Justice Black and the Absolute
“DUE PROCESS, to use the vernacular,” Justice Douglas has said in a formal lecture on the Bill of Rights, “is the wild card that can be put to such use as the judges choose.” A little more than a quarter of a century ago they chose, in the name of the due process clause of the Fourteenth Amendment,* to strike down statutes that were intended to help us out of the Depression. One had the sense of an accelerating force out of control by the spring of 1936. On each of three successive Mondays the Supreme Court declared a statute unconstitutional, using for each a different reason and reserving due process for the last, a New York minimum wage law for women drawn with such care to appease the Court that even starvation wages were to be raised only if a reasonable wage level resulted.
Today the use of the due process clause to upset any economic regulation seems impossible. We know the exact moment when the new direction set in. Less than a year after the decision in the New York case a Washington State minimum wage act, much less well-drawn than the one in New York, was upheld. No new judge had considered the problem, no new learning was brought to it; between the two decisions Franklin Roosevelt had been overwhelmingly re-elected and proposed to pack the Court with new judges. It seems an unimportant nicety to point out that the Washington case apparently had already been informally decided before Roosevelt’s plan was announced. As the attack continued, the Court by the changed vote of one judge or at the most two (“A switch in time saves nine”) found that the power to enact broad welfare legislation existed in Congress as well as the states, and at a well-timed moment in the fight one extremely conservative judge retired. The Court-packing plan was beaten and the independence of the judiciary preserved by surrendering to the assailant.
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