The U.S. Supreme Court issued its ruling in Obergefell v. Hodges, the gay marriage cases. Court rulings are not intended to be good literature; they're intended to be sound legal documents. yet, Justice Anthony Kennedy's majority opinion Obergefell v. Hodges is not only good law but a powerful, ringing endorsement of liberty. It's good reading.
Interestingly, there is a huge split among the Supreme Court's conservative justices. Chief Justice John Roberts wrote a dissent -- but only Antonin Scalia and Clarence Thomas joined it. Not Samuel Alito. Scalia wrote a typical foaming-at-the-mouth dissent, but could only get Thomas to join it. Thomas wrote a pathetic dissent in which he said being in Auschwitz or slavery was equal to homosexuality, and Scalia joined it. Alito wrote an oddball, but in a way typical, dissent, in which Scalia and Thomas joined. But Roberts refused to.
What's going on?
What's going on is that John Roberts is trying to lay the ground for a new kind of conservative jurisprudence. He's tired to the religious rantings of Scalia and Alito. He wants the Court to rely on a new, legally minded, powerful conservative legal theory that could last a hundred years -- and Roberts thinks he's the one to found this new era.
You'll be hearing a lot in the coming weeks about "Lochner-era jurisprudence". Much of Roberts' dissent talks about Lochner, why it's bad, and why the Supreme Court majority in Obergefell v. Hodges is like Lochner. Most of what you'll hear is that Roberts gave a stinging critique of "judicial activism", and that's where the mainstream press will leave it.
But that's not really what Roberts did. PART ONE FOLLOWS................
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Let's go back now to the 1870s. A major change was occuring in American society, one which profoundly altered the course of American history. It involved railroads and steel.
Most people prior to the 1870s relied on horse-and-buggy to get around. But during the Civil War, thousands of miles of new, standard-gauge railroads were laid across the nation. The Age of Rail began, as light and heavy rail began to connect even the smallest towns and villages with urban centers. Streetcars became the standard way of moving about cities, and roughly half the nation stopped owning horses.
Railroads were something people had never seen before. Most jobs prior to the 1860s had been craft jobs. A single person made a shoe. A single person made a gun. A single person made a cooking pot. There was no assembly line. But the railroad changed that. Conductor, engineer, brakeman, stoker: Each train had a large number of jobs, most of them highly skilled. A single enterprise had never before employed so many people. In the past, though, if an employer got mad at his highly-skilled cobbler, the cobbler would leave the shop and set up his own store (like you see in the movie Hobson's Choice). Employers couldn't be too abusive to good craftsmen, because that would merely drive them out -- and the good craftsman would then steal business from the employer, even driving him into bankruptcy.
But the railroads....... They were different. There were so many rail workers, and so many of them were seeking jobs at any one time, that a "labor market" existed even for the most highly skilled jobs on the railroad. This enabled employers to abuse or fire even the best workers, as there was usually someone almost as equally skilled looking for work. Working conditions on the railroads plummeted, and abuse, pettiness, and cruelty became widespread.
Steel was much the same. Although steel had been invented in the ancient world, this skill had been lost. A means of making brittle steel was rediscovered in the 1830s, but it wasn't until 1856 that Englishman Henry Bessemer discovered a way of changing the chemical make-up of steel so it was no longer brittle. The Bessemer Process revolutionized iron- and steel-making, and industrialized what was once a craft industry. Americans later stole Bessemer's discovery, and during the 1870s the United States became the steel-making capital of the world.
Steel-making, like running a railroad, involved highly skilled workers in a wide array of jobs. But, like the railroads, there arose a labor market in which tens of thousands of highly skilled workers each sought employment in the steel industry. Soon, mill owners were engaged in the same sort of cruelty, disempowerment, and abuse that typified the railroads.
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The response of railroad and steel workers was unionization. Suddenly, strikes broke out across the country as workers sought to unionize and get employers to recognize their union. Emnployers retaliated by hiring thousands of thugs to beat workers into submission. Employers hired tens of thousands of lesser-skilled workers ("scabs") to take the jobs of those who went on strike. If a worker joined a union, the employer fired him -- on the spot. Major corporations funneled tens of thousands of dollars in political campaign donations into the coffers of any politician willing to oppose unionization. It worked: When a strike hit, the governor of the state would call out the National Guard to beat and even shoot at striking workers (thousands of union members died), break up picket lines with concussion bombs and tear and vomit gas, protect scabs as they filed into the plants or rail yards, and generally intimidate the entire community into ending the strike.
Strikes were sometimes violent, as workers retaliated against state-sponsored gangsterism. It wasn't uncommon to hear of state militias machine-gunning workers' camps, killing women and children huddled in tents for protection. "Detective" agencies like Pinkerton, Thiel, and Baldwin–Felts arose to provide spies to infiltrate unions, dig up dirt on union leaders, even incite peaceful union meetings to violence.
Employers also employed other means to ensure that unions didn't protect workers. If you wanted employment, you had to sign a "yellow-dog contract", in which a worker pledged not to support or join a union. Break the contract, and you could end up in jail and heavily fined. Employer-dominated "unions" were set up, which gave workers tiny amounts of power or met their least demands -- helping to strip away support for the union.
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Employers didn't just turn to violence. They also turned to the courts for help.
In the 1870s, state and federal courts began adopting what later became known as Lochner-era decisions. When unions formed and tried to get the employer to agree to a contract, or when workers struck to win better pay and working conditions, employers began arguing that this violated the "contract" between the employer and employee. Whether the employee signed a yellow-dog contract or a regular employment contract, the result was the same, employers said: The worker agreed to a certain wage, certain hours, and specified working conditions. To seek a different contract, or to strike and essentially break that contract... that struck at the heart of contract law. No one can break a contract and get away with it!
State and federal courts quickly agreed: The right of contract was sacrosanct. Courts interpreted this "right" to be one held by the worker as well as the employer. Unions "forced" workers to accept contracts negotiated by the union, courts said. But workers should retain the "freedom" to negotiate contracts of their own. That workers held no power to force an employer to agree to anything was ignored. That the employer-employee relationship was completely imbalanced was ignored. That only employers held power was ignored. Workers were free, courts said -- even if this freedom amounted to nothing.
The 14th Amendment to the United States Constitution was adopted on July 9, 1868, to ensure that the rights of black former slaves freed by the 1863 Emancipation Proclamation and the 1865 Thirteenth Amendment were not abridged. Section 1 of the amendment reads, in part; "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Equal protection and due process are two different things, and Congress drafted the 14th Amendment to protect them both.
The problem is: How do you protect Due Process? What does that mean, anyway?
It's not an academic discussion. For example, the 1st Amendment explicitly protects freedom of association. But if you don't have a right to privacy, how effective is your freedom of association? Not very. In the 1870s, courts were beginning to realize that Due Process was a constitutional right that wasn't self-enforcing. There were other rights, not enumerated in the Constitution or its amendments, which needed to be protected if the Due Process rights of the people were to be upheld.
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Protecting these unenumerated rights became known as "Substantive Due Process". Begining with Munn v. Illinois, 94 U.S. 113 (1877), the Supreme Court began to define the term "liberty" in the 14th Amendment to mean "economic liberty". In part, this was by accident, as the cases in question involved government regulation of private enterprise (Munn v. Illinois involved a state's right to set meximum railroad freight charges; Mugler v. Kansas, 123 U.S. 623 (1887), involved a state's ability to ban alcohol manufacture and transportation).
But soon Substantive Due Process was hijacked by extremist capitalists. State and federal district courts began to hold that freedom of contract was protected by the 14th Amendment. This culminated in a landmark Supreme Court ruling, Allgeyer v. Louisiana, 165 U.S. 578 (1897), in which the court struck down Louisiana's attempt to regulate insurance companies. The state had enacted a law preventing its citizens from doing business with insurance companies located out of the state. In-state companies could be inspected by the State Insurance Commissioner, and thus the state could prevent fraud. The Allgeyer company did business with a New York insurer; when it was fined, it sued to have the state law struck down under the "freedom of contract" provisions. The Supreme Court agreed.
Nothing in Allgeyer v. Louisiana limited freedom of contract. Was there any regulation the state could engage in that would pass muster? Apparently not, for the Supreme Court swiftly struck down maximum working hours (Lochner v. New York), minimum wage laws (Adkins v. Children's Hospital), a ban on the yellow-dog contract (Adair v. United States; Coppage v. Kansas), and the regulation of private schools (Pierce v. Society of Sisters). The Court even went further, outlawing boycotts aimed at companies that supplied raw materials to the employer (the so-called "secondary boycott"; Loewe v. Lawlor), picketing "associated" with violence (even if the violence is not caused by the union; Milk Wagon Drivers' Union v. Meadowmoor Dairies), and strikes that interfered with "the general welfare" (In re Debs,).
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At the heart of Lochner-era jurisprudence were labor unions.
Courts now began to argue that unions were a conspiracy to illegally boost wages (just as employers were prohibited from conspiring to boost prices). The Sherman Anti-Trust Act was used to break unions which engaged in national strikes. And time and time again, the Supreme Court upheld state and federal court injunctions breaking strikes. By even the most conservative estimate, at least 4,300 anti-union injunctions were issued between 1880 and 1930. By the 1920s, 25 percent of also strikes were limited by court-ordered injunctions.
Organized labor was being decimated. By 1932, just 2.5 million Americans were members of labor unions, down from 4 million just 12 years earlier.
Then the Great Depression hit. Initially, people loved it. Prices were dropping so fast, people could afford many of the luxury items they had previously only dreamed of. But soon employers began laying off 10 percent, 20 percent, then 30 percent of their workforce. A third of all banks closed their doors. More than a third of all Americans were out of work. Industrial production dropped by half. Farmers left their crops to rot in the fields, because the price of food could not cover the cost of transporting them to market. Prices for milk were so low, ranchers poured milk onto the roads in protest. Meanwhile, nearly a third of the population was going hungry.
In November 1932, Franklin D. Roosevelt swept into power. Roosevelt, a former electricity trade association lawyer, believed that boosting prices was the answer. If prices rose, employers would have more money...and more money meant more hiring. Roosevelt had fundamentally misdiagnosed the problem: The real problem was a liquidity trap (well-defined by economist John Maynard Keynes a decade earlier), in which both businesses and consumers were so afraid of the future that no amount of cash could induce banks to loan money or businesses to borrow it or consumers to spend their income. The solution was government spending -- which would "prime the pump" and start money flowing in the system again. But no one was listening yet to Keynes...
Monopolies charge much higher prices than business which are faced with competition. Could creating monopolies be the answer? Roosevelt didn't want to overturn anti-trust law, though, so he came up with a solution: Voluntary restriction of trade. He proposed a National Industrial Recovery Act, a law which would allow companies to restrain trade and create monopolies. In exchange, businesses would have to agree to standards of production to boost both the quality of the goods and services sold (no more shoddy half-assed gimcrack) as well as improve working conditions for laborers. These standards would be negotiated, under the auspicies of the National Recovery Administration (NRA), and both labor and management would participate. Companies that agreed to be part of this voluntary process would be permitted to fly the symbol of the NRA -- the Blue Eagle.
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And then the Supreme Court struck it down.
One NIRA code governed the sale of kosher chickens, and banned the transport and sale of sick animals. The Schechter Poultry Corp. sold two sick chickens to a butcher in Brooklyn. His Blue Eagle was withdrawn, and Schechter was fined. Schechter sued, and in Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), the Supreme Court held that "freedom of contract" had been abridged by the NIRA.
It was only the start of many such rulings. Emboldened, the Supreme Court struck down a wide range of laws designed to help pull the United States out of the Great Depression.
Roosevelt was frantic. The proto-fascist Father Charles Coughlin had a weekly radio program listened to by tens of millions, and he was calling for dictatorship to pull the United States out of the depression. Huey Long, governor of Louisiana, had risen to power by using thuggery, bribery, murder, and more to gain power -- power which he used to build roads, hospitals, and schools, to be sure, but power which he intended to share with no one else. Even the National Chamber of Commerce had called for emergency dictatorial powers to be given to the president. In Europe, Italy, Poland, Spain, and Germany had already fallen to the fascist siren-song, and France and England seemed ready to go next. Worldwide, people believed that the "democratic experiment" had failed, and that dictatorship was the only way out.
Roosevelt needed the Supreme Court to approve his "New Deal" legislation. But how? Justices were appointed for life, and the "nine old men" of the Court, while aged, didn't seem likely to die off any time soon.
So Roosevelt came up with a scheme. He proposed a "term limit" for Supreme Court justices. His scheme -- the Judicial Reform Bill of 1937 -- allowed the president to appoint one justice for each member of the Supreme Court with at least 10 years service who did not retire or resign within six months after reaching the age of 70. No president could use the scheme to appoint more than six Supreme Court justices, however. There were six justices over the age of 70: Louis Brandeis (80), Willis Van Devanter (77), Charles Evans Hughes (75), James Clark McReynolds (75), George Sutherland (75), and Pierce Butler (71). Van Devanter, McReynolds, Sutherland, and Butler were known as the "Four Horsemen", ultra-conservative judges who loathed Roosevelt and loathed the New Deal.
Just three -- Owen Roberts (62), Harlan F. Stone (64), and Benjamin N. Cardozo (67) -- were not. Along with the aged Brandeis, Cardozo and Stone formed the "Three Musketeers", liberal judges who approved of the New Deal. The swing voters were Roberts and Chief Justice Hughes. Roberts was seen as the more powerful legal mind, and Hughes largely did what Roberts asked him to do.
Roberts had been the deciding vote in several 5-4 decisions invalidating New Deal legislation. Sutherland, Van Devanter, McReynolds, and Butler had all helped form the majority in Adkins v. Children's Hospital, and were loathe to overturn it. Roosevelt would have to pack the court with at least three, and perhaps as many as four, new justices to ensure that he had a reliable majority in favor of the New Deal.
Then came "the switch in time that saved nine". Elsie Parrish was a maid working at the Cascadian Hotel in Wenatchee, Washington. The business was owned by the West Coast Hotel Company, which paid Parrish $13 a week. But the state of Washington had recently enacted a minimum wage law for women, "to protect the weaker sex". Parrish asked for $14.50 a week, the minimum established by the state. West Coast Hotel refused, and fired her. Parrish sued to recover the $1.50 a week she was owed. Just what happened behind the scenes at the Supreme Court is unclear. According to Chief Justice Hughes, he had a private conversation with Roberts shortly after the Novembeer 1936 presidential election, in which Roosevelt had won a massive majority in Congress and in the popular vote. Hughes convinced Roberts that it was futile to resist Rooseelt or the country any longer. So far, Roosevelt had only talked about a "court-packing" bill, but one was sure to come. Oral argument was heard December 16-17. On Decmeber 19, Roberts joined with Hughes, Brandeis, and Cardozo to uphold the Washington law. The "Four Horsemen" opposed it. But Justice Stone was out ill, and Chief Justice Hughes wanted a full vote on the issue. So he persuaded the Court to wait until Stone returned before deciding the case. Stone -- who'd fallen ill with bacillary dysentery on October 12 and almost died -- returned to the Court on February 1. Suddenly there was a 5-to-4 majority in favor of the minimum wage. Roosevelt formally introduced his court-packing bill on February 5, 1937.
An immense furor arose over Roosevelt's court-packing scheme. But then, on March 29, the Supreme Court announced in West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), that the Constitution permitted the restriction of freedom of contract by state law where such restriction protected the community, health and safety, or vulnerable groups.
It was an astonishing decision, especially since Roberts was widely (and correctly) viewed as the deciding vote. Roberts had voted to overturn a similar New York state minimum wage law just six months earlier in Morehead v. New York ex rel. Tipaldo, and his "switch in time" was credited with giving Democrats in Congress pause and leading to the defeat of the court-packing plan.
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But West Coast Hotel wasn't the win it seemed to be. The Court had previouisly upheld an Oregon minimum wage law for women almost 30 years earlier in Muller v. Oregon, 208 U.S. 412 (1908). The critical, defining element in West Coast Hotel was that Parrish was a woman. The law was designed to protect women, widely and misogynistically viewed at the time as weak and fragile, incapable of making common-sense decisions. Patriarchal misogyny demanded the protection of women.
West Coast Hotel wasn't a far-reaching decision.
But NLRB v. Jones & Laughlin Steel Corp. would be.
Tucked innocuously in Title I, Section 7(a) of the National Industrial Recovery Act were words which guaranteed the right of workers to form unions and banned yellow-dog contracts: "...employees shall have the right to organize and bargain collectively through representatives of their own choosing, and shall be free from the interference restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection".
This was provocative language. Labor historians have called it the Magna Carta of the labor movement. And it set off a massive wave of union organizing punctuated by employer and union violence, general strikes, and recognition strikes. Union membership jumped from 6.9 percent of the labor force in 1933 to 15.1 percent in 1937 and 19.2 percent by 1939.
But not in steel. The Amalgamated Association of Iron and Steel Workers (the "AA") had formed in 1876 to represent skilled workers in both the iron and steel industries. It was brutally suppressed during the Homestead Strike of 1892 in Homestead, Pennsylvania; suffered a major setback when U.S. Steel broke the union during the U.S. Steel Recognition Strike of 1901; and was shattered when federal troops broke the nationwide steel strike of 1919. By mid-1933, the AA had only 5,000 members and less than $30,000 in the bank. Union president Michael F. Tighe, 76, was referred to as "Grandmother" due to his advanced age and timidity. In 1934, an opposition group known as the Rank and File Movement formed within the AA. They advocated militantcy, blitzekrieg organizing, and -- most importantly -- the organizatino of all workers in the steel industry, not just skilled ones.
With NIRA unconstitutional and yet massive strikes and union organizing occurring at a rapid pace nationwide, leaders in Congress decided the nation needed a new federal labor law to keep "labor peace" in America (and to prevent strikes from undermining the minimal economic recovery). Proposed immediately after the decision in Schechter Poultry, the National Labor Relations Act was signed into law by President Roosevelt on July 5, 1935. It provided for federal supervision of union elections to ensure fairness, penalties for employers who broke the law, and more.
The NLRA was not favored by American labor. The American Federation of Labor (AFL) believed in a completely voluntary form of unionism, one restricted only to highly skilled, highly paid "craft" workers. (Most of these were WASPs, which perfectly suited the racist, anti-immigrant AFL.) But there were some in the AFL who believed that "craft unionism" was dead, if not dying. They wanted to unionize entire industries, not select job categories within each industry. This new kind of union movement, "industrial unionism", was anathema to the racist, ethnocentric AFL. Nevertheless, a Committee for Industrial Organization (CIO) formed within the AFL on November 8, 1935.
CIO leaders wanted to start a steel organizing campaign. But CIO leaders also did not want to break with the AFL, which was politically powerful (in some quarters) and wealthy. So the CIO resolved to work through the AA instead. John Brophy, the newly hired organizing director of the CIO, infiltrated the AA convention of 1936 and proposed that the union merge with a body to be created by the CIO. In return, the CIO would spend millions organizing in the steel industry. Rank and File Movement members didn't yet have a majority of the AA delegates, but they were able to push through a resolution agreeing to study the CIO's proposal. Tighe sent a representative to consult with AFL President William Green. Green could not match the CIO's monetary offer, as AFL member union didn't want to engage in industrial uninoism. CIO leaders then told Tighe that the CIO would move ahead with an organizing drive in the steel industry with or without the AA. Confronted with a choice between irrelvance or collusion, AA officials accepted the CIO proposal, affiliated with the CIO on June 4, and agreed to make the AA an administrative unit of CIO's new Steel Workers Organizing Committee (SWOC). SWOC was formally announced in Pittsburgh on June 7, 1936. Green was outraged, and the AFL suspended the 10 unions which belonged to the CIO in November 1936.
SWOC didn't care: By then, it was rapidly signing up hundreds of thousands of steelworkers nationwide. SWOC made a dramatic breakthrough when, on March 2, 1937, the union signed a collective bargaining agreement with U.S. Steel. SWOC had effectively infiltrated the employer's company unions and turned them against the employer. CIO President John L. Lewis (also president of the United Mine Workers) then secretly met with U.S. Steel President Myron Taylor, whom he knew well socially. Confronted with a fait accompli, Taylor agreed to recognize the union and sign a contract.
U.S. Steel had roughly 40 percent of the market. SWOC then attempted to organize the 186,000 workers laboring for "Little Steel", the seven companies which represented the majority of the remaining steel market in the United States: Jones & Laughlin Steel, Republic Steel, Bethlehem Steel, Youngstown Sheet and Tube, National Steel, Inland Steel, and American Rolling Mills.
Aliquippa, Pennsylvania, was home to the largest mill owned by Jones & Laughlin Steel. For decades, the steel industry's Coal and Iron Police (a private militia) showed up to beat people senseless whenever union organizers had shown up. In Pennsylvania, Jones & Laughlin could always count on the state sending in the National Guard to back up the Coal and Iron Police whenever a strike occurred. But no longer. Pennsylvania's new progressive governor, Gifford Pinchot, had no intention of doing the steel companies' bidding any longer.
To counter the union organizing drive, Jones & Laughlin fired everyone who supported the union. SWOC filed a complaint with the National Labor Relations Board (NLRB). The NLRB ruled that the company had acted illegally, and ordered the workers reinstated.
Jones & Lauglin Steel appealed to the U.S. Supreme Court. Oral arguments were heard February 10–11, 1937, a full month before the ruling in West Coast Hotel. Jones & Laughlin Steel had every reason to expect that it would win. After all, the National Labor Relations Act was an unconstitutional infringement on the freedom of contract.
But then on April 12, 1937, in NLRB v. Jones & Laughlin Steel Corporation, 301 U.S. 1 (1937), the Supreme Court upheld the NLRA.
The Lochner era was over. From then on, the Supreme Court upheld every single New Deal act on the books, as well as every single piece of New Deal legislation promulgated by Congress.