The Case Of The Chambermaid And The Nine Old Men

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Despite the enormous setbacks the New Deal had sustained, Franklin Roosevelt gave every indication that he was accepting his losses virtually without complaint. Having been drubbed in the press for stating after the NIRA was struck down that the Court was returning the nation to a “horse and buggy” conception of interstate commerce, he had said nothing for the next year. Tipaldo moved him to break his silence to observe that the Court had created a “no-man’s-land” where no government could function. But that was all he would say. While Elsie Parrish’s feeble case was advancing toward its final reckoning in the United States Supreme Court, the President gave not the slightest indication that he had any plans whatsoever to make the Justices any less refractory, for it seemed to him altogether inadvisable in the 1936 presidential campaign to hand his opponents, who were hard put to find an issue, an opportunity to stand by the Constitution. As late as the end of January 1937, after FDR had delivered his State of the Union message and his Inaugural address, the editor of United States Law Week wrote that “last week it was made plain that he does not at the present time have in mind any legislation directed at the Court.”

Less than two weeks later, on February 5, 1937, the President stunned the country by sending a special message to Congress that constituted the boldest attempt a Chief Executive has ever initiated to remold the judiciary. He recommended that when a federal judge who had served at least ten years waited more than six months after his seventieth birthday to resign or retire, the President could add a new judge to the bench. Since this was the most aged Court in history—they were referred to as the “nine old men”—Roosevelt would be able to add as many as six new Supreme Court Justices. He claimed he was presenting this proposal as a way of expediting litigation, but it was widely understood that what he really wanted was a more amenable tribunal. From the very first day, his program was saddled with a designation it could never shake off: the “Court-packing plan.”

Though FDR’s scheme provoked fierce protests, political analysts anticipated that it would be adopted. By winning in a landslide in 1936, Roosevelt had carried so many members of his party into Congress that the Republicans were left with only sixteen of the ninety-six seats in the Senate and fewer than one hundred of the more than four hundred seats in the House. So long as the Court continued to strike down New Deal reforms —and such vital legislation as the Social Security Act was still to be decided on—it was highly unlikely that enough Democrats would desert their immensely popular President to defeat the measure. The very first evidence of the attitude of the Court would come with its decision on Elsie Parrish’s case, and there was every expectation that, acting not many months after Tipaldo , the Court would render an adverse ruling that would improve Roosevelt’s already excellent chances. On the very day the Parrish decision was to be handed down, March 29, 1937, the president of the National Women’s Republican Club declared, “I don’t see how the President’s bill can fail to get a majority.”

March 29 came during the Easter holidays, always a gala season in Washington, D.C., and on that bright Monday morning in early spring, a host of camera-toting tourists and children carrying Easter baskets crowded the steps of the recently opened Supreme Court building and queued up in record numbers to enter the marble palace. The unusually protracted time of 103 days had elapsed since Elsie Parrish’s case had been argued, and it was to be the first judgment handed down since FDR had suggested packing the Court. Some twelve thousand visitors flocked to the building in anticipation that this would be journey’s end for the suit that had begun nearly two years earlier. An hour before the session was to start, at noon, four thousand visitors had already been admitted to the building, where many lined up two abreast from the courtroom doorway almost to the suite of Justice Stone in the idle hope of getting a peek at the proceedings. “There isn’t room for them,” said a police guard, “if they stood here all day long.”

For some minutes it appeared that the spectators who were fortunate to get into the courtroom were also to be frustrated, for the proceedings began with a recital of an opinion on another case by one of the Four Horsemen that left the audience nearly numb with boredom. But when he finished, the Chief Justice leaned forward in his chair, picked up some sheets of paper, and announced, “This case presents the question of the constitutional validity of the minimum wage law of the State of Washington.” This was to be Elsie Parrish’s day after all, and the spectators stirred in anticipation. Hughes, fully aware of the effect he was having and surely conscious of his magnificent appearance (with his patrician features, sparkling eyes, and well-groomed beard, he was often likened to Jove), raised his voice to overcome the bustle, then paused and peered out over the crowded chamber for a moment before returning to his written opinion.