Ten-Dollar Bills and Letters of Congratulation:The Unlikely
Journey of the Sick Chicken Case
by Keven T. Brewer <[email protected]>
When Franklin Delano Roosevelt took the oath of office as president on a rainy March 4, 1933, and
dramatically declared to a desperate public that the only thing it had to fear was “fear itself,” few could have
imagined that a major cornerstone of Roosevelt’s economic plans would, or could, fall victim to legal
arguments involving, in part, the order in which chickens could be pulled from a coop. That is what happened
two years later, however, when four brothers, Joseph, Alex, Martin, and Aaron Schechter, businessmen from
one of the grittiest and most notoriously corrupt enterprises in New York, the “live poultry” trade, were
indicted, tried, and convicted of violating codes established under Roosevelt’s National Industrial Recovery Act.
The United States Supreme Court case that eventually resulted, A.L.A. Schechter Poultry Corporation v. United
States, was a stunning victory for the Schechters, and for opponents of the New Deal. In one fell swoop, it
invalidated the National Industrial Recovery Act, the hundreds of codes that had been fashioned in response to
it, and the entire regulatory philosophy upon which it rested. The decision is regularly blamed—or credited—
with undermining the major thrust of the New Deal, and for spurring Roosevelt, in 1937, to pursue his costly
“Court packing” initiative.
With its far-reaching consequences, one might reasonably conclude that the Schechter case was a highly
organized and well-orchestrated attack on the New Deal. Such was hardly the case. The road to the Supreme
Court and the Schechter Poultry decision was neither smooth nor straight for either the administration or the
Schechters, and the case history has an air of high-stakes legal brinksmanship and hasty decision-making. Far
from a well-planned epic legal battle, Schechter was at the very door of the Supreme Court before it was
identified by the government as an important NIRA test case. Furthermore, the government was, itself, largely
responsible for pushing Schechter into the Supreme Court—and on an accelerated basis—despite having
overwhelmingly won the case in the lower courts. In the end, even the distinctions between the winners and the
losers would blur, as the chastened Roosevelt administration lived to fight another day, and the triumphant
Brooklyn poultry men were left to face the aftermath impoverished and alone. Given the seedy origins of the
case,, and its difficult evolution from obscure criminal proceeding in the district court, to watershed
constitutional and historical milestone and beyond, one is left to ponder not how the Roosevelt administration
could have lost such an important case, but how such a case as Schechter could have assumed such historic
proportions.
One of the most sweeping bills to emerge from the New Deal’s Hundred Days Congress was the National
Industrial Recovery Act (NIRA), whose enforcement lay in the hands of the National Recovery Administration
(NRA). The NIRA established a system by which industrial trades, large and small, could draw up codes setting
their ground-rules for production and competition. Once approved by the president, these codes had the force
of law. Allowing industry leaders themselves to draw up the codes was supposed to satisfy their desire to have
a degree of control over their own affairs, while eliminating what they viewed as unfair competition. In turn,
management was required to grant concessions to workers by establishing guidelines for maximum working
hours, minimum wages, and collective bargaining rights within each industry. These provisions, along with
consumer protections related to health, safety, and other concerns, were intended to drive up prices and benefit
all three stakeholders, management, labor, and consumers.1
Joseph, Martin, Alex, and Aaron Schechter had built the largest wholesale “live poultry” business in
Brooklyn. The Schechters, all of whom were in their thirties, jointly owned the A.L.A. Schechter Poultry
Corporation on East Fifty-Second Street. Joseph Schechter had inherited the leadership of the family business
on Rockaway Avenue when his father, David, retired in 1932. Hard times and, Schechter would later assert, the
1
Frank Freidel, “The Sick Chicken Case,” in Quarrels that have Shaped the Constitution, ed. John A. Garraty (New York:
Harper & Row, 1964), 195.
NIRA, soon forced him to close that business. Schechter then went into business with his brothers at the FiftySecond Street address.2
The wholesale live poultry industry had grown out of the requirement that chickens and other fowl, in order
to be acceptable to orthodox Jews, be ritually slaughtered by a rabbi, or by another religious official called a
shochtim. Though the Schechter brothers themselves were not actual shochtim, the very name “Schechter”
meant “one who is qualified and duly authorized to slaughter in conformity with Jewish law.” Under this law,
chickens had to remain alive right up to the point of sale to the retailer, which made it necessary for a genuine
shochtim or rabbi to be on the premises to slaughter the birds chosen by the customer. Chickens prepared under
such conditions were considered kosher, and could be sold as such to Brooklyn’s large Jewish community. 3
On a typical business day, a truck loaded with chickens would arrive in the afternoon at the Schechters’
Fifty-Second Street establishment. The chickens, still in their coops, would be placed inside the building within
reach of food. Early the next morning, poultry dealers would arrive and determine how many chickens they
wanted. Once the buyers had decided, the crates would be opened and the birds handed, one at a time, to Rabbi
Hellal Girschon. Girschon would instantly kill the chicken with “a straight, dentless chalif, or knife” and throw
it into a barrel of sawdust. When about thirty birds had been thrown into the barrel, it would be moved to a
scale where the chickens would be weighed and distributed to the buyers.4
Like many other ailing industries in the early days of the New Deal, the live poultry trade enthusiastically
cooperated with the NRA in the promulgation of a code that would regulate competitive forces. The New York
live poultry industry was especially interested in another benefit the codes might provide: shelter from the
racketeering by which the business had been afflicted for years. Frank Freidel wrote that the live poultry trade
in New York was “so plagued by gangsters that within it had originated the term ‘racket.’” “Few trades in the
nation were more squalid,” observed Arthur M. Schlesinger. “It was a fiercely competitive industry, dwelling
on the margin of the underworld and abounding in vicious practices.” He added, “A witness for the Schechters
had testified that live poultry traders were ‘looked upon as the worst type of businessmen in the world.’”
Whether the world’s “worst type” of businessman or not, Joseph Schechter knew well the debilitating effects of
racketeering on his industry. He had once stood up to the gangsters’ demands, only to have his truck’s engine
ruined in retaliation. He later testified against the vandals in a case that eventually went before the United
States Supreme Court.5
On April 13, 1934, the Code of Fair Competition for the Live Poultry Industry of the Metropolitan Area in
and about the City of New York was approved by President Roosevelt; it went into effect on April 23. The code
demanded government inspection of all poultry sold, licensing of all retailers making purchases, and prohibited
the sale of poultry “unfit for human consumption.” It also required a workweek for employees of forty-eight
hours, at a rate of fifty cents per hour; thorough record keeping by operators; ready cooperation with code
inspectors; and regular filing of reports with code authorities. In addition, the code specified that wholesalers of
live poultry could engage only in “straight killing.” The straight killing provision meant that neither
wholesalers nor customers could have their pick of birds. If an entire coop were purchased, all of the birds in it
2
Ibid, 203; Brooklyn Daily Eagle, 16 June 1935.
3
New York Times, 5 April 1935; New York Times, 27 July 1934; Jethro K. Lieberman, “The Uncertain Cackle of the Sick
Chicken: A.L.A. Schechter Poultry Corp. v. United States” in Milestones! 200 Years of American Law: Milestones in Our Legal
History, (New York: Oxford University Press, 1976), 191; Brooklyn Daily Eagle 28 September 1935; Freidel, “The Sick Chicken
Case,” 203.
4
5
Brooklyn Daily Eagle, 1 May 1935.
Freidel, “The Sick Chicken Case,” 201; Arthur M. Schlesinger, Jr., The Politics of Upheaval: 1935-1936, The Age of
Roosevelt, (Boston, Houghton Mifflin, 1960), 277; Freidel, “The Sick Chicken Case,” 191, 192.
were taken. If not, one was required to simply reach into the coop and pull out the first chickens encountered.
Additional inspection and selection were not permitted. 6
Only a few weeks after the signing of the poultry code, the United States Department of Justice began an
investigation of the Schechter brothers and their two businesses, suspecting them of numerous violations. The
investigation was led by Special Assistant Attorney General Walter L. Rice, and Leo J. Hickey, the US
Attorney for the Eastern District of New York. Arthur M. Loeb and Irving Dale served as advocates for the live
poultry code. In July, the investigators revealed their findings to the federal grand jury for the Eastern District
of New York. On July 26, the grand jury presented US district judge Clarence Galston with indictments against
all four of the poultry merchants and both of their business concerns. Shortly thereafter, federal authorities
arrested the Schechters. 7
The Schechters’ original indictment included sixty counts covering many violations of the NIRA and the live
poultry code. If found guilty on all counts, the brothers faced tens of thousands of dollars in fines and sizable
jail terms. The first count included all of the brothers (and the two businesses) and charged that the four men
agreed and conspired: “(a) to sell poultry unfit for human consumption, (b) to sell uninspected poultry, (c) to
engage in the practice of ‘selective killing,’ (d) to intimidate Code Authority Investigators, (e) to file false and
fictitious sales reports, (f) to decline to furnish reports on hours worked by employees, (g) to pay illegal wages,
(h) to permit employees to work excessive hours, and (i) to obstruct the Code Supervisor from carrying out his
duties.” The count that received the most attention from the press stated that the Schechters had been
responsible for selling diseased poultry, notably birds with tuberculosis that was alleged to be communicable to
humans, and that this practice had disrupted the flow of interstate commerce in poultry into and out of the New
York market. Later, much attention would be paid to part “c” of the first count, which charged that the brothers
had engaged in “selective,” rather than “straight” killing, as required by the code, that is, that they had chosen
chickens individually from the coop, rather than simply reaching in and retrieving the first ones at hand. The
Schechters initially entered pleas of not guilty, but soon withdrew their pleas so that they might file a
demurrer—a motion in which they declined to address the truth of the charges, but instead challenged their (the
charges’) sufficiency to sustain a legal action.8
Having secured the counsel of New York attorneys Joseph and Jacob Heller, the Schechters presented their
demurrer motion to US district judge Marcus B. Campbell of New York’s Eastern District. It attacked the
indictment on four fronts, the first two of which would emerge as crucial issues in the case. The motion
asserted that the NIRA was unconstitutional, that the charges alleged did not involve interstate commerce and
were therefore not subject to federal jurisdiction, that no federal crime had been properly alleged, and that the
indictment itself was defective. On August 29, 1934, Campbell handed down his ruling on the demurrer. Of
the sixty separate counts against the Schechters, Judge Campbell struck down nineteen and upheld forty-one.
The rejected indictments dealt with such issues as some (though not all) of the wage and hour violations alleged
against the brothers, along with counts the judge saw as overzealous efforts on the part of the government to
inflate the number of separate violations. This seeming victory could have been but little comfort to the
defendants; the most serious charges stood. 9
In addressing the major legal questions of the case: the overall constitutionality of the NIRA regulatory
scheme, Congress’s power to delegate such regulatory power to others through the NRA and its codes, and the
reach of Congress’s power over activities affecting interstate commerce, Judge Campbell sided with the United
6
United States v. Schechter et al., 8 F. Supp. 136 (E. D. NY 1934); New York Times, 5 April 1935; United States v. Schechter;
New York Times, 4 May 1935.
7
New York Times, 27 July 1934.
8
New York Times, 27 July 1934; Freidel, “The Sick Chicken Case,” 201-202; New York Times, 5 May 1935.
9
United States v. Schechter; New York Times, 30 August 1934.
States. Declaring that, “the Recovery Act is an emergency measure and represents a change in social theory,”
he contrasted this new system of “supervised regulation of trade practices” with the old pro-competition
assumptions embodied in such laws as the Sherman Anti-Trust Act, concluding that the NIRA had, in fact,
superseded and modified some of the provisions, to say nothing of the philosophy, of the Sherman Act. He
went on to reiterate the established principle that the Congress cannot delegate legislative authority to the
president, but asserted that, because of the intervening mechanism of the codes, Congress had not done so in
this case. With regard to the Schechters’ contention that Congress could not regulate matters merely affecting
interstate commerce, Campbell found that it had the clear power to do so, as long as the matters in question had
a substantial, and not merely incidental, effect on such commerce. Citing evidence of the size and scope of the
Schechters’ operation, and the interstate nature of the complex New York poultry trade, Campbell concluded
that Congress indeed had sufficient power to regulate those activities through the mechanisms of the NIRA.10
Their indictments substantially upheld, the Schechters went on trial on October 14, 1934 in the Eastern
District courthouse in Brooklyn, with Judge Campbell presiding. Special Assistant Attorney General Walter
Rice, who had led the investigation into the Schechters’ activities, now headed the prosecution, with the
defendants still represented by the Hellers. With nineteen of their sixty original charges negated by the
demurrer motion, the brothers began trial facing forty-one separate allegations.
At trial, the government presented evidence that New York City had become the hub, in terms of both traffic
and economic impact, of the entire country’s live poultry industry. The US attorneys also stated that because of
lax inspection in the New York market, diseased chickens from across the nation found their way there, often
infecting healthy birds along the way. Illegal selling of diseased and other substandard poultry by the
Schechters, it was contended, along with the payment of illegally low wages and long working hours in the
slaughterhouses, had depressed the price of healthy birds, not only in New York, but throughout the country.
This, the government maintained, was doing inestimable damage to interstate commerce and clearly justified
the kinds of federal intervention brought to bear by the NIRA.11
Because there was little disagreement about the facts of the case as to the actual behaviors of the
defendants—the Schechters pinned their hopes primarily on legal rather than factual arguments—the trial did
not take very long. On October 31, declaring that there was insufficient testimony to support some of the
specific charges, Judge Campbell threw out an additional eight counts against the brothers, leaving them facing
thirty-three allegations. He then charged the jury as to the law. In his instructions, Campbell made it clear to
the jurors that the NRA’s reach extended to the kinds of activities with which the Schechters were charged.
Assistant Attorney General Rice, speaking after the verdict, said that the judge had told the jury that “violation
of the [live poultry] code, however small, which had effect on the operations of interstate commerce made the
defendants amenable to the law.” Such an instruction, coupled with the little-disputed facts of the case,
foreshadowed conviction. The jurors began deliberations at 12:45 PM on October 31. At 11:30 that night, they
informed the court that they had been unable to reach a verdict. Judge Campbell ordered them to a hotel until
10:00 the following morning. About two hours after resuming deliberations at the courthouse on November 1,
the jury announced that it had reached a verdict.12
The poultry merchants had faced long odds. The New York Times would soon point out that the National
Recovery Administration was winning ninety percent of its court cases, even as the number of cases tripled.
The Schechter brothers’ case was to add to that statistic. The jury acquitted the Schechters on fourteen counts,
but convicted them on nineteen. Sixteen of the convictions ranged from selling poultry “unfit for human
consumption,” and selling poultry to unlicensed individuals and companies, to selling uninspected poultry.
10
New York Times, 30 August 1934; United States v. Schechter.
11
United States v. A. L. A. Schechter Poultry Corporation et al., 76 F.(2d) 617 (1935). The later court of Appeals case is cited
here for factual content because that court’s decision includes a useful summery of the jury’s findings in the district court.
12
Chicago Daily Tribune, 2 November 1934; New York Times, 2 November 1934; ibid.
They were also found guilty on two counts of violating code provisions mandating a forty-eight hour workweek
and a minimum wage of fifty cents per hour. For each of these lesser counts, they faced a maximum fine of
$500. More troubling was their conviction on one charge of conspiracy, a felony. For this conviction, each
faced a possible $10,000 fine and up to two years in jail. “The conspiracy conviction,” gloated the NRA’s
Litigation Division, “shows that there are teeth in the enforcement provision of the law.” On November 9,
1934, the Schechter brothers learned that they were to pay fines totaling $7,425. In addition, the court
sentenced all of the brothers to jail, Joseph for three months, Alex for two, and Martin and Aaron for one. The
Schechters and their attorneys began to plan their appeals.13
Early in 1935, the Hellers presented the Schechters’ appeal to a three-judge panel of the Court of Appeals for
the Second Circuit in New York. Judges Martin T. Manton, Harrie B. Chase, and the well-known Learned
Hand heard the case. The Roosevelt administration’s growing interest in the outcome is reflected in the
expansion, in terms of both number and rank, of the legal resources it devoted to the action. Special Assistant
Attorney General Walter Rice, who had argued the government’s case before the district court, remained at the
head of the administration’s efforts. Now, though, he was accompanied by an impressive taskforce of officials:
Assistant Attorney General Harold Stephens, Special Assistants to the Attorney General Carl McFarland and
Henry Edgerton, and, demonstrating that the case’s importance had spread beyond the confines of the
Department of Justice, two special attorneys for the Department of Agriculture, William Fulbright and H.
Stewart McDonald, Jr. Assistant Counsel Raymond Heilmond represented the interests of the National
Recovery Administration. 14
On appeal, the Schechters arguments were substantially as set forth, with mixed results, in their demurrer
motions before the district court. The brothers asserted that they were involved in intrastate, rather than
interstate activity, and that their alleged crimes were therefore beyond the reach of federal authorities. In
particular, they argued that wage and hour agreements between them and their employees had nothing to do
with interstate commerce at all. Also resurrected was the claim that the president’s role in the approval of the
codes constituted legislation, and that the whole NIRA scheme therefore represented an improper and
unconstitutional delegation of legislative authority to Roosevelt.15
The government’s attorneys continued to defend the district court jury’s findings that the Schechters’
activities had had a negative impact on interstate commerce, and could therefore be redressed by federal
authority, and that the poultry code had been an attempt to prevent just such situations. They further argued that
Congress’s grant of power to the president to validate the industrial codes was not improper delegation, since
the NIRA had set clear goals and guidelines for the president to follow in doing so.16
While at times it must have seemed to the Schechters that the entire might of the federal government was
focused exclusively on them, and while the government had paid considerable attention to the unfolding of the
case, Schechter was by no means the most important NIRA-related issue on the administration’s agenda.
Indeed, there is little evidence that the government viewed Schechter as a potential NIRA test case at all. Across
the country, workers, small businesses, and industries were beginning to chafe under the complex and tiresome
bureaucratic mandates of the Blue Eagle, a harsh taskmaster who demanded sacrifice from all participants in the
economy. Soon, legal challenges, of which the Schechter case was but one, were questioning the
13
New York Times, 5 November 1934; New York Times, 2 November 1934; New York Times 5 November 1934; New York
Times, 5 April 1935.
14
New York Times, 5 April 1935; United States v. A. L. A. Schechter Poultry Corporation.
15
United States v. A. L. A. Schechter Poultry Corporation.
16
United States v. A. L. A. Schechter Poultry Corporation. In the absence of briefs or oral argument transcripts, the legal
argument of the United States is here deduced from the actual findings of the court.
constitutionality of the entire regulatory regime. As doubts about the statute’s validity rose, ready compliance
with the codes and cooperation with NRA bureaucrats declined.
Sensing the growing discontent, and desiring to settle with finality the NIRA’s legitimacy, the government,
for some time, had anticipated putting a test case before the Supreme Court. There was dissention in the ranks,
however. While Donald Richberg, the head of the NRA, thought a definitive court ruling essential to the
morale of his staff, Justice Department officials had concluded that a better strategy might be simply to allow
the NIRA to lapse in June 1935. The law, they reasoned, could then be revised, in a more carefully drawn form,
by the Congress, and the administration, in turn, could sidestep many of its current judicial hazards. A rapidfire turn of events began to unfold, however, when the Supreme Court, in January 1935, handed down its
decision in Panama Refining Co. v. Ryan.17
Though initially thought a minor factor, delegation became the critical issue in Panama Refining, a Texas
petroleum dispute that soon became known as the “hot-oil” case. The NIRA had anticipated that the petroleum
code would set production quotas, and gave the president the final decision as to whether oil produced in excess
of those quotas could be transported in interstate commerce. Initially, a number of California oil dealers faced
penalties for quota violations criminalized by both the Petroleum Code and the text of the NIRA itself. There
ensued, however, a comedy of errors in which it was revealed that paperwork mistakes in Roosevelt’s executive
order approving the code, mistakes involving the White House, the State Department, and the NRA, had
rendered the men’s actions technically legal as to the Petroleum Code. The government was thus unable to
charge the men with violating the code, but chose to continue to pursue the case by invoking the criminal
language in Section 9 (c) of the NIRA itself. This questionable strategy opened the NIRA to a body blow by an
already skeptical court, who could now strike at the head of the beast rather than the tail. When the case finally
came before them, the justices declared Section 9 (c) unconstitutional, ruling 8-1 that Congress had simply
handed over legislative authority, with few strings attached, to the executive branch, in an improper and
unconstitutional delegation of power.18
Panama Refining plunged the administration into a dilemma, and cast a sudden and unwelcome cloud over
its favored potential test case, United States v. Belcher. William Belcher was a lumber mill operator who
openly admitted that he had violated wage and hour provisions of the NRA’s Lumber Code. When Belcher had
been brought before the local district court to answer for his actions, the judge had determined that the NIRA
itself was unconstitutional. If the case were not appealed, the ruling would stand, at least in Alabama. This in
itself would have negative effects on enforcement efforts, and Richberg feared that such a choice would
encourage others to ignore the codes. As the Panama Refining loss sank in, however, and its parallels to the
lumber case came into sharper focus, others in the Roosevelt administration grew increasingly doubtful
regarding the viability of Belcher as an NIRA test case in the post-Panama Refining legal environment.
Appealing the case might invite a disastrous loss, since the Lumber Code included the same type of discredited
production quotas that had helped bring down Section 9 (c). By spring, convinced that the hot-oil case
foreshadowed disaster for the NIRA should the Belcher case go forward, the administration—under protest from
Richberg—decided that it would not take the case to the Supreme Court, and quickly asked the justices for
permission to withdraw from the appeal, which had already been filed.19
The government’s move to abandon the Belcher appeal brought just the kinds of negative results that
Richberg and other NRA officials had dreaded, and more. “The Lumber Code went unenforced, since the lower
court ruling stood,” wrote Jethro Lieberman, “and morale at the NRA fell.” “The administration,” he added,
17
Ibid; Schlesinger, The Politics of Upheaval, 276.
18
Panama Refining Co. v. Ryan, 293 US 388 (1935): Freidel, “The Sick Chicken Case,” 200; Lieberman, “The Uncertain
Cackle of the Sick Chicken,” 187-189.
19
Freidel, “The Sick Chicken Case,” 200; Schlesinger, The Politics of Upheaval, 276-277; Lieberman, “The Uncertain Cackle
of the Sick Chicken,” 187-190.
“was pilloried in the press for refusing to allow the law to be tested in the Supreme Court.” The New York
Times reported that the abandonment of the Belcher appeal, occurring in the midst of “attacks on the codes
before the Senate Finance Committee,” had badly demoralized NRA officials. In addition, suggested the Times,
it had led to widespread acceptance of rumors, one of which was that the administration had actually dropped
the lumber case because it deemed the whole of the NIRA unconstitutional and was afraid to move forward with
any test.20
Particularly bitter criticism came from the NRA’s Lumber Code Authority, which complained that the
cancellation had disrupted code enforcement efforts in lumber, and had undermined compliance with the NIRA
in general. On April 5, 1935, the New York Times reported: “Complaints mounted on the desk of Mr.
Rosenblat, compliance officer for the NRA, that lumber trade labor was down to 12 cents an hour instead of the
code minimum of 24 cents; that garages had stepped up hours to 77 a week; that some industries had ceased
manufacture and were selling out stock in the belief that former days of cheap production were at hand. Wages
were reduced 10 per cent and hours were increased 10 per cent in certain manufacture.” “The NRA staff felt
itself abandoned by the government,” wrote Arthur Schlesinger, adding, “People in general wondered why they
should obey a law which the government was unwilling to test in the courts.”21
Despite the protests, the United States Supreme Court granted the government’s request and released it as a
litigant in the Belcher appeal. Now, the United States and NIRA advocates, who had had two potentially
winnable test cases, Panama Refining and Belcher, had none at all. This situation did not stand for long. On
April 1, 1935, the same day that the Belcher appeal was dismissed in Washington, the Court of Appeals for the
Second Circuit in New York handed down its ruling in the case renamed United States v. A. L. A. Schechter
Poultry Corporation et al. 22
Although a setback for the government on two of the nineteen counts, the court of appeals ruling in
Schechter was, overall, a clear victory for the administration. In an opinion written by Judge Manton, and in
which both Judges Hand and Chase concurred, the court found that any activities, even those intrastate in
nature, if found to place a significant burden upon or to significantly interfere with interstate commerce, could
be regulated by Congress. The court further determined that most of the activities of which the Schechters had
been accused and convicted fell within that description. On the question of improper delegation of power by
the Congress, the court found that the NIRA, because it clearly enunciated a policy and instructed the president
in its implementation, had largely overcome constitutional delegation problems encountered in previous cases.
Judge Manton speculated that without such delegation, the legislative powers vested in the Congress would be
rendered largely ineffectual. In short, the NIRA represented a proper delegation of power to the president,
granting him admittedly far-reaching, but necessary, latitude in carrying out the will of the legislature. 23
On two of the nineteen counts, the Schechter brothers prevailed. The circuit court invalidated the minimum
wage and maximum hours provisions of the live poultry code, ruling that neither of these had any significant
effect upon interstate commerce and were therefore outside the scope of federal power. Foreshadowing what
was to come later in the year, Judge Hand, in a concurring opinion, wrote, concerning federalism and the scope
of the commerce power:
The extent of the power of Congress to regulate interstate commerce . . . goes to the very root of any federal
system at all. It might, or might not, be a good thing if Congress were supreme in all respects and the states
merely political divisions without more autonomy than it chose to accord them; but that is not the skeleton or
basic framework of our system….It may indeed follow that the nation cannot as a unit meet any of the great
20
Lieberman, “The Uncertain Cackle of the Sick Chicken,” 190; New York Times, 5 April 1935.
21
Schlesinger, The Politics of Upheaval, 277.
22
New York Times, 5 April 1935.
23
United States v. A. L. A. Schechter Poultry Corporation; Ibid, citing Panama Refining Co. v. Ryan.
crises of its existence except war, and that it must obtain the concurrence of the separate states; but that to
some extent at any rate is implicit in any federation, and the resulting weaknesses have not hitherto been
thought to outweigh the dangers of a completely centralized government.24
As with the district court’s dismissal of some of their charges the previous year, the court of appeals’
decision concerning the wages and hours violations likely proved of little comfort to the Schechter brothers.
Along with sixteen lesser counts, the felony conviction for conspiracy remained intact, and it appeared unlikely
that their sentences would be substantially lessened by the circuit court’s decision. That the Schechters, facing
imprisonment and financial ruin, would pursue an appeal to the United States Supreme Court seemed a
foregone conclusion. What was unexpected, perhaps, was the surprising announcement that the government,
overwhelmingly the victor, having won on seventeen of nineteen counts, would itself seek acceleration of the
appeal. Dropping the Belcher case, however necessary to prevent the legal collapse of the NIRA, had brought
criticism from within the regulatory community, and intensified pressure to bring a viable case before the high
court. Coming on the same day as the Belcher dismissal, the government’s near-total victory in the Schechter
circuit court decision offered the Justice Department a potential solution for its test-case dilemma. The
intersection of these two legal events was about to transform four Brooklyn poultry merchants and their
adversaries into the most important litigants in the country.
Just days after the dismissal of the Belcher case, and the simultaneous circuit court ruling in Schechter, the
Justice Department announced:
It is understood that the counsel for the defendants, Schechter and others, will immediately file petition for
writ of certiorari in the Supreme Court of the United States in respect to the seventeen counts decided against
them.
The Department of Justice will cooperate in expediting consideration of this petition. The Department will
itself make immediate application for writ of certiorari with respect to the two provisions of the code in
respect to which the government did not prevail.
Expressing optimism about the government’s decision to appeal the two counts lost in the circuit court, Donald
Richberg, the acting chairman of the NRA, predicted that the Supreme Court would side with the administration
on the wage and hour issues, making the government’s victory complete. The circuit court, he suggested, had
predicated its ruling on the peculiarities of the live poultry industry, while the Supreme Court would be
considering a wide range of industries and would therefore be more accepting of the government’s position. 25
Besides issuing positive predictions about the outcome of the case, the administration went to work
bolstering the image of Schechter as the perfect NIRA test vehicle. Ignoring the fact that the case had been
mostly discounted as a Supreme Court test until the day Belcher was dismissed, the Justice Department now
declared that Schechter was superior to Belcher because “1,647 pages of printed matter were at hand on the
Schechter case, including a great deal of testimony, whereas in the Belcher case only a brief list of charges and
a demurrer were available.” Another advantage of the case, continued the statement, was that it had been
argued by “Walter L. Rice, 31-year-old special assistant to Attorney General Cummings, who won the
24
United States v. A. L. A. Schechter Poultry Corporation.
25
New York Times, 5 April 1935; Ibid.
Hawaiian Sugar case for the government recently. . . . The Schechter case was fully tried on the facts in the
Federal district court and their record therefore adequately presents all of the constitutional questions
involved.”26
Posturing aside, some insiders seem to have sensed the danger, and they held their noses and hoped for the
best as they embraced the Justice Department’s decision. Former NRA head Hugh Johnson, who coined the
term “sick chicken,” called Schechter “an absurd case on which to hazard a great and sweeping policy.” For the
most part, however, the administration’s public relations efforts on behalf of the case appeared successful. “The
New Dealers have found a case that they like and a test of the Blue Eagle is on the way,” declared the Wall
Street Journal, adding, “The Belcher lumber test case which was dropped had involved just issues of plain law.
The new case has a heart throb. It is based in part on the alleged sale of diseased poultry to the helpless
public.”27
The “helpless public” was not the only target of the administration’s efforts to rehabilitate Schechter’s image.
There was a real and pressing need to shore up morale at the NRA and throughout the executive branch, and
this campaign, too, was succeeding. Arthur Krock of the New York Times reported on a newly improved morale
among officials of the NRA. Krock also described a virtually jubilant Roosevelt Justice Department that was
now openly acknowledging and rebutting rumors that the department itself had believed the NIRA
unconstitutional, and had been too frightened in this conviction to bring Belcher before the high court.
Asserting that the Schechter appeal had not only revitalized NRA morale, but was also breathing new life into
its flagging enforcement efforts, Krock optimistically concluded, “Not only is the compliance officer now given
more encouragement to hold violators to account; the violators themselves will think twice when they read of
what the Department of Justice is doing, and the legal status of the Schechter appeal.” 28
On April 8, 1935, Joseph Heller, still the Schechters’ principal attorney, filed briefs with the United States
Supreme Court. His primary arguments were unchanged. He asserted that the NIRA represented an illegal
delegation of congressional power to the president, and that the federal government had no jurisdiction over his
clients’ poultry market activities, which, he maintained, were strictly intrastate in nature, and therefore outside
the scope of the commerce clause.29
While the Schechters huddled with their attorneys, the Government, flush with newfound confidence in a
Supreme Court victory, was considering appending an additional case to its appeal of the circuit court’s ruling.
In United States v. Wilshire Oil Co., another California case with legal issues similar to those in Schechter, the
government had sought, and won, from California’s Southern District Court, an injunction against the oil
company for various violations of the NRA’s petroleum code. The court of appeals ruled that the petroleum
code did not overreach the limits of interstate commerce. The judges refused, however, to rule on the
delegation question, electing instead to “certify” that issue to the Supreme Court for final adjudication. Thus,
the government would go into the Supreme Court with not one, but two, circuit court rulings stating that the
NIRA did not violate the commerce clause. 30While attorneys were fighting for the life of the NIRA’s principles,
the statute itself was quietly dying. The law was scheduled to expire in its entirety on June 16, 1935. The
administration had always assumed that a new and improved version would be passed prior to that date, but that
was before the torrent of state and federal court challenges began. Anticipating certain death by the clock in the
absence of renewal, and possible Supreme Court curtailment of the act before that, the government was almost
26
New York Times, 5 April 1935;
27
Schlesinger, The Politics of Upheaval, 277-278; Wall Street Journal, 5 April 1935.
28
New York Times, 5 April 1935.
29
New York Times, 9 April 1935; Christian Science Monitor, 8 April 1935; Wall Street Journal, 9 April 1935.
30
New York Times, 9 April 1935.
frantic to have the Schechter case adjudicated as soon as possible. Speed was of the essence in order to increase
the amount of time in which to renew the law while complying with any Supreme Court objections.
The Roosevelt legal team’s thinking was that the NIRA, if scaled back by the justices well before the
expiration date, could be repaired and renewed. A negative court ruling coming shortly before, or any time
after, June 16, however, could bring disastrous political effects in the Senate. Indeed, some were now
suggesting that it was unrest in the Congress, and not merely protests by government regulators, that had driven
the administration to take up Schechter so quickly following the initial decision to abandon the Belcher appeal.
Some observers now saw the latter, in light of the problems posed by the looming expiration date of the NIRA,
as a grave blunder. The government’s seemingly confused and ambivalent stance on Belcher, suggested the
New York Times, “so encouraged [the NIRA’s] enemies in Congress, that the Schechter case—which . . . was
not highly thought of as a test . . . was quickly taken up, and now becomes a cause célèbre.” The government
had long been well prepared for Belcher, the Times observed, but Schechter was another matter. The paper
warned, “if the Supreme Court decision [in Schechter] is adverse in certain particulars, and is unsympathetic in
tone, a few Senators will be fortified in any plan they may have to stand out against the whole idea of NIRA
until June 16 has come and gone.” If the NIRA fully expired under such a legal cloud, concluded the Times, “it
would be difficult to resurrect it.” Under all of these conflicting pressures, but above all under the pressure of
time, the administration’s legal team, on April 11, filed briefs with the Supreme Court, seeking accelerated
consideration of the appeal, and asking that the case be argued during the first week in May. In retrospect, it is
clear that in devising strategies for coping with possible Supreme Court curtailment of the NIRA, few in the
administration acknowledged that the entire regulatory enterprise might be invalidated.31
While the Schechter case was unfolding in the judicial branch, the executive branch pulsed with activity, as
Roosevelt held a bipartisan conference of leading Senators at the White House. Their goal was to arrive at
some agreement about the NIRA prior to its looming expiration in June, but, in reality, both host and guests had
mixed motives. The leading proposal was a compromise measure developed by Senator “Champ” Clark of
Missouri and introduced by the chairman of the Senate Finance Committee, Pat Harrison of Mississippi, both
Democrats who had grown impatient with the NIRA. Clark sought to extend the life of the existing NIRA for
one year only, along with two modifications insisted upon by Senators Gerald Nye of North Dakota and
William Borah of Idaho, elimination of both the NIRA’s price fixing provisions, and those providing for the
regulation of purely intrastate commerce.32
In return for his support of the proposal, the Senators promised Roosevelt that the bill would sail smoothly
through the chamber, and suggested that this would give them more freedom to pursue the president’s other
priorities. Clark was not shy about his motivations, and later admitted that his goal was to keep the NIRA alive
long enough for the Supreme Court to declare it unconstitutional in the Schechter case. At first, Roosevelt
seemed to favor the plan, to the delight of his supporters, who wanted to save something of the old NIRA and
eventually pass a new one, and his enemies who, like Clark, sought to keep the inmate alive for its execution.
Suddenly, NRA chairman Richberg and Secretary of Labor Francis Perkins entered the room and strongly
advocated an entirely new NIRA, to last two years, and without the changes demanded by Nye and Borah.
Senator Robert La Follette of Wisconsin sided with Richberg, and together they convinced Roosevelt that new
legislation was the proper course. The meeting broke up with supporters of the compromise measure vowing to
continue to fight for it, and against the new proposal. Advocates on both sides of the issue were beginning to
dig in; Senator Borah contacted some of his constituents in Idaho, informed them that the federal government
had “no power” to meddle in intrastate commerce, and instructed them simply to ignore any code that purported
to do so.33
31
New York Times, 12 April 1935; New York Times, 16 April 1935; New York Times, 12 April 1935.
32
Chicago Daily Tribune, 1 May 1935; Washington Post, 1 May 1935; Washington Post, 2 May 1935.
33
Chicago Daily Tribune, 1 May 1935; Washington Post, 1 May 1935; Washington Post, 2 May 1935.
On May 2, 1935, oral argument began before the Supreme Court in A. L. A. Schechter Poultry Corporation
et al. v. United States. The proceedings were held in the US Capitol, in the old, ornate room that long ago, in
the days before the Civil War, had been the Senate chamber. Across the street loomed the vast white building
that within weeks would be the Supreme Court’s new home, but it was in this cramped room in the Capitol that
the fate of the NIRA would be decided. In the 1850s, with the nation in crisis, the chamber had been host to
many stormy debates concerning the balance between state and federal power. Now, nearly a century later,
with the country facing its greatest crisis since that time, a sequel to that old debate was to play out there.
The lawyers who stood before the bar that day faced a divided court—or assumed that they did. Despite
Richberg’s enthusiastic prediction that the Supreme Court would take a broader view of the NIRA codes than
had the lower courts, it is evident that the Schechters had the upper hand. Of the nine members of the court,
five—Chief Justice Hughes, Van Devanter, Sutherland, Roberts, and Stone were Republicans. They had been
nominated to the Court by some of the most conservative Republican presidents in history, Van Devanter by
Taft, Sutherland by Harding, Stone by Coolidge, and Roberts by Hoover. Hughes had in fact been named to the
Court twice, by Taft in 1910, and, long after resigning his post to run unsuccessfully for the presidency, by
Hoover, as Chief Justice, in 1930. While these facts did not predispose the five to extreme conservatism—
Stone, regarded as somewhat liberal, was reluctant to strike down legislation, and both Hughes and Roberts had
shown moderate tendencies—none of them had demonstrated clear support for the New Deal.34
Four of the justices were Democrats, but that number was misleading. Two of the four, Butler and Cardozo,
had been placed on the high court by Republicans, Butler by Harding, and Cardozo by Hoover. To the extent
that the Court had a left wing, Cardozo was certainly part of it, but Butler was a bitter critic of the New Deal
and the administration. Woodrow Wilson, a Democrat, had appointed McReynolds and Brandeis, but
McReynolds, by most accounts a disagreeable man, whose anti-Semitic views extended to personal
mistreatment of his two Jewish colleagues, despised Roosevelt’s programs, and had become a firm member of
the quartet known as the “Four Horsemen.” He, along with Butler, Sutherland, and Van Devanter, formed an
almost impenetrable conservative judicial barrier to progressive and New Deal legislation. By themselves, the
Horsemen would have been a formidable impediment to the administration, but since they commonly had the
support of their only slightly more flexible chief, they were able to strike down one Roosevelt initiative after
another.35
At times, depending on the philosophical nature of the case at hand, the conservatives found that they could
garner the support of Roberts, Cardozo, and Stone, and, on New Deal questions, even the liberal Brandeis, who
admired Roosevelt, but had a deep suspicion of the “centralization” that he believed lay behind the president’s
programs. For the time being, at least, the deck was stacked; Roosevelt’s subordinates must surely have thought
that they had no choice but to see the Schechter case through to an authoritative conclusion. Whatever
happened in the years to come, the Supreme Court was dangerous ground for the New Dealers in 1935.36
When the nine justices filed into the room on the first day of oral argument, the relatively small Supreme
Court Chamber in the Capitol was full of spectators. In a rare departure from decorum, the Court had even
permitted people to stand if they could find space to do so. The administration’s top litigator, Solicitor General
Stanley Reed, presented the government’s case. Reed told the justices that there was nothing new about the
34
Schlesinger, The Politics of Upheaval, 449-467; James MacGregor Burns, Roosevelt: The Lion and the Fox (New York:
Konecky and Konecky, 1956), 230-233.
35
Schlesinger, The Politics of Upheaval, 263-290, 449-467; John J. Patrick, The Supreme Court of the United States: A
Student Companion, 2d ed., (New York: Oxford University Press, 2000), 63-64, 159-160, 216. On McReynolds’ difficult personality
and anti-Semitism, see Schlesinger, The Politics of Upheaval, 456; see also Patrick, The Supreme Court of the United States, 48-49,
216; see also William Hellerstein, review of “The Forgotten Memoir of John Knox,” New York Law Journal, 21 June 2002 [journal
on-line]; available from http://www.law.uchicago.edu/news/lawyers_bookshelf.html; Internet; accessed 15 January 2005.
36
On Brandeis’s aversion to “bigness” and centralization, see Schlesinger, The Politics of Upheaval, 219-225, 280.
federal government extending its reach into areas traditionally managed by the states. Even were that not the
case, he suggested, little if anything about the poultry market in New York City was purely intrastate in nature.
He reiterated what the government had long held, that the New York market so dominated the national market
in poultry, that prices across the nation responded to what happened in places like the Schechters’
slaughterhouses. This, he argued, was true of the charges for which the Schechters convictions had been upheld,
and was likewise true for the wage and hour convictions that had been thrown out by the court of appeals.
Simply put, the things the Schechters and others like them had done, in the unique venue of New York, had
served to depress poultry prices across the nation to the detriment of all. This, he said, brought the enterprise
within the reach of the commerce clause.37
As was (and remains) traditional in oral argument before the Supreme Court, the attorneys’ presentations
were subject to unrestricted interruption and questioning by the justices. These were not long in coming.
Chickens in the New York market were sold by farmers to “commission men” who in turn sold the birds to
slaughterers like the Schechters, usually right in the railroad yard. From the beginning, the Schechters, in their
pleadings, had argued that when the chickens came into the hands of these first merchants, they “came to rest”
in the state of New York and that all transactions thereafter were purely intrastate in nature. During the
presentation, Justice Louis Brandeis interrupted Solicitor General Reed and simply asked, “From whom do the
slaughterers buy their chickens?” Though Reed gave a straightforward factual reply, the press accorded the
question great significance. Also noted were questions by justices McReynolds and Van Devanter. Justice
McReynolds raised the issue of “unfair competition,” in effect asking what it was, and who was to decide. Reed
stated that this determination was up to the industry and, because of his role in the approval of the codes, the
president. “Then if these poultry dealers decided it would be unfair to sell a black hen under that name, would
that be unfair competition?” asked Justice McReynolds. “I suppose it would if the President approved it,”
replied Reed. Justice Van Devanter broached the same topic, but in a fashion that seemed to the New York
Times to raise the specter of the Panama Refining case, a parallel that could only bode ill for the government.
Before Reed could respond to Van Devanter’s question, all were interrupted by Chief Justice Hughes. “You
can answer that question tomorrow,” declared the Chief Justice, and he gaveled the Court into recess. 38
On the second day of argument, Donald Richberg, acting chairman of the NRA, who had been appointed
special assistant to Attorney General Cummings so that he could participate in the case, took up the
administration’s presentation from the previous day. Richberg stressed the dire nature of the emergency that the
United States faced in the Depression. He described a disastrous deflationary spiral in which wages and prices
had chased one another into oblivion, destroying industries and lives in the process. The measures that
Congress passed in response to this disaster, he declared, were well within its authority under the commerce
clause. The NIRA, said Richberg, “was not a wishful declaration of good intentions, but a forceful declaration
of policy.” The ills in response to which it was created were doing devastating harm to interstate commerce,
and only Congress could redress them. Defending the NIRA’s wage control provisions, which had been
invalidated by the court of appeals, Richberg concluded that if the Congress could not respond to the “vicious
cycle of wage-cutting, then it is impotent indeed. . . . For the Court to pass on this case only as if it fitted into
the Schechter poultry case would be like trying to diagnose a case of scarlet fever by examining one small spot
on the skin.” Despite the dramatic appeal, the Chicago Daily Tribune reported that the justices whispered
among themselves, and sometimes seemed “indifferent” to Richberg. 39
When Richberg had completed his presentation, Joseph Heller, only in his late thirties, addressed the justices,
using his presentation to stress the local, and thus intrastate, nature of his clients’ enterprise. Heller was
colorful and humorous, and it could only have helped his case that he brought the normally august Court to
“gales of laughter.” In a brilliant performance marked by dry wit and thinly veiled sarcasm, he was able to
37
New York Times, 3 May 1935; A. L. A. Schechter Poultry Corp. v. United States, 295 US 495, 512 (1935).
38
Brooklyn Daily Eagle, 3 May 1935; New York Times, 3 May 1935; Los Angeles Times, 3 May 1935.
39
New York Times, 4 May 1935; Chicago Daily Tribune, 4 May 1935.
bring down ridicule upon provisions of the NIRA without being overtly disdainful of the law or the Court.
When asked for an explanation of the “straight killing” requirement that his clients were convicted of violating,
Heller replied, “Straight killing means you have got to put your hand in the coop and take out whichever
chicken comes to you. You hand the chicken to the rabbi, who slaughters it.” Seemingly amazed, Justice
McReynolds asked, “And it was for that your client was convicted? “Yes,” responded Heller, “and fined
$5,000 and given three months in jail.” Heller went on to relate the origin of the all-important conspiracy count
against his clients. A customer had come into the store, he explained, and wanted all of the chickens in a coop
but one. One of the Schechters, he said, tried to explain to the buyer that he had to “do straight killing” under
the code and that government officials were “watching” him. In the end, Heller told the Court, the buyer
walked out on the transaction and the Schechters were charged with conspiracy. Later, the Court burst into
laughter when Justice Sutherland stumped Heller by asking what one would do if all of the chickens in a given
coop retreated to one end. The justices’ laughter was so loud that that Heller’s answer was lost to history.40
The second part of the Schechters’ appeal was presented, with less levity, by Frederick H. Wood, a partner in
the Supreme Court-seasoned New York firm Cravath, de Gersdorf, Swaine, & Wood, to whom Heller had
turned in April when the case took on national proportions. Wood summed up the arguments that the
Schechters had been making since the previous year. His clients, he said, were engaged in intrastate commerce,
the fowl having “come to rest” when they came into the hands of the slaughterers. He went on to declare that
any interpretation of the facts and the law that could find his clients engaged in interstate commerce, could find
nearly all activities in such commerce. That, he said, would be the end of federalism and a step toward
government takeover of industry.41
At the end of the second day of argument, the Court adjourned, and by the following day, there was already
widespread speculation as to when it would decide the case, and what the nature of the ruling would be. The
New York Times reported on May 5 that some were suggesting, with no direct knowledge, that the Court, with
unaccustomed speed, had opened discussion of the case that very afternoon in its private session. Throughout
May, the worlds of government and business went about their activities ever mindful of Schechter, as the
sphinx-like Court wrestled with the complexities of the case. Finally, the Supreme Court announced that it
would hand down its ruling on Monday, May 27, 1935. 42
On the day of the decision, the Supreme Court Chamber in the Capitol was again filled from end to end. The
Schechter Brothers were not present, but awaited word in Joseph Heller’s legal office at 51 Chambers Street in
New York. Richberg sat with Solicitor General Reed, quipping that he felt as though he were about to be found
either guilty or not guilty. Chief Justice Hughes and the eight associate justices filed into the chamber. Some
preliminary business was disposed of, and it was then announced that Hughes would read the opinion of the
Court. As Hughes began to speak, Richberg became pale. “With unusual vehemence,” wrote the New York
Times, “the Chief Justice read the death knell of the NRA. He shifted in his chair, rocked back and forth, and
occasionally stroked his beard.” The Court had already been far more accommodating than usual with the tense
and eager crowd. When the chief justice made a particularly incisive point in his presentation, a man shouted,
“Hot dog!” and was immediately taken in hand by a Court official. It quickly became apparent that what had
been feared as a curtailment of the NIRA, was, in fact, a sweeping invalidation of the entire statute and the over
700 codes which had been promulgated under it. 43
The Court unanimously ruled that the National Industrial Recovery Act represented an unconstitutional
delegation of the legislative power, vested in the Congress, to individuals outside the legislative branch. This
40
New York Times, 4 May 1935; Chicago Daily Tribune, 4 May 1935; Los Angeles Times, 4 May 1935.
41
New York Times, 4 May 1935.
42
New York Times, 5 May 1935.
43
New York Times, 28 May 1935; Schlesinger, The Politics of Upheaval, 280.
position was best stated by Justice Cardozo who, in a concurring opinion, declared that the Congress could not
pass its lawmaking authority to a “roving commission” or to anyone else. “The delegated power of legislation
which has found expression in this case is not canalized within banks that keep it from overflowing,” wrote
Cardozo, borrowing his own words from the Panama Refining decision. “It is unconfined and vagrant.” 44
The Roosevelt administration would later suggest that it was not terribly concerned about the Court’s
position on the delegation issue, believing that more carefully written legislation could overcome that obstacle.
However, on the question of Congress’s authority over intrastate activities that affected interstate commerce, the
Court’s ruling was emphatic and devastating to the New Deal. The justices held that the Congress’s power over
interstate commerce was restricted to those matters that were actually involved in it, or to those intrastate
matters that had a real and “direct” effect upon it. “If the commerce clause were construed to reach all
enterprises and transactions which could be said to have an indirect effect upon interstate commerce,” said the
Court, “the federal authority would embrace practically all the activities of the people and the authority of the
State over its domestic concerns would exist only by the sufferance of the federal government.” The chickens
in the New York live poultry market, said the Court, were no longer in interstate commerce once they had
arrived there. “The flow in interstate commerce had ceased. The Poultry had come to a permanent rest within
the state.” 45
The long-simmering showdown between the New Dealers and the Supreme Court had finally reached its
climax. Nothing could better illustrate its seriousness than Arthur Schlesinger’s fantastic tale of an encounter,
immediately after the decision was announced, between Justice Louis Brandeis and Roosevelt Aid Tom
Corcoran. Schlesinger related that Corcoran, having been summoned to the justices’ robing room,
entered to find the justices disrobing. Brandeis, holding his arms aloft for a page to take off his robe, looked
to Corcoran for a moment like a black-winged angel of destruction. The old Justice had rejoiced in Hughes’s
opinion; he had noted on the draft, “This is clear and strong—and marches to the inevitable doom” Now he
said triumphantly to 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.
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.”
Schlesinger added that Brandeis turned to a clerk and said, “Now we can move ahead.”46 Devastated by the
Court’s ruling, Richberg and Reed “left the courtroom with downcast faces.” From there the two men retired to
the Justice Department to confer with Attorney General Cummings. Later, all three went to the White House to
meet with Roosevelt. That night, after the meeting with the president, Richberg came forward to plead for
ongoing voluntary cooperation with the terms of the invalidated codes, but otherwise announced an end to all
code enforcement by the Department of Justice. President Roosevelt would later castigate the Court for
crippling his efforts to save the country by imposing upon him a “horse-and-buggy” interpretation of interstate
commerce. 47 Across the country, some citizens and business interests wailed while others rejoiced. Few
seemed to have expected such a draconian ruling. In his office at 51 Broad Street, Frederick Wood, the
Schechters’ constitutional attorney, whose arguments before the Court paralleled so closely the eventual
outcome, proudly showed off a memento on his desk, a miniature chicken coop, complete with toy chickens—a
44
A. L. A. Schechter Poultry Corp. v. United States, 295 US 495, 551 (1935), Cardozo, J., concurring; New York Times, 28
May 1935. A. L. A. Schechter Poultry Corp. v. United States, Cardozo, J., concurring.
45
A. L. A. Schechter Poultry Corp. v. United States.
46
Schlesinger, The Politics of Upheaval, 280.
47
New York Times, 28 May 1935; Freidel, “The Sick Chicken Case,” 208.
gift from his wife when he first became involved in the case. Wood, while disavowing any belief that the
current Congress, or Roosevelt, desired to establish a dictatorship, made clear his belief that had the
administration prevailed, especially on the interstate commerce question, any future government could have
used the precedent to abolish the constitutional system. “The Supreme Court,” he said, “has done the country a
great service.”48 In the midst of victory, the Schechters’ immediate concerns were financial. On the night of the
ruling, Joseph Schechter, the head of the business, told the press that he was penniless, having paid only
$22,000 of a bill that totaled $60,000. Even before the case, he said, the New Deal had all but ruined him,
closing most of his facilities, and leaving him with one-tenth of the business he had enjoyed in 1934. “We
always claimed that the Code Authority attempted to make us the goat,” he said. “Our victory indicates that
American justice does not permit persecution.” No one ever revealed how the Schechters could have afforded
the services of so costly a law firm as Cravath, de Gersdorff, Swaine, and Wood.49 In the days and weeks
following the Supreme Court ruling, a number of business interests from across the country, grateful to the
Schechters for their role in bringing down the mighty NIRA, began efforts to raise money to defray some of the
brothers’ legal costs. A group in Chattanooga, Tennessee sent some funds, along with a carefully worded letter
indicating that their efforts were in no way intended to impugn President Roosevelt or his efforts to help the
country. A newspaper in Cambridge, New York raised thirty dollars. An anonymous citizen in Cincinnati sent
$100. When asked about the efforts, Joseph Schechter stated, “It is very nice for the people to help a citizen
along when he went broke for a principle. I am not looking for anything and I don’t expect anything, but this
has left me where I don’t know where my next meal is coming from. When I think of the business I did in 1934
and look at it now in 1935 it makes me sick.”50 The loss of the Schechter decision wreaked havoc, initially, on
the administration. The vitality of the early New Deal was lost, as the president was left to pursue reform in a
more calculated and piecemeal fashion, rather than through grand and overarching delegation schemes of the
NIRA variety. Roosevelt’s anger at the Supreme Court came to full flower after his landslide reelection in 1936.
He promptly revealed the existence of a plan to reorganize the Supreme Court in a way that would result in its
being “packed” with his supporters. Protests arose from across the country, and for the first time the president
learned that there were ventures into which the public would not follow even him. Adept at snatching victory
from defeat, however, Roosevelt saw even this costly setback turn in his favor. Alliances on the Supreme Court
began to shift. Perhaps in response to FDR’s failed “Court-packing” efforts, some justices began to support the
programs that made up the “Second New Deal”—the famous “switch in time that saved nine.” Those who
would not change retired. Thus, the president who “lost” the most important legal battle of the 1930s managed,
in his grinning and haphazard way, to win the war. Winning was his habit; he had no intention of abandoning
it. 51
As for the triumphant Schechters, theirs was a Pyrrhic victory. On the first anniversary of the ruling, at
about the time that President Roosevelt was beginning his phenomenally successful reelection campaign, a New
York Times reporter journeyed to the old family home at 412 Ralph Avenue in Brooklyn. On the house was a
“For Sale” sign, placed there by Prudential Savings Bank, which had initiated foreclosure proceedings against
the Schechters’ father. The few family members who still lived there were preparing to move out. The reporter
interviewed Mrs. Sarah Seligman, the poultry men’s sister, who said that the A. L. A. Schechter Corporation
was out of business. Aaron and Alex were running a small poultry store nearby, she said. Martin worked in
another. Joseph Schechter had no job at all. Oddly, she revealed that the brothers had been invited to the Texas
Centennial Celebration. They had declined some time ago, she said, but might now like to attend, should the
invitation be re-extended. The sister of the four Brooklyn poultry merchants, who had briefly tasted fame and
48
New York Times, 29 May 1935.
49
New York Times, 28 May 1935; Freidel, “The Sick Chicken Case,” 209.
50
New York Times, 1 June 1935; New York Times, 2 June 1935; New York Times, 1 June 1935; Brooklyn Daily Eagle, 28 May
1935.
51
Freidel, “The Sick Chicken Case,” 208-209.
now knew only ruin, then coined a fitting epitaph for their mighty legal struggle, which had changed American
history, yet still would be derided as “the sick chicken case.” “None of them has any money,” she told the
reporter. “Although a lot of people felt sorry for them afterward and promised to help them out, all they got
was a few ten-dollar bills and letters of congratulation.”52
52
New York Times, 24 May 1936.
WORKS CITED
A. L. A. Schechter Poultry Corp., et al. v. United States, 295 US 495 (1935).
Brooklyn Daily Eagle.
Burns, James MacGregor. Roosevelt: The Lion and the Fox, New York: Konecky and Konecky, 1956.
Chicago Daily Tribune.
Christian Science Monitor. 8 April 1935.
Freidel, Frank. “The Sick Chicken Case,” In Quarrels that have Shaped the Constitution, ed. John A.
Garraty, 191-209. New York: Harper & Row, 1964.
Hellerstein, William. Review of The Forgotten Memoir of John Knox, by John Knox, ed. Dennis J.
Hutchinson and David J. Garrow. New York Law Journal (June 21, 2002),
http://www.law.uchicago.edu/news/lawyers_bookshelf.html (accessed January
Lieberman, Jethro. “The Uncertain Cackle of the Sick Chicken: A.L.A. Schechter Poultry Corp. v. United
States.” In
Los Angeles Times. 3-4 May 1935.
New York Times. 27 July 1934-24 May 1936.
Panama Refining Co. v. Ryan, 293 US 388 (1935).
Patrick, John. The Supreme Court of the United States: A Student Companion, 2d ed.
Schlesinger, Arthur, Jr. The Politics of Upheaval: 1935-1936. The Age of Roosevelt. Boston: Houghton
Mifflin, 1960.
United States v. A. L. A. Schechter Poultry Corporation et al., 76 F.(2d) 617 (1935).
United States v. Schechter et al., 8 F. Supp. 136 (E. D. NY 1934).
Wall Street Journal. 5-9 April 1935.
Washington Post. 1-2 May 1935.