The jurisprudence of the Hughes Court: the recent literature.

AuthorCushman, Barry
PositionII. Doctrinal Development D. Parrish through Conclusion, with footnotes, p. 2003-2028 - The Evolution of Theory: Discerning the Catalysts of Constitutional Change
  1. Parrish

    Professor Parrish distances himself from "traditional accounts" that "emphasize the importance of 1937 and argue that the Hughes Court executed a sudden constitutional revolution, an abrupt departure from earlier rulings when it came under intense political pressure from Roosevelt and Congress." (414) Instead, he clearly associates himself with "[r]evisionist interpretations" that "stress a more gradual constitutional evolution during the decade, one with doctrinal roots that reached back to the jurisprudence of the Taft and White eras." (415) He maintains that "[t]he year 1937, dominated by the 'Court-packing' fight and the Court's endorsement of critical New Deal reforms, has loomed so large in histories of the era that it has tended to oversimplify the convoluted course of constitutional development during the decade," (416) and urges greater attention to "the internal dynamics of legal reasoning and the more astute lawyering of the Roosevelt administration and its allies after 1935." (417) He rejects the contentions of scholars such as Edward Corwin and Bruce Ackerman that American constitutional law underwent a "sea change" during Hughes's tenure. (418) While he recognizes that decisions such as Nebbia, West Coast Hotel, and Jones & Laughlin "formally emancipated both state and federal governmental authority from constitutional constraints that had limited their regulatory functions over the previous half century," he insists that those constraints "had been weakened significantly during the progressive movement prior to World War I and even during the years of so-called constitutional fundamentalism under Chief Justice Taft. The depression decade," on this view, "provided the occasion for their final interment through a slow ritual that might have been shortened had the Court not been often sharply divided and, like most courts, unwilling to break too suddenly from the doctrinal grooves laid down in the past." (419) "In short, the Hughes Court finally confirmed the revolution in the relationship between the state and the American economy, one made ad hoc, piece by piece, at least since the eras of Theodore Roosevelt and Woodrow Wilson." (420) "American constitutional law," he concludes, "has been one long, winding river of development. So, too, with Hughes and his brethren. The road to West Coast Hotel, Jones iff Laughlin, or Herndon v. Lowry had been mapped, however faintly, by those jurists who came before them." (421)

    Professor Parrish recognizes the important role that the narrow category of '"businesses affected with a public interest'" played in limiting government power to regulate wages and prices before 1934. (422)

    Marshaling a slim majority of five, the Hughes Court methodically chipped away at this inherited due process limitation beginning in 1931 with O'Gorman & Young v. Hartford Fire Insurance Co., which sustained a legislative regulation of the commissions paid to insurance agents by their companies. Nebbia three years later effectively eliminated "business affected with a public interest" as a due process barrier to price regulations mandated by the state.... (423) "The Four Horsemen, who dissented [in Nebbia], rightly regarded this judicial innovation as one that opened wide the doors to legislative control of the economy. Blaisdell and Nebbia, it can be argued, represented a significant shift in constitutional doctrine equal to any that came later." (424) For Nebbia "ultimately laid the foundation for the successful defense of state and federal minimum wage legislation," (425) "and the walls came tumbling down on minimum wage statutes with West Coast Hotel v. Parrish (1937), despite the brief procedural detour taken in Morehead v. New York ex rel. Tipaldo (1936)." (426)

    With respect to developments in the Court's federalism jurisprudence, Professor Parrish emphasizes the importance of the doctrinal categories the Hughes Court Justices inherited, and the inattentiveness of early New Deal lawyers to the restraints those categories imposed. "From the perspective of most justices who served on the Court in the first four decades of the twentieth century," Professor Parrish tells us:

    [T]he distinction between commerce on the one hand and production/ manufacturing on the other played a fundamental role in their conception of American federalism. That federalism, most assumed, had been enshrined in the Tenth Amendment, which cabined the scope of national jurisdiction and preserved the autonomy of the states. They could not imagine a constitutional world influenced by macroeconomic theory, where even the most localized forms of behavior by businessmen, financiers, or farmers could be conceptually linked to national commerce among the states. (427) Similar to the situation they faced with respect to the states' police power and the Fourteenth Amendment, the Hughes justices inherited a series of precedents that both limited and expanded the scope of Congress's authority under Article I, conceptual categories that often baffled lay observers because of their apparent contradictions. (428) It was "[t]he failure of lawyers in the early years of the New Deal to fully appreciate these inherited conceptual categories" that "accounted in large measure for their lack of success before Hughes and his brethren." (429) This assessment was shared by Justice Brandeis, "who remarked to Frankfurter in the summer of 1933: 'Our Court will apparently be confronted, in a time of greatest need of help, with a Department of Justice as incompetent as was that of Mitchell Palmer.'" (430) "Unwilling to accept any responsibility for the fate of these statutes, even when their judicial allies joined the majority, the New Dealers simply blamed the Court for the constitutional impasse that seemed to have developed by 1937." (431)

    Professor Parrish asserts that "[n]o member of the Hughes Court broke entirely free of these conceptual categories when considering the scope of Congress's authority to regulate commerce among the states, although Stone and Cardozo came the closest to doing so." (432) It was Cardozo's "pragmatic, flexible approach to issues arising under the commerce power" articulated in his Schechter concurrence that "laid the foundation for the more expansive doctrines that emerged in Jones & Laughlin" and later cases. (433) Indeed, he cautions against exaggeration of the discontinuity between Jones & Laughlin and the cases that preceded that decision. "Invoking many prior rulings that had located federal jurisdiction within a so-called stream of commerce or current of commerce," Professor Parrish explains,

    Hughes turned back the argument that the steelmakers' local labor conflict lay beyond the control of Congress.... Without overruling them, Hughes forcefully distinguished both Schechter and Carter Coal as irrelevant to the present case because neither presented an issue of obstructing or burdening interstate commerce. In Schechter interstate commerce had ended at the kosher plant. In Carter Coal it had not yet begun. (434) Accordingly, Hughes did not

    have to bend his jurisprudential principles very far in order to sustain the jurisdiction of the National Labor Relations Board in Jones & Laughlin.... Even in Carter Coal, Hughes had left himself an exit when it came to the scope of the commerce power, enough wiggle room to sustain Congress when the appropriate facts presented themselves, as they did in 1937 thanks to the careful selection of cases and litigation strategy by administration lawyers. Jones & Laughlin bore slight resemblance to the Schechter Brothers. (435) Similarly, Roberts's votes in the Labor Board Cases "present few[ ] interpretative problems," for "nothing said about the distinction between 'commerce' and 'production' with respect to coal mining excluded the application of another time-honored concept, a 'current of commerce,' to steel producers or companies manufacturing clothing and trailers." (436)

    "Nonetheless," Professor Parrish maintains,

    Jones & Laughlin involved a big step for Hughes and the majority, because the cases that employed the metaphors of "obstruction," "interference," or "burden" to sustain the commerce power had arisen usually in relation to the railroad industry and/or economic activities that involved rates, prices, or buying and selling, not industrial manufacturing, mining, or agriculture per se. (437) This may understate the significance of Chief Justice Taft's opinion in Stafford v. Wallace, in which he upheld federal regulation of prices charged for the agricultural activities of housing, feeding, and watering livestock in major stockyards, and wrote of the federally regulable stream of commerce flowing through "slaughtering centers" engaged in acts of production. (438) It may also overlook earlier decisions holding that the Sherman Act could reach local activities of production undertaken with the intent to restrain interstate commerce. (439) But Professor Parrish recognizes that, even after Jones & Laughlin, "[t]he line of cases that stressed a distinction between 'production' or 'manufacturing' and 'commerce' as well as those that emphasized 'direct' as opposed to 'indirect' effects, still retained their vitality." (440) It was only in Darby that Hughes "[r]eluctantly ... went along with this near coup de grace to the venerable distinction between 'commerce' and 'production', something he had studiously avoided in 1937." (441) The "inherited intellectual framework of Commerce Clause analysis" continued to exercise "a powerful influence on virtually all of the justices, wholly apart from external political and economic pressures or the addition of new members [of the Court]." (442) In particular, both Hughes and Roberts "had great difficulty accepting Stone's opinion in Darby Lumber (1941), which sustained the authority of Congress to regulate 'production for commerce.'" (443)

    Yet Professor Parrish does not contend that these inherited...

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