"The Supreme Court and the New Deal:
A True Test of the Power of Judicial Review"
By Christopher R. Geidner
The early 1900’s were a time of great innovation and change in our entire country. Our judicial system, however, went through some of the most extraordinary stresses in our young Republic. The question of this period is that of whether or not the state and/or federal government had the Constitutional authority to enact certain labor and other regulations. The importance of these cases is the change in direction that the Court takes from the pre-New Deal era of Lochner and Adkins, which form the basis for those "Four Horsemen" plus one New Deal invalidations in Carter and Morehead to Justice Roberts’ switch of Parrish onward. The question, role, and even validity of judicial review was the hot molten lava ready to run over through the entire New Deal and court-packing fracas of the 1930’s.
In 1905, a case reached the Supreme Court in which the state of New York had required bakers to work no more than sixty hours throughout the course of a week. Lochner v. New York, 198 U.S. 45 (1905) New York maintained that its state police powers to protect the safety, health, morals and welfare of its citizens permitted it to pass such a law. Lochner, an owner of a bakery, claimed that the 14th Amendment granted a right to contract as a part of liberty, and that this contract right included the number of hours one chose work in a bakery. As to judicial review, the Court, in the form of Justice Pekham, states that if a law passed by the state legislature is within the power of the state, then the Court has no option but to validate it. The Court then goes on, even in light of that,to write that the state had no authority to regulate the hours of work a baker is to be permitted to work. The Court clearly explains its 1905 standard by stating that:
"Statutes under the nature of that under review…are mere meddlesome interferences with the rights of the individual, and they are not saved from condemnation…unless there be some fair ground, reasonable in and of itself, to say that there is material danger to the public health, or to the health of the employees, if the hours of labor are not curtailed." [Lochner, Id.]
This invalidation of New York’s baker’s hours law tightened questions about which labor regulations were permitted by the Court because Lochner shortly followed the validation of a Utah coal miner’s hours limit statute. Holden v. Hardy, 169 U.S. 366 (1898) Lochner was, however, among several significant decisions of the Court in the early 1900’s which invalidated state labor laws. This continued in 1923 when the Court considered a District of Columbia dispute involving a minimum wage board. Adkins v. Children’s Hospital of District of Columbia, 261 U.S. 525 (1923) The Court finds in this case that, although unable to be a "rigid boundary" and "within limits not well defined," a line exists beyond which a statute interferes too much with the liberty of the individual to be found Constitutional. The Court feels that the District’s minimum wage board "passes the limit prescribed by the Constitution" Adkins, Id. and is therefore unconstitutional.
At the beginning of Franklin Roosevelt’s Dew Deal, much of his progressive legislation was found to be unconstitutional by a Court that used the standards previously discussed. The "Four Horseman," as they were called, consisted of four Justices who were adamantly opposed to the Constitutionality of Roosevelt’s legislation. In one of these such cases the Court examined a national mining industry law (Bituminous Coal Conservation Act of 1935), and in so doing struck down a tax in the law as a coercive penalty beyond the scope of Congress’s tax authority. The Court didn’t leave it at that, however, and also struck down the wage, working conditions, and hours portion of the law as also beyond the scope of Congress’s Constitutional authority, finding that "production is not commerce; but a step in preparation for commerce." Carter v. Carter Coal Co., 298 U.S. 238 (1936) The Court also finds in Carter that an attempt to set a minimum wage in the Act in question was "…undertak[ing] an intolerable and unconstitutional interference with personal liberty and private property." Carter, Id.
During this time the Court also reviewed the issue of minimum wages for a fourth time in Morehead v. New York ex. rel. Tipaldo, 298 U.S. 587 (1936). Since Adkins, the Court had invalidated such laws in both Arizona and Arkansas. Murphy v. Sardell, 269 U.S. 530; Donham v. West-Nelson Co., 273 U.S. 657 The Court, perhaps becoming aware of growing dissatisfaction with recent "anti-New Deal" decisions, defends itself in Morehead by avoiding the question of overruling Adkins completely. "[Petitioner] is not entitled and does not ask to be heard upon the question whether the Adkins Case should be overruled." Morehead, Id. Later in the decision, the Court again defends Adkins, with a rather condescending statement that "thoughtful attention" had been given "to all that was suggested against [the Adkins] decision," yet it had, of yet, been upheld. Morehead, Id.
This, and other similar decisions by the four votes of the "Four Horseman" and the swing vote of Justice Owen Roberts, led to what was later termed the "Great Debate." President Franklin Delano Roosevelt, on February 5, 1937, presented in the form of a message to Congress a plan which would dramatically alter not only the course of FDR’s presidency, but the course of the entire New Deal, and perhaps even the course of the Nation. FDR proposed the constitutional, yet, as it turned out, insurmountable task of increasing the number of Justices of the Supreme Court and the federal judiciary. FDR’s initial plan would have allowed the President to appoint a new Justice if a sitting one continued to serve past six months after his 70th birthday. It allowed the President to add up to six Justices to the Court, and 44 judges to the lower federal benches. The plan sent shockwaves throughout the nation. It was one of the most contentious national issues since the Great War. It was by far the most significant question of judicial authority since Marshall first asserted the power of judicial review. And perhaps that question of judicial authority led to the Court’s 1937 Parrish decision. West Coast Hotel v. Parrish, 300 U.S. 379 (1937)
In the midst of Congressional, editorial, and public reaction to and discourse over FDR’s plan, the Court handed down its decision in the case of West Coast Hotel v. Parrish. In this case the Court found valid a Washington state statute remarkably similar, and perhaps not randomly so, to the legislation struck down the previous year in Morehead. The difference was in the opinion of Justice Roberts. His previous 5-4 majority vote against many minimum wage programs became the 5-4 majority in favor of minimum wage programs. Handed down shortly after Roosevelt’s court-packing plan announcement (yet decided prior to his announcement), the Court reasoned that it was time to reconsider Adkins, and in so doing, found the Adkins ruling to be inconsistent with "th[e] power under the Constitution to restrict freedom of contract." West Coast Hotel, Id. Much of the reasoning in West Coast Hotel, according to the new majority, was that of the previous dissents, and was justified because the majority had been so small in those prior cases. The Court states that:
"The importance of the question. . . 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. . . the protective power of the state. . . make it not only appropriate, but we think imperative, that in deciding the present case the subject should receive fresh consideration." [West Coast Hotel, Id.]
With Justice Roberts’ change in opinion, Roosevelt’s minority on the Court became a majority and later that year, the Court, in NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937), upheld nearly all that it had struck down in 1936’s Carter. By upholding the National Labor Relations Act, the Court turned its Carter interstate commerce ruling on its head, citing the right to organize as a fundamental one and the right of the government to intervene in labor disputes which impede interstate commerce as constitutional. Cases such as these reversed the trend of the prior 25 years, and caused a reason for joy from FDR.
With the Court in agreement with the New Deal, however, FDR’s Court-packing plan was eventually recommitted to committee to never be seen again. Although along the way the plan took a rather complicated series of twists and turns including transatlantic ambassadorial communication and the death of the Senate Majority Leader. The legislation that Roosevelt was able to get through Congress was found valid by the new majority, although New Deal legislation was much more difficult to pass in Congress after the Court debate. Roosevelt was fond of declaring that he may have lost the battle, but that he won the war. There was some truth to that. Justice McReynolds, one of the "Four Horsemen," was eventually the lone horseman, and, from 1937 until his resignation in 1941, he dissented 119 times.
Justice McReynolds became the symbol of anti-FDR/New Deal bitterness on the Court, and while he may have soon been singular on the Court, he was not alone in society. After the court-packing plan, FDR never had the public support of the 1936 election. He never had the power on the Hill that he once had. His foreign policy may have been adversely affected. Many of the damage and questions caused by this attack on the Judiciary remain. He had splintered the Democratic party, destroyed many of his New Deal goals, and perhaps had even gone so far as to have greatly harmed the modern social liberalism he had so helped to create and nurture. This great battle in American Constitutional law was based entirely on questions of the validity of judicial review itself and the answers are today still being found.