Hughes Court (1930–1941)

• Author: Archibald Cox
• Pages: 1312-1318

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The years in which Chief Justice CHARLES EVANS HUGHES presided over the Supreme Court of the United States, 1930?1941, are notable for the skillful accomplishment of a revolution in CONSTITUTIONAL INTERPRETATION. The use of the DUE PROCESS clauses of the Fifth Amendment and FOURTEENTH AMENDMENT to protect FREEDOM OF CONTRACT and economic Darwinism against government regulation yielded to legislative supremacy and judicial self-restraint. The prevailing limits on the regulatory powers of Congress under the COMMERCE CLAUSE were swept away. The Hamiltonian view that Congress has power to spend money for any purpose associated with the general welfare was solidified by judicial approval. The Court acquiesced in the delegation of vast lawmaking power to administrative agencies. The groundwork was laid for expanding the constitutionally guaranteed FREEDOM OF SPEECH and freedom of the press.

Change was all about the Hughes Court. Of the eight Justices who flanked Hughes when he took his seat as Chief Justice, seven left the Court before he retired. The Court moved across the street from the cozy, old Senate Chamber in the Capitol to the gleaming white marble palace and ornate conference room used today. Profounder changes were occurring in the social, economic, and political conditions that give rise to constitutional litigation, that shape the briefs and arguments of counsel, and that the Court's decisions must address.

The preceding era had been marked by the rise to dominance of large-scale business and financial enterprise. Vast aggregations of men and women and material wealth were needed to develop America's resources, to harness the power unleashed by science and technology, and to capture the efficiencies of mass production for mass markets. Unlocking America's agricultural and industrial wealth made for higher standards of living and an extremely mobile society. With the gains had come corruption, hardships, injustices, and pressure for political action; but in the general prosperity of the 1920s the costs were too often ignored.

Yet the farmers were left behind and too much of the wealth was committed to speculation in corporate securities. The bursting of the latter bubble in November 1929 heralded an economic depression of unprecedented length and depth. Ninety percent of the market value of stock in industrial corporations was wiped out in three years. Twenty-five percent of the land in Mississippi was auctioned off in mortgage foreclosure sales. Factory payrolls were cut in half. One out of every four persons seeking employment was without work. The Depression destroyed people's faith in the industrial magnates and financiers, even in the ethic of individual self-reliance. The stability of American institutions seemed uncertain.

The election of FRANKLIN D. ROOSEVELT as President of the United States brought a new, more active political philosophy to government. Government, Roosevelt asserted, should seek to prevent the abuse of superior economic power, to temper the conflicts, and to work out the accommodations and adjustments that a simpler age had supposed

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could safely be left to individual ability and the free play of economic forces. Government should also meet the basic need for jobs and, in the case of those who could not work, for food, clothing, and shelter. For the most part these responsibilities must be met by the federal government, which alone was capable of dealing with an economy national in scope and complexity.

Roosevelt's " NEW DEAL " not only provided money and jobs for the worst victims of the Depression; it enacted the legislation and established the government agencies upon which national economic policies would rest for at least half a century: the Agricultural Adjustment Acts, the WAGNER NATIONAL LABOR RELATIONS ACT, the Fair Labor Standards Act, the Social Security Act, and the Securities and Exchange Act.

JUDICIAL REVIEW permits those who lose battles in the executive and legislative branches to carry the war to the courts. Earlier in the century many courts, including the Supreme Court, had clung to the vision of small government, economic laissez-faire, and unbounded opportunity for self-reliant individuals. Judges had thus struck down as violations of the due process clauses of the Fifth and Fourteenth Amendments many measures now generally accepted as basic to a modern industrial and urban society: MAXIMUM HOURS AND MINIMUM WAGE LAWS, laws forbidding industrial homework, and laws protecting the organization of labor unions. The critical question for the Supreme Court in the Hughes era would be whether the Court would persevere or change the course of American constitutional law.

The response of Justices WILLIS VAN DEVANTER, JAMES C. MCREYNOLDS, GEORGE SUTHERLAND, and PIERCE BUTLER was predictable: they would vote to preserve the old regime of limited federal government and economic laissez-faire. Three Justices?LOUIS D. BRANDEIS, HARLAN F. STONE, and BENJAMIN N. CARDOZO?could be expected to eschew the use of judicial power to protect economic liberty, and might not condemn broader congressional interpretation of the commerce clause. The balance rested in the hands of Chief Justice HUGHES and Justice OWEN J. ROBERTS.

At first the Court challenged the New Deal. The National Recovery Administration sought to halt the downward spiral in wages and prices by stimulating the negotiation of industry-by-industry and market-by-market codes of "fair competition" fixing minimum prices and wages and outlawing "destructive" competitive practices. In SCHECHTER POULTRY CORPORATION V. UNITED STATES (1935) the Court held the underlying legislation unconstitutional. The major New Deal measure for dealing with the plight of the farmers was held unconstitutional in UNITED STATES V. BUTLER (1936) as "a statutory plan to regulate and control agricultural production, a matter beyond the powers delegated to the federal government." CARTER V. CARTER COAL COMPANY (1936) held that, because production was a purely local activity, Congress lacked power to legislate concerning the wages and hours of bituminous coal miners. In MOREHEAD V. NEW YORK EX REL. TIPALDO (1936) the four conservative Justices, joined by Justice Roberts, reaffirmed the 1923 decision in Adkins v. Children's Memorial Hospital invalidating a law fixing minimum wages for women. These opinions seemed to presage invalidation of such other fundamental New Deal measures as the National Labor Relations Act, a proposed federal wage and hour law, and even the Social Security Act.

President Roosevelt responded with strong criticism. The Schechter ruling, he said, was evidence that the Court was still living "in the horse and buggy age." On February 5, 1937, the President sent a special message to Congress urging enactment of a bill to create one new judgeship for every federal judge over the age of seventy who railed to retire. The message spoke of the heavy burden under which the courts?particularly the Supreme Court?were laboring, of the "delicate subject" of "aged or infirm judges," and of the need for "a constant infusion of new blood in the courts." No one doubted Roosevelt's true purpose. Six of the nine Supreme Court Justices were more than seventy years old. Six new Justices would ensure a majority ready to uphold the constitutionality of New Deal legislation. A month later the President addressed the nation more candidly, acknowledging that he hoped "to bring to the decision of social and economic problems younger men who have had personal experience and contact with modern facts and circumstances under which average men have to live and work."

Despite overwhelming popular support for New Deal legislation and despite the President's landslide reelection only a few months earlier, the Court-packing plan was defeated. The President's disingenuous explanation was vulnerable to factual criticism. Justice Brandeis, widely known as a progressive dissenter from his...