue an adverse report and that the opposition had enough votes to defeat the bill in a vote on the Senate floor. Because the justices had ample reason to doubt that the Court-packing plan had sufficient public and congressional support to pose a genuine threat to the Court as an institution, the plan is unlikely to have been the proximate cause of the Constitutional Revolution of 1937. Copyright © 1998. Oxford University Press. All rights reserved. Roosevelt did have opportunities for compromise. There were numerous proposals to deal with “the Court problem” on Capitol Hill;92 and though none of them had thus far garnered much support in either house, they might have been invigorated by the backing of a popular president seeking a reasonable accommodation with opponents of his bill. But it became evident very early in the struggle that the president was in no mood to compromise. Roosevelt and his advisers had contemplated many alternative proposals when framing the Court bill and had rejected almost all of them. Thoughts of amending the Constitution were abandoned early.93 In the first place, it was Roosevelt’s view that the Court, not the Constitution, was the problem.94 Amending the Constitution would appear to be conceding that the Court’s decisions against the New Deal had been correct.95 Second, there was considerable dispute within the administration and the liberal legal community over whether an amendment ought to be offered at all, and if offered, what it should look like. The framing difficulties were manifest in the failure of two years of Justice Department efforts to render an acceptable proposal.96 Moreover, an amendment would have to receive a two-thirds vote in each house of Congress and the approval of thirty-six state legislatures. The administration doubted that any acceptable amendment could run such a gauntlet at all, let alone with satisfactory celerity.97 Finally, any legislation enacted pursuant to the authority of a constitutional amendment enlarging regulatory power would be subject to judicial review and interpretation.98 Efforts to amend the Constitution, even if 37 Cushman, Barry. Rethinking the New Deal Court : The Structure of a Constitutional Revolution, Oxford University Press, 1998. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/sfsu/detail.action?docID=241597. Created from sfsu on 2017-10-17 23:02:58. successful, might turn out to have been squandered on a Pyrrhic victory.99 Copyright © 1998. Oxford University Press. All rights reserved. Having abandoned the constitutional amendment approach, the administration considered a variety of statutory remedies. Proposals to require a supermajority of the Court to invalidate legislation were rejected for two reasons. First, such a measure was of doubtful constitutionality and would almost certainly be voided by a Court jealous of its prestige.” Second, such a statute would dilute the Court’s power to protect citizens from infringements of their civil liberties.100 A proposal to restrict the Courts appellate jurisdiction was similarly rejected. Again, the reasons were twofold. First, the Court would still have original jurisdiction in cases involving conflicts among the states. Second, the lower federal courts, which had not been particularly hospitable to the New Deal, would retain the power of judicial review.101 The rejection of all of these alternatives left the administration with only one acceptable solution: enlargement of the Court by statute. Even within these constraints, however, Roosevelt had room to negotiate. His proposal would have resulted in the immediate addition of six justices to the Court. Even if he could not get a majority of the Senate behind his bill, there was reason to believe he could get a majority to support a compromise bill that would add two or perhaps three new justices. But throughout the Court fight the president spurned this and all other offers of compromise. In mid-February a group of congressional leaders headed by Vice President Garner approached Roosevelt and proposed a compromise “probably on the basis of two or three rather than six additional justices.” The president responded by laughing in their faces. Against the urging of White House advisers, Roosevelt publicly reaffirmed his commitment to his bill, as drafted, in a speech delivered at the Democratic victory dinners on March 4, and again in a fireside chat broadcast March 9. Even after the Wagner Act decisions came down, Roosevelt rejected compromises promising two or three immediate appointments to the Court. Not until June 3, after the Court had concluded its term, did Roosevelt finally consent to allow Robinson to secure the best compromise possible.102 Though born in part of the arrogance of his great electoral victory, Roosevelt’s intransigence was not entirely irrational. First, Roose...
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