Penngaz1109 Feature4.Pdf

crony, former New Mexico senator Albert was so disgusted that he wanted to quit. watchers to discern a pattern in the stands B. Fall, had been appointed secretary. In He calmed down, however, and saw the he took. In Nebbia v. New York (1933), he return for hefty bribes, Fall used the small job through to the end. That came in sided with the liberals and Hughes in amount of oil leaking from the reserve as October 1929, when a federal jury upholding a $5 fine imposed by the state a pretext to issue drilling leases without brought in the first-ever felony convic- on a farmer who had violated a law fixing competitive bidding. tion against a Cabinet member: Albert the price of milk; the idea was to gain con- By the time the public caught on, Fall was sentenced to a year in prison trol over production and help dairy farm- Harding had died in office in 1923 and Fall and fined $100,000. ers survive. To the Four Horsemen, this had resigned. But the stench of fraud lin- A few months later, Roberts was named was an easy case: government can’t mess gered, and a Senate committee launched by President Herbert Hoover to fill a with a man’s right to run his business as an investigation under the leadership vacancy on the Supreme Court. He wasn’t he sees fit. But Roberts, who had himself of Montana Democrat Thomas Walsh. Hoover’s first choice. That had been John J. become a gentleman farmer in Chester Though Walsh made some headway, his Parker, a federal judge from North County, Pennsylvania, saw it otherwise in efforts met with orchestrated stonewall- Carolina, who owed his defeat in the the opinion he wrote for a 5-4 majority: ing: witnesses absconding, taking the Senate (by two votes) to union opposition “Equally fundamental with the private Fifth Amendment, or suffering drastic and a racist remark from his past. Roberts right is that of the public to regulate it in failures of memory. With elections com- was a safe substitute, acceptable to con- the common interest.” The decision ing up in the fall of 1924, Calvin Coolidge, servatives as a strong proponent of lais- augured well for the constitutionality of Harding’s running mate who had become sez-faire capitalism, respected by liberals the New Deal statutes that the president president upon his death, seized control as the man who cleaned up Teapot Dome. and the Congress were improvising as of the scandal by appointing special coun- In Solomon’s assessment, “the core of responses to the Depression. sel to look into it. His choices were former Robert’s appeal [was that] people could see The augury proved to be misleading. Ohio senator Atlee Pomerene, a conserva- in him whatever they liked.” The nomi- Over the next three years, Roberts leaned tive Democrat, and Owen Roberts. nee’s path to the high court couldn’t have the other way, relying on a narrow inter- At age 48, Roberts had several things been smoother: unanimous approval by pretation of the term “interstate com- going for him: his good name; his the Senate Judiciary Committee, followed merce” (economic activities not involved Republican credentials; and the recom- by a full-Senate confirmation so perfunc- in such commerce are considered beyond mendation of Pennsylvania senator tory that there was neither debate nor a Congress’s reach) and often casting the George Wharton Pepper C1887 L1889, formal vote. Before moving to Washington, deciding vote. Solomon totes up the score who called him “the fighting Welshman.” Roberts told friends he would be his own as it stood in 1936: “Of the ten New Deal But Pepper had scoffed at the Senate’s man on the court, careful not to align him- laws that had come before the Supreme Teapot Dome hearings as “a ridiculous self with either of its wings. Court, the justices had overturned eight.” circus,” and little was expected of this And sharply divided those wings were. And although in 1933 Farmer Roberts had parallel inquiry. Nevertheless, on February On the right were four justices whose saved New York State’s milk regulation, in 17, 1924, the Senate confirmed the appoint- championship of unfettered private enter- 1936 he helped sink the U.S. Agricultural ments, and the two men went to work. prise was uncompromising: Willis Van Adjustment Administration. One of Roberts’s first acts was to call on Devanter, Pierce Butler, George Sutherland, Chief Justice Hughes was with him Senator Walsh and assure him that he and James McReynolds, known as The Four on this one, but the majority opinion hadn’t accepted the job to conduct a white- Horsemen. On the left were Louis Brandeis, Roberts wrote in United States v. Butler wash. Though skeptical at first, Walsh Harlan Fiske Stone, and Benjamin Cardozo. may have been the least satisfactory came to trust Roberts and gave him valu- In the center stood the chief justice, Charles work-product of his legal career. The able leads. Roberts and Pomerene went out Evans Hughes, a consensus-builder who case addressed a central feature of the West to interview witnesses and follow fretted about how the Court was perceived Agriculture Adjustment Act: a tax on document trails, “paying expenses out of during what was shaping up as an era of farm products, the proceeds of which their own pocket,” notes Laton McCartney, economic calamity. In this context, Roberts went to pay farmers not to plant crops. author of The Teapot Dome Scandal, because came to the bench as a potential power- As in the milk case, the object was to “the $100,000 appropriated for their inves- house; as Solomon puts it, “The Four promote the common good by regulat- tigations had been held up in Congress.” Horsemen could not prevail without the ing supply at a time of upheaval. (Indeed, The funding eventually materialized, vote of either Roberts or Hughes, nor could the act led off by declaring a state of and Roberts in particular won praise for the liberals win without both.” It wasn’t emergency.) Early in his opinion, Roberts his canniness: summing up his Teapot long, however, before Roberts held the bal- asserted that the court had only one Dome work, The New York Times called ance alone. Just as pundits used to sum up duty when faced with a constitutional him “a Sherlock Holmes as well as a the pivotal position of Justice Sandra Day objection to a law: “to lay the article of lawyer.” In June 1926, a great wrong was O’Connor before her retirement, or that of the Constitution which is invoked beside finally righted when a federal appeals Justice Anthony Kennedy today, by talking the statute which is challenged and to court invalidated the Teapot Dome leas- about the O’Connor or Kennedy Court, so in decide whether the latter squares with es. A year later, however, the investiga- the 1930s it was “the Roberts Court.” the former.” Roberts, Hughes, and the tion ran out of money again, and Roberts Roberts didn’t make it easy for court Four Horsemen held the tax unconstitu- 54 NOV | DEC 2009 THE PENNSYLVANIA GAZETTE tional because it was levied for a purpose— Congress. Led by Burton Wheeler, a in the late 1930s, then, Roberts was tak- “to regulate and control agricultural Montana Democrat, the Senate took par- ing note of the national predicament, production”—that encroached, in their ticular umbrage, and in the end Roosevelt not to mention the situation in Europe, view, on powers reserved to the states. suffered an embarrassing defeat. where dictatorship was a growth indus- In dissent, Justices Stone, Brandeis, and In the meantime, the Court had become try. He admitted as much in lectures he Cardozo objected to the decision on sev- more Roberts’s than ever. As the Court- gave at Harvard Law School in 1951: “An eral grounds, the most telling of which packing bill was pending, the Court issued insistence by the Court on holding fed- was that it left the country tied up in its decision in West Coast Hotel Co. v. eral power to what seemed its appropri- knots: this was no time to look to the Parrish (1937), upholding Washington ate orbit when the Constitution was states, the dissenters pointed out, because State’s minimum-wage law by a 5-4 mar- adopted might have resulted in even they were “unable or unwilling to supply gin—majority opinion by Justice Roberts. more radical changes in our dual struc- the necessary relief.” Law professors also Just the year before, however, he had been ture [i.e., the respective spheres of fed- took exception, but the unkindest cut may in the majority that struck down New eral and state government] than those have been inflicted by the anonymous York’s minimum-wage law, so this was which have been gradually accom- student who analyzed the case in the Penn definitely a switch: even Felix Frankfurter, plished through the extension of the Law Review. The principle that Congress’s a law professor who later became a col- limited jurisdiction conferred on the powers are limited by those reserved to league and great admirer of Roberts’s on federal government.” Much as Roosevelt the states is “as vague as the due process the Court, called it a “somersault.” And it is said to have saved capitalism by per- clause,” the student wrote, “and one which was only the beginning. Over the next few forming radical surgery on it, Roberts in its application will extend tremendous- years, the Roberts Court became more can be seen as preserving the Court by ly the influence of the Supreme Court, the tolerant of federal laws as well, upholding finding ways to accommodate the New only body deemed capable of ascertaining one New Deal measure after another, Deal.

Load more