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Document Outline
Restraint of Regulation
Due Process and Free Speech
The Allocation of Power
Freedom, Fairness, and the States
The Court and the New Deal

Chief Justice White died suddenly in May 1921. Former president Taft, who had made no secret of his long-held ambition to be chief justice, was chosen by President Warren G. Harding as the tenth man to hold that post. Taft was confirmed in June. During his nine-year tenure, Taft was influential in winning passage of the Judiciary Act of 1925, giving the Court more control over its workload, and in initiating work on the Court's own building. Also under Taft, the Court's conservatism intensified even further, including reviving the Lochner doctrine of freedom of contract, which it used vigorously to restrain state efforts to regulate economic matters. The Court curtailed federal authority, persisting in the view that Congress could not regulate matters such as agricultural production and manufacturing, and converting the seldom-invoked Tenth Amendment into a potent instrument for protecting state sovereignty and business matters from federal power.

During the Taft era the Court accelerated the use of its power of judicial review. The Court had struck down only two acts of Congress in the years between the nation's founding and the Civil War, but between 1920 and 1932, it struck down twenty-two federal laws. [45] Despite such clearly conservative views, this same Court set the nation on its course toward the “due process revolution” of the 1960s.

Restraint of Regulation

Three acts of Congress struck down by the Taft Court in its first years exemplify the Court's tendency to put certain subjects outside the reach of federal power. In Newberry v. United States (1921) the Court held that Congress could not regulate spending in primary elections. [46] Federal regulatory power reached only to general election campaigns for federal office; all other aspects of the electoral process were left to the states. One effect of this decision, which invalidated part of the 1911 Federal Corrupt Practices Act, was to leave the way open for states to exclude black voters from the electoral process, by hindering or blocking their participation in the primary elections. The successful attorney in this case was former justice Charles Evans Hughes.

The Court in McCray v. United States (1904) had declared that so long as a subject taxed by Congress was properly within federal power, the justices would not look behind the tax to ascertain its purpose. [47] With this assurance, Congress responded to the Court's 1918 ruling striking down its commerce-based effort to outlaw child labor by using its tax power to achieve that same end. The result was the Child Labor Tax Act, placing a high tax on products made by industries that employed children. The Court in 1919 had upheld a similar tax measure intended to outlaw narcotics. [48] The Taft Court, however, found a new tool to wield against federal regulation burdening economic activity: the Tenth Amendment. Part of the original Bill of Rights added to the Constitution in 1791, the amendment states that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” In May 1922 the Court invoked this amendment to strike down the 1918 child labor tax law. Chief Justice Taft wrote the majority opinion in Bailey v. Drexel Furniture Co. (1922). [49] By using the tax power to ban child labor, Congress was infringing upon the reserved rights of the states to regulate such matters, held the Court. Justice Clarke was the only dissenter.

On the same day as the Bailey decision, the Court used the same Tenth Amendment argument to invalidate a 1921 law in which Congress had used its tax power to regulate the commodities futures trade. This too was a matter reserved to state control, said Chief Justice Taft. If this sort of law were upheld, Taft wrote,

all that Congress would need to do hereafter, in seeking to take over to its control any one of the great number of subjects of public interest, jurisdiction of which the states have never parted with and which are reserved to them by the Tenth Amendment, would be to enact a detailed measure of complete regulation of the subject and enforce it by a so-called tax… . To give such magic to the word “tax” would be to break down all constitutional limitation of the powers of Congress and completely wipe out the sovereignty of the states.

Congress then passed a new grain futures regulatory law based on the commerce power. The Court upheld it in 1923. [50]

Continuing to evidence an antilabor bias, the Court during these years made it even easier for management to use the antitrust laws against labor union efforts to organize and improve the conditions of workers. Responding to earlier Court decisions, Congress in 1914 had included in the Clayton Act specific language exempting labor unions from the reach of the antitrust laws. In two 1921 opinions, however, the Court rendered this exemption useless. [51] It took ten more years for Congress to finally and effectively forbid the use of federal injunctions in labor disputes.

After the close of Taft's first term, three justices left the Court. With six years of service, Clarke resigned in September 1922 to work for U.S. entrance into the League of Nations. Day resigned in November and Pitney, who had suffered a stroke several months earlier, retired in December. To fill the empty seats President Harding chose former Utah senator George Sutherland, Minnesota corporate attorney Pierce Butler, and federal judge Edward T. Sanford of Tennessee. Early in 1925 Justice McKenna—the last of the nineteenth-century justices—resigned after twenty-six years on the Court. President Calvin Coolidge named Attorney General Harlan Fiske Stone to that seat. Stone had been a professor at Columbia Law School for fifteen years before entering government. After sixteen years as an associate justice, Stone was elevated to chief justice in 1941.

Taft's second term brought a surprise to those who assumed that the Court's rulings upholding state maximum-hour laws reflected the Court's abandonment of the Lochner principle that a state violated the Fourteenth Amendment guarantee of due process when it interfered with this freedom of contract. In Adkins v. Children's Hospital (1923) the Court, 5–3, struck down as invalid a minimum wage law for women workers in the District of Columbia. [52] With Justice Sutherland writing one of his first and most important opinions, the Court held that such a law unconstitutionally infringed on the freedom of contract of employer and employee. Chief Justice Taft and Justices Holmes and Sanford dissented; Brandeis did not participate in the case.

The same year brought two other notable decisions. In Frothingham v. Mellon (1923) the Court found that a federal taxpayer lacked sufficient personal interest in the use of tax moneys to justify a federal suit challenging the way Congress raised and spent money. [53] For forty-five years this decision protected federal spending from taxpayer challenges. Foreshadowing the role that federal courts assumed later in the century of insisting that state procedures adhered to fundamental standards of fairness, the Court in Moore v. Dempsey (1923) approved the intervention of a federal judge to vindicate the rights of persons convicted in state courts dominated by a mob. In that situation, wrote Justice Holmes, where “the whole proceeding is a mask—that counsel, judge and jury were swept to the fatal end by an irresistible wave of public passion, and the state courts failed to correct the wrong,” the federal courts must act. [54]

Due Process and Free Speech

The Court's role as balance wheel can give its work a paradoxical character. So it was in 1925, when the conservative Court ignited the spark that eventually flared into the “due process revolution” of the 1960s. Socialist Benjamin Gitlow could not persuade the Court to overturn his conviction for violating New York's criminal anarchy law by distributing a pamphlet calling for the overthrow of the government. Gitlow had challenged his conviction as violating the First Amendment, which, he contended, the Fourteenth Amendment extended to protect individual rights against state, as well as federal, action. Although the Court in Gitlow v. New York (1925) upheld Gitlow's conviction, it accepted his argument. Almost in passing, Justice Sanford stated that the Court now assumed “that freedom of speech and of the press … are among the fundamental personal rights and ‘liberties’ protected by the Due Process Clause of the Fourteenth Amendment from impairment by the states.” [55] During the 1930s this declaration formed the foundation for the Court's first decisions striking down state laws as encroaching upon First Amendment freedoms and began the process of the selective incorporation of the Bill of Rights to the states.

Federal law enforcement practices, however, survived constitutional challenge in two significant cases during the 1920s. The Court upheld routine searches without search warrants of cars that agents suspected were used in violating a law; it also upheld federal use of wiretaps, again without warrants, to obtain evidence. Neither practice, held the Court—in Carroll v. United States (1925) and Olmstead v. United States (1928), respectively—violated the individual's right to be secure from unreasonable search and seizure. [56] Carroll remains in effect; Olmstead protected electronic surveillance from constitutional challenge until it was overturned in 1967. Tumey v. Ohio (1927) was the first decision in which the Court overturned a state conviction because it was obtained in violation of the Fourteenth Amendment's due process guarantee. [57] In it, the Court held that due process meant that a person charged with a violation of the law must be tried before an impartial judge. The ruling overturned the conviction of a person tried before a city court, where the judge was the mayor and the fines collected went into the city treasury.

The Court's definition of the liberty protected by the Fourteenth Amendment was slowly beginning to expand in the area of personal rights. In 1923 the Court struck down a state law forbidding a teacher to use any language other than English. [58] According to the Court, the Fourteenth Amendment protected the right of teachers to teach a foreign language and of parents to engage teachers to teach their children another language. In Pierce v. Society of Sisters (1925) the Court invalidated a state law that required all children to attend public schools. Again, the Court found that parental freedom to choose private schools was within the protected area of personal liberty. Black citizens, however, continued to meet with little success in asserting their rights under this amendment. The Court in Corrigan v. Buckley (1926) clung to its nineteenth-century view that the Fourteenth Amendment did not reach private discrimination and so left unaffected the use of restrictive covenants limiting the sale of real estate to blacks. [59] When state action was involved, however, the Court was willing to exercise the power of the Civil War amendments. In Nixon v. Herndon (1927), the first in a long line of “white primary” cases, the Court struck down a Texas effort to exclude blacks from participating in the all-important Democratic primary elections. [60]

The Court in 1925. Seated from left: Justices James C. McReynolds, Oliver Wendell Holmes Jr., Chief Justice William Howard Taft, Justices Willis Van Devanter, Louis D. Brandeis. Standing from left: Justices Edward T. Sanford, George Sutherland, Pierce Butler, Harlan Fiske Stone. (Source: Library of Congress.)

The Allocation of Power

During the 1920s the power of the chief executive was twice challenged and twice upheld. The Court in Myers v. United States (1926) confirmed the virtually unlimited power of the president to remove executive branch appointees from office, holding that Congress could not deny the president that power. [61] The power to remove was a necessary corollary of the power to appoint, held Taft in the majority opinion. Congress could not require a president to retain subordinates whom the chief executive wished to remove. Two years later, in Hampton v. United States (1928) the Court upheld Congress's delegation of power to the president to adjust tariff rates in response to competitive conditions. [62]

A terminally ill Chief Justice Taft resigned in February 1930, and President Herbert Hoover selected Charles Evans Hughes to return to the Court as chief justice. Taft died on March 8, as did Justice Sanford. To replace Sanford President Hoover chose John J. Parker, a federal judge from North Carolina. Opposition to the nomination from labor and black groups, however, resulted in the Senate rejecting his nomination by a 39–41 vote. It was the first time in the twentieth century that the Senate refused to confirm a presidential nominee to the Court and the first such occurrence since President Cleveland's New York nominees were blocked in 1894. To fill the Sanford seat, Hoover then chose Owen J. Roberts, a Philadelphia lawyer who had served as one of the two government prosecutors in the Teapot Dome scandal.

In 1931 Justice Holmes was ninety and slowing down. Chief Justice Hughes, the fourth chief justice with whom Holmes had served in his twenty-eight years on the bench, gently suggested that the time for retirement had come. Holmes left the Court in January 1932 and died, at ninety-three, in 1935. He left his estate to the nation, and it eventually was used to fund a history of the Court.

To replace Justice Holmes, Hoover selected New York judge Benjamin Cardozo, who had been almost unanimously proposed as Holmes's successor by leaders nationwide. Cardozo's selection clearly represented the victory of merit over the more mundane criteria of geography or ethnicity. At the time there were two New Yorkers already on the Court—Hughes and Stone—and there was already a Jewish justice.

The Court in 1932. Seated from left: Justices Louis D. Brandeis, Willis Van Devanter, Chief Justice Charles Evans Hughes, Justices James C. McReynolds, George Sutherland. Standing from left: Justices Owen J. Roberts, Pierce Butler, Harlan Fiske Stone, Benjamin N. Cardozo. (Source: Library of Congress.)

Freedom, Fairness, and the States

The first years of the 1930s were quiet at the Supreme Court. The nation, devastated by the economic crash of 1929 and the resulting Great Depression, was preoccupied with survival. It had little appetite for litigation. During this period, however the Court for the first time struck down a state law because it infringed upon the freedoms protected by the First Amendment. In Stromberg v. California (1931) the Court voted 7–2 to strike down California's law forbidding citizens to display a red flag as a symbol of opposition to organized government. [63] Chief Justice Hughes wrote the opinion, declaring that the opportunity for free political discussion was a fundamental principle of the U.S. constitutional system, both in itself and as a means of achieving lawful change and responsive government. Justices Butler and McReynolds dissented. Two weeks after Stromberg, the Court struck down a second state law on similar grounds. In Near v. Minnesota (1931) the Court, 5–4, found that a state law penalizing newspapers for criticizing public officials violated the guarantee of a free press. Joining Butler and McReynolds in dissent were Justices Sutherland and Van Devanter. Hughes again wrote the majority opinion. [64]

Twice in the first half of the 1930s the Court considered constitutional questions arising from the case of the “Scottsboro Boys,” several young black teenagers arrested in Alabama, away from their homes, and charged with raping two white women. In Powell v. Alabama (1932) the issue was the right of these defendants, who were tried in state court, to have the effective aid of a lawyer in preparing a defense. [65] This right is guaranteed defendants in federal trials by the Sixth Amendment, but the Court had not yet read the Fourteenth Amendment guarantee of due process as extending this right to state defendants. This Court, however, did so. In a 7–2 vote, it held that the defendants, represented only at the last minute by a local lawyer, had been denied their constitutional right to due process. In these particular circumstances, wrote Justice Sutherland for the Court, the Constitution guarantees defendants the effective aid of an attorney. Justices Butler and McReynolds dissented. Three years later—during a rather busy term—the second Scottsboro case came to the Court. In Norris v. Alabama (1935) the issue was not the right to counsel but the right to trial by a fairly chosen jury. [66] In a unanimous decision, the Court held that the Scottsboro defendants had been denied their Fourteenth Amendment rights when they were indicted and tried by all-white juries, the result of the state's consistent practice of excluding blacks from jury duty. Chief Justice Hughes wrote the Court's opinion.

On the same day as Norris v. Alabama, the Court decided Grovey v. Townsend (1935), the third of its rulings concerning Texas's persistent effort to keep blacks from voting in primary elections, the only significant elections in the Democrat-dominated South. [67] After the Court in Nixon v. Herndon (1927) had struck down a state law barring blacks from voting in primary elections, Texas decided to let the state political parties determine who could vote in their primaries. In Nixon v. Condon (1932) the Supreme Court held that this delegation of power denied black voters equal protection. [68] The state took no further action, but the Texas Democratic Party barred all blacks from membership. In Grovey v. Townsend the Court held that the party's exclusion of blacks was beyond the reach of the Fourteenth Amendment, because the party's action, it reasoned, was not state action. Justice Roberts wrote the unanimous opinion.

In 1934 the Court lifted one long-standing restriction on state power to regulate business and loosened another. The justices abandoned the view, first set out in Munn v. Illinois (1877), that the only businesses states could regulate were those “affected with a public interest.” [69] In Nebbia v. New York (1934) the Court, 5–4, upheld a New York law setting milk prices and declared that any business was subject to reasonable regulation. [70] Justice Roberts wrote the Court's opinion; Justices Butler, McReynolds, Sutherland, and Van Devanter dissented. This decision was followed by rulings overturning the Taft Court's decisions nullifying state regulation of bread weights, ticket sales, and employment agencies. [71] The Court also upheld a state mortgage moratorium law against a challenge that it violated the Constitution's Contract Clause. Again the vote was 5–4; the dissenters were the same as in Nebbia. Chief Justice Hughes wrote the opinion, finding the law a reasonable means of responding to the economic emergency of the Depression. [72]

The Court and the New Deal

“The Court is almost never a really contemporary institution. The operation of life tenure in the judicial department, as against elections at short intervals of the Congress, usually keeps the average viewpoint of the two institutions a generation apart. The judiciary is thus the check of a preceding generation on the present one; a check of conservative legal philosophy upon a dynamic people, and nearly always the check of a rejected regime on the one in being.” [73] The man who wrote those words in 1941 was Attorney General Robert H. Jackson, an active participant in the New Deal battles between the Court and the White House, and later a member of the Court. Never was Jackson's point more dramatically made than by the events of 1935, 1936, and 1937. A Court made up of men born in the mid-nineteenth century, and appointed to their seats by Presidents Wilson, Harding, Coolidge, and Hoover, looked with distaste upon the radical legislative measures espoused by President Franklin D. Roosevelt and the Congress elected in the midst of a national economic depression.

The Aging Court

In 1935 the Court was composed of septuagenarians and four men only a few years their junior. Justice Roberts, sixty, was the Court's youngest member. President Roosevelt was only fifty-three. The Court's first decision on a New Deal measure came in Panama Refining Co. v. Ryan (1935), in which part of the National Industrial Recovery Act (NIRA) was invalidated, because in it Congress had delegated power to the executive without setting specific standards for its use. [74] The vote was 8–1. Chief Justice Hughes wrote the opinion; only Cardozo dissented. Six weeks later, the Court in the Gold Clause Cases (1935) upheld by a 5–4 vote the power of Congress to shift the nation away from the use of gold as its standard currency. [75] Again, Chief Justice Hughes wrote the opinion. Justices Butler, McReynolds, Sutherland, and Van Devanter dissented. McReynolds, distressed by the rulings, added to his dissenting opinion the extemporaneous lament: “As for the Constitution, it does not seem too much to say that it is gone. Shame and humiliation are upon us now!” [76] The administration's win in the Gold Clause Cases was its only victory before the Court in the term.

On May 6, 1935, the dissenters in the gold cases were joined by Justice Roberts in striking down the comprehensive retirement system Congress had set up for railroad employees. In Railroad Retirement Board v. Alton Railway Co. (1935) the Court held that the commerce power did not provide a sufficient basis for such a system. This decision was a harbinger of “Black Monday,” three weeks later. [77] On May 27 a unanimous Court handed Roosevelt three major defeats. In A. L. A. Schechter Poultry Corp. v. United States (1935) the Court held invalid other major provisions of the NIRA, finding them an unconstitutional delegation of power from Congress to the president. The Court also held the Federal Farm Bankruptcy Act in violation of the due process guarantee, and in a third decision the justices sharply limited the president's removal power, which it had envisioned as virtually unlimited only nine years earlier when it decided Myers. [78]

The 1936 Term

When the Court began its next term, in early October 1935, it met for the first time in its own building. Chief Justice Taft had persuaded Congress to approve its construction in 1929, and Chief Justice Hughes laid the cornerstone in October 1932. It was clear that the Court's first term in its new home would be a crucial one. Several cases testing the validity of New Deal legislation were pending, and the justices—even before they addressed these cases—were clearly divided. As historian Arthur M. Schlesinger Jr. describes it:

They were already forming into distinct personal as well as constitutional blocs. The four conservatives used to ride to and from the Court together every day of argument and conference. To offset these riding caucuses, Stone and Cardozo began to go to Brandeis' apartment in the late afternoon on Fridays before conferences. Each group went over cases together and tried to agree on their positions. [79]

Chief Justice Hughes and Justice Roberts were the “swing” votes between these two blocs. In January 1936 they joined Justices Butler, McReynolds, Sutherland, and Van Devanter in striking down the Agricultural Adjustment Act, which called for crop controls and price subsidies to stabilize the agricultural produce market. By a 6–3 vote the Court held that Congress in this legislation intruded upon areas reserved by the Tenth Amendment for state regulation. Roberts wrote the opinion in United States v. Butler (1936). [80] In May the Court by the same division struck down the Bituminous Coal Conservation Act. In Carter v. Carter Coal Co. (1936) the Court nullified a law designed to control working conditions of coal miners and to fix prices for the sale of coal. [81] Coal mining, the Court contended, was not commerce and so was outside the reach of federal authority. On the same day, the Court, 5–4, struck down the Municipal Bankruptcy Act. [82] The Roosevelt administration claimed just one victory in spring 1936: the Court upheld—as a proper exercise of the commerce power—the creation of the Tennessee Valley Authority. [83] As the term ended, Justice Stone commented:

I suppose no intelligent person likes very well the way the New Deal does things, but that ought not to make us forget that ours is a nation which should have the powers ordinarily possessed by governments, and that the framers of the Constitution intended that it should have… . We finished the term of Court yesterday, I think in many ways one of the most disastrous in its history. [84]

As the justices recessed for the summer of 1936, the Court, the president, and the country stood at a crossroads. The Great Depression maintained its grim grip on the nation's factories and farms. For his part, President Roosevelt was committed to using the levers of government to prop up prices and wages, and he had behind him the support of a solidly Democratic Congress. The Court, however, stood in the way, insisting that the Constitution did not allow the government to regulate the everyday transactions of workers and their employers or of sellers and their customers. “Extraordinary conditions do not create or enlarge constitutional power,” declared Chief Justice Hughes in Schechter Poultry. [85] Because raising and butchering chickens is a local business, it is off-limits to federal regulation, he argued. The same held for mining and manufacturing, the Court ruled in Carter Coal Co. According to Justice Sutherland:

The word “commerce” is the equivalent of the phrase “intercourse for the purposes of trade.” Plainly, the incidents leading up to and culminating in the mining of coal do not constitute such intercourse… . Mining is not interstate commerce, but like manufacturing, is a local business… . Much stress is put upon the evils which come from the struggle between employers and employees over the matter of the wages, working conditions, the right of collective bargaining, etc., … and it is insisted that the interstate commerce is greatly affected thereby. But … the conclusive answer is that the evils are all local evils over which the federal government has no legislative control. [86]

Lest anyone believe the Court instead favored local regulation of the “evils” of poverty wages, the justices put that notion to rest two weeks after the Carter Coal decision when they struck down New York's minimum wage law on June 1, 1936. Reports of young working women living on starvation wages and sleeping in subways prompted New York to pass a law to deal with what it saw as oppressive and unreasonable wages. Joseph Tipaldo, the owner of the Spotlight Laundry in Brooklyn, refused to pay the minimum wage to the nine women who worked there, and he was jailed after ignoring a warning from a state commission. The hotel industry funded his legal challenge to the law. In Morehead v. New York ex rel. Tipaldo (1936) the same conservative majority that struck down the bankruptcy act struck down New York's law setting the minimum wage to be paid women workers. [87] Such a law, wrote Justice Butler for the Court, impaired the liberty of contract. Dissenting were Justices Brandeis, Cardozo, Hughes, and Stone. The decision in Tipaldo's case declared unconstitutional “any form of law establishing minimum wages.” Justice Butler explained that “the right to make contracts about one's affairs is part of the liberty protected by the due process clause. Within this liberty are provisions of contracts with employer and employee fixing the wages to be paid… . The parties have equal right to obtain from each other the best terms they can by private bargaining.” [88]

For social reformers and critics of the Court, the Tipaldo decision was the last straw. It struck many as ludicrous to say that young women working in a laundry have an “equal right” to obtain good wages through “private bargaining.” “There is grim irony in speaking of the freedom of contract of those, who because of their economic necessities, give their service for less than is needful to keep body and soul together,” commented Justice Stone in dissent. [89] “Tipaldo produced a national outcry against the Court,” writes historian William E. Leuchtenburg. [90] Even the New Deal's opponents were caught off guard. They had argued that the rights of workers should be resolved through state and local legislation, not through federal measures, but the Court had closed off that avenue as well.

“The sacred right of liberty of contract again—the right of an immature child or helpless woman to drive a bargain with a great corporation. If this decision does not outrage the moral sense of the country, then nothing will,” Roosevelt adviser Harold Ickes wrote in his diary. “We have been relegated to the horse-and-buggy definition of interstate commerce,” Roosevelt told reporters after the Schechter decision. [91] After the Tipaldo ruling, Roosevelt said the Court had created “a no-man's-land” where neither the federal government nor the states could come to the aid of workers. [92] Liberals agreed. “[S]omething must be done,” another New Dealer wrote. [93] “At any time up to June 1, 1936, the Court might have retreated and thus avoided a showdown,” writs Alpheus T. Mason, Justice Stone's biographer. “The New York Minimum Wage opinion, handed down that day, convinced even the most reverent that the five stubborn old men had planted themselves squarely in the path of progress.” [94] Something would be done after the voters spoke in the election of 1936.


Document Citation
1 David G. Savage, New Times, Old Court, 1920–1937, in Guide to the U.S. Supreme Court 42-48 (5th ed., 2011),
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