Ellis Washington is a former staff editor of the Michigan Law Review and law clerk at the Rutherford Institute. He is a professor of Constitutional Law, Legal Ethics, and Contracts at the National Paralegal College, a counselor at the American College of Education, and a founding board member of Salt and Light Global. Washington is a co-host of "Joshua's Trial," a radio show of Christian conservative thought. A graduate of JohnMore ↓Less ↑
(Overruling judicial precedent) tends to bring adjudications of this tribunal into the same class as a restricted railroad ticket, good for this day and train only.
– Justice O. Roberts, Smith v. Allwright (1944)
How did we get here? How did America so tragically betray its sacred promise to the world as a beacon of freedom symbolized by Lady Liberty standing proudly, holding her lamp aloft and beckoning the world to come to her majestic shores? To come to America for economic freedom, religious liberty: Give me your tired, your poor, Your huddled masses yearning to breathe free …
How did America become in essence a post-constitutional republic?
The author of this cartoon (“Warren”) titled, “Step by Step,” appeared in the Buffalo News on Feb. 11, 1937, and obviously felt that President Roosevelt, at the time, was on his way to dictatorship with the way he was running the policies and government. Was Warren and the judgment of history right? Was President Franklin Delano Roosevelt a dictator?
The record of judicial tyranny, like the Garden of Eden, occurred in the early years of America’s founding. The judicial revolution launched by John Marshall, America’s second chief justice of the U.S. Supreme Court (1801-1835), established now indisputable, bedrock judicial principles through several decisions during the 1810s and 1820s involving the balance of power between the federal government and the states, like judicial review in Marbury v. Madison (1803); Fletcher v. Peck (1810), the first case in which the Supreme Court ruled a state law unconstitutional, though the court had long before voided a state law as conflicting with the combination of the Constitution together with a treaty, and McCulloch v. Maryland (1819), where Marshall affirmed federal supremacy over the states.
It is the peculiar province of the legislature to prescribe general rules for the government of society; the application of those rules to individuals in society would seem to be the duty of other departments.
Thanks to the judicial revolution of Chief Justice John Marshall, the Supreme Court would rise from what the framers considered the weakest of the three branches of government to ascend as a co-equal (or arguably the superior) branch of government with seemingly unlimited powers. “Absolute power[s]” Lord Acton warned us in his famous aphorism on human nature “corrupts absolutely.”
This brings us to the protagonist of this column – Justice Owen J. Roberts (“The switch in time to save nine”), an activist justice who, for more than four years, stood strong on sound constitutional jurisprudence and consistently voted against FDR’s New Deal programs as unconstitutional usurpation of executive power and then suddenly began ruling in favor of the New Deal as constitutional beginning with the pivotal case NLRB v. Laughlin Steel Corp. (1937).
Why the sudden change in judicial philosophy? Did Justice Owen Roberts betray the Constitution?
The 1934 case, Home Bldg. & Loan Assoc. v. Blaisdell, which held that Minnesota’s suspension of creditors’ remedies was not in violation of the United States Constitution, was a singular victory for FDR’s Leviathan “New Deal” programs in the early years, yet FDR wanted even more control over American businesses, government and the courts. In 1935, the High Court had invalidated the National Industrial Recovery Act and in 1936 the Agricultural Adjustment Administration. FDR was thus acutely aware that the Court, through the so-called “Four Horsemen of the Apocalypse” – James McReynolds, Pierce Butler, Willis Van Devanter and George Sutherland, with Owen Roberts as the swing vote – could well invalidate the Social Security Act and the National Labor Relations Act, two pillars of New Deal legislation.
In an earlier column, “Stop accepting progressive premises,” I chronicled how 1937 was the critical year that the U.S. Constitution and legitimate constitutional jurisprudence rooted in natural law and stare decisis officially ended. I wrote:
Flushed with his second-term victory, FDR resolved to control the Court through increasing the bureaucracy, so in 1937 Roosevelt crafted legislation innocuously referred to as the “Judiciary Reorganization Bill.” FDR had the hubris to threaten the Court with six additional members if they didn’t rule his New Deal legislation constitutional. The Court caved in to FDR’s fascist tactics, thus in effect killing the Constitution and delegitimizing the Court.
The response to Roosevelt’s judicial reorganization, or “court-packing,” plan was particularly negative by all accounts. Cartoonists expressed the congressional, judicial and public suspicions better than most. While often jokingly criticizing the president for “ageism,” the tone was at times serious and intense, portraying FDR as a dictator hell-bent on destroying America’s democratic Republic.
The 1934 Blaisdell opinion (through FDR’s influence) essentially armed the bomb that would explode legitimate constitutional jurisprudence into oblivion four years later in the NLRB v. Laughlin Steel Corp. case and demonstrated utter contempt for the Constitution by rendering stare decisis (judicial precedent) and the framers’ original intent to be irrelevant in the interpretation of constitutional language. Chief Justice Charles Evans Hughes (who in 1916 ran as a Republican presidential candidate with the endorsement of the Progressive Party) said as early as 1907, “We are under a Constitution, but the Constitution is what the judges say it means.”
Judge Napolitano, a senior judicial analyst on Fox News, wrote that judges must be made to learn that “the Constitution is not some guideline to be consulted from time to time by politicians, lawmakers and judges. It is the supreme law of the land.”
Tragically, Justice Owen Roberts didn’t believe that the Constitution was the supreme law of the land, but succumbed to the extreme pressure by Chief Justice Hughes and in 1937 made a Faustian bargain with the devil, betrayed his sacred judicial oath of office and shamelessly bowed to political pressure to embrace a result-oriented liberalism championed by FDR to pass his blatantly unconstitutional “New Deal” programs after consistently voting against them for four years. In my opinion, this makes Justice Owen Roberts a traitor to the U.S. Constitution and against the original intent of the constitutional framers.
Justice Owen Roberts’ legacy is a tragic case study in irony, treachery and hypocrisy. Before leaving the bench, Roberts was increasingly outraged that new justices didn’t abide by the doctrine of stare decisis (as cited in the epigram) which he himself famously did not do. Possibly in retribution against his colleagues, soon after leaving the Court, Roberts allegedly destroyed all of his legal and judicial papers. As a consequence, there is no important collection of Roberts’ manuscript papers, as there is for most justices.