The Remand That Made the Court Expand

Article excerpt

(In a large law school lecture hall, Fall 1999 term)

In today's class, we will focus on a Supreme Court decision that many of you undoubtedly studied in history or in an undergraduate course in Constitutional Law. That case is West Coast Hotel Co. v. Parrish (1937). Parrish is commonly described as "the remand that made the Court expand." While the characterization is literally correct, it fails to capture the several ways in which that decision fundamentally altered our representative democracy.

The facts are simple. The Parrish Court reviewed a state court decision that had distinguished precedents growing out of the famous era associated with Lochner v. New York (1905). During the Lochner era, the Court struck down a variety of state and federal regulations, often including those setting minimum wages or maximum hours in the workplace. Lochner itself became well known because in that decision, Justice Peckham clearly articulated what he viewed as a fundamental right to make contracts and to own property without undue regulatory interference. Against this backdrop, Parrish looked sufficiently run-of-the-mine that contemporaneous commentators questioned why the Court had bothered to granted certiorari. For example, in Adkins v. Children's Hospital (1923) and Morehead v. Tipaldo (1936), the Court had reached nearly identical outcomes. Any differences between those cases and Parrish arguably had less to do with the law or the facts than with the changed political climate.

Before Parrish, President Franklin Delano Roosevelt, increasingly frustrated with the Supreme Court's resistance to New Deal initiatives, upped the ante. Presenting his 1936 reelection as a referendum on the New Deal, FDR began to work through Congress his now famous Court-packing plan. Under that plan, Congress expanded the Supreme Court's membership by one member for each Justice over the age of seventy who was unwilling to step down. Changing the size of the Supreme Court was by no means a new idea, and this was not the first time that Court size had been exploited for political purposes. Following Thomas Jefferson's election to the presidency, Congress decreased the Court's size, preventing him from appointing a successor to Justice Cushing. And the Reconstruction Congress repeated this strategy with President Andrew Johnson, preventing him from appointing successors to Justices Catron and Wayne. But not since George Washington, who appointed a newly created five-, then six-, member Court, has a single President been given as many appointments to the Supreme Court as the Court-packing plan would give FDR. Because six justices were then over the age of seventy, the Court-packing plan quickly transformed the Court from one dominated by a conservative majority of five out of nine into one that contained a liberal supermajority of ten out of fifteen.

Even in the New Deal, many viewed the plan with trepidation. If judicial opposition to New Deal policies warranted an expansion from nine to fifteen, would that provide future dissatisfied Republican leadership with a precedent for a further expansion to, say, twenty-three? And of course, this game has no end. In the pressures of the Great Depression, however, congressmen were more focused on bread lines than on abstract "what ifs?" That is not surprising. After all, two years prior to Parrish, on May 27, 1935, the Court had issued FDR what many viewed as a fatal blow to the New Deal. On that date, which became known as "Black Monday," the Court struck down the National Industrial Recovery Act in A.L.A. Schechter Poultry Corp. v. United States (1935) and the mortgage moratoria in the Frazier-Lemke Act in Louisville Joint Stock Land Bank v. Radford (1935). The Court also issued Humphrey's Executor v. United States (1935), which prevented FDR from removing a commissioner on the independent Federal Trade Commission.

Even so, it took another two years, with the intervening 1936 election and the Parrish remand, for the Supreme Court Expansion Act of 1937 to gain the needed political support. …