Monday, September 18, 2006

Hadley Arkes on George Sutherland

Some quotes from Hadley Arkes' judicial biography of Justice George Sutherland that caught my eye:
Justice John Clarke conveyed his resignation to President Harding on September 4, 1922, and Harding sent Sutherland's name to the Senate on the same day. The Senate, for its own part, saw no need to disturb the course of its affairs by troubling to hold hearings, or even schedule the meeting, of a separate committee. Sutherland was known so thoroughly to its members, his character was so clearly fixed in the legal profession, and his nomination so long expected, that the nomination bore no surprises and stirred not a trace of opposition. The Senate moved to approve the nomination at once by acclamation. Within a single day, the whole business was accomplished.

Here's Arkes discussing the Adkins v. Children's Hospital case, which struck down a federal law prescribing minimum wages for women in D.C. (This case was later overruled in the New Deal era.)
Under the statute, a board was constituted with the mandate to stipulate the precise wage, in any occupation, that would "supply the necessary cost of living to . . . women workers to maintain them in good health and to protect their morals." Evidently, the board understood the connection between morality and wages in the most calibrated way, for it was able to divine, with an astonishing particularity, that a woman working in a mercantile establishment required a wage of $16.50 per week to sustain her health, while a beginner in a laundry could apparently support herself and her morals with a more modest provision of $9 per week.
And here's Arkes commenting on the National Recovery Administration, one of Roosevelt's most intrusive regulatory innovations, and one that was blocked thanks to the Supreme Court:
A "chiseler" was a character who violated the spirit of the Blue Eagle and the terms of the law when he charged a price below the level specified by the code in his industry. And such a villain, apparently, was Jacob Maged in Jersey City. The hapless Maged, aged forty-nine, was an immigrant who ran his own tailor shop. He had been warned once by inspectors from the government, but the second, in April 1934, the authorities decided to make an example of him. Maged was prosecuted and sent to jail for three months, leaving a wife and four daughters to struggle with the business and pay his $100 fine. And his crime? Knowingly, deliberately, Maged had charged 35 cents to press a suit for a customer, even though the code of the NRA had pegged the price at 40 cents. . . . Jacob Maged could become a criminal only under a rare set of laws, in which people in the business of dry cleaning could use the powers of law to impose penalties on their own competitors who dared to lower their prices.
And here's Arkes lecturing on the same story, and drawing an apt lesson about the New Deal:
The story jars us today, it may strike us as bizarre, precisely because it did not become routine. It did not become part of a practice woven into our daily lives, mainly because it was resisted by The Supreme Court. Many of us have been able to preserve a benign memory of the New Deal precisely because these parts of the record of the New Deal have been screened from our memories--in large part because they have been screened from the accounts shaped for us by the historians.
* * *
With the National Recovery Act we would encounter the experiment of the New Deal in forms of corporatism. Even Huey Long would later complain that, in arrangements of this kind, the New Deal had produced schemes containing "every fault of socialism ... without one of its virtues."


Blogger Chris said...

On the general topic of Things I Like About George Sutherland, he expressed a form of semi-originalism very close to my own in Euclid v. Ambler Realty:

[W]hile the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world it is impossible that it should be otherwise. … [A] degree of elasticity is thus imparted, not to the meaning, but to the application of constitutional principles…

11:13 AM  

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