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This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
Welcome to Civil Discourse. This podcast will use government documents to illuminate the workings of the American Government and offer contexts around the effects of government agencies in your everyday life. Now your hosts, Nia Rodgers, Public Affairs Librarian and Dr. John Aughenbaugh, Political Science Professor.
N. Rodgers: Hey, Aughie.
J. Aughenbaugh: Good morning, Nia. How are you?
N. Rodgers: I'm excellent. How are you?
J. Aughenbaugh: Of course, I'm quite happy because we get to once again, discuss another era of the Supreme Court. Listeners, we are continuing our series. I believe, Nia, we're at the point of the Hughes Court.
N. Rodgers: Howard Hughes, this is the aviation court.
J. Aughenbaugh: Different Hughes. Roughly the same time frame. Not Howard. This is Charles Evan Hughes who succeeded William Howard Taft as Chief Justice.
N. Rodgers: That would put us at 1930 to what?
J. Aughenbaugh: 1941.
N. Rodgers: Just before our entry into World War II?
J. Aughenbaugh: Pretty much, yes. The Hughes Court noteworthy for a number of reasons. One, it was during Hughes' term as chief that the Supreme Court moved from its basement quarters in the US Capitol to the newly constructed Supreme Court building.
N. Rodgers: But if you have not seen a Supreme Court building, it is intentionally built to be terrifying.
J. Aughenbaugh: It is awe inspiring and it's very white.
N. Rodgers: Yes, and very Greco-Roman big columns.
J. Aughenbaugh: Yes.
N. Rodgers: Important things happen here. That's what that building says.
J. Aughenbaugh: Very magisterial.
N. Rodgers: Yes.
J. Aughenbaugh: Yes. But this is also the court that dealt with the Great Depression and President Franklin Delano Roosevelt's New Deal. There were some initial, shall we say, struggles and growing pains. But eventually by the time Hughes retired as chief, the court got on the same page of the hymnal as the Roosevelt administration.
N. Rodgers: Where was Hughes from? Was he from Ohio like everybody else?
J. Aughenbaugh: No.
N. Rodgers: It seems like a lot of justices were born in Ohio. I'm just saying.
J. Aughenbaugh: Sam and Chase. You had.
N. Rodgers: Taft.
J. Aughenbaugh: William Howard Taft. A whole bunch of the initial ones were spread across the country because Washington believed in geographical diversity. But now you have to be pretty much born and raised in the Interstate 95 corridor from Boston down to Washington DC. But that's for a different episode. No, Hughes was born and raised in Glen Falls, New York. He was born to an immigrant preacher and his wife. Hughes like Taft went to elite schools. He graduated from Brown University, which is located in Rhode Island and Columbia Law School, which is located in New York City. Upon graduating, he practiced law in New York for a number of years. He was born in 1862. He was born during the Civil War. He practiced law. He was a private attorney for about 15, 18 years. When he was picked in 1905 to lead the investigation of state government into public utilities in the life insurance industry.
N. Rodgers: Because those aren't crooked at all.
J. Aughenbaugh: The progressives believed that there was a lot of crookedness to use your language in both of those industries.
N. Rodgers: Just saying.
J. Aughenbaugh: Based on his work in investigating these two particular industries, he won election as governor of New York in 1906 and was considered progressive. Again, back then in many states and even nationally, the Progressive Party was the Republican Party. The Democratic Party its stronghold was in the Deep South, not very progressive, fiscally conservative, etc, small government, not big.
N. Rodgers: If you get confused about this, remember that Lincoln was a Republican. The guy who did the emancipation proclamation was a Republican. That switch doesn't happen until.
J. Aughenbaugh: The mid to late 1960s.
N. Rodgers: I was going to say until Nixon.
J. Aughenbaugh: Nixon's infamous Southern strategy when he recognized that.
N. Rodgers: Where you get that term from, so then the Democratic Party becomes the Progressive Party and the Republican Party becomes the Conservative Party.
J. Aughenbaugh: That's right.
N. Rodgers: Right now you have the reversal of that and so the Republicans are the progressives. They're out there with their wild hair doing all kinds of stuff, and they are not a monolith progressive. They are very much like the modern Democratic Party, where you have people who are way out on the progressive limb. That's Roosevelt, right out there doing that stuff. Then you have people who are like Amy Klobuchar who are, yes, but I'm from Wisconsin and we're made of cheese.
J. Aughenbaugh: No, Minnesota.
N. Rodgers: She's from Minnesota, but they're also made of cheese. But there's a big spectrum in the Democratic Party, and that's what you see at the Republican Party at this time is these infighting of how progressive are we going to be?
J. Aughenbaugh: Yes.
N. Rodgers: Which apparently is the question for any party that decides it is progressive, is how progressive?
J. Aughenbaugh: Now, after serving a couple terms, I think back then, New York governor served two year terms. He served a couple of terms as governor, and then he was appointed by then President Taft to be an associate justice on the United States Supreme Court. Initially, he voted very frequently with the then court's leading progressive Oliver Wendell Holmes. Both he and Holmes frequently voted in the early 19 teens to uphold state and federal regulations. Hughes was associate justice for about six years when he resigned from the court and accepted the Republican Party's presidential nomination. This was a contest between him and Woodrow Wilson who had served one term.
N. Rodgers: What will eventually be his second term, because Wilson wins. Because we've never had President Hughes.
J. Aughenbaugh: Yes. Wilson did win. Even though, interestingly enough, during the campaign, most of the leading newspapers thought Hughes was going to win. Hughes ends up losing. It was closely divided and in particular, he lost California. At the time, California was a solidly Republican state, but he lost.
N. Rodgers: Which now boggles the mind.
J. Aughenbaugh: The mind. But it was a solid Republican state, but he lost California in large part according to scholars because he had a huge dispute with the then Republican California governor who refused to campaign on Hughes' behalf.
N. Rodgers: That'll do it. If one of the biggest states won't recognize you or treat you kindly, you're probably not going to do well.
J. Aughenbaugh: Yep.
N. Rodgers: That's okay.
J. Aughenbaugh: Hughes though goes back into private practice.
N. Rodgers: I like that he resigned rather than trying to hold his position and run at the same time. He did the honorable thing by saying, I cannot serve two masters.
J. Aughenbaugh: I can't be a justice while also being a politician.
N. Rodgers: A candidate, especially in a presidential race. But also it brings to mind you mentioned at one point, and I can't remember which court it was, sorry, that we see a fair number of people who have served at the state level in high positions, governor, senator. They have an understanding of the people's branch. They have an understanding of how that works before they get into the judicial branch. I think that makes them better justices because they have a greater grasp of how hard it is to make laws, how complex laws are, all that stuff.
J. Aughenbaugh: You're pointing out one of the big differences with the modern court, particularly of the last 30-40 years versus the Supreme Court prior to the 1980s. What you were just describing, many of the justices served in other government positions before they became justices.
N. Rodgers: Moderately I guess Sandra Day O'Connor was the last.
J. Aughenbaugh: Is the last elected official. We have one current Supreme Court justice who did not serve as a judge before she got on the Supreme Court. That was Elena Kagan. But Elena Kagan served as solicitor general, and that's the position in the federal government that argues cases in front of the Supreme Court.
N. Rodgers: She was the government's lawyer.
J. Aughenbaugh: Yeah, she was the government's lawyer at the Supreme Court.
N. Rodgers: Not a huge leap out of her comfort.
J. Aughenbaugh: We're not talking about a lot of state level experience or even for that matter, congressional experience.
N. Rodgers: Not a lot of legislative experience, all still coming from the judicial side of things.
J. Aughenbaugh: Hughes after he loses the 1916 presidential election goes back into private practice. But then he gets pulled back into government service by President Warren Harding. Harding made Hughes his Secretary of State. By all accounts, Hughes was a very effective Secretary of State, including the fact he negotiated the Washington Naval Treaty, which was designed to prevent a naval arms race between the US, the UK, and Japan, who at the time were the three countries with the largest naval forces in the world. 1925, he returns to private practice, and he becomes one of the leading attorneys in the United States. Big corporations hired him to argue appeals.
N. Rodgers: I think that's an interesting difference in the modern era. There's a few attorneys that people have heard of. But generally speaking, unless a case is going on right now and you hear them in the news, you don't really know attorneys as big name.
J. Aughenbaugh: Yeah, and they may be big for a case or two.
N. Rodgers: Then they disappear again.
J. Aughenbaugh: Hughes was well known. President Hoover in 1930 appointed Hughes to succeed Chief Justice Taft, who stepped down because of health reasons.
N. Rodgers: Now, at this point, he's 70-years-old.
J. Aughenbaugh: Yeah.
N. Rodgers: Or 68. He's somewhere along in there.
J. Aughenbaugh: Sixty-eight-years-old. I've read a number of biographies of Hughes. Hughes initially made it clear through emissaries to Hoover. I don't want to do this.
N. Rodgers: I'm too old for this. You and I say that all the time. I'm too old for this.
J. Aughenbaugh: His logic was, I've done my public service.
N. Rodgers: I want to finish out my time as a private attorney and then I want to rest on my laurels and.
J. Aughenbaugh: Retire. He didn't need this.
N. Rodgers: Retire and go play golf or go fishing. Do whatever.
J. Aughenbaugh: But Hoover kept on coming back to him. Hughes agreed to do it. On the court during the 1930s, it was Chief Justice Hughes and Associate Justice Owen Roberts who became the swing votes on the Hughes Court. There were basically three camps on the Hughes Court. I'm going to get into the personnel in just a moment. But you had three liberals, four conservatives, and then in the middle you had Hughes and Owen Roberts.
N. Rodgers: You have the three musketeers.
J. Aughenbaugh: Yes. The hour horsemen.
N. Rodgers: You have the four horsemen
J. Aughenbaugh: That's how they were referred to.
N. Rodgers: That's how it gets interesting.
J. Aughenbaugh: Yes.
N. Rodgers: How were they referred to but in the newspapers, was it the newspapers that basically said that?
J. Aughenbaugh: Yes.
N. Rodgers: We're talking about media even then talking about the way they talk about them now, the splits and the three and the three and the liberals and the conservatives. They're already doing that.
J. Aughenbaugh: Yeah.
N. Rodgers: Giving them catchy names for the newspapers.
J. Aughenbaugh: Yes. The Hughes Court had a lot of personnel changes. One of the things about Hughes was he was considered a very effective chief in terms of managing the court institutionally, and he did this even though the personnel changed quite a bit in his 11 years.
N. Rodgers: Does he lose his entire court over the case-
J. Aughenbaugh: Very much.
N. Rodgers: -over the course of the 11 years? A hundred percent turnover.
J. Aughenbaugh: Turnover. Listeners bear with me. Hughes takes over as chief. Within a month, one of his new colleagues or who had been on the court for a while, Justice Sanford, he dies. Sanford is replaced by Owen Roberts. That's one, and this is after the Senate rejected Hoover's first nominee to replace Sanford, John J. Parker.
N. Rodgers: Why did they reject Parker?
J. Aughenbaugh: Because he was too conservative/racist.
N. Rodgers: Wow. He's too conservative, well Hoover.
J. Aughenbaugh: Holmes retires in 1932 and is replaced by Ben Cardozo. That's two. Now it picks up steam in 37.
J. Aughenbaugh: Van Devanter retires and was replaced by Hugo Black. In '38, two justices left the court; Sutherland who retires and Cardozo who dies.
N. Rodgers: So Cardozo's only on the court for a very short period of time?
J. Aughenbaugh: Yeah, and he was old when he was picked from the New York courts.
N. Rodgers: He was old already, and he only got older on the court.
J. Aughenbaugh: Okay, and had a series of health problems.
N. Rodgers: Okay.
J. Aughenbaugh: So Sutherland was replaced by US Attorney General, Stanley Reed and Cardozo was replaced by Felix Frankfurter. Okay, so we're at five now, right?
N. Rodgers: Right.
J. Aughenbaugh: Brandeis retires from the court in '39 and is replaced by William Douglas. By the way, Douglas serves on the court for over 36 years.
N. Rodgers: Is he the longest serving? Is 36 years the longest?
J. Aughenbaugh: Yeah.
N. Rodgers: Okay. [inaudible] depending on who stays?
J. Aughenbaugh: Well, followed by John Paul Stevens who retired during the Obama administration. Stevens was appointed by Ford and went through Ford, Reagan, Bush one, Clinton, Bush two, and then decided to retire during the Obama administration. So we're at seven now. Butler dies in '39 is replaced by Frank Murphy. Then McReynolds retires shortly before Hughes did, Roosevelt replaces him with James Burns. Then Hughes Court ends when Hughes retires and Roosevelt picks Associate Justice Harlan Fiske Stone. Stone's position is replaced by Robert Jackson. So basically, in those 11 years, you see a complete turnover in the nine justices of the Supreme Court.
N. Rodgers: So do they even have a court philosophy? When you have that much churn do you see that the.
J. Aughenbaugh: You can break it down into two eras; the Hughes Court before 1937 and the Hughes Court after 1937.
N. Rodgers: Okay.
J. Aughenbaugh: Pre '37. The court was divided into, as I mentioned before, three major blocks. You had the Four Horsemen of the Apocalypse as they were described by the media, so those were the conservatives; Justices Van Devanter, McReynolds, Sutherland, and Butler. They occasionally would strike down New Deal programs. Then you had the three liberals who were referred to as the Three Musketeers; Justices Brandeis, Stone, and Cardozo, and they almost uniformly voted to uphold New Deal programs. But then you had Chief Justice Hughes and Justice Roberts, they were nicknamed the Roving Justices, because if you could pick them off, you would get a majority.
N. Rodgers: I see.
J. Aughenbaugh: Okay. They were the ideological center of the court until '37. But in 1937, something happened to Owen Roberts because all of a sudden he started voting pretty consistently to uphold the New Deal. This is considered and some of our listeners, you may have heard of this, the switch in time that saved nine. So what's this referring to? Well, remember, FDR got one re-election in 1936 by a landslide. I think he lost maybe three states. So he comes back into office and he's expecting that the Supreme Court will get the message from the public, the public likes the New deal so stop being recalcitrant. Court doesn't get the message. Early in '37, the Supreme Court declares a number of landmark laws unconstitutional. Roosevelt gets upset and that's when, Nia, Roosevelt publicly announces his court packing.
N. Rodgers: I'm going to pack this court; there's going to be 39 justices, and they're all going to work for me.
J. Aughenbaugh: They are all going to be in favor of the New Deal.
N. Rodgers: I did not realize that's where that phrase came from, the switch in time that saves nine, cause it leaves the court as nine instead of pushing Roosevelt to add more people in order to get his stuff through.
J. Aughenbaugh: Now, Roosevelt's court packing plan doesn't even get voted on by the Congress. I mean, even members of his own party are like, I don't think we [inaudible] .
N. Rodgers: It's a terrible idea, cause you won't be president forever.
J. Aughenbaugh: Well, do we really want to politicize the court this freaking much, simply because we don't like a handful of their rulings?
N. Rodgers: How rude.
J. Aughenbaugh: Well, and Roosevelt also got outmaneuvered by Chief Justice Hughes, because as the Senate was considering Roosevelt's court packing plan, some of the senators on the Senate Judiciary Committee asked Hughes, "Would you care to comment, Mr. Chief Justice, on FDR's claim that the reason why we need a whole bunch of new judges is that the federal judiciary is populated with a lot of old judges who can't do the work?" Hughes submitted an affidavit to the Senate Judiciary Committee that basically said, not only are we current with our docket, we're ahead.
N. Rodgers: In your face, my guy.
J. Aughenbaugh: So even some of the senators who were willing to go ahead and support Roosevelt, were like: whoa, if the Supreme Court is current with its docket, why do we need a whole bunch of new judges? Because that was what Roosevelt said publicly.
N. Rodgers: They're so behind because they're old and they're tired and they're not getting stuff done.
J. Aughenbaugh: They can't handle all of these cases that my administration is generating, etc., and Hughes is like, "Well, I can't speak for the other federal courts, but the Supreme Court, no only we current with our docket, we're ahead."
N. Rodgers: I don't know who he's talking about.
J. Aughenbaugh: XOXO, Charles Evan Hughes. Now, let's be very clear. Roberts cast his vote in favor of some of the New Deal programs in 1937 before Roosevelt announced his court packing plan, so according to some scholars, the switch in time that saved nine is probably overstated. Nevertheless, because the court did not strike down any more New Deal legislation post 1937, this is how the Hughes Court usually gets broken up into two, if you will, eras: pre '37, post '37 because post '37,some of the horsemen of the apocalypse retire and die and they're all replaced by Roosevelt nominees. When Roosevelt picked justices for the Supreme Court, his first consideration was, have they been supportive of my presidency and the New Deal? So if listeners today are like, hey, wait a minute, here, haven't we been critical of Trump?
N. Rodgers: Presidents have been picking people to be on their side, dude, from the beginning, but definitely during Roosevelt.
J. Aughenbaugh: That was his litmus test.
N. Rodgers: In fairness to him, he was trying to shove through the New Deal and the New Deal was not popular and he needed help shove it through. He turned out to be right, but he could just have easily been wrong.
J. Aughenbaugh: Wrong, yes.
N. Rodgers: He's remembered well because luck went well for him, and it worked out well.
J. Aughenbaugh: According to a lot of economists, what saved Roosevelt's New Deal was not the quality of the New Deal, it was World War 2.
N. Rodgers: Forced us to hyper industrialize and hyper employ.
J. Aughenbaugh: Yeah, there was so much demand for the United States to produce tanks, weapons, munitions, supplies for all those troops.
N. Rodgers: Uniforms.
J. Aughenbaugh: Boots.
N. Rodgers: Everything.
J. Aughenbaugh: Everything.
N. Rodgers: It caused our economy to just.
J. Aughenbaugh: Yes. We took a whole bunch of young men out of the economy, which meant we had to turn to other people to enter the economy.
N. Rodgers: And those people were cheaper.
J. Aughenbaugh: That's right, i.e. women who now would be going to work and they would be getting a paycheck.
N. Rodgers: But they would be getting less of a paycheck than you pay men. But you still selling that stuff to the government.
J. Aughenbaugh: They now could spend money, whereas during the Great Depression, nobody was spending any money.
N. Rodgers: I won't say lucked out with World War 2 because boy, that's the wrong phrase to use, but it certainly worked in the American favor to enter the war in the way that we did and to turn our economy into a war economy. I think that's an argument that's been made in current times of, why don't we have another war, which will boost our economy? And I'm like, but let's not.
J. Aughenbaugh: Yeah, because obviously, there are downsides to any war. Because Roosevelt had already begun to have an increased federal presence in the economy, it was easy for the United States as a capitalist economy, not a socialist economy, but as a capitalist economy, it was easier for the Roosevelt administration to, if you will, generate the necessary economic activity for the United States war effort to be successful because the Roosevelt administration was already increasing federal control of the economy. So you combine those two things and all of a sudden now, the economy is in overdrive which is a lot of our enemies did not hypothesize. They just assumed that because the United States was in a Great Depression, which had lasted throughout the entirety of the 1930s, the United States would not be capable of producing the kind of war engine that you would need. Well, we did but it saved the economy. So let's talk about the Hughes Court's landmark rulings.
N. Rodgers: Can we talk about my favorite one?
J. Aughenbaugh: Which one's that?
N. Rodgers: Near versus Minnesota.
J. Aughenbaugh: Okay, I was about to say, we're going to break this up into, again, those two eras: pre '37, post '37.
N. Rodgers: Okay.
J. Aughenbaugh: Now, Near versus Minnesota,1931: it was a closely divided ruling about the issue of Near?
N. Rodgers: Yellow journalism.
J. Aughenbaugh: Yes.
N. Rodgers: What they used to call yellow journalism and that was because of the paper it was printed on and not because of any racist, although I am sure there were also racist overtones. But it used to be that newspapers could print pretty much whatever they want and then Minnesota said, you can't do that. You can't print things that are, and I quote, "malicious or scandalous".
J. Aughenbaugh: That's right.
N. Rodgers: And newspapers said, "You're putting us out of business. That's what we print." They took it to court, and they won.
J. Aughenbaugh: Yes. So basically what Minnesota and a number of other states did, and usually, after being lobbied by elites, because yellow journalism frequently targeted.
N. Rodgers: Personal.
J. Aughenbaugh: Yeah.
N. Rodgers: Think Taylor Swift. Think a newspaper is printing stories about Taylor Swift's romantic encounters. She, being a wealthy person, well, especially if she were a man, could go to the courts and say they are treating me badly, make it stop. Right?
J. Aughenbaugh: Yes.
N. Rodgers: Oh, no, legislation. I guess she went to her state General Assembly and said, there ought to be a law that prevents these people from talking trash about me.
J. Aughenbaugh: Yeah, to protect my privacy.
N. Rodgers: That's where she would go, not the courts.
J. Aughenbaugh: So and again, listeners, think about this. The First Amendment protects the freedom of speech, what does that mean? Well, in the United States, historically, you cannot stop the press from publishing a story. You can only attempt to punish it afterwards because it was incorrect, it defamed you, it liable you, etc.
N. Rodgers: But really hard to prove in the United States.
J. Aughenbaugh: What Minnesota in a number of states attempted to do was to, if you will, criminalize those newspapers, engage in prior restraint, and this is where Near was successful, was demonstrating that Minnesota was engaged in prior restraint, and therefore, would violate the First Amendment freedom of the press. But this idea that the government cannot engage in prior restraint because they don't like something that you might publish goes against the idea of freedom of press in the United States.
N. Rodgers: Well, and also with defamation, one of the things that's so hard to prove with defamation and one of the reasons it's so wildly unsuccessful in the United States is that our bar for proving harm and intent are pretty high. I have to have known it was a lie and I have to intent to harm your reputation by printing it in order to be found defamatory.
J. Aughenbaugh: That comes from the Warren Court in the 1960s, New York Times versus Sullivan, and listeners, what Nia, is referring to is the standard that was created by the Supreme Court in that case; you have to show malice. If you're a public figure and that's been now extended to a semi public figure, so you don't have to be a government official, you could be an actor or a musician or an athlete. If you want to show that you have been defamed, you have to show what's it called? The standards called absence of malice. If you can show that the press, maliciously, meaning that they knowingly disregarded the truth and printed it anyways.
N. Rodgers: Right. I knew it was a lie, I put it down there because I knew it would get eyeballs.
J. Aughenbaugh: Now, the next two decisions went against Roosevelt's new deal. Nine. The first one is Schechter Poultry versus the United States, and the decision was unanimous. Even the liberals were like, Roosevelt went too far. What the court ruled in Schechter was that the National Industrial Recovery Act, NIRA, gave the president too much authority, without any explicit guidelines from Congress. Basically, what the court said was, if Congress is going to delegate its authority to the president, it has to do so with guidelines. In this law, there were no guidelines. In fact, Roosevelt turned over his authority to the leading poultry producers in the United States. Could you not. Even the liberals were like, wait a minute.
N. Rodgers: I trust that they will run themselves fairly and adequately. Really, you do?
J. Aughenbaugh: Yes.
N. Rodgers: Really? You don't think they'll act like an industry where they collude?
J. Aughenbaugh: I think Cardozo in his concurrence said, This is delegation run riot. Again, remember, Cardozo, one of the liberals, one of the progressives on the court.
N. Rodgers: Right.
J. Aughenbaugh: The Butler decision in 1936 particularly upset Roosevelt. The decision was 6-3, the majority opinion was written by Roberts. The court struck down the Agricultural Adjustment Act, which was designed to regulate the production of certain farm products to reduce surplus. The way they did it was they taxed you if you produced more of a particular farm product then by law, you were allowed to. The Roosevelt administration attempted to go ahead and justify this as part of Congress' taxing and spending authority. The use court said, It's a tax that's designed to regulate economic behavior. It's not a tax, it's a regulation. You're regulating what a farmer does on his own farm. That's not interstate commerce. That is intrastate.
N. Rodgers: The other side of that is, man, does that show that Roosevelt was never a farmer? You plant a crop hoping that you will get a certain yield. But yields are up and down a little bit. Depending on the weather, depending on pests and other issues. You may come out with what they used to call a bumper crop, where you're like, Oh, my gosh, I got corn coming out my ears. I didn't mean that as a pun, but that was actually funny.
J. Aughenbaugh: That's farm humor, by the way.
N. Rodgers: It's farm humor. Some years, you're not going to have that but saying to people, you can't bring to market what you have implies that a farmer has far more control than they actually do.
J. Aughenbaugh: Then tides changed for Roosevelt. The first one is in 1936. If you guys want to know why presidents basically get to do whatever the heck they want in foreign affairs, well, you can go ahead and blame it on the Supremes because in 1936, in the case of United States versus the Curtis Wright Corporation, the Supreme Court in a seven to one decision said, Congress can delegate its foreign affairs power to the president and the president is the sole organ of US foreign policy. Pretty much every president since Roosevelt cites the Curtis Wright decision as why Congress can't restrict what the president does in foreign affairs. The sole organ theory. He's the sole organ of US foreign policy. Every president says true men.
N. Rodgers: They're all leaning into that. I can declare war against cartels in Venezuela and then I can blow up their boats because I am the sole organ of foreign policy in the United States.
J. Aughenbaugh: That's right.
N. Rodgers: You see it playing out today.
J. Aughenbaugh: Yes. When Trump goes ahead and says, Economic security is a fundamental part of national security. I even read Solicitor General Sowers written brief to the Supreme Court. I think on the bottom of Page 2, it cites US versus Curtis Wright. I'm like, good Lord. I can't get away from this case. But then the tides turn for Roosevelt's New Deal. I'm going to go ahead and mention a couple of these West Coast Hotel versus Parish. The court, in a majority opinion, 4-5 decision by Chief Justice Hughes, upheld Washington State's minimum wage legislation. This effectively overturned the Atkins case, 37 and National Labor Relations Board versus Jones and Laughlin Steel. The court upheld the constitutionality of the National Labor Relations Act. This basically means that means of production, what goes on in manufacturing plants can be regulated by the federal government. It's not just a state government concern. Yes.
N. Rodgers: Wait. The first case gives us?
J. Aughenbaugh: Gives us state law. But that indicated that the court was changing its rule.
N. Rodgers: That means that the freedom of the contract is qualified. It's not absolute.
J. Aughenbaugh: That's right.
N. Rodgers: You can say, no the contract has to meet certain standards. Then in the second case, you get basically OSHA. You have to make a place where people work relatively safe.
J. Aughenbaugh: Well, it's not just OSHA it's about unions. Prior to the National Labor Relations Act, unions had no federal government protection. The National Labor Relations Act says they can organize, and we have a federal agency that will make sure that collective bargaining is fair to both the owners and the workers. A whole bunch of companies were like, wait a minute.
N. Rodgers: A whole bunch of rich guys went, wait, I don't want to have to.
J. Aughenbaugh: But they went ahead and argued, Hey, wait a minute, here, labor conditions don't cross state lines. I got steelworkers who work in Pittsburgh. What the Supreme Court said, wait a minute, here is the labor produces goods that do what?
N. Rodgers: Cross state lines.
J. Aughenbaugh: Cross state lines. Thus, Congress's what authority, Nia?
N. Rodgers: Commerce Clause.
J. Aughenbaugh: Commerce Clause kicks in. Yes. The next decision, 1938 US versus Caroline Products. The reason why this case is considered so important is that the Court in a 6-1 decision, mind you, in about a year and a half, the Supreme Court goes from, Hey, the new deals unconstitutional to a nearly unanimous decision where the court says, Hey, going forward, federal government regulations of the economy will be deemed constitutional. But laws that target discreet and insular minorities shall receive heightened scrutiny. This is what gives the warren courts, if you will, theory or logic of going after laws that target people differently based on race. Yes.
N. Rodgers: They Lay in the groundwork for that.
J. Aughenbaugh: Yes. I'm going to jump ahead. Cantwell versus Connecticut. Supreme Court, for the first time says the 14th Amendment incorporates the First Amendment's free exercise clause. This is another example of incorporation. Prior to the Cantwell decision, States could go ahead and discriminate against your free exercise of religious beliefs. But after Cantwell, the court said, not only does the First Amendment Free Exercise Clause apply to the federal government, it also applies to the state.
N. Rodgers: Applies to the state.
J. Aughenbaugh: Yes. We're going to cover two more cases, but the big one in regards to the Commerce Clause is US versus Darby Lumber.
N. Rodgers: This is my second favorite.
J. Aughenbaugh: In a unanimous decision written by now Chief Justice, Justice [inaudible] , the court upheld the Fair Labor Standards Act per the Commerce Clause. This is the law that established a federal minimum wage and restricted child labor.
N. Rodgers: Children at this point can only work on farms in a limited amount of time. Set limits, I think, on the age of children. Like, below a certain age, you couldn't be made to work in a factory somewhere.
J. Aughenbaugh: States rights advocates hate this case because rather gratuitously, Justice Stone went ahead and said, The 10th Amendment was all but a truism.
N. Rodgers: Wow.
J. Aughenbaugh: He basically nullified the 10th Amendment. For about roughly 35, 40 years, the Supreme Court agrees with him. It's not until you get into the mid to late 1970s that all of a sudden, some of the justices were like, we still have a 10th Amendment.
N. Rodgers: But it does establish a federal minimum wage, which is huge. That's huge because that now means that no matter where you are in the then 38 states, 49, 48.
J. Aughenbaugh: I think it's 48 because we don't get.
N. Rodgers: Forty eight were we just missing Hawaii and Alaska?
J. Aughenbaugh: Alaska.
N. Rodgers: In the 48 states, no matter where you live, if you work in a federal position, you will have a standard of living.
J. Aughenbaugh: Yeah.
N. Rodgers: What it also does is encourages private companies to do that because they're competing with the federal government so, it's big.
J. Aughenbaugh: Then the next one, and by the way, this is one of the shortest, why am I struggling for the words? The next one is one of the shortest precedents in the history of the Supreme Court, Minersville School District v. Gobitis (1940). The Hughes court upheld mandatory flag salutes in Pennsylvania schools, even though it was against the religious beliefs of some of their students.
N. Rodgers: At least Quakers, and mennonites as well.
J. Aughenbaugh: Jehovah’s Witnesses, three years later.
N. Rodgers: There are several religions that you're not allowed to salute or in any way iconize anything that is not God.
J. Aughenbaugh: Three years later, the Supreme Court overturns the Gobitis decision in West Virginia versus Barnett and the overturning really exposed something that we're going to discuss in our next episode with the Harlan Fiske Stone Supreme Court.
N. Rodgers: Upheld mandatory flag sleeves. That wasn't going to last. But in the 40s, it might have lasted a little bit longer.
J. Aughenbaugh: Well, the logic of the majority opinion written by Justice Frankfurter, again, a liberal before he got on the court, a huge proponent of judicial restraint once he got on the court. Foreshadowing one of the fault lines or tensions on the next two Supreme Court eras. According to Frankfurter, school education policy is the domain of what level of government?
N. Rodgers: State and local.
J. Aughenbaugh: State and local. Unless it is a gross violation of the Federal Constitution, we should defer to the expert judgment of school officials.
N. Rodgers: That was their reasoning for that?
J. Aughenbaugh: Yeah. Good [inaudible] .
N. Rodgers: Overall, you would say a court divided not necessarily by the people on the court, but by the too many eras within the court. There is the pre being beaten by Roosevelt with a stick and the post being beaten by Roosevelt with a stick. Sorry, different Roosevelt, different stick. 'Cause this is not Teddy, this is FDR.
J. Aughenbaugh: It's a court in transition. I try to remind my students, Nia, like the federal government writ large, the Supreme Court doesn't change overnight. It was an institution that for roughly 50 years was an economically conservative Supreme Court. When you get the Great Depression and you get Roosevelt's new deal, and he wants to try this and that and the other.
N. Rodgers: He's throwing spaghetti at the wall trying to get something to stick. He needs to fix it.
J. Aughenbaugh: At that point early on in his first term or even the beginning of his second term, he hasn't appointed, very many, if any, of the justices. There's going to be pushback. Because again, this is an institution that is insulated from the public.
N. Rodgers: Non elected, lifetime appointment.
J. Aughenbaugh: Lifetime appointment. For many of them, they're just like, wait a minute here. Whether or not the people want this and mind you, as you pointed out, there were huge segments of the American population who weren't in favor of the new deal, because many of the initial things that were tried failed horribly. Again, he was throwing stuff at the wall, hoping that it had stuck and a lot of it didn't? A court does not change quickly. We in part will only see significant change during the Warren Court when you've had multiple presidents, FDR, Truman, even a couple of Eisenhower's picks like Chief Justice Warren, who come together. But that's a decade and a half in the making, two decades?
N. Rodgers: Yes.
J. Aughenbaugh: The court does not change quickly, and in part, it's designed that way. It's supposed to be insulated from politics and political pressure.
N. Rodgers: The theory is that it is a highly deliberative body. That's theoretically the difference between the House and the Senate. Is that the Senate should be a more deliberative body.
J. Aughenbaugh: In the Filibuster is not a bad thing in the Senate, if you believe that the Senate should be a more deliberative body, acting as a break.
N. Rodgers: Let's all just slow down and take a minute.
J. Aughenbaugh: Yes, anyways, good stuff, the court in transition, led by one of the greatest public servants I would argue in the first half of the 20th century. He just did some remarkable stuff. Even when he was chief justice, he was a master politician. The way he played Roosevelt on the court packing plan, ranks right up there with John Marshall outplaying Thomas Jefferson in Marbury V Madison. In my humble opinion, those were two chief justices who showed how political skill is necessary for the Supreme Court to function as an institution. Good stuff.
N. Rodgers: Cool. Great. Thank you, Aughie.
J. Aughenbaugh: Thank you.
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