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…

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