Forgotten Man, The (31 page)

Then Justice McReynolds asked: “Irrespective of the quality of the chicken?”

Irrespective of the quality of the chicken, Heller replied.

Later on, Justice Sutherland asked, “Well suppose however that all the chickens have gone over to one end of the coop?” (More laughter.)

Late in the game a big Wall Street law firm, Cravath, DeGersdorff, Swaine and Wood had joined Heller as the Schechters’ counsel. Now Frederick Wood tried to point out the gravity of the widening of the government’s powers. He argued that it might be all right to go the way of Mussolini or Hitler, but a constitutional amendment was necessary for that, not merely an act of Congress.

BUT IT WAS THE MERRIMENT
in the courtroom over Heller and his chicken crates, and not the Mussolini analogy, that seemed to matter. The laughter showed that the NRA was a shaky house and, as Heller then put it, “The whole Code must fall.”

Throughout May the criticism of New Deal agencies grew. In the middle of the month another Liberty League leader went on to assail the New Deal, saying that the country was now wrongly “mesmerized by alphabetical white rabbits.”

Sensing potential for a show, crowds packed the old Capitol courtroom May 27, the day the opinion was to be delivered. Two other cases were announced before
Schechter
. The first was a unanimous opinion finding that Roosevelt had acted wrongly when removing William Humphrey, the FTC commissioner. Next, the Court overruled the Frazier-Lemke Act. This was a blow for property rights—the act had limited the ability of banks to repossess property. The Court ruled that this violated the takings clause of the Constitution. Contracts between private individuals were important after all, the majority opinion said. Even a contract between a starving farmer and a nasty bank had to be honored, and the government did not have the power to intervene.

It was Justice Hughes who read the
Schechter
finding. It too was unanimous. “Defendants do not sell poultry in interstate commerce,” he said early on, thereby rejecting the authority of the NRA. “Extraordinary conditions may call for extraordinary remedies. But the argument necessarily stops short of an attempt to justify action which lies outside the sphere of constitutional authority. Extraordinary conditions do not create or enlarge constitutional power.” The NRA had abused the Schechters, and other businesses, through unconstitutional “coercive exercise of the law-making power.”

In a separate opinion, Justice Cardozo used language more biting to speak about the doctrine of delegation, the Constitution’s limitation of Congress’s power to let regulators write law. “Here, in the case before us, is an attempted delegation not confined to any single act nor to any class or group of acts identified or described by reference to a standard. Here, in effect is a roving commission to inquire into evils and upon discovery correct them.” This, he summed up that day, was “delegation running riot.” Cardozo concluded that the wage and hours provisions of the codes were not legal if the industries they regulated were local in character; the codes must be thrown
out. In a final—and perhaps unconscious—reference to the work of the Schechters, Justice Cardozo concluded with a butcher-block metaphor: “Wages and the hours of labor are essential features of the plan, its very bone and sinew. There is no opportunity in such circumstances for the severance of the infected parts in the hope of saving the remainder. A code collapses utterly with bone and sinew gone.” The Supreme Court justices were sending a message to business. McReynolds believed that an unmistakable signal such as
Schechter
would hearten investors and employers.

But more important was the message they were sending to the White House. Later that day, Justice Brandeis collared the two lawyers who had advised the New Dealers so closely, Tommy Corcoran and Ben Cohen, in the justices’ robing room. Their teacher Frankfurter’s suspicion had been correct. The justice told Corcoran: “This is the end of this business of centralization, and I want you to go back and tell the president that we’re not going to let this government centralize everything. It’s come to an end.” Brandeis also added a second comment: “As for your young men, you call them together and tell them to get out of Washington—tell them to go home, back to the states. That is where they must do their work.” On the surface, it seemed a near irrelevant aside from an angry older man to a young one. In fact, though, Brandeis’s second comment fit in clearly with his first. There was something that he just couldn’t stand about the New Deal itself, with its new laws and offices. The country might heal itself better if it stayed at home, cultivating its own garden. Revolutions were dangerous, and the best way to prevent them was to deprive them of personnel. Later, Senator Borah, who knew Justice Van Devanter personally, delivered a defense of the Court from a different angle on the radio: “We live under a written Constitution…fortunate or unfortunate, it is a fact.”

The American papers seemed to draw their collective breath. They did not want to write too much, at least not until Roosevelt spoke. The UK press, with less at stake, blared its instant conclusion at the news of
Schechter
: “America Stunned! Roosevelt’s Work Killed in 20 Minutes,” read the headline on the London
Express.

U
NEASY IN
O
FFICE
.
Calvin Coolidge
, the minimalist president, on holiday in July, 1927 in Rapid City, North Dakota. In the first quarter of the twentieth century,
Samuel Insull
, here speaking at a World War I rally, was the Windy City’s foremost innovator, proving that the private sector could light up great metropolises. Chicagoans rewarded him with adulation. [AP I
MAGES
]