William E. Leuchtenburg

AHR Forum

Comment on Laura Kalman's Article

Laura Kalman's article is splendid. She lays out the internalist and externalist arguments thoroughly and fairly; shows her impressive command of the literature and of the fields of both history and law; advances cogently her own point of view; and ends with a plea for civility that I heartily endorse. I share, too, her discomfort with the terms "externalist" and "internalist," which are unfair to most scholars consigned to either compartment, but I follow her in employing them because they are convenient.

"The Bottom's Practically Out of It." Drawing by Elmer R. Messner, originally published in the Rochester Times Union on May 25, 1937. Reproduced courtesy of the Franklin D. Roosevelt Library.

In only one respect would I modify slightly what she has said, and that is not to differ with her but to underscore what she has written. She notes, quite rightly, that a controversy about how to interpret the constitutional history of the 1930s has heated up. Dwelling on the emergence of that dispute, though, may inadvertently leave the impression that only in recent years has there been a challenge to what is now characterized as the orthodox view. In fact, there has never been a time when there has not been an alternative perception. When I first began serious work on the U.S. Supreme Court in 1962, the contention that the Court had not altered its position in 1937 was ancient doctrine.

One aspect of Justice Owen Roberts's alleged switch had long been established. The Court in Morehead v. New York ex rel. Tipaldo had struck down a state minimum wage law, with Roberts in the 5–4 majority, in June 1936;¹ President Roosevelt sent his message on reorganizing the judiciary in February 1937;² the Court handed down West Coast Hotel v. Parrish³ upholding minimum wage legislation, with Roberts in a new 5–⁴ majority, in March. Ergo, it initially seemed reasonable to assume, Roberts had shifted in response to the Court-packing threat. But we have known for decades that, though the Parrish decision was announced in March, the vote had been taken prior to FDR's thunderbolt, and hence Court-packing legislation could not have influenced Roberts on that case. Only three days after West Coast Hotel was handed down, the columnist David Lawrence published an account asserting that Roberts had recorded his changed attitude in December.4 Furthermore, in 1962, the Frankfurter essay in the University of Pennsylvania Law Review,⁵ with the Roberts memo, was already seven years old. I stated in my book on Roosevelt and the New Deal published in 1963: "There has been a good deal of speculation about why Roberts joined the liberal majority. It is clear that Roosevelt's Court message was not responsible, for the minimum-wage decision was reached before the President sent his message."⁶

I have never regarded myself as an externalist—although I suppose that label is a sort of promotion from being called a "consensus historian" or a "born-again New Dealer." If being characterized as an externalist implies that I believe that the Court is simply an institution that registers the mindsets of the justices, nothing could be more mistaken. I have never thought that. How could anyone who has worked as often as I have in the papers of Harlan Fiske Stone possibly think that judges are ideological automatons? Stone, who so emphatically upheld the constitutionality of the Agricultural Adjustment Act's processing tax in his Butler dissent,⁷ wrote a New York lawyer, "You do not dislike the A.A.A. any more than I do. I think probably not as much." He added: "That perhaps was what made me emphasize the fact that our function is not to get rid of laws merely because we don't like them. If that were the criterion I should have been on the other side."⁸ Nor have I ever supposed that simplistic political explanations are credible. Any historian with the remotest familiarity with this period knows that the justice who gave FDR the most trouble was James McReynolds, appointed by the Democrat Woodrow Wilson, and the justice who was the most articulate defender of the constitutionality of most of the New Deal was Stone, nominated by the Republican Calvin Coolidge. As recently as 1995, I took issue with a scholar who attributed the ruling in the Washington minimum wage case to "Franklin D. Roosevelt's appointments" by writing, "In fact, the decision in West Coast Hotel v. Parrish was reached before Roosevelt had made even one appointment."⁹

Those who do maintain that the Court is merely a political instrumentality would cite first and foremost the behavior of the justices in the disputed elections of 1876 and 2000, when their positions largely followed party lines. But when Linda Greenhouse, who was writing an article on Bush v. Gore¹⁰ for the New York Times, interviewed me on the telephone, I told her that although the most obvious explanation of the split decision was political, I did not like to think of the Court that way and was struggling to reconcile its intervention, which seemed so untethered doctrinally, with the record of the Court in rulings such as Alden v. Maine¹¹ that showed such deference to the states.

Far from taking a reflexively externalist attitude, I started out with the assumption that the Roberts memo should be accepted. In the 1963 book, I wrote with respect to FDR's fear that the minimum wage ruling foredoomed New Deal legislation: "In fact, the situation was not quite this serious, for Roberts had joined the majority in the Morehead case on technical grounds."¹² It was only after years of study that I came to a contrary conviction, which was reinforced by one of my students. The well-known article by John Chambers was written in my doctoral seminar at Columbia, and I do not see how the Roberts memo can anymore be taken as gospel after the trenchant argument that Chambers mounts.¹³

In seeking to understand the Court's behavior in the 1930s, I find the externalist explanation more cogent than the internalist, not because I think that justices are always political agents who write elaborate opinions as glosses for their preconceptions, but because in this particular instance—a highly unusual instance, one called nothing less than a "revolution"¹⁴—external influences are more congruent with the evidence.

Internalists trace the origins of the change in the 1930s to Nebbia¹⁵ in 1934, and I agree that that was a remarkable decision and an even more remarkable opinion. The New York law at issue must have been a difficult one for the Court to abide. At a time in the Great Depression when millions were not sure where their next meal was coming from, the act boosted the price of milk and punished any grocer who sold milk cheaper. Benno Schmidt, with whom I taught at Columbia Law School for a number of years, once told me that when he was a student at Yale Law School, Robert Bork taught that this was a truly nutty statute. Leo Nebbia, a Rochester grocer, had run afoul of the law by selling a customer two quarts of milk at the price set by a state board but then tossing in a loaf of bread, thereby, it was said, undercutting the mandatory price. If there was any way for the Court to validate such a law, it was presumably by saying that milk could be incorporated into the "affected with a public interest" doctrine enunciated in 1877 by Chief Justice Morrison R. Waite.¹⁶ Instead, in a bold opinion by Roberts, it upheld the act without relying on that rationale but by advancing a broad-gauged acceptance of governmental power.

Why, then, am I unpersuaded that Nebbia is a watershed? Quite simply because of what followed. Only a year after Roberts spoke in Nebbia, he wrote his benighted opinion in Rail Pension.¹⁷ Over the next thirteen months, he sided with the Four Horsemen in every case in which they were united, which is to say virtually every New Deal case. During that period, the Court struck down more important laws, federal and state, than at any time in its over two centuries' history, before or since. Nothing about that performance indicates a slow evolution of doctrine toward a more expansive view of the powers of the state.

Certainly Franklin Roosevelt's experience did not suggest that Nebbia should have given him comfort. In January 1935, less than a year after Nebbia, the Supreme Court, ruling on a New Deal statute for the first time in the "hot oil" cases, invalidated a section of the National Industrial Recovery Act.¹⁸ Six weeks later, the Court reprimanded the government for repudiating gold clauses in Liberty Bonds and came within one vote of throwing the financial markets into chaos.¹⁹ Roberts's opinion in Rail Pension came down in early May, and in late May, on "Black Monday," the Court ruled 9–0 against the government in three cases.²⁰ The most important of these decisions, Schechter, knocked out one of the two foundation stones of the New Deal, the National Industrial Recovery Act, and at the start of the new year, in January, Butler destroyed the other, the Agricultural Adjustment Act.²¹ The rest of 1936 was no less dismal. In Jones v. SEC, Justice George Sutherland likened a not unreasonable stipulation by the Securities and Exchange Commission to the "intolerable abuses of the Star Chamber" in Stuart England.²² The Court ended its term with adverse decisions on government action on three successive Mondays: Carter, which ruled that a "little New Deal" regulating the bituminous coal industry invaded states' rights, even though seven states had filed amicus briefs asking that the law be sustained;²³Ashton, which invalidated a municipal bankruptcy act intended not to aggrandize national authority but to preserve the integrity of local governments;²⁴ and Tipaldo, which shocked the nation by striking down a New York minimum wage law for women and children.²⁵

Little wonder that Roosevelt, far from expressing contentment with Nebbia and its offspring, concluded after Tipaldo that the Court had created a "'no-man's land' where no Government—State or Federal—can function."²⁶ Stone did not deny this. "Our latest exploit was a holding by a divided vote that there was no power in a state to regulate minimum wages for women," he reported. "Since the Court last week said that this could not be done by the national government, as the matter was local, and now it is said that it cannot be done by local governments, even though it is local, we seem to have tied Uncle Sam up in a hard knot."²⁷ One cannot find in these words the shadow of a hint that Nebbia had transformed the judicial landscape.

I altogether agree with the internalists that we should place the decisions of 1935 and 1936 in the context of a longer line of rulings, but I have a different read on which cases are pertinent. I see the decisions of 1935 and 1936 as the climax of a sequence that begins with Hammer v. Dagenhart²⁸ in 1918, which struck down the first Child Labor Act. Over the next decade, there ensued Duplex Printing Press Co. v. Deering,²⁹ which emasculated the Clayton Act's safeguards for labor unions; Bailey v. Drexel Furniture Co.,³⁰ which invalidated the second Child Labor Act; Adkins v. Children's Hospital,³¹ which struck down a District of Columbia minimum wage law for women as infringing freedom of contract; Burns Baking Co. v. Bryan,³² which found that a state law regulating the weight of bread denied due process; Tyson & Brothers v. Banton,³³ which invalidated a New York statute regulating the resale of theater tickets; and Ribnik v. McBride,³⁴ which struck down a state law monitoring employment agencies.

I also agree that we should not confine ourselves to the textbook cases such as Schechter but should look at the whole corpus of rulings in Roosevelt's first term. But scrutinizing less-noticed decisions such as Mayflower Farms³⁵ and Great Northern,³⁶ in both of which Justices Charles Evans Hughes and Owen Roberts joined the Four Horsemen, only weakens the internalist argument. Roberts and Hughes, said Felix Frankfurter, "reached terrible depths in the Mayflower case."³⁷

If we were to single out one of the less familiar cases, it might well be Colgate v. Harvey³⁸ in 1935. There, in ruling against a Vermont tax law, the Court resurrected the privileges-and-immunities clause, which had never before been used to invalidate a law and had been regarded as having been "read out" of the Constitution. Forty-four times, counsel had raised the privileges-and-immunities clause, and forty-four times it had been rejected.

The Colgate decision left Frankfurter beside himself. That evening, he wired Stone: "Gosh it is unbelievable. Apparently history and precedents mean nothing."³⁹ Three days later, he unburdened himself to Stone at greater length:

Being an extrovert, I sleep very easily as a rule, but last night I woke twice and each time I went over in my mind the decisions of your Court during the last thirty years to think of one that was more unjustifiable than the Colgate case. I thought of all the stock mishaps—Lochner, Burns Baking, Ribnik ... and all the rest. But honestly, the disinterment of "privileges and immunities" and their perversion to the use put in the Colgate decision, seems to me the end of the limit.⁴⁰

Three weeks later, he was still steaming. Colgate, Frankfurter told James Landis, was "the most indefensible decision, on any Court, in my lifetime."⁴¹

Frankfurter's distinguished Harvard Law School colleague Thomas Reed Powell expressed no less dismay. He wrote the president of a bank in Vermont's largest city:

We are intellectually outraged here at the Supreme Court's decision in the Colgate case. In invoking the privileges and immunities clause of the Fourteenth Amendment the Court has for the first time opened a door that many times before it had refused to open, and there seems to be no telling where the Court can go now that the door is open. If the Court is going to pick new, strange clubs out of the air to swat anything that it doesn't like, the subject of constitutional law will be as stable as a kaleidoscope operated by an electric battery.⁴²

Where, then, is the long period of incubation that the internalists see?

Far from thinking we should look only at external political pressure and dismiss the reasoning of judges, I believe we should pay the closest attention to what judges say. If Nebbia in 1934 marked the beginning of a doctrinal shift on the Court, how does one account for Stone's accusation that in Butler Roberts had engaged in a "tortured construction of the Constitution"⁴³ and that in Tipaldo the Court had given way to "personal economic predilections"?⁴⁴ On yet another occasion, Stone wrote Frankfurter: "You doubtless have read by this time the Court's opinion in the Jones (Securities Act) case. It was written for morons, and such will no doubt take comfort from it. But I can hardly believe that intelligent people, trained in the law, will swallow such buncombe."⁴⁵ How does one explain Cardozo's saying of that same opinion, in which Hughes as well as Roberts joined the Four Horsemen, that the Court had given comfort to "clever knaves"?⁴⁶ Or Cardozo, speaking also for Louis Brandeis and Stone, rebuking justices in the majority in Carter by stating, "A great principle of constitutional law is not susceptible of comprehensive statement in an adjective," and "The opinion of the court begins at the wrong end"?⁴⁷ Finally, if Nebbia in 1934 was a milestone in a doctrinal transmutation, why did Justice Stone write his sister at the end of the session in 1936, "We finished the term of Court yesterday, I think in many ways one of the most disastrous in its history"?⁴⁸

Furthermore, if there was a slowly evolving paradigm shift, how does one explain that not one of the most distinguished law professors of the day recognized it? "The Hoosac Mills [Butler] case will live to torment the defenders of judicial supremacy long after the issue of farmers' relief has become a historical episode," declared Howard Lee McBain, Ruggles Professor of Constitutional Law at Columbia, in a feature article in the New York Times. "It is a shining and warning example of judicial supremacy at its worst."⁴⁹ And from Harvard Law School, Frankfurter wrote, "'They know not what they do,' these bunnies on the Court."⁵⁰

Some writers insist that the Court struck down so many laws in the 1930s for two reasons: they were badly drafted, especially during the frenzy of the First Hundred Days, and they were poorly argued. I understand why that is said. The first laws were hastily drawn, and the first solicitor general, who came, I am sorry to say, from my adopted state of North Carolina, was incompetent. But there are two problems with these contentions. One is that the most notorious decision of this period, Tipaldo, fell on a New York law that had been exquisitely drafted by two of the finest practitioners in the country, Ben Cohen and Felix Frankfurter, who had taken pains to work around Justice Sutherland's opinion in Adkins. And it did not matter. (When Roberts, who voted to strike down that law, approved another minimum wage statute in West Coast Hotel, that law was not nearly so well drafted.) The second is that after the initial bungling, Roosevelt, as early as March 1935, found a first-rate solicitor general in Stanley Reed. And again it did not matter. In arguing one of the New Deal farm cases, Reed was harried so relentlessly from the bench that he fainted in the courtroom. As Michael Parrish has written, the claim that sloppy draftsmanship and inept argument explain FDR's travail is "not a reasonable interpretation of the administration's misfortunes in cases such as Butler, Carter Coal, and Jones," and "is a preposterous explanation for the Court's behavior with respect to the state laws invalidated in Morehead, Colgate, Great Northern, and Mayflower."⁵¹

It has been asserted that FDR's Court-packing venture could not have impelled the Court to switch in 1937 because the justices were unflustered. In fact, Roosevelt's message of February 5 badly rattled them. The Scripps-Howard columnist Raymond Clapper set down in his diary after the Court convened the following Monday: "Veterans around court said they never saw such [an] irregular day." The chief justice fumbled the orders of the Court, Clapper noted. Brandeis popped through the curtain ahead of cue, then scurried back. "Potter, press room clerk, said, 'My God, the court is punch drunk.'"⁵² Several of the justices were uncharacteristically indiscreet in letting their disapproval of Roosevelt's plan be known. McReynolds, in particular, aroused strong criticism by attacking the president for poor sportsmanship in a speech at a fraternity gathering in a Washington hotel.⁵³

It is further said that the Court could not have switched under pressure in 1937 because there never was any chance that FDR's proposal would be enacted, and that the justices knew this. The evidence against these premises is formidable. Consider the political situation. Roosevelt had just won an overwhelming victory and had pulled scores of grateful Democrats into office with him. Of the ninety-six seats in the Senate, the Republicans held only sixteen. There were so many Democrats that several had to sit on the GOP side of the aisle. In the House, Democrats outnumbered Republicans four to one. Early in April, a week before the Wagner Act rulings were announced, Time concluded, "Last week the sta[u]nchest foes of the President's Plan were privately conceding that ... the necessary votes were already in his pockets."⁵⁴

Even after the Court's decisions in West Coast Hotel, Jones & Laughlin, and the Social Security cases,⁵⁵ and after the retirement of one of the Four Horsemen, a revised Court-packing measure that would give Roosevelt three appointments in the next six months commanded substantial support. On July 12, the floor leader of the opposition, Senator Edward Burke of Nebraska, sent the publisher Frank Gannett, who headed the chief lobby against the plan, a confidential memo giving his estimate of the likely outcome. Alongside each name on an official U.S. Senate tally sheet, he checked the vote he expected and then scrawled the total: 52 ayes, 44 nays.⁵⁶

On some important issues, I doubt that there is any disagreement between internalists and externalists. I do not think anyone is suggesting that in foreign affairs there was a conflict between the president and the Court, especially in light of Sutherland's opinion in Curtiss-Wright.⁵⁷ And I do not know of anyone who believes that the incorporation of the Bill of Rights in the Fourteenth Amendment began in 1937. Unquestionably, it started earlier—in the dictum in Gitlow⁵⁸ and the 1931 decisions in Stromberg⁵⁹ and Near.⁶⁰

We are divided, though, about the paradigm shift on the Court in the 1930s. If someone asks me, "What brought about that change?" I give what I think is the only reply that anyone can give: "I don't know for certain." Nobody does. And we do not know in good part because crucial material is unavailable. There are papers, ample or thin, for eight of the nine justices, and I have been to all of them. The one missing is the one we want most: Owen Roberts's. Paul Freund once told me that he had gone with Roberts's widow up into the loft of a barn in Pennsylvania in hope that they might be there. No luck. Not only are there no Roberts papers, but there are almost no Roberts letters of the 1930s in any other collection. It is as though some malevolent Orwellian figure went from archive to archive plucking them out. Moreover, Felix Frankfurter's diary for 1937, which might have been revealing, was stolen from the Library of Congress. For many years, scholars have been hoping that the thief will have an attack of conscience and return the diary and other Frankfurter papers, but so far that desire has been unrewarded.

Since there is no smoking gun, we have to sift the evidence to find the most plausible scenario. Four possible explanations, or some combination of them, are the most probable. One is that Roberts and, to an extent, Hughes reconsidered because of the hammering inflicted on them by the legal community. After Roberts's opinion in Butler, Fleming James of Yale Law School wrote Stone: "You may be interested to know a dictum that has been going about among the students of the Law School here—a dictum attributed to a certain colorful member of the faculty, who says he didn't say it, but it's true—viz—that Owen's decision would not get a D in any course in constitutional law in any first class law school."⁶¹ When McReynolds delivered an opinion for the Court in Ashton to which Roberts signed on, Frankfurter wrote Stone: "I am bound to say that his decision in the Municipal Bankruptcy Case is intellectually ... contemptible ... You will agree, I know, what Holmes, J., would have said to the argument that the acceptance of a voluntary bankruptcy by a municipality necessarily leads to recognition of the right to impose involuntary bankruptcy. He would have said, 'It makes me puke.'"⁶² Over a stretch of nearly two years, critiques in law journals echoed these harsh indictments. Of thirteen law journals that expressed judgments on Colgate, twelve were unfavorable, many of them lacerating.

The justices might also have become responsive to mounting popular discontent. Although the Court continued to command considerable respect, rulings by the "nine old fossils"⁶³ riled so many Americans that drastic legislative action seemed increasingly likely. On the night of the Butler decision, alongside a highway near the Iowa State University campus in Ames, police came upon life-size black-robed effigies of the six justices who had voted to strike down the AAA; each had been hanged.⁶⁴ A North Carolina congressman wrote a constituent, "You actually have no idea how many people would like to get a crack at at least six of the old boys."⁶⁵ As the Court mulled over the fate of the Tennessee Valley Authority, a Montana congressman introduced a bill stipulating that if the TVA law was invalidated, the seat of every justice who voted to kill it would automatically be vacated.⁶⁶ These assaults on the Court coincided with a wave of labor militancy, highlighted by sitdown strikes, that whipped up still more fury at the Supreme Court, which was expected to invalidate the National Labor Relations Act. "The years 1935–1937," Michael Nelson has observed, "saw more 'Court-curbing' bills introduced in Congress than in any other three-year (or thirty-five-year) period in history."⁶⁷ While the country was still raging about the 5–4 Tipaldo decision and before West Coast Hotel was considered, Hughes spent many hours as a guest at Roberts's Pennsylvania farm absorbed in talk—afternoon, evening, and morning—and it is conceivable that the chief justice was counseling his younger colleague that the Court as an institution was in jeopardy and needed to be responsive.⁶⁸ There is one particularly arresting testimonial to the potency of popular opinion articulated by a retired jurist in 1951: "Looking back, it is difficult to see how the Court could have resisted the popular urge for ... what in effect was a unified economy." The author of that statement? Owen Roberts.⁶⁹

A third script focuses on the presumed impact of the 1936 election. Some scholars have scoffed at that notion, since the Court was so unaffected by the big Democratic gains in the midterm elections in 1934, but the situation in 1936 was very different. In 1934 the Court had yet to strike down a single piece of New Deal legislation, so the contests that year could not possibly be seen as a referendum on its behavior. In addition, the 1934 races did not begin to have the prominence of the 1936 election, when the American people were being asked whether they wanted to keep Franklin Roosevelt in the White House.

The 1936 returns delivered a seismic shock. The most highly regarded public opinion poll, that of the Literary Digest, which in 1932 had come within one point of predicting FDR's percentage of the popular vote, had forecast on the eve of the 1936 election that Roosevelt would be trounced.⁷⁰ On the day before the election, Justice Willis Van Devanter foresaw a close race, and that summer Justice McReynolds had written his brother, "There seems a growing feeling that Roosevelt will be defeated."⁷¹ No judge anticipated the staggering dimensions of FDR's landslide as, carrying all but two of the states, he ran up the biggest electoral victory since 1820, when James Monroe ran unopposed. The justices could well have believed in 1935 and 1936 that in striking down New Deal legislation, they were not balking the popular will but were preserving the republic until the people got the opportunity to oust Roosevelt. After the torrent of ballots for FDR in 1936, no one could any longer think that.

A final hypothesis is that the threat of Court packing influenced the justices. Although FDR's message could not have been responsible for Roberts's switch in the minimum wage cases, foreboding that the president would soon go on the offensive may have contributed. Despite Roosevelt's determination to quiet the Court issue in the 1936 campaign, newspaper readers encountered numbers of warnings that if elected, FDR might pack the Court. The New York Post wrote, "He may add four liberals in order to insure a sympathetic approach by the Court to the New Deal Program," and a nationally syndicated columnist asserted, "You can mark it down as a strong possibility that some time within the next year there will be more than nine justices ... Strategists whisper that it is more than a tentative proposal."⁷²

When Roosevelt did, in fact, announce his judiciary reorganization scheme on February 5, 1937, the menace to the Court as an institution became so palpable that it is unlikely that it had no consequence, as internalists maintain. Contemporary observers did not question what brought about the surprising ruling in Jones & Laughlin.⁷³ A national columnist reported: "If you ask the average well informed authority on the Supreme Court the 'why' of its decision in the Wagner labor cases, you will be informed: 'Chief Justice Hughes wanted to save the court.'"⁷⁴ Charles Beard wrote an editor, "F.D. sure did scare the old boys,"⁷⁵ and a Philadelphia newspaper declared:

Lloyd George put over the British New Deal of 1909 by threatening to pack the House of Lords.
Mr. Roosevelt has won another major battle for our own New Deal by a similar threat against our own House of Lords—the Supreme Court.⁷⁶

The foremost scholars of the day, and of subsequent generations, have found the same connection. "The logic of history is chronologic," asserted E. S. Corwin. "One cannot be blind to the ... simple fact that February 5, 1937, came before April 12."⁷⁷ Students of the subject had no trouble parsing that sentence. April 12 was the day the fate of the Wagner Act was announced. In his classic monograph on the NLRB litigation, Richard Cortner concluded, "There seems to be little doubt that the views of Chief Justice Hughes and Justice Roberts on the power of Congress to regulate labor relations were affected by three major factors—the overwhelming re-election of Roosevelt in 1936, the sit-down strikes, and the attack on the Court, with the latter probably the most important." He added: "The Wagner Act cases marked the end of the 'old Constitution' ... The Wagner Act cases opened the floodgates of national power."⁷⁸

Across a broad spectrum, the Supreme Court today takes as a given that 1937 was the great divide. In his fierce dissent in Lopez, Justice David Souter said the ruling "tugs the Court off course" by veering toward "the old judicial pretension discredited and abandoned in 1937."⁷⁹ Concurring in that case, Justice Clarence Thomas also saw a turning point; he cited the 1936 Carter decision approvingly and maintained that the Court had taken a wrong turn thereafter.⁸⁰ As recently as 2000, in United States v. Morrison, Souter accused the majority of "adherence to ... formalistically contrived confines of commerce power" that "in large measure provoked the judicial crisis of 1937."⁸¹ He did not allude to a long period of doctrinal evolution. Instead, he not only pinpointed the crisis at 1937 but put the blame on the justices of the 1930s for provoking it. "One might reasonably have doubted," Souter scolded his brethren, "that Members of this Court would ever again return to the days before NLRB v. Jones & Laughlin ... brought the earlier and nearly disastrous experiment to an end."⁸²

The greatest change in jurisprudence in the twentieth century came not gradually but abruptly. In March 1937, the Court legitimated minimum wage standards for women that had been ultra vires only nine months earlier. In April 1937, it ruled that the commerce power extended to a small Virginia clothing firm,⁸³ in contrast to its insistence less than a year before that it did not reach as vast an industry as coal mining. A month later, it gave a reading to the spending power that would have astonished Court-watchers in the aftermath of Roberts's opinion in Butler, despite his embrace of the Hamiltonian exegesis. Never again would the Court, which had demolished so much of Roosevelt's program in 1935–1936, strike down a New Deal law, and nearly sixty years would go by before it found any act of Congress beyond the scope of the commerce power. The rubric "Constitutional Revolution of 1937" is no misnomer.

William E. Leuchtenburg is William Rand Kenan, Jr. Professor Emeritus of History at the University of North Carolina at Chapel Hill. He has taught at a number of other institutions, including Columbia University Law School and Duke University Law School, and held the Harmsworth chair at Oxford. He has lectured abroad at the U.S. Embassy in London, the French Senate, Moscow State University, the Hebrew University in Jerusalem, and the University of Cape Town. His many books include Franklin D. Roosevelt and the New Deal, 1932–1940 (1963), winner of the Bancroft Prize and the Francis Parkman Prize. He has served as president of the American Historical Association, the Organization of American Historians, and the Society of American Historians.

Notes

¹ 298 U.S. 587 (1936).

²The Public Papers and Addresses of Franklin D. Roosevelt, ed. Samuel I. Rosenman, 13 vols. (New York, 1938–1950), 5: 51–66.

³ 300 U.S. 379 (1937).

⁴ David Lawrence, "Minimum Wage Edicts," April 1, 1937, copy in Joseph Pulitzer Papers, Library of Congress, Box 76. Another prominent correspondent wrote in the same vein. See Franklyn Waltman in the Washington Post, May 30, 1937.

⁵ Felix Frankfurter, "Mr. Justice Roberts," University of Pennsylvania Law Review 104 (1955): 311–349.

⁶ William E. Leuchtenburg, Franklin D. Roosevelt and the New Deal, 1932–1940 (New York, 1963), 236n.

⁷United States v. Butler, 297 U.S. 1 (1936) at 78–88.

⁸ Harlan Fiske Stone to C. C. Burlingham, January 9, 1936, Box 7, Stone Papers, Library of Congress.

⁹ William E. Leuchtenburg, The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt (New York, 1995), 311.

¹⁰Bush v. Gore, 531 U.S. 98 (2000).

¹¹ 119 S. Ct. 2240 (1999). I have discussed the Rehnquist Court's federalism decisions in "The Tenth Amendment over Two Centuries: More than a Truism," in The Tenth Amendment and State Sovereignty: Constitutional History and Contemporary Issues, ed. Mark R. Killenbeck (Lanham, Md., 2002), 41–105.

¹² Leuchtenburg, Franklin D. Roosevelt and the New Deal, 232n. "Morehead" was an alternative shorthand for Tipaldo.

¹³ John W. Chambers, "The Big Switch: Justice Roberts and the Minimum-Wage Cases," Labor History 10 (Winter 1969): 44–73. See, too, the perceptive comments of Michael E. Parrish in Felix Frankfurter and His Times: The Reform Years (New York, 1982), 270–271.

¹⁴ The term "constitutional revolution of 1937" is commonplace. As early as 1938, E. S. Corwin used the rubric "constitutional revolution," which he italicized, to encapsulate the 1937 revamping. Corwin, Court over Constitution: A Study of Judicial Review as an Instrument of Popular Government (Princeton, N.J., 1938), 124. For a later example, see Bernard Schwartz, The Supreme Court: Constitutional Revo- lution in Retrospect (New York, 1957).

¹⁵Nebbia v. New York, 291 U.S. 502 (1934).

¹⁶Munn v. Illinois, 94 U.S. 113 (1877).

¹⁷Railroad Retirement Board v. Alton R. Co., 295 U.S. 330 (1935). I devoted a chapter to this case in The Supreme Court Reborn.

¹⁸Panama Refining Co. v. Ryan, 293 U.S. 388 (1935).

¹⁹Perry v. United States, 294 U.S. 330 (1935).

²⁰Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935); Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555 (1935); Humphrey's Executor v. United States, 295 U.S. 602 (1935). The opinion in Schechter, which turned on the issue of improper delegation, took a very narrow view of the commerce power, an attitude that had been foreshadowed by Chassaniol v. City of Greenwood, 291 U.S. 584 (1934), handed down just one week after Nebbia.

²¹ 297 U.S. 1 (1936).

²² 298 U.S. 1 (1936).

²³Carter v. Carter Coal Co., 298 U.S. 238 (1936).

²⁴Ashton v. Cameron County District, 298 U.S. 513 (1936).

²⁵Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936).

²⁶ Roosevelt, Public Papers, 5: 191–192.

²⁷ Mason, Stone, 426.

²⁸ 247 U.S. 251 (1918).

²⁹ 254 U.S. 443 (1921).

³⁰ 259 U.S. 20 (1922).

³¹ 261 U.S. 525 (1923).

³² 264 U.S. 504 (1924).

³³ 273 U.S. 418 (1928).

³⁴ 277 U.S. 350 (1928).

³⁵Mayflower Farms, Inc. v. Ten Eyck, 297 U.S. 269 (1936).

³⁶Great Northern Railway v. Weeks, 297 U.S. 135 (1936).

³⁷ Felix Frankfurter to Harlan Fiske Stone, February 12, 1936, Box 13, Stone Papers.

³⁸ 296 U.S. 404 (1935).

³⁹ Felix Frankfurter to Harlan Fiske Stone, December 16, 1935, Box 105, Frankfurter Papers, Library of Congress.

⁴⁰ Felix Frankfurter to Harlan Fiske Stone, December 19, 1935, ibid. In Lochner v. New York, 198 U.S. 45 (1905), the Court, divided 5–4, struck down a New York state law limiting the hours of labor of bakers. The opinion by Justice Rufus Peckham was long regarded as the high-water mark of usurpation by the courts of legislative authority.

⁴¹ Felix Frankfurter to James M. Landis, January 9, 1936, Box 10, Frankfurter Papers.

⁴² Thomas Reed Powell to Levi P. Smith, April 6, 1936, January 3, 1936, Powell Papers, Harvard University Law School, Cambridge, Mass.

⁴³ 297 U.S. 1 at 87.

⁴⁴ 298 U.S. at 633.

⁴⁵ Stone to Frankfurter, April 7, 1936, Box 105, Frankfurter Papers.

⁴⁶ 298 U.S. 1 at 32.

⁴⁷ 298 U.S. 238 at 327, 341.

⁴⁸ Alpheus Thomas Mason, Harlan Fiske Stone: Pillar of the Law (New York, 1956), 425. In a trenchant essay, David A. Pepper has demonstrated how problematic is any attempt to present Nebbia as the fountainhead of the constitutional changeover in the 1930s. "Against Legalism: Rebutting an Anachronistic Account of 1937," Marquette Law Review 82 (1998): 63–154.

⁴⁹ Howard Lee McBain, "The Issue: Court or Congress?" New York Times Magazine, January 19, 1936, 1, 22.

⁵⁰ Frankfurter to James M. Landis, January 9, 1936, Box 10, Landis Papers, Library of Congress.

⁵¹ Parrish, Felix Frankfurter and His Times, 319.

⁵² Raymond Clapper MS. Diary, February 8, 1937, Clapper Papers, Library of Congress. I have discussed this matter at length in "The Nine Justices Respond to the 1937 Crisis," Journal of Supreme Court History 1 (1997): 55–75.

⁵³Washington Post, March 17, 1937, 1; Baltimore Sun, July 15, 1937, clipping, Joseph T. Robinson Scrapbooks, Robinson Papers, University of Arkansas, Fayetteville, Ark.

⁵⁴Time, April 5, 1937, 13.

⁵⁵Carmichael v. So. Coal & Coke Co., 301 U.S. 495 (1937); Steward Machine Co. v. Davis, 301 U.S. 548 (1937); Helvering v. Davis, 301 U.S. 619 (1937).

⁵⁶ Memo, Box 16, Frank Gannett Papers, Cornell University, Ithaca, N.Y.

⁵⁷United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936).

⁵⁸Gitlow v. New York, 268 U.S. 652 (1925).

⁵⁹Stromberg v. California, 283 U.S. 359 (1931).

⁶⁰Near v. Minnesota, 283 U.S. 697 (1931).

⁶¹ Fleming James to Harlan Fiske Stone, January 23, 1936, Box 82, Stone Papers. See also John H. Clarke to Newton D. Baker, February 11, 1936, File 3, Folder 24, Clarke Papers, Western Reserve Historical Society, Cleveland, Ohio.

⁶² Frankfurter to Stone, May 28, 1936, Box 105, Frankfurter Papers.

⁶³New York Times, February 11, 1936, 15.

⁶⁴ Ibid., January 8, 1936, 15.

⁶⁵ Anthony J. Badger, Prosperity Road: The New Deal, Tobacco, and North Carolina (Chapel Hill, N.C., 1980), 122.

⁶⁶New York Times, February 10, 1936, 4.

⁶⁷ Michael Nelson, "The President and the Court: Reinterpreting the Court-Packing Episode of 1937," Political Science Quarterly 103 (1988): 273, citing Stuart S. Nagel, "Court-Curbing Periods in American History," Vanderbilt Law Review 18 (1965): 925.

⁶⁸ Frances Perkins, Columbia Oral History Collection, 71–74.

⁶⁹ Owen J. Roberts, The Court and the Constitution: The Oliver Wendell Holmes Lectures (Port Washington, N.Y., 1951, 1969), 61.

⁷⁰Literary Digest, October 31, 1936, 5–6.

⁷¹ Willis Van Devanter to Mrs. John W. Lacey, November 2, 1936, Volume 52, Van Devanter Papers, Library of Congress; James C. McReynolds to Dr. Robert P. McReynolds, July 4, 1936, McReynolds Papers, University of Virginia, Charlottesville, Va.

⁷²New York Evening Post, January 8, 1936, clipping, PPS Box 70, Herbert Hoover Papers, West Branch, Iowa; Rodney Dutcher, "Behind the Scenes in Washington," Brownsville (Tex.) Herald, May 27, 1936.

⁷³NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).

⁷⁴ Paul Mallon, "Purely Confidential," Detroit News, April 14, 1937.

⁷⁵ Charles Beard to Irving Brant, April 13, 1937, Box 2, Brant Papers, Library of Congress.

⁷⁶ "Congratulations, Mr. President," Philadelphia Record, April 13, 1937, clipping, Box 357, W. Jett Lauck Papers, University of Virginia, Charlottesville, Va. See also J. F. T. O'Connor MS. Diary, April 12, 1937, O'Connor Papers, Bancroft Library, University of California, Berkeley; M. M. Logan to Samuel Wilson, April 13, 1937, Wilson Papers, University of Kentucky, Lexington.

⁷⁷ Gerald Garvey, "Edward S. Corwin in the Campaign of History: The Struggle for National Power in the 1930's," George Washington Law Review 34 (1965): 219, 230.

⁷⁸ Richard C. Cortner, The Wagner Act Cases (Knoxville, Tenn., 1964), 188. "President Roosevelt's New Deal," Cass Sunstein has observed, "marked a fundamental change in American legal and political culture." Cass R. Sunstein, The Partial Constitution (Cambridge, Mass., 1993), 349.

⁷⁹United States v. Lopez, 514 U.S. 549 (1995) at 604, 614.

⁸⁰ Id. at 589.

⁸¹ 120 S. Ct. 1740 (2000) at 1767.

⁸² Ibid.

⁸³NLRB v. Friedman-Harry Marks Clothing Co., 301 U.S. 58 (1957).

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