And sharply divided those wings were. On the right were four justices whose championship of unfettered private enterprise was uncompromising: Willis Van Devanter, Pierce Butler, George Sutherland, and James McReynolds, known as The Four Horsemen. On the left were Louis Brandeis, Harlan Fiske Stone, and Benjamin Cardozo. In the center stood the chief justice, Charles Evans Hughes, a consensus-builder who fretted about how the Court was perceived during what was shaping up as an era of economic calamity. In this context, Roberts came to the bench as a potential powerhouse; as Solomon puts it, “The Four Horsemen could not prevail without the vote of either Roberts or Hughes, nor could the liberals win without both.” It wasn’t long, however, before Roberts held the balance alone. Just as pundits used to sum up the pivotal position of Justice Sandra Day O’Connor before her retirement, or that of Justice Anthony Kennedy today, by talking about the O’Connor or Kennedy Court, so in the 1930s it was “the Roberts Court.”
Roberts didn’t make it easy for court watchers to discern a pattern in the stands he took. In Nebbia v. New York (1933), he sided with the liberals and Hughes in upholding a $5 fine imposed by the state on a farmer who had violated a law fixing the price of milk; the idea was to gain control over production and help dairy farmers survive. To the Four Horsemen, this was an easy case: government can’t mess with a man’s right to run his business as he sees fit. But Roberts, who had himself become a gentleman farmer in Chester County, Pennsylvania, saw it otherwise in the opinion he wrote for a 5-4 majority: “Equally fundamental with the private right is that of the public to regulate it in the common interest.” The decision augured well for the constitutionality of the New Deal statutes that the president and the Congress were improvising as responses to the Depression.
The augury proved to be misleading. Over the next three years, Roberts leaned the other way, relying on a narrow interpretation of the term “interstate commerce” (economic activities not involved in such commerce are considered beyond Congress’s reach) and often casting the deciding vote. Solomon totes up the score as it stood in 1936: “Of the ten New Deal laws that had come before the Supreme Court, the justices had overturned eight.” And although in 1933 Farmer Roberts had saved New York State’s milk regulation, in 1936 he helped sink the U.S. Agricultural Adjustment Administration.
Chief Justice Hughes was with him on this one, but the majority opinion Roberts wrote in United States v. Butler may have been the least satisfactory work-product of his legal career. The case addressed a central feature of the Agriculture Adjustment Act: a tax on farm products, the proceeds of which went to pay farmers not to plant crops. As in the milk case, the object was to promote the common good by regulating supply at a time of upheaval. (Indeed, the act led off by declaring a state of emergency.) Early in his opinion, Roberts asserted that the court had only one duty when faced with a constitutional objection to a law: “to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former.” Roberts, Hughes, and the Four Horsemen held the tax unconstitutional because it was levied for a purpose—“to regulate and control agricultural production”—that encroached, in their view, on powers reserved to the states.
In dissent, Justices Stone, Brandeis, and Cardozo objected to the decision on several grounds, the most telling of which was that it left the country tied up in knots: this was no time to look to the states, the dissenters pointed out, because they were “unable or unwilling to supply the necessary relief.” Law professors also took exception, but the unkindest cut may have been inflicted by the anonymous student who analyzed the case in the Penn Law Review. The principle that Congress’s powers are limited by those reserved to the states is “as vague as the due process clause,” the student wrote, “and one which in its application will extend tremendously the influence of the Supreme Court, the only body deemed capable of ascertaining the proper limitations.”
The president expressed his befuddlement, too. On March 4, 1937, after winning election to a second term, Roosevelt rattled off the various New Deal measures struck down by the Court and groused, “I defy anyone to read the opinions … and tell us exactly what, if anything, we can do for the industrial worker in this session of Congress with any reasonable certainty that what we do will not be nullified as unconstitutional.” The president failed to mention that he himself was about to take bold action: unveiling a plan to remove the Court as a roadblock to progress.
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Last modified 10/28/09