Hughes and the NRA
The unexpected change of Chief Justice Hughes' heart produced two effects: it gave the newspapers an approach to the constitutionality of the NRA which was personal and striking, and it obscured the exact measure of the progress which the Minnesota mortgage decision has marked out. Before any talk of "liberals" and "conservatives" can be valid, before any real prophesies on Roosevelt's impact with the court can be enunciated, it will be necessary to examine the text of the Minnesota law and the grounds upon which the Supreme Court supported it.
The text of the act states: "The act is to remain in effect only during the continuance of the emergency and in no event beyond May 1, 1935." In his majority opinion, Chief Justice Hughes explicitly placed himself on this ground, that "... the relief afforded and justified by the emergency in order not to contravene the constitutional provision, could only be of a character appropriate to that emergency and could only be granted under reasonable conditions." The conditions are reasonable because "... the integrity of the mortgage indebtedness is not impaired." Although in another part of the opinion, Chief Justice Hughes repeats Marshall's counsel to elasticity, "We must never forget that it is a Constitution we are expounding," and in his conclusion points out the merits of the equitable principle, he does not approve, implicitly or explicitly, of the Minnesota intervention except as an emergency measure, and bases the justification of the law on its impermanence. Not less significant is his reminder that this law was separated and examined in its every part, and that other features of the emergency legislation which might be brought before the Court would be subjected to the same process.
Now Mr. Roosevelt, in his message to Congress, did not hesitate to say that the "reforms of the New Deal were here to stay," that "civilization could not go backward," and that a large number of his more important legislative measures must be permanent. By a majority of 5-4 the Supreme Court has approved a single feature of the great canon of emergency legislation; the personnel record of the court, the general surprise at Chief Justice Hughes' position, indicate that the majority hinges upon him. The minority opinion of Justices Sutherland, Butler, McReynolds, and van Devanter might have been written in the nineteenth century; it expresses all the governmental and constitutional concepts with which each of them has been associated since his election to the court. No less uncompromising is the stand of Justices Brandeis and Cardozo. There is still no reason to believe that Justice Stone supported the majority decision on grounds more far reaching than those of the Chief Justice; if the majority decision does not go so far as Brandeis or Cardozo would have gone, that means that Stone and Hughes and Roberts were moved to compromise by the consideration of emergency. In short, the majority may be interpreted as nothing more than a balance of ideas engineered for the support of a rigidly limited legal provision; it surely cannot be interpreted as a promise of judicial allegiance to a new concept of Washington's role in our social and industrial life.
I cannot see that the text of the majority opinion promises anything for the success of permanent reforms such as the Securities Act, the abolition of child labor, the industrial hour and wage codes, or collective bargaining. Each of these represents a definite social advance which the Supreme Court has not admitted in the past and which can not be admitted on the narrow emergency basis which the Chief Justice posits. It may be that Mr. Hughes and the Court have become "liberal," and that the NRA will pass substantially untouched under their eyes, but this decision, and the grounds on which it was made, do not give much basis for the belief. POLLUX.