9
Affirming the New Deal
West Coast Hotel v. Parrish (1937)
West Coast Hotel v Parrish
•
•
•
•
300 U.S. 379 (1937)
•
Dissenting Opinion: George
Sutherland (Willis Van Devanter,
James C. McReynolds, and Pierce
Butler)
Decided: March 29, 1937
Vote: 5–4
Opinion of the Court: Charles Evans
Hughes
76 The Pursuit of Justice
T
he Great Depression that followed the Wall Street panic of November
1929 was an economic scourge of mammoth proportions. Its effects
lingered for a decade and spread around the world. Unemployment
soared to almost one-quarter of the American labor force in 1933, a twentiethcentury high. Between 1929 and 1932 more than five thousand banks closed
their doors and the life savings of millions of Americans evaporated.
In 1932 the Democratic Presidential candidate Franklin D. Roosevelt
swept to victory over the Republican incumbent, Herbert Hoover. FDR offered a middle-of-the-road approach to the depression through what he called
a “New Deal for America.” This program embraced certain social-welfare assumptions, including the idea that government had a positive duty to provide
a minimum floor for the well-being of its citizens. FDR enjoyed broad support from the Democratic Congress as well as from the business community,
which realized that something had to be done to restore economic confidence.
In an effort to do so, FDR created an alphabet soup of agencies. The President
successfully urged Congress to pass legislation to create the Securities and
Exchange Commission (SEC) to oversee Wall Street and the Tennessee Valley
Authority (TVA) to promote economic development in the poverty-stricken
Tennessee River Valley. He pushed Congress to pass the Glass-Steagall Act
to guarantee bank deposits and the Agricultural Adjustment Act (AAA) to
subsidize farmers and prop up commodity prices. The New Deal put people
to work on public projects through the Works Progress Administration (WPA)
and then provided unemployment insurance and old-age pensions through the
Social Security Act (1935).
The most controversial New Deal measure was the National Industrial
Recovery Act (NIRA). The act was intended to regulate vast areas of business
and labor that had previously been left untouched. The NIRA not only broke
down many of the traditional lines blocking government involvement in the
economy, but it also shifted significant authority from Congress to the President and through him to a new administrative agency, the National Recovery
Administration (NRA).
The New Dealers were pragmatic and determined to end the depression,
but they were often impatient with prevailing constitutional rules. FDR, for
example, ordered the committee charged with writing the NIRA to complete
its work in one week. That impatience proved costly, as critics turned to the
Supreme Court for assistance. The justices raised questions about it and other legislation that involved the scope of Presidential emergency powers, the
delegation by Congress of its authority to administrative agencies, the breadth
of the commerce clause, and the intervention by the national government in
matters previously the domain of the states. The result was a collision between
the Court—a majority of whose justices saw their responsibility as remaining
faithful to the principle that government should have only a limited role in the
economy—and the administration, which trumpeted constitutional innovation
as the best way to address the plight of millions of Americans.
The make-up of the Court ensured a collision. Its conservative wing was
composed of the Four Horsemen, sarcastically named by their New Deal critics after the Four Horsemen of the Apocalypse—war, famine, pestilence, and
death—identified in chapter 6 of the Bible’s Book of Revelation. Justices Willis
Van Devanter, James McReynolds, George Sutherland, and Pierce Butler consistently voted as a bloc against the New Deal. On the other wing were three
generally liberal justices: Benjamin
N. Cardozo, Louis D. Brandeis, and Harlan Fiske Stone, who supported the
New Deal and also believed that judges should defer to the legislative branch.
Between these two blocs were the swing votes of Chief Justice Charles Evans
Hughes and Justice Owen J. Roberts.
So-called Little New Deals—legislation at the state level intended to offer
economic relief—came before the Court for review. In New State Ice Company
v. Liebman (1932), for example, they struck down an Oklahoma law that made
the manufacture and sale of ice a public business susceptible to regulation by the
state. The justices condemned the law as a state-sanctioned monopoly that interfered with the opportunity for new ice producers to enter the market. Four years
later the justices, in a 5–4 decision, rejected a model New York state minimum
wage law in Morehead v. New York ex rel. Tipaldo (1936). The phrase “ex rel.”
is Latin for “on behalf of.” In this instance, the state of New York was acting on
behalf of Tipaldo, a private citizen.
Even the liberal members of the Court were skeptical about the constitutional basis of the early New Deal measures. On so-called Black Monday, May
27, 1935, a unanimous Court struck down several key provisions of the New
Deal recovery plan: Louisville Bank v. Radford threw out a mortgage relief act
for farmers; Humphrey’s Executor v. United States limited the President’s powers to replace members of independent boards; and Schechter Poultry Company
v. United States declared the NRA unconstitutional. The AAA was rejected, as
well.
Roosevelt won a landslide victory in 1936 over his Republican opponent,
Alfred Landon, with a campaign in which he regularly attacked the Court. He
began his second term by directly confronting the justices. Roosevelt was especially frustrated because during his first term no vacancies had occurred on
the high bench. FDR’s supporters complained that the justices were too old and
too out of touch with the times. The newspaper columnists Drew Pearson and
Robert S. Allen in 1936 wrote an exposé of the Court, and the public fastened its
title, The Nine Old Men, on the justices. The description was far from accurate;
the oldest member of the Court, Louis D. Brandeis, was in fact a member of the
Court’s liberal wing.
With his election triumph only months old, FDR on March 9, 1937, laid out
his plans for the Court in one of his nationwide “Fireside Chats” on the radio.
This talk was designed to garner public support for his Judiciary Reorganization
Bill. FDR proposed to appoint one additional justice to the Court for every sit-
Affirming the New Deal 77
ting justice over the age of seventy, up to a limit of six new justices. There were
five justices over seventy and that meant the Court would grow immediately to
fourteen. The plan also called for a significant increase in the number of federal
circuit and district court judges.
The proposal ignited a storm of protest, even from commentators angry with
the Court’s hostility to the New Deal. The President seemed to many Americans
to place politics above the rule of law. Critics charged FDR with an ill-advised
attack on a bedrock American institution, the Supreme Court, and dubbed the
plan “court-packing,” a title that stuck to FDR’s proposal. The plan was entirely legal, as Congress has constitutional authority to change the size of the
high court. Nonetheless, it focused intense scrutiny on the Court, appeared to
be a direct threat to the independence of the justices, and raised the specter of a
President seeking to usurp constitutional power. The measure also divided congressional Democrats, in part because FDR failed to reach out to them before
announcing his plan.
Roosevelt cloaked his court-packing scheme in the rhetoric of judicial reform. More judges were required to clear the dockets of the lower federal courts,
he explained. The argument met a cold response from the justices. The dockets
of these courts had expanded dramatically in the twentieth century, but Chief
Justice Charles Evans Hughes reminded Congress that putting more justices on
the Court would only slow its work. In the final analysis, the President attempted
to pull every possible lever to make his blatantly political proposal work. For
example, Roosevelt and his attorney general, Homer Cummings, sought support from the labor unions by stressing that Democratic appointees to the lower
courts would curtail the practice of federal judges issuing injunctions against
workers engaged in strikes and lockouts.
The Judiciary Reorganization Bill, while probably doomed from the outset, suffered from some bad luck. Senator Joseph T. Robinson, of Arkansas, the
Senate floor manager for the bill and a strong ally of the President, died during
the summer while the measure was being debated. The Court itself also seemingly influenced the outcome; at least some historians believe that a few of the
justices read and understood the 1936 election returns—FDR had the support of
the American public.
It was in the context of this most aggressive attack on the Court in its history that the justices heard the case of West Coast Hotel v. Parrish (1937). Their
decision in the case marked the beginning of the end of the era of economic substantive due process law. Scholars of the Court have described it as a “A Switch
in Time That Saved Nine.” That is, the two swing votes on the Court, Hughes
and Roberts, aligned themselves with the liberal wing to give a constitutional
green light to the next generation of New Deal legislation. The most important
“switch” was Roberts, who had voted with the majority in Morehead to strike
down the New York State minimum wage law.
Elsie Parrish was a chambermaid at the Cascadian Hotel in Wenatchee,
Washington, where she was paid twelve dollars for a forty-eight-hour week. Under a 1913 state minimum wage law she should have received $14.50. She sued
the hotel in state court and won, but the hotel appealed. The case was argued two
months before President Roosevelt announced his court-packing program and
decided two weeks afterward.
By 1937, the Court had more than thirty years of experience with laws protecting women in industry. In 1908, in Muller v. Oregon, the Court upheld a
78 The Pursuit of Justice
ten-hour workday law for women workers while simultaneously affirming the
precedent of liberty to contract for men established in Lochner v. New York
(1903). In 1917, in Bunting v. Oregon, the justices approved a ten-hour law for
both men and women without ever mentioning Lochner. In 1923, in Adkins v.
Children’s Hospital, however, the Court resurrected the precedent set in Lochner and struck down a federal minimum wage law for women working in the
District of Columbia. The majority in this 5–3 case (Brandeis recused himself
because his daughter worked for the District’s minimum wage board) insisted
that workers should be free to find the best employment terms. In 1936, the
Court relied on the Adkins precedent to overturn the New York State minimum
wage law in Morehead. In the words of Justice Pierce Butler, one of the Four
Horsemen, the “State is without power by any form of legislation to prohibit,
change, or nullify contracts between employers and adult women workers as to
the amount of wages to be paid.”
The decision in Morehead, with its strident and uncompromising tone in
the midst of the Great Depression, was one of the Court’s biggest mistakes. The
building of a majority, however, depended especially on the vote of Justice Roberts. In this instance Roberts sided with his conservative colleagues, providing
the fifth vote to reject the minimum wage legislation. Speculation was that he
would do the same in West Coast Hotel. As it turned out, he did not.
The underlying constitutional issues in the case cut to the core of the New
Deal: the power of legislators to pass measures designed to cushion the blow
delivered by the depression. The legal counsel for the hotel company believed
he and his client were on safe ground in attacking Washington State’s 1913
minimum wage law. First, it had been passed well before the depression even
began and therefore could not be justified as “emergency” legislation designed
to deal with a broken economy. Second, the controlling precedent was Adkins
v. Children’s Hospital (1923), in which the justices had struck down a 1918
minimum wage law for women working in the District of Columbia. The Washington State statute was unconstitutional, counsel argued, because it set up one
standard—that wages must be sufficient to provide for adult women workers’
needs—but it did not require that the wage have any reasonable relationship to
the value of the worker’s services.
Counsel for Parrish argued that the timing of the passage of the law was
irrelevant. If it was important in 1913, then surely it was even more important
in the midst of the depression. The only issue was whether the 1913 act was a
reasonable exercise of the state’s police powers over health, safety, morals, and
welfare. The Constitution did not prohibit any state from regulating such matters. The Court, Parrish’s counsel noted, had previously upheld similar legislation in Nebbia v. New York (1934) by a vote of 5–4. In that case, Justice Roberts
had voted with the majority and proclaimed that legislators could act as long
as they did so with the goal of promoting the public welfare. Parrish’s counsel
drew on Roberts’s arguments to remind the other justices that they should defer
to legislators, as they and not judges were best positioned to determine what
matters of public welfare required attention. In passing the minimum wage law,
the Washington legislature had considered appropriately the needs of the people
of the state.
Parrish’s counsel also suggested that the Court’s long-standing commitment
to the rule of reason should be set aside in this case. That rule provided that the
justices could overturn legislative acts that interfered with economic activity
Affirming the New Deal 79
as unwise or unreasonable, highly subjective standards and ones that gave the
justices broad powers to second-guess legislative actions. What was reasonable
was largely in the minds of the justices. Parrish’s counsel argued against these
subjective standards of judicial oversight and for recognition of two obvious
realities. First, the Constitution granted the state of Washington the power to
enact minimum wage laws through the police powers. And, second, the law
had received the approval of the state’s highest court. The justices of the U.S.
Supreme Court should defer to the decisions of state court judges, especially
as they had never reversed any state supreme court decision that upheld a local
minimum wage regulation.
Chief Justice Charles Evans Hughes wrote the majority opinion for a badly
divided Court. It was said that no one ever slapped Charles Evans Hughes on his
back and called him “Charlie.” He was stern, hardworking, religious, and noted
more for his intelligence than his conviviality. He had a photographic memory
that intimidated his colleagues. Yet he was generous, kind, and forbearing in an
institution in which egos typically came in only one size: extra large.
The key support for Hughes’s 5 to 4 majority came from Justice Roberts,
who shifted to the liberal side, as he had done in Nebbia. The Court upheld the
Washington State law and overturned Adkins v. Children’s Hospital. Hughes’s
opinion affirmed the principle that the Constitution forbade deprivation of liberty
to contract if done without due process of law, but confirmed that the legislature
has broad scope to restrain or regulate this liberty. Legislation such as the law
passed in Washington was constitutional when it was adopted for the protection
of the community. In dealing with the relationship of employer and employee,
the legislature had to have wide discretion, including responsibility to insure
that conditions of work were wholesome and free from oppression. The state,
Hughes concluded, had a special interest in protecting women against employment contracts that through poor working conditions, long hours, or scant wages
could undermine their health. Because the health of women was tied closely to
preserving “the strength and vigor of the race,” the state had to protect women
from being exploited by unscrupulous employers. The Washington minimum
wage law was not an act of arbitrary discrimination because it did not extend
to men; instead, as had been true in Muller v. Oregon (1908), it was a realistic
response to the vulnerable condition of women. Hughes also observed that the
unparalleled demands for relief that arose during the Great Depression remained
and that the states had, through their police powers, the authority to address its
consequences.
Justice George Sutherland wrote for the dissenting Four Horsemen. Sutherland was born in England but raised in Utah, where he practiced law and
achieved a measure of Republican political prominence. He offered his vote and
voice in support of substantive due process, liberty to contract, and continuing
judicial barriers to state government regulation and control. From Sutherland’s
perspective, Washington State had unreasonably violated the holding in Adkins.
Women and men, he insisted, were equals, and legislation should not treat them
differently. The setting of a minimum wage for women was an arbitrary form of
discrimination prohibited by the due process clause of the Fourteenth Amendment.
West Coast Hotel heralded greater Supreme Court deference to state economic regulation. It also forged a strange ideological partnership; the Four
Horsemen and feminists formed an awkward alliance. Because the minimum
80 The Pursuit of Justice
wage for women rested on a theory of women’s inequality, and because labor
restrictions based on gender interfered with women’s employment opportunities, many feminists denounced Hughes’s opinion and opposed minimum wage
laws for women in general.
The decision helped close the door on FDR’s court-packing plan because a
majority of the justices signaled that they were moving toward supporting New
Deal economic measures. That signal became even more clear two weeks later
when the justices, in NLRB v. Jones & Laughlin Steel Corporation, upheld one
of the most important and radical pieces of New Deal legislation, the National
Labor Relations Act, also known as the Wagner Act. That measure, passed in
1935, guaranteed workers’ right to organize unions and prohibited employers
from dismissing them for doing so. Once again the justices split 5 to 4, with the
Four Horsemen in the minority. By upholding the legislation, the Court made it
clear that it would no longer block congressional efforts to regulate the national
economy.
The Court proceeded to affirm other key elements of FDR’s program. On
May 24, 1937, in Steward Machine Company v. Davis, the justices upheld the
Social Security Act, a landmark law that established mechanisms to provide for
unemployment compensation and old-age benefits. The unemployment provision meant that workers thrown out of their jobs would receive a basic level of
support until they could find new work. The old-age benefit meant that for the
first time, the national government would provide a limited financial safety net
through pensions to workers beyond a certain age. The West Coast Hotel and
Jones & Laughlin decisions also provided legal support for another piece of
New Deal legislation, the Fair Labor Standards Act of 1938, which the Court
upheld in United States v. Darby Lumber Company. This law provided for the
setting of federal minimum wages and maximum hours for all employees in
industries whose products were shipped through interstate commerce.
Although the justices did not formally abandon substantive due process in
economic regulatory cases, there was no doubt that they had retreated from the
business of trying to regulate business. Between 1937 and 1980, the Supreme
Court cited West Coast Hotel and Jones & Laughlin some forty-one times, a fair
indication of the importance of the cases in affirming the new administrative and
social welfare state wrought by the New Deal.
The impact of the Court’s decisions in West Coast Hotel and Jones & Laughlin was far reaching. With these new precedents in place, the Court upheld virtually every federal and state regulation of business for the next half century. By
indicating that they would no longer use liberty to contract and substantive due
process as a basis to interfere with economic legislation, the justices were able
to turn their attention to civil liberties and civil rights, issues that dominated the
post–World War II Court. In the conservative glow of the 1990s the Court did
begin to question whether Congress was too actively engaged in regulating the
economy, but the New Deal precedents retain great importance.
In the end, the Court emerged from FDR’s attack stronger than ever. The
American people concluded that law and politics should be separated, and that
while the justices might not be above politics, they served the nation best when
they acted as if they were.
Affirming the New Deal 81
“Packing the Court”
President Franklin D. Roosevelt understood the necessity of reassuring the average
American and also asserting his Presidential authority during the Great Depression and
World War II. He also realized that the new technology of radio could help him in doing so.
FDR broadcast his fireside chats from the White House between 1934 and 1944, delivering
his remarks in a confident voice that held much of the nation spellbound. This particular
fireside chat was delivered on March 9, 1937, shortly after his landslide reelection.
Tonight, sitting at my desk in the White House,
I make my first radio report to the people in my second term of office.
In 1933 you and I knew that we must never let
our economic system get completely out of joint
again—that we could not afford to take the risk of
another great depression.
We also become convinced that the only way to
avoid a repetition of those dark days was to have a
government with power to prevent and to cure the
abuses and the inequalities which had thrown that
system out of joint.
The American people have learned from the
depression. For in the last three national elections
an overwhelming majority of them voted a mandate
that the Congress and the President begin the task
of providing that protection—not after long years of
debate, but now.
The Courts, however, have cast doubts on the
ability of the elected Congress to protect us against
catastrophe by meeting squarely our modern social
and economic conditions.
We are at a crisis, a crisis in our ability to proceed with that protection.
I want to talk with you very simply tonight about
the need for present action in this crisis—the need to
meet the unanswered challenge of one-third of a Nation ill-nourished, ill-clad, ill-housed.
Last Thursday I described the American form
of Government as a three-horse team provided by
the Constitution to the American people so that
their field might be plowed. The three horses are, of
course, the Congress, the Executive and the
Courts. Two of the horses, the Congress and the
Executive, are pulling in unison today; the third is
not. Those who have intimated that the President of
82 The Pursuit of Justice
the United States is trying to drive that team, overlook the simple fact that the President, as Chief Executive, is himself one of the horses.
It is the American people themselves who are
in the driver’s seat. It is the American people themselves who want the furrow plowed.
It is the American people themselves who expect the third horse to pull in unison with the other
two.
I hope that you have re-read the Constitution of
the United States in these past few weeks. Like the
Bible, it ought to be read again and again.
It is an easy document to understand when you
remember that it was called into being because the
Articles of Confederation under which the original
thirteen States tried to operate after the Revolution
showed the need of a National Government with
power enough to handle national problems. In its
Preamble, the Constitution states that it was intended
to form a more perfect Union and promote the general welfare; and the powers given to the Congress
to carry out those purposes can best be described by
saying that they were all the powers needed to meet
each and every problem which then had a national
character and which could not be met by merely local action.
But the framers went further. Having in mind
that in succeeding generations many other problems
then undreamed of would become national problems,
they gave to the Congress the ample broad powers
“to levy taxes and provide for the common defense
and general welfare of the United States.”
That, my friends, is what I honestly believe to
have been the clear and underlying purpose of the
patriots who wrote a Federal Constitution to create a
National Government with national power, intended
as they said, “to form a more perfect union for ourselves and our posterity.”. . .
Then in 1803...the Court claimed the power to
declare [a federal law] unconstitutional and did so
declare it. But a little later the Court itself admitted that it was an extraordinary power to exercise
and through Mr. Justice Washington laid down this
limitation upon it. He said: “It is but a decent respect
due to the wisdom, the integrity and the patriotism
of the Legislative body, by which any law is passed,
to presume in favor of its validity until its violation
of the Constitution is proved beyond all reasonable
doubt.”
But since the rise of the modern movement for
social and economic progress through legislation,
the Court has more and more often and more and
more boldly asserted a power to veto laws passed by
the Congress and by State Legislatures in complete
disregard of this original limitation, which I have
just read.
In the last four years the sound rule of giving
statutes the benefit of all reasonable doubt has been
cast aside. The Court has been acting not as a judicial body, but as a policy-making body.
The Court, in addition to the proper use of its
judicial functions, has improperly set itself up as a
third House of the Congress—a super-legislature, as
one of the Justices has called it—reading into the
Constitution words and implications which are not
there, and which were never intended to be there.
We have, therefore, reached the point as a Nation where we must take action to save the Constitution from the Court, and the Court from itself. We
must find a way to take an appeal from the Supreme
Court to the Constitution itself. We want a Supreme
Court which will do justice under the Constitution—
not over it. In our Courts we want a government of
laws and not of men.
I want—as all Americans want—an independent judiciary as proposed by the framers of the
Constitution. That means a Supreme Court that will
enforce the Constitution as written—that will refuse
to amend the Constitution by the arbitrary exercise
of judicial power—amendment, in other words, by
judicial say-so. It does not mean a judiciary so independent that it can deny the existence of facts which
are universally recognized.
What is my proposal? It is simply this: Whenever
a Judge or Justice of any Federal Court has reached
the age of seventy and does not avail himself of the
opportunity to retire on a pension, a new member
shall be appointed by the President then in office,
with the approval, as required by the Constitution,
of the Senate of the United States.
That plan has two chief purposes. By bringing
into the Judicial system a steady and continuing
stream of new and younger blood, I hope, first, to
make the administration of all Federal justice, from
the bottom to the top, speedier and, therefore, less
costly; secondly, to bring to the decision of social
and economic problems younger men who have had
personal experience and contact with modern facts
and circumstances under which average men have to
live and work. This plan will save our national Constitution from hardening of the judicial arteries....
Those opposing this plan have sought to arouse
prejudice and fear by crying that I am seeking to
“pack” the Supreme Court and that a baneful precedent will be established.
What do they mean by the words “packing the
Supreme Court”?
Let me answer this question with a bluntness
that will end all honest misunderstanding of my purposes.
If by that phrase “packing the Court” it is
charged that I wish to place on the bench spineless
puppets who would disregard the law and would decide specific cases as I wished them to be decided, I
make this answer—that no President fit for this office would appoint, and no Senate of honorable men
fit for their office would confirm, that kind of appointees to the Supreme Court.
But if by that phrase the charge is made that I
would appoint and the Senate would confirm Justices
worthy to sit beside present members of the Court
who understand modern conditions—that I will appoint Justices who will not undertake to override the
judgment of the Congress on legislative policy—
that I will appoint Justices who will act as Justices
and not as legislators—if the appointment of such
Justices can be called “packing the Court,” then I say
that I, and with me the vast majority of the American
people, favor doing just that thing—now....
So, I now propose that we establish by law an
assurance against any ill-balanced Court in the future. I propose that hereafter, when a Judge reaches
Affirming the New Deal 83
the age of seventy, a new and younger Judge shall be
added to the Court automatically. In this way I propose to enforce a sound public policy by law instead
of leaving the composition of our Federal Courts,
including the highest, to be determined by chance or
the personal decision of individuals....
Like all lawyers, like all Americans, I regret the
necessity of this controversy. But the welfare of the
United States, and indeed of the Constitution itself,
is what we all must think about first. Our difficulty
with the Court today rises not from the Court as an
84 The Pursuit of Justice
institution but from human beings within it. We cannot yield our constitutional destiny to the personal
judgment of a few men who, being fearful of the future, would deny us the necessary means of dealing
with the present.
This plan of mine is no attack on the Court; it
seeks to restore the Court to its rightful and historic
place in our system of Constitutional Government
and to have it resume its high task of building anew
on the Constitution “a system of living law.” The
Court itself can best undo what the Court has done.