A Revolution Runs Wild.- Mr. Justice Roberts Last Four Years on the Supreme Court *

Charles A. Leonard

The Roosevelt Supreme Court is usually dated from February 1940 at which time there were a majority of the Justices on the Court who had been appointed by President Franklin Delano Roosevelt. It was, however, at the beginning of the 1941 term, when Owen Josephus Roberts remained the only Justice who had not been appointed by F. D. R. that we see a tribunal on which the New Deal philosophy was firmly entrenched.[1] The expected unanimity of a Roosevelt Court was missing, however, and Harlan Fiske Stone, who presided as "Chief" from 1941 to 1946, described the Justices during that period as "wild horses."[2]

Charles Evans Hughes had submitted his resignation as Chief Justice on the last day of the 1944) term to become effective on July 1, 1941. He had not been ill, in fact, he was the first Chief Justice since John Jay to retire in good health,[3] but as Hughes later explained, "I realized that the work was too heavy for me at my age, as it was increasingly difficult to maintain the necessary number of hours of sustained effort. I had criticized judges for trying to hang on after they were unable to bring full vigor to their task. As I felt that I could not keep the pace that I had set for myself as Chief Justice, I decided that the time had come to follow my own advice."[4]

It is believed that Roosevelt's first choice as Hughes' successor was Attorney General Robert H. Jackson, but that he was talked out of that appointment by the retiring Chief Justice and Justice Felix Frankfurter. They urged, in light of the impending war emergency, that national unity and a sense of continuity with the pre-New Deal era were needed.[5] Associate Justice Harlan F. Stone was suggested as the person who would be the best able to fulfill these demands, and in addition, his voting record during the early New Deal period made him acceptable to the President. Stone was elevated to the center chair at the beginning of the 1941 term and was only the second sitting Justice in Supreme Court history to be so designated.[6]

Hughes and Stone were as different as could be imagined in their conduct of the Court's business. As Walter Murphy notes,

[T]he senior Justices had come to expect the Chief to act both as a task and a social leader. But Stone did not play either role, at least not in a fashion comparable to that of either of his immediate predecessors. Since he had felt frustrated by Hughes' methods, the new Chief preferred not to cut off discussion–indeed, he joined in angry wrangling with his associates, something which Hughes considered beneath his station. Long acrimonious harangues which often stretched from Saturday until Wednesday, marked the Stone conferences.[7]

Frankfurter supports Murphy's description when relating a conversation at a social affair which occurred about a year after Roberts' departure from the Court. "Roberts and I said nothing about Stone's ineffectiveness, because of Roberts' warning to me that [Judge D. Lawrence] Groner is a great admirer of Stone, but our very silence about Stone's quality as Chief Justice furnished an obvious contrast to our enthusiasm about Hughes."[8]

A suspicion is planted that the new Chief Justice's inability to control the conference in an orderly fashion contributed to the creation of the unbridgeable conflicts that grew among the New Deal Justices during his tenure. Roberts certainly believed it to be true when, on one occasion after a long wrangling conference in 1943 which left him dispirited, he said to Frankfurter, "Of course, one difficulty is that the present Chief is not strong at the helm–you were on the Court long enough to see with what mastery Hughes presided over our conferences."[10]

After a drought of appointment opportunity during his first term, President Roosevelt appointed seven Justices in rapid succession after 1936. Hugo Black replaced Willis VanDevanter in 1937; Stanley F. Reed replaced George Sutherland in 1938; Felix Frankfurter replaced Benjamin Cardozo in 1939; William Douglas took Louis Brandeis' seat, also in 1939; and Frank Murphy that of Pierce Butler in 1940. Along with Chief Justice Stone, James F. Byrnes, replacing James McReynolds, and Robert Jackson, taking Stone's old seat as associate, occupied their places on the Court at the beginning of the 1941 term. Between that date and Roberts' resignation on July 31, 1945, there was only one change in the personnel of the Court. When Justice Byrnes resigned in 1942 to become Director of Economic Stabilization, Wiley B. Rutledge was appointed in his place, about whom Samuel Knoefsky makes an interesting point, "of the seven Associate Justices serving by the appointment of Mr. Roosevelt, only Mr. Rutledge came to the bench with the kind of previous judicial experience which could be considered as preparation for service on the high court."[11]

The changes in personnel during the four years created a Court comprised of two Republicans, Stone and Roberts, and of seven Democrats, who had made their way to the bench, in the opinion of Stone's biographer, through faithful and unremitting service to the New Deal.[12] But, Alpheus Mason continues, there was "no basic core of philosophy or of legal doctrine . . . around which a solid majority could be rallied. It seemed certain at least that a bare majority–Stone, Roberts, Reed, Frankfurter, and Byrnes–would not be led astray by the visions of the social theorists."[13]

The new Chief Justice's job was further complicated by the fact that the services of Justice Roberts were to be lost to the Court from December 18, 1941 to January 23, 1942. He had accepted the President's invitation to chair the investigation into the attack on Pearl Harbor.[14] Evidently, Roberts had not profited from his earlier unpleasant excursion into extra-judicial duties as the umpire on the German-American Mixed Claims Commission from March 1932 to December, 1933.[15] His rulings regarding the liability of the German government for acts of sabotage by its agents during World War I had pleased neither of the participating nations nor did his efforts in the Pearl Harbor matter meet with any more success. With hindsight in 1948, he noted, "I accepted, at the hands of two Presidents, commissions to do work not strictly of a judicial nature. I have every reason to regret that I ever did so. I do not think it was good for my position as a Justice, nor do I think it was a good thing for the Court."[16] The United States Reports from January 5th to February 11th indicate that, "Mr. Justice Roberts did not participate," and there were several similar entries over the following month or so, indicating the absence of the Justice's vote.

The Chief Justice was annoyed at Roberts' absence as he wrote to his sons on January 23, 1942, "Roberts has returned from Hawaii but I think he is still busy preparing his report, I am hoping we can get him back on the job soon."[17]

As noted earlier Chief Justice Stone saw the members of his Court as a group of "wild horses"; it is clear that these horses soon separated into two herds. Generally, Justices Black, Douglas, and Murphy frequently joined by Rutledge, formed one group, and Frankfurter, Jackson, and Roberts formed another, with the Chief Justice and, especially, Stanley Reed wandering back and forth between both groups. A change had clearly taken place in Roberts' relationship with the Court. When he came to the high bench in 1930 he stood at the center and along with Chief Justice Hughes frequently determined the direction of the Court, "without much relish on his part,"[18] it might be added. One commentator even goes so far as to refer to the first six years of Hughes' Chief Justiceship as "the reign of Roberts."[19] After the "switch" in 1937 and especially after the resignation of Sutherland in 1938 Roberts' dominance declined though he continued to vote consistently with the majority until the end of the 1940 term.[20] From '41 to '45 Roberts, moved to the right fringe of the Court, or it moved to his left, depending on one's perspective. According to Percival Jackson this "left Roberts to be himself"[21] and where "he could still be looked to as 'the great postulator against change." Yet he did not represent, "a rallying point for intellectual counter–insurgency, states William Swindler, "for he had 'abandoned most of his former restrictive views of the constitutional scope of the national powers'."[22]

What had happened, then, to that Supreme Court which F. D. R. had hoped would be in tune with the other branches of the federal government? Even before Roosevelt's death in April, 1945, the Court had split into two bitterly contesting camps with Justices Black and Frankfurter as leaders of the two groups: "Black, the legislative crusader, zealous to give the expressions of Congress the broadest judicial construction, and Frankfurter, the academician, demanding that Congress rather than the Court determine how broad the effect of its own acts should be. Both were committed to an affirmative role in the regulation of modern economic processes,[23] or as Wallace Mendelson concisely states, "Mr. Justice Black is an idealist ….Mr. Justice Frankfurter is a pragmatist."[24] The division was aggravated because both men claimed Justice Oliver Wendell Holmes, Jr. as their model and both believed in the absolute correctness of their position.[25]

The inability of Chief Justice Stone to control the conference, as noted in the beginning of this study, led to the deepening of the conflicts, and the effect on Roberts was that he "was driven back toward his old convictions by the vehemence of Black's judicial radicalism, while the subtleties of Frankfurter's argumentation did not equip [Roberts] to deal on equal terms in the intellectual melee of Stone's Court."[26]

In analyzing the two hundred forty-nine cases between 1941 and 1945 we find that Justice Owen Roberts supported the federal economic power in its legislative or executive exercise in seventy-eight cases or forty-one (41) percent of the time, while he voted against the government or its agents on one hundred thirteen occasions. Clearly, this demonstrates that he had returned to his pre-1937 attitude toward governmental activity in the economic sphere. In arriving at this posture he wrote thirty-two opinions for the majority and either wrote a dissenting opinion, joined in the dissent of others, or issued a simple statement of dissent in seventy cases, or thirty-seven (37) percent of the time. (See charts provided at the end of this article.)

Summarizing, during the same period, Roberts voted to uphold state power in the economic sphere thirty-nine times and to void on nineteen occasions, or to state it another way to support government sixty-nine (69) percent of the time, and against thirty-one (31) percent. He wrote five opinions for the Court, two dissents, joined in ten others, and issued four simple statements of dissent.

Totaling his record in the matter of governmental activity in the economic area, he supported the federal or state authority in one hundred and seven instances, or forty-seven (47) percent and opposed the government in one hundred thirty-two, fifty-three (53) percent. He wrote thirty-seven opinions for the majority, penned twenty-nine dissents, joined in thirty-six others, and simply indicated his dissent in thirty-one instances. Between 1941 and 1945, then, Mr. Justice Roberts disagreed with the majority in thirty-nine (39) percent of the cases in the economic sphere.

The divisions existing on the Court spilled out onto the pages of the United States Reports. During the 1940 term, Hughes' last, twenty-eight (28) percent of the opinions were non-unanimous; during Stone's first, the 1941 term, they rose to thirty-six (36) percent; forty-four (44) percent in 1942; fifty-eight (58) percent in 1943 and 1944. The total number of dissenting votes cast similarly reflects the increasing conflict, in 1940 the year before Stone took over as "chief" there were one hundred seventeen (117); during the 1941 term, one hundred sixty (160); 1942, one hundred seventh-six (176); 1943, one hundred ninety-four (194); and finally, in the 1944 term, two hundred forty-five (245) were recorded.[27] Roberts was the chief dissenter, and as Swindler notes, "his outburst of criticism in the winter of 1944 had grown into a torrent of objections that were recorded in fifty-three dissents in the term ending in June, l945."[28]

The depth of the bitterness can be seen in the issue of judicial disqualification in cases where there was a possible conflict of interest. It was first raised in conference by Justice Roberts, who questioned the propriety of the Chief Justice sitting in a case in which he might have some interest, because of the participation of his former law partners. Stone became so angered that he had one of his law clerks prepare a list of cases in which Roberts had sat even though his former law partners or clients were involved.[29] Indeed, Roberts was not clean; he had participated in a U. S. v. Butler,[30] the Agricultural Adjustment Act case in 1936, in which George Wharton Pepper, his old law school teacher and friend, was counsel for appellee. Not only did Roberts participate but he wrote the opinion in support of his friend's position, and even incorporated some of the language directly from Pepper's written and oral argument.[31] The matter of disqualification exploded at the end of the 1944 term when the Court took up the request for a rehearing of Jewell-Ridge Coal Corp. v. Local 6167 UMWA.[32] The Court had ruled five-to-four in the original decision that portal-to-portal time for miners was included within the work week and therefore was to be compensated under the FLSA. Justice Black's former law partner had acted as counsel for the union, and so the operators were asking for a rehearing with Black disqualifying himself. There was a violent exchange in the conference. The petition was denied on June 18, 1945, but a concurring opinion was filed by Justice Jackson, joined by Frankfurter, which only vaguely cloaked the bitter feelings.[33]

Why did the members of the "liberal" Roosevelt Court fall out? Herman Pritchett suggests three reasons, aside from personal incompatabiity: first, the shortcomings of American liberalism as a social and economic philosophy; second, the liberal tradition which the Court had inherited was a divided one, i.e., judicial self-restraint of Holmes, pragmatist, versus judicial activism of Brandeis, theorist; and, finally, the Roosevelt Court had to effectuate its liberalism under conditions of being in power–unlike Holmes and Brandeis.[34] A fourth reason, it appears to this author, is equally valid; the majority of the Roosevelt Court Justices were as absolute in their view of what a government should or should not do as were the "Four Horsemen" of the pre-1937 .Court, and given the divergent views of Black and Frankfurter this proved disastrous for unity. In 1945, Chief Justice Stone had written to lrving Brant, that, as the old court has written their economic prejudices into law so, "the pendulum has now swung to the other extreme and history is repeating itself, the Court is now in as much danger of becoming a legislative Constitution-making body enacting its own predilections as it was then."[35] Justice Jackson took official note of this in his dissent in Ashcraft v. Tennessee, in which Roberts and Frankfurter joined, "the use of the due process clause to disable the States in the protection of society from crime is as dangerous and delicate a use of federal judicial power as to use it to disable them from social or economic experimentation."[36]

Roberts' dissatisfaction increased during his last four years on the Court. When he resigned in 1945 he wrote to former Chief Justice Hughes, "when you left the Court, the whole picture changed. For me it would never be the same."[37] Roberts was especially unhappy with his brethren over three issues which appeared, again and again, in his dissents: first, the rewriting of statutes by the Court according to the prejudices of the majority, second, the willingness of the majority to review cases which he felt the Court had no business taking, e.g., on the second last decision day in which he participated, Mr. Justice Roberts dissented in an original jurisdiction suit involving the solution of a water consumption dispute involving three states. He delivered his final caveat in this matter in Nebraska v. Wyoming[38]

Without proof of actual damage in the past, or of any threat of substantial damage in the near future, the Court now undertakes to assume jurisdiction over three quasi-sovereign states and to supervise, for all time, their respective use of an interstate stream . . . I doubt if, in such interstate controversies, any state is ntitled to a declaratory judgment from this court., . . . The precedent now made will arise to plague this court not only in this present suit but in others. The future will demonstrate, in my judgment, how wrong it is for this court to attempt to become a continuing umpire or a standing Master . . . In such controversies the judicial power should be firmly exercised on proper occasions, but as firmly withheld unless the circumstances plainly demand the intervention of the court.[39]

But, thirdly, above all else, the Justice abhorred the abandonment of precedent by the majority of the Court. He expressed his concern to Felix Frankfurter, "the way we tear up the law with complete indifference to the precedents or the consequences [leaves me] dispirited."[40] He had publicly stated his views in Mahnich v. Southern SS. Co. in 1944 when he explained "I should say nothing further on [the question of this case] save that the method of reaching the decision seems to me contrary to the right exercise of the judicial function." He warned, further,

The evil resulting from overruling earlier considered decisions must be

evident . . . [T]he law becomes not a chart to govern conduct but a

game of chance; instead of settling rights it unsettles them. . . .

Defendents will not know whether to litigate or to settle for they have

no assurance that a declared rule will be followed. . . . [A]nd the courts

below [are left] on an uncharted sea of doubt and difficulty without

any confidence that what was said yesterday will hold good

tomorrow.[41]

In a more familiar case, Smith v. Allwright,[42] the Court overruled, eight-to-one, Grovey v. Townsend,[43] which had dealt with the voting rights of blacks. Roberts had written the opinion in Grovey so there is a bit of rancor in his words,

This tendency [to overrule precedents], it seems to me, indicates an intolerance for what those who have composed this court in the past have conscientiously and deliberately concluded, and involves an assumption that knowledge and wisdom reside in us which was denied to our predecessors. The reason for my concern is that the instant decision, overruling that announced about nine years ago, tends to bring adjudications of this tribunal into the same class as a restricted railroad ticket, good for this day and train only. I have no assurance, in view of current decisions, that the opinion announced today may not be shortly repudiated and overruled by justices who deem they have new light on the subject. . . .It is regrettable that in an era marked by doubt and confusion, . . . this court, which has been looked to as exhibiting consistency in adjudication, and a steadfastness which would hold the balance even in the face of temporary ebbs and flows of opinion, should now itself become the breeder of fresh doubt and confusion in the public mind as to the stability of our institutions.[44]

If Owen J. Roberts came to the end of his judicial career unhappy and embittered by the direction which he saw the New Deal Justices leading the Court, his colleagues were equally stung by the attacks upon them for what he considered their injudicious performance. When Roberts resigned–he did not retire, but severed completely his ties with the Court– Justice Hugo Black refused to sign the usual congratulatory letter of farewell, and so none was ever sent.[45] There is merit in William Swindler's comment that, "Roberts in a sense was a whipping boy for both elements on the bench . . . It was Roberts' misfortune to have remained on the bench too long; a retirement with Hughes in 1941 would have ended his career on a note of reasonable accommodation of the new jurisprudential climate."[46]

Professor Maurice Merrill had suggested in 1934 that it was too early to evaluate the constitutional philosophy of Mr. Justice Roberts, but that his "present accomplishments give every assurance that he will rank with the leaders of the Court." However, time has produced "mixed reviews" on Roberts' contribution to American constitutional law; on the other hand, the reviewers have frequently become enmeshed in their own political prejudices. For example, Professor Herman Pritchett, rather snidely, remarked in 1949 that, "Roberts had a curious record. The only liberties he considered worthy of protection being those of evacuated Japanese, indicted Nazis and Nazi sympathizers, and the Associated Press."[48] Interestingly, today that would classify the Justice as a "raving" liberal.

Roberts' own evaluation of himself is noteworthy, "I have no illusions about my judicial career, but one can do only what one can. Who am I to revile the good God that he did not make me a Marshall, a Taney, a Bradley, a Holmes, a Brandeis, or a Cardozo."[49] While one must concur with the Justice that he does not rank with these greats, one must also agree with Dean Erwin Griswold that, "Roberts' important function on the Court was to smooth the process of transition."[50] This, indeed, accounts for the years between 1930 and 1940, but it is Mr. Justice Roberts' last years which defy evaluation. Unless, that is, we see him fulfilling Chief Justice Hughes' definition of a dissenter–one who speaks for "the brooding spirit of the law," or, in the words of present Supreme Court Justice William H. Rehnquist, as one who appeals "to present and future brethren to see the light."[51]

Endnotes

1. While it is true that Stone had been originally appointed by President Calvin Coolidge, his elevation to the Chief Justiceship had been made by Roosevelt.
2. Mason, Harlan Fiske Stone: Pillar of the Law, p. 580.
3. Atkinson, Harlan Fiske Stone: Pillar of the Law, p. 580.
4. Autobiographical Notes of Charles Evans Hughes, p. 324.
5. Swindler, Court and the Constitution in the 20^th Century, pp. 120-121.
6. While Hughes had also served as an Associate Justice (1910-1916) there had been an interval of fourteen years between his first resignation and the appointment by President Herbert Hoover in 1930. Edward D. White was the other associate to be elevated.
7. Murphy, "Marshaling the Court," 29 U. Chi. L. Rev. 644.
8. From The Diaries of Felix Frankfurter, October 19, 1946, p. 275.
9. Murphy, p. 645.
10. Murphy, p. 645.
11. Chief Justice Stone and the Supreme Court, p. 256.
12. Mason, Stone, p. 573.
13. Ibid., p. 576.
14. "Report of the Roberts Commission, Hearings before the Joint Committee on the Investigation of the Pearl Harbor Attack, 79^th Cong. 1^st Sess. 1946.
15. 27 Am J Intl Law 339 (1933); 34 AJIL 154 (1940).
16. Address to a Luncheon of the Bar of the City of New York, December 11, 1948, 35 ABAJ (1949).
17. Mason, Stone, p. 581.
18. Griswold, "Owen J. Roberts as a Judge," 104 UPLR 336 (1955).
19. Percival Jackson, Dissent in the Supreme Court, p. 174.
20. Leonard, A Search for a Judicial Philosophy, p. 174.
21. Jackson, p. 191.
22. Swindler, p. 129.
23. Ibid. p. 123.
24. Mendelson, Justices Black and Frankfurter, p. 13.
25. Pritchett, Roosevelt Court, p. 280.
26. Swindler, p. 134.
27. Pritchett, Roosevelt Court, p. 25. Mason in Stone gives slightly different figures but they are substantially the same, p. 639.
28. Swindler, p. 133.
29. Mason, Stone, p. 641.
30. 298 U.S. 1 (1936).
31. Leonard, p. 51ff.
32. 325 U.S. 161 (1945).
33. 325 U.S. 897 (1945).
34. The Roosevelt Court, pp. 264-67.
35. Mason, Stone, p. 153.
36. 322 U.S. 143 at 174.
37. Griswold, "Owen J. Roberts as a Judge," 104 UPLR 349.
38. 325 U.S. 589 (1945).
39. Ibid. at 657-58.
40. Diaries of Felix Frankfurter, p. 227.
41. 321 U.S. 96 at 105, 112-13 (1944).
42. 321 U.S. 649 (1944).
43. 295 U.S. 45 (1935).
44. 321 U.S. 649 at 666.
45. Mason, Stone, pp. 365-9; Swindler, Court and Constitution in the 20^th Century, p. 134.
46. Swindler, p. 134.
47. "The Constitutional Opinions of Mr. Justice Roberts," 21 Penn. Bar Assn. Quarterly 147 at 149, 153 (1934).
48. The Roosevelt Court, p. 250.
49. Quoted in Frankfurter, "Mr. Justice Roberts," 104 UPLR 312 (1955).
50. "Owen J. Roberts as a Judge," 104 UPLR 347 (1955).
51. "Supreme Court: Past and Present," 59 ABAJ 361 at 363 (1973).