Defending the Old Constitutional Regime: The Four Horsemen Reject Government as a Relief Society

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The adage that the Supreme Court follows the election returns certainly did not apply to the Four Horsemen – Willis Van Devanter, George Sutherland, James McReynolds and Pierce Butler. President Franklin D. Roosevelt had earned landslide victories in the 1932 and 1936 presidential elections, but that was not discernible in the behavior of the four conservative Justices who were in control of the Supreme Court.  As he faced the most dire economic circumstances in United States history and the grim challenge of dispensing hope to a nation caught in the clutches of despair, Roosevelt intended through dramatic policies and programs to lift the country from the depths of the Great Depression by taking the federal government into the relief business. But not if the Four Horsemen had anything to say about it.

On the heels of his second landslide victory, as he prepared for his second inaugural address in January of 1937, President Roosevelt’s New Deal program had been shattered by the Supreme Court. On “Black Monday”—May 27, 1935—the Court struck down the heart of his efforts. In declaring the National Recovery Administration (NRA) unconstitutional, the Court by a 9-0 ruling, smashed the system of minimum wages, maximum hours and workers’ rights. In rapid succession, the Court struck down the Roosevelt Administration’s farm policy, manufacturing program, and a minimum wage law, which aimed to put a floor underneath the citizens whose economy had cratered. From 1933 to 1936, the Court was knocking down statutes at a historic rate. Justice Harlan Fiske Stone, who filed strong dissents from the Court’s rulings, complained that the Court was creating “new doctrine faster than he could absorb it.”

The Court’s new doctrines were resurrections of old doctrines, into which the Four Horsemen breathed life. The Court believed it was holding the line against radical efforts by Roosevelt to reorder the nation. The Horsemen sought to preserve the old regime—limited federal government, the sanctity of private property and economic laissez-faire. Thoroughly frustrated by the Court’s dismantling of New Deal programs, Roosevelt denounced the Justices and their “horse and buggy jurisprudence,” as “judicial tyranny.” If Roosevelt sought a dynamic interpretation of the Constitution adequate to the crisis of the times, the Horsemen viewed the Constitution as an unchanging document, worthy of preservation in the storm of change brought by the popular president.

The first of the Four Horsemen appointed to the Court was James McReynolds, whom President Woodrow Wilson elevated from his post as U.S. Attorney General to the High Tribunal in 1914. Wilson’s appointment of McReynolds reflected both his political aim of winning the Tennessean’s native state in the 1916 presidential election and the compelling need to remove him from the cabinet because of his offensive behavior. Wilson could not afford to dismiss McReynolds from the cabinet without alienating Tennessee voters, so he gave him a “promotion” to solve political and personal challenges. Once McReynolds arrived at the Court, he swiftly alienated fellow Justices because of his anti-semitism and nasty habit of spatting tobacco about, without concern to locate a spitoon.

Three of the Four Horsemen were brought to the Court by William Howard Taft, through his power of appointment as president and his power of persuasion, as a Republican titan and Chief Justice.  President Taft named Van Devanter, Chief Justice of Wyoming, a prominent railroad attorney, advocate of conservative political ideology and well-connected to powerful U.S. Senators, to the Court. He was the second of the Four Horsemen. As a Westerner, Van Devanter fulfilled Taft’s goal of geographical balance on the nation’s High Tribunal. Van Devanter’s work as a judge on the Eighth Circuit Court of Appeals reflected Taft’s interest in a Justice who exalted property rights.

Taft spoke to President Warren G. Harding in 1922 about appointing George Sutherland, a U.S. Senator from Utah, whose reputation as a conservative intellectual, particularly as a theorist on law and the judiciary, placed him atop the list of potential nominees. Harding had relied on Sutherland for close counsel during his 1920 presidential campaign and was pleased to have Taft’s support. Sutherland’s brand of conservatism reflected suspicion of majoritarian government and resistance to legislative solutions to social problems, as well as assertions of civil rights and liberties against the government, views that had been developed while reading the work of leading intellectual conservatives in the 1890s. Taft had written Sutherland that “our views are very much alike.”

While Sutherland was well-known, Harding’s next appointment, with the encouragement of Taft, was Pierce Butler of Minnesota. Butler’s three chief qualifications for a seat on the Court, at least as far as Taft was concerned, were his Catholicism and standing as a Democrat, which would enhance the representative nature of the Court, and his friendship with Taft. Butler had made no intellectual contributions to the world of law and had argued just one case before the Court. The two had become fast friends while working on an arbitration proceeding involving the acquisition of a railroad. They stayed at the same hotel and dined frequently together. Later, Taft wrote Butler to say he hoped one day to welcome him to the Court.

We turn next week to the Horsemen’s approach to interpreting the Constitution.