The Lincoln Plawg - the blog with footnotes

Politics and law from a British perspective (hence Politics LAW BloG): ''People who like this sort of thing...'' as the Great Man said

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Thursday, July 21, 2005

SCOTUS switch in time reminder

I mentioned in passing on July 12 the switch in time that saves nine - that monument to not letting the facts get in the way of a snappy catchphrase.

Just now checking out a handy site containing the text of several dozen recent law journal articles and come across a useful article The Great Depression and the New Deal with a solid treatment of the topic (though I'm hardly qualified to review it!).

In looking (p29ff) at the way SCOTUS decisions turned round on the constitutionality of wage and price regulation, the piece points out that there was no single decision in which flip became flop:

In 1930, Adkins v Children's Hospital struck down a DC minimum wage law for women. Then Nebbia v New York in 1934 - with the Four Horsemen in situ found NY price regulations governing the milk industry constitutional [1], and might be said to have started the rot:
"There is no closed class or category of business affected with a public interest," wrote Justice Roberts. The term meant "no more than that an industry, for adequate reason, is subject to control for the public good."

McReynolds wrote afterwards to a friend that Nebbia was
the end of the constitution as you and I regarded it.
SCOTUS took a step backwards in 1936 with ex rel Tipaldo [2], striking down a New York minimum wage act; but two steps forward with West Coast Hotel v Parrish in 1937 in upholding a Washington law minimum wage act. Roberts was the swing vote.

Now, on the switch, it points out that it's a crock:
Roosevelt’s proposal to add a new Justice to the Court for each Justice who had not retired within six months following his seventieth birthday was introduced on February 5, 1937. The vote to uphold the Washington minimum wage statute was taken in conference on December 19, 1936, more than six weeks before the plan, known only to a handful of the President’s most intimate advisors, was unveiled.

Roberts later (p32) explained his switcheroo between Tipaldo and Parrish. It's complicated; but the origin seems to have been the fact that
counsel for the state of New York had not requested that Adkins be overruled, but had instead sought to distinguish the statute from the law invalidated in Adkins.

The switch in time is comparable to an urban legend about Harold Wilson, according to which he won the 1966 general election (beating the (lately deceased) Ted Heath because England won the soccer World Cup that year).

Unfortunately, the election came before the Cup win!

But - twist! - in 1970, Wilson lost to Heath. And, in that year, England crashed out of the Cup before the election. So could have been a factor.

  1. As the milk business was judged as being affected with a public interest - the class of business which, in the Lochner era, could constitutionally be regulated.

  2. Which the article failed to reference - why, dammit? It's here.


A great 5,000 word piece covers the origins of the New York law [1] struck down in ex rel Tipaldo. Lobbying by the Women's Joint Legislative Conference was involved, which included (only name I recognise!) Frances Perkins as one of its leaders.

Perkins was FDR's concession to the 19th Amendment in his Cabinet - despite being a long-time associate of arch-enemy Al Smith. She was handily placed, though, as Labor Secretary, to lobby for Federal minimum wage legislation. Which, after the NRA fiasco and the SCOTUS flip, came with the Fair Labor Standards Act of 1938 [2].

The piece opens out to cover extensively the development of Federal labor laws in the New Deal, with loads of searchable circumstantial detail to fill in the bare story to be found in SCOTUS opinions and Voteview roll call information.

A similar piece on the Powell amendment (numerous, alas inconclusive, pieces here) would come in handy.

  1. The act is described in the SCOTUS opinion as
    chapter 584 of the Laws of 1933 adding article 19 to the Labor Law N.Y. (Consol. Law, c. 31)
    - didn't they have short titles for NY acts back then?

  2. I discussed on December 31 2004 the FLSA, and the extensive online material on it and related matters.

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