Justice Roberts' 1937 Turnaround

Merlo J. Pusey


Whenever the Supreme Court reverses its view of a vital constitutional issue, speculation is likely to go on endlessly as to the reasons for the change and the circumstances leading to it. That is especially true when the shift is associated with a momentous controversy involving the Court, as was Justice Owen J. Roberts' apparent switch on the validity of state minimum-wage legislation while the Court was under the threat of being packed in 1937. In such cases every scrap of valid information is worthy of preservation.

The frequently misconstrued "switch in time that saved nine" came in the spring of 1937 shortly after President Franklin D. Roosevelt had sent to Congress his bomb-shell asking for authorization to name six additional members of the Supreme Court if the justices then over seventy years of age did not resign. Only six months had elapsed since the Court had struck down New York's minimum-wage law for women in Moreland v. New York ex rel. Tipaldo.[1] By consigning that decision to the ashcan in so short a time the Court certainly appeared to be yielding to pressure. The seeming reversal of its convictions on so vital an issue as the right of the states to control social policy brought a chorus of contemptuous comments.

The Tipaldo case involved the jailing of an employer for failure to pay the minimum wage prescribed by New York law to one of his female employes. Since the Supreme Court had outlawed the District of Columbia minimum-wage law in 1923,[2] the conservatives on the Supreme Court at first tried to avoid a hearing of the New York case by denying a writ of certiorari. But Chief Justice Charles Evans Hughes insisted that the case be heard with the support of Justices Louis D. Brandeis, Harlan F Stone and Benjamin N. Cardozo. Roberts was caught in the middle.

A justice of liberal instincts and of high regard for the judicial process, Roberts felt that the time had come for review of the backward-looking Adkins decision. But that was not what counsel for New York State was asking. Rather, New York solemnly pretended that there was a vital distinction between its law and the outlawed District of Columbia statute. Roberts felt that this was a dishonest argument and that review of the constitutionality of state minimum-wage laws should await a forthright and direct challenge to the Adkins decision which had been so widely criticized. This led him to support the conservatives in the hope that a showdown could be avoided in this inappropriate case.

But that wishful thinking proved to be futile. The so-called "four horsemen" of the Court—Justice Pierce Butler, Willis Van Devanter, George Sutherland and James C. McReynolds— joined in a fierce assault upon the belief that the states have a constitutional right to prescribe minimum wages. Hughes wrote a vehement dissent supported by Stone, Brandeis and Cardozo without directly condemning the Adkins ruling. Stone, Brandeis and Cardozo then joined in a separate dissent assailing Adkins. This caused Butler to expand and stiffen the arguments in the majority opinion, leaving Roberts in a very uncomfortable predicament. At this point, however, he saw no reasonable alternative to leaving his vote on the conservative side.

The announcement of this reactionary outcome produced a furor throughout the land. The country was still in the grip of depression. If the states could not deal with such basic problems as minimum wages for people utterly lacking in power to bargain with exploiting employers, they were gravely frustrated in trying to promote the general welfare: That reactionary decision was the more disconcerting because it coincided with other verdicts sharply curtailing national power. If neither the states nor the federal government could cope with economic emergencies the result could be disastrous. So the Tipaldo decision led to one of the worst drubbings from public opinion that the Court has ever sustained.

Since his vote had provided the slender majority for stubborn reaction in the face of critical emergencies, Roberts undoubtedly suffered acute pangs of conscience. By instinct he was not a dyed-in-the-wool conservative. He had stood with Hughes and the liberal wing of the Court in upholding the Minnesota Mortgage Moratorium Law of 1933[3] and the New York statute fixing the price of milk, and Roberts had written the opinion in the latter case, Nebbia v. New York.[4] His opinions both before and after Tipaldo are indicative of a judicious temperament in regard to constitutional powers. So it is obvious that the months following his reluctant cooperation with the "four horsemen' involved some very acute soul-searching.

In the circumstances an early return of the issue to the Supreme Court seemed inevitable. The State of Washington was soon arguing before the high bench that its minimum-wage law was constitutional and that the tattered Adkins precedent was no longer valid. Justice Roberts took a fresh look at the question of an employer's so-called "freedom of contract" when it came into collision with the right of the state to protect the health, safety, morals and welfare of its people. Arriving at an independent conclusion that he had been wrong to stand with the bitter-enders against this essential use of power for legitimate public purposes, he decided to vote in favor of upholding the Washington law.[5]

It is sometimes assumed that Hughes importuned Roberts to shift his stand to save the Court from numerous threats that were being bruited. But the Chief Justice held to his general policy of not soliciting support from his colleagues and of not discussing judicial issues before the Court outside of the conference, unless one of the justices came to him with a problem. In this instance, Roberts called on Hughes, without any previous consultation, and told him that when the West Coast Hotel case came before the conference he would vote with the liberals. Hughes was so delighted that he almost hugged his colleague.[6]

Shortly before Christmas, 1936, therefore the Court voted to overrule its six-months-old Tipaldo decision and to uphold the Washington minimum-wage law. With Justice Stone ill, however, the vote stood four to four. While that would save the Washington statute because it had been upheld by the highest court in the state, it would leave the Adkins precedent still dangling and the law in a state of confusion. Hughes decided to withhold the case until Stone returned,[7] knowing that this would provide a firm majority behind the right of the states to legislate on social problems within a rationalized, modern concept of "due process of law."

Without any pressure other than that of strong legal arguments and a tidal wave of public opinion, therefore, the Court corrected one of the worst legal blunders of the twentieth century Hughes had been so perturbed by the backward thrust of the Tipaldo decision that he classified it, along with the Dred Scott decision and the income tax cases, among the Court's worst self-inflicted wounds. There was much rejoicing within the liberal wing of the Court, therefore, when a turn-around was achieved within the judicial framework itself.

This euphoria was ironically shattered, however, when the President sent his court-packing venture to Capitol Hill before the decision in the West Coast Hotel case could be handed down. Roberts was so distressed by the proposal to expand the membership of the Court for the obvious purpose of influencing its views that he decided to resign if the bill became law,[8] although its terms would not have affected his personal status on the Court. At that time he was the youngest of the nine justices. Some of the older justices had been eager to retire but failed to do so because Congress had not provided a reasonable retirement system. Hughes, then seventy-four, decided to ride out the storm in the hope of minimizing its impact on the Court. "If they want me to preside over a convention," he said, "I can do it."[9]

Trying to avoid the supposition that the Court was indulging in an immediate response to the court-packing venture, the Chief Justice briefly held up the decision in the West Coast Hotel case. But this merely delayed the inevitable. The outcome was widely interpreted as belly-crawling on the part of Justice Roberts, and the silence of the Court to protect the confidentiality of its conference proceedings contributed to that assumption. The true facts behind the West Coast Hotel decision were not known until publication of Hughes' authorized biography in 1951.

Since the Justices had no knowledge whatever of FD.R. 's plan to pack the Court before he sent his bill to Congress on February 5, 1937, they could not possibly have been influenced by that measure when they decided in the previous December to bury the concept of "freedom of contract" as a bar to state social legislation. What, then, did cause Roberts to shift his stance? I once had an opportunity to put that question to him directly in a confidential interview[10] after he had left the bench, because I was then engaged in writing the Hughes biography Roberts' initial, semifacetious reply was, "Who knows what causes a judge to decide as he does? Maybe the breakfast he had has something to do with it."

Roberts then went on, however, to discuss in considerable detail how unhappy he had been with the Tipaldo case when it came before the Court because of his feeling that it was not a proper peg on which to hang a new pronouncement of the Court on the scope of the police powers of the states. The Justice convinced me that his chief objective at that time had been to avoid making a decision on the vital issue of state minimum-wage legislation against the background of New York's disingenuous arguments. In these circumstances he fell back upon the platform used most frequently by judges—stare decisis.

Of course stare decisis is vital to the basic concept of government by law. It means that principles of law established by judicial decisions as being authoritative will usually be followed in the decision of cases similar to those from which the principles were derived. As Justice Felix Frankfurter often explained, a judge cannot function as a cadi dispensing ad hoc justice under a tree. The law must have consistency and continuity but stare decisis is not an immutable vault sealed up against the expansion of legal concepts to match the evolution of social and economic conditions. In breaking away from the narrow and sterile concept of "freedom of contract" that the Court had built up over the years, Roberts rendered a notable service, not only to the country but also to judicial craftsmanship.

From my discussion with him I concluded that it would be going too far to say that he changed his mind under the lash of criticism from the bar and the public. Roberts' opinion for the Court in the Nebbia case is sufficient evidence that he was thinking in fairly broad terms about the power of the states to cope with the ravages of depression.[11] When the Hughes-Brandeis-Stone-Cardozo foursome insisted on hearing the Tipaldo case, Roberts' mental processes really went no further than resistance to that choice of a case as a vehicle for a new look at the powers of the states. The formalities of recording votes made Roberts an integral part of the prevailing quintette, but he did not so regard himself.

Undoubtedly the criticism that was heaped upon the Tipaldo majority quickened Roberts' disposition to .dig into the fundamental issues. He made clear to me that he was relieved to have the issue brought promptly before the Court once more in a posture that made consideration of its fundamental merits imperative. With his sense of proprieties satisfied, his regard for judicial responsibility and his devotion to the national welfare caused him to sustain a broad view of governmental power without any encroachment upon the constitutional guarantee of freedom to the individual.
This is the antithesis of expedient maneuvering in response to public clamor or executive threats. Roberts was undoubtedly at fault in failing to face the basic issue in question when the Tipaldo case first came before the Court. The national interest in having a timely disposal of the issue far outweighed the Justice's desire to have a better case on which to base his judgment. But that mistake of timing and procedure is a far cry from the unsustainable conclusion that he yielded to pressure.

There is nothing more than surmise to support the charge that Roberts changed his vote to save the Court or to escape personal criticism. All the known facts indicate that, after being caught in an unfortunate bind not of his own making, he honorably extricated himself by independently examining the issue he had previously tried to push aside and by following his sound judicial intuition to a well-reasoned position in keeping with the public interest.


Endnotes

1. 298 U.S. 587.

2. Adkins v. Children's Hospital, 261 U.S. 525.

3. Home Bldg. & Loan Assoc. v. Blaisdell, 290 U.S. 398.

4. 291 U.S. 502.

5. West Coast Hotel v. Parrish, 300 U.S. 379.

6. Author's interview with Roberts, May 31, 1946.

7. Pusey, Merlo J., Charles Evans Hughes, vol. II, p. 757.

8. Author's interview with Roberts, May 31, 1946.

9. Pusey, Merlo J., Charles Evans Hughes, vol. II, p. 753.

10. See n. 6.

11. Nebbia v. New York, 291 U.S. 502.