How the Justices Get What They Want

Sometime soon the US Supreme Court will probably decide if the Obama administration’s comprehensive reform of the health care system violates the Constitution. One federal appeals court has upheld the act. A second has not, finding that its “individual mandate” to buy health insurance or else pay a fine exceeds Congress’s constitutional powers to regulate interstate commerce and to tax and spend for the general welfare. One of the most important pieces of domestic legislation in decades may stand or fall on the vote on a single member of a politically divided Supreme Court.

In 1936 Franklin D. Roosevelt faced a similar situation, only much worse and with even higher stakes. The Supreme Court under Chief Justice Charles Evans Hughes had invalidated the key legislation of his first term, the National Industrial Recovery Act (NIRA), by a vote of 9–0. In Morehead v. Tipaldo, by 5–4, the Court struck down a New York statute setting a minimum wage for women as an infringement of “liberty of contract” protected by the Fourteenth Amendment. In so doing it reaffirmed a notoriously controversial 1923 case invalidating minimum-wage legislation in the District of Columbia.¹ These were only two of a series of cases pitting the reliably “conservative” wing of the Court (George Sutherland, Willis Van Devanter, Pierce Butler, and James C. McReynolds—the “Four Horsemen”) against the “liberal” wing (Louis Brandeis, Harlan Fiske Stone, and Benjamin Cardozo), while two other justices (Hughes and Owen Roberts) shuttled back and forth between them.

The Horsemen were upholders of a tradition of constitutional law, commonly known as “classical,” that sharply distinguished interstate commerce that Congress could regulate from local economic activity (which included all manufacturing) that it could not; the same tradition prohibited states from regulating “liberty” and “property” (most notably an employer’s right to manage his own business and his contracts with employees) and from “class legislation”—laws redistributing property from one group to another—unless they could show a strong overriding public interest in doing so. By the 1930s this “classical” tradition had been considerably eroded by attacks from Progressive critics who claimed that all law was policy and that judges were bad at policy compared to legislatures and administrators. On the Court itself it was attacked by Brandeis and Oliver Wendell Holmes Jr. Mounting numbers of cases had riddled the traditional doctrines with exceptions.

The Court had actually done FDR a favor by killing off the NIRA, a failed experiment in corporatist organization of the economy into government-sponsored cartels that would fix prices for particular industries. But the traditional view of the Constitution that the Court reaffirmed in 1935–1936 threatened the entire remaining New Deal program, including the Social Security Act (setting up a national social insurance plan to fund old-age pensions), the National Labor Relations Act (protecting industrial workers’ rights to strike, form unions, and collectively bargain), and further legislation proposing to set maximum hours and minimum wages and abolish child labor. By the end of 1936 it seemed likely that the Court would hold all this legislation unconstitutional.

Moreover, the Court majority’s strict constructions of constitutional limits on regulatory authority also crippled the capacity of state governments to respond to the Depression. Business interests fired up by the Court’s aggressive decisions were bringing hundreds of suits against New Deal policies; and federal district courts obliged by issuing hundreds of injunctions against enforcement. The Du Pont–financed Liberty League—a bit like today’s Tea Party, but more candid about its elite membership and backing—organized an ideological opposition to the New Deal, and rallied around defense of the Court and Constitution as all that stood between the US and fascist or Communist dictatorship. “There can be only one capital, Washington or Moscow,” said Al Smith at a league banquet.

The league also spawned a “Lawyers’ Vigilance Committee” of conservative corporate lawyers, who issued an “opinion” in 1935 declaring the National Labor Relations Act unconstitutional and advising employers not to comply with orders of the Labor Board.

The Liberty League did not speak for most Americans. Even moderate Republicans disapproved of the Court’s decisions that paralyzed the regulatory capacity of the states. Roosevelt won reelection in 1936 with 523 electoral votes to Alf Landon’s 8, and 61 percent of the popular vote. Even with this overwhelming mandate, he believed his program might come to nothing unless he could curb the Court. He had made no appointments to the Court in his first term, and could not predict when he might next get one. He and his advisers considered many possible fixes: constitutional amendments that would expand the reach of the commerce clause and limit the use of the Fourteenth Amendment as a shield against regulation of business, or legislation permitting Congress to override a Court decision invalidating one of its laws by a supermajority vote, or requiring at least two thirds of the justices to invalidate an act of Congress.

The President’s team saw flaws with all of these. The Supreme Court would sabotage by interpretation any expansion of federal or state governmental power. Amendments to the Constitution took absurdly long to ratify: even a popular amendment to enable federal regulation of child labor, first proposed in 1926 to reverse a Supreme Court decision of 1918, was still languishing unratified in 1936. The Court might strike down any statute limiting its jurisdiction or regulating its votes. Roosevelt did not think the Constitution needed amending: he viewed it as a “living” document, intended for flexible adaptation to changing times and emergencies.

In desperation, FDR took up the idea of expanding the number of justices on the Court. This was the famous “court-packing plan.” The story of the plan and the epic political battle over it has been told many times, never more effectively than by Jeff Shesol in his thoroughly researched and engagingly written Supreme Power. Shesol looks at the battle through the eyes of all the major players—FDR and his advisers, the congressional leadership that was handed the unappealing job of putting the plan into effect, the congressional opposition, the many politicians and interest groups that organized over the plan, and the justices themselves. But even after this clear and penetrating account, some persistent questions surrounding the Court-packing drama remain.

To start with, why did the plan meet with so much opposition, and why did it ultimately fail? Congressional tinkering with the Court’s size, even for blatant political ends, was nothing new. FDR helped to undercut his own plan by disingenuously presenting it as designed to bring in fresh talent to help the elderly justices keep up with their workload. The plan was to expand the Court’s maximum size from nine to fifteen seats, with a new justice to be appointed whenever a sitting justice reached the age of seventy. Hughes, with Brandeis’s and Van Devanter’s help, neatly checkmated this rationale with a frosty letter assuring Congress that the Court was well up to date with its work. Roosevelt responded with a direct assault on the Court’s conservatives as enemies of reform and progress, who acted as a “super-legislature” to give voice to their “personal economic predilections.”

Popular though Roosevelt was, polls never showed majority support for the plan.² People generally agreed with the abstract proposition that the courts were guardians of basic rights against rash legislation, even if they approved of the actual legislation. Southerners feared that a more liberal Court would act to overturn racial segregation, as it finally did in 1954. Liberals valued the protections the Court was beginning to give to civil liberties.

FDR’s assault on the Court suggested that he wanted to pack it with his own cronies, to make it subservient to his political whims. He already dominated Congress, and planned to reorganize the executive branch to make it more responsive to presidential direction. The opposition, moreover, was very well organized. It was led from inside the New Deal coalition by well-known Progressives like Senator Burton K. Wheeler of Montana and Hiram Johnson of California; and from outside by the reinvigorated Liberty League and the publisher Frank Gannett.

A commonly held view is that the plan ultimately failed because by mid-1937 the Court capitulated to public pressure, and started upholding Progressive and New Deal legislation. In March it decided West Coast Hotel Co. v. Parrish, a minimum wage for women case almost exactly like the Tipaldo case of the year before. This time the Court decided to uphold the legislation, as Roberts switched sides. Yet Roberts had in fact decided to switch before the Court-packing plan was announced. His reasons remain obscure. Sutherland wrote a passionate dissent asserting the classical view that a contractual wage exactly reflects the value of the labor it pays for, so that a minimum wage above that value redistributes wealth from one class to another:

To the extent that the sum fixed exceeds the fair value of the services rendered, it amounts to a compulsory exaction from the employer for the support of a partially indigent person,…and therefore, in effect, arbitrarily shifts to his shoulders a burden which, if it belongs to anybody, belongs to society as a whole.

Hughes’s opinion for the majority upended this reasoning, interpreting low wages as a kind of public nuisance:

The exploitation of a class of workers who are in an unequal position with respect to bargaining power, and are thus relatively defenseless against the denial of a living wage, is not only detrimental to their health and wellbeing, but casts a direct burden for their support upon the community. What these workers lose in wages, the taxpayers are called upon to pay…. The community is not bound to provide what is, in effect, a subsidy for unconscionable employers.

In April, the Court upheld the National Labor Relations Act, which almost everyone had assumed was unconstitutional when enacted. In NLRB v. Jones & Laughlin Steel Corp., Hughes and Roberts joined a 5–4 majority upholding national regulation of labor relations: labor organization was a “fundamental right,” “often an essential condition of industrial peace.”

When industries [such as the steel companies] organize themselves on a national scale, making their relation to interstate commerce the dominant factor in their activities, how can it be maintained that their industrial labor relations constitute a forbidden field into which Congress may not enter…?

The decision became known as the “switch in time that saved nine,” suggesting that the Court had backed down over the threat to pack it. But as Shesol shows, other factors were relevant to the decision. The huge sit-down strikes that paralyzed the auto industry and compelled General Motors to recognize the United Auto Workers in 1936–1937 surely underscored the implausibility of continuing to categorize labor disputes as merely local.

On May 18, Van Devanter announced his resignation from the Court. On May 24, the Court upheld the Social Security Act. From then on the Court sustained every other piece of New Deal legislation, including the long-standing Progressive wish list of a national minimum wage for industrial workers and prohibition of child labor.

In the process the Court eviscerated the remains of the old legal categories for evaluating the validity of economic regulation. In Wickard v. Filburn (1942) it upheld a penalty imposed on a farmer who was paid to limit his production but had grown some excess wheat for his personal consumption. The Court said that cumulatively, such individual decisions could affect interstate commerce. Justice Robert Jackson privately conceded to his clerk that “if we sustain the present Act, I don’t see how we can ever sustain states’ rights again as against a Congressional exercise of the commerce power.”³ It is on the Wickard line of cases that the Obama administration now relies to justify its health insurance mandate.

The switches in position by Hughes and Roberts and Van Devanter’s retirement obviously made the need to pack the Court seem less urgent. Also, as Shesol observes, the fight over the plan had mobilized conservatives and opened up fissures between the liberal and the southern and western wings of the Democratic coalition. The plan died in the Senate in July 1937. The fight had weakened Roosevelt politically. His effort to purge his party of reactionary southerners in 1938 failed badly.

FDR had promised the next Supreme Court seat to Joe Robinson, the Senate majority leader who led the fight for the court-packing bill in Congress. As the plan was collapsing in the Senate, the exhausted Robinson died of a heart attack. Roosevelt nominated Senator Hugo Black for the seat. He was able to appoint eight more justices, including Felix Frankfurter, William O. Douglas, and Robert Jackson, who with Black are generally recognized to be among the Court’s greatest judges. These four are the subjects of Noah Feldman’s Scorpions, which picks up the story of the Supreme Court at about the point where Shesol leaves off. Feldman’s very readable and insightful book is more narrowly focused on the members of the Court and their decisions than Shesol’s panoramic view of political actors; but also takes more time to explain each judge’s distinctive theories of the Constitution and the role of judges in interpreting it.

All four judges came onto the Court as its classical conception of itself as the guardian of property and economic liberty and strict keeper of the boundaries of federalism had collapsed. All had absorbed to varying degrees the Progressive view that courts should generally defer to the political branches in matters of policy. But as liberals they were also committed to free speech and civil liberties, which their heroes Holmes and Brandeis had believed that constitutional judges should protect. Frankfurter, a Harvard Law professor and one of FDR’s chief advisers, had been a leading activist in defending radicals from persecution. On the Court, however, his commitments to judicial restraint trumped his libertarian impulses.

The fault line between the positions opened up in two cases in which Jehovah’s Witnesses disobeyed school district rules requiring them to salute the flag. In the first case Frankfurter said that the flag-salute rule was stupid and probably counterproductive, but not a wholly unreasonable way of trying to instill patriotism. Only Stone dissented. In 1943 the issue arose again and this time most of the liberals on the Court, moved by the spectacles of repression in Europe, held for the Witnesses. Frankfurter wrote an agonized dissent. His consistent position in favor of restraint in deference to lawmakers had suddenly turned him into a conservative.

Feldman thinks that as an immigrant Jew who was a romantic admirer of American democracy, Frankfurter trusted in its capacity for correcting its mistakes; and also believed that the Constitution required judges to be disinterested and to vote against their preferences. Perhaps he also felt compelled to make public demonstrations of his loyalty and patriotism—just as Hugo Black may have been prompted by the need to atone for his early membership in the Ku Klux Klan to become a pioneer of the Court’s emerging doctrine that civil liberties and civil rights were “preferred freedoms” entrusted to the special care of federal judges.

Preferred freedoms, however, took a back seat to the imperatives of World War II and the cold war, in which a Court stacked with liberals delivered some of the most illiberal decisions in its history. The low point was surely its decisions in cases that challenged the military’s authority to relocate 120,000 Americans of Japanese descent in internment camps and congressional legislation making disobedience to military orders a crime. These cases, ironically, are the first to declare (through Black) that the government’s singling out a group for mistreatment on strictly racial grounds is on its face unconstitutional. But the Japanese, Black went on to say, were singled out as potentially disloyal, a very different thing. Only Justice Frank Murphy voted to overturn the military orders.

Barely more defensible was the decision of the Court (by then reconstituted with four undistinguished cronies of President Truman) in Dennis v. US (1951), a prosecution of Communist Party officials under the Smith Act. In Dennis the Court turned its back on its own precedents demanding that the government, in making political dissent a criminal act, prove “clear and present danger” of serious, imminent harm. The government had not submitted any proof of danger from the defendants except that they were members of the Communist Party and had a stack of books preaching world revolution.

Frankfurter upheld the prosecution, saying that Congress had made a “reasonable,” even if implausible, judgment that Communists everywhere were dangerous. Jackson, fresh from dealing with Soviet judges as the chief prosecutor at Nuremberg, said that even American Communists were part of a tight-knit worldwide conspiracy. Black and Douglas dissented. Black by then had developed his near-absolute theory that when the First Amendment says Congress shall make “no law…abridging the freedom of speech,” it means “no law.” Douglas’s dissent flatly said that domestic Communists were no threat to anyone, in part because “Communism has been so thoroughly exposed in this country that it has been crippled as a political force. Free speech has destroyed it as an effective political party.”

Much of Scorpions is devoted to the justices’ feuds and quarrels with one another—impressive men behaving badly. Frankfurter, as a former professor of constitutional law and Supreme Court litigator, naturally supposed that other judges would defer to his intellectual leadership. But they were alienated by his condescending lecturing to them. Jackson and Douglas were also brilliant and accomplished lawyers, not easily led. Black, as a relative outsider to the professional constitutional law community, felt the need to develop a distinctive theory of his own. He rejected the idea of the “living Constitution”: the governing principles were the original principles, though so general that they could be adapted to new situations. Thus Black, the former Alabama Klansman, came to believe that the Fourteenth Amendment commanded legal enforcement of racial equality and made the Bill of Rights enforceable against the states, views that the Court eventually accepted.

Frankfurter was so resentful of Black’s bid for intellectual leadership of the Court that he commissioned a Harvard Law School professor to write an article refuting Black’s view of the Fourteenth Amendment. In response, Black and Douglas encouraged Yale Law School professors to proclaim them the true geniuses of the Court and Frankfurter a pompous pedant. Meanwhile Douglas had political ambitions beyond the Court. In 1940 he came close to being chosen as FDR’s running mate, but lost out to Henry Wallace. In 1948, to gain the liberal wing’s support, Truman offered Douglas the vice-presidential slot on the ticket. But Douglas turned it down, perhaps hoping for a later chance at the presidency.

Feldman thinks that the thwarting of Douglas’s presidential ambitions was the best thing that ever happened to him, at least professionally. He took up a succession of younger and younger wives, four in all, and became an ardent environmentalist. Freed from playing to the popular crowd, he became the Court’s most consistent defender of free speech and personal freedom and the inventor of the constitutional “right to privacy.” This became the basis for the rights to contraception and abortion. Black, by contrast, became more conservative, retreating from his absolutist commitments to dissent and free speech as civil rights marchers and student antiwar protesters came onto the streets in the 1960s.

Scorpions ends with a coda in which the strong-minded squabbling egos of this club were united by the masterful leadership of Chief Justice Earl Warren to produce a unanimous opinion in Brown v. Board of Education (1954). The decision held state-mandated segregation of public schools unconstitutional, but refrained from prescribing any specific immediate remedy for that condition. Warren’s accomplishment was to overcome Frankfurter’s instinct for restraint and Jackson’s prudential fear that the decision would ignite a firestorm of resistance.

There is a long-running debate between those who claim that judicial behavior is best explained by the pressures of majority politics or at least elite opinion (“the Supreme Court follows the election returns”) and those who maintain that factors internal to judging and the judges themselves—precedent, judicial philosophy, personality—also have a large part. These books give some encouragement to both sides. It is hardly disputable that court decisions eventually tend to match up with dominant public opinion.⁴ Brilliant scholarship on “popular constitutionalism” has produced many case studies showing how political opinion mobilized in social movements, party politics, legislation, and congressional and presidential elections has found its way into court decisions, presenting new issues for litigation and new languages for resolving them.

It is not surprising that a Court majority left over from a long spell of Republican dominance resisted the New Deal, or that after FDR was reelected with a landslide, even that majority began to shift positions. Nor is it surprising that even a liberal court should have deferred to the President and military on Japanese interment in wartime; and to Congress during the Red Scares of the 1950s.

Unfortunately, when the Court is most needed as a check on authoritarian measures in times of fear, it is most reluctant to act. The Court began to protect dissenters from cold war prosecutions and congressional investigators only after the peak hysteria had subsided; it then retreated once again in the face of furious congressional reaction. When the Court struck down racial segregation it was enforcing a national consensus of both parties against a deviant region; but confronted with determined resistance to actual integration of neighborhoods and schools, it refused to carry its decrees to the suburbs. It eventually shifted from first compelling integration of schools and then permitting integration only under some conditions to actually prohibiting integration plans. In recent years the Court has tilted sharply toward supporting business interests in economic cases and allowing nearly unlimited corporate spending on political campaigns; but by narrow majorities it has followed developing—if still divided—public opinion in cases on gay rights.

However, although the story that judicial and public opinion tend in the long run to run together is broadly true, it’s not the whole story. Timing is critical: the previous political generation may still be on the Court when the political winds shift, as happened in the New Deal. Chance plays a large part. The New Dealers would have had the 5–4 majorities they needed if Woodrow Wilson had not appointed the reactionary McReynolds as well as Brandeis; or if Van Devanter and Sutherland had retired in 1932 as they had planned, before Congress briefly cut judicial pensions in half. And judicial doctrine and ideology exert an autonomous influence, not always reflecting a judge’s own politics—look at Frankfurter, apparently thinking himself honor-bound by his role to uphold legislation he despised. Judges usually try to avoid having their decisions look too obviously political in order to preserve the image and legitimacy of their Court—one glaring exception being the decision in Bush v. Gore, in which the majority broke with all their own principles to stop the Florida recount in the presidential election of 2000.⁵

It’s not at all clear what the lessons are for the decision on Obama’s health care law. Public opinion on the law is divided but also uninformed. An aroused social movement with friends in Congress is trying to defeat it. Yet to overturn the health care law the Court would have to repudiate the major New Deal cases on the commerce power and throw into question the legitimacy of the entire modern regulatory-welfare state. The Court would thus invite new lawsuits challenging literally thousands of statutes and administrative orders. As the “switch in time” of 1937 and Bush v. Gore proved, however, judges who are really keen to reach a certain result will reach it, whatever obstacles of precedent or their own principles or past practice may stand in their way.