The Case Of The Chambermaid And The Nine Old Men


But anybody who thought that those last sentences had a hint of jocularity quite misperceived Sutherland’s mood. The Parrish decision blew taps for the nineteenth-century world, and Sutherland, born in England in 1862 and reared on the Utah frontier, knew it. Having had his say, he understood that there was no point in going on any longer. Wearily, he concluded, “A more complete discussion may be found in the Adkins and Tipaldo cases cited supra .” His discourse at an end, he carefully laid his opinion on the dais and, stern-visaged, settled back in his chair.

When news of the momentous decision, relayed swiftly to every part of the nation over press association wires, reached Sutherland’s supporters, they shared his sense of dismay. Conservatives were outraged. If FDR wanted a political court, said a disgruntled senator, he had one now, for the decision was blatantly political, a transparent effort to kill the Court-packing bill by demonstrating that the judges would no longer misbehave. Ardent feminists were no less incensed. One of them wrote Sutherland: “May I say that the minority opinion handed down in the Washington minimum wage case is, to me, what the rainbow was to Mr. Wordsworth? … You did my sex the honor of regarding women as persons and citizens.”

Most reformers, though, women as well as men, hailed the Parrish ruling as a triumph for social justice and a vindication for FDR, who had been accorded an altogether unexpected victory in the most improbable quarter. One outspoken progressive, the columnist Heywood Broun, commented: “Mr. Roosevelt has been effective not only in forcing a major switch in judicial policy, but he has even imposed something of his style upon the majority voice of the court. There are whole sections in the document written and read by Chief Justice Hughes which sound as if they might have been snatched bodily from a fireside chat.”

Partisans of the President jeered at the Court for its abrupt reversal of views on the validity of minimum wage legislation. Because of the “change of a judicial mind,” observed the attorney general, Homer Cummings, sardonically, “the Constitution on Monday, March 29,1937, does not mean the same thing that it meant on Monday, June 1, 1936.” The head of one of the railway brotherhoods carried that thought a step further in noting, “On Easter Sunday, state minimum wage laws were unconstitutional, but about noon on Easter Monday, these laws were constitutional.” That development perturbed some longtime critics of the Court (“What kind of respect do you think one can instill in law students for the process of the Court when things like this can happen?” Felix Frankfurter asked) but gave others no little satisfaction. A former United States senator from West Virginia wrote: “Suppose you have noticed that the untouchables, the infallible, sacrosanct Supreme Court judges have been forced to put upon the record that they are just a bundle of flesh and blood, and must walk upon the ground like the rest of human beings. 1 got quite a ‘kick’ out of reading that the Supreme Court said, right out loud in meeting, that it had been wrong. Like most of the wrongs done in life, there is no compensation for the great wrongs which that old court has been doing the country; but like all democrats, I am forgiving.”

The performance of the Court proved especially embarrassing for the Chief Justice. Commentators, observing that Hughes had once said of a nineteenth-century decision that the “over-ruling in such a short time by one vote, of the previous decision, shook popular respect for the Court,” pointed out that “now, within a period of only ten months, the Supreme Court had reversed itself on minimum wages, again by one vote.” To be sure, Hughes did not admit that the Court had shifted, and years later Roberts claimed that he had voted with the Four Horsemen in Tipaldo only because New York had not presented the issue in the right manner. Furthermore, we now know that in Parrish Roberts had not been responding to the Court-packing threat since he had cast his vote before the plan was announced. However, scholars, who have the advantage of information not generally known in 1937, find Roberts’s contention that he did not switch unpersuasive.

At the time, no one doubted that the Court, and more particularly Mr. Justice Roberts, had crossed over. “Isn’t everything today exciting?” wrote one of the women who led the National Consumers’ League. “Just to think that silly Roberts should have the power to play politics and decide the fate of Minimum Wage legislation. But, thank God he thought it was politically expedient to be with us.” In a more whimsical vein, The New Yorker remarked: “We are told that the Supreme Court’s about-face was not due to outside clamor. It seems that the new building has a soundproof room, to which justices may retire to change their minds.”