Bracing for the Court

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

The New York Sun
NY Sun
NEW YORK SUN CONTRIBUTOR

One of the things to think about in respect of the Obamacare case coming up this week for a hearing at the Supreme Court is what might happen if the court invalidates the law. The measure is, after all, one of the centerpieces — even the centerpiece — of President Obama’s administration, which was swept into power in a landslide. It barely made it through the Congress, but it made it. And we are faced with at least the possibility that it will be cut down in a fell swoop.

This is a moment to remember that we have been here before, back during the Great Depression. That was when an appeal to the Supreme Court, by a family of kosher butchers, challenged the constitutionality of the National Industrial Recovery Act, which was the centerpiece of the New Deal. Agents of the National Recovery Administration, which implemented the law, had raided the Schechter family’s business and brought the brothers up on criminal charges.

They appealed to the Supreme Court on much the same grounds as the states are now making their appeal on health care — namely, that the government was reaching too far under its power, granted in Article One, Section Eight of the Constitution, to regulate commerce among the several states. In the Obamacare lawsuits, 26 states are arguing that the the president’s health care plan exceeds the reach allowed under the commerce clause when it requires inividuals to have health insurance. The Schechters argued the clause did not authorize the government to reach into New York and regulate a poulterer there.

The decision in Schechter was handed down in May, 1935. The New York Times described the scene at the court on the day of the reading as being the most dramatic in years, as a capacity crowd thronged the court. “Electric” was the word the Times used to describe the mood in the ceremonial courtroom, even before the nine justices filed in. Donald Reichberg, the head of the NRA confided to a friend that he felt like he was awaiting a verdict of guilt or innocence to be brought in from a jury.

Then the chief justice of the United States, Charles Evans Hughes, began reading with what the Times called “unusual vehemence,” shifting in his chair, rocking back and forth, and stroking his beard as he read a decision that, it soon became clear, was what the Times characterized as a “death knell of the NRA.” The vote of the court was nine to zero. The next day the headline in the Times was: “ALL NRA ENFORCEMENT IS ENDED BY PRESIDENT AS SUPREME COURT RULES ACT AND CODES VOID; WHOLE OF NEW DEAL PROGRAM IN CONFUSION.”

Other headlines reported that organized labor was “dazed” by the decision. The staff of the National Recovery Administration was devastated. It later turned out that after the decision was read by the chief justice and the court had retired from the bench, Justice Brandeis, who had been elevated to the high bench by President Wilson, sent out a message inviting a member of FDR’s brain trust, Thomas “Tommy the Cork” Corcoran back into the robing room, where Brandeis is reported by historians to have told him: “This is the end of this business of centralization, and I want you to go back and tell the president that we’re not going to let this government centralize everything.”

The press generally saw the ruling as “a victory for fundamental law,” as it was put in the headline in the Times over a roundup of reaction. Roosevelt, said the Herald Tribune, “is shown after two years, by the unanimous opinion of the Supreme Court, including all of its most liberal and progressive members, to have been leading the country down a blind alley.” The Inquirer, in Philadelphia, said the court had established “the truth that no matter what wrecking crew attempts to destroy the vitality of American principles, it must eventually face the highest legal authority . . .”

“An end to slovenly legislative procedure” was predicted, or at least hoped for, by the Boston Herald. The Post-Gazette in Pittsburg predicted the ruling would “force the administration to discard the theories of that group which has been urging regimentation of our whole national life as the guiding principle of the recovery regime.” Said the Star at Indianapolis: “the Constitution must prevail even in an emergency.” In Kansas City, the Star said: “The Constitution is supreme.”

“Economic planning has gone hell-kiting,” is the way it was put in the News and Courier at Charleston, South Carolina. In Denver, the Post proclaimed that “the Constitiution still stands and cannot be stretched by any group of well-meaning but visionary theorists to set up any kind of a political despotism.” Quoth the Dallas News: “Fiat has demonstrated its incompetency to legislate a payroll level out of proportion to industry’s receipts.” Yet from the distance of decades, the editorials are more remarkable for their clarity than their prescience.

For FDR himself did not take the decision lying down. On the contrary, Schechter was the case that precipitated what became the court-packing plan of 1937. This was the scheme by which FDR attempted to expand the court in hopes of getting a higher proportion of justices who saw things his way. Presenting the plan in his fireside chat of March 9, 1937, the president likened the government to a three-horse team in which two of the horses — the Congress and the president — were pulling in one direction and a third horse, the Supreme Court, was pulling in another. Quoth he:

“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 and 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 — 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.”

The plot to expand the court died in the Senate in a death that was little lamented, but then things took a turn. The court began backing away from the series of anti-New Deal and anti-FDR opinions that crested on that day in 1935. The most famous turnabout came in 1943, when a farmer named Roscoe Filburn challenged the right of the Roosevelt administration to limit the amount of wheat he could grow on his own farm for his own use. Filburn lost, in a decision that was also unanimous.

By then the court included but two of the justices who had sat in judgment of the Schechter brothers. They were Owen Roberts and Harlan Stone. Now they, and the rest of the court, were on the other side, though the issues were not exactly the same. Justice Jackson, writing for the whole court, issued a warning about the commerce clause that rings down through the decades: “At the beginning, Chief Justice Marshall described the federal commerce power with a breadth never yet exceeded. He made emphatic the embracing and penetrating nature of this power by warning that effective restraints on its exercise must proceed from political, rather than from judicial, processes.”

______

Woodrow Wilson is the president who elevated Justice Brandeis to the Supreme Court; this editorial has been corrected from an earlier edition.

NY Sun
NEW YORK SUN CONTRIBUTOR

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.


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