Posted by: Russell Fowler on Mar 1, 2021

Journal Issue Date: March/April 2021

Journal Name: Vol. 56 No. 2

With the Supreme Court’s decision of Allgeyer v. La.1 (1897), a majority of the justices finally adopted the constitutional doctrine of “substantive due process.” This pro-property, pro-business doctrine, long advocated by Justice Stephen Field, viewed the due process clause of the Fourteenth Amendment as having a dual nature: procedural and substantive.

Under the clause’s newly recognized substantive side, there are certain things government cannot do regardless of the procedure followed. In other words, the due process clause’s words “life, liberty or property” contain vested rights not enumerated anywhere else in the Constitution. This included most notably the right of “liberty of contract.”

Accordingly, the court proceeded to strike down state laws regulating economic activity as violating the right of corporations and even employees to enter into contracts. (But this is often exaggerated, for court alignment would shift and sometimes such laws were upheld.) The doctrine was extended to federal laws under the due process clause of the Fifth Amendment in Adair v. U.S.2 (1908).

Justice Oliver Wendell Holmes Jr.

A critic of this new approach was Justice Oliver Wendell Holmes Jr. He charged that the court’s activist majority was simply reading into the Constitution popular notions of social Darwinism’s “survival of the fittest” and fueled by a fear of socialism.3 He said in Lochner v. N.Y. (1905):4 “A constitution is not intended to embody a particular economic theory.”5

Although Justice Holmes often personally disagreed with state and local measures regulating economic activity, such as wage, hours and safety laws in the workplace, his judicial restraint compelled him to oppose second-guessing the will of the people as expressed through their representatives. Holmes wrote: “[I]f my fellow citizens want to go to Hell I will help them. It’s my job.”6

Black Monday

Holmes left the court in January of 1932, at the age of 90, with substantive due process well entrenched despite his warnings. The same year, Franklin Roosevelt was sent to the White House to combat the Great Depression, and this he energetically did under the banner of the “New Deal.” Although much of the endeavor was trial and error, it marked a titanic shift in power to the national government and to the executive branch in particular.

President Franklin Roosevelt

Yet the Supreme Court remained a citadel of conservatism and still committed to substantive due process. Although the court at first sent mixed signals about the New Deal, a judicial thunderbolt struck on May 27, 1935, a date to be known as “Black Monday.”

An ultra-conservative block of the court, known as the “Four Horsemen,” which included Justices Willis Van Devanter, James McReynolds, Pierce Butler and George Sutherland, were united by devotion to substantive due process, but they were a minority unless they could bring along at least either one of the less doctrinaire conservatives, Justice Owen Roberts or Chief Justice Charles Evans Hughes, known as the “roving justices.”7 This they managed to do and then some.

In one day, the Supreme Court struck down three central features of the New Deal. The most important decision was Schechter v. U.S. (1935)8 in which the court unanimously declared the National Industrial Recovery Act (NIRA) unconstitutional. This act permitted the president to regulate industry in an attempt to raise prices after severe deflation and stimulate economic revival. A devastated Roosevelt responded that the court had a “horse-and-buggy” definition of interstate commerce.9

The Hughes Court

The following year, in U.S. v. Butler (1936),10 an opinion written by Justice Roberts, the court struck down the Agricultural Adjustment Act (AAA), another key part of the New Deal, which paid subsidies to farmers to remove land from production, thereby increasing prices. The court said it was a state issue and violated the 10th Amendment. Other anti-New Deal decisions followed. The court had never struck down so many laws in so short a time. FDR feared “the nine old men” would next strike down the Social Security and National Labor Relations Acts.

The Court-Packing Plan

Roosevelt determined to act. He first pondered amending the Constitution to require a two-thirds vote of the justices to find a federal law unconstitutional, but that would be too difficult and slow. He settled upon what would be called by its detractors “the court-packing plan.” Under the pretense of wanting to help an aging and overworked court, he proposed a bold bill: Whenever a federal judge or Supreme Court justice with 10 years of service or more did not retire within six months of reaching the age of 70, the president could appoint an additional judge or justice to the applicable court.

New appointees would be limited to six on the Supreme Court and 44 for all federal courts combined. Because there were only three justices below 70, Roosevelt could name as many as six new justices. That would bring the court to 15. Congress had altered the size of the court in the past, but never to such a degree.

The proposal inaugurated “the fiercest battle in American History between two branches of our government over a third.”11 The debate over the plan raged in Congress and across the nation. Ten million letters poured in to Congress.12

In a radio address to the nation, Roosevelt called the court “a super legislature” and urged listeners to “save the Constitution from the Court and the Court from itself.”13 Considering the president’s political power, his powers of persuasion and his party’s dominance in Congress, the court and its supporters had good reason for concern. Yet the justices, because of tradition and decorum, remained silent.

Chief Justice Hughes

At the suggestion of Justice Louis Brandeis, Senator Burton Wheeler asked the magisterial Chief Justice Hughes — a man respected across the political spectrum not only for his service as a justice but also for his years as governor of New York and secretary of state — to prepare a letter to the Senate Judiciary Committee. (Future Justice Robert H. Jackson said Hughes “looks like God and talks like God.”14) Senator Wheeler dramatically read Hughes’s letter to the committee. He later said, “You could have heard a comma drop in the Caucus Room as I read the letter aloud.”15

Point by point, Hughes refuted FDR’s arguments. In detail, he explained that the court was not backlogged and how additional justices would only serve to make the court less efficient. Wheeler said, “The letter had a sensational effect.”16 The debate changed from the court’s obstructionism to judicial independence. Vice President Garner told the president: “We’re licked.” 17

The Senate Judiciary Committee report stated:

We recommend the rejection of this bill as a needless, futile, and utterly dangerous abandonment of constitutional principle. . . . It would subjugate the courts to the will of Congress and the President and thereby destroy the independence of the judiciary, the only certain shield of individual rights. … Its ultimate operation would be to make this government one of men rather than one of law, and its practical operation would be to make the Constitution what the executive or legislative branches of the government choose to say it is — an interpretation to be changed with each change of administration. It is a measure, which should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.18

The bill was killed by a 70 to 20 vote in the Senate.19 Justice Sandra Day O’Connor later observed that “the Court survived one of the greatest crises in its history.”20

The Switch in Time that Saved Nine

Even with the victory, the New Deal was safe. At Chief Justice Hughes’s urging,21 Justice Roberts switched to approving government intervention into the economy in West Coast Hotel Co. v. Parrish (1937).22 Although the Parrish decision was decided in conference before the court-packing plan was announced, it was called “the switch in time that saved nine.”23 And a real, enduring shift in the court took place. Some believe criticism of the court and Roosevelt’s landslide re-election in 1936 may have had an impact.

In any event, Hughes would no longer roam between jurisprudential camps. He firmly adopted a broad interpretation of congressional power over interstate commerce, moved away from substantive due process, which he had always seen as embodying a qualified or limited right of contract,24 and indicated that greater deference should be accorded legislation. Furthermore, FDR got to swiftly remake the court another way because of two deaths and six retirements. By 1941, the last of the Four Horsemen, a bitter and isolated James McReynolds of Tennessee, was gone.

Also gone was substantive due process concerning economic and contract rights. Henceforth, the Supreme Court rarely limited Congress’s commerce regulating power. But that did not mean the justices had nothing to do. In famous footnote four in U.S. v. Carolene Products Co. (1938),25 Justice Harlan Fiske Stone quietly announced the court’s new agenda. Emphasis would now be placed on personal liberty or rights instead of those of property. This new agenda would reach its height during the Warren Court to come. 

RUSSELL FOWLER is director of litigation and advocacy at Legal Aid of East Tennessee (LAET), and since 1999 he has been adjunct professor of political science at the University of Tennessee at Chattanooga. He served as the law clerk to Chancellor C. Neal Small in Memphis and earned his law degree at the University of Memphis in 1987. Fowler has many publications on law and legal history, including many in this Journal


1. 165 U.S. 578.
2. 208 U.S. 161.
3. See Oliver Wendell Holmes Jr., “Law and the Court” (speech to Harvard Law School Assoc. of N.Y.), 15 Feb. 1913, in Collected Legal Papers 291, 295 (1920).
4. 198 U.S. 45.
5. Id. at 75.
6. Oliver Wendell Holmes Jr., Letter to Harold J. Laski, 4 Mar. 1920, in 1 Holmes-Laski Letters 249 (Mark DeWolfe Howe ed. 1953).
7. Mary Ann Harrell, Equal Justice Under Law: The Supreme Court in American Life 80 (1975).
8. 295 U.S. 495.
9. Harrell at 81.
10. 297 U.S. 1.
11. Burton K. Wheeler and Paul F. Healy, Yankee from the West 339 (1962).
12. Sandra Day O’Connor, The Majesty of the Law 127 (2003).
13. Harrell at 92.
14. William M. Wiecek, The History of the Supreme Court of the United States 60 (2006).
15. Harrell at 129.
16. Wheeler at 333.
17. Id.
18. United States Senate Judiciary Committee Report, June 7, 1837.
19. Wheeler at 339.
20. O’Connor at 130.
21. Bernard Schwartz, A Book of Legal Lists 16 (1997).
22. 300 U.S. 379.
23. David M. O’Brien, Storm Center 58 (2008).
24. Charles Evans Hughes, The Supreme Court of the United States 204-5 (1927); Kenneth Bernard Umbreit, Our Eleven Chief Justices 487 (1938).
25. 304 U.S. 144.