Hughes Court (1930–1941)

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HUGHES COURT (1930–1941)

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 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 colleagues' conservative philosophy, joined Chief Justice Hughes in a letter to the Senate Judiciary Committee demonstrating that the Court was fully abreast of its docket and would be less efficient if converted into a body of fifteen Justices. Much of the political opposition came from conservative strongholds, but the current ran deeper. The American people had a well-nigh religious attachment to constitutionalism and the Supreme Court. They intuitively realized that packing the Court in order to reverse the course of its decisions would destroy its independence and erode the essence of constitutionalism. Yet no explanation is complete without recalling the contemporary quip: "A switch in time saves nine." The final defeat of the Court-packing plan came after a critical turning in the Court's own interpretation of constitutional limitations.

The shift first became manifest in west coast hotelcompany v. parrish (1937), a 5–4 decision upholding the constitutionality of a state statute authorizing a board to set minimum wages for women. The Chief Justice's opinion overruled the Adkins case and markedly loosened the standards of substantive due process that had previously constricted regulation of contractual relations. To the old state police power doctrine confining the permissible objectives of government to health, safety, and morals, the Chief Justice added broadly the "welfare of the people" and "the interests of the community." Where the old opinions declared as an abstract truth that "The employer and the employee have equality of right and any legislation that disturbs the equality is an arbitrary interference with liberty of contract," the new majority more realistically asserted that a legislature may consider the "relatively weak bargaining power of women" and may "adopt measures to reduce the evils of the "sweating system." There were also hints of greater judicial deference to legislative judgments: "regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process."

The West Coast Hotel case inaugurated a line of decisions sustaining every challenged economic regulation enacted by a state legislature or by the Congress. General minimum wage and maximum hour laws, price regulations, and labor relations acts—all were upheld. Even prior to Hughes's retirement, the trend was intensified by the normal replacement of all but one of the Justices who had sat with Hughes on his first day as Chief Justice. The philosophy of judicial self-restraint gradually became dominant on the Court, in the laws, and throughout the legal profession.

The troublesome problems of constitutional interpretation often call for striking a balance between the opposing ideals of democratic self-government and judicial particularization of majestic but general and undefined constitutional limitations. The philosophy of legislative supremacy and judicial self-restraint that came to dominate constitutional interpretation in the time of the Hughes Court was often asserted and widely accepted as broadly applicable to all constitutional adjudication except the enforcement of clear and specific commands. The Hughes Court thus set the stage for the central constitutional debate of the next major era in constitutional history. As claims to judicial protection of civil liberties and civil rights became the focus of attention, judicial activism would be revived by substituting strict scrutiny for judicial deference in many areas of preferred freedoms and fundamental rights. Many of the new judicial activists would be liberals or progressives of the same stripe that had pressed for democratic self-government in the days when their political power confronted conservative dominance of the courts. But the opinions of the Hughes Court still mark the end of effective constitutional challenges to legislative regulation of economic activity.

The Hughes Court broke new ground in interpretation of the commerce clause only a few months after the minimum wage decision. In National Labor Relations Board v. Jones & Laughlin Steel Corporation (1937) the Labor Board, under authority delegated by the Wagner Act, had ordered Jones & Laughlin to reinstate four employees discharged from production and maintenance jobs in a basic steel mill because of their union activity. Both Jones & Laughlin's anti-union activities and the order for reinstatement were beyond the reach of federal power as delimited by the old line between production and interstate movement. The lower court had so decided. Led by Chief Justice Hughes, a bare majority of the Supreme Court Justices reversed that decision. Rejecting the old conceptualism that had asked whether the regulated activity had a "legal or logical connection to interstate commerce," the Court appraised the relation by "a practical judgment drawn from experience." Congress could reasonably conclude that an employer's anti-union activities and refusal to bargain collectively might result in strikes, and that a strike at a basic steel mill drawing its raw materials from, and shipping its products to, many states might in fact affect the movement of interstate commerce. (See wagner act cases.)

The Jones & Laughlin opinion appeared to retain some judicially enforceable constitutional check upon the congressional power under the commerce clause: "Undoubtedly the scope of this power must be considered in the light of our dual system of government and may not be extended so far as to embrace effects upon interstate commerce so indirect and remote that to embrace them, in view of our complex society, would effectually obliterate the distinction between what is national and what is local and create a completely centralized government." But the check proved illusory. The quoted admonition, while operable as a political principle guiding congressional judgment, yields no rule of law capable of judicial administration. Once the distinctions between interstate movement and production and between "direct" and "indirect" effects upon interstate commerce are rejected, the number of links in the chain of cause and effect becomes irrelevant. Federal power would reach to the local machine shop that repaired the chain saws that cut the trees that yielded the pulp wood that yielded the pulp that made the paper bought by the publisher to print the newspaper that circulated in interstate commerce. The size of the particular establishment or transaction also became irrelevant, for the cumulative effect of many small local activities might have a major impact upon interstate commerce. The new judicial deference, moreover, called for leaving such questions to Congress.

A second doctrinal development accelerated the trend. The Fair Labor Standards Act of 1938 required employers to pay workers engaged in the production of goods for shipment in interstate commerce no less than a specified minimum wage. The act also forbade shipping in interstate commerce any goods produced by workers who had not received the minimum wage. Congress claimed the power to exclude from the pipeline of interstate commerce things that would, in its judgment, do harm in the receiving state. Goods produced at substandard wages and shipped in interstate commerce might depress wages paid in the receiving states, and also in other producing states. The theory had been applied as early as 1903 to uphold a congressional law forbidding the interstate shipment of lottery tickets, but in 1918, under the doctrine barring federal regulation of production, the Court had struck down an act of Congress barring the interstate shipment of goods made with child labor. Having rejected that doctrine in the Labor Board Cases, the Hughes Court readily upheld the constitutionality of the Fair Labor Standards Act upon the theory of the lottery cases. The direct prohibition against paying less than the specified minimum wage was also upheld as a necessary and proper means of preventing goods made under substandard conditions from moving in interstate commerce and doing harm in other states. Years later similar reasoning supported broader decisions upholding the power of Congress to regulate or prohibit the local possession or use of firearms and other articles that have moved in interstate commerce.

Much more than legal logic lay behind the Hughes Court's recognition of virtually unlimited congressional power under the commerce clause. The markets of major firms had become nationwide. A complex and interconnected national economy made widely separated localities interdependent. A century earlier layoffs at the iron foundry in Saugus, Massachusetts, would have had scant visible effect in other states. During the Great Depression no one could miss the fact that layoffs at the steel mills in Pittsburgh, Pennsylvania, reduced the demand for clothing and so caused more layoffs at the textile mills in Charlotte, North Carolina, and Fall River, Massachusetts. Even as the Hughes Court deliberated the Labor Board Cases, a strike at a General Motors automobile assembly plant in Michigan was injuring automobile sales agencies in cities and towns throughout the United States.

The states were incapable of dealing with many of the evils accompanying industrialization. Many states were smaller and less powerful than the giant public utilities and industrial corporations. Massachusetts might forbid the employment of child labor, or fix a minimum wage if the due process clause permitted, but the cost of such measures was the flight of Massachusetts industries to North Carolina or South Carolina. New York might seek to ensure the welfare of its dairy farmers by setting minimum prices that handlers should pay for milk, only to watch the handlers turn to Vermont farmers who could sell at lower prices. The commerce clause barred the states from erecting protective barriers against out-of-state competition.

A shift in intellectual mode was also important. The rise of legal realism stimulated by publication of oliver wendell holmes'sThe Common Law in 1881 had made it increasingly difficult for courts to find guidance in such abstractions as the equality of right between employer and employee or in such rhetorical questions as "What possible legal or logical connection is there between an employee's membership in a labor organization and the carrying on of interstate commerce?" The harsh facts of the Depression made both impossible.

The proper division of regulatory activity between the nation and the states is and may always be a much debated question of constitutional dimension. Today the question is nonetheless almost exclusively political. The Hughes Court yielded the final word to Congress.

The enormous expansion of the federal establishment that began in the 1930s and continued for half a century finds a second constitutional source in the power that Article I, section 8, grants to Congress: "to lay and collect taxes … and provide for the common defense and general welfare of the United States." Here, too, the key judicial precedents of the modern era are decisions of the Hughes Court.

The scope of the taxing and spending power had been disputed from the beginning. Jeffersonian localists argued that the words "general welfare" encompassed only the purposes expressly and somewhat more specifically stated later in Article I. Spending for internal improvements gradually became accepted practice in the political branches, but the Supreme Court had had no occasion to adjudicate the issue of constitutional power because no litigant could show that he or she had suffered the kind of particular injury that would sustain a cause of action.

The Roosevelt administration not only spent federal funds on an unprecedented scale in order to relieve unemployment; it also broke new ground in using subsidies to shape the conduct of both state governments and private persons. The Agricultural Adjustment Act of 1933 levied a tax upon processors in order to pay subsidies to farmers who would agree to reduce the acreage sown to crops. The aim was to stabilize the prices of agricultural commodities. Linking the subsidy payments to the processing tax gave the processors standing to challenge the tax on the ground that the payments exceeded the limits of the federal spending power. In United States v. Butler (1936) the Hughes Court held the act unconstitutional because conditioning the farmer's allotments upon the reduction of his planted acreage made the whole "a statutory plan to regulate and control agricultural production, a matter beyond the power delegated to the federal government."

The decision was a prime target of President Roosevelt's criticism. It aroused fears that the Hughes Court would also invalidate the Social Security Act, a key New Deal measure establishing systems of unemployment and old age and survivors insurance. The title of the act dealing with unemployment levied a federal payroll tax upon all employers of eight or more individuals but gave a credit of up to 90 percent of the federal tax for employer contributions to a state employment fund meeting federal standards specified in the act. Very few states had previously established unemployment insurance, but the act's combination of pressure and inducement proved effective. The combination was attacked as a coercive, unconstitutional invasion of the realm reserved exclusively to the states by the tenth amendment, which, if generalized, would enable federal authorities to induce, if not indeed compel, state enactments for any purpose within the realm of state power, and generally to control state administration of state laws. In steward machine company v. davis (1937) the five-Justice majority answered that offering a choice or even a temptation is not coercion. Spending to relieve the needs of the army of unemployed in a nationwide depression serves the general welfare, the majority continued; the spending power knows no other limitation.

In later decades congressional spending programs would grow in size, spreading from agriculture and social insurance to such areas as housing, highway construction, education, medical care, and local law enforcement. Many federal grants-in-aid to both state and private institutions are conditioned upon observance of federal standards. The balance to be struck between federal standards and state autonomy is sharply debated, but in this area, as under the commerce clause, the question is now almost exclusively left to political discretion as a result of the decisions of the Hughes Court.

Questions concerning the delegation of power gave rise to the fourth major area of constitutional law shaped by the Hughes Court. Congress makes the laws, it is said; the executive carries out the laws; and the judiciary interprets the laws and resolves controversies between executive and legislative officials. Never quite true, this old and simple division of functions proved largely incompatible with the new role established for federal government by the Roosevelt administration. Much law, however denominated, would have to be made by executive departments or new administrative agencies authorized by Congress, such as the Securities and Exchange Commission and the Civil Aeronautics Board. Under the traditional division the new arrangements were subject to attack as unconstitutional attempts to delegate to other agencies part of the legislative power that Congress alone can exercise.

The flow of decisions in the Hughes Court upon this question paralleled the course taken under the due process, commerce, and spending clauses. At first the majority seemed disposed to resist the new political order as in panama refining company v. ryan (1935) and Schechter Poultry Corporation v. United States (1935). Later decisions, however, reversed the initial trend. united states v. rock royal cooperative, Inc., (1939) is illustrative. The agricultural marketing agreement act gave the secretary of agriculture broad authority to regulate the marketing of eight agricultural commodities, including milk, with a view to reestablishing the purchasing power of farmers at the level in a base period, usually 1909–1914. In the case of milk, however, if the secretary found the prices so determined to be unreasonable, he was authorized to fix producer prices at a level that would reflect pertinent economic conditions in local milk markets, provide an adequate supply of wholesome milk, and be in the public interest. The purported standards were numerous and broad enough to impose no significant limit upon the secretary's decisions. Nevertheless, the Court upheld the delegation. It was enough that Congress had limited the secretary's power to specified commodities, had specifically contemplated price regulation, and had provided standards by which the secretary's judgment was to be guided after hearing interested parties. The decision set the pattern for all subsequent legislative draftsmen and judicial determinations.

The contributions of the Hughes Court to the law of the first amendment were less definitive than in the areas of the commerce clause, economic due process, the spending power, and delegation; but they were not less important. The Hughes Court infused the First Amendment with a new and broader vitality that still drives the expansion of the constitutional protection available to both individual speakers and institutional press.

Apart from the world war i prosecution of pacifists and socialists for speeches and pamphlets alleged to interfere with the production of munitions or conscription for the armed forces, federal law posed few threats to freedom of expression. State laws were more restrictive. The illiberal decisions of the 1920s sustaining the prosecution of leftists under state criminal syndicalism laws assumed that the First Amendment's guarantees against congressional abridgment of freedom of expression are, by virtue of the Fourteenth Amendment, equally applicable to the states. These obiter dicta encouraged constitutional attack upon state statutes, municipal ordinances, and judge-made doctrines restricting political and religious expression. In this area Chief Justice Hughes and Justice Roberts quickly allied themselves with the three Justices of established liberal reputation.

Two early opinions highlight the protection that the First and Fourteenth Amendments afford the press against previous restraints. near v. minnesota (1931) was decided upon appeal from a state court's injunction forbidding further publication of The Saturday Press, a weekly newspaper, upon the ground that it was "largely devoted to malicious, scandalous and defamatory articles." The newspaper had charged Minneapolis officials with serious offenses in tolerating gambling, bootlegging, and racketeering; the articles were scurrilous and anti-Semitic in tone and content. The decree was authorized by a Minnesota statute. Minnesota had experienced a rash of similar scandal sheets, some of whose publishers were believed to use their journals for blackmail. In an opinion by Chief Justice Hughes, the Supreme Court held that the injunction against publication was an infringement upon the liberty of the press guaranteed by the Fourteenth Amendment regardless of whether the charges were true or false. For any wrong the publisher had committed or might commit, public and private redress might be available; but this prior restraint was inconsistent with the constitutional liberty.

The law's strong set against previous restraints was underscored a few years later by grosjean v. american press company (1936), where a review of history led the Hughes Court to conclude that the First and Fourteenth Amendments bar not only censorship but also taxes that single out the press and are thus calculated to limit the circulation of information.

The chief danger to freedom or expression by the poor, the unorthodox, and the unpopular lies in state statutes and municipal ordinances that give local authorities wide discretion in preserving the peace and public order. Such laws not only invite suppression of unorthodox ideas by discriminatory enforcement but they also encourage self-censorship in hope of avoiding official interference. The Hughes Court laid the foundations for current constitutional doctrines narrowing the opportunities for abuse.

lovell v. city of griffin (1938) introduced the doctrine that a law requiring a license for the use of the streets or parks for the distribution of leaflets, speeches, parades, or other forms of expression must, explicitly or by prior judicial interpretation, confine the licensing authority to considerations of traffic management, crowd control, or other physical inconvenience or menace to the public. From there it was only a short step to holding in cantwell v. connecticut (1941) that a man may not be punished for words or a street demonstration, however offensive to the audience, under a broad, general rubric that invites reprisal for the expression of unorthodox views instead of requiring a narrow judgment concerning the risk of immediate violence. thornhill v. alabama (1941), once important for the ruling that peaceful picketing in a labor dispute is a form of expression protected by the First Amendment, also introduced the then novel and still controversial doctrine that an individual convicted under a law drawn so broadly as to cover both expression subject to regulation and constitutionally protected expression may challenge the constitutionality of the statute "on its face" even though his own conduct would not be constitutionally protected against punishment under narrower legislation. (See overbreadth doctrine.)

Supreme Court Justices and other constitutionalists still debate the theoretical question how far the First and Fourteenth Amendments secure individuals a right to some public forum for the purposes of expression. The Hughes Court's decision in hague v. congress of industrial organizations (1939) recognized such a right to the use of streets, parks, and like public places traditionally open for purposes of assembly, communication, and discussion of public questions: "Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights and liberties of citizens. The privilege … to use the streets and parks for communication of views on national questions may be regulated in the interest of all; … but must not in the guise of regulation be abridged or denied." On this ground Schneider v. State (1939) invalidated four city ordinances banning the use of the streets to hand out leaflets. Against this background later Justices would wrestle with the constitutional problems raised by restrictions upon house-to-house canvassing and the use of other government properties for the purpose of expression.

The Hughes Court presided over a revolution in constitutional interpretation. Many conservatives were convinced that in joining the liberal Justices, the Chief Justice and Justice Roberts unconscionably distorted the law to suit the winds of politics. Yet while the revolution is plain, the ground-breaking decisions did appreciably less violence than some reforming decisions of the later warren court and burger court to the ideal of a coherent, growing, yet continuing body of law binding the judges as well as the litigants. Doubtless the presence of two competing lines of authority in the Court's earlier decisions often made it easier for the Hughes Court to perform this part of the judicial function. Liberty of contract had never been absolute. The Court had previously sustained, in special contexts, the power of Congress to regulate local activities affecting interstate commerce. Acceptance of the Hughes Court's changes was also the easier because the Hughes Court was diminishing judicial interference with legislative innovations whereas the Warren and Burger Courts pressed far-reaching reforms without legislative support and sometimes against the will expressed by the people's elected representatives. That the old structure and powers of government should be shaped to industrialization, urbanization, and a national economy seemed more inevitable than that public schools should be integrated by busing, that prayer and Bible-reading should be banned from the public schools, or that abortion should be made a matter of personal choice. Yet even when the differences are acknowledged, much of the success of the Hughes Court in managing its revolution in constitutional interpretation seems attributable to the Chief Justice's belief in the value of a coherent, though changing, body of law, to his character, and to his talents combining the perception and sagacity drawn from an earlier, active political life with his extraordinary legal craftsmanship, earlier fine-honed as an Associate Justice.

Archibald Cox


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Jackson, Robert H. 1941 The Struggle for Judicial Supremacy. New York: Knopf.

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Swindler, William F. 1970 Court and Constitution in the Twentieth Century, Part I. Indianapolis: Bobbs-Merrill.