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Government by Judiciary: The Four Horsemen, in the Saddle, Exert Influence and Thwart New Deal Programs

The remarkable influence of the Four Horsemen, as demonstrated by their success in thwarting on constitutional grounds President Franklin D. Roosevelt’s New Deal plans to resuscitate an economy brought to its knees by the Great Depression, reminds us of the capacity, for better or worse, of the Supreme Court to rewrite Alexander Hamilton’s modest description of the judiciary as the “least dangerous branch.” The pitched battle between the Four Horsemen—Willis Van Devanter, James McReynolds, George Sutherland and Pierce Butler—and President Roosevelt on the question of whether the Constitution empowered extensive governmental intervention to regulate a free market economy in a way that surpassed previous efforts, represented a historic contest for authority to shape and control the course of American governance. The spectre of “government by judiciary” had been brought center stage.

 

  In his First Inaugural Address, President Roosevelt said that if the country was to rise from the abyss into which the economy had sunk, that it “must move as a trained and loyal army willing to sacrifice for the good of a common discipline, because without such discipline no progress is made, no leadership becomes effective.”  But Roosevelt faced a wall. The Supreme Court’s resistance to governmental power to legislate relief could not be breached. While none of the Four Horsemen was destined to appear on the list of “great” Justices, it was an exaggeration to characterized them as failures.

 

          As a unit, the Horsemen were successful in resisting change. Justice Van Devanter, the first of the four Horsemen, found writing terribly difficult and he could barely crank out five opinions a year. Yet, he arrived at the Court’s conference with well-developed ideas and effective arguments, indicating an ability to secure support from his colleagues before any writing was required.  Justice McReynolds, whom President William Howard Taft called, “Old Mac,” as if he were an avuncular figure, congenial and collegial, when, in fact, he was offensive and unfriendly, was not one to cobble together votes on the basis of charm and good will, but he was a zealot, displaying a single-mindedness that energized the other Horsemen. Justice Butler did not always adhere to the principles of decorum during argument, but he was reliable, resolute and firm. Justice Sutherland, the leading intellectual member of the Four Horsemen, had a knack for clothing his reactionary views with contrived rhetoric from the American founding that bestowed on his positions the pillars of tradition and wisdom. The Horsemen were united in a way that was unrivaled by any other bloc of Justices in our history. They gathered on Friday nights to strategize about the arguments and tactics that they would employ at the Court’s Saturday morning conferences.

 

      The Four Horsemen believed that the Constitution was not intended to change with time and that its prohibitions on governmental regulation of the economy were permanent. Accordingly, citizens could transact their business without governmental interference. These positions, essentially 19th Century judicial glosses on the Constitution, were a product of judicial innovation, or judicial adaptation to prevailing social views and economic doctrines at the time, since nothing in the constitutional text supported them. This became a serious problem for the Four Horsemen.  If they could accept judicial gloss from the 19th Century, grounded on judicial adaptation of the Constitution to the needs of the times, why couldn’t they accept New Deal adaptations, widely viewed as critical to the renewal of the nation?  The Horsemen were trapped. They couldn’t very well embrace innovative judging and judicial gloss in an earlier era but reject it in their own. There were no intellectual premises to justify such inconsistency.

 

    When the Court, led by the Four Horsemen, rejected the exercise of national power to maintain fair industrial and labor standards, and all federal aid to agriculture, as well as regulation of mining and manufacturing and the use of the taxing and spending powers to promote the general welfare, it appeared that Congress was, and should be, rendered impotent to lift the country from the depths of the Depression. If there was doubt about the Horsemen’s jurisprudence, it was swept away when the Court held that there was no power in either the states or the federal government to enact a minimum wage law. The denial of authority to create a floor beneath the feet of American workers insured their continued poverty and misery. The Court was clear: no governmental power existed to meet the urgent needs of the 20th Century community.

 

     President Roosevelt, among many critics, laid bare the threat posed by this jurisprudence. “We have reached the point as a nation,” Roosevelt declared, “where we must take action to save the Constitution from the Court.”   Roosevelt’s answer was his “Court-packing” plan of February 5, 1937. Although vulnerable to criticism and unpopular in Congress and throughout the nation, it nevertheless moved the Court to change its mind about the meaning of the Constitution and its adaptability to the crises of the times. The view that the Constitution could be adapted to the urgent needs confronting the nation marked the decline of the Horsemen’s influence. We turn next week to the Court’s change, what one contemporaneous commentator described as “the switch in time that saved nine.”





David Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality. He has lectured nationally and internationally on the Constitution and the Bill of Rights. His scholarly writings have been quoted by the US Supreme Court, lower federal courts and by both Republicans and Democrats in Congress.




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