MIXED SIGNALS

The administration could not postpone judicial review of New Deal legislation forever. Many liberals had high hopes for the Court. The New Republic noted that the four conservatives – Sutherland, Butler, Van Devanter, and McReynolds, whom critics called the “four horsemen” – had become regular dissenters. Princeton professor Edward S. Corwin said that it was “not unlikely” that the Court would accept the NIRA. Harvard Law professor Zechariah Chafee noted some liberal trends since Hughes had become Chief Justice, but warned that those “labeling the two new justices as ‘liberals’ are likely to meet with some sharp disappointments.” Law professor Maurice Finkelstein predicted that the Court would uphold New Deal legislation. If it did not, he recommended that Congress and the president “utilize the power, which they always have in reserve, of ‘packing’ the court – that is to say, of appointing additional justices to secure a favorable majority.” A more conservative observer similarly noted suggestions that Roosevelt “might call a special session of Congress and with its consent, raise the number of Supreme Court justices from nine to eleven.”

The first terms of Hughes’s Chief Justiceship fed liberal optimism, but hardly indicated that the Court had abandoned constitutional limits on government power. The 1933 Supreme Court had been unusually quiescent, particularly with regard to federal acts, as the Republican Congresses of the 1920s had enacted little controversial legislation. It voided no federal Act between 1929 and 1931, the longest period except for one (1888–92) since the Civil War. It struck down one Act the following year. In 1930, it unanimously upheld the Railway Labor Act of 1926, a progressive Republican measure. The Act compelled interstate railroads to bargain with representatives chosen by their employees, and prohibited them from interfering in that choice of representation.