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Roberts, Owen J. (1875–1955)

ROBERTS, OWEN J. (1875–1955)

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'snew deal legislation. Without specifying any particular level of government, Roberts declared: "This Court from the early days affirmed that the power to promote the general welfare is inherent in government." Yet, speaking for the Court in railroad retirement board v. alton railway company (1935), Roberts argued that Congress lacked power under the commerce clause to pass any compulsory pension act for railroad workers. Hughes, louis d. brandeis, benjamin n. cardozo, and harlan f. stone dissented, the last rating this decision "the worst performance of the Court in my time."

united states v. butler apparently put the New Deal's legislative program beyond the scope of the taxing and spending power. Roberts, invoking the tenth amendment, argued that judicial endorsement of the agricultural adjustment act would "sanction legislative power without restriction or limitation" and convert Congress into a "parliament of the whole people, subject to no restrictions save such as are self-imposed." Roberts also voted with the conservatives in carter v. carter coal company (1936), which set aside the Coal Conservation Act. Again the stumbling block was the Tenth Amendment. Coal mining, like agriculture, was local and therefore beyond the reach of national authority.

Meanwhile, overwhelming popular approval of the New Deal in the 1936 presidential election and the continuing high level of unemployment made it apparent that reliance on the states to cope with the economic emergency was misplaced. Blocking national action were four Supreme Court Justices, sometimes joined by Hughes and Roberts.

Roberts's judicial record appears inconsistent. Although the cases involved different issues, the shift between Nebbia on the one hand and Alton and Butler on the other is a clear instance of change. Some observers charged that Roberts, alarmed by Roosevelt's court-packing proposal of February 1937, shifted from a vote against the minimum wage in morehead v. new york ex rel. tipaldo (1936) to one in favor of it in west coast hotel company v. parrish (1937). Thus Roberts became famous as "a man of many minds."

In the personal rights area Roberts was, on occasion, conspicuously on the liberal side. Joined by Brandeis, Sutherland, and Butler, he dissented in Snyder v. Massachusetts (1934), insisting that when a jury visits the scene of a crime, the defendant and counsel must be present. In Schneider v. Irvington (1939) he voted to set aside a city ordinance restricting freedom of the press and distribution of nonadvertising circulars and pamphlets.

In herndon v. lowry (1937) Roberts wrote for the Court, which reversed the conviction of Angelo Herndon, a black organizer for the Communist party, who had been found guilty of inciting insurrection by trying to enlist other blacks in that organization. The Georgia courts sentenced Herndon to eighteen years in prison. Said Roberts of the state act that penalized any attempt to incite an insurrection against the state: "The statute, as construed and applied, amounts merely to a dragnet which may enmesh anyone who agitates for a change of government if a jury can be persuaded that he ought to have foreseen his words would have some effect in the future conduct of others. No reasonably ascertainable standard of guilt is prescribed. So vague and indeterminate are the boundaries thus set to the freedom of speech and assembly that the law necessarily violates the guarantees of liberty embodied in the fourteenth amendment." In betts v. brady (1942), however, Roberts for the Court held that the right to be represented by counsel in a noncapital felony case was not essential to due process of law (overruled in gideon v. wainright, 1961).

During world war ii, when the Court, speaking through Justice hugo l. black in Korematsu v. United States (1944), upheld the compulsory transfer of Japanese American citizens to relocation centers, Roberts wrote an eloquent dissent. Joined by frank murphy and robert h. jackson, he challenged Black's majority opinion, then the prevailing public view. He wrote: "[This] is the case of convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp, based on his ancestry, and solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States.… I need hardly labor the conclusion that constitutional rights have been violated."

Roberts and all his colleagues, including Stone, had held in grovey v. townsend (1935) that voting in primary elections was not a constitutional prerogative but a privilege of party membership. In the famous case of united states v. classic (1941) the Court, again speaking through Stone, without mentioning Grovey, ruled that participation in primaries was a right secured by the Constitution. Thus, with the adherence of Roberts, but without discussing Grovey, Stone brought traditional southern election customs to the brink of destruction. More alert than Roberts, commentators knew that another precedent had been broken. In 1944, when the Court overruled Grovey, Roberts exploded. "Not a fact differentiates that case (Grovey) from this, except the names of the parties.… If this Court's opinion in the Classic case discloses its method of overruling earlier decisions, I can protest that in "fairness,' it should rather have adopted the open and frank way of saying what it was doing.…" "The instant decision," Roberts fumed in smith v. allwright (1944), "tends to bring the adjudication of this tribunal into the same class as a restricted railroad ticket, good for this day and train only."

New trends and new judicial personnel in a rapidly changing world disturbed Roberts. He asserted that law had become not a chart to govern but a game of chance. By 1941 the cordial relations he had previously enjoyed with his colleagues became strained. When Roberts retired in 1945, Chief Justice Stone drafted the customary letter to a departing colleague commenting: "You have made fidelity to principle your guide to decision." Black and william o. douglas strongly objected, contending that this was precisely the quality Roberts lacked. Consequently no farewell letter was sent.

Roberts was a modest man, sensitive to his shortcomings. On leaving the bench he commented: "I have no illusion about my judicial career.… Who am I to revile the good God that did not make me a Marshall, a Taney, a Bradley, a Holmes, a Brandeis, or a Cardozo?"

Alpheus Thomas Mason


Leonard, Charles A. 1971 A Search for Judicial Philosophy: Mr. Justice Roberts. Port Washington, N.Y.: Kennikat Press.

Mason, Alpheus T. 1956 Harlan Fiske Stone: Pillar of the Law. New York: Viking.

Note 1955 Owen J. Roberts—In Memoriam. University of Pennsylvania Law Review 104:311–317.

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