Owen Roberts was accused of a variety of things in 1937, but fidelity was not among them. While he was widely razzed for his apparently inconsistent performance on the bench, some of the most trenchant criticism came from insiders. Referring to the April 12 decisions upholding the National Labor Relations Act, Justice Harlan Fiske Stone remarked, "in order to reach the result which was reached in these cases last Monday, it was necessary for six members of the Court either to be overruled or to take back some things they subscribed to in the Guffey Coal Act case."(1) Felix Frankfurter, an intimate of Justice Brandeis and a persistent correspondent of Stone's, wrote the latter that Roberts's "somersault" in West Coast Hotel Co. v. Parrish(2) was "incapable of being attributed to a single factor relevant to the professed judicial process. Everything that he now subscribes to he rejected not only June first last, but as late as October twelfth.... It is very, very sad business."(3) On the day the Court announced it decisions in the Labor Board Cases, Frankfurter wrote to Franklin Roosevelt, "I feel like finding some honest profession to enter."(4) The following day Frankfurter wrote to Charles Wyzanski:
To me it is all painful beyond words, the poignant grief of one whose life has been dedicated to faith in the disinterestedness of a tribunal and its freedom from responsiveness to the most obvious immediacies of politics.... It all ... gives one a sickening feeling which is aroused when moral standards are adulterated in a convent.(5) Eight years later, in 1945, Roberts announced his resignation from the Court. It fell to then-Chief Justice Stone to draft the customary letter from the Justices to a departing colleague. Stone's letter expressed "a profound sense of regret that our association with you in the daily work of the Court must now come to an end."(6) It commended Roberts for having "given to the work of the Court the benefit of your skill and wide knowledge of the law, gained through years of assiduous study and practice of your profession," and for having "faithfully discharged the heavy responsibility which rests upon a Justice of this Court with promptness and dispatch, and with untiring energy."(7) Finally, the letter assured Roberts of his colleagues' "continued good will and friendly regard," and wished him "good health, abiding strength" and "the full enjoyment of those durable satisfactions which will come from the continued devotion of your knowledge and skill to worthy achievement."(8)
An effusive letter this was not. Justice Robert Jackson characterized it as "formal and not too cordial."(9) Frankfurter, now himself an Associate Justice, described it as "the minimum of what you could write and say anything that wasn't ungracious."(10) It was "`to say the least not overgenerous.'"(11) But Stone's draft did contain one sentence of tribute that provoked such a controversy among the Justices that no letter to Roberts ever was sent. The tribute in question read: "You have made fidelity to principle your guide to decision."(12) Justice Hugo Black objected to this sentence and refused to sign the letter unless it were omitted. Justice William O. Douglas sided with Black.(13) Justice Jackson objected that omission of the sentence left the letter "reading like a left-handed condemnation,"(14) and wrote Stone that he did not want to join a letter to Roberts "that deliberately omits the only sentence that credits him with good motives--the quality I think he possessed above all others."(15) Roberts, he insisted, "deserves better of us."(16)
The most vehement advocate for retaining the sentence, however, was Frankfurter. As he wrote Stone, he could not "in self-respect" sign any letter from which it was omitted:
So to do, would involve acquiescence in denial that Roberts has "made fidelity to principle" his "guide to decision." If there's one thing true about Roberts, that's it! He had, from my point of view, serious intellectual limitations--above all, a lack of a more or less coherent juristic or social philosophy, except in a very few defined areas. But "fidelity" to what were for him the governing "principles" for the decision in a case was his outstanding characteristic--often misconceiving of course the relevance of principles or their conditioned limits. I know that was Brandeis' strong view of him."(17) Ten days later Frankfurter expressed these views to all of his colleagues. In a letter addressed "Dear Brethren," Frankfurter wrote:
I cannot be party to the denial, under challenge, of what I believe to be the fundamental truth about Roberts, the Justice,--that he "made fidelity to principle" his "guide to decision." I know that that was Justice Brandeis' view of Roberts, whose character he held in the highest esteem. My numerous and serious disagreements with Roberts are, of course, beside the point.(18) The squabble over the Roberts retirement letter reflected deep personal and jurisprudential divisions that had emerged on the Stone Court.(19) But these cleavages alone do not explain the form that the fight took. In particular, they do not explain why the proponents of Stone's letter were, in 1945, insistent upon characterizing Roberts in a manner so at odds with their assessments of him only eight years earlier. To be sure, fellow feeling and a sense of decorum informed the campaign for a gracious farewell. But why were Jackson and particularly Frankfurter prepared to go to the mat over a sentence that praised Roberts for, of all things, his "fidelity to principle"? And why did Stone, the only other remaining member of the 1937 Court, select such an obviously contested encomium in the first place?
An examination of Roberts's performance in economic regulation cases raising Fifth and Fourteenth Amendment questions may provide a better understanding of how Stone, Jackson, and Frankfurter might have come to see a consistency and integrity to their departing colleague's jurisprudence that others did not detect. That examination, which is the focus of Part III of this Article, should in turn provide an improved understanding of the mechanisms of constitutional change in the 1930s. Before undertaking that inquiry, however, we must first briefly survey the contours of the constitutional landscape within which Roberts worked, and we must also attempt a situated understanding of the contemporary significance of his landmark opinion in Nebbia v. New York.(20)
ECONOMIC LIBERTY AND 1937
Roberts served on the Court during a period of extraordinary constitutional ferment. The American constitutional order underwent striking transformations during his tenure. But our accounts of this transformation must not proceed at such high levels of generality that we exaggerate discontinuities and sacrifice nuance and descriptive power. The birthing of our modern constitutional order was long, slow, tortuous, and occasionally painful; we must resist the temptation to compress all of the significant constitutional change of the New Deal Era into a sixty-day window in the spring of 1937. To do so is to make two errors: first, to overlook the lingering agonies, public and private, of older doctrinal commitments;(21) and second, to apply too steep a discount to the importance of antecedent constitutional development that brought much of the New Deal into the realm of constitutional possibility.
In order to appreciate the nature and extent of 1937's transformations in constitutional jurisprudence, we must first understand a few things about the structure of the constitutional order upon Franklin Roosevelt's accession to the presidency. First, we must recognize that any characterization of the period between 1890 and 1937 as an age of rampant anti-regulatory activism simply fails to capture the texture and the dynamic quality of the Court's jurisprudence during this period. As several scholars have taught us, the number of cases in which the Justices of this era invalidated economic regulation simply pales in comparison to the number of such statutes they sustained.(22) Take, for example, the type of regulation invalidated in Lochner v. New York.(23) Of the more than twenty working-hours cases that the Court decided between 1898 and 1930,(24) I know of only one other than Lochner in which the Court invalidated such a regulation; and that decision didn't even cite Lochner as authority.(25) As far as the regulation of working hours is concerned, Lochner is an exceptional rather than a representative case. During this period the Court also upheld not only hours regulations, but numerous wage and payment regulations, occupational licensing statutes, utility regulations, a national collective bargaining statute, state child labor laws, workmen's compensation statutes and statutes abrogating common law tort defenses, the Interstate Commerce Commission, the Federal Trade Commission and numerous state and federal antitrust laws, the Safety Appliance Act, the Federal Employers Liability Act, the Pure Food and Drug Act, the Packers and Stockyards Act, the Grain Futures Act, a federal-state program providing grants for nutrition for expectant mothers, and a vast array of federal, state, and local taxation and police power statures.(26) If this was a night watchman state, then this night watchman had a very active thyroid. Calling this period "the Lochner Era" may be a little like calling the 1980s "the Al Franken decade." For decades preceding the inauguration of Franklin Roosevelt, the Court had repeatedly accommodated, on both the state and national levels, the emergence of an active, expanding, regulatory and welfare state.
Of course, this is not to deny that the Court was far more active in scrutinizing economic regulation before 1937 than it has been since. "Lochnerism" was not confined to working hours statutes, and there is no gainsaying the existence of cases like Adair v. United States,(27) striking down a...