SIX
The Case of the Wenatchee Chambermaid [When my former Columbia University
colleague John A. Garraty asked me to suggest some Supreme Court cases that might
be included in a revision of his book, Quarrels That Have Shaped the Constitution , I put
foremost on my list West Coast Hotel v. Parrish because in the history of the Court it
marked a historic divide. In addition, that ruling had a not inconsiderable impact on the
fate of FDRs Court-packing plan. For the expanded version of his volume, Garraty
invited me to contribute the article on the Elsie Parrish case. Before being included in
the new edition of Quarrels , which was published by Harper and Row in 1987, it
appeared in the December 1986 issue of American Heritage . In neither instance was it
annotated, and it has been left in that form a piece written for a popular audience. I
have, though, altered it slightly, mostly in order to incorporate some new material.]
When on a spring day in 1935 Elsie Parrish walked into the office of an obscure lawyer
in Wenatchee, Washington, to ask him to sue the towns leading hotel for back pay, she
little realized that she was linking her fate to that of exploited women in a Brooklyn
laundry a continent away. Still less did she think that she was setting off a series of
events that would deeply affect President Franklin D. Roosevelts plans for his second
term. Least of all did she perceive that she was triggering a constitutional revolution
that, even today, remains the most significant chapter in the two centuries of existence
of the U.S. Supreme Court. All Elsie knew was that she had been bilked. Late in the
summer of 1933, Elsie Lee, a woman of about forty who would soon be Elsie Parrish,
had taken a job as a chambermaid at the Cascadian Hotel in Wenatchee, entrept for a
beautiful recreation area reaching from the Columbia valley in Oregon to the Cascades
and the countrys foremost apple market. Apples made Wenatchee and apples
maintain it, noted the WPA Guide to Washington. It is surrounded by a sea of
orchards, covered in spring with a pink foam of blossoms, mile upon mile, filling the
valleys and covering the slopes; the air of the town is sweet with the fragrance. Here, in
the land of Winesaps and Jonathans, where in summer and fall the spicy odor of
apples is everywhere, Parrish worked irregularly over the next year and a half cleaning
toilets and sweeping rugs for an hourly wage of twenty-two cents, later raised to a
quarter. When she was discharged in May 1935, she asked for back pay of $216.19, the
difference between what she had received and what she would have gotten had she
been paid each week the $14.50 minimum mandated for her occupation under state
law. The Cascadian, which was owned by the West Coast Hotel Company, offered to
settle for $17, but she would not hear of it. Instead, she and her husband Ernest brought
suit for what she insisted was due her. The Parrishes rested their case on the provisions
of a statute that had been enacted by the state of Washington a quarter of a century
before when, catching the contagion of reform from neighboring Oregon, it had taken
steps to wipe out sweatshops. The 1913 act declared it unlawful to employ women or
minors . . . under conditions of labor detrimental to their health or morals, and . . . to
employ women workers in any industry . . . at wages which are not adequate for their
maintenance. To safeguard the welfare of female employees, the law established a
commission that was authorized, after investigation, to call together employers,
employees, and representatives of the public to recommend a wage standard not
detrimental to health and morals, and which shall be sufficient for the decent
maintenance of women. On receiving that recommendation, the commission was to
issue an order stipulating the minimum wage that must be paid. For chambermaids, the
weekly minimum was set at $14.50. Twice the statute had been challenged in the
courts, and on both occasions the Washington Supreme Court had validated it. Elsie
Parrish appeared to have an airtight case. Alas, any law student in the land could have
told her that her case was hopeless, for twelve years before, the U.S. Supreme Court
had ruled, in a widely reported decision in Adkins v. Childrens Hospital , that a minimum
wage act for women was unconstitutional because it violated the liberty of contract that
the Court claimed was guaranteed by the Constitution. Though the opinion by Justice
George Sutherland commanded only five votes and elicited vigorous dissents, it
reconfirmed a notion incorporated in constitutional doctrine only a generation before:
that a great corporation and its employee even someone as powerless as a
chambermaid each had an equivalent right to bargain about wages, a fantasy that
Justice Holmes dismissed as dogma and the renowned commentator Thomas Reed
Powell of Harvard Law School called indefensible. Adkins , said one commentator,
makes forever impossible all other legislation along similar lines involving the regulation
of wages. The case involved an act of Congress rather than a state statute, but there
was no difference in principle. Any law that transgressed the due process clause of the
Fifth Amendment would, if enacted by a state, be held to violate the due process clause
of the Fourteenth Amendment. Though the Washington law remained on the statute
books, it was presumed to be null and void. Hence, it startled no one when in November
1935, after hearing Elsie Parrishs case, the presiding judge of the superior court of
Chelan County ruled against her, explaining that Adkins bound every court in the nation.
Surprisingly, the Supreme Court of the state of Washington took a different view. On
April 2, 1936, it overturned the lower courts decision. To get around the huge obstacle
of Adkins , the court pointed out that the U.S. Supreme Court had never struck down a
state minimum wage law, which was true but irrelevant. The decision gave the Parrishes
a moment of euphoria, but it hardly seemed likely that this opinion would survive a test
in the U.S. Supreme Court, given the Adkins ruling and the manifest hostility of Justices
such as Sutherland to legislation of this nature. Only eight weeks later, the Court settled
any doubt on the matter by a decision on a case that, three thousand miles from
Wenatchee, had begun to wend its way through the judicial system while Elsie Parrish
was still making beds in the Cascadian Hotel. It arose out of the hope of social
reformers in New York, especially women active in the Consumers League, that the
Court, despite Adkins , might look favorably on a minimum wage law for women and
minors if wage setting was related not just to the needs of women but to the value of the
services they rendered. To that end, Felix Frankfurter of Harvard Law School and
Benjamin Cohen, a former Brandeis law clerk who was to be a prominent New Dealer,
crafted a model law. New York State adopted it in 1933, the fourth year of the Great
Depression, which had reduced some young women, living on starvation wages, to
sleeping in subways; and other states copied the New York act. Frankfurter warned that
it was foolish beyond words to expect the Court to reverse itself, but he hoped that the
Justices might be willing to distinguish this statute, with its added feature of value of
services, from the one struck down in Adkins . Every word of the New York law,
explained a prominent woman reformer, was written with the Supreme Court of the
United States in mind. In accordance with the provisions of the model legislation, New
York State obtained an indictment against Joseph Tipaldo, manager of the Spotlight
Laundry in Brooklyn, who had been brutally exploiting his nine female employees, first
by paying them far below the minimum wage and then by pretending to pay the
minimum but forcing the laundresses to kick back the difference between what the state
required and what he actually intended to pay. When Joe Tipaldo went to jail to stand
trial on charges of disobeying the mandatory wage order and of forgery, the hotel
industry (the same business that would be involved in the Parrish case) rushed to his
side with an offer to bankroll a test of the constitutionality of the New York law. Since
hotels were working their employees twelve hours a day, seven days a week, they had
a high stake in the case. In fact, the state had already begun minimum-wage
proceedings against them. Consequently, each hotel put money in a kitty to finance
Tipaldos petition for a writ of habeas corpus to compel Frederick L. Morehead, warden
of Brooklyns city prison, to release the laundry manager from custody. While his case
was being prepared, Tipaldo renamed his sweatshop the Bright Light Laundry and
made a big investment in expanding his business. Utterly shameless, he explained, I
expect to get it back eventually on what I save in wages. On June 1, 1936, the U.S.
Supreme Court appeared to justify his optimism when, in a 5 4 decision in Morehead v.
New York ex rel. Tipaldo , it struck down New Yorks minimum wage law. In a sweeping
opinion written by Pierce Butler, the Court found no meaningful difference between the
New York statute and the District of Columbia act that had been invalidated in Adkins .
Both, it said, violated the liberty of contract that safeguarded equally the rights of
employer and employee to bargain about wages. After quoting from Adkins with obvious
approval, the Court declared, in language that shocked champions of the exploited,
The decision and the reasoning upon which it rests clearly show that the State is
without power by any form of legislation to prohibit, change or nullify contracts between
employers and adult women workers as to the amount of wages to be paid. Those
words all but doomed Elsie Parrishs cause, and gave cocky Joe Tipaldo the victory of a
lifetime. That victory, however, turned out to carry a very high price. After the court
decision, business looked good for a while, Joe told a reporter three months later. I
was able to undercharge my competitors a little on what I saved in labor costs. But then
business started to fall off, then fell some more. I think this fight was the cause of my
trouble, he said. My customers wouldnt give my drivers their wash. Before the
summer was over, the Bright Light Laundry had folded, and Joe Tipaldo was one of the
army of unemployed. Im broke now, he confessed. I couldnt stand the gaff. Elsie
Parrish was made of sterner stuff. She was determined to carry on her struggle, though
her prospects seemed bleak indeed. Given the precedent of Adkins , her case had
never been promising. When the attorney for the West Coast Hotel Company asked the
judge who had written the opinion of the Supreme Court of Washington sustaining that
states minimum wage law in Parrish how he could possibly have done so in view of
what the U.S. Supreme Court had said in Adkins , he replied, Well, lets let the
Supreme Court say it one more time. Now, in Tipaldo , the Court had one more time
stated unequivocally that minimum wage laws for women were invalid. So gloomy was
the outlook that, on the advice of Ben Cohen and Felix Frankfurter, the Consumers
League did not even file a brief in Parrish . We are both rather pessimistic regarding its
outcome, Cohen confided. Elsie Parrish had every reason to expect the worst. The
Tipaldo decision, though, engendered a powerful backlash, not least from some of the
members of the Supreme Court. In a strongly worded dissent, Chief Justice Charles
Evans Hughes upbraided the majority for failing to acknowledge either that the New
York law could be distinguished from the act of Congress struck down in Adkins or that
the state has the power to protect women from being exploited by overreaching
employers. Far more biting was the separate dissent filed by Justice Harlan Fiske
Stone on behalf of himself and Justices Louis Brandeis and Benjamin Cardozo. In one
of the most scathing criticisms of fellow jurists ever uttered from the bench, Stone
accused the majority of indulging its own personal economic predilections. He found
grim irony in speaking of the freedom of contract of those who, because of their
economic necessities, give their service for less than is needful to keep body and soul
together. In an impassioned warning to his brethren to exercise more selfrestraint,
Stone wrote: The Fourteenth Amendment has no more embedded in the Constitution
our preference for some particular set of economic beliefs than it has adopted, in the
name of liberty, the system of theology which we may happen to approve. Much of the
nation shared Stones sense of indignation about Tipaldo . People of the most diverse
political views were appalled by a ruling that seemed to deny government, state or
federal, any kind of authority over working conditions. New Dealers were irate, and a
Republican newspaper in upstate New York declared, The law that would jail any
laundryman for having an underfed horse should jail him for having an underfed girl
employee. Apart from business interests, only two groups applauded the decision. One
was the press in a scattering of cheap-labor towns undismayed by the fact that,
following the ruling, the wages of laundresses mostly impoverished blacks and Puerto
Rican and Italian immigrants were slashed in half. The other was a small faction of
advanced feminists centered in Alice Pauls National Womans Party. It is hair-raising to
consider how very close women in America came to being ruled inferior citizens, one of
them wrote Justice Sutherland. Most women activists, though, were horrified by that
view, which they believed reflected the dogmatism of upper-class ladies who had no
familiarity with the suffering of workers. They were as devoted as Alice Paul to equal
rights, and they must have shuddered at the paternalism implicit in earlier opinions
sustaining separate treatment for women on the grounds that they were wards of the
state. But they were sure that female employees required protection, and they knew that
insistence on the principle of equal rights meant no minimum wage law whatsoever,
since the Court, as constituted during FDRs first term, would never sanction social
legislation for men. Thus, the historian Mary Beard wrote Justice Stone, Alice Paul
plays into the hands of the rawest capitalists. Stone himself had no doubt of the
implications of Tipaldo . We finished the term of Court yesterday, he wrote his sister, I
think in many ways one of the most disastrous in its history. . . . Our latest exploit was a
holding by a divided vote that there was no power in a state to regulate minimum wages
for women. Since the Court last week said that this could not be done by the national
government, as the matter was local, and now it is said that it cannot be done by local
governments even though it is local, we seem to have tied Uncle Sam up in a hard
knot. Tipaldo , handed down on the final day of the term, climaxed an extraordinary
thirteen months in which the Court struck down more important socioeconomic
legislation than at any time in history, before or since. During that brief period, it turned
thumbs down on a number of New Deal laws and state reforms and cavalierly rebuked
the President and his appointees. Most of the rulings had come from a split court, with
the Four Horsemen, Pierce Butler, James McReynolds, George Sutherland, and Willis
Van Devanter, a quartet of adamantly conservative judges whose ideas had been
molded in the heyday of laissez-faire in the late nineteenth century, voting in the
negative. From the spring of 1935 on, they were often joined by the youngest member
of the bench, Owen Roberts. At the end of the term, a nationally syndicated columnist
wrote, After slaughtering practically every New Deal measure that has been dragged
before it, the Supreme Court now begins its summer breathing spell, ending a winters
performance which leaves the stage, as in the last act of a Shakespearean tragedy,
strewn with the gory dead. Despite the enormous setbacks the New Deal had
sustained, Roosevelt gave every indication through the fall of 1935 and most of 1936
that he was accepting his losses virtually without complaint. While Elsie Parrishs feeble
case was advancing toward its final reckoning in the U.S. Supreme Court, the President
gave not the slightest indication that he had any plans whatsoever to make the Justices
any less refractory, for it seemed altogether inadvisable in the 1936 presidential
campaign to hand his opponents, who were hard put to find an issue, an opportunity to
stand by the Constitution. On February 5, 1937, however, the President stunned the
country by sending a special message to Congress that constituted the boldest attempt
a chief executive has ever initiated to remold the judiciary. He recommended that when
a federal judge who had served at least ten years waited more than six months after his
seventieth birthday to resign or retire, the President could add a new judge to the
bench. Since this Court was the most aged in history its members were referred to as
the nine old menRoosevelt would be able to add as many as six new Supreme
Court Justices. Though FDRs scheme provoked fierce protests, political analysts
anticipated that it would be adopted. By winning in a landslide in 1936, Roosevelt had
carried so many members of his party into Congress that the Republicans were left with
only sixteen of the ninety-six seats in the Senate and fewer than one hundred of the
more than four hundred seats in the House. So
long as the Court continued to strike down New Deal reforms and such vital
legislation as the Social Security Act was still to be decided on it was highly unlikely
that enough Democrats would desert their immensely popular President to defeat the
measure. The very first evidence of the attitude of the Court would come with its
decision on Elsie Parrishs case, and there was every expectation that, acting not many
months after Tipaldo , the Court would render an adverse ruling that would improve
Roosevelts already excellent chances of restructuring the Court. On the very day the
Parrish decision was handed down, March 29, 1937, the president of the National
Womens Republican Club declared, I dont see how the Presidents bill can fail to get a
majority. March 29 came during the Easter holidays, always a gala season in
Washington, D. C. On that bright Monday morning, a host of cameratoting tourists and
children carrying Easter baskets crowded the steps of the recently opened Supreme
Court building and queued up in record numbers to enter the marble palace. The
unusually protracted time of 103 days had elapsed since Elsie Parrishs case had been
argued, and some twelve thousand visitors flocked to the building in the belief that this
would be journeys end for the suit that had begun nearly two years earlier. An hour
before the session was scheduled to start at noon, four thousand visitors had already
been admitted to the building, where many lined up two abreast from the courtroom
doorway almost to the suite of Justice Stone in the idle hope of getting a peek at the
activity. For some minutes it appeared that the spectators who had been fortunate
enough to get into the courtroom were also to be frustrated, for the proceedings began
with a recital of an opinion on another case by one of the Four Horsemen that left the
audience nearly numb with boredom. But no sooner had he finished than the Chief
Justice leaned forward in his chair, picked up some sheets of paper, and announced,
This case presents the question of the constitutional validity of the minimum wage law
of the State of Washington. It was to be Elsie Parrishs day after all, and the spectators
stirred in anticipation. Hughes, fully aware of the effect he was having and surely
conscious of his magnificent appearance (with his patrician manner, sparkling eyes, and
well-groomed beard, he was often likened to Jove), raised his voice to overcome the
bustle, then paused and peered out over the crowded chamber for a moment before
returning to his written opinion. Anxious minutes passed as Hughes labored through a
reprise of the facts in the case. When he finally took up one of the arguments of Elsie
Parrishs attorneys, he did so only to reject it disdainfully. It was obviously futile, he
said, for counsel to claim that the present case could be distinguished from Adkins on
the ground that Mrs. Parrish had worked for a hotel and that the business of an
innkeeper was affected with a public interest. As it happened, he noted, one of the
cases Adkins had disposed of had dealt with a hotel employee. If the state of
Washington law was to survive the day, it would need a better justification than this
rickety effort. The Court was going to have to meet Adkins head on. It took only a
moment more for Hughes to reveal that the Court was prepared to do just that. In
Tipaldo , the U.S. Supreme Court had felt bound by the ruling of the Court of Appeals of
New York that the New York minimum wage act could not be distinguished from the
statute in Adkins and hence was invalid; Parrish , the Chief Justice declared, presented
a quite different situation. Here the highest tribunal of the state of Washington had
refused to be guided by Adkins and had sanctioned the law in dispute. We are of the
opinion that this ruling of the state court demands on our part a reexamination of the
Adkins case, he continued. The importance of the question, in which many States
having similar laws are concerned, the close division by which the decision in the Adkins
case was reached, and the economic conditions which have supervened, and in the
light of which the reasonableness of the exercise of the protective power of the State
must be considered, make it not only appropriate, but we think imperative, that in
deciding the present case the subject should receive fresh consideration. To do so
properly, he observed, required careful examination of the doctrine of freedom of
contract that had bulked so large in Adkins . What is this freedom? Hughes inquired,
his voice rising. The Constitution does not speak of freedom of contract. Instead, the
Constitution mentioned liberty and forbade denial of liberty without due process of law.
The Constitution did not recognize absolute liberty, however. The liberty safeguarded is
liberty in a social organization, he declared. Liberty under the Constitution is thus
necessarily subject to the restraints of due process, and regulation which is reasonable
in relation to its subject and is adopted in the interests of the community is due
process. Hughess delivery of the opinion in a clear, resonant voice, noted one
correspondent, electrified and held spellbound the spectators who crowded every
corner of the majestic Supreme Court chamber. As the Chief Justice spoke, members
of the bar in the choice seats near the bench followed his every word as though
transfixed. The Court had long since established that the state had especial authority to
circumscribe the freedom of contract of women, the Chief Justice continued. In Muller v.
Oregon (1908), he pointed out, the Court had fully elaborated the reasons for accepting
a special sphere of state regulation of female labor. In that landmark case, the Court
had emphasized, in the words of Justice David Brewer, that because a woman performs
maternal functions her health becomes an object of public interest and care in order
to preserve the strength and vigor of the race. Hence, Brewer had gone on, a woman
was properly placed in a class by herself, and legislation designed for her protection
may be sustained even when like legislation is not necessary for men and could not be
sustained. The state could restrict her freedom of contract, the Court had determined in
Muller , not merely for her benefit, but also largely for the benefit of all. The precedents
established by Muller and several later rulings had led the dissenters in Adkins to
believe that the District of Columbia minimum wage law should have been sanctioned,
and with good reason, Hughes asserted. The dissenting Justices had challenged the
distinction the majority in Adkins had drawn between maximum hours legislation (valid)
and minimum wage statutes (invalid), and that challenge remained without any
satisfactory answer. The state of Washington law was essentially the same as the
Washington, D. C., act that had been struck down in Adkins , he acknowledged, but we
are unable to conclude that in its minimum wage requirement the State has passed
beyond the boundary of its broad protective power. In that sentence, however
convoluted, Hughes had in effect said what for some minutes it had been clear he was
going to say: the Supreme Court was sustaining Washingtons minimum wage law.
Against all odds, Elsie Parrish had won. Lest anyone miss the implication of the Courts
reasoning, the Chief Justice spelled it out: The Adkins case was a departure from the
true application of the principles governing the regulation by the State of the employer
and employed. In short, Adkins , written by Sutherland and carrying the votes of several
of Hughess other brethren, was being put to death in its fifteenth year. One could not
possibly reconcile Adkins , Hughes maintained, with wellconsidered rulings such as
Muller . What can be closer to the public interest thah the health of women and their
protection from unscrupulous and overreaching employers? he asked. And if the
protection of women is a legitimate end of the exercise of state power, how can it be
said that the requirement of the payment of a minimum wage fairly fixed in order to meet
the very necessities of existence is not an admissible means to that end? With an
eloquence, even passion, few thought him capable of, the Chief Justice added: The
legislature of the State was clearly entitled to consider the situation of women in
employment, the fact that they are in the class receiving the least pay, that their
bargaining power is relatively weak, and that they are the ready victims of those who
would take advantage of their necessitous circumstances. The Legislature was entitled
to adopt measures to reduce the evils of the sweating system, the exploiting of
workers at wages so low as to be insufficient to meet the bare cost of living, thus
making their very helplessness the occasion of a most injurious competition. Since
many states had adopted laws of this character to remedy the evil of sweatshops, the
enactment of such legislation by the state of Washington could not be viewed as
arbitrary or capricious, and that is all we have to decide, Hughes said. Even if the
wisdom of the policy be regarded as debatable and its effects uncertain, still the
legislature is entitled to its judgment. Delighted at what they were hearing, the New
Deal lawyers in the chamber smiled broadly and nudged one another. In his closing
remarks, the Chief Justice advanced an additional and compelling reason for
sustaining the statute. The exploitation of relatively defenceless employees not only
injured those women, he asserted, but directly burdened the community, because what
these workers lose in wages the taxpayers are called upon to pay. With respect to that
reality, he said, the Court took judicial notice of the unparalleled demands the Great
Depression had made upon localities. (That comment revealed how far he was reaching
out, for the state of Washington had submitted no factual brief about any added
responsibilities, and the statute in question had been enacted long before the Wall
Street crash.) Hughes did not doubt that the state of Washington had undergone these
tribulations, even if it had not troubled to say so. That deduction led him to declare,
again with unexpected acerbity: The community is not bound to provide what is in
effect a subsidy for unconscionable employers. The community may direct its lawmaking power to correct the abuse which springs from their selfish disregard of the
public interest. Consequently, the Chief Justice concluded, The case of Adkins v.
Childrens Hospital . . . should be, and it is, overruled, and the judgment of the
Supreme Court of Washington on behalf of Elsie Parrish is affirmed. Some two years
after she had changed sheets in the Cascadian Hotel for the last time, the Wenatchee
chambermaid was to receive her $216.19 in back pay. It would require some time for
Court-watchers to grasp the full implications of Hughess opinion in Parrish to write of
the Constitutional Revolution of 1937but George Sutherlands dissent revealed that
the Four Horsemen understood at that very moment that their long reign, going all the
way back to Adkins and even before, with only slight interruption, had abruptly ended.
When he had spoken the final words, the Chief Justice nodded to Justice Sutherland
seated to his left. The author of Adkins surveyed the chamber silently, almost diffidently,
then picked up the sheaf of papers in front of him and began to read. Sensing his day
had passed, Sutherland who, with his pince-nez, high collar, goatee, and hair parted
in the middle, seemed never to have left the nineteenth century appeared barely able
to bring himself to carry out his futile assignment. He started off speaking in a curiously
toneless murmur, and even those near the dais had trouble at first catching his words.
On the rear of the room, all was lost. As a consequence, not a few missed altogether
Sutherlands first sentence, and even those who did hear it needed a moment to take in
its full import. Mr. Justice Van Devanter, Mr. Justice McReynolds, Mr. Justice Butler and
I think the judgment of the court below should be reversed, Sutherland began. A
commonplace utterance. Yet that sentence signaled a historic shift in the disposition of
the Supreme Court. Once again, the Justices had divided 5 4, but this time, Owen
Roberts had abandoned the Conservative Four to compose a new majority that on this
day, and in the days and months and years to come, would legitimate the kind of social
legislation that in FDRs first term had been declared beyond the bounds of
governmental authority. The loss of Roberts did not go down easily. In the course of the
afternoon, noted one captious commentary, the Four Horsemen of Reaction whom he
had deserted looked glum and sour. After no more than a cursory paragraph
maintaining that all the contentions that had just been advanced in Parrish had been
adequately disposed of in Adkins and Tipaldo , Sutherland delivered a dissent that for
several minutes constituted less a reply to Hughes and the majority in Parrish than to
Justice Stones 1936 calls for judicial restraint in cases such as Tipaldo . Undeniably, a
Justice was obliged to consider the contrary views of his associates, Sutherland
acknowledged, but in the end, the question which he must answer is not whether such
views seem sound to those who entertain them, but whether they convince him that the
statute is constitutional or engender in his mind a rational doubt upon that issue. He
added: The oath which he takes as a judge is not a composite oath, but an individual
one. And in passing upon the validity of a statute, he discharges a duty imposed upon
him , which cannot be consummated justly by an automatic acceptance of the views of
others which have neither convinced, nor created a reasonable doubt in, his mind. If
upon a question so important he thus surrender his deliberate judgment, he stands
forsworn. He cannot subordinate his convictions to that extent and keep faith with his
oath or retain his judicial and moral independence. Though Sutherland had been
directing most of his barbs at Stone (Hughess opinion had been all but forgotten), these
last words may well have had a different target. His remarks, one writer conjectured,
must have been intended as a rebuke to Owen Roberts. Perhaps so, for the minority
opinion did appear to be irritating Roberts. The San Antonio Congressman Maury
Maverick, who was sponsoring the Court-packing bill in the House of Representatives,
reported: A murmur, something of a titter, went up in the courtroom among the lawyers.
Justice Roberts flushed and looked with evident displeasure in the direction of
Sutherland. He looked his usual part the big football hero, angry at the other side, and
as though he should like to start a freefor-all. He pulled out his handkerchief and wiped
his face and showed evident marks of disapprobation. Sutherland, for his part, had hit
full stride. After sipping some water he seemed to gain strength, and his voice
resounded throughout the chamber. Indeed, the Washington Post characterized the
reading by the usually mild-mannered Sutherland as nothing less than impassioned.
The elderly judge, described in another account as pale, grim-lipped, even went so far
as to rap his knuckles on the bench as he took issue with the President, though never
by name; with Roberts, no longer his ally; and even more vigorously, again without
mentioning him directly, with Stone. (A flicker of a smile came over Justice Stones
face, Maverick noted.) In rebuttal to the Chief Justices assertion that the case before
the Court required a fresh examination, in part because of the economic conditions
which have supervened, Sutherland stated bluntly, The meaning of the Constitution
does not change with the ebb and flow of economic events. When, having read nearly
five pages of his opinion, Sutherland finally turned to the case before the Court, he said
little more than that West Coast Hotel replicated the situation in Adkins . In every
important regard, the two statutes involved had identical vices, Sutherland maintained,
and if the Adkins case was properly decided, as we who join in this opinion think it was,
it necessarily follows that the Washington statute is invalid. It was beyond dispute, he
asserted, that the due process clause embraced freedom of contract, and Sutherland
remained convinced, too, that women stood on an equal plane with men and that
legislation denying them the right to contract for work was discriminatory. Certainly a
suggestion that the bargaining ability of the average woman is not equal to that of the
average man would lack substance, he declared. The ability to make a fair bargain, as
everyone knows, does not depend upon sex. If anyone thought that those last
sentences had a hint of jocularity, they quite misperceived Sutherlands mood. The
Parrish decision blew taps for the nineteenth-century world, and Sutherland, born in
England in 1862 and reared on the Utah frontier, knew it. Having had his say, he
understood that there was no point in going on any longer. Wearily, he concluded, A
more complete discussion may be found in the Adkins and Tipaldo cases cited supra .
Then he carefully laid his opinion on the dais and, stern-visaged, settled back in his
chair. When news of the momentous decision, relayed swiftly to every part of the nation
over press association wires, reached Sutherlands supporters, they shared his sense of
dismay. Conservatives were outraged. If FDR wanted a political court, said a disgruntled
Senator, he had one now, for the decision was blatantly political, a transparent effort to
kill the Court-packing bill by demonstrating that the judges would no longer misbehave.
Ardent feminists were no less incensed. One of them wrote Sutherland: May I say that
the minority opinion handed down in the Washington minimum wage case is, to me,
what the rainbow was to Mr. Wordsworth? . . . You did my sex the honor of regarding
women as persons and citizens. Most reformers, though, women as well as men,
hailed the Parrish ruling as a triumph for social justice and a vindication for FDR, who
had been accorded an altogether unexpected victory in the least probable quarter. One
outspoken progressive, the columnist Heywood Broun, commented: Mr. Roosevelt has
been effective not only in forcing a major switch in judicial policy, but he has even
imposed something of his style upon the majority voice of the court. There are whole
sections in the document written and read by Chief Justice Hughes which sound as if
they might have been snatched bodily from a fireside chat. Partisans of the President
jeered at the Court for its abrupt reversal of views on the validity of minimum wage
legislation. Because of the change of a judicial mind, observed Attorney General
Homer Cummings sardonically, the Constitution on Monday, March 29, 1937, does not
mean the same thing that it meant on Monday, June 1, 1936. The head of one of the
railway brotherhoods carried that thought a step further in noting, On Easter Sunday,
state minimum wage laws were unconstitutional, but about noon on Easter Monday,
these laws were constitutional. It was the Greatest Constitutional Somersault in
History, Maverick concluded. For Owen Roberts, one single human being, had
amended the Constitution of the United States by nodding his head instead of shaking
it. The lives of millions were changed by this nod. That development perturbed some
longtime critics of the CourtWhat kind of respect do you think one can instill in law
students for the process of the Court when things like this can happen? Felix
Frankfurter asked but gave others no little satisfaction. A former United States
Senator from West Virginia wrote: Suppose you have noticed that the untouchables, the
infallible, sacrosanct Supreme Court judges have been forced to put upon the record
that they are just a bundle of flesh and blood, and must walk upon the ground like the
rest of human beings. I got quite a kick out of reading that the Supreme Court said,
right out loud in meeting, that it had been wrong. Like most of the wrongs done in life,
there is no compensation for the great wrongs which that old court has been doing the
country; but like all democrats, I am forgiving. The performance of the Court proved
especially embarrassing for the Chief Justice. Commentators, observing that Hughes
had once said of a nineteenth-century decision that the over-ruling in such a short time
by one vote, of the previous decision, shook popular respect for the Court, pointed out
that Now, within a period of only ten months, the Supreme Court has reversed itself on
minimum wages, again by one vote. To be sure, Hughes did not admit that the Court
had shifted, and years later Roberts claimed that he had voted with the Four Horsemen
in Tipaldo only because New York had not presented the issue in the right manner.
Furthermore, we now know that Roberts in Parrish was not responding to the Courtpacking threat since he cast his vote before the plan was announced. Nonetheless,
scholars, despite their access to information not generally available in 1937, find
Robertss contention that he did not switch unpersuasive. At the time, no one doubted
that the Court, and more particularly Mr. Justice Roberts, had crossed over. Isnt
everything today exciting? wrote one of the women who led the National Consumers
League. Just to think that silly Roberts should have the power to play politics and
decide the fate of Minimum Wage legislation. But, thank God he thought it was politically
expedient to be with us. In a more whimsical vein, The New Yorker remarked: We are
told that the Supreme Courts about-face was not due to outside clamor. It seems that
the new building has a soundproof room, to which justices may retire to change their
minds. Yet notwithstanding the ridicule directed at the Court, Hughes read the opinion
in Elsie Parrishs case with an unmistakable note of exultation in his voice, for by being
able to show that he had won Roberts to his side in Parrish , he had gone a long way
toward defeating the Court-packing scheme. Once Roosevelt had a 5-4 majority for
social legislation, there no longer appeared to be an urgent need for so drastic a
remedy. Not for nearly four months would FDRs proposal be finally rejected, and it
would retain substantial backing almost to the very end, but never was it as formidable a
proposition as it had been on the eve of the ruling on Elsie Parrishs suit. Within days
after the decision was handed down, Washington insiders were regaling one another
with a saucy sentence that encapsulated the new legislative situation: A switch in time
saved nine. The Courts shift in Parrish proved to be the first of many. On the very day
the case was decided, White Monday, the Court also upheld a revised farm mortgage
law (the original one had been struck down on Black Monday in 1935) as well as other
reform statutes. Two weeks later, once more by 5 4 with Roberts in the majority, it
validated the Wagner Act (the National Labor Relations Act) and in the following month it
turned aside challenges to the Social Security Act. Indeed, never again did the Supreme
Court strike down a New Deal law, and from 1937 to the present, it has not overturned a
single piece of significant national or state socioeconomic legislation. Many
commentators believe that the Court has forever abandoned its power of judicial review
in this field. Hence, they speak of the Constitutional Revolution of 1937. Battle-scarred
veterans of the minimum wage movement found themselves in a universe remade. The
seventeen states with minimum wage statutes on their books now took steps to enforce
them, and New York made plans to enact new legislation to replace the law struck down
in Tipaldo . Even more consequential were the implications of Parrish for the national
government. Late in 1936, President Roosevelt had told newspapermen of an
experience on the streets of New Bedford when his campaign car was mobbed by
enthusiastic well-wishers, twenty thousand of them crowded into a space intended to
hold a thousand: There was a girl six or seven feet away who was trying to pass an
envelope to me and she was just too far away to reach. One of the policemen threw her
back into the crowd and I said to my driver, Get the note from that girl. He got it and
handed it to me and the note said this: Dear Mr. President: I wish you would do
something to help us girls. You are the only recourse we have got left. We have been
working in a sewing factory . . . and up to a few months ago we were getting our
minimum pay of $11 a week. . . . Today the 200 of us girls have been cut down to $4
and $5 and $6 a week. You are the only man that can do anything about it. Please send
somebody from Washington up here to restore our minimum wages because we cannot
live on $4 or $5 or $6 a week. That is something that so many of us found in the
Campaign, that these people think that I have the power to restore things like minimum
wages and maximum hours and the elimination of child labor. . . . And, of course, I
havent any power to do it. Now, thanks to the Constitutional Revolution that the
Wenatchee chambermaid had detonated, Congress was able to give Roosevelt that
power, and when the Fair Labor Standards Act of 1938, which set minimum wages and
maximum hours for both men and women, was challenged in the courts, a reconstituted
Supreme Court found no difficulty in validating it. Long before then, Elsie Parrish had
faded into the anonymity from which she had risen. She had remained in the public eye
only long enough to comment on the Courts decision in 1937. News of it had reached
her in Olympia, Washington, where she was now employed ironically enough, in the
light of Joe Tipaldos trade in a laundry. I am happier over what it will mean to the
working women of the state than over the money I will receive, she said. There have
been thousands of girls and women working for whatever they could get in this state,
and now they will get a break. When more than thirty-five years later Adela Rogers St.
Johns, a reporter who had won renown as the sob sister of the Hearst press, tracked
her down in Anaheim, California, Mrs. Parrish expressed surprise that anyone would
pay attention to her. Surrounded by grandchildren, looking much younger than her
years, dressed in something pink and freshwashed and ironed, she said that she had
gotten little notice at the time and none of the women running around yelling about Lib
and such have paid any since. But she was quietly confident, she indicated to the
author of Some Are Born Great , that she had accomplished something of historic
significance less for herself than for the thousands of women scrubbing floors in
hotels, toiling at laundry vats, and tending machines in factories who needed to know,
however belatedly, that they could summon the law to their side.
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