A New Kind of Justice NARRATOR From 1861 to 1865, Americans spilled precious blood over questions that had divided the nation and tormented the Supreme Court: slavery, states' rights and federal powers. Swaths of the South were laid to waste in the Civil War. Families on both sides destroyed. Old ways of life, old certainties, were swept away. Nearly every American was somehow changed by that war, including the men who would shape the Supreme Court from Reconstruction to the New Deal. Even as the war raged, a maverick 46-year-old California Judge named Stephen J. Field was elevated to the Supreme Court by President Abraham Lincoln, who needed to keep the nations' richest stated tethered to the Union. John Marshall Harlan, a pro-slavery and pro-union lawyer from the border state of Kentucky, was forced to choose a side. And 19-year-old Oliver Wendell Holmes Jr. signed on to fight with the Massachusetts 20th. He would never be the same. NEWMYER Holmes went into the Civil War as a great idealist. He was a dedicated abolitionist. He believed that the war was being fought for the freedom of black people. WHITE It was a chivalric mission. That was the way they described it. They though of themselves as a species of knights, going on a crusade. And then he gets down there and he realizes this is very far from being a crusade. NEWMYER There were hundreds and hundreds of regiments in the Civil War. The Massachusetts 20th I think was maybe the 5th of all of these hundreds and hundreds in terms of casualties. Five-eights of the soldiers in the regiment were wounded or got killed. WHITE He writes a letter to his mother saying: nearly every man I've liked and admired has been killed. So it's just a, it's just a carnage for him. POST He lost whatever idealism he had going in. Sort of he took a deep beating in the war but he speaks very profoundly and very movingly about the beauty of the struggle. The fact that people would rush into battle, that he was rushing into battle, on behalf of this idea, this idea of union that men were willingly giving up their lives for that. I think he never got over that, he never understood that fully, or could comprehend the mystery of that to him. NEWMYER The one thing that he did come away with, and it also becomes a key to his jurisprudence, is the sort of nobility of the struggle. It's the struggle that counts. NARRATOR The carnage that Oliver Wendell Holmes had witnessed was only a small window on the enormity of the Civil War. When it was over, 600,000 men had perished. But the Union held. And the Constitution, like the nation, was reborn. WEINBERG The Thirteenth, Fourteenth and Fifteenth Amendments together, but above all the Fourteenth Amendment, is the fruit of the Civil War. It is what all those brave men fought for and died for. AMAR The 14th Amendment says the federal government is gonna protect your citizenship even in your state. The federal government is gonna protect you against your own state. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. KOBYLKA The thing about the Fourteenth Amendment is it's written in general terms. It's not couched in racial terms. It's not couched in gender terms. It's couched in universal terms. Citizens have privileges and immunities. People have rights to equal protection and due process. So, while it is historically tied to the Reconstruction Acts at the time, the language of the Fourteenth Amendment admits of a broader range of interpretation. NARRATOR If the intended beneficiaries of the Amendment were open-ended, the benefits themselves were maddeningly vague. What are the privileges or immunities of citizenship? What fundamental rights comprise "liberty?" How far could the federal government go to secure for citizens equal protection of the law? For the next seventy years, as a rollicking new nation rose from the ash of war, it would fall to the Supreme Court to attach specific meaning and substance to those arguable 14th Amendment phrases. The task would swell the influence of the court and invite remarkable judicial creativity. By the time the Fourteenth Amendment was passed in 1868, the Supreme Court had a new home. It still didn't have its own building, but met in the old Senate chamber in the Capitol where it conducted its business in the shadow of the forceful new post-war Congress. The Fourteenth Amendment gave Congress explicit powers to enforce the rights of former slaves in even the most resistant Rebel states. And the Republican-controlled Congress exercised those powers during Reconstruction, installing federal troops in the South and passing laws that guaranteed blacks access to public education, the right to serve on juries, testify in court and vote in elections. GORDON-REED People began to sort of go about trying to make themselves into citizens with the backing of the federal government, they thought. People were flooding to get married, to try to do all of the things that were denied to them during slavery. People bought property thinking that their property would be protected. Tried to start businesses, tried to get education. This is a new covenant. NARRATOR Voter rolls filled with former slaves. Hundreds of black candidates won political office in the 1870 elections. And when the white backlash in the South turned lethal, Congress made a show of strength, enacting legislation to protect blacks from Klansmen and other vigilante groups. In 1875, even as white resistance hardened and former Confederates began to take back power in the Southern states, radical Republicans in Congress passed a sweeping Civil Rights Act. KLARMAN The most important provisions are the ones dealing with access to public accommodations. Places of public accommodation are named places of public accommodation for a reason. They're generally open to the public: theaters, hotels, restaurants, railroad transportation, and it provides for full and equal access without regard to race. NARRATOR In 1883, that law was challenged. The case, besides re-writing the nation's long-running racial drama, would produce the Supreme Court's first great dissent . . . and its first great dissenter. The Civil Rights Cases was a consolidation of five separate cases that spanned the country. Owners had been fined or indicted for denying black citizens seats at theaters in New York and San Francisco, rooms at hotels in Kansas and Missouri, a seat on a ladies car of a Southern railroad. The owners wanted the law under which they'd been prosecuted struck down. Much had changed in the eight years since the law's passage. Even in the North, people had grown weary of Reconstruction. Radical Republicans had lost control of Congress and the Southern statehouses. Federal troops had been pulled from the old Confederacy. Members of the Court had no problem gauging the force and direction of the political winds. As Joseph Bradley's majority opinion circulated among the justices, eight of the nine signed on. KLARMAN The Supreme Court in 1883 strikes down the Civil Rights Act of 1875. And what the Court says is the 14th Amendment prohibits a state from denying equal protection. Individual behavior does not offend the Constitution. And the federal government doesn't get to come in and fix this problem. WEINBERG The Court took the view that the Fourteenth Amendment gave no protection from private discrimination. The landlord could exclude you from renting his house. The innkeeper could exclude you from the inn. The theater could exclude you from the theater. The Fourteenth Amendment said no state shall; it didn't say no landlady, no innkeeper, no theater manager. POWE The opinion ends with Justice Bradley saying, 'There comes a time when, after the emergence of slavery, a person must take on the role of mere citizen and cease being a special favorite of the law.' And what the court is announcing then is Reconstruction is over. You're just like anyone else. NARRATOR There was only one justice who refused to join the majority. He was a starch-collared, fundamentalist Presbyterian and former slaveholder from Kentucky named John Marshall Harlan. He was also the only Justice who'd seen slavery and Reconstruction up close. As Attorney General of Kentucky just after the Civil War, Harlan had been a vocal opponent of the 13th and 14th Amendments. He'd been among the office-holders who stirred white rage against freed slaves. In Harlan's hometown of Frankfort alone, there were sixty-four catalogued acts of white supremacist terror against freed blacks and their political allies. When Harlan saw the bitter fruit of his politics, he'd been shamed. PRZYBYSZEWSKI Even though he was raised as a white supremacist, raised as a slaveholder, at the same time he firmly believed that his father had been an honorable white man, that he had never abused power. That may be a myth, but that's what he believed. And he wanted to live up to that kind of honor. And so people threw his history back in his face. And he said I would rather be right than consistent. GILLMAN The Northern members of the Court could talk in generalities about how the freed men had become equal in the eyes of the law, and no longer needed the special help of the federal government. But Harlan knew better. He knew the predicament that blacks faced in the South. And he knew that civil rights could not be protected simply with the abstractions of the language of equality-that civil rights required the federal government to give the aid that was necessary. NARRATOR Harlan determined to dissent in the Civil Rights Cases and to dissent loudly, but once he began to write, he found himself paralyzed . . . until his wife pulled from storage a strange memento the Harlans had bought: the ink stand Chief Justice Roger Taney had used to write his infamous Dred Scott decision, a decision in which he had observed that blacks had no rights a white man was bound to respect. PRZYBYSZEWSKI She cleaned it. She filled it with ink and she put it on his desk so that when he came home from church one Sunday it was sitting there. And in effect what she was reminding her husband was that the Dred Scott case needed to be undone. AMAR Harlan's dissent in the Civil Rights Cases says we the Court protected the rights of slave masters and upheld congressional laws protecting slave masters. And now, when the Constitution has been amended to protect the rights of former slaves, we're striking down congressional laws designed to enforce that right. We are not treating the former slaves with the same kind of generosity that we once treated slave masters, and that's hypocrisy. GILLMAN Harlan is that one voice on the court that still embodies that previous commitment that was made just a few years earlier to that goal, to the goal of racial equality. But the rest of the country, and the court, had moved on. KLARMAN The country doesn't want to continue with this experiment in coerced reform of race relations in the South. And I think the Supreme Court is basically putting its stamp of approval on that. They're saying the national government is not going to intervene any more in Southern race relations. We are restoring home rule on the race issue to the South. We're gonna return to the status quo, which is: upper class whites in the South get to decide what race relations are gonna look like. KOBYLKA You're moving from the period where people would wave the bloody shirt of the Civil War to try to reinforce sectional cleavages to an America that is being brought together regardless of section by ribbons of highways, ribbons of railroad tracks, telegraph lines. The country is changing. So what was once so strongly disunited was becoming united and what's unifying that country, at least at this stage of the game, is not so much the central government but it's the economy and private actors, the Goulds, for example, the Rockefellers, the robber barons. These are people who are creating a national economy based on sort of a rootin-tootin' capitalism. NARRATOR From the 1870s into the 1930s, as a thousand local markets were welded together, the wealth of the nation surged. Gross national product grew into the tens of billions. The population swelled toward a hundred million and spread west. The national government stood back and watched as the engines of new industries shuddered to life and new conflicts emerged. KOBYLKA From the elite perspective, this is a system that is enhancing liberty, that is enhancing wealth, that is enhancing an idea of America that is pulling it into maturity as a nation. And anything that gets in the way of that endangers both that maturity and also the liberty on which the country was founded. GILLMAN The country is really divided between people who want to promote a national economy and all the competition and laissez-faire associated with the national economy, and those who wanted to regulate that economy-people who thought that that economy that was developing was imposing some burdens on workers and farmers, and that it was the obligation of government to try to mitigate some of those problems. The Court is placed in the middle of those battles. NARRATOR From the beginning of the set-to over government involvement in the economy, one energetic voice rose above all others on the Court. It was the voice of Justice Stephen J. Field. Field's constitutional vision was formed in the fresh beginnings of the Far West. Born to wealth and power in Massachusetts, Field had taken his lawyer's shingle and followed the 49ers into the wilds of California, where he and thousands of other individuals were free to invent a new state from scratch. In just fifteen years, the 49ers had turned this virgin land into a place of high finance, industrial might, and fabulous wealth. The growth of empire that the Revolutionary War generation had envisioned Field had witnessed on the nation's farthest shores. When Stephen J. Field took his seat on the Court, he meant to protect the possibilities of economic expansion wherever Americans lived. The key was keeping private property clear of government meddling. And Congress itself had given Justice Field a tool to do just that: the 14th Amendment. GILLMAN Field thought that the language of the Amendment made it very clear: for the first time in the country's history, the federal Constitution, limited the states in their ability to interfere with people's liberty and property. KOBYLKA Field's saying private property is sanctified in America. If government impinges on private property, no longer do you have free government and a free people. NARRATOR Along with rock-hard moral certainty, Field brought an unprecedented combativeness to the Court. Both in public and private, Justice Field took pains to advance his legend as a gun-toting, knife-wielding, whipping-post judge. GILLMAN He was a man of adventure, a man of strong opinions, and a man like that generation's version of Justice Scalia today, He was a man who was very sure of himself. He was conservative-a bit cocky-but thinking of himself as really a, a forerunner of important Constitutional change. And he didn't care so much what other people thought. He knew that he was right and he fought the good fight, until the rest of the country caught up to him. NARRATOR For twenty-five years, in case after case, Field pressed his argument for near-absolute economic liberty. He was convinced that state legislators were easily corrupted; that state regulation of private enterprise was most likely an effort to favor one competitor over another. If a state regulation was challenged in the Supreme Court, Field nearly always voted to strike it down. He often lost, but never flagged-and never backed down. And by 1890, the Court had begun to tack around to Field because pro-business Presidents had filled the bench with like-minded lawyers, including Field's own nephew, David Brewer. By that time, a new civic religion had taken hold in America. Charles Darwin's theory of evolution and natural selection had evolved from scientific to social theory. Political philosopher Herbert Spencer's pungent term "the survival of the fittest" was in the air. KOBYLKA Social Darwinism is coming to the fore. Herbert Spencer, Social Statics. The notion that the fittest will survive, and that life is about competition. The economy is about competition as well. And so if government gets involved and imposes its interests on the economy, then those who are naturally strongest won't necessarily win because the referee will get involved in the game and bias the outcome of the game. Which means that not only is the outcome biased but that the best does not prevail. NEWMYER John D. Rockefeller is supposed to have taught Sunday school, and one of the lessons that he apparently taught his young charges had to do with this justification of this new competitive environment, which his own corporation embodied, of course, which at times was quite ruthless. And he said, "You know, it's like the American Beauty rose, that in order to get the splendor of this rose, you have to prune away the buds. And if it appears to be cruel, that labor is suppressed, that competitors are eliminated ruthlessly, then this is the price you pay for economic progress." KLEIN The typical workday for a man was ten hours, possibly twelve. The typical workday for women workers was twelve hours or fourteen hours. And in this new industrial economy, people worked six days a week. FORBATH You could work hard all day long and make an impoverishing wage. If you were a factory hand, no matter how hard you worked, you couldn't make enough to support a family. KLEIN Women and children were earning wages, or earning income, to help make the family just live at a subsistence level. The employer's rules held sway in the workplace. It was actually a realm of American life that almost resembled feudalism. NARRATOR By the 1890s, the divides in the nation had cracked wide: John D. Rockefeller and Andrew Carnegie were each making more than 10 million dollars a year, tax-free. The average worker made less than 500 dollars. KOBYLKA Individuals feel they are increasingly powerless or they feel they are increasingly powerless, and they're aggrieved in some sense, and they can't overthrow the source of the problem. They turn to government. It's all an effort to get some entity on your side to work against power that you yourself can't control. NARRATOR For the first time, Congress stepped in to check the growing power of the owning class. It mandated the break-up of powerful national monopolies and in 1894 instituted a federal income tax on the richest Americans - two percent on annual income over today's equivalent of a quarter-million dollars. As the Supreme Court began to consider the constitutionality of this new federal legislation, class resentments boiled over. A worker shutdown at the Pullman Company ignited a national railroad strike. Business-friendly federal judges such as William Howard Taft issued injunctions to put a stop to it. Railroad owners convinced the President to call out the U.S. army and state militias. GILLMAN During the Pullman strike, the army ended up shooting five or six strikers. And Taft wrote at that time, "They're gonna have to shoot a lot more of those strikers in order to make the point they want to make." And that attitude, by the way, was not that unusual. Conservative political leaders at that time really thought that the country was gonna get out of hand if these more socialistic tendencies were not brought under control. FORBATH What the Court decides today, while obviously gripping and part of our culture wars, is chicken feed compared to what the Court presided over in the 1890s. The Court had in its hands the future of industrial America. Sober, thoughtful Americans, not hysterical people, thought the nation was at the brink of class war. KLARMAN The Justices are responding to this sense of spreading anarchy and social disorder, and they're worried about socialism and communism and the desire to redistribute wealth. They're worried about property rights. NARRATOR When the Court sat in 1895, Stephen J. Field was nearing 80, barely able to haul himself up the steps of the Capitol. But his fingers could not be pried from the standard he'd held for over thirty years. KLARMAN He's talking about getting a shot of carbolic acid in his knee and how it was so painful that he thought he would pass out, and that he really might die at any point, but he was struggling to hold on because it was absolutely vital to the safety of the nation that he participate in this decision. So Justice Field sees himself as doing heroic service to the country by struggling to hold onto his seat on the Supreme Court to strike down the income tax. PRZYBYSZEWSKI Stephen J. Field thought that the income tax was the thin edge of the wedge of communism. And these kinds of laws had to be stopped, or the United States would just cease to be a place of liberty and instead would be a place where the poor thought up laws in order to take money away from the rich. NARRATOR The Court majority sent a powerful message in the last years of the 19th century. It would safeguard private property owners from intrusions by both federal and state government. The Court had finally bought into Field's vision of the 14th Amendment. While the majority refused to use the amendment to protect broad social or political rights for blacks, or Chinese, or women, it would use the amendment as a nearly impenetrable shield, to protect private property rights. In 1897, Stephen J. Field bested John Marshall's record 34-year tenure on the Court-then grudgingly stepped aside. GILLMAN He doesn't leave the Court the way he entered the Court, as a cranky dissenter, trying to tell everyone the right path. By the time Field leaves the Court, his dissents had been vindicated. KOBLYLKA So, Field leaves the Court at the end of the 19th Century. But Field's ideas carried through well into the next century. NARRATOR Five years after Stephen Field's retirement -- with his ideas still in full flower -- a new kind of justice arrived at the Court. By the time he was appointed in 1902, Oliver Wendell Holmes, Jr. had already distinguished himself as Civil War officer, Harvard law professor, author of renowned works of legal scholarship and Chief Justice of the Massachusetts Supreme Court. Even at the advanced age of 61, Holmes was a fresh wind blowing into the musty Old Senate Chamber where the Court had sat for forty years. FORBATH The old stalwarts, Justice Brewer and Justice Peckham and even the chief justice Melville Fuller, are all are deeply religious men. They're convinced that the economic liberties that they've begun to read into the Constitution were handed down by the Lord and a part of natural justice. PRZYBYSZEWSKI Oliver Wendell Holmes, on the other hand, did not believe in natural law. He was an agnostic. And he believed that any system of rights that existed in the world was the creation of people, of human beings, there were no God-given rights. We were making this up on our own. POST He came out and said, "All judges, inevitably, bring to the cases they are hearing their prejudices, uh, their, their ideas." He's telling the country, "Watch out for these judges. Me, too; me included." NEWMYER There is the story of this young man who essentially asks Holmes, you know, how come you're such a great man, or something like that. And Holmes is supposed to have said, "Young man, I decided long ago that I wasn't God." NARRATOR Just three years into Holmes's tenure, a case came before the court that highlighted stark divisions among the justices, drawing the battle lines for a quarrel that would play out over the next thirty years. And Oliver Wendell Holmes girded up for the second big fight of his life. In 1897, the state of New York had passed a law limiting the number of hours bakers could be required to work. And when Utica bakery owner Joseph Lochner refused to abide by the law, he was twice convicted, fined fifty dollars and ordered to jail until he paid up. Instead of paying, Lochner challenged the maximum-hours law, forcing a fight that finished in the United States Supreme Court. When the case finally landed in the Old Senate Chamber in 1905, New York defended its law: states had been ceded "police power" to ensure the public health and safety of their citizens. But the Court struck down the New York State maximum hours law. POWE In Lochner, which is a law that imposed a maximum sixty hours a week for bakers to work, Peckham asks, well, does this law have anything to do with health? And he concludes no, it doesn't have anything to do with health. Bread is bread. And while bakers die younger than others, somebody's gotta die first. Therefore the law isn't part of the police power. Instead, it is trying to regulate the employer/employee relationship, and this is not subject to the police power. This is the liberty of contract that individuals have the right to engage in. KOBYLKA What the Court's saying is that when government tells me that I can't work eighty hours a week as a baker, government is infringing on my liberty to contract my labor. Government is infringing on me as a person telling me what I can do with myself. NARRATOR "Liberty of contract" was an idea straight from Stephen J. Field, teased from the soft phrases of the 14th Amendment. It went to the heart of free market ideals. When employers and employees were negotiating terms of a contract, government almost always had to stay clear. That laborers might not have the same leverage as owners was unfortunate-but not within government's power to fix. KLARMAN Where does this liberty of contract get? Where does the Court find it in the Constitution? They find it in the Due Process Clause which says, "Government shall not deprive people of life, liberty or property without due process." And the Court says, included in that liberty protection, is a right for liberty of contract. It's a very creative reading. It's basically a made-up doctrine. There's a lot of pressure on judges to reach results that they regard as just, and they're willing to stretch and strain with the text if necessary. And in 1973, a lot of judges felt like a woman's right to abortion was pretty important, and the Court found it in the Constitution. In 1905, a lot of people thought that a right to contract was important, and the Court found it in the Constitution. NARRATOR John Marshall Harlan-joined by two other justices-dissented in Lochner. The state of New York had presented compelling facts as to the health hazard to bakers. That was good enough for him. Oliver Wendell Holmes, acting alone, made a more sweeping dissent, a frontal assault on judicial activism. POST Holmes says, 'We the judges are imposing our policy views on the nation as a whole when we do this. We talk about liberty of contract; we talk about property; we have all these words. Uh, but in fact, what's going on here is you don't like this legislation; you think this is bad for the country. You, my fellow justices, you may be right," he says. "But our job is not to decide whether it's good or bad for the country; it's to decide what do the people of this country want. And New York State can go to hell in a hand-basket, as far as I'm concerned, in its public policy. But my job is to see that it gets there." NEWMYER Holmes did not do this because he had great faith in American politicians. He called them the thick-fingered clowns at one time. He was not a reformer. He was not necessarily in favor of the rights of labor. He just felt that if in the struggle which is going on between interest groups, between labor and capital, if labor wins one and they get a victory in the New York legislature, then who are the judges to make up this stuff in the 14th Amendment and strike them down? NARRATOR Like all Justices of his day, Holmes did his real work at home; he wrote his first famous dissent in his personal library, surrounded by the guiding stars of his life. On his shelves were well-thumbed books by Charles Darwin, Herbert Spencer and his hero, Malthus, whose ideas inspired the theory of natural selection. In Holmes's closet were battle-torn relics of his war. "These uniforms were worn by me in the Civil War," said a note pinned to them, "and the stains upon them are my blood." NEWMYER He was in rebellion against servitudes as a result of the war. The one thing that he did come away with, and it also becomes a key to his jurisprudence, is the sort of nobility of the struggle. He said it was our great good fortune to be of that generation that fought this war, and what we learned was that whether you're given by destiny a spade and you dig, or whether you get an axe and you scale the ice, he said, the one true thing you bring to it is a great heart. POST Holmes is a skeptic without becoming a cynic, which is, I think, what to me is, is, is endearing about him, in a way. He didn't think anybody knew how to make society better. But he was deeply respectful of the people who were struggling to do so. NARRATOR The struggle between capital and labor was the ferocious fight during Holmes's years on the Court. Capital held the high ground. But Progressive reformers kept pushing for maximum hours and minimum wage laws to ease the daily burden on workers. They wanted limits on child labor, and the right of workers to form unions and bargain as a collective. Holmes's personal allegiance lay with capital; and he didn't think any reform would much help the working classes. But when Progressives managed to get laws passed that squeezed owners, Justice Holmes refused to strike them down unless they were unarguably unconstitutional. Now and then, he gathered a majority for upholding reasonable regulation. But Holmes made few reliable converts among his fellow justices. And he would occasionally turn his biting wit on his colleagues. Holmes had grown particularly weary of John Marshall Harlan's moralizing. But an uncharacteristic sentimentality seeped out of Holmes on the news of Harlan's death. "The old boy had outlived his usefulness," Holmes wrote, "but he was a figure the like of which I shall not see again." PRZYBYSZEWSKI When he died, the black community of Washington was quite saddened, and the African Methodist Episcopalian Church actually had a memorial service for him. And in the program there's a, there's a photograph of Harlan and on it it, it says a 'true friend of the people.' And they played Beethoven's On the Death of a Hero. NARRATOR "In his own home, and sometimes out of it, he was charming," Holmes noted. "On my 70th birthday, who but he bethought to put a little bunch of violets on my desk in Court? Peace to his ashes." By 1912, the great stalwarts of "liberty of contract" -Brewer, Peckham and Fuller-had all given up the ghost, too. But President William Howard Taft reloaded the Court with justices also willing to strike down state and federal laws that intruded on the free market economy. Holmes's only sure ally in the cause of judicial modesty was a Woodrow Wilson appointee, Louis Brandeis, who in 1916 became the first Jewish member of the Court. POWE Holmes and Brandeis were the great dissenting duo of the Progressive Era, and they're forever linked together as Holmes and Brandeis. But they were entirely different men. Holmes approved a Progressive legislation because he didn't care. Brandeis was righteous. He was zealous. He was passionate about the issues of his time. Holmes hated facts. If you read a Holmes opinion there are almost no facts in it, contrasted with a Brandeis opinion. Brandeis is just gonna roll you over with facts. LAW One summer, Brandeis, Holmes was going on vacation in the summer. And Brandeis said, "Hey, Oliver Wendell, why don't you learn about the garment industry? Maybe you can read up on the garment industry." And Holmes sort of, you know, you could sort of see him rolling his eyes like, "Lovely, that's my summer reading." NARRATOR One fact mattered most to Justice Holmes: the head count. He acceded, almost without exception, to the will of the political majority. When the state of Virginia authorized the forced sterilization of a young woman named Carrie Buck, Holmes authored the decision that upheld it, noting that Ms. Buck, her mother and her daughter were all feeble-minded. PRZYBYSZEWSKI Now there are problems both with his facts and with his law. Carrie Buck was probably not feeble-minded. The reason she was identified as feeble-minded was she was unmarried and she was a teenager and she got pregnant. NARRATOR "We have seen more than once that the public welfare may call upon the best citizens for their lives," Holmes wrote in his opinion. "It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices . . . Three generations of imbeciles are enough." Well, maybe Holmes' judicial philosophy didn't make him a sterling symbol of human sympathy. But besides Brandeis, Holmes was about the best hope the Progressives had. And support for the Progressive movement was being washed away. KOBYLKA The economic boom that takes the United States out of the First World War period and telescopes into the 1920s is enormous. And so if you're sitting on the Supreme Court as a defender of liberty of contract, you're saying this is the America that we can have if we just keep the government out. If you protect property you get enormous wealth. You get cars. You get an industrial base which is second to none. You get exports of goods. You get accumulation of wealth and dispersion of wealth. NARRATOR Nobody had to convince former President William Howard Taft, who took over as Chief Justice in 1921. Taft was soon joined by George Sutherland and Pierce Butler, who along with Willis Van Deventer and James McReynolds would come to be known as the Four Horsemen of the Apocalypse. In 1923, the Four Horsemen made a clear statement about government's power to insert itself into the employer-employee relationship, pushing the court towards a hands off doctrine that made even Taft blush. Five years earlier, the District of Columbia had appointed a board to hold hearings and find a fair minimum wage to be paid to women and children. Employers and employees brought suit, challenging the right of any government to say what workers would be paid. In Adkins versus Children's Hospital, over another loud objection from Holmes, the Court struck down the minimum wage law. POWE The Court said "Hey, if a woman is getting a minimum wage, it means that she would have been willing to work for less. And the difference between that minimum wage and what she would have been willing to work with is a forced extraction from the employer to her and therefore it violates due process of law. He wants to pay less and he should have the right to do so." WEINBERG Justice Sutherland noted that in two prior cases the Court had sustained a maximum hours law for women on account of their special needs and then a maximum hours law for both men and women. So it was assumed Lochner was dead. He said no, no. Lochner is very important. Lochner is alive. She was deprived the liberty of contract clearly which she is entitled to. NARRATOR The Court was little criticized for its creativity or its activism; its prestige was at a peak. In 1929, Chief Justice Taft convinced Congress to appropriate ten million dollars for the Supreme Court to have a building of its own. The cornerstone was laid in 1932. That same year, Oliver Wendell Holmes retired at age 91. He was still in the minority on the question of government's power to regulate the economy. In thirty years on the bench, he had been unable to break the spell of Stephen J. Field; liberty of contract still held sway. But Oliver Wendell Holmes, the old skeptic, whose youthful idealism had been buried among the corpses of the Civil War dead, had not lost heart. "As I grow older I grow calm," Holmes had written. 'I think it not improbable that man, like the grub that prepares a chamber for the winged thing it has never seen but is to be, may have... destinies that he does not understand." By the time Oliver Wendell Holmes died in 1935, the United States Supreme Court seemed to have realized its own great destiny. After 145 years of renting space from the Senate, the Court moved into a home of its own. The new surroundings-four resplendent stories of white oak and mahogany, Spanish, Italian, and African marble, carved friezes and Corinthian columns-suggested permanence and strength. But even as the marbled walls were being built around the Court, a storm was gathering outside it, a storm that would challenge the Court's cherished and long-held certainties. WEINBERG By the early thirties, the Court, the nine old men, found itself sitting at the top of a situation in which an unregulated economy lay in ruins at its feet. POWE When Franklin Roosevelt is inaugurated, there's twenty-five percent unemployment in the United States. In his inaugural address, the chief applause line is when he says he may be forced to assume powers ordinarily taken only in time of war. SIMON He envisioned a much more muscular federal government and legislation that would practically grab the economy by its ears and pull it out of the Depression. FRANKLIN D. ROOSEVELT This nation is asking for action, and action now. NARRATOR From the beginning of his first term, Franklin Roosevelt rolled up his sleeves and stuck his hands where no President ever had: in the whirring mechanisms of the national economy. With the help of Congress, the Roosevelt Administration undertook to increase farm income and wages, to push down prices and to create jobs. Nobody would argue that things were great, but the federal government had put its shoulder to the wheel. KLEIN Citizens saw what the federal government could do in the early years in the New Deal. And so people's expectations about what government could do began to rise. POWE The Court had to know that the New Deal had extraordinarily popular support. Congress would do anything Roosevelt wanted. He's got the presidency. He's got the support of the people. And the Government was exercising powers that had never been exercised in American history. And the Justices can see Hitler has taken over in Germany and centralizing things. Mussolini is running Italy and centralizing things. Stalin is running Russia and centralizing things and now we have a government where the President has suggested that maybe the Constitution isn't all that it should be. And I want to have wartime powers. And the justices were worried about this. Are we seeing a constitutional revolution without a change in the Constitution? The only conceivable check on Roosevelt is the judiciary. In 1935 and 1936, the Supreme Court invalidates ten recent federal statutes. They have never done that before. They have never done that since in a two-year period. NARRATOR At the end of that run, in 1936, the Court narrowly struck down a New York State minimum wage law. The Supreme Court, led by the Four Horsemen, held that neither the federal government nor state legislatures had the right to meddle in the free market economy, emergency or no. LAW The rest of the county is widely being affected, feeling the effects of the Great Depression and the Four Horsemen are hanging on for dear life to this liberty of contract idea. FRANKLIN D. ROOSEVELT I defy anyone to read the opinions concerning the Triple-A, the Railroad Retirement Act, the National Recovery Act, The Guffey Coal Act and the New York Minimum Wage law and tell us exactly what, if anything, we can do for the industrial worker in this session of the Congress with any reasonable certainty that what we do will not be nullified as unconstitutional. NARRATOR Franklin Roosevelt had big new things to try. And five votes on the Court could put a stop to any of them. So after the President was re-elected in a landslide in 1936, he went after the conservative old Justices. He threatened to create six new seats on the bench, fill them with his own men, and thereby give himself a certain majority. POWE What Roosevelt was indicating to the Court was if you stand in the way I'm simply going to finish you as an institution. And I think the Justices understood that. NARRATOR By 1937, when the case of a hotel maid from Wenatchee, Washington made it to the splendid new courthouse, Roosevelt's assault had focused the nation's attention on nine men in black robes. The chambermaid, Elsie Parrish, wasn't asking for the moon. She just wanted the Court to award her back pay of $216.19-the difference between the wage the hotel had paid her and the state-mandated minimum. The West Coast Hotels attorneys were unapologetic. Of course the corporation had been paying the maid less than the minimum of $14.50 a week. It had the right to do so under the "liberty of contract" doctrine. The Four Horsemen all but nodded in agreement. But when the West Coast decision came down on March 29, 1937, Chief Justice Charles Evans Hughes's preamble caught the attention of everyone listening in. 'The economic conditions,' he said, 'make it not only appropriate, but we think imperative, that in deciding the present case the subject should receive fresh consideration.' Hughes announced that the Supreme Court, by a 5 to 4 vote, was upholding the Washington state minimum wage law. The working woman, Elsie Parrish, would get her due. POWE West Coast Hotel versus Parrish was the Court's surrender to the New Deal. Chief Justice Hughes, in that opinion, says people have to live. They have to have the necessities of life. And the public doesn't have to subsidize an unscrupulous employer who is exploiting his employees. GILLMAN That case has sometimes been referred to as ushering in what is known as the Constitutional Revolution of 1937. The Court was acknowledging the legitimate role that government would play in helping people who were not competing successfully in the market. KOBYLKA When the Court switches in 1937, they basically say, "We will get out of the way and let the train come through. Government can regulate as it chooses." POST The revolution of '37 was explicitly Holmesian in, in some ways. They stand back; they let the New Deal proceed. And I think there were contemporaneous reports at the time of people saying, you know, Holmes must be, must be chuckling in his grave now. This is just what he was telling the court to do 20 years ago, and now, and now they're finally doing it. NEWMYER Holmes had said in these economic areas the Court should restrain itself. Let the people work it out. Let the legislatures work it out. Let the interest in society fight it out, but let's don't intervene. And essentially that's what the Court did. It pulled back from the whole field of economic regulation and it made Holmes into quite a prophet. GILLMAN The Court essentially quit one job, without yet having a new job identified. The challenge of the court after 1937 was to figure out how to rethink its role in the political system. Could it find role that was appropriate for a new age?