December 1986 | Volume 38, Issue 1
When Elsie Parrish was fired, her fight for justice led to dramatic changes in the nation’s highest court.
When, on a spring day in 1935, Elsie Parrish walked into the office of an obscure lawyer in Wenatchee, Washington, to ask him to sue the town’s leading hotel for back pay, she had no idea she was linking her fate to that of exploited women in a Brooklyn laundry a whole continent away. Still less did she think that she was setting off a series of events that would deeply affect President Franklin D. Roosevelt’s plans for his second term. Least of all did she perceive that she was triggering a constitutional revolution that, even today, remains the most significant chapter in the two centuries of existence of the United States Supreme Court. All that Elsie knew was that she had been bilked.
Late in the summer of 1933, Elsie Lee, a woman of about forty who would soon be Elsie Parrish, had taken a job as a chambermaid at the Cascadian Hotel in Wenatchee, entrepôt for a beautiful recreation area reaching from the Columbia valley to the Cascades, and the country’s foremost apple market. “Apples made Wenatchee and apples maintain it,” noted the WPA guide to Washington; “it is surrounded by a sea of orchards, covered in spring with a pink foam of blossoms, mile upon mile, filling the valleys and covering the slopes; the air of the town is sweet with the fragrance.” Here, in the land of Winesaps and Jonathans, where “in summer and fall the spicy odor of apples is everywhere,” Elsie worked irregularly over the next year and a half at cleaning toilets and sweeping rugs for an hourly wage of twenty-two cents, later raised to a quarter. When she was discharged in May 1935, she asked for back pay of $216.19, the difference between what she had received and what she would have gotten if she had been paid each week the $14.50 minimum wage required for her occupation under state law. The Cascadian, which was owned by the West Coast Hotel Company, offered to settle for a total of $17.00, but she would not hear of it. Instead, she, together with her husband, Ernest, brought suit for all that was due her.
Elsie and Ernest rested their case on the provisions of a statute that had been enacted by Washington State a quarter of a century before when, catching the contagion of reform from neighboring Oregon, the state legislature had taken steps to wipe out sweatshops. The 1913 act declared it “unlawful to employ women or minors … under conditions of labor detrimental to their health or morals; and … to employ women workers in any industry … at wages which are not adequate for their maintenance.” To safeguard the welfare of female employees, the law established a commission that was authorized to call together employers, employees, and representatives of the public who would recommend a wage standard “not detrimental to health and morals, and which shall be sufficient for the decent maintenance of women.” On receiving that recommendation, the commission was to issue an order stipulating the minimum wage that must be paid. For chambermaids, the weekly minimum was set at $14.50. Twice the statute had been challenged in the courts, and on both occasions the Washington Supreme Court had validated the act. Elsie Parrish appeared to have an airtight case.
Alas, any law student in the land could have told her that her case was hopeless, for, twelve years before, the United States Supreme Court had ruled, in a widely reported decision, Adkins v. Children’s Hospital , that a minimum wage act for women was unconstitutional because it violated the liberty of contract that the Court claimed was guaranteed by the Constitution. Though the opinion by Justice George Sutherland commanded only five votes and elicited vigorous dissents, it reconfirmed a notion incorporated in constitutional doctrine only a generation before: that a great corporation and its employee—even someone as powerless as a chambermaid—each has an equivalent right to bargain about wages, a fantasy that Justice Oliver Wendell Holmes dismissed as “dogma” and the renowned commentator Thomas Reed Powell of Harvard Law School called “indefensible.” Adkins , said one commentator, “makes forever impossible all other legislation along similar lines involving the regulation of wages.” In principle Elsie’s case was no different from Adkins . Any statute that deprived a person of life, liberty, or property, without due process of law, was disallowed. Though the Washington law remained on the books, it was presumed to be null and void. Hence, it startled no one when, in November 1935, after hearing Elsie’s case, the presiding judge of the Superior Court of Chelan County, explaining that Adkins bound every court in the nation, ruled against her.
Surprisingly, the Supreme Court of the state of Washington took a different view. On April 2,1936, it overturned the lower court’s decision, thereby finding in Elsie Parrish’s favor. To get around the huge obstacle of Adkins , the court pointed out that the U.S. Supreme Court had never struck down a state minimum wage law, which was true but irrelevant. The decision gave the Parrishes a moment of euphoria, but it hardly seemed likely that this opinion would, in the light of Adkins and the hostility of Justices such as Sutherland, survive a test in the United States Supreme Court.
Just eight weeks later the U.S. Supreme Court settled any doubt on that matter by a decision on a case that, three thousand miles from Wenatchee, had begun to wend its way through the judicial system while Elsie Parrish was still making beds in the Cascadian Hotel. It arose out of the hope of social reformers in New York, especially women active in the Consumers’ League, that the Court, despite Adkins , might look favorably on a minimum wage law for women and minors if it was drafted to emphasize the value of the services rendered as well as the needs of women. To that end Felix Frankfurter of Harvard Law School and Benjamin Cohen, a former law clerk of Justice Brandeis, crafted a model law. New York State adopted it in 1933, during the fourth year of a great depression that had reduced some young women, paid starvation wages, to sleeping on subways. Frankfurter warned that it was “foolish beyond words” to expect the Court to reverse itself, but he hoped that the Justices might be willing to distinguish this statute, with its added feature of “value of services,” from the one struck down in Adkins . “Every word” of the New York law, explained a prominent woman reformer, was “written with the Supreme Court of the United States in mind.”
In accordance with the provisions of the model legislation, New York State obtained an indictment against Joseph Tipaldo, manager of the Spotlight Laundry in Brooklyn, who had been brutally exploiting his nine female employees, first by paying them far below the state minimum wage and then by pretending to pay the minimum but forcing the sweatshop laundresses to kick back the difference between what the state required and what he actually intended to pay. When Joe Tipaldo went to jail to stand trial on charges of disobeying the mandatory wage order and of forgery, the hotel industry (the same business that would be involved in the Parrish case) rushed to his side with an offer to bankroll a test of the constitutionality of the New York law. Since hotels were working their employees twelve hours a day, seven days a week, they had a high stake in the case. In fact, the state had already begun minimum wage proceedings against them. Consequently, each hotel put money in a kitty to finance Tipaldo’s petition for a writ of habeas corpus to compel the warden of Brooklyn’s city prison to release the laundry manager from custody. While his case was being prepared, Tipaldo, utterly shameless, renamed his firm the Bright Light Laundry and made a big investment in expanding his business. He explained, “I expect to get it back eventually on what I save in wages.”
On June 1,1936, the United States Supreme Court appeared to justify his optimism when, in a 5-4 decision, it struck down New York’s minimum wage law. In a sweeping opinion by one of the most conservative Justices, the Court said that there was no meaningful difference between the New York statute and the D.C. act that had been invalidated in Adkins , for both violated the liberty of contract that safeguarded equally the rights of employer and employee to bargain about wages. After quoting from Adkins with obvious approval, the Court declared, in language that shocked champions of social reform, “The decision and the reasoning upon which it rests clearly show that the State is without power by any form of legislation to prohibit, change or nullify contracts between employers and adult women workers as to the amount of wages to be paid.” Those words all but doomed Elsie Parrish’s cause, and gave Joe Tipaldo the victory of a lifetime.
That victory, however, turned out to carry a very high price. “After the court decision, business looked good for a while,” Joe told a reporter three months later. “1 was able to undercharge my competitors a little on what I saved in labor costs.” But then business started to fall off, then fell some more. “I think this fight was the cause of my trouble,” he said. “My customers wouldn’t give my drivers their wash.” Before the summer was over, the Bright Light Laundry had folded and Joe Tipaldo was unemployed. “I’m broke now,” he confessed. “I couldn’t stand the gaff.”
Elsie Parrish was made of sterner stuff. She was determined to carry on her struggle, though her prospects seemed bleak indeed. Given the precedent of Adkins , her case had never been promising. At one point the attorney for the West Coast Hotel Company asked the Washington Supreme Court judge who had written the opinion sustaining that state’s minimum wage law in Parrish how he could possibly have done so in view of what the U.S. Supreme Court had said in Adkins . The judge replied, “Well, let’s let the Supreme Court say it one more time.” Now, in Tipaldo , the Court had stated unequivocally “one more time” that minimum wage laws for women were invalid. So gloomy was the outlook that, on the advice of Ben Cohen and Felix Frankfurter, the Consumers’ League did not even file a brief in Parrish . “We are both rather pessimistic regarding its outcome,” Cohen confided. Elsie Parrish had every reason to expect the worst.
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.”
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.”
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.
Not for some time did Hughes indicate what the Court had decided. Anxious minutes passed as he labored through a reprise of the facts in the case, and when he finally took up one of the arguments of Elsie Parrish’s attorneys, he did so only to reject it disdainfully. It was “obviously futile,” he said, for counsel to claim that the present case could be distinguished from Adkins on the grounds that Mrs. Parrish had worked for a “hotel and that the business of an innkeeper was affected with a public interest.” As it happened, he noted, one of the cases Adkins had disposed of had dealt with a hotel employee. If the Washington State law was to survive the day, it would need a better justification than this rickety effort.
It took only a moment more for Hughes to reveal that the Court was prepared to meet Adkins head on. Unlike Tipaldo , where the U.S. Supreme Court had felt bound by the ruling of the Court of Appeals of New York that the New York minimum wage act could not be distinguished from the statute in Adkins and hence was invalid, Parrish , the Chief Justice declared, presented a quite different situation, for the highest tribunal of the state of Washington had refused to be guided by Adkins and had sanctioned the law in dispute. “We are of the opinion that this ruling of the state court demands on our part a reëxamination of the Adkins case,” he continued. “The importance of the question, in which many States having similar laws are concerned, the close division by which the decision in the Adkins case was reached, and the economic conditions which have supervened, and in the light of which the reasonableness of the exercise of the protective power of the State must be considered, make it not only appropriate, but we think imperative, that in deciding the present case the subject should receive fresh consideration.” To do so properly, he observed, required careful examination of the doctrine of freedom of contract that had bulked so large in Adkins .
“What is this freedom?” Hughes inquired, his voice rising. “The Constitution does not speak of freedom of contract.” Instead, the Constitution spoke of liberty and forbade denial of liberty without due process of law. The Constitution did not recognize absolute liberty, however. “The liberty safeguarded is liberty in a social organization,” he declared. “Liberty under the Constitution is thus necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process.” As the Chief Justice spoke, members of the bar in the choice seats near the bench followed his every word as though transfixed, and Hughes’s delivery of the opinion in “a clear, resonant voice,” noted one correspondent, “electrified and held spellbound the spectators who crowded every corner of the majestic Supreme Court chamber.”
The Court had long since established that the State had especial authority to circumscribe the freedom of contract of women, the Chief Justice continued. In Muller v. Oregon (1908), he pointed out, the Court had fully elaborated the reasons for accepting a special sphere of State regulation of female labor. In that landmark case the Court had emphasized, in the words of Justice David Brewer, that because a woman performs “maternal functions” her health “becomes an object of public interest and care in order to preserve the strength and vigor of the race.” Hence, Brewer had gone on, a woman was “properly placed in a class by herself, and legislation designed for her protection may be sustained even when like legislation is not necessary for men and could not be sustained.” The State could restrict her freedom of contract, the Court had determined, not merely “for her benefit, but also largely for the benefit of all.”
The precedents established by Muller and several later rulings had led the dissenters Adkins to believe that the D.C. minimum wage law should have been sustained, and with good reason, Hughes asserted. The dissenting Justices had challenged the distinction the majority Adkins had drawn between maximum hours legislation (valid) and minimum wage statutes (invalid), and that challenge remained “without any satisfactory answer.” The Washington State law was essentially the same as the D.C. act that had been struck down in Adkins , he acknowledged, “but we are unable to conclude that in its minimum wage requirement the State has passed beyond the boundary of its broad protective power.” In that sentence, however convoluted, Hughes had said what for some minutes past it had been clear he was going to say: the Supreme Court was sustaining Washington’s minimum wage law. Against all odds, Elsie Parrish had won.
Lest anyone miss the implication of the Court’s reasoning, the Chief Justice spelled it out: “The Adkins case was a departure from the true application of the principles governing the regulation by the State of the relation of employer and employed.” In short, Adkins , written by Sutherland and carrying the votes of a number of Hughes’s other brethren, was being put to death in its fifteenth year. One could not possibly reconcile Adkins , Hughes maintained, with “wellconsidered” rulings such as Muller . “What can be closer to the public interest than the health of women and their protection from unscrupulous and overreaching employers?” he asked. “And if the protection of women is a legitimate end of the exercise of state power, how can it be said that the requirement of the payment of a minimum wage fairly fixed in order to meet the very necessities of existence is not an admissible means to that end?”
With an eloquence, even passion, few thought him capable of, the Chief Justice added: “The legislature of the State was clearly entitled to consider the situation of women in employment, the fact that they are in the class receiving the least pay, that their bargaining power is relatively weak, and that they are the ready victims of those who would take advantage of their necessitous circumstances. The legislature was entitled to adopt measures to reduce the evils of the ‘sweating system,’ the exploiting of workers at wages so low as to be insufficient to meet the bare cost of living, thus making their very helplessness the occasion of a most injurious competition.”
Since many states had adopted laws of this nature to remedy the evil of sweatshop competition, the enactment of such legislation by the state of Washington could not be viewed as “arbitrary or capricious, and that is all we have to decide,” Hughes said. “Even if the wisdom of the policy be regarded as debatable and its effects uncertain, still the legislature is entitled to its judgment.” Delighted at what they were hearing, the New Deal lawyers in the chamber smiled broadly and nudged one another.
In his closing remarks the Chief Justice advanced an “additional and compelling” reason for sustaining the statute. The exploitation of “relatively defenceless” employees not only injured those women, he asserted, but directly burdened the community, because “what these workers lose in wages the taxpayers are called upon to pay.” With respect to that reality, he said, the Court took “judicial notice of the unparalleled demands” the Great Depression had made upon localities. (That comment revealed how far he was reaching out, for the state of Washington had submitted no factual brief about any added responsibilities, and the statute in question had been enacted long before the Wall Street crash.) Hughes did not doubt that the state of Washington had undergone these tribulations, even if it had not troubled to say so, and’that deduction led him to state, again with unexpected acerbity: “The community is not bound to provide what is in effect a subsidy for unconscionable employers. The community may direct its law-making power to correct the abuse which springs from their selfish disregard of the public interest.” Consequently, the Chief Justice concluded, “The case of Adkins v. Children’s Hospital … should be, and it is, overruled,” and the judgment of the Supreme Court of the state of Washington on behalf of Elsie Parrish “is affirmed.” Some two years after she changed sheets in the Cascadian Hotel for the last time, the Wenatchee chambermaid was to receive her $216.19 in back pay.
It would require some time for Court watchers to grasp the full implications of Hughes’s opinion in Parrish —to write of the “Constitutional Revolution of 1937”—but George Sutherland’s dissent revealed that the Four Horsemen understood at that very moment that their long reign, going all the way back to Adkins and even before, with only slight interruption, had abruptly ended. When, having spoken the final words, the Chief Justice nodded to Justice Sutherland seated to his left, Sutherland surveyed the chamber silently, almost diffidently, before picking up the sheaf of papers in front of him and beginning to read. Sensing his day had passed, Sutherland appeared barely able to bring himself to carry out his futile assignment. He started off speaking in a curiously toneless murmur, and even those nearby had trouble at first catching his words. In the rear of the room, all was lost.
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.”
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.”
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.”
Yet despite all the ridicule directed at the Court, Hughes read the opinion in Elsie Parrish’s case with an unmistakable note of exultation in his voice. For by being able to show that he had won Roberts to his side in Parrish , he had gone a long way toward defeating the Court-packing scheme. Once Roosevelt had a 5-4 majority for social legislation, there no longer appeared to be an urgent need for a drastic remedy. “Why,” it was asked, “shoot the bridegroom after a shotgun wedding?” Not for nearly four months would FDR’s proposal be finally, rejected, and it would retain substantial backing almost to the very end, but never was it as formidable a proposition as it had been on the eve of Elsie Parrish’s case. Within days after the decision was handed down, Washington insiders were regaling one another with a saucy sentence that encapsulated the new legislative situation: “A switch in time saved nine.”
The Court’s shift in Parrish proved to be the first of many. On the very day that Parrish was decided, “White Monday,” the Court also upheld a revised farm mortgage law (the original one had been struck down on “Black Monday,” in 1935) as well as other reform statutes. Two weeks later, once more by 5-4 with Roberts in the majority, it validated the Wagner Act (the National Labor Relations Act) and in the following month it turned aside challenges to the Social Security Act. Indeed, never again did the Supreme Court strike down a New Deal law, and from 1937 to the present it has not overturned a single piece of significant national or state legislation establishing minimal labor standards. Many commentators even believe that the Court has forever abandoned its power of judicial review in this field. Little wonder then that analysts speak of the “Constitutional Revolution of 1937.”
Battle-scarred veterans of the minimum wage movement found themselves in a universe remade. The seventeen states with minimum wage statutes on their books now took steps to enforce them, and New York made plans to enact new legislation to replace the law struck down in Tipaldo . Even more consequential were the implications of Parrish for the national government. Late in 1936 President Roosevelt had told newspapermen of an experience on the streets of New Bedford when his campaign car was mobbed by enthusiastic well-wishers, twenty thousand of them crowded into a space intended to hold a thousand:
“There was a girl six or seven feet away who was trying to pass an envelope to me and she was just too far away to reach. One of the policemen threw her back into the crowd and I said to my driver ‘Get the note from that girl.’ He got it and handed it to me and the note said this … ‘Dear Mr. President: I wish you could do something to help us girls. You are the only recourse we have got left. We have been working in a sewing factory … and up to a few months ago we were getting our minimum pay of $11 a week. … Today the 200 of us girls have been cut down to $4 and $5 and $6 a week. You are the only man that can do anything about it. Please send somebody from Washington up here to restore our minimum wages because we cannot live on $4 or $5 or $6 a week.’
“That is something that so many of us found in the Campaign, that these people think that I have the power to restore things like minimum wages and maximum hours and the elimination of child labor. … And, of course, 1 haven’t any power to do it.”
Now, thanks to the constitutional revolution that the Wenatchee chambermaid had detonated, Congress was able to give him that power, and when the Fair Labor Standards Act of 1938 that set minimum wages and maximum hours for both men and women was challenged in the courts, a reconstituted Supreme Court found no difficulty in validating it.
Long before then Elsie Parrish had faded into the anonymity from which she had risen, and when more than thirtyfive years later Adela Rogers St. Johns, a reporter who had won renown as the “sob sister” of the Hearst press, tracked her down in Anaheim, California, Mrs. Parrish expressed surprise that anyone would pay attention to her. Surrounded by grandchildren, looking much younger than her years, “dressed in something pink and fresh-washed and ironed,” she said that she had gotten little notice at the time and “none of the women running around yelling about Lib and such have paid any since.” But she was quietly confident that she had accomplished something of historic significance—less for herself than for all the thousands of women scrubbing floors in hotels, toiling at laundry vats, and tending machines in factories who needed to know that, however belatedly, they could summon the law to their side.