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How Did Judges Become So Powerful? The Economic Court, Part 3 of 4
Monday, 27 November 2000 14:23 (ET)
How Did Judges Become So Powerful? The Economic Court, Part 3 of 4
By JAMES CHAPIN, UPI Political Analyst
As the nation waits for the courts to sort out the 2000 presidential
election, historian and UPI political analyst James Chapin shows how courts
came to have such authority that they can decide who becomes president. It
wasn't always so, as Chapin points out in the third part of this four-part
series.
WASHINGTON, Nov. 24 (UPI) -- By the end of the Civil War, the Supreme
Court was hardly supreme. Rather, it was by far the weakest of the three
branches of government -- a body which was, and had to be, very hesitant at
intervening in any political question and whose decisions were often
disregarded or quickly overturned.
Salmon P. Chase served as Chief Justice for just nine years, and he was
the last purely political Chief Justice - still maneuvering for the
pesidency from the bench. His tenure saw the court beginning to move from
the issues of the Civil War to the issues of economic power that were to be
the main focus of legal activity for the next seven decades.
After the War, the court took stands against military power that it had been
unwilling to do during the conflict. In Ex Parte Milligan (1866) it ruled
that neither the president nor Congress could authorize military commissions
to try civilians in areas far from conflict; in the "Test Oath cases" of
1867, heard simultaneously (Cummings v. Missouri and Ex Parte Garland), it
held that oaths of past allegiance to the Union were ex post facto and bills
of attainder.
But on matters of legislative and executive action, the court continued
its long-standing position that "purely executive and political functions"
were not subject to judicial restraint (Mississippi v. Johnson, 1867) and
that the court had no jurisdiction on such questions (Georgia v. Stanton,
1867).
In Texas v. White (1869) Chase solved the "problem" of actions taken by
Confederate governments by declaring simply that secession was illegal and
therefore the Confederacy had never existed: "The Constitution . . . looks
to an indestructible Union, composed of indestructible states."
But when the court in Hepburn v. Griswold (1870), overturned the Legal
Tender Acts of 1862 and 1863 as violating the obligation of contracts and
due processes clauses of the 5th Amendment, President Ulysses S. Grant
quickly appointed two new justices, William Strong and Joseph Bradley, and
in two more cases (Knox v. Lee and Parker v. Davis) the next year these
justices ruled in the opposite direction, justifying legal tender as a valid
exercise of national power. This "court-packing" exercise drew some
criticism, but it was hardly overwhelming.
However, in Collector v. Day the same year, the court invalidated a
federal income tax on the salary of state officials, creating an area of
intergovernmental tax immunities that lasted for 68 years.
In the so-called Slaughterhouse cases (1873), the court began to parse the
14th Amendment, and it restricted the application of that Amendment to
federal action, thereby leaving most civil rights issues to the "protection"
of the states. This began the process by which conservative courts removed
the protections of the 14th amendment from blacks, but extended them to
corporations.
In the great controversy over the election of 1876, the Supreme Court was
not consulted, although five of its members were chosen to be part of the
15-member electoral commission decided upon by the two Houses of Congress,
with the understanding that independent David Davis and two members from
each party would serve.
The Republicans of Illinois immediately elected Davis to the Senate,
thereby leaving only Republican justices available -- Joseph T. Bradley was
chosen, he voted with the Republicans on four straight 8-7 decisions between
February 1st and March 2nd, 1877, and Hayes, after a back-room deal with the
Democrats to surrender the Southern blacks to their mercy, won the election.
None of Chase's three successors as Chief Justice, Morrison Waite
(1874-88), Melville Fuller (1888-1910) or Edward White (1910-21) is well
remembered. Instead, the best known members of the court tended to be those
who dissented much of the time, men such as John Marshall Harlan and Oliver
Wendell Holmes.
In 1883, in five civil rights cases, the court declared the Civil Rights
Act of 1875 invalid for protecting social rather than political rights, and
that it did not protect blacks from discrimination by individuals. Three
years later, in Santa Clara Co. v. Southern Pacific Railroad Company, Chief
Justice Waite proclaimed that the 14th Amendment word "persons" applied to
corporations.
The process of removing the protections of the Amendment from those for
whom it was originally intended, and applying them instead to private
corporations was well under way. Plessy v. Ferguson (1896), which allowed
states to segregate their railways, pretty well completed the process of
abandoning blacks to the policies of individual states.
Meanwhile the courts were deeply involved in economic issues. Their
decisions in individual cases varied, but the general direction was more and
more to favor corporations as against any challengers -- states, the federal
government, or labor unions.
Although Munn v. Illinois (1877) upheld an Illinois law fixing maximum
rates for grain storage as a legitimate use of the state's police power in
regulating business affected with a "public interest," Wabash, St. Louis and
Pacific Railroad Co. v. Illinois (1886) struck down a statute concerning
transportation contracts on the grounds that it weakened congressional
control of the issue, creating a "twilight zone" of freedom for corporations
in which neither state nor federal governments could act.
The court went on to assert its right to review all state actions in
Reagan v. Framer's Union and Trust Company (1894): "It has always been a
part of the judicial function to determine whether the act of one party . .
. operates to divest another party of any rights of person or property." In
the very next year, the court gutted the Sherman Anti-Trust Act but
declaring that it applied only to commerce, not manufacturing combinations
(U.S. v. E.C. Knight Co.), and overturned the income tax altogether (Pollock
v. Farmer's Loan and Trust Co.), while In Re Debs. left the future socialist
leader in jail on the grounds that injunctions against unions for
restricting trade were legal.
Although the court barely upheld the Sherman Act in its use against a
railroad trust (U.S. v. Trans-Missouri Freight Association, 1897) and upheld
the right of Utah to regulate mining work hours (Holden v. Hardy, 1898), it
also overturned, in Smyth v. Ames (1898), a Nebraska act, which set railroad
rates as a deprivation of property without due process. It established a
vague "rule of reason," which left the courts in a position to have to
decide every such case.
It is worth noting that this claim for involvement of the courts in every
economic decision made by any level government was hailed by conservatives,
although it was a breathtaking claim of authority for unelected bodies.
Having made this claim with relative success, the court retreated for a
few years, restoring some authority to the anti-trust laws in Addyston Pipe
and Steel Co. v. U.S. (1899), recognizing "a Federal police power" in
Champion v. Ames (1903) reviving the Sherman Anti-trust law in Northern
Securities Co. v. U.S. (1904) and Swift and Co. v. U.S. (1905).
Then the court went on its course of asserting economic authority. In
Lochner v. New York (1905) it overturned a New York law establishing maximum
hours for bakers as an interference with the right of contract. Justice
Holmes famously dissented, saying that the decision was based on "an
economic theory which a large part of the country does not entertain ...The
14th Amendment does not enact Mr. Herbert Spender's Social Statics ...(The
Constitution) is not intended to embody a particular economic theory,
whether of paternalism ... or of laissez-faire."
Undeterred, the court went on in 1908 to overturn the Erdman Act (Adair v.
U.S.) forbidding yellow-dog contracts (contracts barring a worker from ever
joining a union) and in the "Danbury Hatter's case" (Loewe v. Lawler, 1908)
began the use of the Sherman Act against unions.
But the effects of the Progressive Era and World War I were felt even on
the Supreme Court. In Muller v. Oregon (1908), the court upheld a state law
regulating working hours of women, in Standard Oil Co. of N.J. et. al. v.
U.S. (1911) it upheld the dissolution of the company, in the Minnesota Rate
cases (1913) it allowed the state to set railroad rates, and in Wilson v.
New (1918) it allowed Congress to set an 8-hour day for railroad workers.
That decision was justified on the basis of wartime emergency, and the
court in 1918-19 justified, on the same grounds, the national draft,
prohibition in war time, and the president's right to seize and operate the
railroads, as well as the wartime Esprionage and Sedition acts. These latter
two decisions led to the formation of the American Civil Liberties Union.
After the end of the war, the tendency to the "right" climaxed during the
Chief Justiceship of former President William Howard Taft (1921-30). Some
high points: Duplex Printing Press Co. v. Deering (1921), which invalidated
the anti-injunction provisions of the Clayton Anti-Trust Act of 1915, thus
leaving unions open to injunctions (this was strengthened by Truax v.
Corrigan the next year, which invalidated a state law against such
injunctions), and Bailey v. Drexel Furniture Co. (1922), which overturned
the Child Labor Act as an unconstitutional regulation of labor.
In Adkins v. Children's Hospital (1923) the court invalidated a minimum
wage law for women in the District of Columbia as violating the 5th
Amendment. The same year in Wolff Packing Co. v. Court of Industrial
Relations, the court restricted the definition of public interest to the
narrow question of monopoly.
The court of Charles Evans Hughes (1930-41), former Republican candidate
for president, and one of the few men to serve non-consecutive terms on the
court, saw the court's last great confrontation with a president, a
confrontation that ended in a draw.
Although the court avoided confronting the government over the end of the
gold standard (in a Marbury v. Madison-like cleverness in Perry v. U.S.,
1935, ruling against the government while disallowing the plaintiff's
complaint), it soon took the entire New Deal program on directly. In 1935 in
Schechter v. U.S. it invalidated the NIRA, and in Retirement Board v. Alton
Railroad Company it overturned the Railroad Retirement Act, and in 1936 in
U.S. v. Butler it overturned the AAA.
In the 1936 election, FDR won the presidency by the greatest majority in
two-party history. He held that: "We must take action to save the
Constitution from the Court and the Court from itself." In the new Congress,
he proposed to expand the size of the court from 9 to 15 members.
Conservatives exploded, and managed to face the president down. But they
might not have succeeded, had the court not, in a series of 5-4 decisions
("the switch in time that saved nine") approved (March 29th-May 24th) most
of the New Deal, including minimum wage laws, the National Labor Relations
Board, and the Social Security Laws.
By the decisions of 1937, the court had saved itself from being "packed" by
abandoning its role as the great protector of corporate capitalism. But the
ability of the court to survive a challenge by the most formidable modern
president with a huge majority in Congress showed that decades of support by
the conservative press had made its mark.
FDR appointed seven judges in the next four years, so the practical effect
of the struggle was, ironically, to leave a now liberal court much stronger
morally than the court had ever been. The court, however, had been forced to
abandon its claim to be the final arbiter of the economic fate of the
nation.
--
Copyright 2000 by United Press International.
All rights reserved.
-----
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