The Devil and Oliver Wendell Holmes
On September 17, 1862, two great armies met in battle in and around the quiet town of Sharpsburg, Maryland. For Confederate General Robert E. Lee, who had marched his formidable Army of Northern Virginia into the Union-controlled border state just two weeks earlier, the goal was nothing short of total victory. Invading the North and menacing the enemy on its own soil, Lee wrote to Confederate President Jefferson Davis, would demolish northern morale, solidify the case for Southern independence, and “enable the people of the United States to determine at their coming elections whether they will support those who favor a prolongation of the war, or those who wish to bring it to a termination.”1 The stakes were equally high for Union Maj. General George B. McClellan, now forced to reorient his massive Army of the Potomac in order to meet the invading Southern host. “Destroy the rebel army if possible,”2 instructed Abraham Lincoln.
The resulting clash of arms would prove to be the single bloodiest day of the entire Civil War. By the time the smoke cleared after twelve hours of hard, brutal fighting, some 23,000 men were dead, wounded, or missing. “The air was full of the hiss of bullets and the hurtle of grapeshot,”3 recalled one Union soldier who survived the ordeal. At the center of the Confederate battle line, in a sunken farm road now remembered as the Bloody Lane, Southern soldiers were outflanked and massacred by the score. As the historian Shelby Foote later described it, “Quite suddenly, as if they had tumbled headlong by the hundreds out of the sky, dead men filled whole stretches of the road to overflowing.”4
It was a day of death and horror, with staggering casualties on both sides of the Antietam Creek, the winding local waterway that gave the battle its now-storied name. Among the thousands of wounded men littering the ground that day, shot through the neck and left for dead, was twenty-one-year-old Oliver Wendell Holmes Jr., captain of the Twentieth Massachusetts Regiment and future associate justice of the U.S. Supreme Court. “It don’t seem to have smashed my spine,” Holmes wrote home to his mother, “or I suppose I should be dead or paralyzed or something.”5
It was not the young officer’s first brush with death. Two months earlier, at the Battle of Ball’s Bluff in northern Virginia, Holmes was shot twice in the chest, causing his mouth to fill with blood. “The first night I made up my mind to die & was going to take that little bottle of laudanum as soon as I was sure of dying with any pain,”6 he reported home. He suffered a third and final wound one year later at the Battle of Chancellorsville, also in Virginia, where he was shot in the foot. “I’ve been chloroformed & had bone extracted,” he informed his mother, “probably shant lose foot.”7
To read Holmes’s wartime correspondence today is to receive a guided tour through these and other depths of that terrible inferno. “Swollen bodies already fly blown and decaying,”8 he reported in one letter to his family, “Lowell is probably dead bowels cut,”9 he noted in another. “It’s odd how indifferent one gets to the sight of death,” he told his mother in December 1862, “perhaps, because one gets aristocratic and don’t value much a common life.”10
The Civil War had a profound impact on the young man who would later become one of America’s most famous and influential jurists, and it was not a pretty one. As it does for many young soldiers, the experience of combat obliterated Holmes’s youthful idealism. “I am not the same man,”11 he informed his parents in May 1864. But the disillusion went far deeper than that. As the historian Louis Menand memorably put it, “The war did more than make him lose those beliefs. It made him lose his belief in beliefs.”12 Gone forever was the young abolitionist who left Harvard two months before graduation in order to enlist on behalf of a grand cause. In his place was a man who scorned all mention of lofty principle. “I don’t talk much of rights,” Holmes would declare, “as I see no meaning in the rights of man except what the crowd will fight for.”13
In a sense, the Civil War transformed Oliver Wendell Holmes into a democrat of the very purest sort. The majority must get its way, he came to believe, regardless of whether or not minorities got trampled in the process. “It is no sufficient condemnation of legislation that it favors one class at the expense of another,” he argued in the American Law Review, for all laws are “necessarily . . . a means by which a body, having the power, put burdens which are disagreeable to them on the shoulders of somebody else.”14 He made the same majoritarian point with even greater force in a letter to Harvard professor and future Supreme Court Justice Felix Frankfurter. “A law should be called good if it reflects the will of the dominant forces of the community,” Holmes maintained, “even if it will take us to hell.”15 The Civil War may not have taught Holmes that might makes right, but it did teach him that might was the one thing that truly mattered, both on and off the battlefield.
That stark worldview permeated his legal opinions, leading Holmes to embrace an extreme form of judicial restraint that required judges to bow down routinely to the wishes of lawmakers and elected officials. Sometimes that deference to government authority was oblique, as when Holmes led the Supreme Court in brushing away the First Amendment in order to uphold the 1918 conviction of left-wing activist Eugene Debs, arrested under the Espionage Act of 1917, a notorious piece of legislation that made it a federal offense to interfere with American involvement in World War I. What was Debs’s crime? He gave an antiwar speech to a crowd of socialists out for an afternoon picnic. Such was Holmes’s commitment to deference that he allowed so dubious a prosecution to stand.
Other times Holmes’s submission to state power was unmistakable. “We have seen more than once that the public welfare may call upon the best citizens for their lives,” Holmes observed in 1927, alluding to his own Civil War experience. “It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices.”16
So wrote Justice Holmes in the notorious case of Buck v. Bell, where the “lesser sacrifice” in question was the state of Virginia’s desire to forcibly sterilize seventeen-year-old Carrie Buck, “a feeble minded white woman,” as Holmes described her, “the daughter of a feeble minded mother . . . and the mother of an illegitimate feeble minded child.”17 Raped and impregnated by the nephew of her foster mother, Buck had been committed to a state institution for the “socially inadequate” by her foster parents. After a cursory review of the alleged facts of the case, Holmes deferred to the questionable judgment of state officials on every count and ruled in favor of the eugenics law: “Three generations of imbeciles are enough.”18
If Justice Stephen Field was the Supreme Court’s first great champion of judicial action in the cause of limited government and individual rights, then Justice Oliver Wendell Holmes was his nemesis, the Court’s first great advocate of judicial deference to lawmakers and to the will of the majority. Whereas Field urged the courts to “examine into the real character”19 of the laws that came before them and to strike down those democratically enacted statutes that violated fundamental liberties or exceeded the reach of legitimate government powers, Holmes preached a very different sort of gospel, telling his fellow judges to respect “the right of a majority to embody their opinions in law,”20 even when such an act of restraint would mean sending the whole country straight to the devil.
It’s hard to imagine two judicial philosophies with a greater gulf between them. And although Field’s retirement in 1897 prevented the two men from clashing face-to-face on the Supreme Court, their dueling approaches would still collide repeatedly throughout Holmes’s long tenure on the bench, which lasted from 1902 until 1932. During those three decades, as Field’s libertarian vision gradually started winning important cases, Holmes registered his objections in a series of increasingly disgruntled dissents. These great legal battles, waged over issues ranging from economic regulation to civil liberties to racial equality, would shape the course of American law in the twentieth century, with repercussions still felt today.
Liberty of Contract
The opening shots rang out in 1905 in the landmark case of Lochner v. New York. The Lochner story had begun ten years earlier with the passage of a sweeping reform bill by the New York State Legislature targeting sanitary and working conditions in the Empire State’s baking industry. The Bakeshop Act, as the 1895 law came to be known, was a thoroughgoing piece of work, covering everything from ventilation and drainage to the terms under which state inspectors would give or withhold their stamps of approval. In addition, the law also placed strict new limits on the relationship between employers and employees. Henceforth, no bakery workers were permitted to work more than ten hours per day or sixty hours per week, including overtime, unless those bakers happened to own the business or be related to the owner.
That last part was a tip-off that the maximum hours law was designed with something other than just health and safety concerns in mind. After all, if the well-being of workers or consumers was really at stake, why offer any sort of exemption from the saving regulation? In his recent history of the case,21 the legal scholar David Bernstein pointed to a more plausible explanation. The origins of the ten-hour law, Bernstein argued, are found in an economic conflict between unionized New York bakers, who labored in large shops and lobbied intensely for the working hours limit, and their non-unionized, mostly immigrant competitors, who tended to work longer hours in smaller old-fashioned bakeries. As the Baker’s Journal, the weekly publication of the bakers’ union, put it in an editorial, “cheap labor . . . from foreign shores”22 threatened the livelihood of all card-carrying members. The imposition of a ten-hour day, therefore, “would not only aid those unionized bakeries who had not successfully demanded that their hours be reduced,” Bernstein noted, “but would also drive out of business many old-fashioned bakeries that depended on flexible labor schedules.”23 For their part, state officials seemed to share the union’s hostility to immigrant workers. “It is almost impossible to secure or keep in proper cleanly condition the Jewish and Italian bakeshops,” one state inspector reported in 1898. “Cleanliness and tidiness are entirely foreign to these people.”24 Meanwhile, the state’s large corporate bakeries, as Bernstein’s research discovered, mostly sided with the union and tacitly supported the Bakeshop Act. That counterintuitive position makes sense when you consider that the new regulations helped to undermine their competition as well.
Among that competition was a German immigrant named Joseph Lochner, who operated a small family-run bakery in Utica, New York, with his wife and a handful of employees. As Lochner saw it, the maximum hours provision went too far and violated both his rights and the rights of his workers to settle on the basic terms of employment. With the backing of the New York Association of Master Bakers, a trade group comprised of small-scale proprietors, Lochner brought the legal challenge that eventually landed him before the U.S. Supreme Court and added his name to the annals of constitutional history.
Heading into the courtroom in 1905, his odds of success appeared mixed at best. Although the Supreme Court had said that the Fourteenth Amendment protected the right to make labor contracts free from unnecessary government interference in the 1897 case of Allgeyer v. Louisiana, where Justice Field’s “right of free labor”25 was enshrined as the right to liberty of contract, the Court had also recently upheld several reform-minded state laws, including a Tennessee requirement that coal miners be paid in cash, not in company script, and a Utah statute limiting mine workers to an eight-hour day. That second case, Holden v. Hardy, seemed particularly relevant to the Lochner dispute, and New York officials readily cited it as a legal precedent when urging the Supreme Court to uphold their own state’s working-hours limit.
But a five-justice majority of the Supreme Court took a different view. The Bakeshop Act’s ten-hour provision “is not, within any fair meaning of the term, a health law,”26 declared Justice Rufus Peckham for the majority. It was an illegitimate interference with the right to liberty of contract under the Fourteenth Amendment, and therefore must be struck down. Following the same template as Field’s Slaughter-House dissent, Peckham began with a discussion of the proper reach of government power. There is no question that the states possess the lawful authority “to prevent the individual from making certain kinds of contracts,”27 he observed. As an example, Peckham pointed to the law sustained in Holden. In that case, the dangerous and extreme conditions present in an underground coal mine justified the state’s placing certain limits on the hours of work. Similarly, Peckham continued, the Bakeshop Act’s many provisions dealing directly with public health and workplace safety, such as “inspection of the premises,” “furnishing proper washrooms and waterclosets,” “providing proper drainage, plumbing, and painting,” “height of the ceiling,” and “cementing or tiling of floors,”28 were all perfectly legitimate exercises of the state’s police powers.
But Peckham drew the line at the ten-hour provision. “A law like the one before us involves neither the safety, the morals, nor the welfare, of the public,” he argued. “Clean and wholesome bread does not depend upon whether the baker works but ten hours per day or only sixty hours a week.”29 Furthermore, unlike the mine workers in the Holden case, whose risky jobs justified additional state action, “the trade of a baker has never been regarded as an unhealthy one,”30 meaning New York bakers already enjoyed sufficient protections thanks to the other regulations put in place by the Bakeshop Act. Given the facts of the case, Peckham concluded, the freedom of employer and employee “to contract with each other in relation to their employment, and in defining same, cannot be prohibited or interfered with, without violating the Federal Constitution.”31
“The Natural Outcome of a Dominant Opinion”
Writing in dissent, Justice Oliver Wendell Holmes rejected every aspect of Peckham’s ruling. Sixty-four years old at the time, and a twenty-year veteran of the Supreme Judicial Court of Massachusetts, where he had served a stint as chief justice, Holmes was by then a well-known advocate of judicial restraint. His Lochner dissent both solidified and enhanced that reputation. Just over 600 words long, the dissent is packed with memorable phrases and has been cited countless times by a seemingly endless parade of judges, lawyers, academics, and journalists seeking to buttress their own arguments in favor of a deferential Court. “This case is decided upon an economic theory which a large part of the country does not entertain,” Holmes proclaimed at the outset. And that questionable theory—“the liberty of the citizen to do as he likes”—had no business replacing the majority’s right “to embody their opinions in law.” As Holmes quipped, “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics.”32
He was right about that, though not quite in the way he meant. Born in 1820, Herbert Spencer was a polymath English philosopher whose writings dealt with everything from politics to sociology to evolution. Social Statics (1851) was his second book and first big hit. In it, Spencer laid out what he called his “Law of Equal Freedom,” which he considered to be the first principle necessary to establish a “correct system of equity.” It held: “Every man has freedom to do all that he wills, provided he infringes not the equal freedom of any other man.”33 That sweeping credo would not be out of place in the most radical of free-market manifestos, and indeed, Spencer was regarded as the late nineteenth century’s leading proponent of full-throated laissez-faire. That’s why Holmes cast him as the villain in his Lochner dissent. He wanted to paint the majority as a bunch of wild-eyed libertarians hell-bent on subverting democracy.
But as Peckham’s majority opinion had made clear, judicial protection for the right to liberty of contract required nothing so revolutionary as Spencer’s Law of Equal Freedom. Consider again the eight-hour law for miners upheld in Holden and reaffirmed in Lochner (even as the Lochner Court rejected the ten-hour law for bakers). There is no way to reconcile that outcome with the basic premise of Social Statics. What business is it of the state, Spencer might have asked (he died in 1903), if a miner wanted to risk his life by working longer hours for extra money? The public was placed in no danger by his actions, so why not let the worker put himself in harm’s way for a bigger payday? The Lochner majority, on the other hand, described the law as a valid safety measure enacted on behalf of vulnerable employees. In short, the Lochner ruling did not enact Mr. Herbert Spencer’s Social Statics.
But the Court’s libertarian tendencies were not the only thing bothering Holmes about the outcome of the case. “I think that the word ‘liberty,’ in the Fourteenth Amendment, is perverted,” he declared, “when it is held to prevent the natural outcome of a dominant opinion.” Put differently, the people of New York had a broad power to pass whatever laws they deemed fit, and the Supreme Court had no license to nose around in their affairs. The Constitution, Holmes claimed, “is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or laissez-faire.”34 As he saw it, the Lochner majority had committed a grievous error not only by striking down a labor law, but by reading the Fourteenth Amendment as a tool for supervising state affairs in the first place. And as it happened, Holmes was not the only prominent public figure to think so.
Progressive Democracy
Historians generally date the Progressive era as beginning sometime in the early 1890s and concluding sometime in the early 1920s. It takes its name from the assorted politicians, lawyers, and reformers who advocated, seized, and wielded a vast new array of regulatory powers in those days, and it is characterized by their broad view that government should become the primary engine of social change. To that end, the Progressives conceived or enacted many of the most transformative laws of the late nineteenth and early twentieth centuries, from antitrust statutes to the creation of the Federal Reserve banking system to the outlines of what we now consider to be the basic social safety net.
A quarrelsome and morally righteous bunch, the Progressives did not agree with each other on everything. Many of them favored the prohibition of alcohol, for example, seeing the demon rum as a monster unleashed to the detriment of American society; other Progressives, however, failed to see the harm in a working man taking a drink or two, especially after a long day toiling in a factory or walking the picket line. But they did agree on one thing: The Lochner decision, which arrived smack dab in the middle of Progressivism’s heyday, felt like a slap to the collective face. And that’s not just because Lochner struck down a regulation championed by organized labor. Like Holmes, the Progressives also hated Lochner because the ruling used the Fourteenth Amendment to thwart the will of a state legislature.
That last sentence might sound peculiar in the context of today’s legal debates, in which liberalism is so closely associated with the use of the Fourteenth Amendment as a tool against state laws. Indeed, from desegregation to abortion, the Fourteenth Amendment has been inseparable from many of modern liberalism’s biggest legal causes. But today’s liberals are not carbon copies of their Progressive grandparents. Consider the modern campaign on behalf of gay marriage. When the Supreme Court heard arguments in 2013 over California’s Proposition 8, a ballot initiative that had amended the state constitution in order to forbid same-sex unions, the lawyers challenging Prop 8 sought to use the Fourteenth Amendment’s guarantee of equal protection to overrule the wishes of those voters and thereby legalize gay marriage—precisely the sort of Fourteenth Amendment jurisprudence Holmes spent his career arguing against. In the next chapter, we’ll see how modern liberals learned to stop worrying and love judicial activism (just as modern conservatives learned to stop worrying and love judicial restraint). But at this point in the story, the Progressives remain firmly on the side of majority rule and extremely hostile to almost any claim of individual liberty raised against state governments under the Fourteenth Amendment.
Take Herbert Croly, the widely read journalist and author who in 1914 founded Progressivism’s flagship magazine, The New Republic. In his influential book Progressive Democracy, Croly maintained that the meaning of both the Due Process and Equal Protection Clauses of the Fourteenth Amendment was “ambiguous and elastic” at best. “These rules had certainly never been framed for the purpose of curbing legislative action,”35 Croly flatly asserted. Yet thanks to a conspiracy of judges, he went on, “the police power of the state legislatures was emasculated; and the system of government by Law at the hands of a judicial aristocracy was perfected.”36
The celebrated Harvard law professor James Bradley Thayer, who served as a mentor to Oliver Wendell Holmes, championed an equally restrictive view of judicial power. According to Thayer, democratically enacted statutes should only be struck down in those rare instances “when those who have the right to make laws have not merely made a mistake, but have made a very clear one,—so clear that it is not open to rational question.”37 In practical terms, this approach virtually eliminated the need for judicial review. But Thayer had no problem with that result, since he saw little reason for judges to ever intrude on the “wide margin of consideration” that must be accorded “to the practical judgment of a legislative body.”38
Felix Frankfurter, who went on to advise President Franklin Roosevelt during the New Deal and later joined the Supreme Court as a Roosevelt appointee, not only agreed with Thayer, he took the position one step further, arguing in an unsigned New Republic editorial that the Due Process Clause should be stripped from the Constitution entirely. “We have had fifty years of experiment with the Fourteenth Amendment,” Frankfurter wrote, and what that experiment proved to him was that “no nine men are wise enough and good enough” to enjoy such powers of judicial review. “The due process clauses ought to go.”39
Even Louis Brandeis, the Progressive lawyer and Supreme Court justice best remembered today for his civil libertarianism and early championing of privacy and “the right to be let alone,”40 favored granting broad deference to state lawmakers in most aspects of life. Brandeis even pointed to Holmes’s infamous ruling in Buck v. Bell, which upheld the forced sterilization of a teenager, as a permissible example of a state government “meeting modern conditions by regulations.”41
And then there is the most famous Progressive of them all: Theodore Roosevelt. It should come as perhaps no surprise to find the bombastic ex-president at the forefront of the roiling debate over the courts. Roosevelt began warming to the subject as early as 1908, when he criticized the Supreme Court for having a pro-corporate bias, and then again in 1910, when he denounced Lochner as an attack on “popular rights” in a speech before the Colorado legislature. “Such decisions, arbitrarily and irresponsibly limiting the power of the people,” Roosevelt declared, “are of course fundamentally hostile to every species of real popular government.”42
But the Rough Rider really hit his stride two years later with an essay titled “Judges and Progress” written for the Progressive magazine The Outlook, where he was listed prominently on the masthead as a contributing editor. Referring repeatedly to “the Bakeshop Case,” Roosevelt argued that if such judicial shenanigans did not stop immediately, the people would be left with no choice but to strip the courts of their independence and subject judicial decisions (and judges) to recall by popular vote. “If a majority of the people, after due deliberation, decide to champion such social and economic reforms as those we champion,” Roosevelt wrote, “they have the right to see them enacted into law and become a part of our settled government policy.”43 The people, he emphasized, “must ultimately control its own destinies, and cannot surrender the right of ultimate control to a judge.”44
In essence, the Progressives had declared war on the Fourteenth Amendment. And their brazen assault did not go unnoticed. Among the sharpest critics of their approach was the journalist H. L. Mencken, who took aim at Progressive legal thinking while reviewing a book-length collection of Justice Holmes’s dissenting opinions. “Over and over again, in these opinions,” Mencken observed, Holmes “advocated giving the legislature full head-room, and over and over again he protested against using the Fourteenth Amendment to upset novel and oppressive laws, aimed frankly at helpless minorities.”45 That’s not responsible judging, Mencken argued, it’s a gross dereliction of basic judicial duty. “If this is Liberalism,” he declared, “then all I can say is that Liberalism is not what it was when I was young.”46
In truth, it’s no secret why the Progressives adopted Justice Holmes as their legal standard-bearer. His belief in virtually unchecked majority rule lined up perfectly with their own plans to bring industrial society under government supervision and control. But as Mencken observed, that approach did leave something to be desired when it came to the plight of unpopular groups. What happened when the majority was willing to steamroll over minority rights and the courts were not willing to stop it?
In Restraint of Liberty
When President Woodrow Wilson led the United States to war against Germany in 1917, he did so in the name of making the world safe for democracy. But the former head of Princeton University was also worried about certain dangers lurking much closer to home. “There are citizens of the United States, I blush to admit,” Wilson announced, “who have poured the poison of disloyalty into the very arteries of our national life. . . . [T]he hand of our power should close over them at once.”47
The hand of power moved swiftly. On the national level, Congress responded to Wilson’s fears by passing the Espionage and Sedition Acts, vaguely worded federal laws that effectively criminalized most forms of antiwar speech and activism. Indeed, it was the Espionage Act that landed the socialist leader Eugene Debs in federal prison for the harmless “crime” of giving a speech. But the crackdown on the radical left was just one part of Wilson’s push for homeland security, as German-born Americans and their families quickly discovered.
“Before 1914,” the historian David M. Kennedy has written, “the Germans had been probably the most esteemed immigrant group in America, regarded as easily assimilable, upright citizens. Now they found themselves the victims of a brainless fury that knew few restraints.”48 In retrospect, some of that wartime fury now appears comical, such as when self-professed American patriots rejected the use of German-derived words and began referring to their hamburgers as “liberty sandwiches,” or when the city of Pittsburgh banned the music of Beethoven on account of the composer’s German heritage. But it was no laughing matter in April 1918 when a mob near St. Louis snatched up a young man of German descent named Robert Prager, stripped him, wrapped him in an American flag, and murdered him before a crowd of several hundred onlookers. “In spite of excesses such as lynching,” observed the Washington Post, in a report filed after several of the mob’s alleged ringleaders were acquitted of Prager’s killing, “it is a healthful and wholesome awakening in the interior of the country.”49
“Witch hunt” would be a more accurate term for it. Across the nation, Americans of German descent suffered a catalogue of abuses, ranging from loyalty oaths administered at government jobs to discriminatory treatment by state officials to violent attacks by vigilantes. In Nebraska, the state legislature got in on the act with a law banning both public and private school teachers from instructing young children in a foreign language. Although it did not say so explicitly, the statute’s primary target was the state’s system of Lutheran parochial schools, where both teachers and students commonly spoke German. One such instructor, Robert Meyer, who taught the Bible in German at a school run by the Zion Evangelical Lutheran Congregation, challenged the statute for violating his rights. He started out in state court, but the Nebraska Supreme Court soon ruled against him. “The salutary purpose of the statute is clear,” that Court held. “The legislature had seen the baneful effects of permitting foreigners, who had taken residence in this country, to rear and educate their children in the language of their native land.”50 Meyer then appealed his loss to the U.S. Supreme Court, where, in a notable rejection of democracy, he won.
The Due Process Clause of the Fourteenth Amendment, declared the opinion of Justice James C. McReynolds, clearly secured Meyer’s right to earn a living by teaching the Bible in his native tongue, no matter what a majority of his neighbors happened to think about it. By the same token, it also covered the right of parents to educate their children in a foreign language. The Fourteenth Amendment’s protection of liberty “denotes not merely freedom from bodily restraint,” McReynolds explained, “but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”51
Today, Meyer v. Nebraska is largely remembered as an early victory for civil liberty against mob rule, which it surely was. Yet it was also a victory for economic liberty against overreaching regulation. Notice the shades of both Corfield v. Coryell (the Circuit Court case cited by the Fourteenth Amendment’s authors) and Stephen Field’s Slaughter-House dissent in McReynolds’s sweeping invocation of liberty. What’s more, McReynolds’s unabashedly libertarian ruling cited the precedent set in Lochner v. New York. In Meyer, civil and economic liberty did not just rest side-by-side, they were deeply entwined in every aspect of the case.
So of course Justice Holmes cast a dissenting vote. In his view, the anti-German majority ought to have its way. “I am unable to say the Constitution of the United States prevents the experiment being tried,”52 Holmes explained in a companion case, Bartels v. Iowa, which dealt with a similar state ban on foreign-language teaching. As Holmes saw it, the Fourteenth Amendment offered no impediment to a state legislature’s ability to “experiment” with limiting the language of its young citizens. Among the leading Progressives who sided with Holmes was Felix Frankfurter, who said he would rather see the language ban remain in force instead of “lodging that power in those nine gents at Washington.”53
Holmes’s dissent in Meyer was an ugly lesson in how judicial restraint could allow state-sanctioned discrimination to thrive. But no case from that era illustrates this lesson better than Buchanan v. Warley, in which the Supreme Court was confronted with a popularly enacted Jim Crow law segregating residential housing blocks by race. Before we turn to the facts of that landmark case, however, let’s take the opportunity to meet one of the main figures responsible for bringing it about: Moorfield Storey, the libertarian lawyer who argued and won Buchanan before the Supreme Court in his capacity as the first president of the National Association for the Advancement of Colored People (NAACP). If today’s libertarian legal movement had a patron saint, Moorfield Storey would be it.
Born in Roxbury, Massachusetts, in 1845, Moorfield Storey presents a direct link in time between the free labor philosophy of the nineteenth century and the libertarian constitutionalism that emerged in the twentieth. A fierce critic of imperialism, militarism, and executive power,54 Storey was a founder and president of the Anti-Imperialist League, which opposed U.S. annexation of the Philippines after the Spanish-American War of 1898 and counted Mark Twain, Andrew Carnegie, and President Grover Cleveland among its members. An advocate of free trade, liberty of contract, and the gold standard, Storey also helped organize the independent National Democratic Party, also known as the Gold Democrats, who fought the anti-gold populist William Jennings Bryan’s Democratic presidential bid in 1896.55 An individualist and anti-racist, Storey led the NAACP to its first major Supreme Court victory in Buchanan v. Warley.
But before all of that, Storey got his initial start in public life back in 1868 when he served as the personal secretary to Senator Charles Sumner, the legendary Massachusetts abolitionist whose fiery attacks on the peculiar institution inspired one of the most notorious events in congressional history. In 1856, a pro-slavery Congressman named Preston Brooks beat Sumner senseless on the floor of the Senate over Sumner’s insulting characterizations of the slaveholding South. Severely injured by the attack, Sumner would spend three years recuperating before he was finally able to return to Congress. Storey, who later wrote an incisive biography56 of Sumner’s life and career, would remain under the influence of his old boss’s abolitionist principles for the rest of his life.57
Storey put those principles to good use when the case of Buchanan v. Warley reached the Supreme Court in 1917. At issue was a Louisville, Kentucky, ordinance segregating residential housing blocks by race. Enacted “to prevent conflict and ill-feeling between the white and colored races,”58 the law made it illegal for blacks to live on majority-white blocks and for whites to live on majority-black blocks. To test the law, William Warley, the head of the Louisville chapter of the NAACP, arranged to buy property on a white block from a white real estate agent named Charles H. Buchanan, also an opponent of the law. When Warley “learned” that he could not live on the property he was purchasing, he refused to complete payment. Buchanan then sued, but the Kentucky courts ruled against him, upholding the ordinance. NAACP president Storey, joined by Louisville attorney Clayton B. Blakely, took the case to the Supreme Court.
In their brief, Storey and Blakely denounced residential segregation as a racist interference with economic liberty. The Louisville law “prevents the plaintiff from selling his property for the only use to which it can be put,” they wrote. “It thus destroys, without due process of law, fundamental rights attached by law to ownership of property.” Furthermore, the law’s true purpose was not “to prevent conflict and ill-feeling,” as it claimed, but rather “to place the negro, however industrious, thrifty and well-educated, in as inferior a position as possible with respect to his right of residence, and to violate the spirit of the Fourteenth Amendment without transgressing the letter.”59 Were such a restriction upheld, they argued, “an attempt to segregate Irish from Jews, foreign from native citizens, Catholics from Protestants, would be fully as justifiable.”60 Among the legal authorities cited by the brief is none other than the Lochner case, then the Court’s most famous decision protecting economic liberty from state legislation.
In its Buchanan brief, the state of Kentucky took a dimmer view of property rights and economic liberty. Advocating judicial restraint, the state argued that the Court should defer to local judgment and stay out of the matter entirely. “Whether the legislation is wise, expedient, or necessary, or the best calculated to promote its object,” the brief argued, “is a legislative and not a judicial question.”61 Furthermore, “the injury [to property rights] is merely incidental to the city’s right to segregate, and does not warrant the overthrow of police regulations.” As for Storey and Blakely’s contention that the law forced blacks to inhabit the city’s worst neighborhoods, “the improvement of the negro’s condition is limited only by his own character and efforts.”62
The Supreme Court disagreed. “Property is more than the mere thing which a person owns,” Justice William Day held for the unanimous body. “It is elementary that it includes the right to acquire, use, and dispose of it.”63 Accepting Storey’s argument that the ordinance was racist in intent, Justice Day held that the Fourteenth Amendment “operate[s] to qualify and entitle a colored man to acquire property without state legislation discriminating against him solely because of color.”64
Storey was justifiably thrilled at the victory. “I cannot help thinking it is the most important decision that has been made since the Dred Scott case,” he wrote to NAACP disbursing treasurer and fellow Gold Democrat Oswald Garrison Villard (the grandson of abolitionist William Lloyd Garrison), “and happily this time it is the right way.”65 W. E. B. Du Bois, editor of the NAACP newsletter, The Crisis, heartily agreed, crediting Buchanan with “the breaking of the backbone of segregation.”66 In fact, as one legal scholar has argued, “though it was not used to its full potential, Buchanan almost certainly prevented governments from passing far harsher segregation laws [and] prevented residential segregation laws from being the leading edge of broader anti-negro measures.”67
It was a major triumph for individual rights under the Fourteenth Amendment and also the first significant victory for the young NAACP, which went on to become the most influential civil rights organization in the country. And once again, Justice Oliver Wendell Holmes wrote a dissenting opinion, except this time he decided not to file it and instead voted silently with the majority (for reasons that remain unknown). In the draft of that dissent, however, Holmes took his usual majoritarian position. He began by suggesting that the Supreme Court should dismiss the suit unless the NAACP provided “some evidence that this is not a manufactured case.” Turning next to the constitutional merits, he maintained that Kentucky had every authority to regulate property in this manner. “The value of property may be diminished in many ways by ordinary legislation as well as by the police power,” he wrote. An earlier draft of the dissent also contained this sentence, later removed by Holmes from the final, unpublished draft: “The general effect of the ordinance is supposed to be beneficial to the whites for the same reasons that make it bad for the blacks.”68 In other words, as Holmes had put it on an earlier occasion, “It is no sufficient condemnation of legislation that it favors one class at the expense of another,”69 since all legislation boils down to one group imposing its will on other groups. All things considered, the unpublished dissent was a prime example of Holmes’s typical deference to lawmakers. The only surprise is that he failed to practice the judicial restraint he normally preached and instead went along quietly with Buchanan’s libertarian approach. Perhaps even Holmes had to flinch at the idea of casting a lone vote in favor of Jim Crow.
Holmes and the New Deal
In 1931, to celebrate the occasion of Justice Oliver Wendell Holmes’s ninetieth birthday, Harvard law professor Felix Frankfurter put together a book-length collection of tributes to his friend and mentor. Published by the New York firm of Coward-McCann, Mr. Justice Holmes featured contributions from a virtual who’s who of Progressive intellectuals, all lined up in honor of the elder jurist. The philosopher John Dewey, for example, celebrated Holmes as “the most distinguished of the legal thinkers of our country.”70 Federal Appeals Court Judge Learned Hand praised Holmes for “the capaciousness of his learning, the acumen of his mind . . . his freedom from convention.”71 Benjamin Cardozo, who would soon take Holmes’s place on the Supreme Court, said he “gives us glimpses of things eternal”72 and is “the greatest of our age in the domain of jurisprudence, and one of the greatest of the ages.”73 Frankfurter himself simply gushed, “to quote from Mr. Justice Holmes’ opinions is to string pearls.”74
It was a glowing salute to one of Progressivism’s guiding lights. But Holmes would receive a far greater homage over the coming decade as his long campaign on behalf of judicial restraint and majority rule came to be championed by one of the most powerful figures in American history. Franklin Delano Roosevelt entered political life in the shadow of his famous fifth cousin, Theodore, whom he consciously emulated at every step of his career. Like the Rough Rider before him, FDR served as governor of New York and assistant secretary of the Navy, all before finally settling in at the White House, where he adopted Theodore’s muscular and nationalistic brand of Progressivism as his own. When it came to his relationship with the courts, however, FDR would finally break the mold, exhibiting an even greater hostility toward the judiciary than his famously pugnacious cousin ever did.
“Bold, Persistent Experimentation”
Franklin Roosevelt had good reason to be wary of the Supreme Court as the New Deal got rolling in 1933. For one thing, not only was Lochner still on the books, it had received an unexpected boost in the 1923 case of Adkins v. Children’s Hospital, in which a majority of the justices struck down a minimum wage law for women from the District of Columbia on the grounds that it violated the right to liberty of contract secured under the Due Process Clause of the Fifth Amendment. (Because D.C. is a federal enclave, the Due Process Clause of the Fourteenth Amendment, which limits state action, did not apply. The Fifth Amendment’s due process limits on federal power, however, did.) “The right to contract about one’s affairs is a part of the liberty of the individual protected by this clause,” observed the majority opinion of Justice George Sutherland. That fact “is settled by the decisions of this Court and is no longer open to question.”75 A former Republican senator from Utah, Sutherland was a longtime champion of women’s rights76 who had introduced the legislation in the Senate (originally drafted by Susan B. Anthony) that would become the Nineteenth Amendment, which established female suffrage. “In view of the great—not to say revolutionary—changes that have taken place,” Sutherland argued in Adkins, referring to that amendment, “we cannot accept the doctrine that women of mature age . . . may be subjected to restrictions upon their liberty of contract which could not lawfully be imposed in the case of men under similar circumstances.”77
Then, in 1932, the Court delivered another significant blow against government regulation. At issue in New State Ice Co. v. Liebmann was an Oklahoma statute from 1925 granting a handful of companies the exclusive authority to manufacture, sell, and distribute ice. Under the terms of the law, anyone who wanted to enter the ice business had to first justify their plans to the government by providing “competent testimony and proof showing the necessity for the manufacture, sale or distribution of ice”78 at all proposed locations. In other words, upstart ice vendors faced the unenviable and perhaps impossible task of securing the state’s permission to compete against a state-sanctioned ice monopoly.
Oliver Wendell Holmes had retired from the Supreme Court by that point, but Progressive Justice Louis Brandeis, an appointee of President Woodrow Wilson, was still around, and as he saw it, the Court should have let the Oklahoma legislature handle its own internal affairs. “It is one of the happy incidents of the federal system,” Brandeis wrote in dissent, “that a single courageous State may, if its citizens choose, serve as a laboratory, and try novel social and economic experiments without risk to the rest of the country.”79 Writing for the majority, Justice Sutherland offered a direct rebuttal to Brandeis’s dissent. “In our constitutional system,” Sutherland shot back, “there are certain essentials of liberty with which the state is not entitled to dispense in the interests of experiments.”
In fact, Sutherland observed, just one year earlier, in the case of Near v. Minnesota, the Court had nullified (with Brandeis’s full support) that state’s defamation law as a violation of the First Amendment. “In [Near] the theory of experimentation in censorship was not permitted to interfere with the fundamental doctrine of the freedom of the press,” Sutherland pointed out. “The opportunity to apply one’s labor and skill in an ordinary occupation with proper regard for all reasonable regulations is no less entitled to protection.”80
For FDR, who was fond of justifying his New Deal policies as a response to the public’s demands for “bold, persistent experimentation,”81 Sutherland’s opinion in New State Ice Co. stood as a troubling omen indeed. But then the Supreme Court threw a curveball in 1934 by charting a very different course in yet another test of state regulatory power. The case of Nebbia v. New York arose from a 1933 law creating a Milk Control Board to oversee the state’s dairy industry. In order to eliminate what it described as the evils of price-cutting, that board set the minimum price of milk throughout the state at nine cents a quart. In Rochester, a grocer named Leo Nebbia ran afoul of the law by selling two quarts of milk and a five-cent loaf of bread for the combined low price of 18 cents. When his case finally reached the U.S. Supreme Court, a five-to-four majority voted against him.
“A state is free to adopt whatever economic policy may reasonably be deemed to promote public welfare, and to enforce that policy by legislation adapted to its purpose,”82 declared the majority opinion of Justice Owen Roberts. Pointing to the Court’s 1877 opinion in Munn v. Illinois, which upheld a law setting the storage rates for grain elevators (over the dissent of Justice Stephen Field) on the grounds that the business was “affected with a public interest,”83 Roberts argued that the state of New York had a similar public interest in keeping a tight grip on its dairy industry and the essential foodstuffs it produced. Furthermore, Roberts maintained, so long as “the laws passed are seen to have a reasonable relation to a proper legislative purpose,” the Court should defer to the legislature and assume that “the requirements of due process are satisfied.”84
With the New Deal about to enter its third year, and with several high-profile challenges to federal regulation working their way through the legal system, the question now troubling FDR was whether the Supreme Court would treat his regulatory experiments with the judicial deference of Nebbia or with the strict judicial scrutiny of New State Ice Co. He got his answer in the spring of 1935. Unfortunately for Roosevelt, it was not the one he was hoping for.
Another Slaughter-House Case
When Franklin Roosevelt delivered his first inaugural address on March 4, 1933, he promised to counteract the suffering caused by the Great Depression while also bringing runaway capitalism to heel. “This Nation asks for action, and action now,”85 Roosevelt declared. The centerpiece of his action-packed agenda would be the National Industrial Recovery Act (NIRA) of 1933. Hailed by FDR as “the most important and far-reaching legislation ever enacted by the American Congress,”86 the NIRA represented nothing less than an attempt to centrally plan the bulk of the U.S. economy, relying on the joint cooperation of big business, organized labor, and the federal government to manage economic affairs from top to bottom. The result was more than 500 “codes of fair competition,” with an additional 10,000 administrative orders to give them extra force. Those codes sought to control everything from wages to prices to the amount of products that could be legally produced or sold. In some cases, whole trades or industries were required to limit their output in order to collectively raise the price of their offerings—in effect, a government-sanctioned cartel. In other instances, the codes reached down to the smallest aspects of local commerce. In Jersey City, New Jersey, for instance, a Hungarian immigrant dry cleaner named Jacob Maged was thrown in jail for three months because he pressed a suit for 35 cents rather than charging the 40-cent minimum set by the New Deal codes.
Meanwhile, in nearby Brooklyn, New York, a small kosher slaughterhouse run by a group of brothers by the name of Schechter ran into their own problems with federal authorities. Among other requirements, the NIRA-promulgated “Code of Fair Competition for the Live Poultry Industry of the Metropolitan Area in and about the City of New York” imposed a strict new rule known as “straight killing.” In essence, it forbade slaughterhouse operators from allowing their customers to pick out their own live animals and have them slaughtered while they waited. In addition to facing charges of “destructive price-cutting,” the Schechter brothers stood accused of allowing “selections of individual chickens taken from particular coops and half-coops.”87 They had put low prices and customer choice before the edicts of the New Deal.
Their case presented two major constitutional issues. First, the Schechters and their lawyers argued that the NIRA represented an illegal delegation of lawmaking power from the legislative to the executive branch. Under the Constitution, Congress makes the laws and the president enforces them. But with the frequent use of executive orders as part of the NIRA, it seemed as if the president was now acting as a lawmaking power unto himself.
Second, and arguably most important for the future of the New Deal, the Schechters questioned whether federal lawmakers had the authority to enact the NIRA in the first place. As justification for the 1933 law, Congress had cited its authority to regulate interstate commerce under the constitutional provision known as the Commerce Clause. According to President Roosevelt and the New Dealers on Capitol Hill, the Great Depression was a national problem that required a national solution. In practice, that meant Congress sometimes needed to manage purely local activities in order to control the larger national marketplace. The Supreme Court would consider both questions when it heard arguments in the case of Schechter Poultry Corp. v. United States in May 1935.
“This Business of Centralization”
According to Article One, Section Eight of the U.S. Constitution, Congress possesses the authority “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” According to the Schechter brothers, the federal government overstepped this limited grant of power by trying to regulate the local economic activity occurring inside their Brooklyn slaughterhouse.
To the horror of FDR and his allies, that position ruled the day when the Supreme Court finally delivered its eagerly anticipated decision in the Schechter case on the morning of May 27, 1935, soon to be dubbed “Black Monday” by despondent New Deal supporters.
The Supreme Court handed down a total of three opinions that Monday morning, each one unanimous, and each one against the New Deal. First, in an opinion by Justice Louis Brandeis, the Court invalidated88 the 1934 Frazier-Lemke Act, which had modified federal bankruptcy law in order to make it easier for farmers to buy back their farms after foreclosure. Second, in Humphrey’s Executor v. United States, the Court held that President Roosevelt had exceeded the scope of his authority by firing (for political reasons) a member of the Federal Trade Commission without senatorial approval. The FTC “cannot in any proper sense be characterized as an arm or an eye of the executive,”89 the ruling held.
But the main event was Schechter, and it turned out to be the biggest and most resounding defeat of them all. The National Industrial Recovery Act must be struck down in its entirety, declared the unanimous opinion of Chief Justice Charles Evans Hughes, otherwise “there would be virtually no limit to the federal power, and, for all practical purposes, we should have a completely centralized government.”90 For starters, the act rested on an illegitimate delegation of lawmaking power to the executive. Furthermore, because the slaughter and sale of kosher chickens in Brooklyn had, at best, an entirely indirect impact on interstate commerce, the Commerce Clause offered no constitutional basis for any federal regulation of such activity. “If the commerce clause were construed to reach all enterprise and transactions which could be said to have an indirect effect upon interstate commerce,” Hughes wrote, “the federal authority would embrace practically all the activities of the people, and the authority of the State over its domestic concerns would exist only by sufferance of the federal government.”91 In what many observers took to be a direct rebuke to the president himself, Hughes added, “extraordinary conditions do not create or enlarge constitutional power.”92
When he learned the news, Roosevelt could barely contain his disbelief. “Where was Cardozo? Where was Stone?” he asked his advisers, naming two of the Court’s left-leaning members. “What about old Isaiah?”93 he demanded, employing the nickname of Justice Louis Brandeis. All three of those liberal justices had voted against him.
No president likes to lose at the Supreme Court, but Roosevelt seemed to have been uncharacteristically naive about his prospects when it came to the fate of the National Industrial Recovery Act. For one thing, the law had always faced strong criticism from the Progressive left. The muckraking journalist John T. Flynn, for instance, who had written an economics column for The New Republic and authored books with titles like Trusts Gone Wrong!, frequently characterized the NIRA as an example of the government climbing into bed with big business. “Curiously,” Flynn would write, “every American liberal who had fought monopoly, who had demanded the enforcement of the anti-trust laws, who had denied the right of organized business groups, combinations and trade associations to rule our economic life, was branded as a Tory and a reactionary [by the New Dealers] if he continued to believe these things.”94
New Deal adviser Rexford Tugwell, a member of FDR’s original “Brain Trust,” would later acknowledge the merit of such criticism. “The detractors of that sort of planning called it price-fixing, and they had a point,” Tugwell wrote in his 1968 memoir. “But it was price-fixing in the public interest. At the same time it was thoroughly inconsistent with orthodox progressivism which held that fixing prices should be forbidden as conspiratorial.”95 Raymond Moley, a fellow Brain Truster and co-architect of the NIRA, was even blunter in his assessment of the law’s rise and fall. “Planning an economy in normal times is possible only through the discipline of a police state,” Moley would write. “Economic planning on a national scale in a politically free society involves contradictions that cannot be resolved in practice. The bones of the [NIRA] should be a grim reminder of this reality.”96
As for Justice Brandeis, he wasted little time before letting FDR know exactly where the New Deal had gone wrong. An old-school Progressive, “old Isaiah” had long warned about the dangers of corporate monopoly. As a reform-minded young lawyer, Brandeis had first made his name with a book under his belt titled The Curse of Bigness. And as he saw it now, the NIRA looked like more of the same old trouble. “This is the end of this business of centralization,” Brandeis told New Deal adviser Thomas Corcoran shortly after the Schechter ruling came down. “I want you to go back and tell the President that we’re not going to let this government centralize everything.”97
The Court-Packing Plan
FDR waited four days before going public with his response to the Court’s ruling. “The implications of this decision are much more important than almost certainly any decision of my lifetime or yours, more important than any decision probably since the Dred Scott case,” he announced at a press conference. Turning to the specifics of the opinion, Roosevelt said the Court’s error came from trying to square the large-scale requirements of modern government with the out-of-date limits imposed by the Constitution’s Commerce Clause. “The country was in the horse-and-buggy age when that clause was written,” Roosevelt declared. His administration favored a different method of legal interpretation, he explained, one that would “view the interstate commerce clause in the light of present-day civilization.”98
Today, that approach is better known (at least to its critics) as “living constitutionalism.” Essentially, it holds that the Constitution should be viewed as an inherently flexible document, able to adjust to the changing needs of the times. Among the earliest proponents of this view was a young Woodrow Wilson, who argued in his 1885 book Congressional Government that the Constitution must be able to “adapt itself to the new conditions of an advancing society.” “If it could not stretch itself to the measure of the times,” Wilson wrote, the Constitution “must be thrown off and left behind, as a bygone device.”99
In private, FDR was far more interested in ditching the Supreme Court as a bygone device, though he did not permit himself the luxury of making that suggestion at his 1935 press conference. When asked by a reporter about the next move in his showdown with the Court, Roosevelt cryptically replied, “We haven’t got to that yet.”100
It would take several more defeats before Roosevelt finally went on the attack. The worst of those defeats came in 1936. First, in the case of United States v. Butler, the Court, by a five-to-four vote, effectively nullified the Agricultural Adjustment Act of 1933. Several months later, in a move seen by many reformers as a dangerous reaffirmation of the Lochner decision, the Court struck down a New York minimum wage law on the grounds that it interfered with the individual liberty secured by the Fourteenth Amendment. It was the “sacred right of liberty of contract again,”101 fumed New Deal adviser Harold Ickes. The time had come, Ickes and his allies agreed, for something to be done about the Supreme Court.
The solution was FDR’s notorious and ill-fated court-packing plan. The idea itself was not new. Theodore Roosevelt basically floated the concept in 1912 as part of his campaign for the popular recall of Lochner-style opinions. “Either the recall will have to be adopted,” TR had said, “or else it will have to be made much easier than it now is to get rid, not merely of a bad judge, but of a judge who, however virtuous, has grown so out of touch with social needs and facts that he is unfit longer to render good service on the bench.”102
Cousin Franklin not only embraced that idea, he spent tremendous political capital in a failed attempt to make it the law of the land. On February 5, 1937, after he had been safely reelected to a second term, FDR submitted to Congress his proposal for reorganizing the federal judiciary. At the center of the controversial bill was a provision granting Roosevelt (and all future presidents) the power to appoint one new federal judge to match every sitting judge that had served at least ten years and had not retired or resigned within six months of turning seventy years of age. Under the plan, FDR could add as many as forty-four new federal judges and, most important, up to six new Supreme Court justices.
“A lower mental or physical vigor leads men to avoid an examination of complicated and changed conditions,” FDR explained. “Little by little, new facts become blurred through old glasses fitted, as it were, for the needs of another generation.”103 It was a disingenuous argument, to say the least. The Court’s oldest sitting justice at that time was none other than Progressive hero Louis Brandeis. And although Roosevelt may have had his differences with the eighty-year-old justice over Schechter and the other “Black Monday” cases, Brandeis was an otherwise reliable vote in favor of liberal reform. Nor did “old Isaiah” show any signs of slowing down with age. In reality, of course, it was no secret to anybody what Roosevelt’s true motives were. He wanted to appoint a fresh slate of liberal justices who were ready, willing, and able to practice judicial deference and uphold future New Deal legislation.
Unhappily for the president, the plan backfired spectacularly. Brandeis, offended at both the personal insult and the frank attack on the independence of the judiciary, maneuvered behind the scenes to bring about the bill’s defeat. Most significantly, he put the bill’s chief congressional opponent, Democratic Senator Burton K. Wheeler of Montana, in touch with Chief Justice Charles Evans Hughes, who had prepared a memo, signed by himself, Brandeis, and Justice Willis Van Devanter, testifying that the Supreme Court was completely on top of its workload and was in no need of any young blood to pick up the non-existent slack. During testimony on the court-packing proposal before the Senate Judiciary Committee, Senator Wheeler unveiled that memo to great effect. Thwarted by such legislative maneuverings, not to mention by the broad public opposition to his apparent tinkering with a co-equal branch of government, Roosevelt failed to garner the necessary votes and the court-packing plan went down to defeat in the Senate.
Although FDR lost the court-packing skirmish, there’s no doubt that he won the larger battle for control of the Supreme Court. By 1937 the anti–New Deal coalition centered on four justices—dubbed the “Four Horsemen” by their political foes. There was James C. McReynolds, author of the Supreme Court’s libertarian ruling in Meyer v. Nebraska, which struck down that state’s ban on teaching children in a foreign language; Willis Van Devanter, a one-time railroad lawyer and appointee of President William Howard Taft; Pierce Butler, the Court’s only Catholic, and the lone dissenter from Justice Holmes’s pro-eugenics ruling in Buck v. Bell; and George Sutherland, the intellectual leader of the group and the author of the Court’s libertarian rulings in Adkins v. Children’s Hospital, which struck down a minimum wage law for women, and New State Ice Co. v. Liebmann, which voided a state-sanctioned ice monopoly.
But as every court watcher knows, the magic number at the Supreme Court is five, not four. And in the late 1930s, that crucial fifth vote was in the hands of Justice Owen Roberts, a former U.S. attorney and appointee of President Calvin Coolidge. In 1936, Roberts had provided the fifth vote needed to strike down New York’s minimum wage law. That same year, he authored the Court’s opinion nullifying the Agricultural Adjustment Act. But Roberts had also broken stride with the Horsemen on several other occasions, most notably in the 1934 case of Nebbia v. New York, where he authored the majority opinion upholding the state’s regulation of dairy prices and reaffirming the conviction of a local grocer for selling low-priced milk. That ruling was a paragon of judicial deference and a taste of things to come. With all eyes now focused on FDR’s showdown with the Supreme Court, the question of the hour was whether Roberts would side with the Four Horsemen or with the New Deal when the next test of economic regulation reached the bench.
The country got its answer on the morning of March 29, 1937, promptly dubbed “White Monday” by the Washington press corps. By a vote of five to four, with Roberts siding with the liberals and the Horsemen united in dissent, the Supreme Court upheld a Washington state minimum wage law for women under the principle of judicial restraint in West Coast Co. v. Parrish. “The Constitution does not speak of freedom of contract,” announced the majority opinion of Chief Justice Hughes. “It speaks of liberty and prohibits the deprivation of liberty without due process of law.” And as far as the Supreme Court was now concerned, “regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process.”104 Besides, Hughes added, striking a note of paternalism, “What can be closer to the public interest than the health of women and their protection from unscrupulous and overreaching employers?”105
In other words, liberty of contract was now finished as a viable legal argument. Justice Sutherland, author of the suddenly defunct majority opinion in Adkins v. Children’s Hospital, filed a blistering dissent accusing his colleagues in the majority of a cowardly retreat from basic judicial principles. “The meaning of the Constitution does not change with the ebb and flow of economic events,”106 Sutherland wrote. To say “that the words of the Constitution mean today what they did not mean when written—that is, that they do not apply to a situation now to which they would have applied then—is to rob that instrument of the essential element which continues it in force as the people have made it until they, and not their official agents, have made it otherwise.”107
Sutherland was outraged, but whether he liked it or not, the tide had turned decisively against him. Just two weeks later, on the morning of April 12, the same five-vote liberal majority—Charles Evans Hughes, Owen Roberts, Louis Brandeis, Benjamin Cardozo, and Harlan Fiske Stone—sustained the constitutionality of the National Labor Relations Act, popularly known as the Wagner Act in tribute to its chief advocate, Senator Robert Wagner of New York. At issue in National Labor Relations Board v. Jones & Laughlin Steel Corp. was the scope of congressional power under the Commerce Clause, the very issue that had previously spelled doom for the National Industrial Recovery Act in 1935.
The question now before the Court was whether a dispute between the Jones & Laughlin Corporation and its unionized steel workers inside the state of Pennsylvania counted as interstate commerce for the purposes of the new federal labor law. The Court held that it did, thereby validating the constitutionality of the New Deal’s most extensive labor regulation. To begin, wrote Chief Justice Hughes, the Court must acknowledge its own fundamentally deferential role in the political structure. Our job “is to save, and not to destroy. We have repeatedly held that, as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the act.”108 (Chief Justice John Roberts would employ that same argument seven decades later to save President Barack Obama’s health care law.) Turning to the labor law at issue, Hughes found no difficulty in construing it as a permissible exercise of congressional power. “Although activities may be intrastate in character when separately considered,” Hughes wrote, “if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise that control.”109
All told, it was one of the most striking turnarounds in legal history. In less than a decade, the Supreme Court had not only rendered liberty of contract a dead letter, it had embraced a sweeping form of judicial deference toward state and federal legislation while also greatly expanding congressional power by allowing federal lawmakers to reach activities that would previously have been seen as off-limits under the Commerce Clause. As the legal historian William E. Leuchtenburg would put it, “From 1937 on, the relationship among the branches of government shifted dramatically, as an era of ‘judicial supremacy’ gave way to deference by the Supreme Court.”110
When it came to government regulation of the economy, Americans would now be living in the world envisioned by Justice Oliver Wendell Holmes.