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CHAPTER FOUR
“The Nine Old Men”
The Court at the time was made up of a distinguished panel of jurists. They represented all shades of opinion—from the so-called conservatism of Justices Sutherland, Van Devanter, McReynolds, and Butler, to the so-called liberalism of Brandeis, Stone, and Cardozo. A middle philosophy was represented by Justice Roberts and Chief Justice Charles Evans Hughes.
Members of Supreme Courts have not always had an overabundance of previous judicial experience. But, generally speaking, most presidents who had an opportunity to make appointments to our highest court sensed that at least a few of the nine justices should have had either a wide judicial background or a thorough grounding in constitutional law, or both. The assumption used to be, when we were still consciously operating under constitutional government, that the Court had been conceived as a single, independent arm of government, rather than as a group of prima donnas, and that whatever judicial experience there was among the members would be at the service of all other members of the Court.
While the Supreme Court which decided the early New Deal cases was not overburdened with individual judicial experience, collectively it had a backlog to draw upon which our three “liberal” or “modern” presidents, Roosevelt, Truman, and Eisenhower, have since failed to match in any of their appointments. On the so-called conservative side, Justice Willis Van Devanter had been a United States circuit judge for eight years and had served as chief justice of the Supreme Court of Wyoming. On the so-called liberal side, Justice Benjamin Cardozo had been a judge of the Court of Appeals of New York and then its chief judge, and had served a long term on the New York Supreme Court (which is a lower court in New York State). In the case of the Chief Justice—in whom previous judicial experience would seem almost mandatory—Charles Evans Hughes had already served, years before, as an associate justice of the United States Supreme Court. He had also been a professor of law at Cornell University and Secretary of State in two cabinets.
There was, of course, in the Court which Chief Justice Hughes headed, a definite cleavage between the conservatives and the liberals. (The term “liberal” did not then have the left-wing content that it has today.) While the so-called liberal justices—Stone, Brandeis, and Cardozo—perhaps could not be called strictly liberals in the 19th-century meaning of the word—when a liberal meant simply a defender of the individual’s liberty against government—they were by no means modern “liberals,” despite their subsequent adoption as heroes by the minions of the left. The leftists have taken up Justice Brandeis, for instance, in a large way because of his opposition to bigness in business. They conveniently overlook the fact that he was equally opposed to bigness in government. Essentially, men of the type of Stone, Brandeis, and Cardozo were for reform—and God knows, reform was needed at the time—and for some degree of “social welfare” for the masses of the people. They were not alone in failing to foresee the strange bypaths down which we would be led when “social welfare” became a tool in the kit of vote-conscious politicians. But whether it was reform, or “social welfare” or so-called “civil rights,” they and their colleagues on the bench thought of it all within the framework of the American constitutional system. As was only human, some of them could stretch their interpretations of the Constitution pretty far to suit their own proclivities, but they knew the Constitution was there, plus the long body of precedent in law established by previous Supreme Courts. They did not, as later Courts were to do, ever consider the Constitution a mere scrap of paper to be tossed out the window whenever they chose to arrogate to themselves those powers which were intended only for the Congress or the states or which remained in the people until such time as they chose to delegate them by constitutional amendment.
In other words, the Court composed of Hughes, Stone, Brandeis, Cardozo, Sutherland, Van Devanter, Butler, Roberts, and McReynolds was made up of men well versed in constitutional law. Whatever their opinions, their philosophy was basically American. Nowhere was this better illustrated than in their action on the most important of the early New Deal laws—the National Recovery Act (NRA).
In the NRA, Congress had handed over to the President dictatorial powers by which the central government would have complete control in the management and regulation of every phase of American industry—big and little—from the smallest tailor shop in an American town to the giant steel industry. Although most Americans did not realize it at the time, the NRA was patterned almost exactly after the fascist corporative state which Mussolini had set up in Italy.
The hearing on the constitutionality of the NRA before the Supreme Court, serious as it was, had its comic aspects. The matter came to the Court in the A.L.A. Schechter v. U.S. case, popularly known as the “Sick Chicken” case. Under the NRA, the federal government set up code authorities (in Fascist Italy they were called corporatives) which made rules and regulations for the governing of each phase of each and every industry. The purpose was to regulate hours, wages, working conditions, trade practices, prices, and everything else that could be thought up by the fertile mind of a government bureaucrat. In the code set up for the live-poultry business in and around metropolitan New York, one rule provided that diseased and uninspected poultry could not be sold. (This was the height of redundancy, since there already were stringent federal, state, and local laws on this very subject.) Another rule—set up to do away with the free market in poultry and to keep prices firm—decreed that buyers could not pick and choose among chickens in each coop. If they did, the first buyers would get the best fowl and the remaining fowl might have to be sold at a lower price. Price cutting was anathema to the NRA planners.
The NRA cracked down on a certain poultry dealer, A.L.A. Schechter, for violating its rules and convicted him—with a fine and a jail sentence—on two counts: selling diseased poultry and violating its rule against “straight killing.” When the case reached the Supreme Court, the defendant explained that under “straight killing” a buyer had to put his hand in the coop and take whatever chicken he touched first—he couldn’t pick and choose. Mr. Justice McReynolds, in amazement, asked the defendant’s counsel: “And it was for that your client was convicted?”
“Yes, and fined and given a jail sentence,” replied the lawyer. He went on to explain that if a customer wanted only half a coop of chickens, he had to take them just as they came to him—no choosing. Whereupon Justice Sutherland, from the bench, inquired: “What if the chickens are all at one end?” The answer was drowned out in a gale of laughter from the bar and the audience, in which all the justices joined.
The charge that the poultry dealer had sold diseased fowl was based on the sale of a hen which had passed federal inspection. She wasn’t diseased; she was just, in the language of the trade, “eggbound.”
This incident was matched by many others during those hectic days of the Blue Eagle—the badge of compliance with NRA directives. One man was arrested, indicted, put in jail for several days, and then required to put up bond for violating a law that didn’t exist. A little tailor gained momentary fame when he was sent to jail for pressing a pair of pants for 35 cents—five cents below the code minimum of 40 cents.
But the NRA involved a great deal more than price-cutting pants pressers and eggbound chickens. It was a clumsy attempt to hand over to the federal bureaucrats limitless powers over every phase of our economic life.
All nine justices of the Supreme Court joined unanimously in declaring the NRA unconstitutional. Chief Justice Hughes, speaking for the entire Court, declared: “We think that the code-making authority thus conferred [on the President] is an unconstitutional delegation of legislative power.” And Justice Cardozo added: “This is delegation running riot.”
Then in rather rapid succession came decisions declaring unconstitutional other New Deal laws, such as the AAA, which was designed to wrap the tentacles of federal control around agriculture and farming in the same manner as the NRA had done around industry; and the Bituminous Coal Act, an attempt to control, separately, the workings of the coal industry.
The Bituminous Coal Act was a particularly flagrant case of Roosevelt’s defiance—or ignorance—of the Constitution. Congress had hesitated about passing the law because of doubts as to its constitutionality. Roosevelt thereupon wrote the chairman of the committee in charge of the bill to go ahead and pass it anyway. He said: “I hope your committee will not permit doubts as to constitutionality, no matter how reasonable, to block the suggested legislation.”
Actually, many of the New Deal laws which the Court declared unconstitutional had been creating such a shambles in our economic and social life that it came as something of a relief, even to many members of the New Deal inner circle, when the Court killed them.
But President Roosevelt was angry. He began to vilify the Court and its members. He spoke sneeringly of them as a “horse-and-buggy court.” This vilification—personified in the derisive phrase “the nine old men”—was taken up and expanded in the press, in magazines, and on the radio by the New Deal cohorts and the growing advocates in high places of the socialist revolution. These advocates saw with clarity that America could never be turned into a centrally dominated collectivist society so long as the Constitution stood as the supreme law of the land and the judges of the Supreme Court interpreted it according to its intended meaning.
Immediately following President Roosevelt’s second inauguration, one of his first acts was to launch an all-out attack on the Supreme Court. He demanded of Congress a law by which he might be allowed to appoint a new judge to the Court for every judge then sitting who was 70 years of age or more and thus bring the membership of the Court from nine up to 15. This would have allowed Roosevelt at once to appoint six New Deal justices to nullify the votes on the Court of six sitting judges who were 70 years of age. In this way he could get his unconstitutional New Deal schemes declared valid.
This, of course, was the famous “court-packing” plan. It set off one of the greatest debates in the history of Congress. Mr. Roosevelt thought he had Congress in the palm of his hand, but his plan was too much even for that submissive New Deal body. The fight against the court-packing proposal was actually led by members of Mr. Roosevelt’s own party and after months of angry debate it was killed.
President Roosevelt once tried to make a deal with Chief Justice Hughes, by which Hughes would talk over with him constitutional issues that were before the Court, in return for which Roosevelt would clear proposed legislation with the Chief Justice. Any law clerk could have pointed out to the President the impropriety of such a proposal. But, to Roosevelt, the Chief Justice’s coolness to the idea was simply evidence of the Court’s “unwillingness to cooperate.”
Roosevelt persisted in trying to put over the court-packing plan even after it became evident that Congress was not going to do his bidding. In the process, he alienated some of the so-called liberal justices who were inclined to regard at least some of the New Deal laws with a kindly eye. While the NRA decision had been unanimous, in some subsequent cases Brandeis, Stone, and Cardozo dissented. And in the midst of the court-packing fight several other New Deal laws were validated by these three with an assist from Chief Justice Hughes and Justice Roberts. Some observers of the tune remarked, perhaps unfairly, that Supreme Court justices not only follow the election returns; they read the newspapers and harbor an interest in their “job status”—even as the least of us.
The New Dealers promptly dubbed the dissenters in these later cases—Van Devanter, McReynolds, Sutherland, and Butler—“the Four Horsemen of Reaction.” The leftists gleefully pointed the finger of scorn at Justice Butler because he had become a millionaire, before his appointment to the Court, through his legal services for great railroads. They sneered at Justices Van Devanter and Sutherland because of their old-fashioned “frontier roots” in our western states. Justice Van Devanter, born in Indiana in 1859, had later migrated to Wyoming, where he became a member of the territorial legislature before Wyoming was admitted to the Union. After his adopted state achieved statehood, he became, in 1889, Chief Justice of Wyoming’s Supreme Court. George Sutherland, born in England in 1862, had settled in Utah with his parents. He became a member, in 1896, of the first Utah Senate. But the leftists kept silent about the fortune Justice Brandeis had made in the practice of corporation law and the fact that Justice Stone was a New Hampshire farm boy who became a Wall Street lawyer, director of large corporations, and an intimate of the Morgan partners.
Actually, the court of that day represented a fair cross-section of America. But the leftists were bent on dividing us into the “downtrodden masses” and the “economic royalists.” With a characteristic disregard for facts and the meanings of words, they went merrily about their task. Stone, Brandeis, and Cardozo were the heroes of the piece when they voted to uphold New Deal legislation; Van Devanter, McReynolds, Butler, and Sutherland were the villains; Hughes and Roberts were “good guys” when they voted with the liberals and “bad guys” when they voted with the conservatives. Yet the question arose: why did Roosevelt press for the passage of the court-packing scheme in the face of overwhelming opposition from his own party and at a time when the Court seemed to be swinging, partially at least, to his side?
In the case of Roosevelt himself, the answer must lie partly in his overweening egotism. He thought he could get away with anything. But in the case of the socialist revolutionaries who were more and more surrounding the President, the real answer was revealed in the hearings on the court-packing bill in the Senate. Burton K. Wheeler, the Democratic senator who led the fight against the bill, called before the committee only well-known liberals. For weeks, before the senators there paraded authorities on constitutional law, lawyers, educators, writers whose reputations as liberals could not be questioned. There was Raymond Moley, only a short time before a member of Roosevelt’s brain trust, Dorothy Thompson, Walter Lippmann, Dr. Harold W. Dodds of Princeton, Dean Young B. Smith of Columbia Law, and many others. Every one of them had been critical of the Court’s anti-New Deal decisions. But every one of them declared that the Court should not be tampered with. Much as they disagreed with the actions of the Court, they were horrified at the idea of scrapping a free and independent Court and setting up in its place a Court subservient to the unconstitutional aggressions of the Executive.
In the eyes of the socialist revolutionaries who surrounded the President, the men on the Court who might sometimes vote in favor of this or that piece of New Deal legislation were of the same stripe as the witnesses who appeared in opposition to the court-packing bill. They were for reform—but reform within the American constitutional system. They could not be trusted to scrap the Constitution and thus open the way for the establishment of a collectivist state in America. And so a willing President was egged on to carry his fight against the Court to the bitter end.
The Senate’s defeat of Roosevelt’s court-packing scheme looked to be a stinging defeat for the President—and it was—but Congress unknowingly put into his hands the power he was seeking. It did pass a law permitting Supreme Court justices to retire at 70 on full pay. Weary and disgusted with the attacks on them personally and on the Court generally, two of the older justices, Van Devanter and Sutherland, retired. Time and death did the rest; Cardozo and Butler died and Brandeis resigned. So, in the two years following the defeat of the court-packing plan, Roosevelt was able to fill vacancies on the Court with four new justices—Hugo L. Black, Stanley F. Reed, Felix Frankfurter, and William O. Douglas.
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