Best known as an Associate Justice of the United States Supreme Court, Owen Josephus Roberts had a varied preliminary career?law practice and teaching, administration, and public service. In 1930, after the Senate Judiciary Committee rejected the nomination of Circuit Judge John J. Parker, President HERBERT C. HOOVER appointed Roberts, a Philadelphia Republican, who was approved without a dissenting vote. That same year, CHARLES EVANS HUGHES returned to the Court as Chief Justice of the United States.
Roberts and Hughes came to the Court in a period of sharp disagreement concerning not only the role of government in economic and social affairs but also the nature and scope of the judicial function itself. Both men were destined to play significant roles. Examples abound, and Hughes and Roberts were often joined. They agreed, for example, in sustaining Minnesota's moratorium on mortgage foreclosures in HOME BUILDING AND LOAN ASSOCIATION V. BLAISDELL (1934).
In NEBBIA V. NEW YORK (1934) Roberts, without using the word "emergency," upheld a New York statute regulating the price of milk. In WOLFF PACKING COMPANY V. COURT OF INDUSTRIAL RELATIONS (1923) Chief Justice WILLIAM HOWARD TAFT had invoked the concept of business AFFECTED WITH A PUBLIC INTEREST as a test of legitimate government power. Rejecting this test, Roberts observed: "The phrase can mean no more than that an industry for adequate reason is subject to control for the public good." Roberts also opposed the judicial notion that prices and wages were constitutionally immune from regulation. Thus the constitutional barriers Justice GEORGE H. SUTHERLAND had erected in ADKINS V. CHILDREN ' SHOSPITAL (1923) against the District of Columbia minimum wage for women as the "heart of a contract" were weakened. Citing Munn v. Illinois (1877), Roberts recalled: "The DUE PROCESS clause makes no mention of sales or prices.? The thought seems, nevertheless, to have persisted that there is something peculiarly sacrosanct about prices and wages."
Roberts's Nebbia opinion also disavowed a broad scope of judicial power. Here, as in UNITED STATES V. BUTLER (1936), the judicial function involved "only one duty, to lay the article of the Constitution which is involved beside the statute which is challenged and to decide whether the latter squares with the former." The Nebbia opinion was thus hailed as indicating fair weather for FRANKLIN D. ROOSEVELT'S NEW DEAL legislation. Without specifying any particular level of government, Roberts declared: "This Court from the...