University of Michigan Law School University of Michigan Law School Scholarship Repository Articles Faculty Scholarship 1994 Switching Time and Other Tought Experiments: Te Hughes Court and Constitutional Transformation Richard D. Friedman University of Michigan Law School, University of Pennsylvania Law Review FOUNDED 1852 Formerly American Law Register VOL. 142 JUNE 1994 No. 6 ARTICLES SWITCHING TIME AND OTHER THOUGHT EXPERIMENTS: THE HUGHES COURT AND CONSTITUTIONAL TRANSFORMATION RICHARD D. FRIEDMANt TABLE OF CONTENTS INTRODUCTION ... ............................. 1893 I. PRELUDE TO CRISIS .......................... 1898 A. The New Court ........................... 1898 B. The 1930 Term ............................ 1903 1. Regulation ............................. 1904 2. Taxation . ............................. 1905 3. Civil Liberties . ......................... 1907 t Professor of Law, University of Michigan. Many thanks to Kevin Harlan, Ed Keidan, and Vivian James for invaluable research assistance, and to Michael Ariens, Barry Cushman, Eben Moglen, Bill Leuchtenburg, and Ed Purcell for enormously helpful conversation, comments, and suggestions. [Professor Friedman has been designated by the Permanent Committee for the Oliver Wendell Holmes Devise to write the volume on the Hughes Court in the Devise's History of the Supreme Court of the United States. Eds.] (1891) HeinOnline -- 142 U. Pa. L. Rev. 1891 1993-1994 1892 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 142: 1891 C. Retrenchment? ............................ 1909 D. Thunderbolts ............................. 1914 1. Blaisdell .............................. 1914 2. Nebbia ............................... 1919 3. The Gold Clause Cases ...................... 1923 4. Rumination ........................... 1927 E. The ConfrontationB egins ...................... 1927 F. Summary and a Look Ahead .................... 1933 II. SWITCHES, REAL OR APPARENT ................... 1935 A. The Minimum Wage Cases ..................... 1935 1. The Puzzle .............. ............ 1935 2. Hughes ............................ 1936 3. Roberts ............................ 1939 a. In Tipaldo ........................ 1940 b. Between Tipaldo and West Coast Hotel .... 1947 c. In West Coast Hotel ................... 1949 B. The "General Welfare" Cases .................... 1953 1. The Puzzle .......................... 1953 2. Contradiction Denied .................... 1955 C. The Commerce Clause Cases ................... 1960 1. The Puzzle .......................... 1960 2. Hughes ............................ 1962 3. Roberts ............................ 1967 III. CONSOLIDATION ............................ 1974 CONCLUSION ................................... 1982 THOUGHT EXPERIMENT I: SWITCHING THE TIME OF THE COURT-PACKING BATTLE For the most part, the Supreme Court's decisions in 1932 and 1933 disappointed liberals. The two swingJustices, ChiefJustice Charles Evans Hughes and Justice Owen J. Roberts, seemed to have sided more with the Court's four conservatives than with its three liberals. Between early 1934 and early 1935, however, the Court issued three thunderbolt decisions, all by five-to-four votes on the liberal side and with either Hughes or Roberts writing for the majority over the dissent of the conservative foursome: in January 1934, Home Building & Loan Ass'n v. Blaisdell' severely limited the extent to which the Contracts Clause of Article I, '290 U.S. 398 (1934) (holding that a state statute extending the redemption period for mortgaged property in limited circumstances did not violate the Contracts Clause). For a discussion of Blaisdell, see infra part I.D.1. HeinOnline -- 142 U. Pa. L. Rev. 1892 1993-1994 1994] SWITCHING TIME: THE HUGHES COURT 1893 Section 10 of the Constitution forbids state debtor protection 2 legislation; in March, Nebbia v. New York stated in expansive terms the power of the state to regulate prices and in narrow terms the restraint imposed on the states by substantive due process; and in February 1935, the Gold Clause Cases refused to allow preexisting contractual provisions to obstruct the New Deal's daring changes in monetary policy.$ Suppose that shortly before the Blaisdell decision-rather than in 1937-President Franklin Roosevelt unveiled a plan to pack the Court with six additional members, and that the debate over the plan lasted until after the Gold Clause decisions. Would it not have been obvious that the votes of Hughes and Roberts in these three cases resulted from the political pressure created by the plan and, with respect to the Gold Clause Cases, by the thumping Democratic victory in the 1934 elections? INTRODUCTION 4 If, as Lincoln said, "we cannot escape history," then we certainly cannot escape the 1930s. Despite occasional expressions 5 of impatience, scholars of the American Constitution continue to be intrigued by, and to study with great energy, the events that culminated in the so-called "switch in time" of 1937.6 And with 2 291 U.S. 502 (1934) (holding constitutional a regulation fixing milk prices). For a discussion of Nebbia, see infra part I.D.2. ' The Gold Clause Cases comprise a set of four decisions: Norman v. Baltimore & O.R.R. and United States v. Bankers Trust Co., 294 U.S. 240 (1935); Nortz v. United States, 294 U.S. 317 (1935); and Perry v. United States, 294 U.S. 330 (1935). The Gold Clause Cases are discussed infra part I.D.3. " Abraham Lincoln, Annual Message to Congress (Dec. 1, 1862), in ABRAHAM LINCOLN: HIS SPEECHES AND WRMNGS 666, 688 (Roy P. Baster ed., 1946) (emphasis omitted). I am twisting somewhat. Lincoln was looking prospectively: "We of this Congress and this administration, will be remembered in spite of ourselves." Id. I am looking retrospectively. ' See e.g.,John H. Schlegel, The Line Between History and Casenote, 22 LAw & SOC'Y REV. 969, 975 (1988) ("[T]he print spilled on Justice Roberts's 'switch in time,' a matter of great import to frankfurterians, has... needlessly polluted our rivers and streams."). 6 See, e.g., 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS 48-50 (1991) (comparing "switch[es] in time" occurring as conservative responses to Reconstruction Republicans with those occurring in reaction to New Deal Democrats); Michael Ariens, A Thrice-Told Tale, or Felix the Cat, 107 HARv. L. REV. 620, 649-51 (1994) (arguing, inter alia, that Roberts's account of his conduct in the' 1937 cases is not persuasive); Barry Cushman, RethinkingtheN ew Deal Court, 80 VA. L. REV. 201,204-08 (1994) [hereinafter Cushman, New Deal Court] (arguing against the view that constitutional developments of the 1930s should be regarded as a response to political pressures, and emphasizing the legal-intellectual dimensions of the HeinOnline -- 142 U. Pa. L. Rev. 1893 1993-1994 1894 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 142:1891 good reason. The climactic events of 1937, including Franklin Roosevelt's attempt to pack the Supreme Court, were part of one of the great constitutional crises in our history. Moreover, the crisis accompanied one of the great transfor- mations in constitutional law, a transformation that is commonly referred to by such terms as the "constitutional revolution of "7 1937. The old constitutionalism that prevailed when Charles Evans Hughes became Chief Justice in 1930 and that underlay the crisis provides an abiding reminder of the darker side of an activist Supreme Court-the danger that the Court, by invoking its view of the Constitution to invalidate legislation, might thwart the funda- mental processes of democracy. By the time Hughes retired in 1941, the framework of constitutional law that has prevailed in the last half century had emerged. The famous footnote four of Justice Stone's 1938 opinion in United States v. Carolene Products Co.' was one of the first attempts to articulate that framework, which is phenomenon); Barry Cushman, A Stream of Legal Consciousness: The Current of Commerce Doctrine From Swift to Jones & Laughlin, 61 FORDHAM L. REV. 105, 106 (1992) [hereinafter Cushman, Stream of Legal Consciousness] (discussing the idea that the shift in Commerce Clause jurisprudence occurred principally in 1941-42, not 1937). 7 Morton J. Horwitz provides a significant example: [T]he only constitutional revolution prior to the Warren Court was the New Deal Revolution of 1937, which fundamentally altered the relationship between the federal government and the states and between the government and the economy. Prior to 1937, there had been great continuity in American constitutional history. The first sharp break occurred in 1937 with the New Deal Court. MortonJ. Horwitz, The Warren Court and the Pursuito fJustice, 50 WASH. & LEE L. REV. 5, 5 (1993); see also EDWARD S. CORWIN, THE CONSTrrtiON AND WHAT IT MEANS TODAY 223-24 (1978) (discussing the "Constitutional Revolution of 1937"); ROBERT G. MCCLOSKEY, THE AMERICAN SUPREME COURT 174-79 (1960) (discussing the "1937 judicial revolution"); J.M. Balkin, The Footnote, 83 Nw. U. L. REv. 275, 296 (1989) (same); William W.Justice, The Two Faces ofJudicialA ctivism 61 CEO. WASH. L. REV. 1, 5 (1992) ("Posterity, for the most part, has endorsed the constitutional revolution of 1937... ."); Michael E. Smith, The Special Place of Religion in the Constitution, 1983 SuP. CT. REV. 83, 86 (noting that "[r]eligion had no special constitutional place until after the constitutional revolution of 1937"). But see David E. Engdahl, What's In a Name? The Constitutionalityo f Multiple "Supreme" Courts, 66 IND. LJ. 457, 510 n.250 (1991) ("I was amused by the title of a 1987 AALS seminar panel, 'Was the Revolution of 1937 a Mistake?' I should rather have asked, was the 'revolution' of 1937 a fact? It was not, as the 'revolution' came slowly by slips of reason over the years that followed."). 8 304 US. 144, 152 n.4 (1938) (suggesting, notwithstanding a general presumption of constitutionality of legislation, "more exactingjudicial scrutiny" of certain types of legislation, such as that restricting political processes or reflecting "prejudice against discrete and insular minorities"). HeinOnline -- 142 U. Pa. L. Rev. 1894 1993-1994 1994] SWITCHING TIME: THE HUGHES COURT 1895 tolerant of economic and social regulation yet is generally more protective than the old constitutionalism of the less powerful segments of society. Although the issues raised by the constitutional history of the 1930s are vast, one narrow riddle lies at their heart and is the focus of this Article: Why did the Supreme Court achieve the con- stitutional transformation, and so quickly? My conclusions are as follows. The predominant factor in explaining the constitutional transformation is changes in the Court's personnel. Although the "Nine Old Men" of the mid-1930s are often remembered as the 9 paradigm of a conservative Court, the Court of the 1920s was actually far more conservative. In Part I of this Article, I will argue that the Court was made substantially more liberal by Herbert Hoover's two appointments of 1930-Hughes to replace William Howard Taft and Roberts to replace Edward T. Sanford. These appointments created the ideological alignment that prevailed until after the Court-packing crisis of 1937. Under that alignment, I contend in Part I, the Court achieved significant aspects of the constitutional transformation well before the crisis. This Part will pay more attention than do most accounts to decisions of the early 1930s. After the crisis had passed, a steady stream of Roosevelt appointees made the Court far more liberal, and thus helped achieve some significant aspects of the transformation that, I argue in Part III, would not have occurred with the pre-1937 Court. Personnel changes cannot, however, account for the great decisions of the spring of 1937, which played a critical role in defeating Roosevelt's attempt to pack the Court. At the height of the Court-packing battle, the Court, by identical five-to-four votes, upheld a state minimum wage law, the National Labor Relations Act (NLRA), and the Social Security Act. Each of these decisions pointed hard in the opposite direction from-and, with respect to the first two, seemed in conflict with-decisions made by the Court, with the same membership, only the previous year. The critical 9 See e.g., Douglas Laycock, ConstitutionalT heoty Matters, 65 TEx. L. REV. 767,770 (1987) (comparing constitutional theory of the civil libertarians of the Warren Court • with that of the Nine Old Men); Barbara B. Woodhouse, "Who Owns the Child?": Meyer and Pierce and the Child as Property, 33 WM. & MARY L. REV. 995, 1107 (1992) (saying that the Court's invalidation of Roosevelt's programs turned public opinion "against the 'Nine Old Men' and their conservative vision of the Constitution"). HeinOnline -- 142 U. Pa. L. Rev. 1895 1993-1994 1896 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 142: 1891 votes in creating the shift belonged to the two Justices in the middle-Roberts and, to a lesser extent, Hughes. In Part II, therefore, I focus on the great decisions of 1936 and 1937, and in particular on the roles of Roberts and Hughes. To what extent was their conduct in 1936 and 1937 substantively consistent? To the extent it was not, did they have a conscientious, albeit well-timed, change of view? If they did, to what extent was it affected by the political environment? Or did they simply alter their votes in a manipulative response to political pressure? Or does some other explanation account for their conduct? I believe I can demonstrate, to quite a high degree of confi- dence, that Hughes's votes were not affected by political pressure. Hughes, I believe, voted in 1937 as he would have absent the Court- packing battle, Roosevelt's landslide reelection victory of November 1936, or public hostility to the Court's earlier conservative deci- sions. As to Roberts, one cannot be as confident. His 1937 votes in the minimum wage and Social Security cases were consistent with, though not absolutely preordained by, views he had expressed before. His votes in the NLRA cases of 1937 are hard to square 0 logically with his vote the prior year in Carterv . CarterC oal Co.," but Roberts's views on the scope of national powers seem to have been in transition even before the Court-packing crisis. The evidence does not support the view that Roberts's votes were affected by the Court-packing battle itself. The changing political environment may, however, have had an impact on Roberts's willingness to confront the minimum wage issue and on his substantive views on the scope of congressional power. It is difficult to be sure, however; Roberts was sometimes motivated by reasoning of his own, and his mercurial nature may be a sufficient explanation of his conduct. The point probably transcends Roberts. Even after trying to understand a judge's conduct across cases as best we can, some judicial movement will likely appear to us to be a random walk. To some extent, this may be because judges are affected by factors of the "what the judge ate for breakfast" type that rationally should 1 have nothing to do with decision-making. But to some extent, if '0 298 U.S. 238 (1936); see infra part II.C.2 (discussing Roberts's conduct in Carter Coal and the NLRA cases). " The origins of this aphorism are uncertain, but it seems to have emerged from the era of the Hughes Court. SeeJoseph L. Rauh,Jr., Lawyers and the Legislation of the Early New Deal, 96 HARv. L. REV. 947, 950 (1983) (attributing similar remarks to HeinOnline -- 142 U. Pa. L. Rev. 1896 1993-1994 1994] SWITCHING TIME: THE HUGHES COURT 1897 the judge's mind is at all complex, his jurisprudential framework has aspects that are difficult to detect from the outside; the judge may be acting perfectly rationally within that framework even though we do not understand it and cannot explain it. The consequence of this argument may appear ironic: if we should expect a certain amount of (apparently) random behavior as a matter of course, then we need not resort in the first instance to a political explanation for such behavior. One other factor, intangible and inestimable, must be consid- ered in accounting for the constitutional transformation of the 1930s: the passage of time, with the accompanying accumulation of cases. The Court expanded the perimeters of congressional power over commerce step by step. Even liberal Justices took a far more cautious view of that power in 1935 than they did in 1941. If the 1941 Court saw further, that might have been because it was standing on the shoulders of decisions made in 1937 and inter- 12 vening years. In short, the picture I will present in this Article is of a less sudden, discontinuous shift, and one less affected by immediate political factors, than may be connoted by the phrase "constitutional revolution of 1937." Some liberal outcomes were possible even in the 1920s, became far more probable after 1930, and virtually inevitable by 1941;'" other liberal outcomes that could scarcely be Thomas Reed Powell in his constitutional law classes of the era); Charles M. Yablon, Justifying the Judge's Hunch: An Essay on Discretion, 41 HASTINGS LJ. 231, 236 & n.16 (1990) (searching for origins of the expression and emphasizing its reductionist use by opponents of the Legal Realists). Remarkably, when Merlo Pusey asked Roberts himself to account for his conduct in the minimum wage cases, Roberts's "initial, semifacetious reply," as Pusey characterized it, was: "Who knows what causes ajudge to decide as he does? Maybe the breakfast he had has something to do with it." MerloJ. PuseyJsticeR oberts' 1937 Turnaround, 1983 Y.B. Sup. CT. HIST. Soc'y 102, 106. 2 1 See generally ROBERT K. MERTON, ON THE SHOULDERS OF GIANTS (1965) (tracing the history of the celebrated remark attributed to Newton: "IfI have seen farther, it is by standing on the shoulders of giants."). This is the pattern of the cases involving the constitutionality of price regulation. For example, German Alliance Ins. Co. v. Lewis, 233 U.S. 389 (1914), a price regulation case decided in favor of the state, was closely confined, but not overruled, by Tyson & Brother v. Banton, 273 U.S. 418, 434 (1927). See infra note 40 (discussing German Alliance and Tyson &Brother). Shortly after Hughes and Roberts joined the Court, O'Gorman & Young, Inc. v. Hartford Fire Ins. Co., 282 U.S. 251 (1931), discussed infra text accompanying notes 39-44, expanded the pricing power further along the German Alliance line, and Nebbia v. New York, discussed infra part I.D.2, expanded that power much further yet. Both O'Gormana nd Nebbia were five-to- four decisions. Shortly before Hughes left the Court, Olsen v. Nebraska, 313 U.S. HeinOnline -- 142 U. Pa. L. Rev. 1897 1993-1994 1898 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 142: 1891 1 4 imagined in 1930 became achievable by the early 1940s. The shift may have been incremental, a repeated altering of probabili- ties, but it was both rapid and momentous. I. PRELUDE TO CRISIS A. The New Court In the spring of 1930, Felix Frankfurter summarized the prior decade of constitutional adjudication: Since 1920, the Court has invalidated more legislation than in fifty years preceding. Views that were antiquated twenty-five years ago have been resurrected in decisions nullifying minimum-wage laws 5 for women in industry, a standard-weight-bread law to protect buyers from short weights and honest bakers from unfair competi- 16 tion, a law fixing the resale price of theater tickets by ticket scalpers in New York,' laws controlling exploitation of the 1° unemployed by employment agencies 1 and many tax laws. ... 236 (1941), discussed infra notes 415,421, relied on Nebbia in unanimously reversing one of the restrictive Taft era decisions on price regulation. I will not try to define "liberal" for purposes of this Article, other than to say that if an outcome seems in accord with the outlook of CaroleneP roducts and its footnote four-or if it is favored by Brandeis, Stone or Cardozo, and opposed by McReynolds-it is liberal. ' I have in mind particularly the results in United States v. Darby, 312 U.S. 100 (1941), discussed infra text accompanying notes 384-88, 394, 423, 433, 444-46, and Wickard v. Filburn, 317 U.S. 111 (1942), discussed infra text accompanying notes 395, 445-46. 's See Adkins v. Children's Hospital, 261 U.S. 525, 562 (1923) (holding such a statute to be an unconstitutional interference with liberty of contract). 16S ee Jay Burns Baking Co. v. Bryan, 264 U.S. 504, 517 (1924) (holding such a statute to violate the Fourteenth Amendment because it was neither necessary nor effective in protecting buyers against fraud by short weights). 17 See Tyson & Brother v. Banton, 273 U.S. 418, 429 (1927) (holding th at such a law contravened the Fourteenth Amendment because entertainments were not "clothed with a public interest," notwithstanding that an admission fee was charged). " See Ribnik v. McBride, 277 U.S. 350, 357 (1928) (holding unconstitutional statutory regulation of an employment agency's fees). '9 See, e.g., Farmers Loan & Trust Co. v. Minnesota, 280 U.S. 204, 210 (1930) (ruling that a state tax on a testamentary transfer by a nondomiciliary ofbonds issued by the state and its municipalities, but not kept within the state'sjurisdiction, violated the Fourteenth Amendment); New Jersey Bell Tel. Co. v. State Bd. of Taxes & Assessments, 280 U.S. 338, 349 (1930) (holding violative of Commerce Clause a tax deemed to be in part on gross receipts from interstate commerce); Safe Deposit & Trust Co. v. Virginia, 280 U.S. 83, 93 (1929) (holding that when a Virginian domiciliary transferred securities in revocable trust to a bank in Maryland where they were held for the benefit of his minor sons, also Virginian domiciliaries, the securities were beyond thejurisdiction of Virginia and could not be taxed by it consistently with the Fourteenth Amendment); infra note 57 (discussing Quaker City Cab Co. v. HeinOnline -- 142 U. Pa. L. Rev. 1898 1993-1994 1904] SWITCHING TIME: THE HUGHES COURT 1899 Merely as a matter of arithmetic, this is an impressive mortality 20 rate. Even as Frankfurter wrote, however, the Court was undergoing a great change. One involved the departure of the Chief Justice who had presided over this carnage since 1921, William Howard Taft. Although in his first years on the Court Taft showed some signs of the progressivism that had marked his early political 21 career, by 1929 he was not only very conservative but, it appears, somewhat paranoid. Although aware of his illness and declining powers, he was determined to "stay on the Court in order to 22 prevent the Bolsheviki from getting control." At times he expressed more hope: "We have a dissenting minority of three in 2 the Court. I think we can hold our six to steady the Court." 1 The difficulty, though, was that Taft feared the man in the White House and believed new appointments would more likely strengthen the progressive dissenters than the majority: "The truth is ... that Hoover is a Progressive just as Stone is, and just as Brandeis is and just as Holmes is.... My feeling with respect to the Court is that if a number of us die, Hoover would put in some rather extreme 24 destroyers of the Constitution." And so it was essential that the members of the prevailing bloc remain on the Court as long as possible. In September 1929, he wrote Justice Pierce Butler: With Van and Mac and Sutherland and you and Sanford, there will be five to steady the boat, and while the appointment of Stone to be Chief Justice would give a great advantage to the minority, there would be a good deal of difficulty in working through reversals of present positions, even if I either had to retire or were 25 gathered to my fathers, so that we must not give up at once. 2 6 On February 3, 1930, near death, Taft did have to retire. Pennsylvania, 277 U.S. 389 (1928)). 20 ALPHEUS T. MASON, WILLIAM HOWARD TAFT: CHIEF JUSTICE 292-93 (1965) (quoting Felix Frankfurter, The United States Supreme Court Molding the Constitution, CURRENT HIST., May 1930, at 239) (internal quotation marks omitted) (footnotes added). 21 See, for example, his dissent in Adkins v. Children's Hospital, 261 U.S. 525,562 (1923). 22 2 HENRY F. PRINGLE, THE LIFE AND TIMES OF WILLIAM HOWARD TAFT 967 (1939) (quoting letter from Taft). ' MASON, supra note 20, at 294 (quoting letter from Taft). 214I d. at 295. 25 Id. at 296-97. 2 ' Actually, to be perfectly accurate, he had to resign. The difference is significant: not until 1937 wereJustices given the privilege of retiring and retaining HeinOnline -- 142 U. Pa. L. Rev. 1899 1993-1994