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The Court Packing-Plan and The Commerce Clause
Robert L. Stern
Perhaps the most dangerous attack upon the independence of the United States Supreme Court was President Franklin D. Roosevelt's proposal early in February, 1937 to allow the President to appoint up to six additional Justices to the Supreme Court to sit in addition to each Justice over 70 years of age. Although the professed object was to alleviate congestion in the Court, the obvious, though unexpressed, purpose was to overturn the rulings of five or six of the Justices invalidating both state and federal laws regulating business, including the major statutes of the New Deal. All of the four Justices--Van Devanter, McReynolds, Sutherland and Butler--who invariably voted against constitutionality, as well as Chief Justice Hughes and Justice Brandeis, were then over 70.
A few days later NLRB v. Jones & Laughlin Steel Corp. , 301 U.S. 1, and other cases involving the constitutionality of the National Labor Relations Act were argued. The Washington minimum wage case--West Coast Hotel Co. v. Parrish--had been argued early in December.
On March 29 the Court sustained the constitutionality of the Washington statute (300 U.S. 379), overruling Morehead v. Tipaldo, 298 U.S. 587 (1936), which had invalidated a New York minimum wage statute on June 10, 1936, ten months before. On April 12 in the Jones & Laughlin case, the Court upheld the constitutionality of the NLRA as applied to manufacturers of goods shipped in interstate commerce, in substance overruling Carter v. Carter Coal Co. ,298 U.S. 238, which eleven months before had found that the commerce power did not permit federal regulation of labor regulations in the coal industry. The same nine judges were sitting.
Chief Justice Hughes, who had dissented in the Morehead case but had joined with the conservative majority in the part of the Carter decision dealing with labor relations, wrote the opinions for the majority of five in both West Coast Hotel and Jones & Laughlin. Justice Roberts, who had concurred in the decisions against constitutionality in both More head and Carter Coal, joined with the Chief Justice to make the majority in both West Coast Hotel and Jones & Laughlin cases. The Social Security Act was held constitutional by the same 5 to 4 vote in Steward Machine Co. v. Davis, 301 U.S. 548 and Carmichael v. Southern Coal and Coke .Co. ,301 U.S. 495 on May 24,1937. No change in the membership of the Court occurred until the end of the Term the next week when Justice Van Devanter retired.
After these- decisions the Court-packing plan made no progress in Congress, although the President stubbornly refused to withdraw it. The unsatisfied question was what had induced Justice Roberts and to a lesser extent the Chief Justice, to change their votes. The general consensus at the time was that the plan had achieved its purpose, that the legislation designed to cope with the problems of the great depression of the 1930s would no longer be held unconstitutional.
To lawyers it then seemed obvious, as I wrote in 1946 ("The Commerce Clause and the National Economy, 1933-1946", 59 Han'. L. Rev. 645, 681), that though "No one who did not participate in the conferences of the Court will know the answers to those questions,
few attributed the difference in results between the decisions in 1936 and those in 1937 to anything inherent in the cases themselves–their facts,...the arguments presented, or the authorities cited. But the consensus among the lawyers speculating on the Court's sudden reversal was that the Chief Justice and Mr. Justice Roberts believed that the continued nullification of the legislative program demanded by the people and their representatives–as manifested in the 1936 election–would lead to acceptance of the President's Court plan, and that this would seriously undermine the independence and prestige of the federal judiciary, and particularly of the Supreme Court, without preventing the President from attaining his objective. Chief Justice Hughes was subsequently cited for his "statesmanship" in using the cases as potent weapons in a successful campaign, in which he was somewhat inhibited by his judicial position, to combat the plan. Whether or not there was any basis for these conjectures, government counsel, or most of them, accredited their victory more to the President than to anything they had said or done.
The object of this paper is to revaluate this conclusion on the basis of information which has subsequently become available, and perhaps with more objectivity, years after the author had participated in many of the commerce clause cases writing briefs in support of the constitutionality of the statutes. For facts subsequently disclosed cast doubt on the accuracy of the assumption that the Court-packing proposal had motivated the votes of Chief Justice Hughes and Justice Roberts.
A. The Minimum Wage Cases.
An article by Merlo J. Pusey, the principal biographer of Chief Justice Hughes, in the 1984 issue of this Yearbook, ("The Hughes Biography: Some Personal Reflections", 48), stated that "until the Hughes biography was published" in 1951 "the fact was not known outside the Court" that "Justice Roberts had switched his vote in regard to the state minimum wage laws before the Court-packing bill had been disclosed". Another article in the same issue by John Knox, former law clerk to Justice McReynolds ("Some Comments on Chief Justice Hughes", 34, 41) called attention to the fact that, when voting in that case in the normal course several weeks after it was argued in December, 1936, with Justice Stone absent because of illness, the Court had divided 4 to 4.
That meant that Justice Roberts must have voted with Chief Justice Hughes and Justices Brandeis and Cardozo against the four conservatives. The formal vote of 5 to 4 after Stone had returned to the bench also was taken "shortly before the President's plan was announced" early in February. Although the opinion was not handed down until March 29, the above facts show that neither the Chief Justice nor Justice Roberts had been influenced by the plan when they determined to sustain the state statute in that case.
The details as to Roberts' vote in the minimum wage cases were more fully revealed in 1955, four years after Pusey's biography of Hughes was published. In a memorandum given by Roberts to Justice Frankfurter shortly after Roberts' retirement from the Court in 1945, Roberts told the whole story.
Frankfurter deemed it appropriate to make the memorandum public in his contribution to an issue of the University of Pennsylvania Law Review (104 U. of Pa. L. Rev. 311, 314), commemorating Justice Roberts shortly after his death. The memorandum confirmed what Mr. Pusey had already learned from Chief Justices Hughes, that Robests voted against the validity of the New York minimum wage statute in the Morehead case because New York was arguing only that that case was distinguishable from the Court's 1923 decision in Adkins v. Childrens Hospital, 261 U.S. 525, "that it was unnecessary to overrule the Adkins case in order to sustain" New York's position. In Justice Roberts' words:
The argument seemed to me to be disingenuous and born of timidity. I could find nothing in the record to substantiate the alleged distinction. At conference I so stated, and stated further that I was for taking the State of New York at its word. The State had not asked that the Adkins case be overruled but that it be distinguished. I said I was unwilling to put a decision on any such ground. The vote was five to four for affirmation, and the case was assigned to Justice Butler.
I stated to him that I would concur in any opinion which was based on the fact that the State had not asked us to re-examine or overrule Adkins, and that, as we found no material difference in the facts of the two cases, we should therefore follow theAdkins case. The case was originally so written by Justice Butler, but after a dissent had been circulated he added matter to his opinion, seeking to sustain theAdkins case in principle. My proper course would have been to concur specially on the narrow ground I had taken. I did not do so. But at conference in the Court I said did not do so. But at conference in the Court I said that I did not propose to review and re-examine the Adkins case until a case should come to the Court requiring that this should be done. (Italics added)
The italicized sentence indicates that Roberts subsequently concluded that he should have restricted his concurrence to the narrow ground of New York's failure to request an overruling of Adkins. In his article Justice Frankfurter agreed, as did Dean Erwin N. Griswold in a companion article ("Owen J. Roberts as a Judge", 104 U. of Pa. L. Rev., 332, 343-344 (1955)), in which he concluded:
the only criticism that can be made, I think, is that [Robertsl did not sufficiently make his position known in the Tipaldo case…. He did not take the steps to identify the procedural issue with himself. This may have been an error in opinion writing. It was not a vote under political pressure.
B. The Labor Board Cases.
Hughes and Roberts had, of course, not taken a position in the Labor Board cases before the Court-packing plan was announced on February 5, 1937. Those cases were argued from February 9 to 11.
Mr. Knox recalled that "at one of the Saturday conferences not long after these dates the Justices cast their votes and once again Roberts sided with the liberals and the final vote stood at S to 4--the same as in the West Coast Hotel case." This of course does not establish whether in those cases Hughes or Roberts were influenced by the Court plan when they surprisingly changed the Court's position as to the scope of the commerce power.
1. Chief Justice Hughes.
As to Chief Justice Hughes, in 1913 and 1914, when he was first on the Court, he wrote the leading opinions in the Minnesota Rate Cases, 230 U.S. 352, 398, and the Shreveport Case, 234 U.S. 342, which established the power of Congress "to regulate many interstate activities impinging on interstate commerce. Congress could protect interstate commerce from injury, no matter what the source of that injury might be." (Pusey, Yearbook 1984, p.50.)
His opinion for a unanimous Court in the Schechter case in 1935 reaffirmed that principle. The Court there held, not unreasonably, that although the Sherman Act had the year before been held applicable to the wholesaling of live poultry from other states in New York City, the specific practices involved in the NRA Code were too indirectly related to interstate commerce to come within the commerce power. Cf. Local 167 v. United States, 291 U.S. 293 (1934).
Two weeks before Schechter the Chief Justice had written a strong dissent from Justice Roberts' opinion for a conservative majority of five in the Railroad Retirement case. He concurred with those five Justices, however, in invalidating the Agricultural Adjustment Act in United States v. Butler, 297 U.S. 1, early in 1936. In that case, where the government had relied on the tax and general welfare clauses, not the commerce clause, Roberts' opinion seemed to state without qualification that Congress had no power to regulate agricultural production. In the Carter Coal case a few months later Hughes did not join in Sutherland's majority opinion, but in a "separate" opinion of his own agreed with the part of the majority opinion which held that federal power did not extend to the regulation of labor conditions in the coal industry no matter how great the effect on interstate commerce.
Those opinions will be considered more fully below with respect to Justice Roberts, who had written or concurred in them fully. Insofar as the Chief Justice was concerned, despite his Carter opinion, his prior pronouncements and votes as to the scope of the commerce power and his failure to join in the majority opinions in Railroad Retirement and Carter gave some reason to believe that he would not join the conservative wing of the Court in passing upon the validity of the National Labor Relations Act. His record as a whole was not sufficiently one-sided to warrant discrediting his own statements as recorded by Mr. Pusey (at p. 768) after Hughes' retirement from the Court. Professor Paul Freund, writing in 1967, was persuaded by this material, even though he thought that Hughes' "own protestations that he was perfectly consistent are not perfectly convincing.. ."in the light of his separate opinion in Carter. (Freund, "Charles Evans Hughes as Chief Justice", 81 Han'. L. Rev. 4, 34(1967). I agree that these subsequent disclosures preclude anyone who had not talked to him, as Pusey had, from concluding that his votes in the Labor Board cases were so inconsistent with his prior positions as to establish that they were motivated by a desire to defeat the Court-packing plan.
Mr. Pusey's biography, which undoubtedly reflected the Chief Justice's position, suggests that the 1935 and 1936 decisions invalidating the earlier New Deal statutes and the subsequent 1937 cases were entirely consistent, because the later statutes had been more skillfully drafted in the light of accepted commerce clause principles. There is something to this explanation of the later decisions; of course, the draftsmen of the newer statutes took advantage of what the decisions invalidating the earlier laws had said. But that is by no means the whole story. Language and reasoning in Railroad Retirement, Butler, and Carter could reasonably be read to mean that five or six of the Justices believed that Congress completely lacked power to regulate intrastate aspects of interstate industry, no matter what the economic effect. If those decisions could have been construed as curable by better draftsmanship, the Administration's lawyers, who were never charged with stupidity, would never have accepted the necessity of a challenge to the independence of the Supreme Court in a way which was certain to arouse tremendous opposition even among many of their own supporters. Although the earlier cases might have been distinguishable, there was little reason to believe at the end of 1936 that a majority of the Court wanted to distinguish them.
2. Justice Roberts.
Justice Roberts' prior opinions left little room for such hope. His opinion for the Court three weeks before Schechter in Railroad Retirement Board v. Alton Railroad, 295 U.S. 330, from which Chief Justice Hughes and Justices Brandeis, Stone and Cardozo dissented, seemed to manifest his approach as to the scope of the commerce power. The majority there held that a federal statute establishing a retirement program for railroad employees "is not in purpose or effect a regulation of interstate commerce within the meaning of the Constitution" (295 U.S. at 362). Characterizing the majority decision as holding that "the subject matter itself lies beyond the reach of" the commerce power even for interstate railroads, the dissenters insisted that the "sovereign power to govern interstate carriers extends to the regulation of their relations with their employees who likewise are engaged in interstate commerce." (295 U.S. at 375-376.) The majority's restrictive interpretation of the commerce power as applied to railroads clearly foreshadowed the attitude of the same five Justices with respect to federal regulation of aspects of less interstate industries no matter what the effect on interstate commerce.
Any doubts on that score would seem to have been removed by two decisions in 1936. The opinion by Justice Roberts for six Justices (including Chief Justice Hughes) in United States v. Butler, 297 U.S. 1, invalidated the Agriculture Adjustment Act of 1933, which taxed processors of agricultural products in order to provide funds to pay farmers for reducing the size of their crops and thereby to raise farm prices from disastrously low levels.
The government relied on the power to tax and provide for the "general Welfare," not the commerce clause. After holding that the "general Welfare" was not limited by the specific powers granted Congress, Justice Roberts' opinion found it unnecessary to decide whether such an appropriation in aid of agriculture fell within the general welfare. For it found that no power to "regulate and control agricultural production," even by spending tax money, had been granted, and that therefore the Tenth Amendment forbade any such action by Congress (297 U.S. at 68). Thus, although the opinion does not mention the commerce power, it left the undoubted impression that the six Justices who joined in it thought that Congress had no power to regulate production in any industry.
This was confirmed four months later in Carter v. Carter Coal Company, 298 U.S. 238. Five justices, including Justice Roberts, there joined in an opinion by Justice Sutherland holding that labor relation in the coal industry could not be regulated under the commerce power; restraints upon the production of coal by strikes could not be said to directly affect interstate commerce no matter what the magnitude of the effect (298 U.S. at 308):
If the production by one man of a single ton of coal intended for interstate sale and shipment, and actually so sold and shipped, affects interstate commerce indirectly, the effect docs not become direct by multiplying the tonnage, or increasing the number of men employed, or adding to the expense or complexities of the business, or by all combined.
The opinion thus gave no weight to the government's evidence that labor disputes in the coal industry, which the regulation of labor relations was designed to reduce or resolve, could shut down all the railroads in the United States and the industries dependent on the railroads, thus stifling a large proportion of all interstate commerce. The opinion then held the entire Coal Act unconstitutional on the ground that the other provisions, which related to price fixing, were inseparable from the labor provisions.
The uncertainty as to the basis for Justice Roberts' change in position led Charles A. Leonard to embark upon a thorough study in the 1960s. This resulted in a short book in 1971 entitled: A Search ForA Judicial Philosophy: Mr. Justice Roberts and the Constitutional Revolution of 1937 (National University Publications, Kennikat Press, Port Washington, N.Y. ) Professor Leonard examined all possible sources for an explanation of Roberts' change of position. He interviewed Roberts' family, other Justices, his law clerks, and other persons who knew him, but to no avail.
The Justice left no papers which threw any light on the reasons for his vote in the Jones & Laughlin case. Professor Leonard could find only three possible relevant statements which are summarized in his book as follows (pp.155-157): 
[1] Appearing before the Senate judiciary subcommittee [in 1954] he [Robertsl declared, 'Now I do not need to refer to the Court-packing plan which was resorted to when I was a member of the Court. Apart from the tremendous strain and the threat to the existing Court, of which I was fully conscious, it is obviously if ever resorted to, a political device to influence the Court and to pack it so as to be in conformity with the views of the Executive or the Congress, or both.
[2] On the other hand, in his Oliver Wendell Holmes Lectures delivered at Harvard in 1951, the former Justice declared that 'looking back it is difficult to see how the Court could have resisted the popular urge for uniform standards throughout the country – for what was in effect a unified economy.'
[3] In the memorandum which Roberts gave to Felix Frankfurter when he left the Court in 1945, the retiring Justice concluded his relating of the facts in the West Coast Hotel case with the following comment: 'These facts make it evident that no action taken by the President in the interim had any causal relation to my action in the Parrish case.
Nothing further can be offered in refutation of the accusation that Roberts bent to the wind of executive-legislative threat.
The third item was, of course, conclusive as to West Coast Hotel. But it did not refer to Roberts' vote in the Jones & Laughlin case, which was not the subject of his memorandum to Justice Frankfurter. Whether any negative inference can reasonably be drawn from the fact that Roberts made such a statement only as to West Coast Hotel is doubtful.
Professor Leonard's attempt to uncover further information was unsuccessful. He notes (p. 155) that "respected commentators" during that period had different views. Professors Carl B. Swisher and Edward S. Corwin were inclined to believe that the Court plan was a major factor (p. 155). Professor Felix Frankfurter wrote to Justice Stone the day after the Washington minimum wage decision that "Roberts' somersault is incapable of being attributed to a single factor relevant to the professional judicial process" (Leonard, at p. 137) This not very subtly implies that an extraneous factor had been decisive, a position which in 1945 Justice Frankfurter found to be incorrect.
On the other hand John Lord O'Brian, an eminent attorney, who was a close social as well as professional associate of the members of the Court during this period, told the author (Leonard) that in his opinion the personalities of the Justices precluded any sort of knuckling under pressure from Congress or the White House. "I don't think the Court plan had an influence on the Court. These men duction of the bill made them more stubborn than- before".(Id. at 155.) After Roberts' death, Erwin Griswold concluded, because of his reasonable belief in Roberts' integrity and high regard for the judicial process, that "Roberts' votes in these cases seem to me to be fully explicable simply as a natural development of his views." (104 U of Pa. L. Rev, at 345(1955)). 
I have not attempted to redo the massive project undertaken by Mr. Leonard. All that can accurately be said is that Roberts' opinions and votes in 1935 and 1936 are difficult to reconcile with his joining in the Labor Board decisions in 1937.
Numerous possible reasons have been advanced "for the change: political pressure, the overwhelming victory of the administration at the polls in November, 1936, the labor strife, especially in the automotive industry, Roosevelt's Court Reorganization plan, and, 'finally, Justice Roberts, even though reluctant to take the lead, remained open to persuasion, and gradually became convinced of the need for change." (Professor Mario Einaudi, as summarized on p. 137 of Professor Leonard's book). Nevertheless it is difficult to believe that what Roberts himself described as a "threat to the existing Court, of which [he] was fully conscious", might not have had some effect. Pointing in the opposite direction is the confidence of persons who knew him that Roberts' undoubted integrity would not permit a judicial decision to be influenced by -such an extraneous consideration.
To his own questions as to what might have caused the change, Professor Leonard could only say 
(p. 137): "These are questions which after thirty-plus years have still not been answered."
After 50 years, they almost certainly never will be. The speculation in my 1946 article as to the conjectures of governmental counsel that the President's plan rather than the merits of the cases or the quality of the law work was responsible for the Jones & Laughlin decision implies much more certainty on the subject than I now have.
The reader more than 50 years after the events described above may wonder why the Supreme Court in 1937 would have taken seriously such a revolutionary, and indeed absurd, proposal to overturn Supreme Court decisions. Certainly any such proposal these days by a President, or a President and Congress, to enlarge the Court so as to overrule unpopular enlarge the Court so as to overrule unpopular decisions would be branded as outrageous, for lack of a stronger word. And it did arouse strong opposition in 1937--although its defeat was by no means certain until after the decisions discussed above.
In Professor Paul Freund's words ("Charles E. Hughes as Chief Justice", 81 Han'. L. Rev. 4, 13 (1967)), such a "shockingly crude... assault on the independence of the judges cannot be understood without an appreciation of the atmosphere in the courtroom"--and I add, in the nation. A letter from Judge Learned Hand in June, 1937 described the Court as having "been controlled by the most amazing lot of crustaceans" --although President Roosevelt's "expedient was as bad as the evil and so disingenuous that he would have been injured very seriously, if anything could injure him". (Id. at 25.)
First, it should be noted that neither Attorney General Homer Cummings nor President Roosevelt had previously been regarded as in any way radical or hostile toward the judiciary or judicial decisions. Persons supporting the plan included Hugo Black and Robert Jackson, subsequently distinguished members of the Supreme Court. I remember that my own feelings were mixed. Obviously, they may have been affected by my participation as a young lawyer in the Department of Justice in the writing of briefs in many of the commerce clause cases during that period.
Those who supported the plan, or even had doubts about it as I did, were affected by their knowledge of the plight of the country at that time. To use only figures I can remember, industrial production by that time had fallen almost 50 percent, about one-third of the public was out of work, prices and wages had fallen to disastrous levels. The price of oil at the wellhead had dropped to five cents per barrel --and I don't mean per gallon. (See 59 Harvard Law Review 654.) Wages for railroad track-men had gone as low as 10 cents per hour.
President Roosevelt was attempting to bring the nation out of a downward spiral of wages, employment and prices. The new laws were designed to raise prices, often by diminishing the quantity of a product being grown or mined, and to improve employment and purchasing power by requiring collective bargaining and imposing maximum hours and minimum wages. These were deemed to be reasonable methods of improving the economy which, of course, consisted largely of interstate commerce.
The Supreme Court in Butler and Carter had by a 6 to 3 vote held that the federal government had no power to deal with such problems, and, prior to the West Coast Hotel case, by a 5 to 4 vote that the states didn't either. The result was that no governmental agency could take steps which were reasonably regarded as methods of defeating the depression, both generally and in interstate industries. This was the dilemma which the Roosevelt administration--and the nation--faced in 1937.
From this distance, with knowledge that two of the conservative justices would retire within a year, it is easy in hindsight to say that in time the Supreme Court would change and that drastic action was not necessary. But to tell the country to continue to wait, perhaps for years, would not have satisfied the farmers, workers, unemployed, or even many businessmen (including both my father and my wife's father), who were out of work or receiving less than a living wage. Of course, if the proposed remedies had clearly been unconstitutional no one could have blamed the Justices; a constitutional amendment would have been recognized to be essential. But when three or four of the outstanding members of the Supreme Court, including such prominent Republicans as Stone and Hughes, as well as Brandeis and Cardozo, took the opposite position, the President and the public not unreasonably blamed the judicial blockade on the other justices, four of whom, frequently with Roberts in support, had held unconstitutional the major efforts to deal with the nation's economic problems.
We do not know now, and did not then, whether the laws in question would have adequately revived the nation's economic and commercial structure. World War II eventually did that. But the above facts may demonstrate how sensible and conscientious public servants could support such a dangerous attack on the independence of the judiciary. It would have been a terrible precedent. I hope nothing like that will happen again.