Proof of an Activist Supreme Court under FDR (Part I)

It is often hard to prove that Supreme Court decisions are activist if the people on the court are consistent in their decisions. However, in analyzing two Supreme Court justices under FDR, Hugo Black and Felix Frankfurter, it is easy to see how their decisions changed once the FDR era ended. Black and Frankfurter were appointed to the Supreme Court by FDR. Black was a justice from 1937 to 1971 and Frankfurter was a justice from 1939 to 1962. Black has been called an “originalist”, deciding cases based on the actual words of the Constitution and not making his own interpretation of the document. Frankfurter has been called a justice that used “judicial constraint” and relied more on Congress to pass laws instead of using economic due process. Frankfurter and Black were arch rivals on the court, but that was not always true. Up to 1943-44 both Black and Frankfurter were judicial activists, loyal to the man who gave them their posts – FDR.

In 1937, FDR was fed up with losing case after case before the Supreme Court, so FDR attempted to “pack” the courts. This law would allow FDR to add 6 new justices to the Supreme Court for an overall total of 15 justices. This would give FDR the majority he would need to pass his New Deal agenda. Despite overwhelming majorities in congress, Democrats shot down FDR’s attempt to be King of the United States. However, shortly after the packing the courts plan failed, justices resigned, died, and shifted allegiances and just like that FDR had the majority he had been seeking. Is this a coincidence or something more sinister happening? It seems highly unlikely that FDR would have so much good fortune at the expense of several judges, but it is how it went down in history without any investigation.

Under FDR the interstate commerce clause was vastly expanded to include intrastate commerce and non-tangible items such as insurance. Probably the most famous case was Wickard v. Filburn decided unanimously in 1942. The majority said that Ohio farmer (Filburn) could not grow more wheat than what was allowed by the Agriculture Adjustment Act of 1938, even if the excess wheat was going to be consumed by his family. The court argued that by eating his own wheat, Filburn could not buy wheat from across state lines to eat and therefore violated the interstate commerce clause. The Agriculture Adjustment Act was a really bad law. Its purpose was to put caps on crops to lower supply and increase demand to raise prices. What made this so insane was that there millions of people across the country starving besides, it was not up to the government to generate laws to artificially raise agriculture prices – prices that incidentally, most families could not afford. Even though the excess wheat grown by Filburn would not cross state lines, the court found a very “imaginative” way to rule against him.

Under FDR the power of the contracts clause in the Constitution and in the 1866 Civil Rights Act was all but eliminated. The contracts clause was commonly used in cases up to 1937 to prevent government from overregulating citizens. This was originally determined in the 1905 case of Lochner v. New York where the court ruled the state of New York had no right to break a contract between bakers and their employers to limit work hours. Sure it sounds great to limit work hours of bakers, but there are reasons why bakers had long hours. Limiting hours would have closed the doors of hundreds of mom and pop bakeries at the expense of huge baking companies that could afford to hire more workers to limit hours. In another case, if the Court ruled in favor of the butchers in the Slaughter House cases then thousands of innocent civilians would have died from Cholera. All rules and regulations do not necessarily fit into a one size fits all – and this is what the Court started when it eliminated the power of the contracts clause in West Coast Hotel v. Parrish. The Court no longer viewed contracts as important and allowed governments to enforce “on size fits all” regulations. In other words, governments are so arrogant that they believe that they understand and can resolve complex problems of each uniquely different municipality by passing a single law.