The Case Of The Chambermaid And The Nine Old Men

From the very first day he proposed it, Roosevelt’s plan to add extra judges to the bench was saddled with a designation it could never shake off: the “Court-packing plan.”

Consequently, not a few missed altogether Sutherland’s first sentence, and even those who did hear it needed a moment to take in its full import. “Mr. Justice Van Devanter, Mr. Justice McReynolds, Mr. Justice Butler and I think the judgment of the court below should be reversed,” Sutherland began. A commonplace utterance, yet it signaled a historic shift in the disposition of the Supreme Court. Once again, the Justices had divided 5-4, but this time Owen Roberts had abandoned the Conservative Four to compose a new majority that, on this day, and in the days and months and years to come, would legitimate the kind of social legislation that in FDR’s first term had been declared beyond the bounds of governmental authority. The loss of Roberts did not go down easily. In the course of the afternoon, noted one captious commentary, “the Four Horsemen of Reaction whom he had deserted looked glum and sour.”

After no more than a cursory paragraph saying that all the contentions that had just been advanced in Parrish had been adequately disposed of in Adkins and Tipaldo , Sutherland delivered a dissent that for quite some time constituted less a reply to Hughes and the majority in Parrish than to Justice Stone’s 1936 calls for judicial restraint in cases such as Tipaldo . Undeniably, a Justice was obliged to consider the contrary views of his associates, Sutherland acknowledged, “but in the end, the question which he must answer is not whether such views seem sound to those who entertain them, but whether they convince him that the statute is constitutional or engender in his mind a rational doubt upon that issue.” He added: “The oath which he takes as a judge is not a composite oath, but an individual one. And in passing upon the validity of a statute, he discharges a duty imposed upon him , which cannot be consummated justly by an automatic acceptance of the views of others which have neither convinced, nor created a reasonable doubt in, his mind. If upon a question so important he thus surrender his deliberate judgment, he stands forsworn. He cannot subordinate his convictions to that extent and keep faith with his oath or retain his judicial and moral independence.”

Though Sutherland had been directing most of his barbs at Stone (Hughes’s opinion had been all but forgotten), these last words may well have had a different target. His remarks, one writer conjectured, must have been intended as a rebuke to Owen Roberts. Perhaps so, for the minority opinion did appear to be irritating Roberts, who, after looking toward Sutherland several times, raised a handkerchief to his mouth.

Sutherland, for his part, had hit full stride. After sipping some water, he seemed to gain strength, and his voice resounded throughout the chamber. Indeed, the Washington Post characterized the reading by the “usually mild-mannered Sutherland” as nothing less than “impassioned.” The elderly judge, described in another account as “pale, grimlipped,” even went so far as to rap his knuckles on the dais as he took issue with the President, though never by name; with Justice Roberts, no longer his ally; and even more vigorously, again without mentioning him directly, with Justice Stone. In rebuttal to the Chief Justice’s assertion that the case before the Court required a fresh examination, in part because of the “economic conditions which have supervened,” Sutherland stated bluntly, “The meaning of the Constitution does not change with the ebb and flow of economic events.”

Within days after the Parrish decision was handed down, Washington insiders were regaling each other with the sentence “A switch in time saved nine.”

When, having read nearly five pages of his opinion, Sutherland finally turned to the case before the Court, he said little more than that West Coast Hotel Co. replicated the situation in Adkins . In every important regard, the two statutes involved had identical “vices,” Sutherland maintained, “and if the Adkins case was properly decided, as we who join in this opinion think it was, it necessarily follows that the Washington statute is invalid.” It was beyond dispute, he asserted, that the due process clause embraced freedom of contract, and Sutherland remained convinced, too, that women stood on an equal plane with men and that legislation denying them the right to contract for low-paying jobs was discriminatory. “Certainly a suggestion that the bargaining ability of the average woman is not equal to that of the average man would lack substance,” he declared. “The ability to make a fair bargain, as everyone knows, does not depend upon sex.”