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Posted by on Sep 3, 2010 in Law, Politics | 0 comments

Supreme Court – Not What You Think: Part V, New Deal Power Struggles

The Supreme Court in 1930 was not far different than the Court today. The Four Horsemen (Sutherland, Butler, McReynolds, and Van Devanter) constituted a staunchly conservative wing. Holmes, Brandeis and Stone constituted a more progressive wing, at least on social issues. New Chief Justice Charles Evans Hughes and Justice Owen Roberts were swing votes. The Court was, however, majority conservative on economic and property issues.

Former New York Governor Charles Evans Hughes had served as an Associate Supreme Court Justice from 1910 to 1916. He left the bench to run as the Republican candidate for the presidency against Woodrow Wilson. He served as Secretary of State from 1921 to 1925 and was placed back on the Court, this time as Chief Justice, with Taft’s retirement. He was 68 years old when Herbert Hoover nominated him to be Chief Justice.

Minnesota’s public nuisance law came before the Court early on. The law allowed the state to close publications that printed “malicious, scandalous, and defamatory” material. The Saturday Press was such a publication, calling local law enforcement “cuddlers (sic) of criminals” and making multiple accusations. Minnesota shut it down. The Supreme Court overturned the law on freedom of press grounds. The Four Horsemen dissented. Butler, writing for the dissenting four, said “peace and order need legal protection from such publishers.”

The Court also heard the case of the Alabama Nine. Nine African Americans had been convicted of rape, a capital offense in Alabama. The court first ruled that, in capital cases, defendants were entitled to competent court appointed counsel. The decision was decades before Gideon v. Wainwright during the Warren Court which most people associate with the issue of right to court appointed counsel. When the Alabama Nine cases came back to the Supreme Court a second time, they invalidated retrial results because of the racial exclusion of Blacks on the jury, another doctrine often wrongly attributed to the Warren Court.

But, the country was floundering economically after the collapse of 1929, and elected Franklin Delano Roosevelt its president in 1932. A power struggle between the New Dealers and the Court ensued. This excerpt from the Supreme Court Historical Society summarizes the Court’s response to New Deal legislation:

“…Considering a New Deal law for the first time, in January 1935, the Court held that one part of the National Industrial Recovery Act gave the President too much lawmaking power.

The Court did sustain the policy of reducing the dollar’s value in gold. But a five-to-four decision…made a railroad pension law unconstitutional. Then all nine Justices [overturned] a law to relieve farm debtors, and killed the National Recovery Administration; FDR denounced their “horse-and-buggy” definition of interstate commerce.

…The whole federal judiciary came under attack as district courts issued—over a two-year period—some 1,600 injunctions to keep Acts of Congress from being enforced. But the Court seemed to ignore the clamor.

Farming lay outside Congressional power, said six Justices in 1936; they called the Agricultural Adjustment Act invalid for dealing with state problems. Brandeis and Cardozo [Holmes’s replacement] joined Stone in a scathing dissent: “Courts are not the only agency . . . That must be assumed to have capacity to govern.” But two decisions that followed denied power to both the federal and the state governments.

In a law to strengthen the chaotic soft-coal industry and help the almost starving miners, Congress had dealt with prices in one section, with working conditions and wages in another. If the courts held one section invalid, the other might survive. When a test case came up, seven coal-mining states urged the Court to uphold the Act, but five Justices called the whole law unconstitutional for trying to cure “local evils”—state problems.

Then they threw out a New York law that set minimum wages for women and children; they said states could not regulate matters of individual liberty.”

By the beginning of his second term, Roosevelt had had about enough of the Hughes Court invalidating New Deal legislation. On February 5, 1937 he proposed his “court packing” scheme. The proposal provided that for every Justice over the age of 70 who did not retire an additional Justice could be appointed to a maximum of 15 Justices. Six of the Justices were over 70 at the time. It was a rare misstep by the politically adept Roosevelt. Untold 1000’s of letters hit congress opposing the plan. It was never adopted, but the Court took notice and began to moderate its view. With four FDR appointments to the high court in 1937, 38 and 39, it was no longer an issue.

Decisions from the Court changed so radically after the court packing proposal that 1937 was known as the “constitutional revolution.” But, while New Deal legislation found a friendlier reception, civil liberties were still working their way to modernity. Though some early decisions, like the Minnesota case and the Alabama Nine had shown promise, the Court in 1940 would deny Jehovah’s Witnesses the religious liberty to refuse to salute the flag in school. The vote was 8-1. Three years later, in a decision announced on Flag Day, June 14, 1943, the Court would reverse itself and recognize the religious right of Jehovah’s Witnesses not to salute. By then, Harlan Stone had replaced Hughes as Chief Justice.

Former Columbia Law School Dean and former U. S. Attorney General, Harlan Fiske Stone was Chief Justice only five years, but it was a significant time. He was Calvin Coolidge’s only appointment to the Supreme Court as an Associate Justice in 1925. Stone literally died on the job when, in 1946, he suffered a cerebral hemorrhage while reading his dissent in Girouard v. U. S. from the bench.

In one of the first cases decided by the Stone Court in 1941, the Court, 9-0, upheld the Fair Labor Standards Act of 1938, banning child labor, regulating hours and setting a minimum wage…all issues the Court had struck down in prior decisions.

The Stone Court proved to be strong supporter of both the New Deal and the war effort. Its support of the war effort included upholding the constitutionality of banishing American citizens of Japanese ancestry from the west coast into “relocation camps”. Hugo Black wrote the decision. Three Justices dissented. In a second case, they did order one Japanese American woman released who had been found to be a “loyal, law abiding citizen.”

Before Stone’s death his Court ruled that seeing a man conversing in public with convicted war saboteurs was not sufficient for a treason conviction unless the substance of the conversation were known. Stone was replaced by Truman nominee Fred Vinson who would himself lead the Court only seven years before his unexpected death.

Now 64 years later, Vinson remains the last Chief Justice to have been appointed by a Democrat. He was a close personal friend of Harry Truman, the two having met while Vinson was a Congressman and Truman a Senator. As a Congressman from Kentucky Vinson was a strong supporter of the Marijuana Tax Act of 1937 which effectively outlawed marijuana in the United States.

It was the Vinson Court that began to expand the rights of criminal defendants, now just a few years before the Warren Court. Under Vinson, the Court ruled that coerced confessions could not be used for conviction, overturning a death sentence in the process. In a series of decisions, the Court set the rules for fair trial in criminal cases…and, unlike earlier courts, applied them to the states.

Though Vinson supported his friend when Truman attempted to seize the steel industry, his court did not agree. The Court voided Truman’s actions over Vinson’s dissent, and the President relented.

When Julius and Ethel Rosenberg were scheduled to be executed, Justice William O. Douglas granted a stay of execution. Vinson sent planes around the country to collect the other Justices who were on vacation. Once spirited back to Washington on the planes Vinson had sent for them, the Court overrode Douglas’s stay and the Rosenberg executions went forward in June of 1953.

In 1952 the Court heard oral argument in Brown v. Board of Education, seeking to overturn the separate but equal doctrine that had been the law since Plessy v. Ferguson in 1896. The case was ordered for re-argument in September,1953. Vinson died of a sudden heart attack before the second round of arguments and, thus the decision belongs, though only by fate, to the Warren Court.

In Part VI (most likely after the holiday weekend), the Warren years will be reviewed.

Parts I, II, III and IV, for those who may have missed them, are linked here. Part I: The Early Years; Part II: 19th Century Activism: Part III, Conservative Activism: Part IV: Holding Back Reform.

Sources: Wikipedia;;; judgepedia;; Constitution of the United States (annotated); and the Supreme Court Historical Society

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