The Constitution in Action within the Early New Deal State
Daniel R. Ernst
Georgetown University Law Center
In recent years, “administrative constitutionalism” has emerged as an interdisciplinary concept
within public law and legal historical scholarship. To date, exchange across the disciplinary
border has been easy, not least of all because boundary line sometimes bisects scholars trained in
both fields. Even so, each camp has approached the topic with different disciplinary premises.
The public lawyer Gillian Metzger, for example, has been after the part administration plays in
the entire process “by which constitutional meaning is elaborated and implemented today.” She
appreciates historical studies of administrative constitutionalism, which have focused on the
“interpretation of the U.S. Constitution by agencies and agency officials,” for revealing whether
the “potential benefits” of constitutional interpretation by administrators have “play[ed] out in
practice.” But, she points, out, constitutional meaning about administration can be found
elsewhere. For example, “actions of agency officials and agency-developed structures and
practices” have also “constituted” the administrative state. And entrenched legislation and
judicial doctrines have asserted “basic normative conceptions” about “proper administration,”
even when not expressly grounded in constitutional texts.1
For their part, legal historians have been less interested in describing and evaluating the
administrative component of American constitutionalism than in showing what administrators
and those appealing to them were trying to do in making constitutional arguments. Call their
work the study of “administrative constitutionalism in action.” For some, the action took place
in American society, as workers sought leverage against their employers, aliens sought
citizenship, the poor sought welfare payments, and conscientious objectors sought their freedom.
The action also took place within the American state. Constitutional argument was never the
only way to shape the administrative state, but it had distinct advantages in times of great
political change that upset settled fundamental assumptions of governance. In particular, it
could be a powerful tool for subjecting the discretion of administrators to law and to the
authoritative interpreters of law, the members of the legal profession.
The New Deal vividly illustrates how lawyers used law and the constitution to acquire,
assert, and institutionalize professional authority within their agencies. In so doing, they helped
keep the United States a liberal democracy. The process was most dramatic for two agencies
created in the first hundred days of Franklin D. Roosevelt presidency, the National Recovery
Administration (NRA) and the Agricultural Adjustment Administration (AAA). Ira Katznelson
has argued that the passage of the National Industrial Recovery Act (NIRA) “initiated the most
radical economic policy moment in American history.”2 New Deal lawyers kept its and its
agricultural counterpart’s potential for radical change–to the right or to the left–from being
realized.
The sociologist Terence Halliday’s distinction between the technical and normative
authority of professionals provides a useful starting place. Technical authority arises from the
special expertise of the professional. For lawyers, Halliday mentioned “skill in understanding
statutes, drafting contracts, and executing corporate mergers,” which may be exercised “without
taking an explicit stand on what the law should contain.” Normative authority relates to “broad
issues of public policy concerning which every citizen should be in a position to come to a
decision.” Lawyers are most authoritative when they invoke their technical authority, but
because they have “technical authority in a normative system”– that is, the law–they have “an
unusual opportunity to exercise moral authority in the name of technical advice.”3
During the first two years of the New Deal, lawyers at the NRA and AAA made the most
of the opportunity Halliday identified. Congress had hurriedly created their agencies with broad
delegations and little other guidance to resolving the innumerable conflicts they would
inevitably confront as they exercised vast discretion over American industry and agriculture. As
far as NIRA’s text went, the philosopher Horace M. Kallen aptly observed, the statute “may lead
us toward democracy in industry. It may lead us toward fascism.” Whoever implemented it
would “make it an instrument toward one end or the other.”4
At both agencies, administrators came overwhelmingly from industry and sought to
escape an antitrust regime that mandating what they considered outdated and destructive price
competition. An extensive and sophisticated literature on cost accountancy made a publicregarding case for “regulated competition.”5 Others accepted industrial codes and agricultural
marketing agreements as emergency measures needed to arrest a catastrophic deflationary
spiral.6 In contrast, the agencies’ lawyers feared that the cartelization of the economy would
hurt consumers, small producers, and labor. They repeatedly clashed with their ostensible
clients. Thus, Louis Jaffe characterized his time at AAA as “a fight of fringe New Dealers
against what actually could pretty much be seen as a scheme for propping up lots of big farmers
and increasing the price of wheat.” He “accepted without question” that the legal division was
“out to gain certain social objectives” and to ensure that “big farmers . . . didn’t get too much.”7
In an assertion of their technical authority, the lawyers projected their own preferred
policies onto legal texts and then insisted that administrators follow their interpretations.
Whether the lawyers or the administrators or lawyers prevailed depended on the preferences and
resolve of the agency head. When the NRA’s lawyers objected that the proposed Lumber Code
would be ultra vires NIRA, the administrator ib charge claimed not to see how the lawyers had
raised “a legal objection” and won.8 At AAA, Jerome Frank did not help his cause by publicly
deriding “the prevalent notion that the ‘law’ at any given period of time is moderately well
known or knowable” and by asserting–in an address reprinted in the Congressional Record–that
lawyers could always find a way to interpret ambiguous statutes so as to arrive at what they
thought was a desirable result.9 As long as he had the backing of Agriculture Secretary Henry
Wallace, Frank could acknowledge that it was “impossible to draw a nice line between policy
and law” and still have his way in the marketing agreements negotiated by his enormously able
assistant Lee Pressman. But when he and his other principal assistant, Alger Hiss, took
sharecroppers’ side in a contractual dispute with powerful cotton planters, Wallace decided that
Frank “had nothing to stand on” from “a legal point of view” and was merely asserting his own
“social preconceptions.” He allowed the AAA’s administrator to fire Frank and his lieutenants.10
2
How did the bureaucratic politics of professional authority change when the law in
question was neither statutory nor contractual but constitutional? An answer must account for
relations between agency lawyers and three different groups: their own administrators,
Department of Justice lawyers, and Supreme Court justices.11 Generalizing from these conflicts
is perilous, because the dire economic circumstances and sudden burst of state-building of 193335 make those years atypical. Still, the battles of NRA and AAA lawyers are instructive. In
them originated a form of constitutional politics that persists to today.
Start with the lawyers and their administrators. The historian Daniel Rodgers has written
that after the Civil War, lawyers used judicial review to seize “a vital chunk of power” from
legislators and spiral “it upward into the hands of higher, state arbiters.”12 In clashes with
administrators, NRA and AAA lawyers attempted a similar game of keep away. At NRA, the
Lumber Code was particularly contentious, because of its unusually broad delegation of power
to a business-dominated code authority. “When you tried to do something,” a lumberman on the
code authority remembered, “you ran against this government wall.” One incident that stayed
with him involved the very able and knowledgeable lawyer Bernice Lotwin, whom he could only
remember as “some Jew lawyer they had there.” “She said we couldn’t do something because it
was unconstitutional,” he recalled. “I said, ‘Well, of course, that might be true, but so is your
NRA unconstitutional.’”13
At AAA, Lee Pressman led the charge in the battle over marketing agreements. In
December 1933 Pressman sought advice from his former constitutional law professor Thomas
Reed Powell on which cases arising in the milk industry were most likely survive a
constitutional challenge. Pressman was particularly concerned about Louis Brandeis’s vote. At
one of his famous teas, the justice heard Pressman out on AAA’s attempt to curtail production
and fix prices and but then only vaguely opined that “there’s something wrong with these big
agencies.” The AAA lawyer evidently hoped that Powell would agree that to get Brandeis’s
vote, the agency should not pursue smaller firms. As Powell reported to Felix Frankfurter,
Pressman wanted to use Powell’s constitutional prognostications “as a lever to influence the
policy of the Agricultural Administration,” whose chief was “altogether too favorably inclined to
the big people.”14
That Pressman turned to Powell was not surprising. Although no single scholar brought
legal realism to constitutional law, none who did was more influential with New Dealers.15 “The
general tradition in the Law School,” recalled Charles E. Wyzanski, Jr., “was to teach law as a
kind of disembodied set of principles which you could understand without being concerned with
who it was who announced them and what had been said by these same men on previous
occasions.” Powell broke with it by teaching constitutional law as “the development of a single
court and how particular individuals develop doctrine.”16 He believed that students could only
learn how to distinguish between what a “court does and what it says it does” through the close
reading of many cases and that, as a practical matter, this could only be done for just “a few
major topics.” Students had to cull “the essential from the unessential” in judges’ recitals of fact
and discussion of precedents.17 They had to detect “practicalities not likely to be expressed in
3
opinions in which the court pretends that the case is being decided by its predecessor rather than
by itself.” They had to appreciate how particular judges made “practical adjustments” of
doctrine to resolve “competing considerations.” Doctrine was essential in “opinion writing,” but
it was less important to “decision-reaching” than “the temper, as well as the outlook, of the
judges before whom the issues chance to come.”18
His best students became converts. After “microscopically” analyzing Adkins v.
Children’s Hospital for three months, Wyzanski claimed, attentive students understood how
courts had applied the Fourteenth Amendment to “regulation, labor, and allied problems,” how
earlier cases could and could not be distinguished, and the philosophies of the judges who
decided them. In effect, they prepared and argued Adkins from trial to the Supreme Court. At
that point, Pressman recalled, the question was how “nine, or rather, five, age-worn guys” would
react to the facts of the case and the news of the day while the case was before them.19
Today an understanding of constitutional law premised on the “determining count of five
heads” is so familiar that its novelty in the early New Deal is easily missed.20 By emphasizing
the personal predilections of the sitting justices of the Supreme Court, the realist approach
changed the ante needed to get into the game of constitutional interpretation, with lasting
consequences for the politics of professional authority within the executive branch. Skill at a
priori reasoning from text, precedents, and principles no longer sufficed; one also needed a
particularized knowledge of the justices few could acquire. A full-time Court watcher on a law
faculty might obtain it. Powell, the prototype, was especially influential, particularly during the
1933-34 academic year as Frankfurter sojourned at Oxford. Pressman, as we have seen, traveled
to Cambridge to consult his constitutional oracle. As Michelle Dauber showed in The
Sympathetic State, proponents of rival versions of unemployment insurance each invoked
Powell’s authority. Assistant Solicitors General and other government lawyers asked him to
review their briefs throughout the 1930s.21
Still more authoritative were Court watchers with personal access to the thinking of the
justices. Felix Frankfurter’s close relationship with Louis Brandeis and skillful cultivation of
Harlan Fiske Stone made him a unique case, but legal secretaries might also acquire a
particularized knowledge of the justices. Although Frankfurter deprecated “secretaries who
tittle-tattle too much on what comes to them in their confidential relations” when their advice
rant counter to his own, no one did more to funnel clerks from the Court to the Solicitor
General’s office.22 Other constitutional realists also valued what they gleaned from clerks.
When Wyzanski attributed his sensationally effective appearances before the Supreme Court in
1937 to “the methods of Reed Powell,” he neglected to mention that his preparation included
conversations with Stone’s clerk in the preceding term.23
Until early 1935, realist constitutional law held greater sway in the New Deal agencies
than in the Department of Justice. At AAA, for example, Frank believed that “judges,
confronted with a difficult factual situation, consciously or unconsciously, tend to commence
their thinking with what they consider a desirable decision and then work backward to
4
appropriate premises.” On his staff was a recent Holmes clerk, Alger Hiss. At Justice, in
contrast, the solicitor general was J. Crawford Biggs, a country lawyer from North Carolina.
Wyzanski remembered him as “totally lack[ing] any ability to make any argument except on
behalf of his state in connection with larger allowances of money for public works.”24 His
contemporaneous judgment was scarcely less harsh. “Judge Biggs is an incredible choice,” he
wrote to Augustus Hand after a dinner with the solicitor general. His practice had mostly
consisted of “tort cases (particularly railroad accidents), land damage suits (overflow of riparian
streams, etc.) and similar country legal topics. He is a delightful man socially but will be a
preposterous figure in complicated litigation.”25
The Assistant Attorney General for the Antitrust Division, Harold M. Stephens, who
supervised agency-related litigation, did employ some Harvard law graduates, including Moses
Huberman, Jaffe’s roommate in Washington, who spoke the New Dealers’ constitutional
language.26 But Stephens constantly sparred with agency lawyers who rejected his
nonconsequentialist constitutional jurisprudence and, as he saw it, harbored “a somewhat
sophistical and opportunistic viewpoint with respect to law and the courts.”27 The clash in
constitutional approaches surfaced in December 1933, when, in a speech delivered at the
Association of American Law Schools, Frank contrasted a Stephens-like character, “Mr.
Absolute,” with a typically realist member of the AAA legal division, whom he dubbed “Mr.
Try-It.”28
The conflict came to a head during constitutional challenges to NIRA. Stephens’s
argument in December 1934 in Panama Refining, a challenge to NIRA’s “hot oil” provisions,
was a widely noted debacle. After the Court decided the case against the government in January
1935, NRA and Justice Department lawyers quarreled over whether to risk a defense of the
lumber code in another case. Frankfurter’s intervention proved decisive. After the successful
argument of the Gold Clause Cases by Stanley Reed, general counsel of the Reconstruction
Finance Corporation (RFC), on a brief by his Harvard-trained junior Paul Freund, a former
Brandeis clerk, Frankfurter persuaded Roosevelt to replace Biggs with Reed.29 He also
convinced the president that the lumber code’s delegation was indefensible before the current
Court.30 His warning that an appeal of a prosecution under the Poultry Code should be opposed
because the “fundamental situation of the Court [had] not changed” arrived too late. The
Schechter decision, striking down the NRA, was the result.31
After Schechter, Reed, who at RFC had hired whatever Harvard law graduate Thomas
Corcoran recommended to him, staffed the solicitor general’s office with young constitutional
realists including Freund and at least four other Supreme Court clerks.32 Wyzanski took a 25
percent pay cut when he left the solicitorship of the Labor Department to “go to the job that I
always most wanted” and argue cases before the Supreme Court.33 Billed as knowing how “to
avoid all the social prejudices of socially biased judges in presenting the strictly legal phases of
contentious issues,” he lived up to expectations. “Say, the best thing the New Deal’s done is
bring this fellow Wyzanski down to Washington,” Justice Owen Roberts told Secretary of Labor
Frances Perkins in May 1937. “He makes these statutes clear and reasonable.”34 Not only did
5
Wyzanski’s celebrated defenses of labor and social security acts earn him a reputation as “the
most brilliant of the government advocates.” It also legitimated a style of constitutional
argument and an elite cadre of constitutional interpreters situated within the Department of
Justice.35
Viewed from the perspective of the bureaucratic politics of professional authority,
relations between agency lawyers and the justice of the Supreme Court justices take on an
unexpectedly complementary aspect. The titles or subtitles of histories of the New Deal and the
Supreme Court emphasize conflict between the two camps. The Roosevelt administration and
the Hughes Court engaged in a “duel,” an “epic battle,” even a “great constitutional war” in the
combatants vied for “supreme power.”36 Take the long view, however, and what Barry Cushman
has called “the consultative relationship” between the two branches, easily lost in the justices’
impassioned dicta and the furor over FDR’s Court-packing plan, becomes salient.37
Consider the remarks of Chief Justice Charles Evans Hughes on two occasions in 1931.
In February he told a gathering of government lawyers that the withdrawal of a “host of
controversies as to private rights” from the courts was “the distinctive development of our era.”38
Although some justices sought to obstruct this transformation, Hughes did not. In September he
faulted his predecessor Roger Brooke Taney for supposing that “the imperious question” of
slavery “could be put at rest by a judicial pronouncement.”39 To Hughes, the social forces
requiring legislative delegations to administrative agencies were scarcely less imperious.40
Of course, the chief justice recognized that legislatures’ entrusting “the business of
regulation” to administrative agencies had its own perils. “In the light of some unexpected
situation,” Hughes told the government lawyers, even the best drafted statute became “strangely
ambiguous.” Administrators would often have an opportunity “to force statutes to an extreme
construction.” Fact finding provided another way to deflect “administration through political
policy or favor.” “An unscrupulous administrator might be tempted to say, ‘Let me find the
facts for the people of my country, and I care little who lays down the general principles.’”41
In part, Hughes’s solution was the preservation of weight-of-the-evidence review of
agency fact finding, but only, as Mark Tushnet has argued, for a narrowly defined category
facts.42 Also, in the Morgan decisions of 1936 and 1938, he insisted that agencies’ formal
adjudication approximate the ordinary legal manner of the ordinary courts of the land, a move
that empowered lawyers outside of the government.43 But Hughes also looked to agency lawyers
to police administrators. “If in your special tasks, representing the greatest of all clients, you
stay true to the standards of your profession,” he told them in 1931, “you may well turn out to be
the protectors of society from bureaucratic excesses.”44 In January 1935, his Court did its part
by holding in Panama Refining that the Due Process Clause imposed upon the federal executive
an obligation to support its exercises of legislative power, such as the promulgation of NRA
codes, with judicially reviewable findings of fact.45
NRA lawyers, who had long warned administrators that they needed to gather evidence
6
to justify code provisions, realized that the Court had thrown them a lifeline. The “requirement
of findings, if complied with, goes a long way toward justifying delegation,” Milton Katz told
the NRA’s general counsel. “If not complied with, NRA actions [are] likely to be ultra vires the
Act. Findings must be real findings.” Another NRA lawyer hoped that administrators would
“derive a good lesson” from Panama Refining.46 For the remainder of NRA’s life, its lawyers
made the most this judicial endorsement of their technical authority.47
So would later agency lawyers of varying political persuasions. At the Bituminous Coal
Division from 1939 to 1941, general counsel Abe Fortas and his first assistant Harold Leventhal
controlled price-setting by having a team of young lawyers draft the reports of trial examiners.48
At the Office of Price Administration, general counsel Douglas Ginsburg accused the head of the
Price Division, John Kenneth Galbraith, of attempting “to act without check of any kind” as they
quarreled over the meaning of “fair and equitable prices” in the Emergency Price Control Act of
1942.49 At the War Production Board, where a more conservative lawyer, John Lord O’Brian,
served as general counsel, lawyers also insisted that administrators back allocation and priority
orders with adequate evidence.50
To conclude: administrative constitutionalism has a political history. In the New Deal,
that history surely included sharp clashes and bitter conflict, but it also consisted of incremental
and carefully considered accommodations aimed at making courts and agencies “collaborative
instrumentalities of justice.”51 Pace Frankfurter, these accommodations were not a phase of
some inevitable adjustment of law to modernizing society but a political process in which rivals
jockeyed for advantage.52 Sometimes the rivals were lawyers, but the lawyers’ rivalry had its
limits. When confronted with a thoroughgoing challenge to the authority of the legal profession,
they closed ranks and used the Constitution to preserve a decisive role for themselves in the
federal administrative state.
7
1.
Gillian E. Metzger, “Administrative Constitutionalism,” Texas Law Review 91 (2013):
1910-11, 1922, 1929, 1901, 1900.
2.
Ira Katznelson, Fear Itself: The New Deal and the Origins of Our Time (New York:
Liveright, 2013), 232.
3.
Terence C. Halliday, Beyond Monopoly: Lawyers, State Crises, and Professional
Empowerment (Chicago: University of Chicago Press, 1987), 37-41.
4.
Horace M. Kallen to Robert F. Wagner, June 14, 1933, box 220, Wagner MSS. “The
content of the law was likely to depend upon the ideas and preconceptions of its
administrators,” wrote Ellis W. Hawley. “Within a single piece of legislation, the
authors of the measure had made room for the aspirations and programs of a variety of
economic and political groups; but in phraseology that could be used to implement any
of several policies they had laid the basis for future confusion and controversy.” The
New Deal and the Problem of Monopoly: A Study in Economic Ambivalence (Princeton,
NJ: Princeton University Press, 1966), 20-21.
5.
Gerald Berk, Louis D. Brandeis and the Making of Regulated Competition, 1900-1932
(New York: Cambridge University Press, 2009); Gerald Berk,“The National Recovery
Administration Reconsidered, or Why the Corrugated and Solid Fiber Shipping
Container Code Succeeded,” Studies in American Political Development 25 (2011):
56-85; Laura Phillips Sawyer, “The U.S. Chamber of Commerce and State-Building:
Trade Associations, Antitrust Reform, and the Administrative State, 1912-1925,” in
Business and Politics in the 20th Century, ed. Richard John and Kim Phillips-Fein
(Philadelphia, PA: University of Pennsylvania Press, forthcoming).
6.
Donald F. Brand, Corporatism and the Rule of Law: A Study of the National Recovery
Administration (Ithaca, NY: Cornell University Press, 1988), 116. Robert F.
Himmelberg, The Origins of the National Recovery Administration: Business,
Government, and the Trade Association Issue, 1921-1933, rev. ed. (1976; New York:
Fordham University Press, 1993), 181-218, documents the rebranding of antitrust
revision as a recovery measure in 1933.
7.
Louis L. Jaffe, interview by Jerold S. Auerbach, July 10 to September 22, 1972, 94, 68,
67, box 38, Dorot Jewish Division Oral Histories, New York Public Library. For NRA,
see Blackwell Smith, My Imprints on the Sands of Time: The Life of a New Dealer (New
York: Vantage Press, 1993), 113-16.
8.
Daniel R. Ernst, “Lawyers and Bureaucratic Autonomy at the National Recovery
Administration,” conference paper, 2014.
9.
Jerome N. Frank, “Realistic Reflections on ‘Law’ as a Constructive Social Force,” June
16, 1933, box 166, ser. 6, Frank MSS; Jerome N. Frank, “Experimental Jurisprudence
8
and the New Deal,” Congressional Record 73 (June 18, 1934): 12413.
10.
Peter H. Irons, The New Deal Lawyers (Princeton, NJ: Princeton University Press, 1982),
118-32, 156-80.
11.
Compare ibid., 10-14.
12.
Daniel T. Rodgers, Contested Truths: Keywords in American Politics Since
Independence (New York: Basic Books, 1987), 154, 149.
13.
Reminiscences of R. R. Macartney, 24-25, Columbia Oral History Center, Columbia
University, 1955. Similarly, the code authority’s executive officer blasted lawyers and
others “deep down in NRA” for being “ill-informed reformers” or the dupes of the
industry’s “malcontents,” presumably, proprietors of marginal lumber mills bankrupted
by the code. David Townsend Mason, The Lumber Code (New Haven, CT: Yale
University School of Forestry, 1935), 27.
14.
Thomas Reed Powell to Felix Frankfurter, December 6, 1933, box A, Powell MSS.
(Confirm: “lever” or “leverage.”)
15.
Michelle Landis Dauber, The Sympathetic State: Disaster Relief and the Origins of the
American Welfare State (Chicago: University of Chicago Press, 2013), 69-73. Erwin
Griswold credited Powell with laying the “intellectual foundations” of mid-century
constitutional law. “In the twenties he was an unorthodox and somewhat irreverent
teacher of fledgling students,” Griswold wrote. “In the thirties and forties some of his
students were no longer fledglings, and his influence was widely felt.” “Thomas Reed
Powell,” Harvard Law Review 69 (1956): 794. Griswold remembered Powell’s course in
1927-28 as “stimulating, penetrating, and illuminating.” Erwin N. Griswold, Ould Fields,
New Corne: The Personal Memoirs of a Twentieth Century Lawyer (St. Paul, MN: West
Publishing Co., 1992), 70. It was still captivating in 1934-35, when Joseph Rauh took it.
Victor H. Kramer, “Recalling T. R. Powell’s Course in Constitutional Law,”
Constitutional Commentary 5 (1988): 159-61.
16.
Reminiscences of Charles E. Wyzanski, Jr., 1959, 98-99, Columbia University Oral
History Collection, Columbia University.
17.
Thomas Reed Powell, review of Cases on Constitutional Law, by Dudley O. McGovney,
Harvard Law Review 44 (1931): 484-85.
18.
Thomas Reed Powell, “Memorandum on Abolishing Course Examinations,” n.d., box A,
Powell MSS, quoted in John Braeman, “Thomas Reed Powell on the Roosevelt Court,”
Constitutional Commentary 5 (1988): 14; Thomas Reed Powell, “The Judiciality of
Minimum-Wage Legislation,” Harvard Law Review 37 (1924): 573.
9
19.
Wyzanski, Reminiscences, 107; Reminiscences of Lee Pressman, 1956-59, 12, Columbia
University Oral History Collection, Columbia University.
20.
Powell, “Judiciality,” 572.
21.
Dauber, Sympathetic State,154-58; Powell to Paul Freund, November 7, 12, 1935,
November 3, 1938, Powell to Abe Feller, December 4, 1936, box A, Powell MSS; Irons,
New Deal Lawyers, 250.
22.
Frankfurter to Powell, December 18, 1933, box A, Powell MSS. Frankfurter’s efforts
predate the New Deal. He urged Herbert Hoover’s second Solicitor General, Thomas D.
Thacher, to “annex” Thomas Austern after his secretaryship with Brandeis, without
success. Erwin Griswold was already in the office, having been hired by Charles Evans
Hughes, Jr. Griswold was deemed too socially maladroit to be Holmes’s legal secretary
and lost out to Henry Friendly for the clerkship with Brandeis. He credited Austin W.
Scott, not Frankfurter, for his job with Hughes, although Frankfurter did commend him to
Thacher as “an A1 lawyer with a wide range of knowledge, of sober judgment and
discrimination, and a glutton for work.” Griswold remained in the office until July 1934.
Frankfurter to Thacher, April 23, 1929, December 22, 1930, reel 65, FF-LC MSS;
Griswold, Oulde Fields, 75, 79, 109.
23.
Wyzanski, Reminiscences, 107; Wyzanski to Maude J. Wyzanski, January 11, October
18, 1936, box 22, Wyzanski-MHS MSS.
24.
Charles E. Wyzanski, Jr., interview by Terry L. Birdwhistell, May 7, 1984, Louie B.
Nunn Center for Oral History, University of Kentucky Libraries. In place of their
respective principals, Labor Secretary Frances Perkins and Attorney General Homer
Cummings, Wyzanski and Biggs sometimes attended meetings of an interdepartmental
committee that ostensibly oversaw the Public Works Administration.
25.
Wyzanski to Augustus N. Hand, September 15, 1933, box 26, Wyzanski-MHS MSS. To
his parents, Wyzanski reported that Biggs spoke “glowingly of the work that had been
accomplished by the Ku Klux Klan in the years following the Civil War.” Wyzanski to
Charles E. and Maude J. Wyzanski, July 9, 1933, box 22, ibid.
26.
Jaffe, interview, 56; Robert L. Stern, in The Making of the New Deal: The Insiders
Speak, Katie Louchheim (Cambridge, MA: Harvard University Press, 1983), 79.
27.
Harold M. Stephens to L. R. Martineau, March 10, 1934, box 130, Stephens MSS. See
see Irons, New Deal Lawyers, 12, 143-46, 152-55; Daniel R. Ernst, “State, Party, and
Harold M. Stephens: The Utahn Origins of an Anti-New Dealer,” Western Legal History
14 (2001): 123-57.
28.
Frank, “Experimental Jurisprudence,” 12413.
10
29.
United States v. Bankers’ Trust Co. 294 U.S. 240 (1935); Felix Frankfurter to Paul A.
Freund, July 26, 1934, box 15, Freund MSS. Even after his argument in Panama
Refining, Stephens, who had been building “a splendid brief-writing section” in the
Antitrust Division that included Abe Feller and Robert Stern, still believed himself a
viable candidate for the solicitor generalship. Stephens thought it “really quite unjust
that Reed should now come in, a stranger to the Department, and have the advantage of
all my organization work, without having done anything, so far as the Department is
concerned, to earn it.” Stephens to Martineau, April 30, 1935, box 130, Stephens MSS;
see Stern, in Making of the New Deal, 79-80.
30.
Quoted in Irons, New Deal Lawyers, 82. See John D. Fassett, New Deal Justice: The Life
of Stanley Reed of Kentucky (New York: Vantage Press, 1994), 83-84 .
31.
Thomas G. Corcoran to Franklin D. Roosevelt, April 4, 1935, in Roosevelt and
Frankfurter: Their Correspondence, 1928-1945, ed. Max Freedman (Boston: Little,
Brown and Co., 1967), 260. As Victor Kramer had it from Joseph Rauh, Powell
predicted a win for the government in Schechter. Kramer, “T. R. Powell’s Course,” 161.
32.
They were Hiss, Charles Horsky, Warner W. Gardner, and Harold Leventhal. Willard
Hurst declined an offer to join Reed’s staff after his clerkship with Brandeis in 1937.
Daniel R. Ernst, “Willard Hurst and the Administrative State: From Williams to
Wisconsin,” Law and History Review 18 (2000): 34. For Reed’s willingness to hire
Frankfurter’s students, see Paul A. Freund, interview by Jerold S. Auerbach, 1971-9172,
102-03, Dorot Jewish Division Oral Histories, New York Public Library.
33.
Wyzanski to Henry Bragdon, November 5, 1974, box 27, Wyzanski-MHS MSS;
Wyzanski, interview by Birdwhistell.
34.
HLS to Thomas G. Corcoran, March 20, 1935, box 9, Freund MS; Wyzanski to Maude J.
Wyzanski, May 28, 1937, box 22, Wyzanski-MHS MSS.
35.
Paul Freund, in Making of the New Deal, 96. The liberal elite of New York City’s
corporate bar feted Wyzanski after he left the administration. Wyzanski to Lloyd Cutler,
June 9, 1986, box 24, Wyzanski-MHS MSS. See also “Wagner Case Victor Smokes 2
Dozen Pipes,” Washington Post, April 14, 1937, 26; “Young New Dealer Bats 1000:
“Charles Wyzanski of Harvard Law School Knocks Out Seven High Court Homers,” n.d.,
box 51, entry 132, inventory A1, Department of Justice Records (RG 60), National
Archives.
36.
Leonard Baker, Back to Back: The Duel between FDR and the Supreme Court (New
York: Macmillan, 1967); James F. Simon, FDR and Chief Justice Hughes: The
President, the Supreme Court, and the Epic Battle over the New Deal (New York: Simon
& Schuster, 2012); Marian C. McKenna, Franklin Roosevelt and the Great
Constitutional War: The Court-Packing Crisis of 1937 (New York: Fordham University
11
Press, 2002); Jeff Shesol, Supreme Power: Franklin Roosevelt vs. the Supreme Court
(New York: W. W. Norton, 2010).
37.
Barry Cushman, “The Hughes Court and Constitutional Consultation,” Journal of
Supreme Court History 1 (1998): 80.
38.
“Important Work of Uncle Sam’s Lawyers,” American Bar Association Journal 17
(1931): 238. Hughes delivered this address the day before the government filed its
petition for certiorari in Crowell v. Benson. Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for the Fifth Circuit, and Brief in Support
Thereof, Crowell v. Benson, 285 U.S. 22 (1932) (No. 19).
39.
Thomas Reed Powell to J. N. Ulman, January 27, 1937, Powell MSS, quoted in Arthur
M. Schlesinger, Jr., The Politics of Upheaval (Boston: Houghton, Mifflin, 1960), 457;
Charles Evans Hughes, “Roger Brooke Taney,” American Bar Association Journal 17
(1931): 787.
40.
“Important Work,” 237.
41.
Ibid., 238.
42.
Mark Tushnet, “The Story of Crowell: Grounding the Administrative State,” in Federal
Courts Stories, ed. Vicki C. Jackson and Judith Resnik (New York: Foundation Press,
2010), 360-61.
43.
Daniel Ernst, “Morgan and the New Dealers,” Journal of Policy History 20 (2008): 44781.
44.
“Important Work,” 237.
45.
“Delegation of Power by Congress,” Harvard Law Review (1935): 804-06. A memo
reproducing this passage circulated within the NRA legal division. “Excerpt from
HARVARD LAW REVIEW . . . ,” n.d., box 3, entry 49, preliminary inventory 44, NRA
Records.
46.
Milton Katz to Blackwell Smith, January 6, 1935, box 15, Peter Seitz to L. M. C. Smith,
February 14, 1935, box 3, entry 51, preliminary inventory 44, NRA Records.
47.
Leverett S. Lyon et al., The National Recovery Administration (Washington, DC:
Brookings Institution, 1935), 63-64.
48.
“Comments of the Bituminous Coal Division of the United States Department of the
Interior on Administrative Procedure Bills (S. 674, S. 675, S. 918), 5-6, box 2227, BCD
Records; Conference of Bituminous Coal Division, April 27, 1940, box 4, entry 376,
DOJ Records. See Laura Kalman, Abe Fortas: A Biography (New Haven, CT: Yale
12
University Press, 1990), 68-69.
49.
David Ginsburg, Memorandum to Mr. Brown, February 25, 1943, quoted in Andrew H.
Bartels, “The Politics of Price Control: The Office of Price Administration and the
Dilemmas of Economic Stabilization, 1940-1946” (PhD dissertation, Johns Hopkins
University, 1980), 282-84.
50.
John Lord O’Brian and Manly Fleischmann, “The War Production Board: Administrative
Policies and Procedures,” George Washington Law Review 13 (1944): 22-23, 39-40.
51.
United States v. Morgan, 313 U.S. 409, 422 (1941) (Frankfurter, J.). The incremental
accommodation of the administrative state is the theme of Jed Handelsman Shugerman’s
review essay, “The Legitimacy of Administrative Law,” Tulsa Law Review 50 (2015):
301-15.
52.
Felix Frankfurter, “Gentlemen, we shall consider in this Course . . . ,” September 28,
1914, reel 21, FF-HLS MSS; Federal Communications Commission v. Pottsville
Broadcasting Co., 309 U.S. 134, 142-43 (1940); Mark V. Tushnet, “Administrative Law
in the 1930s: The Supreme Court’s Accommodation of Progressive Legal Theory,” Duke
Law Journal 60 (2011): 1568-76.
13