Supreme Court Activism in Economic Policy in the Waning Days of the New Deal: Interpreting the Fair Labor Standards Act, 1941–1946

Abstract

Supreme Court Activism in Economic Policy in the Waning Days of the New Deal: Interpreting the Fair Labor Standards Act, 1941-1946 JEROLD WALTMAN* Students ofthe Supreme Court universally agree that it made a dramatic shift in 1937. First, in West Coast Hotel Company v. Parrish,1 it retreated from the unbridled use of the Fourteenth Amendment’s Due Process Clause to invalidate state economic regulatory legislation. Then, in National Labor Relations Board v. Jones and Laughlin Steel Corporation? the Justices widened the reach of congressional power under the Commerce Clause. This looser reading of the Commerce Clause was solidified in 1941 with UnitedStates v. Darby Lumber Company* and Wickard v. Filburn.4 So decisive were these cases in dividing what went before from what came afterward that Bernard Schwartz has said, “The 1937 reversal marked the accession of what may be considered the second Hughes Court—so different was itsjurisprudence from that ofthe Hughes Court that had preceded it.”5 Whereas the definingjurisprudence ofthe former had been close supervision ofeconomic policy, the latter refused to second guess the economic wisdom ofcongressional (and state) regulatory initiatives. Alpheus T. Mason summarized Justice Harlan Fisk Stone’s approach, which was indicative ofthe entire Court ofthis era, as one that would not say that “no economic legislation would ever violate constitutional restraints, [but that]... in this area the court’s role would be strictly confined.”6 Confirming this approach, between 1937 and 1957 the Supreme Court struck down only four federal statutes as unconstitutional, none of which were economic in nature.7 INTERPRETING THE FAIR LABOR STANDARDS ACT 59 However, we must not take this retreat on the constitutional front as signaling a com­ plete judicial abdication from involvement in economic policy. For in upholding the New Deal statutes, the Justices necessarily created a role for themselves in interpreting them. Given the numerous compromises President Franklin D. Roosevelt’s congressional leaders had to make in order to secure these mea­ sures’ passage, to say nothing of the inher­ ent complexity and ambiguity of the statutes, giving life to these enactments necessarily involved the Court in policymaking. Under­ standing how active the Court really was in the realm of economic policy in the years fol­ lowing 1937, therefore, requires an examina­ tion ofthe path it followed in interpreting these statutes. The purpose ofthis article is to scrutinize the Supreme Court’s decisions regarding the Fair Labor Standards Act of 1938s (FLSA) be­ tween 1941 and 1946, the five years after it was upheld.9 Such an exercise provides an impor­ tant window onto the Court’s role in economic policy, inasmuch as the FLSA was one of the most far-reaching of the New Deal reforms.10 The first section is devoted to a brief discus­ sion ofhow one determinesjudicial activism in statutory interpretation. The second part lays out the critical statutory provisions as they were written in 1938. In the third through sev­ enth sections, the article takes a detailed look at the cases that came to the Court during this five- year period, searching for clues ofheight­ ened policy choice. There was a good bit of activism in these cases, and it had a detectable political slant. The Supreme Court, it turns out, was considerably more than a marginal player in economic policy. Judicial Activism and Statutory Interpretation Ernest Young has offered a six-fold classifica­ tion ofthe various types ofjudicial activism in constitutional jurisprudence: In United States v. Darby Lumber Co., a 1941 decision involving the rights of lumber industry workers, the Justices widened the reach of congressional power under the Commerce Clause to a considerable degree. Pictured, cross ties are loaded at a lumber yard in Mississippi. 60 JOURNAL OF SUPREME COURT HISTORY Franklin D. Roosevelt signed the Social Security bill in 1935, one of his many New Deal initiatives de­ signed to protect workers. Three years later, he would sign the Fair Labor Standards Act into law at the urg­ ing of Frances Perkins (above, third from right, and right), his Secretary of Labor. (1) second-guessing the federal political branches or state governments; (2) departing from text and/or history; (3) departing from judicial precedents; (4) issuing broad...