The Case Of The Chambermaid And The Nine Old Men


The Tipaldo decision, though, engendered a powerful backlash, not least from some of the members of the Supreme Court. In a strongly worded dissent, Chief Justice Charles Evans Hughes upbraided the majority for failing to acknowledge either that the New York law differed from the statute in Adkins or that the state has “the power to protect women from being exploited by overreaching employers. …” Far more biting was the separate dissent filed by Justice Harlan Fiske Stone on behalf of himself and his fellow Justices Louis Brandeis and Benjamin Cardozo. In one of the most scathing criticisms ever uttered from the bench, Stone accused the Court of indulging its “own personal economic predilections,” for he found “grim irony in speaking of the freedom of contract of those who, because of their economic necessities, give their services for less than is needful to keep body and soul together.” In an impassioned warning to his brethren to exercise more selfrestraint, Stone asserted, “The Fourteenth Amendment has no more embedded in the Constitution our preference for some particular set of economic beliefs than it has adopted, in the name of liberty, the system of theology which we may happen to approve.”

“The sacred right of liberty of contract again,” Harold Ickes wrote angrily, “the right of an immature child or a helpless woman to drive a bargain with a great corporation.”

Much of the nation shared Stone’s sense of indignation about Tipaldo . Secretary of the Interior Harold Ickes noted angrily in his diary: “The sacred right of liberty of contract again—the right of an immature child or a helpless woman to drive a bargain with a great corporation. If this decision does not outrage the moral sense of the country, then nothing will.” A Republican newspaper in upstate New York declared, “The law that would jail any laundry-man for having an underfed horse should jail him for having an underfed girl employee.”

Only two groups applauded the decision. One was the press in a scattering of cheap-labor towns undismayed by the fact that, following the ruling, the wages of laundresses—mostly impoverished blacks and Puerto Rican and Italian migrants—were slashed in half. The other was a small faction of advanced feminists centered in Alice Paul’s National Woman’s Party. “It is hair-raising to consider how very close women in America came to being ruled inferior citizens,” one of them wrote Justice Sutherland. Their argument was that there should be no special privileges for women—that putting them in a protected category was discriminatory and demeaning. Most women activists, though, were horrified by that view, which they believed reflected the dogmatism of upper-class ladies who had no familiarity with the suffering of workers. They were as devoted as Alice Paul to equal rights, and they must have shuddered at the paternalism implicit in earlier opinions sustaining separate treatment for women on the grounds that they were wards of the state. But they were sure that female employees required protection, and they knew that insistence on the principle of equal rights meant no minimum wage law whatsoever, since the Court, as constituted in FDR’s first term, would never sanction social legislation for men. “Thus,” the historian Mary Beard wrote Justice Stone, Alice Paul “plays into the hands of the rawest capitalists.”

Stone, himself, had no doubt of the implications of Tipaldo . “We finished the term of Court yesterday,” he wrote his sister, “I think in many ways one of the most disastrous in its history. … Our latest exploit was a holding by a divided vote that there was no power in a state to regulate minimum wages fcv women. Since the Court last week said this could not be done by the national government, as the matter was local, and now it is said that it cannot be done by local governments even though it is local, we seem to have tied Uncle Sam up in a hard knot.”

Tipaldo , handed down on the final day of the term, climaxed an extraordinary thirteen months in which the Court struck down more important socioeconomic legislation than at any time in history. During that brief period it destroyed the two foundation stones of Roosevelt’s recovery program, the National Industrial Recovery Act and the Agricultural Adjustment Act; turned thumbs down on a number of other New Deal laws and state reforms; and cavalierly rebuked the President and his appointees. The NIRA ruling had been unanimous, but almost all the others had come in split decisions, most often with the “Four Horsemen,” Pierce Butler, James McReynolds, George Sutherland, and Willis Van Devanter, a quartet of adamantly conservative judges, joined in the spring of 1935 by the youngest member of the bench, Owen Roberts. At the end of the term, a nationally syndicated columnist wrote, “After slaughtering practically every New Deal measure that has been dragged before it, the Supreme Court now begins its summer breathing spell, ending a winter’s performance which leaves the stage, as in the last act of a Shakespearean tragedy, strewn with the gory dead.”