FDR - Jean Edward Smith [242]
Wheeler read the letter in awe.
“Does that answer your question?” asked Hughes.
“It certainly does,” Wheeler replied.
As the Montana senator started to leave, Hughes asked him to sit down. “I am not interested in who are to be the members of the Court,” said the chief justice.
I am interested in the Court as an institution. And this proposed bill would destroy the Court as an institution.
If we had an Attorney General in whom the President had confidence, and in whom the Court had confidence, and in whom the people had confidence, the story might have been different. But the laws have been poorly drafted, the briefs have been badly drawn and the arguments have been poorly presented. We’ve had to be not only the Court but we’ve had to do the work that should have been done by the Attorney General.105
At ten Monday morning Wheeler appeared before a capacity audience in the ornate Senate Caucus Room. He began by matter-of-factly acknowledging his reluctance to oppose the president, turned gradually to the administration’s charge of judicial delay, and withdrew from his inside coat pocket a sheaf of papers. “I have here a letter from the Chief Justice of the United States, Mr. Charles Evans Hughes, dated March 21, 1937, written by him and approved by Mr. Justice Brandeis and Mr. Justice Van Devanter.”106
Consternation gripped the Caucus Room. History was being made. Not since John Marshall had taken up his pen to defend the Court’s decision in McCulloch v. Maryland in 1819 had a chief justice taken an active role in a public controversy.107 Stunned senators listened intently as Wheeler began to read. Factually and unemotionally Hughes struck down one by one each of the arguments advanced by FDR and Cummings that the Court was unable to keep up with its workload. “There is no congestion of cases upon our calendar. When we rose on March 15 (for the current recess) we had heard argument in cases in which certiorari had been granted only four weeks before.” Hughes presented a detailed statistical analysis of the last six terms, demolishing any allegation that the Court had failed to keep abreast. The addition of more judges would simply mean “more judges to hear, more judges to confer, more judges to discuss, more judges to be convinced and to decide.”108
Despite its dispassionate tone, the letter hit like a bombshell. The following week, Hughes struck again. On March 29, in a tense, packed courtroom, the chief justice read the Supreme Court’s decision upholding the State of Washington’s minimum wage law, which was almost identical to the New York law it had overturned six months earlier.109 Again the vote was 5–4, Justice Roberts providing the margin of victory. Roberts’s switch was immediately dubbed “the switch in time that saves nine,” but the fact is that the Court had voted 4–4 in December to uphold the Washington statute with Roberts in the affirmative.110 Justice Stone, who was ill, had missed the vote, and Hughes had waited for his return to announce the decision. Speaking for the Court, Hughes not only sustained the Washington law but explicitly overruled the line of precedent known as substantive due process that for the last thirty years had prevented government from regulating wages and hours.111 When Hughes finished reading his opinion, the Court went on to uphold three recent pieces of New Deal legislation, all by unanimous vote.*
Two weeks later, in the most eagerly anticipated ruling of the term, the Court, speaking again through Hughes, upheld the Wagner Labor Relations Act—the most ambitious undertaking of the New Deal since the NRA, and the most controversial.112 Hughes rejected the distinction between direct and indirect effects on commerce that had governed the Court’s approach since 1895, restored the commerce clause to the full sweep of John Marshall’s expansive definition