[The material below was originally posted at the Balkinization blog, for the Balkinization symposium on Robert Post, The Taft Court: Making Law for a Divided Nation, 1921–1930 (Cambridge University Press, 2024).]
In this symposium, my designated task was to review and discuss Part V of Robert Post, The Taft Court: Making Law for a Divided Nation, 1921–1930 (Cambridge University Press, 2024) This Part delves into social and economic legislation during the Taft Court era. This section is notably well-crafted, showcasing Professor Post's erudition and extensive research, and is a significant contribution to the relevant literature. However, I do not entirely agree with Post's interpretation of the cases he discusses.
Post's narrative heavily leans on the overarching theme that the Supreme Court in the 1920s participated in a society-wide desire for a "return to normalcy." This shift followed the substantial and unprecedented government intervention in civic and economic life accompanying the United States' entry into World War I. The experience with an expansive government during the war heightened American skepticism towards statist progressive ideas that had become dominant before the conflict.
Additionally, many Americans were repelled by the wholehearted support that numerous progressives had shown for the new federal wartime Leviathan and their desire to make it a permanent fixture. Post cites a letter from William Allen White as an illustration of the "innocent confidence of progressives."
I think the big thing to do now is quietly organize a hundred or so fellows who are dependable and who may take such steps as are necessary after the war to serve all the economic and social campaigns that the war brings to us. I think price fixing should be permanent, but not done by Wall Street. I think the government should tighten its control either into ownership or operation of the railroads. I think that labor arbitration should be a permanent thing, and that we should federalize education through universal training, making it a part of the system of education.
To many Americans in the post-war era, this attitude would not have appeared "innocent." Instead, it likely appeared as if enthusiastic supporters of a federal government exerting control over the economy, including regulating wages and prices nationwide, had revealed progressives' true intentions. Contrary to their pre-war claims of seeking significant reform within the existing system, it seemed they actually sought radical, even revolutionary, changes to the American economy and government system.
In the portion of the book I was tasked with reviewing and commenting on, Post overlooks the additional influence of events in Europe on this dynamic. The fact that European nations had become entangled in a brutal war without a clear purpose seemed to affirm America's superiority to Europe. Both in the past and today, many progressives looked to Europe as a model for their more interventionist and nationalist government policies. The emergence of the USSR, Communist revolutions in Germany and Hungary, and the sympathy expressed for Communism and anarchism in the US, especially among immigrants, heightened the apprehension of foreign ideas, including progressive concepts associated with Continental thinkers.
The theme of a "return to normalcy" provides a crucial perspective on the Taft Court era, especially considering President Harding's successful 1920 campaign on that very platform. Harding's victory reflected widespread dissatisfaction with the war and its impact on what we now call civil and economic liberties. Notably, it was Harding who appointed the Justices who steered the court in a more libertarian direction during the 1920s.
The inclination toward a "return to normalcy," seeking a shift back to pre-War levels of government regulation, is a key factor in understanding the overall approach of the pre-Depression Taft Court. This desire is particularly evident in the Court's skepticism toward novel or contentious applications of government regulatory power.
The apprehension of government overreach, intensified by the government's actions during the war, contributed to the Court's effort to systematize its jurisprudence on the liberty of contract. Previously perceived as somewhat arbitrary and inconsistent, the Court aimed to provide clarity. In the case of Adkins v. Children's Hospital (1923), Justice George Sutherland outlined acceptable infringements on liberty of contract beyond traditional police power concerns. These included regulations related to rates and charges for businesses with a public interest, contracts for public work, payment of wages, and hours of labor for health and safety reasons. Sutherland emphasized that, aside from these exceptions, "freedom of contract is the general rule, and restraint the exception," justifiable only in exceptional circumstances.
Looking more broadly, instances of perceived government overreach during World War I shed light on why the Supreme Court was willing to resurrect and broaden doctrines limiting government power that appeared to have been overshadowed by the progressive movement. Traditionalist conservative Justices advocating natural rights notions had no representation on the Taft Court after 1911. Law review commentary in the 1920s that advocated limits on government authority was philosophically incoherence.
As extensively detailed by Barry Cushman, the Taft Court Justices typically labeled as "conservative" a held a spectrum of generally moderate but progressive political views before joining the Court. Barry Cushman, The Secret Lives of the Four Horsemen, 83 Va. L. Rev. 559, 559-60 (1997); see also Logan E. Sawyer III, Creating Hammer v. Dagenhart, 21 Wm. & Mary Bill Rts. J. 67, 88 (2012). Despite this, and likely in part in response to the significant expansion of government authority during the war, these Justices aimed to uphold traditional limitations on government power while largely accommodating the growth of progressive regulation. Conversely, their counterparts, including Justice Louis Brandeis, were more radical Progressives reluctant to concede that the Constitution imposed significant and judicially enforceable constraints on the scope of government authority.
This analysis is at least consistent with Post's return to normalcy theme. His framework, however, is less useful in explaining the outcome of specific cases. As Post acknowledges, the Court continued to uphold some rather novel and intrusive exercises of the police power, while invalidating other exercises of government regulatory authority, some of which seemed rather anodyne.
Post's analysis improves significantly upon the once-robust literature that sought to explain the Court's rulings by reference to the Justices' alleged, but never documented, devotion to Social Darwinism.
Nevertheless, Post still clings to some mythology inherited from Progressive-era critics of Lochner. Quoting an article by Felix Frankfurter from 1916, and also citing Ernst Freund, Post states that Progressives had repudiated Lochner v. New York (1905) because "[t]he majority opinion was based upon 'a common understanding' as to the effect of work in bakeshops upon … those engaged in it. 'Common understanding' has ceased to be the reliance in matters calling for essentially scientific determination." Post believes that the Court's return to normalcy included a return to this "common understanding" vision of what constitutes appropriate regulatory action, and what is an undue and thus unconstitutional interference with normal ordinary economic activity.
The problem is that this is an incorrect, or at least incomplete, understanding of Lochner. Justice Peckham's opinion in Lochner indeed suggested that the Court should uphold the hours legislation at issue in that case if to the "common understanding" baking was an unhealthful occupation in need of special regulation. But the Court also would have upheld the law if scientific evidence before the Court had suggested that regulating bakers' hours served a legitimate health purpose.
The problem, however, was that the only party that provided any evidence about the health of bakery workers was Lochner, and that evidence showed that baking was not unhealthful relative to other common professions. Peckham alluded to this evidence without directly citing to it when he wrote, "In looking through statistics regarding all trades and occupations, it may be true that the trade of a baker does not appear to be as healthy as some other trades, and is also vastly more healthy than still others."
In one of the more remarkable interpretive miscues in Supreme Court history, critics nevertheless almost immediately accused Peckham of engaging in formalism and ignoring what they saw as the obvious fact that baking was unhealthful. See, e.g., Roscoe Pound, Common Law and Legislation, 21 Harv. L. Rev. 383 (1908). For generations, historians and law professors even accused Peckham of making up the statistics he alluded to. If they had bothered to look at the briefs in the case, they would have seen exactly where he got them.
Conversely, Justice Harlan's dissent is often presented as an example of how a judicious judge, even one supporting liberty of contract in principle, should have assessed the facts. Harlan cited several studies indicating the unhealthfulness of baking. The problem, however, is that none of these studies were part of the record, lower court opinions, or briefs. Harlan's references did not even come from his own research, but from a pamphlet published by the bakers' union.
Considering how the Supreme Court functioned, it's uncertain whether Peckham reviewed Harlan's dissent before delivering his opinion. Notably, Peckham did not make any direct reference to the dissent in his own opinion. On a related note, historian Nicholas Mosvick has compellingly argued that Justice McKenna, who frequently cast the deciding vote in labor regulation cases, paid particular attention to whether there was empirical evidence backing a specific labor law. Nicholas Mosvick, Rehabilitating Lochner: A Study in the limitations of a Constitutional Revolution, 18 Tex. Rev. L. & Pol. 151, 162-64 (2013). Peckham's reference to scientific evidence played a crucial role in inspiring Louis Brandeis to submit his famous brief on the detrimental effects of long hours on women's health in Muller v. Oregon (1908).
Returning to Lochner, aside from Justices Peckham and Brewer, the relevant Justices typically showed significant deference to purported health regulations, including maximum hours laws. Besides the scientific evidence presented by Lochner, two additional factors likely influenced the Lochner majority. First, although the state asserted that the law in question was a health law, it was placed in the state labor code, not the health code, and a union representative was part of the panel responsible for enforcing the law. Second, the hours law in question was notably strict, lacking provisions for overtime, and violations carried criminal penalties instead of civil ones. For example, a baker offering triple pay to employees for an extra hour of work to complete an important holiday order could face imprisonment. These factors, combined with the studies presented by Lochner, probably persuaded the swing Justices to align with the majority. In short, it's incorrect to suggest that Lochner ignored facts and evidence about the underlying law in favor of a singular reliance on common knowledge.
With that said, let's delve into Post's discussion of two major liberty-of-contract cases: Jay Burns Baking v. Bryan (1924) and Adkins v. Children's Hospital (1923). While Post discusses additional police power cases, including in a chapter on "businesses affected with a public interest," I will concentrate on these two cases for brevity's sake.
Jay Burns Baking involved a Nebraska law aimed to prevent consumer fraud by mandating loaves be baked in half-pound increments, with a strict one-ounce tolerance for over- or under-weight bread. Initially, I suspected that this law had special-interest origins. I speculated that modern factory bakeries favored these laws, finding compliance easier, while mom-and-pop bakeries opposed them. Despite my suspicion, after investigating with a research assistant through a search of baking industry journals, we found no supporting evidence. Our conclusion was that bakers' support or opposition to such laws had no clear correlation to any discernible factor.
According to Post, the Court, in rendering its decision, was aware that since the war, bakers had easily adhered to tolerances even stricter than those imposed by Nebraska. This information was detailed in Brandeis's extensive dissent discussing wartime regulations. Nevertheless, a 7-2 majority invalidated the law, deeming it an undue interference with occupational liberty, partly because compliance was seen as burdensome. Post suggests that the Court overlooked existing evidence because the majority deemed it unreasonable for the state, based on common knowledge, to interfere in this manner.
I disagree with Post that the majority should have considered Brandeis's analysis definitive. As Post acknowledges, Nebraska presented only a "perfunctory" defense of its law. Brandeis's analysis of wartime regulations was based on information almost entirely outside the record. As with Harlan's dissent in Lochner, it's far from clear that the Supreme Court should consider evidence that is not in the record. Among other things, Justices going off on their own evidentiary expeditions without an opportunity for the parties to weigh in has obvious potential for abuse.
Post concludes that the controversy over whether unwrapped bread could meet the law's weight requirement wasn't central to the legal dispute. In my understanding, the evidence from the parties suggested two ways for bakers to comply: wrapping loaves in wax paper or using lower-quality flour and leaving the bread unwrapped. Contrary to Post's treatment of this issue as inconsequential, wrapping bread negatively affects the crust texture. Essentially, Nebraska gave bakers the choice of baking lower-quality bread or selling only wrapped loaves. Brandeis's dissent doesn't counter this point.
Justice Butler's majority opinion highlighted the strong demand for unwrapped bread and affirmed bakers' right to provide it. This reasoning alone justified invalidating the law. Butler also argued that the one-ounce tolerance the law provided, intended to prevent deceptive practices, was too strict. He suggested it was unreasonable to assume consumers would mistake a significantly smaller loaf for a one-pound loaf. Brandeis did not present contrary evidence.
Professor Barry Cushman has previously disputed Post's interpretation of Jay Burns Baking, which Post expressed in an earlier law review article. Barry Cushman, Some Varieties and Vicissitudes of Lochnerism, 85 B.U. L. Rev. 881 (2005). Post acknowledges Cushman's argument, but rejects it. Most pertinent, Cushman points out that Justice Butler himself wrote a later unanimous opinion upholding a bread-weight law that provided for greater (3 ounce) tolerances. This shows, Cushman argues, that the Jay Burns Baking decision was based on the specific flaws the Justices saw in Nebraska's law, not some inchoate yearning for normalcy or reliance on common knowledge.
I side with Cushman, and would add one more point. Jay Burns Baking was a 7-2 ruling, with only Brandeis and Holmes dissenting. Brandeis and Holmes, of course, thought that the police power in the economic realm was virtually unlimited. So despite Brandeis's extensive dissent, it's more likely the dissenters, rather than the majority, who were relying on strong ideological presuppositions, in this case favoring judicial deference to regulation, rather than focusing on the facts of the case.
Adkins v. Children's Hospital, meanwhile, was a much closer 5-3 ruling, with Justice Brandeis recused (and who surely would have been a fourth vote to uphold the law). In Adkins, Justice George Sutherland wrote the opinion invalidating a DC minimum wage law that applied to only to women as a violation of the right to liberty of contract.
Post adopts the traditional progressive perspective on women-only minimum wage laws. He emphasizes the rationale that women, being in a weaker bargaining position than men, required protection from receiving inadequate wages. However, this view overlooks the complex political and economic dynamics surrounding such laws.
While some advocates of women-only minimum wage laws aimed to improve employment standards for women, others had less noble intentions. Supporters included male-only trade unions seeking to limit competition from women, opponents of immigration who believed married immigrant women were being forced to work by their husbands, paternalists focused on preserving women's health (especially reproductive health), moralists concerned about the potential moral risks of low-wage, long-hour jobs leading women into immorality and prostitution, "family wage" advocates hoping to shield men from what they considered as "destructive" competition from women workers, "maternalists" aiming to promote and preserve women's maternal roles in the family, and eugenicists who believed that working women weakened the race.
Post overlooks the less savory motivations for sex-specific minimum wage laws. He also only briefly discusses feminist opposition to these laws, notably by Alice Paul of the National Women's Party, in a few endnotes. This context, however, significantly influenced Adkins's outcome. Many women's rights advocates, including Alice Paul, opposed gender-specific minimum wage laws but supported laws applicable to all workers.
Justice Sutherland, was not a strict opponent of government regulation, see, e.g., Euclid v. Ambler Realty (1926), but in his pre-Court career, he had been a political ally of Alice Paul and a strong advocate for women's rights. He led the push for the Nineteenth Amendment in the Senate and helped draft the proposed Equal Rights Amendment. Paul resisted attempts to secure additional support for the amendment by adding a provision exempting sex-specific protective labor laws.
These facts help account not just for Sutherland's joining (and writing) the majority in Adkins, but also for his rejecting minimum wage supporters' claim that women workers needed special minimum wage laws because they were vulnerable to exploitation by employers in ways men were not--that, unlike men, women were unable to enter a fair bargain for wages. Sutherland proclaimed,
But the ancient inequality of the sexes, otherwise than physical, as suggested in the Muller Case has continued 'with diminishing intensity.' In view of the great--not to say revolutionary--changes which have taken place since that utterance, in the contractual, political, and civil status of women, culminating in the Nineteenth Amendment, it is not unreasonable to say that these differences have now come almost, if not quite, to the vanishing point. In this aspect of the matter, while the physical differences must be recognized in appropriate cases, and legislation fixing hours or conditions of work may properly take them into account, we cannot accept the doctrine that women of mature age, sui juris, require or may be subjected to restrictions upon their liberty of contract which could not lawfully be imposed in the case of men under similar circumstances. To do so would be to ignore all the implications to be drawn from the present day trend of legislation, as well as that of common thought and usage, by which woman is accorded emancipation from the old doctrine that she must be given special protection or be subjected to special restraint in her contractual and civil relationships.
One can certainly dispute, as the dissenters did—Holmes: "it will take more than the Nineteenth Amendment to convince me that there are no differences between men and women, or that legislation cannot take those differences into account"—whether women's attainment of civic equality meant that they should no longer be treated as presumptively necessitous in the economic marketplace. Nevertheless, I believe that any discussion of Sutherland's opinion in Adkins should emphasize his feminist background. See David E. Bernstein, Revisiting Justice George Sutherland, the Nineteenth Amendment, and Equal Rights for Women, 20 G'town J. L. Pub. Pol'y 143 (2022).
Beyond that, Sutherland was troubled by two aspects of the law. First, the law put the burden of supporting a worker on the employer rather than on the public, even if the employee was not worth the mandated wage. This is not a very strong argument, especially because the law did not require employers to retain any employees whose work was not worth the relevant wage.
Post emphasizes this part of Sutherland's opinion, suggesting that the redistributive aspect of Adkins was the key to the Court's hostility to the law. He associates this hostility with the Court's purported opposition to class legislation—opposition that I believe has been grossly exaggerated, at least with regard to liberty-of-contract cases brought under the Due Process clauses. See David E. Bernstein, Class Legislation, Fundamental Rights, and the Origin of Lochner and Liberty of Contract, 26 Geo. Mason L. Rev. 1024 (2019).
I suspect, meanwhile, that a second aspect of the law was the key factor in, if not Sutherland's opinion, at least his ability to get a five-vote majority, and in particular, to get Justice McKenna's swing vote. As previously noted, Post sees the law's basic purpose as ensuring that women workers earned enough to live on. Yet, the wages set by DC's minimum wage law varied dramatically among enumerated job categories:
These orders fix the sum to be paid to a woman employed in a place where food is served or in a mercantile establishment, at $16.50 per week; in a printing establishment, at $15.50 per week; and in a laundry, at $15 per week, with a provision reducing this to $9 in the case of a beginner. If a woman employed to serve food requires a minimum of $16.50 per week.
The government could not explain why women's cost of living varied depending on which industry they worked in. As Sutherland wrote, "it is hard to understand how the same woman working in a printing establishment or in a laundry is to get on with an income lessened by from $1 to $7.50 per week." While Post gives short shrift to this argument, it does, in fact, undermine the government's claim that the basis for the law was to ensure that women earn a living wage. Rather, it seems more likely that the law as implemented tried to ensure that women could not undercut, or compete, with male workers, to whom the law did not apply. It's unlikely coincidental that the lowest wage set was for laundry workers, a field dominated by women.
Another objection raised by Sutherland to the law was that the power of the government to create a minimum wage also implies the power to create a maximum wage. Generations of historians have been dismissive of this objection, suggesting that it was a dystopian fantasy on his part. These historians ignore that the US government ultimately did later fix wages several times, beginning with the National Industrial Recovery Act. In at least two instances, during World War II and via President Nixon's wage controls, such wage-fixing reduced workers' wages below market level.
Before I conclude, I should mention one significant quibble I have with Post's editorial choices. There is a great deal of interesting side discussions in the endnotes. My own preference is for endnotes to be primarily just endnotes, with little to no additional text. If material is important enough to be included, it's important enough to be in the main body of the book, not hidden in endnotes. And in this case, it would be a particular shame if readers neglected the notes, as they are rich with important details. At the least, I wish the editors of the Holmes Devise had chosen to use footnotes instead of endnotes, so one would not have to constantly consult materials many pages away from the text to get the full story.
To sum up, I agree with Post that a backlash against perceived out-of-control government during World War I was a significant factor in the Supreme Court's own backlash against what had seemed, by 1917, to be a retreat from any meaningful review of most purported police power regulations. I disagree, however, with the implication that the Taft Court Justices who were in the majority in cases like Jay Burns Baking and Adkins were inclined to ignore the government's case for the laws in question in favor of a Lochner-like reliance on common knowledge amounting, perhaps, to unexamined prejudices. As I have noted, the Lochner opinion itself paid due attention to relevant empirical evidence. And I think a fair reading of Jay Burns Baking, Adkins, and other cases suggests that the Court was sensitive to the specific relevant context, language, and practical effects of each law.
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