Switch in Time Split in Four

A SWITCH IN TIME AND A SPLIT IN FOUR:
GENERAL WELFARE, THE TENTH AMENDMENT,

AND THE POLITICS OF SOCIAL SECURITY
Douglas R. Gladden
J.D., 2010, University of Georgia
On May 24, 1937, the United States Supreme Court decided Helvering v. Davis,1
which upheld two key provisions of the Social Security Act of 1935. Justice Benjamin
Cardozo, writing for a 7-2 majority, held that the old-age retirement benefits and the
payroll tax provisions of the Act were constitutional under the Tenth Amendment
because of Congress’s enumerated authority to tax and spend for the general welfare of
the United States.2 Justice Cardozo relied on dicta in United States v. Butler3 as precedent
for granting Congress a wide scope of discretion in taxing and spending for the general
welfare.4 Justices James McReynolds and Pierce Butler dissented by simply stating that
the challenged provisions were “repugnant to the Tenth Amendment.”5
Helvering came near the end of a dramatic spring term in which the Court
seemed to reverse itself from nearly two years of hostility to President Franklin
Roosevelt’s New Deal legislation. In at least one case that spring, the Court did actually
overrule itself as a matter of law;6 however, the dramatic element among most of the
cases was the apparent shift of two justices—Chief Justice Charles Evans Hughes and
Justice Owen Roberts—from opposition to New Deal legislation to support.
1 301 U.S. 619 (1937).

2 Id. at 640.
3 297 U.S. 1 (1936).
4 301 U.S. at 640-641.
5 Id. at 646.
6 West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) overruled Adkins v. Children’s Hospital, 261 U.S. 525
(1923). For a discussion of these cases, see, e.g., Lucas A. Powe, Jr., The Supreme Court and the American Elite
210 (2009); William G. Ross, “When Did the ‘Switch in Time’ Actually Occur?: Re-discovering the
Supreme Court’s ‘Forgotten’ Decisions of 1936-1937,” 37 Ariz. St. L.J. 1153, 1206 (2005); Barry Cushman,
“Rethinking the New Deal Court,” 80 Va. L. Rev. 201, 234-237 (1994).
In the wake of the Great Depression and President Roosevelt’s attempted
national response to the economic crisis, the Supreme Court had appeared intractably
divided between a three-justice “liberal” wing and a four-justice “conservative” wing,
with Hughes and Roberts holding the balance of power as swing votes.7 The liberals—
Justices Cardozo, Harlan Fiske Stone, and Louis Brandeis—were seen as consistent and
reliable supporters of the President’s policies who, though in the minority, provided an
important intellectual and legal foundation for the New Deal. The conservatives—
Justices McReynolds, Butler, Willis Van Devanter, and George Sutherland—were
dubbed the “Four Horsemen” and were seen as bitterly opposed to the economic
experimentation by the federal and state governments to fight the effects of the
Depression.8
During his first term in office, Roosevelt saw the Court, frequently by 5-4 or 6-3
votes, strike down significant New Deal statutes that targeted various aspects of society
affected by the Depression.9 The Court struck down many state laws during this time
as well. The Four Horsemen, joined by Roberts and frequently by Hughes, relied on a
variety of legal tools to invalidate the New Deal, including Lochner-type freedom-of-
contract arguments, the Commerce Clause, the Tenth Amendment, the Privileges and
Immunities Clause, and others.10
When the Court shifted course in 1937, then, scholars, politicians, and the public
alike all wondered: what changed? The very same court that had invalidated so much
7 William H. Rehnquist, The Supreme Court 122 (Vintage Books 2002); James Henretta, “Charles Evans
Hughes and the Strange Death of Liberal America,” 24 Law & Hist. Rev. 116, 118-119 (2006). For two
recent discussions of the Supreme Court and the early years of the Great Depression, see Jeff Shesol,
Supreme Power: Franklin Roosevelt vs. The Supreme Court (2010); Amity Shlaes, The Forgotten Man: A New
History of the Great Depression (Harper Perennial 2008).
8 See, e.g., Powe, supra note 6, at 196; Ross, supra note 6, at 1159.
9 Shesol, supra note 7, at 5.
10 For an excellent summary of these cases, see Powe, supra note 6, at 194-212. See also Ross, supra note 6,
at 1159-1160; Neal Devins, Government Lawyers and the New Deal, 96 Colum. L. Rev 237, 242-246 (1996)
(book review).
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economic and social legislation suddenly upheld very similar legislation, mostly by 5-4
votes, with Roberts and Hughes joining the liberals.11
Conventional wisdom holds that two key events happened at the end of 1936
and the beginning of 1937 which caused the Court to realign itself, essentially for its
own survival as a legitimate institution of government. First, the presidential election
of 1936 gave Roosevelt a decisive victory and revealed widespread public support for
his policies. Second, in early 1937 under the guise of a reelection mandate, Roosevelt
proposed his famous Court-Packing Plan which would have allowed him to appoint six
new justices to the Court, effectively letting him stack the bench with a pro-New Deal
majority.
The conventional story concludes that Justices Hughes and Roberts, seeing the
political handwriting on the wall, switched their votes in 1937 to begin upholding the
New Deal in order to preserve the existing make-up of the Court.12 This move,
deridingly called the “Switch in Time That Saved Nine,” has been the source of much
historical and legal controversy.13 Hughes is seen as recognizing a change in public
opinion of the proper role of government, while Roberts was arguably too intellectually
weak to continue supporting an unpopular legal position.
The problem with the conventional wisdom is twofold. First, history is messy.14
Even in the years before 1937, the court did not hold steadfastly to the pattern described
by the conventional narrative. Sometimes it struck down statutes unanimously.15
Sometimes it upheld them.16 The liberal and conservative blocs did not always hold
11 Powe, supra note 6, at 210.

12 Cushman, supra note 6, at 201-203.
13 See Henretta, supra note 7, at 166-169, and Ross, supra note 6, at 1153-1157.
14 Richard D. Friedman, “Switching Time and Other Thought Experiments: The Hughes Court and
Constitutional Transformation,” 142 U. Pa. L. Rev. 1891, 1982 (1994).
15 Henretta, supra note 7, at 162-163 (noting the Court’s unanimous opposition to the NIRA in Schechter).
16 Ross, supra note 6, at 1158-1159; Friedman, supra note 14, at 1892-1893.
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their own members.17 At the same time, the election of 1936 reflected a host of issues
confronting the American public, some of which may have overshadowed their views
on the Constitution.18 Furthermore, the Court-Packing Plan, while dramatic political
theater, simply never had a reasonable chance of passing through Congress.19
Second, some of the Court’s decisions do not make sense under the conventional
story. Both Justices Hughes and Roberts had “switched” their votes well before
Roosevelt announced his Court-Packing plan.20 And even after the Court-Packing
controversy had died down, the Court continued to uphold New Deal legislation, even
bringing along two of the Four Horsemen in a larger, seven-justice majority.
While some scholarship has admirably and convincingly criticized the
conventional narrative,21 Helvering provides a little-explored starting point for analyzing
the multitude of influences on the Court. Because Helvering was actually two decisions
that split in significantly different ways, it reveals some of the less-discussed nuances of
the Court’s New Deal jurisprudence. Furthermore, since Cardozo relied on only one
case, United States v. Butler, as precedent in the majority decision, the two decisions can
be compared to evaluate how the Court changed in just over a year, and how
interpersonal dynamics on the Court itself shaped the evolution of legal doctrine.
The object of this paper is not to “break new ground” by discovering some
heretofore undiscovered influence on the Court. Rather, my goal is to assemble the
pieces of history from disparate, selective accounts of the Court-Packing era and then
attempt to succinctly state what happened—in the Court, in the political arena, and in
the court of public opinion. First, I will describe Helvering itself—the background of the
17 Friedman, supra note 14, at 1907-1909; Ross, supra note 6, at 1168 (noting an unusual 3-1 split among the
Four Horsemen in 1937); Henretta, supra note 7, at 163 (noting a case where Cardozo registered a lone
dissent).
18 William E. Leuchtenburg, “When the People Spoke, What Did They Say?: The Election of 1936 and the
Ackerman Thesis,” 108 Yale L.J. 2077, 2115 (1999).

20 Powe, supra note 6, at 210; Ross, supra note 6, at 1155-1158; Henretta, supra note 7, at 158-161.
21 See, e.g. Ross, supra note 6; Friedman, supra note 14; Leuchtenburg, supra note 18; Cushman, supra note 6.
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case, the arguments raised, and the holding and reasoning of the Court. Then, I will
describe the legal, historical, and political context in which the case arose. Finally, I will
briefly address whether any of that context had any effect on the Court’s ruling.
I argue that the Court did not “switch” at all with respect to the Tenth
Amendment or the General Welfare clause of the Constitution. In light of legal
precedent, public opinion, and the evolving views of the justices themselves, the
Court’s holding in Helvering was both predictable and justifiable. Because the Court
already represented the public on the relevant issue better than the 1936 Election
returns, and because the Court-Packing Plan lacked any credible political traction, these
political pressures did not significantly impact the Court’s decision.
I. The Decision
To understand how the Court’s decision in Helvering fits into its historical
context, the natural place to start is with the decision itself. While the Supreme Court
upheld the challenged provisions of the Act by a 7-2 vote, the decision-making process
necessary to get that vote is nearly as important as the outcome. Helvering is really two
decisions: the opinion announces both a 5-4 vote and a 7-2 vote; each is relevant to
understanding what the Court did.
Helvering arrived at the Supreme Court on April 26, 1937, when the Court
granted a writ of certiorari to the First Circuit Court of Appeals on the case Davis v.
Edison Electric Illuminating Co.,22 which had reversed the Federal District Court of
Massachusetts23 and struck down the challenged Titles of the Act. The Court moved
quickly: it heard argument on May 5, and handed down its decision on May 24, less
than a month after granting cert.
22 89 F.2d 393 (1st Cir. 1937), cert. granted, 301 U.S. 674 (1937).
23 Davis v. Edison Electric Illuminating Co., 18 F.Supp. 1 (D. Mass. 1937).
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A. Background: The Challenged Provisions of the Act24
The Social Security Act of 193525 contained many provisions providing for
numerous social welfare programs. Helvering dealt with two of these: Title II, which
authorized the payment of old-age benefits through retirement pensions and lump-sum
payments; and Title VIII, which established a payroll tax on employers and
employees.26
Title II’s old-age benefits program, the basis for what we know today as “Social
Security”, created a Treasury account called the “Old-Age Reserve Account” to be
funded by future congressional appropriations to the extent necessary to fund benefit
payments.27 The Act provided that appropriations for benefits should “be determined
on a reserve basis in accordance with accepted actuarial principles…tables of
mortality…and…an interest rate” of 3 percent per year.28 Benefits primarily took the
form of monthly pensions, made payable to persons over-65 who met specified past-
employment requirements and were retired—that is, “not then receiving wages with
respect to regular employment.”29
Title VIII’s payroll tax scheme was bifurcated into an income tax on employees
and an excise tax on employers, which were both collected by the employer and
remitted to the government.30 Both taxes were imposed at the same rate—employers
24 The Government’s brief spent eleven pages discussing the challenged provisions of the Act and the
Respondent’s brief contributed sixteen full pages of material. Justice Cardozo mercifully truncated this
into a three page summary from which I have primarily drawn.
25 49 Stat. 620
26 301 U.S. at 634-635.
27 Id. at 635.
28 Id. at 636.
29 Id. The Act also included lump-sum payments, which were secondary provisions to cover several
exceptional circumstances.
30 Id. at 635.
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and employees each contributed half of the total payroll tax under the Act.31 The
revenue raised went directly into the Treasury.32
Under the income tax provisions, employers deducted the tax from their
employees’ wages and remitted the deduction to the Treasury.33 The Act specifically
indemnified the employer against any claims and demands of employees with respect
to these deductions.34 The excise tax against employers was laid “with respect to having
individuals in his employ” and was measured by employees’ wages.35
The payroll tax did not apply to certain employment categories, including
“agricultural labor, domestic service, service for the national or state governments, and
service performed by persons who have attained the age of 65 years.”36 While the
proceeds of the payroll tax were anticipated to equal the expenditures of the benefits
program, the Act did not earmark the tax revenues.37 Further, the Act included a
separability clause that disconnected the various Titles.38
B. Background: The Constitutional Challenge
George P. Davis, a stockholder in several Massachusetts corporations including
the Edison Electric Illuminating Company of Boston, sued Edison in equity on
November 17, 1936, to enjoin the corporation from complying with Title VIII.39 Edison
had withheld the income tax from its employees’ wages as required.40 Davis, in an
31 Id.
32 Id.
33 Id.
34 Id.
35 Id.
36 Id.
37 Id.
38 18 F.Supp. at 3.
39 Brief for Plaintiff-Appellant-Respondent at 3, Helvering v. Davis, 301 U.S. 619 (1937) (No. 910), 1937 WL
40760.
40 18 F.Supp. 1.
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attempt to challenge the Social Security Act, sued to enjoin the company’s remittance to
the government.
Davis challenged both the payment of the withheld employee-income tax and the
employer-excise tax.41 His action thus constituted a challenge to all of Title VIII and the
District Court allowed the Commissioner of Internal Revenue, Guy T. Helvering, and
the Collector of Internal Revenue for the District of Massachusetts to intervene as
defendants in the case.42
Davis’ complaint in the District Court was simple: Congress did not have the
authority to lay or collect the taxes established by Title VIII.43 Because Edison had
complied with the Act in collecting the taxes, Davis brought the suit in equity to restrain
the remittance by the company.44 Davis further contended that because the revenues
from Title VIII would fund the payments in Title II, Title VIII should also be evaluated
with respect to the propriety of Title II.45 Since Congress had no authority to make the
payments under Title II, he argued, it could not validly raise the revenue for those
payments under Title VIII.46
The government intervener-defendants raised a standing defense to Davis’s
challenge of the employee-income tax. The government argued that the company was
simply an agent for income-tax collection under the Act, and therefore had no standing
to challenge the tax; Davis, as a shareholder, lacked standing as well.47 In response,
Davis argued that the company—and thus the shareholders—would see a direct injury
41 Id.
42 Id. at 2.
43 Id.
44 Id.
45 Id. at 3.
46 Id.
47 Id. at 2.
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from the enforcement of the tax because deducting the payroll tax would “cause unrest
amongst” employees.48
On January 27, 1937, the District Court made short work of the complaint. Judge
George Clinton Sweeney, a Roosevelt appointee49, held that neither Davis nor Edison
would see any direct injury from the collection of the employee-income tax because the
alleged “unrest” was “at best…mere conjecture, and, if threatened, is too remote…”.50
Therefore, both Davis and Edison lacked standing to challenge the tax.51 Judge
Sweeney then held that the employer-excise tax was “a valid exercise of the taxing
powers reposed in Congress, complying with the limitation of uniformity, and is a
measure to provide for the general welfare of the United States, and is therefore
constitutional.”52 Judge Sweeney held that Title II and Title VIII were separable as the
Act specified, because the tax revenues were not earmarked for any specific
appropriation, and so Title VIII was a “self sufficient” tax.53 Finally, Judge Sweeney
held that Davis could not have standing to challenge Title II until benefit payments
were actually made from appropriations authorized under the Act.54 Davis appealed.
The First Circuit Court of Appeals reversed and remanded on April 14. The
government strategically constructed its response to keep both of the challenged
sections in issue.55 The government argued that the Title VIII payroll taxes should be
considered independently of both one another and the rest of the Act, including Title
II.56 The government also argued in the alternative that, if Titles II and VIII should be
48 Id.
49 Federal Judicial Center, Biographical Directory of Federal Judges: George Clinton Sweeney,
http://www.fjc.gov/servlet/nGetInfo?jid=2323&cid=999&ctype=na&instate=na (last visited April 23, 2010).
50 18 F.Supp. at 2.
51 Id.
52 Id. (emphasis added).
53 Id. at 3.
54 Id.
55 89 F.2d at 394 (discussing the government’s arguments at before the Court of Appeals).
56 Id.
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considered related, Title II represented a valid exercise of Congress’ spending power for
the general welfare of the United States.57
The Court of Appeals, in a 2-1 decision by Judge Scott Wilson58 for himself and
Judge James Morton59, accepted the government’s procedural posture but then
sustained Davis’ appeal by rejecting all of the government’s arguments in turn. Judge
George H. Bingham60 dissented, essentially reiterating the holding of the District Court.
First, the court rejected Title II’s pension system under the Tenth Amendment.61
The court held that because old-age assistance was a state power at the time the
Constitution was adopted, the Tenth Amendment kept it out of Congressional
purview—even if Congress determined that the states were not fulfilling their duty.62
The court rejected the possibility that the general welfare clause of the Constitution
would allow Congress to “step in” in such a situation.63
Second, the court recognized that Davis’ suit did not directly challenge Title II.64
Instead, the court held that Title VIII existed to fund appropriations authorized by Title
II and therefore the provisions were linked.65 Because Title II was unconstitutional, the
taxes to fund it were likewise unconstitutional.66
57 Id. It is important to note that, given the District Court’s view that Title II spending questions were not
yet ripe, the government’s appellate posture preserved the Title II issue. This overcame the first of two
procedural hurdles necessary to get the holding in the Supreme Court that Title II was constitutional.
58 Judge Wilson was appointed to the court by President Herbert Hoover in 1929. Federal Judicial Center
Biographical Directory Entry for Judge Scott Wilson,

59 Judge Morton was nominated to the court by President Hoover in 1931 and confirmed in 1932. Federal
Judicial Center Biographical Directory Entry for Judge James Morton,

60 Judge Bingham was appointed to the court by President Woodrow Wilson in 1913. Federal Judicial
Center Biographical Directory Entry for Judge George Bingham,

61 89 F.2d at 395.
62 Id. at 394.
63 Id.
64 Id. at 394-395
65 Id. at 395.
66 Id.
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Finally, the court held that regardless of the constitutionality of Title II, the Title
VIII employer-excise tax was not valid under the taxing power of the Constitution
because it taxed “the right to employ labor in ordinary business”, which had not been
subject to excise taxes before.67 The court concluded: “It is like taxing a person’s right to
work.”68 The court drew analogies to Canadian and Australian law and cited
Massachusetts state law to explain the limits of excise taxation.69 The court concluded
by arguing that an unlimited federal excise tax authority would break down the
federalist structure of the United States.70
Thus, the court held that Title VIII failed under both the general welfare clause
and the excise tax power granted to Congress under the Constitution.
C. At the Supreme Court: Arguments
Once the Supreme Court granted certiorari, the government filed a massive, 111-
page brief, authored under the leadership of Assistant Attorney-General (and future
Supreme Court Justice) Robert Jackson and Special Assistant Attorney General Charles
Wyzanski, who both argued the case before the Court. The brief remains impressive for
its clarity, legal reasoning, and explanatory authority, as well as the extensive research
utilized to describe the problems Congress sought to address with the Social Security
Act.
The government’s brief carefully framed the issues before the Court with a
structured, seven-point “questions presented” section.71 By laying out the issues in a
67 Id.
68 Id.
69 Id. at 395-396.
70 Id at 396 (arguing that “unless the courts are continually on guard to preserve the dual form of our
government as founded by our forefathers, the states will indeed become mere geographical subdivisions
of the national domain.” (citations omitted)).
71 Brief for Petitioners at 2, Helvering v. Davis, 301 U.S. 619 (1937) (No. 910), 1937 WL 63781. The
“questions presented” section reads as follows:
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structured manner, the government emphasized its strategy of separating the
provisions of the Act from one another and presenting each as a separate, valid exercise
of Congressional authority. Once the brief justified each provision, it further argued
that separate, constitutional provisions cannot be made unconstitutional by being
considered together.72
The government brief then introduced a complication in the case. While the
District Court had refused to rule on the validity of the Title II expenditures, the Court
of Appeals had indirectly used the expenditures to invalidate Title VIII. This brought
Title II squarely into the dispute. Furthermore, neither court had dealt with the
question of whether they even had equity jurisdiction to answer these questions.
To deal with this, the government raised two potential jurisdictional objections in
its preliminary statement.73 First, the government argued that the case would have
given rise to an adequate equitable remedy later, precluding an injunction at the present
1. Whether the tax imposed upon employees by Section 801 of the Social Security Act is
in issue in this case.
2. Whether the tax imposed upon employees by Section 801 is a valid exercise of the
power of Congress under Article I, Section 8, Clause 1 of the Constitution.
3. Whether the tax imposed upon employers by Section 804 is a valid exercise of the
power of Congress under Article I, Section 8, Clause 1 of the Constitution.
4. Whether a taxpayer under Title VIII has a standing to question the old age benefits
provided for in Title II of the Social Security Act.
5. Whether the provision made in Title II of the Social Security Act for old age benefits
is a valid exercise of the power of Congress under Article I, Section 8, Clause 1 of the
Constitution.
6. Whether, if they be taken together, the taxes imposed by Title VIII of the Social
Security Act and the old age benefits contemplated by Title II of the Social Security
Act constitute an exercise of powers not granted to Congress.
7. Whether the taxes imposed by Title VIII violate the Fifth Amendment.
72 Id. at 16-22. The briefs argued this point by debating whether the retirement pensions and payroll tax,
together, constitute a regulatory scheme rather than an exercise of the taxing and spending power,
perhaps anticipating that the Court would rely on Butler in its decision. The Supreme Court either
ignored or implicitly rejected this entire line of argument, however, even though it did rely on Butler as
the controlling precedent. See the discussion of Butler, below.
73 Id. at 22-30.
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time.74 At the point the company paid the withheld taxes to the government, Davis
could sue in equity to compel the corporation to seek a refund.75 This remedy would
preclude any earlier equitable suit to enjoin payment. Second, federal law76 prohibited
equitable interference with federal tax collection.77 However, the government argued
that both these defenses could be waived—and that the government had done so.78
The government wanted to waive jurisdiction because the appeals process had
delayed a final resolution on the validity of the Social Security Act beyond the first due
date of the taxes in Title VIII.79 If the Act were struck down, the federal government
would not only have to raise other revenue to fund appropriations that had been made
in expectation of the taxes, but it would also have to refund the taxes already
collected—over $58 million—plus interest.80
The government further argued that until the Court announced a definitive
resolution of the validity of the tax, it would face “an avalanche of suits” questioning
payment, and would also face numerous employers unwilling to withhold payment
from their employees.81 Likewise, since the economy had already begun to adjust to the
burden of the new tax, a certain outcome either way would equalize economic
conditions across the country.82
In light of these “serious budgetary, fiscal and administrative problems” the
government waived “any technical objections whatever…and desire[d] to have a
decision on the constitutionality of the statute and not merely on procedural points.”83
74 Id.
75 Id.
76 R.S. Sec. 3224 (26 U.S.C.A. § 1543), 1937.
77 Brief for Petitioners, supra note 71, at 22-30.
78 Id.
79 Id.
80 Id.
81 Id.
82 Id. Once prices had risen in expectation of the new tax, any legal uncertainty over the validity of the tax
would leave prices disconnected from either costs or demand and distort the economy.
83 Id.
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In the brief’s remaining eighty pages, the government set out its argument for the
constitutionality of the statute. The government relied on Congress’ authority, under
the General Welfare clause, to act for the amelioration of the desperate conditions facing
the country during the depression.84 The brief described the problem of rampant
unemployment, particularly among the elderly, and argued that Congress had validly
determined that old-age pensions would help relieve the burden on society created by
the situation.85
Davis’ brief to the court stands in stark contrast to the government’s. Before even
quoting the text of the Social Security Act, Davis made his argument political. His brief
stated: “[The title ‘Social Security Act’] is misleading. This attempted Act is not social.
It is anti-social. It attempts to put Society’s burden on a fraction capriciously picked. It
does not provide security.”86
Davis then predicated his argument on the idea that Titles II and VIII are
“singular”—that the taxes exist only to pay for the benefits.87 Using the text of the
statute and the legislative history, Davis showed the relationship between the two
provisions and that Congress thought of them as one legislative scheme.88
Next, Davis expanded and reiterated his argument that the employer-excise was
not a valid excise under the taxing power.89 He stated that because the original
meaning of “excise” under the constitution was an “inland duty or impost on a tangible
commodity in manufacture or in sale either in the court of trade or for consumption”—
which the challenged tax obviously was not—it could not be a permissible tax under the
Constitution.90 Essentially, Davis argued that the taxing power was based on an idea of
84 Id. at 31-111.
85 Id. at 49-85.
86 Brief for Plaintiff-Appellant-Respondent, supra note 39, at 7.
87 Id.
88 Id. at 7-21.
89 Id. at 22-38.
90 Id. at 30.
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taxation wholly different in scope from the payroll tax and that the novelty of such a tax
made it ripe for adjudication.91
He then described the extent to which the payroll tax lacked uniformity and was
therefore capricious.92 Davis argued that enough classes of employee and retiree are
exempt from the Act that both the benefits and burdens are unevenly and capriciously
dispersed among the population.93
Finally, Davis addressed the main issue underlying the District Court’s original
holding and the government’s argument: the scope and meaning of the General Welfare
clause of the Taxing and Spending Power. Proceeding from the First Circuit’s Tenth
Amendment holding that Congress does not have the power to provide old-age benefits
under Title II, and upon the assertion that “[t]he States when they set up the United
States as a Government, did not make it an eleemosynary94 institution”, Davis first
argued that the federal government had no authority to support the needy or retired.95
Curiously, to get around the general welfare argument raised by the First Circuit,
Davis argued that the General Welfare clause should be narrowly construed to allow
taxing and spending only for the “general welfare of the government of the United
States.”96 Davis read the general welfare clause as a “term[] of restriction” limiting the
scope of the taxing and spending power to that “opposite” the states.97 Because the
states were tasked with providing pensions, Congress’ taxing and spending for such
was not in the “general welfare” of the federal government, and thus not permitted
under the Tenth Amendment.98
91 Id. at 32-34.
92 Id. at 39-46.
93 Id.
94 “Eleemosynary” means: “Of, relating to, or assisted by charity”, Black’s Law Dictionary, 559 (8th ed.
2004).
95 Brief for the Plaintiff-Appellant-Respondent, supra note 39, at 47-48.
96 Id. at 48 (emphasis added).
97 Id. at 52.
98 Id. at 56-60.
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D. At the Supreme Court: the Decision
On May 24, 1937, Justice Cardozo announced the Court’s 7-2 decision. On the
merits, the Court held that the old-age pensions in Title II did not contravene the Tenth
Amendment because Congress had the power to provide for the “general welfare”
which included taking action to ameliorate unemployment and poverty.99 Because the
Court upheld Title II, it did not decide the question of the independent validity of Title
VIII.100 It held by reference to a companion case101 that the employer-excise was valid as
an excise.102 Justices McReynolds and Butler dissented by stating that “the provisions of
the Act here challenged are repugnant to the Tenth Amendment…”.103
Even though he wrote for a 7-2 majority on the merits of the case, Cardozo also
lodged a dissent in his opinion. Before evaluating the case on its merits, the Court had
to address the question of jurisdiction that the government had raised in its brief.104 On
this issue, Cardozo wrote only for a four-justice minority—himself, Brandeis, Stone, and
Roberts.105 They argued that the case should not have been resolved on the merits at all.
In Cardozo’s opinion, the case was not properly before the court as a case in equity, so
Davis had no cause of action and the Court should dismiss and refuse the injunction.106
The other five Justices—Butler, McReynolds, Sutherland, van Devanter, and
Chief Justice Hughes—disagreed. Cardozo wrote that this majority found “in this case
extraordinary features making it fitting in their judgment to determine whether the
99 301 U.S. at 640-645.

100 Id. at 645.
101 Steward Machine Company v. Davis, 301 U.S. 548 (1937). The Court held that the Act’s provision
excepting some employers from the tax did not defeat the provision’s status as a valid excise.
102 301 U.S. at 645-646.
103 Id. at 646.
104 Id. at 639.
105 Id.
106 Id.
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benefits and the taxes are valid or invalid.”107 Capitulating to the majority vote on this
issue, Cardozo went on to the merits of the case.108
Cardozo’s opinion is eloquent109 and brief. It explains only the Court’s decision
with respect to the constitutionality of Title II—every other holding is explained by
inference or reference.110 Cardozo held that Title II did not violate the Tenth
Amendment because it was within Congress’ spending power.111 Title II was within
Congress’ spending power because it provided for the “general welfare” by attempting
to alleviate the effects of the Depression with old-age pensions.112
Because his holding depended on whether old-age pensions fall under the
mantle of “general welfare”, Cardozo used most of the opinion to explain the General
Welfare clause of the Constitution and the scope of authority that it gives to Congress.
Cardozo held that United States v. Butler “settled by decision” that the scope of the
clause was unrestrained by the other enumerated powers in the Constitution.113
Cardozo argued that the only limit on the clause turns on distinguishing “general”
welfare from “particular” welfare.114 This decision is made by Congress, not the Court,
“unless the choice is clearly wrong, a display of arbitrary power, not an exercise of
judgment.”115
107 Id. at 640.

108 Id. at 640 (noting that the “ruling of the majority removes from the case the preliminary objection as to
the nature of the remedy….[u]nder the compulsion of that ruling, the merits are now here.”).
109 One author has called it “beautifully written”. Friedman, supra note 14, at 1954.
110 The Court primarily referenced its opinion in Steward, which was handed down the same day and
upheld a separate provision of the Social Security Act.

111 301 U.S. at 640.
112 Id. at 641 (deferring to Congress’ policy judgment that the “hope behind this statute is to save men and
women from the rigors of the poor house as well as from the haunting fear that such a lot awaits them
when journey’s end is near.”).
113 Id. at 640.
114 Id.
115 Id.
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In exercise of this deference to Congress, Cardozo briefly summarized the
justifications for Title II in light of the Depression116 and concluded that “Congress, at
least, had a basis” for believing both that the states could not effectively deal with the
national unemployment problem and that retirement pensions would at least partially
help, “conducive to the general welfare.”117
Under the mantle of judicial self-restraint, Cardozo dismissed Davis’ argument
that “aid from a paternal government may sap those sturdy virtues [of self-reliance and
frugality] and breed a race of weaklings” by declaring the issue “closed” and “fought
out”.118 To Cardozo, the issue of what congressional action is in the general welfare of
the United States was simply not a judicial question.
II. Context and Analysis
While Justice Cardozo’s opinion in Helvering remains good law to this day,119 at
the time it was a novel decision for several reasons. First, the Court had never before
used the General Welfare clause to uphold a piece of federal legislation.120 In fact, the
Court’s only precedent construing the clause was dicta from a case striking down
federal agricultural legislation on other grounds. Second, the Court enjoyed a seven-
justice majority—a rarity in an era of 5-4 decisions. In addition to Hughes’ and Roberts’
continued switch in favor of the government, the Four Horsemen split, with two—Van
Devanter and Sutherland—joining the Court in upholding the law. At the same time,
however, the three Justices most associated with pro-New Deal jurisprudence would
have rejected the case on a procedural technicality and left the Act in legal limbo—and
116 Id. at 641-643. Cardozo’s two-and-a-half page explanation of the general welfare utilized examples
either explicitly mentioned in the government’s brief, or cites to sources listed in the government’s brief.
117 Id. at 641, 644.
118 Id. at 644-645.
119 Shepard’s citation list of Helvering reveals only two cautionary cites—both are lower court decisions
distinguishing the case on factual grounds.

120 Friedman, supra note 14, at 1955.
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the government in an administrative quagmire.121 Finally, the Court heard and decided
the case well after the apex and decline of the Court-Packing fight and President
Roosevelt’s attempt to influence the Court. Having emerged victorious from that fight,
the Court owed no political favors to the administration, even on issues of wildly
popular legislation.
Each of these points requires further analysis. How did the Court come to
develop its General Welfare clause jurisprudence, giving expansive power to the
government, at a time when the Court seemed opposed to such power? If the Four
Horsemen were such stalwarts of limited government intervention, why did they split
on this important, long-lasting122 issue? Given the final vote, why did the liberals try to
keep the case from being decided on the merits? Why did Roberts join them, and why
did Hughes cast the tie-breaking vote? If the Court wasn’t bending to political
pressure, why did it act the way it did?
A. Legal and Historical Background
In light of the legal and historical influences on the Court at the time of
Helvering, its decision was both predictable and legally justifiable.123 The switchers,
Hughes and Roberts, brought unique and idiosyncratic perspectives to the question that
had been shaped by their professional experiences on and off the court. Chief Justice
Hughes had a personal interest in the legal issues raised by the Social Security Act; and
he additionally understood the power of the Court in gradually shaping the law
121 See discussion at notes 79-82, infra.

122 Social Security remains a cornerstone of federal entitlement spending. The modern versions of the
provisions challenged in Helvering—old-age retirement pensions and the payroll tax—are integral parts
of American society and continue to shape the political discourse in the country. See, e.g. Michael Tanner,
“No Second Best: The Unappetizing Alternatives to Social Security Privatization,” The Cato Project on
Social Security Privatization, SSP. No. 24 (2002); Douglas R. Gladden, “Social Security and Its Alternatives,”
(December 2, 2004) (unpublished term paper, Georgia Institute of Technology) (on file with author).
Page 19 of 58
through novel legal theories.124 Justice Roberts, on the other hand, was a conservative—
if not timid—legal writer, and insecure in his own abilities as a judge.125 At the same
time, he strove to be as consistent as possible in his decisions.126 The careful balance
these two men struck during the 1930s significantly impacted the doctrinal evolution of
the Court leading up to Helvering. Hughes and Roberts developed a General Welfare
and Tenth Amendment jurisprudence that, however misguided or erroneous it seemed
to the liberal justices, gave a legal foundation on which the Court could ground its
opinion upholding Social Security.
The Four Horsemen were not the homogenous bloc they sometimes seemed.127
They divided on the proper interpretation of the Government’s spending authority.
Because the two more-moderate Horsemen seemed to prefer Hughes’ and Roberts’
jurisprudence, however, the liberals tried to prevent them from using Helvering as an
opportunity to further compound the error. When that attempt failed, Justice Cardozo
wrote to uphold the Act in a way that allowed Justice Stone to correct the Court’s
doctrinal course several years later.
1. Understanding the Switchers: Butler and the General Welfare Clause
Article 1, Section 8, paragraph 1 of the Constitution states:
“The Congress shall have Power To lay and collect Taxes, Duties, Imposts
and Excises, to pay the Debts and provide for the common Defence and
general Welfare of the United States; but all Duties, Imposes and Excises
shall be uniform throughout the United States….”
When Justice Cardozo used the General Welfare clause of this taxing and spending
power to uphold the old-age pensions under Title II, he cited the only precedent on the
124 See discussion of Hughes, below.

125 Friedman, supra note 14, at 1944-1945.
126 Id. at 1897 (arguing that Roberts may have been “acting perfectly rationally” within his own
jurisprudential framework).
127 According to Powe, supra note 6 at 196-200, the Horsemen split often even in the 1920s.
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subject, United States v. Butler, for the proposition that the clause was broad enough to
encompass such a program.128
In Butler, the Court had voted 6-3 to strike down the Agriculture Adjustment Act
(AAA) in January 1936. In order to raise farm prices, the AAA had authorized the
Agricultural Adjustment Administration to spend appropriated funds to restrict the
supply of various commodities.129 The Administration would either rent out land but
not farm it, buy up excess production, or simply pay farmers not to produce.130 The
appropriation was funded with a tax on commodity producers.131 Justice Roberts wrote
for Hughes and the Four Horsemen and held that the taxing and spending was actually
“but means to an unconstitutional end”, that is, regulating agriculture.132 Roberts based
this decision on the Tenth Amendment. Since the federal government had no authority
to regulate agriculture, he argued, the Tenth Amendment reserved that power to the
states.133
Butler has been criticized as “bizarre” by some scholars because of the unique
way Roberts justified his reliance on the Tenth Amendment.134 Roberts construed the
taxing and spending power broadly by means of adopting the “Hamiltonian” view of
the General Welfare clause, but then held that Congress was not authorized enact the
AAA’s scheme of taxing and spending because it amounted to regulation rather than
taxation.135 This characterization made his discussion of the taxing and spending power
irrelevant to the outcome of the case.
128 301 U.S. at 641.

130 Id.
131 Id.
132 297 U.S. at 68.
133 Id. at 68-78.
134 Michael E. Parrish, The Hughes Court: Justices, Rulings, and Legacy 32-33 (2002).
135 297 U.S. at 65-68, 77-78; see also William G. Ross, The Chief Justiceship of Charles Evans Hughes, 1930-1941,
74-75 (2007); Henretta, supra note 7, at 164; Friedman, supra note 14, at 1953-1954; Bradley A. Smith,
Hamilton at Wits End: The Lost Discipline of the Spending Clause vs. the False Discipline of Campaign Finance
Reform, 4 Chap. L. Rev. 117, 125-126 (2001).
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The upshot for the Court was that the opinion, endorsed by six Justices,
contained language which ostensibly granted Congress broad new powers of taxing
and spending. Because Justice Cardozo relied on that language in Helvering, Roberts’
construction requires further analysis.
When Justice Roberts adopted the Hamiltonian view of the spending power, he
did not consider it in a vacuum. Instead, he contrasted it with the Madisonian view–
based on the writings of James Madison—of the spending power.136 During the public
debates on the constitution, Madison had set out his view of the spending power—and
his view of its critics:
Some who have not denied the necessity of the power of taxation, have
grounded a very fierce attack against…the language in which it is defined. It has
been urged…that the power…amounts to an unlimited commission to exercise
every power which may be alleged to be necessary….No stronger proof could be
given of the distress under which these writers labour…than their stooping to
such a misconstruction….what color can the objection have, when a specification
of the objects alluded to by these general terms, immediately follows[?]137
Madison saw the spending power as limited by the remaining enumerated powers in
Article 1, Section 8; but he further argued that the only purpose for construing the
power more broadly was to defeat the ratification of the Constitution.
Some opponents of the Constitution did just that. Robert Yates argued:
The [taxing and spending power]…may be said to be a limitation: but this is no
restriction of the power at all, for by this clause they are to be applied
to…provide for the…general welfare of the United States; but the
legislature…determine[s] what is for the general welfare; this power therefore
is…a power to [tax] at their pleasure; not only the power to lay taxes unlimited,
136 297 U.S. at 65; Friedman, supra note 14, at 1955.

137 The Federalist No. 41 (James Madison).
Page 22 of 58
as to the amount they may require, but it is perfect and absolute to raise them in
any mode they please.138
Yates believed the spending power was a backdoor to expansive federal power, because
the Congress could use the “general welfare” provision to legislate outside the confines
of its enumerated powers. Yates further charged:
[T]he general government of the United States [is] so framed, as to absorb and
swallow up the state governments….under the [taxing and spending
power]….even if the most favorable construction was given…it will convey a
power to lay and collect taxes…according to the discretion of the legislature…the
respective state governments will not have the power to raise [revenue]…but by
the permission of the Congress.139
Yates concluded:
[W]hat ideas are included under the terms, to provide for the…general welfare?
Are these terms definite, and will they be understood in the same manner, and to
apply to the same cases by everyone? No one will pretend they will. It will be a
matter of opinion….To provide for the general welfare is an abstract
proposition….[and] in practice, a most pitiful restriction. The government would
always say, their measures were designed and calculated to promote the public
good….140
138 Brutus I (Robert Yates).

139 Brutus VI (Robert Yates).
140 Id. Yates was incensed by the time he wrote Brutus VI. With respect to the excise tax authority under
the taxing power, he wrote:

This power, exercise without limitation, will introduce itself into every corner of the city, and
country—It will wait upon the ladies at their toilett, and will not leave them in any of their
domestic concerns; it will accompany them to the ball, the play, and the assembly; it will go with
them when they visit, and will, on all occasions, sit beside them in their carriages, nor will it
desert them even at church; it will enter the house of every gentleman, watch over his cellar, wait
upon his cook…follow the servants…preside over the table, and note down all he eats or drinks;
it will attend him to his bed-chamber, and watch him while he sleeps; it will take cognizance of
the professional man in his office, or his study; it will watch the merchant…; it will follow the
Page 23 of 58
What Yates feared, however, Alexander Hamilton actively embraced. In
Hamilton’s view, the General Welfare clause gave Congress the power to spend for any
purpose, subject to other constitutional limits—that is, the clause was a separate
enumerated congressional power. Hamilton called for judicial deference on this point:
the courts should leave “to the discretion of the National legislature to pronounce upon
the objects which concern the general welfare, and for which, under that description,
and appropriation of money is requisite and proper.”141
Joseph Story advocated for Hamilton’s view early on, and in the 20th century
Oliver Wendell Holmes, Jr. also supported the concept.142 But the most effective
supporter of the Hamiltonian view was Chief Justice Hughes,143 who had advocated the
doctrine before the Court while in private practice.144 The Court had never resolved an
issue based on Hughes’ General Welfare arguments, however.145 In Butler, the
government attorneys recognized that Hughes would be a sympathetic ear to this line
of argument, and their brief actually incorporated passages from Hughes’ earlier brief
supporting the Hamiltonian view.146
A common scholarly criticism of Roberts’ opinion is that he endorsed Hamilton
but applied Madison.147 That criticism ignores the fact that Roberts’ endorsement of
mechanic…and will haunt him in his family, and in his bed; it will be a constant companion of
the industrious farmer…in the house, and in the field…it will penetrate into the most obscure
cottage; and finally, it will light upon the head of every person in the United States. To all
these…people, and in all these circumstances…the language in which it will address them, will
be GIVE! GIVE!
As Madison would say, Yates clearly labored under severe distress.
141 Smith, supra note 134, at 124.
142 Id. at 125.
143 Id.
144 Henretta, supra note 7, at 164.
145 Id.; Friedman, supra note 14, at 1955; Smith, supra note 134, at 125.
146 Henretta, supra note 7, at 164; Friedman, supra note 14, at 1956.
147 Smith, supra note 134, at 125-126 (arguing that “The Supreme Court…endorsed the Hamiltonian
reading of the Spending Clause…[and] reached the rather Madisonian conclusion that the spending was
not in furtherance of the “general Welfare,” and so was proscribed….”).
Page 24 of 58
Hamilton was merely dicta.148 However, as the government’s decision to use Hughes’
own arguments shows, it was no accident that Butler included its unnecessary
discussion of the General Welfare clause. Roberts added the language at the request of
Chief Justice Hughes.149 To understand why he did so, it is necessary to examine the
two Justices in greater detail.
Chief Justice Charles Evans Hughes originally came to the Court in 1910 when
President William Howard Taft tapped him to be an associate Justice.150 Hughes was
serving as Governor of New York at the time.151 He left the Court six years later to run
for President as the Republican nominee against Wilson.152 He lost and went into
private corporate practice until President Harding appointed him Secretary of State in
1920.153 When then-Chief Justice Taft resigned in 1930, President Hoover decided to
bring Hughes back to the Court as Chief.154
Hughes’ second nomination to the Court was controversial before Hoover even
nominated him. First, Hoover alienated organized labor by not consulting with them
over Chief Justice Taft’s replacement.155 Second, Hoover apparently wanted to elevate
Justice Stone to Chief and Judge Learned Hand to the Court, but both Taft and Attorney
General William Mitchell supported Hughes.156 The rumor at the time was that Hoover
agreed to appoint Hughes but expected him to decline, which would satisfy Taft and
other Republicans while allowing Hoover to pack the Court with progressives.157
Attorney General Mitchell organized a meeting between Hughes and Justices Van
148 See, e.g., Ross, supra note 134. See also Friedman, supra note 14, at 1955 (recognizing that Roberts
merely “endorsed” the Hamiltonian view).
149 Friedman, supra note 14, at 1955; Parrish, supra note 133, at 33.
150 John Anthony Maltese, The Selling of Supreme Court Nominees 53 (Johns Hopkins Paperbacks 1998).
151 Henretta, supra note 7, at 128-129
152 Maltese, supra note 149.
153 Id.
154 Id.
155 Id.
156 Id. at 54.
157 Id.
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Devanter and Butler where the two Justices convinced Hughes to accept the
nomination.158
Finally, because of the perceived economic conservatism of the Court during the
first third of the twentieth century, Senate liberals subjected nominees to very
scrutinous advise-and-consent process.159 In 1929, the Senate Rules were changed to
require public debate on judicial nominees.160 Hughes was thus the first judicial
nominee to face public Senate scrutiny.161 While Hughes’ tenure as an associate Justice
had been “moderate”, his political and private legal work led to characterizations of
corporate advocacy and economic conservatism.162 Even though the Senate Judiciary
Committee favorably presented Hughes with a 10-2 vote,163 the full Senate was less
forgiving. For example, Senator George Norris, R-Nebraska, attacked Hughes’
connections with “big business” and criticized him for his advocacy before the Supreme
Court on behalf of corporate interests.164
Just as the story of the Court is messy,165 it is difficult to neatly categorize
Hughes’ political and legal career before his appointment. He certainly appeared
liberal, if not Progressive. When he served as chief counsel for a committee in the New
York legislature, for example, Hughes eschewed social ties—the former law partners
and current political bosses who were beholden to special interests—and “was
influenced more by occupational norms” in successfully fighting corruption in
corporate monopolies.166 As legislative counsel, Hughes actively supported regulation
158 Id.
159 Id. at 21.
160 Id. at 55.
161 Id.
162 Id. at 53.
163 Id. at 54.
164 Id. at 55.
165 See Friedman, supra note 14.
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and municipal utility ownership.167 He proposed extensive state legislation to move
New York “toward a new system of political economy, ‘one based on regulation,
administration, and planning.’”168 As Governor, Hughes was “a socially conscious
Progressive, an advocate of a ‘positive regulatory state.’”169
In spite of this early track record, Hughes ultimately became “wary of the
authority of the bureaucratic state and of the utopian schemes of social reformers.”170
Chief Justice Taft tried to excuse Hughes’ earlier activism by arguing that it simply
“reflected the zeitgeist of the Progressive Era rather than a deep personal commitment
to reform.”171 Hughes’ apparent proclivity to go with the political flow is best explained
by his commitment to “demand the facts…[and] stand or fall by the facts.”172 As a
politician, lawyer, and judge, Hughes consistently relied upon careful factual
distinctions to make decisions and guide the evolution of the law.173
After three days of floor debate, and one unsuccessful motion to recommit, the
Senate confirmed Hughes by a vote of 52-26-18.174 Following the vote, and as the
country entered into the Great Depression, Senator Robert La Follette lambasted the
Court for siding with “organized greed” in the midst of economic downturn.175 On
February 14, 1930, the day after Hughes’ confirmation, liberals in the Senate proposed a
constitutional amendment to end “judge-made law.”176
The Senate’s fears may have been justified. Hughes’ penchant for factual
distinctions rather than sweeping reversals of precedent led him to advocate a strange
167 Id. at 123.

168 Id. at 125.
169 Id. at 128.
170 Id. at 148.
171 Id.
172 Id. at 151.
173 Id.
174 Maltese, supra note 149, at 55. The vote means that 18 Senators abstained.
175 Id.
176 Id., at 56 (citing “Senators Attack the Supreme Court for ‘Seizing Power,’” New York Times, Feb. 15,
1930; and “’Lawmaking’ Curb on Supreme Court Is Urged in Senate,” New York World, Feb. 15, 1930).
Page 27 of 58
blend of judicial activism and conservatism.177 Hughes was not likely to simply ignore
precedent; however, he was willing to use cases before the Court as opportunities to
seed Court opinions with novel legal arguments in order to create useful precedent.
Butler provided Hughes with one such opportunity. Hughes apparently did not
oppose the entire AAA, and was thus unwilling to write the opinion striking it down.178
Instead, Hughes gave the task to Roberts, who opposed the AAA on Tenth Amendment
grounds.179
Associate Justice Owen Roberts was Hoover’s next successful appointment after
Hughes. A month after Hughes’ confirmation, Justice Edward Sanford died.180 Hoover
originally nominated 4th Circuit Court of Appeals Judge John Parker to the Court.181
Hoover handled the nomination poorly, and Parker had just enough of a negative
record to galvanize opposition from organized labor and civil rights groups.182 He had
ruled against the United Mine Workers in a case out of West Virginia, and had used
177 According to Henretta, supra note 7, at 156, Hughes feared “confiscatory tax policies” that typically
arose from the regulatory administrative agencies he actively supported. This led Hughes to resist much
Court oversight of regulatory agencies. In a 1908 speech that Henretta has applied as “prophetic” of the
Court-Packing era, Hughes explained his nuanced view of the political relationship between government
and the courts:
You must have administration, and you must have administration by administrative officers. You
cannot afford to have it otherwise. Under the proper maintenance of your system of government
and in view of the wide extension of regulating schemes which the future is destined to see, you
cannot afford to have that administration by your courts. With the courts giving a series of
decisions in these administrative matters hostile to what the public believes, and free from that
direct accounting to which administrative officers are subject, you will soon find a propaganda
advocating a short term judiciary, and you will turn upon our courts ...that hostile and perhaps
violent criticism from which they should be shielded and will be shielded if left with the
jurisdictions which it was intended they should exercise.
Addresses of Charles Evans Hughes 142 (G. P. Putnam's Sons 1908) (quoted in Robert M. Cooper, “The
Proposed United States Administrative Court: Part II, Considerations of Policy,” 35 Mich. L. Rev. 565,
569-70, fn. 363 (1937)).
179 Id. at 164.
180 Maltese, supra note 149, at 56.
181 Id.
182 Id. at 56-69.
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racially inflammatory rhetoric when running for Governor of North Carolina.183 During
the Senate confirmation hearings, Senator Henry Ashurst accused Hoover of offering
appointments to Senators in exchange for supporting Parker.184 Leaked documents
indicated that Hoover nominated Parker only as a ploy to win the “lily white” South in
1932.185 The Senate rejected Parker 41-39—essentially a one-vote margin.186 Seventeen
Republican Senators—mainly those tied to labor or with black constituencies—voted
against Parker.187 In the fallout, Hoover quietly nominated Roberts, a corporate lawyer
from Philadelphia and the special prosecutor of the Teapot Dome Scandal.188 The Senate
confirmed his nomination with little controversy189.
Roberts’ judicial temperament has been described as “mercurial.”190 Judge
Learned Hand once wrote to Felix Frankfurter that Roberts was “open to
considerations” that did not affect others and that he had “the nature of a shuttle.”191
Nevertheless, Hand maintained that Roberts possessed a “matchless integrity.”192 In
other words, Roberts was unpredictable. Hoover had selected a Justice who was never
consistently progressive nor conservative.193
Professor Richard Friedman has analyzed Roberts’ New Deal record and
concluded that the best way to understand Roberts is to recognize his “judicial
183 Id.
184 Id. at 67-68
185 Id. at 68.
186 Id. at 68. Had the vote split 40-40, Hoover’s Vice-President could have cast the tie-breaking vote for
Parker.
187 Id. The Republican opposition more than offset the eight Democrats who supported Parker.
189 The much-noted irony is that Judge Parker stayed on the 4th Circuit and became known as a champion
of liberal interests, especially with respect to both labor and racial issues.
191 Ross, supra note 6, at 1169.
192 Id.
193 Henretta, supra note 7, at 148 (recounting Joseph Cotton’s observation that “anyone who takes Owen
Roberts for a liberal is going to be disappointed.”).
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timidity.”194 Whether as a result of the appointment process, a personal sense of
mediocrity, or an inability to express his idiosyncratic methods of legal reasoning,
Roberts worked hard not to distinguish himself on the Court.195 Nevertheless, Roberts
tried to remain as consistent as possible within his own unique jurisprudential world.196
Roberts preferred to decide issues narrowly. He wanted to avoid constitutional
decisions if at all possible.197 This preference can explain Roberts’ procedural vote in
Helvering. Roberts would have avoided a decision on the merits of the Social Security
Act altogether. He agreed with Cardozo that the issue was not properly raised in
equity, and therefore the Court had no jurisdiction to decide the constitutional
question.198
Some of Roberts’ more notorious decisions, however, seem to belie this
perception of his judicial temperament. If Roberts was so committed to narrow
decisions and avoiding constitutional questions, why did he include irrelevant dicta in
Butler? Professor Friedman believes a clue can be found in a note-conversation between
Frankfurter and Roberts in Frankfurter’s copy of the United States Reports:
FF. I hope you now realize what a door you opened in your—shall I say—much
discussed Butler decision as to scope of ‘general welfare.’

195 Id. at 1944-1945. Notably, Roberts never wrote a concurrence during Hughes’ tenure, and he rarely
spoke at oral argument.
196 Roberts admitted on several occasions that even he didn’t always understand his decision-making
process. His apparent vacillations on legal issues led one exasperated Justice to ask another, “What is the
matter with Roberts?” Shesol, supra note 7, at 404.
197 Friedman, supra note 14, at 1945. This penchant for issue-avoidance possible led to Roberts’ most
apparently-inconsistent votes in 1937 under the Commerce Clause. Friedman’s discussion of Roberts’
decision-making in the Tipaldo and West Coast Hotel cases and why they are at least ostensibly
intellectually consistent despite their outcomes is both instructive and illuminating.
198 Hughes, on the other hand, cast the “swing vote” to hear the case on the merits—thus setting up the
opportunity for Cardozo to apply Hughes’ General Welfare language in upholding the statute.
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O.J.R. I do realize, and often wonder why the hell I did it just to please the
Chief.199
Roberts included the general welfare dicta at Chief Justice Hughes’ insistence. Because
of his judicial conservatism, however, Roberts had to have agreed with the statement.
Roberts’ note implies, however, that the language was necessary to secure Hughes’s
vote in striking down the AAA. But Roberts did not need Hughes—he had four other
votes in Butler—and Hughes did not necessarily support striking down the AAA. Why
did Robert so readily capitulate to the unnecessary language?
Roberts may not have needed Hughes to secure a majority, but he did need
Hughes to secure the writing assignment. Roberts was the junior justice among the
conservative majority in Butler.200 Without Hughes’ presence in the majority, the
decision likely would have gone to one of the Four Horsemen—and been accordingly
more conservative. Roberts may not have initially wanted to discuss the General
Welfare clause in Butler, but he apparently found it preferable to leaving the
invalidation of the AAA to the conservatives.
At the point he wrote Butler, Roberts was already unwilling to strike down a
taxing and spending scheme under a narrow construction of the spending power.201 By
holding instead that the AAA was a regulatory scheme, Roberts created a compromise
position that satisfied six Justices. Roberts and the Horsemen defeated the AAA,
Roberts and Hughes avoided a narrow reading of the spending power, and Hughes
secured dicta endorsing an expansive scope of the spending power. Whatever
199 Friedman, supra note 14, at 1955. This exchange is also recounted in Marian C. McKenna, Franklin
Roosevelt and the Great Constitutional War: The Court-Packing Crisis of 1937, 135 fn. 41 (2002).
200 Only Cardozo, whom Hoover tapped to replace Justice Holmes, was more junior on the Court.
Page 31 of 58
“stratagems or…maneuverings”202 Hughes may have engaged in to affect this result, the
outcome paved the constitutional way for Helvering one year later.
2. Explaining the Split in Four: Butler and The Tenth Amendment
Because he endorsed an expansive view of the spending power under the
General Welfare clause, Roberts had to rely on the Tenth Amendment in Butler to hold
that the AAA was outside Congressional purview. The Tenth Amendment to the
Constitution states: “The powers not delegated to the United States by the Constitution,
nor prohibited by it to the States, are reserved to the States respectively, or to the
people.” Roberts applied this language in Butler’s key holding:
From the accepted doctrine that the United States is a government of delegated
powers, it follows that those not expressly granted, or reasonably to be implied
from such as are conferred, are reserved to the states, or to the people.…The
same proposition, otherwise stated, is that powers not granted are prohibited.
None to regulate agricultural production is given, and therefore legislation by
Congress for that purpose is forbidden.203
Roberts could have stopped here in his opinion. Instead, he included Hughes’ General
Welfare dicta to keep the opinion out of the hands of the Four Horsemen. Whatever
Roberts expected them to write, it apparently would have limited federal power further
than Roberts was willing to go. It was at least enough to convince Roberts to throw
Hughes a constitutional bone in order to get the opinion assignment.
Roberts’ fear of how the Horsemen would have struck down the AAA explains
why those same four Justices split on the issue in Helvering. Because of this split among
202 Henretta, supra note 7, at 164-169. Hughes “maneuverings”, as Frankfurter called them, showed not
just a “determination to lead his divided court and to oversee the evolution of constitutional doctrine”,
but also an unfortunate desire to be in the majority at the expense of personal consistency. Notably,
Hughes only wrote 11 dissents during his tenure as Chief Justice, and only 18 during his entire service on
the Court.
203 297 U.S. at 68.
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the Horsemen, four of Butler’s six majority Justices voted to uphold the Social Security
Act in Helvering.204 The remaining dissenters, Butler and McReynolds, maintained that
the Social Security Act was “repugnant to the Tenth Amendment….”205 Only these two
Justices, therefore, held a view of the Tenth Amendment that was expansive enough to
concern Roberts. Since none of the Horsemen wrote a separate opinion in Butler, the
extent to which they would have applied the Tenth Amendment is unknown. Instead,
to clarify the Court’s internal struggle about the meaning of the Tenth Amendment, it is
necessary to examine the view of the amendment that ultimately prevailed on the
Court—that of Justice Harlan Stone.
Justice Stone saw his conception of the Tenth Amendment gradually take hold
among the Justices. He had dissented strongly in Butler.206 He joined the seven-justice
majority in Helvering. Then, in United States v. Darby,207 Stone wrote for the majority and
effectively wrote the Tenth Amendment out of Supreme Court jurisprudence by
famously labeling it “but a truism”.208
In Butler, Stone did not think the AAA overstepped the bounds of Congressional
authority.209 While Roberts had determined that the Act regulated agriculture because
the authorized expenditures were “coercive”—that is, they placed economic pressure
on farmers to accept payments in lieu of production—Stone argued that the AAA
instead merely imposed conditions on a public expenditure.210 By the majority’s
reasoning, he argued, many conditions imposed by Congress would be prohibited
204 Friedman, supra note 14, at 1956-1957.

205 301 U.S. 646.
206 McKenna, supra note 199, at 133-134. Stone’s first draft was written in a day and was so indignant that
Roberts pled with Hughes to convince Stone to tone the opinion down. Hughes refused and referred
Roberts to Brandeis, who likewise refused to intervene. Stone eventually tempered his dissent.
207 312 U.S. 100 (1941).
208 Id. at 124.
209 297 U.S. at 79 (Stone, J., dissenting).
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regulation.211 Stone believed the AAA fell squarely within Congress’ constitutional
spending power.212
In 1941, Stone upheld the Fair Labor Standards Act in Darby. The FLSA had set
wage and hour requirements on child labor which were challenged in part under the
Tenth Amendment.213 Stone rejected both Butler and the dissent in Helvering when he
held that the case:
is unaffected by the Tenth Amendment….The amendment states but a truism
that all is retained which has not been surrendered… There is nothing in the
history of its adoption to suggest that it was more than declaratory of the
relationship between the national and state governments as it had been
established by the Constitution before the amendment….[F]or many years the
amendment has been construed as not depriving the national government of
authority to resort to all means for the exercise of a granted power which are
appropriate and plainly adapted for the permitted end.214
Stone’s description of the amendment as “but a truism” dismissed any analytical value
the amendment may have had and trivialized the amendment as, at best, a “self-evident
truth.”215 Stone’s critics point out that Stone re-phrased the amendment before
dismissing it.216 They argue that the amendment spells out the separation between state
and federal authority implied in the Constitution that was meant to be a clear break
from the English tradition of unitary government.217 Since governments are not always
necessarily federal in nature,218 the amendment is not actually a truism.
211 McKenna, supra note 199, at 135-136

213 John R. Vile, “Truism, Tautology or Vital Principle? The Tenth Amendment Since United States v.
Darby,” 27 Cumb. L. Rev. 445, 458 (1996).

214 312 U.S. at 123-124.
215 Vile, supra note 213, at 461.
216 Id. at 462.
217 Id. at 462-464.
218 The unitary English system is a clear counter-example.
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Walter Berns has provided a plausible explanation of Stone’s argument.219 If
Stone viewed the amendment as a “rule of interpretation” rather than a “rule of law”—
meaning that the amendment does not provide any rule that the Court can apply to
settle a legal dispute—then the amendment is indeed a truism.220 While it can still offer
interpretive guidance for other constitutional provisions, the amendment does not give
any separate grounds on which to decide a constitutional case.221 Under this conception
of the Tenth Amendment, Stone would naturally have tended to reject any assertion
that legislation violated—or was “repugnant to”—the Tenth Amendment. To Stone,
such an argument would be meaningless, because the Tenth Amendment contains no
violable rule.
This also explains Stone’s opposition to Roberts’ Butler opinion, which relied on
the Tenth Amendment as an independent, violable rule of law. Roberts used the
General Welfare clause as a means of defining the scope of the rule of law in the Tenth
Amendment. His argument was that any taxing or spending not within the general
welfare of the United States would fall outside the spending power and thus would not
be granted to the federal government. Since the Tenth Amendment reserved that power
to the states, attempts by the federal government to legislate in that area violated the
Tenth Amendment. Roberts’ sidestep of this analytical complication—by characterizing
the AAA as regulation rather than spending—was simply a way of concluding that the
Taxing and Spending clause did not delegate Congress any authority to enact the AAA,
which caused the Act to violate the Tenth Amendment.
Roberts was thus able to decide the more subjective question of whether or not
agricultural subsidies in the AAA, as regulations, were coercive.222 Stone rejected this
coercion analysis and evaluated the Act as an exercise of the Taxing and Spending
219 Berns’ explanation is discussed—critically—in Vile, supra note 213, at 466-470..

220 Id. at 466.
221 Id.
222 297 U.S. at 71; Friedman, supra note 14, at 1954.
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power that was sanctioned by the General Welfare clause.223 Because the Tenth
Amendment did not contain a violable rule in his mind, Stone did not even mention it
in his dissent. Instead, Stone relied solely upon the General Welfare clause in arguing
against the subjectivity of the Court’s holding.224
Any Justice who shared Roberts’ view of the Tenth Amendment, however, could
still vote to uphold any exercise of the spending power found to be for the general
welfare of the country, so long as it was not a regulation. Justices Van Devanter and
Sutherland did so in Helvering and thus likely shared this view.225 Butler and
McReynolds’ dissent in Helvering, on the other hand, indicates that they held a more
extreme position that Roberts wanted to avoid.
Roberts constructed his Butler opinion in a way that satisfied the entire six-justice
majority. He placated the two most conservative Justices on the narrow issue of
striking down the AAA under the Tenth Amendment. At the same time, he limited the

224 297 U.S. at 87-88; McKenna, supra note 199, at 136-137.
225 Barry Cushman, “Mr. Dooley and Mr. Gallup: Public Opinion and Constitutional Change in
the 1930s,” 50 Buffalo L. Rev. 7, 59 (2002). While neither Justice ever explained his vote in
Helvering, Professor Cushman has put forward one intriguing possibility. He writes that
it was an established principle, as Justice Miller put it in Kelly v. Pittsburgh in 1881, that
‘the support of the poor…[is a] public purpose[] in which the…community [has] an
interest, and for which, by common consent, property owners everywhere in this country
are taxed.”
Id. at 60. Cushman is thus claiming that Van Devanter and Sutherland shared the view that not only did
the General Welfare clause authorize the spending under the Social Security Act; there was applicable
precedent on that point which Cardozo failed to rely upon in his majority opinion.
This theory is consistent with an idea supported by James Henretta: that the Court’s underlying,
though unstated, objection to New Deal legislation was that most of it delegated too much authority from
Congress and thus “subverted the process of representative self-government. Because Congress itself did
not determine [the outcome], it prevented affected citizens and interest groups from challenging the
legislation in a political forum.” Henretta, Supra note 7, at 163.
If that theory is correct, then the Social Security Act was further strengthened among the Justices
because it delegated very little authority. The tax rates and appropriations were set by Congress and
could be repealed or changed by Congress. As long as the Court deferred to Congress’ judgment that the
provisions were for the general welfare, the policy mechanisms in the Act did not limit affect citizens’
access to the political forum.
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scope of the ruling to allow the court some flexibility in the future.226 And he included
dicta that brought Chief Justice Hughes into the majority, giving him the opportunity to
construct such a compromise. To do so, however, Roberts had to construe the Tenth
Amendment as a separate rule of law, requiring a complicated, subjective analysis that
the liberals led by Stone, wanted to avoid.
From this, the disparity between the 7-2 merits vote and the 5-4 procedural vote
in Helvering becomes clear. The four justices who voted to dismiss can be separated into
two groups. Roberts wanted to avoid the constitutional question.227 However, the other
three—Stone, Brandeis, and Cardozo—must have been concerned with the shaky
ground on which general welfare precedent stood. Because Butler unnecessarily
complicated the analysis by applying the Tenth Amendment, they were understandably
wary of maintaining its framework. Even though the government had argued that
such judicial indecision would negatively affect the continued validity of the Act, they
nevertheless did not want to risk evaluating the Act under the law as it then stood.228
The majority procedural vote by Chief Justice Hughes and the Four Horsemen
thus led to the Court sustaining the Act on the merits. Because they clearly opposed the
Act, Butler and McReynolds must have assumed that their fellow Horsemen would join
them in the final decision. Van Devanter and Sutherland likely saw an opportunity to
clarify their view of the Tenth Amendment—as consistent with Roberts’ view—by
226 This flexibility allowed the Court to maintain some parity with public opinion. As the next section will
show, both Butler and Helvering reflected popular opinion at the time.
228 The Hughes Court had done this before. In Duke Power Co. v. Greenwood County, the Court, per curiam,
declined on procedural grounds to hear a constitutional challenge to loans made by the Public Works
Administration. The delay had the same effect in Duke Power that it would have had in Helvering: the
constitutional question was left unsettled and over $50 million of loans remained in a state of uncertainty.
While the Roosevelt Administration excoriated the Court for “stalling”, Robert Jackson later recognized
that the Court had “saved the P.W.A. from a fate worse than delay” since it was likely that the Court
would have struck down the PWA on the merits. See Ross, supra note 6, at 1177-1180.
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upholding the legislation. Hughes undoubtedly saw an opportunity to put his Butler
dicta to good use.229
Under the authority of the Court’s 7-2 vote on the merits, Cardozo went to great
lengths in Helvering to focus on the General Welfare clause, but his analysis was
constrained by Butler’s complicated constitutional framework. Cardozo ultimately had
to use the General Welfare clause as Butler required—a means to define the applicability
of the Tenth Amendment. Had either Butler or McReynolds written the majority
opinion in Butler, however—that is, had Roberts been unable to secure Hughes’ vote
and thus write a compromise opinion—Cardozo likely would have had no legal
foundation for his decision in Helvering.230
B. Political Issues
Despite Helvering’s consistency with both precedent and the judicial
temperaments of the Justices on the Court, it was also decided in the midst of a
dramatic, if not revolutionary, period in American history. Many of the Court’s
decisions in 1937 have been attributed to powerful external forces that had gradually
borne on the Court for years, including greater public acceptance of government
intervention in light of the Great Depression, Roosevelt’s 1936 landslide victory, and
political pressure on the Court from both the President and Congress.
Scholars have debated just how much influence these factors had on the 1937
Court. Barry Cushman, Richard Friedman, and others have denied the existence of any
sort of “constitutional revolution” in 1937.231 Instead, they view the Court’s landmark
229 Hughes later claimed that the General Welfare dictum he proposed was the “most significant and
important ruling” in Butler. Friedman, supra note 14, at 1956. Self-aggrandizing aside, this opinion was
probably correct in light of Helvering.
230 Cardozo obviously had Justice Stone’s dissent from Butler; however, it is clear that neither Roberts, nor
Van Devanter or Sutherland, would have joined an opinion based on Stone’s rejection of the Tenth
Amendment as a rule of law.
231 Henretta, supra note 7, at 117-118.
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decisions that year as reflecting an evolution of jurisprudence within the Court.232
Conversely, Bruce Ackerman, Michael Parrish, and Cass Sunstein “argue that the
election of 1936 and the subsequent court decisions profoundly altered the ‘baseline’ of
constitutional doctrine and political possibility.”233
In between these two extremes, James Henretta has argued that while
Ackerman’s theories are “too narrow” to explain the true significance of 1937,
Cushman’s arguments “fail to capture the political and rhetorical intensity on the Court
in Depression-era America.”234 Likewise, William Leuchtenburg has noted that while
the 1936 election was significant, the voters “did not think they were fundamentally
restructuring their entire constitutional order.”235 Their argument is basically that while
the Court did not bow to any external pressures in 1937, it was not insensitive to the
changing politics of the nation.
The question here is whether the Court’s decision in Helvering in any way reflects
that sensitivity. Two types of external pressure are relevant in light of the conventional
narrative: public opinion, both of the Court and the legislation before it; and political
pressure, such as criticism from political leaders and attempts by Congress and the
President to curb the power of the Court. While the Court clearly often reflected public
opinion, as described below, it is less clear whether the Court was influenced by public
opinion in a measurable way. The Court more likely influenced public opinion by
contributing to the ongoing political debate at the time. While Social Security was
arguably the most popular social program in the country, political pressure does not
explain the Court’s decision in Helvering. None of the political solutions, including the
Court-Packing Plan, had enough traction or lasting influence to affect the Court’s
232 Ross, supra note 6 at 1154, fn.4.

234 Id. at 118-119.
235 Leuchtenburg, supra note 18, at 2078-2079.
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decision more than the already-present legal foundation and personal inclinations of
the Justices.
1. Public Opinion and the 1936 Election
Any impact public opinion may have had on the Court depends on what exactly
the public thought of the Court. Two excellent sources of data are available to evaluate
public opinion during this time period. It is doubtful the Court was ignorant of either as
it proceeded into the spring of 1937. First, in 1935, George Gallup and Elmo Roper
began publishing their famous opinion survey.236 Second, Roosevelt won a landslide
reelection campaign in 1936, and carried a strong Democratic congressional majority237
on his coattails.
a. Gallup, AAA, and Social Security
In a fascinating 2002 article238, Barry Cushman mined data from the early years of
Gallup and Roper’s polls, along with other surveys, to construct a picture of public
sentiment on a wide variety of issues during the New Deal era. His notable primary
conclusion is simply that “Americans on the whole approved of the New Deal.”239
However, Cushman then provides significant evidence that public opinion on specific
issues was in fact quite nuanced.
For instance, the public did not support organized labor.240 On the other hand,
most of America was unfamiliar with legislation designed to strengthen union control
236 Cushman, supra note 225, at 14.

237 Powe, supra note 6, at 208. After the election, the Senate had a 75-21 Democratic Majority, and the
House was 333-102.
238 Barry Cushman, “Mr. Dooley and Mr. Gallup: Public Opinion and Constitutional Change in the
1930s,” 50 Buffalo L. Rev. 7 (2002).

239 Id. at 19.
240 Id. at 24. In April 1937, after months of sit-down strikes, 69% of Americans thought “labor unions
should be regulated by the Government.”
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of collective bargaining.241 Most Americans supported minimum wage laws, even as
the Court struck them down.242 At the same time, the country was split as to what level
of government should enact those laws.243
Whatever the country thought the New Deal was, they didn’t think it should
involve federal expenditures or intervention—at least at the current levels. Cushman
notes the “persistent fiscal conservatism of the American people” that is reflected in the
polling data.244 As early as September 1935, 60% of the country thought “expenditures
by the Government for relief and recovery” were too great, and by January 1936—the
time of the Butler decision—70% wanted to balance the federal budget and reduce the
national debt.245
Public opinion of the policies considered in Butler and Helvering are especially
revealing. The AAA had been enacted to raise farm prices. Predictably, when the
Court voided the Act, farm prices fell. News accounts in rural areas spoke of the severe
dissatisfaction and unrest among farmers.246 At the Iowa State College in Ames, Iowa,
the six Justices in the Butler majority were hanged in effigy on the day of the decision,
after Claude Wickard247 melodramatically announced the decision to a gathering of
agricultural leaders.248
241 Id. at 29. During Gallup’s 1937 polling on the Wagner Act, no less than 40% and sometimes over 50%
of the population claimed to be unfamiliar with it.
242 Id. at 40. At the time of the Tipaldo decision, which struck down a state minimum wage law for
women, 70% of the country supported a constitutional amendment regulating wages.

243 Id. Of the 70% supporting wage regulation, only 56% would have given that power to Congress rather
than the states.

244 Id. at 44.
245 Id.
246 One rural paper ran the headline “SUPREME COURT VOIDS TRIPLE A: RIGHTS OF STATES
INVADED, SAYS COURT. HOLY SMOKES!” McKenna, supra note 199, at 138 (citing Arthur M.
Schlesinger, Sr., The New Deal in Action, 1933-1939, 22-23 (1940)).
247 Wickard later became Secretary of Agriculture under Roosevelt. His name was immortalized by the
1942 case Wickard v. Filburn, 317 U.S. 111 (1942), which upheld the new Agriculture Adjustment Act of
1938 and vastly expanded the scope of the Commerce Clause power.
248 Leuchtenburg, supra note 18, at 2099.
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In spite of the contemporary accounts of dissatisfaction among the public,
however, Gallup’s survey revealed a spectrum of opinion. The public actually opposed
the AAA. Surprisingly, only a slight majority of farmers even approved of it. In
December 1935, before Butler, only 41% of the country supported the AAA; 59% were
opposed.249 In February 1937, after Butler had simmered for a year, only 41% wanted
the AAA revived—and only 53% of farmers did.250 By April 1939—three years after
Butler and following several congressional responses—52% of the country still believed
the Administration had “done a poor job of handling the farm problem.”251
Even more telling in light of Butler’s reliance on the Tenth Amendment, Gallup’s
survey in January 1936 showed that, in the very same month Butler was decided, 56% of
the public favored concentrating power in the federal government over the states.252
The same poll revealed that only 43% supported a constitutional amendment giving the
federal government power to regulate agriculture.253
This last statistic raises an interesting point on how well the Court may have
reflected public opinion. Butler clearly held that the federal government did not have
the power to regulate agriculture. On the one hand, the fact that only 43% of the
country supported a constitutional amendment to give Congress that power could
indicate that the public agreed with the Court. On the other hand, the poll does not
make clear just what the public agreed with. Did the rest of the country not support an
amendment because they felt that Congress should not have regulatory authority over
agriculture? Or did they not support the amendment because they felt Congress had
the authority already? The finding that a majority of the country supported more
concentrated federal power tends to demonstrate the latter, but Cushman has pointed

250 Id.
251 Id.
252 Id. at 37. Conversely, 44% favored the states.
253 Id.
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out that the opposition to increased federal power at the time was significant enough to
prevent any constitutionally necessary supermajority support.254
Public support for the Social Security Act, on the other hand, was consistently
high across Gallup’s surveys. In November 1936, in response to the loaded question255
whether they favored the “compulsory old age insurance plan” set to start in January
1937, 68% of the country expressed their agreement.256 The next month, Gallup
narrowed his question to whether the country supported old-age pensions for needy
persons.257 89% of the country supported need-based retirement pensions.258 By August
1938—over a year after Helvering—88% supported old-age pensions.259 That level of
support rose to 94% in January 1939 and leveled off to 90% in November.260 Social
Security, either as it actually existed or as a hypothetical means-tested form, was
extremely popular throughout the decade. Whether the Court intended to or not, its 7-2
vote upholding the old-age pension system accurately reflected public support at the
time. The same year public support for Social Security was at 90%, Justice Butler died,
and the Court again reflected popular opinion.261
Even though the Court invalidated many Progressive and New Deal statutes
during the 1930s, public opinion of the Court itself remained high. In the fall of 1935,
after a blistering streak of anti-New Deal decisions, a majority of the country opposed
“limiting the power of the Supreme Court to declare acts of Congress
unconstitutional.”262 One survey by Fortune taken in April 1936 showed that only 22%
254 Id. at 38.

255 By using the word “compulsory”, Gallup evidently attempted to reduce the level of support for the
Act.
256 Id. at 56.
257 Id. at 57.
258 Id.
259 Id. at 56.
260 Id.
261 With only Justice McReynolds left from the Helvering minority, 89% of the 1939-1940 Court supported
the Act.
262 Id. at 67.
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of respondents believed the “Supreme Court has recently stood in the way of the
people”, while nearly 40% said the Court “has protected the people against rash
legislation.”263 Two caveats are necessary, however. First, William Leuchtenburg has
noted that the remainder in the Fortune survey, a segment larger than those critical of
the Court and nearly as large as the supporters, expressed no opinion on the issue.264
Second, in November 1936, 59% of the country told Gallup that the Court should “be
more liberal in reviewing New Deal measures.”265
b. The 1936 Election
Public opinion polls are limited, however, because the people surveyed are not in
the position to effect changes at any particular time. Instead, to further gauge the effect
of popular sentiment on the Court’s decisions, writers such as Ackerman have looked to
the 1936 presidential election for evidence of a tangible constitutional revolution.266 If
either the Court or the Constitution were a major issue in the election, then Roosevelt’s
decisive victory could indicate that the public supported his view267 of the Constitution
instead of the Court’s. It could further indicate that Roosevelt and the Democrats
263 Id. at 67-68. The editors at Fortune wrote that “New Dealers wishing to curtail the power of the Court
by constitutional amendment would apparently have a long handicap of established opinion to
overcome….there is political dynamite in appealing to the nation to curtail the powers of the Court.”
264 Leuchtenburg, supra note 18, at 2086. Based on the numbers reported by Cushman, the remainder
would be nearly 40%.

265 Cushman, supra note 238, at 68. In the same survey, however, only 41% favored “limiting the power of
the Supreme Court.” Even when the public disagreed with the Court’s jurisprudence, they did not agree
with political efforts to control it.
267 Roosevelt claimed that when he took the presidential oath to “support the Constitution of the United
States” he wanted to add that “it’s the Constitution as I understand it, flexible enough to meet any new
problem…not the kind…[the Court] has raised up as a barrier to progress and democracy.” Powe, supra
note 6, at 208-209.
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entered 1937 with a popular mandate to reshape either the Court or the Constitution
through political means.268
One thing is clear from the opinion polls. Roosevelt’s reelection did not signify a
mandate for continued relief spending. One month after the election, 60% of the
country supported reductions in relief expenditures.269 By April 1937, 56% said the
“federal government should further reduce relief expenditures.”270 Whatever else the
country may have felt, Roosevelt did not achieve his landslide victory by promising
continued relief spending.
Voting in 1936 broke down more along class lines than along political
divisions.271 As late as May 1936, 53% of the country still self-identified as
“conservative”, and in March 1937—just four months after the election—only 50%
identified themselves as Democrats.272 It would therefore be a mistake to assume that
Roosevelt’s success in 1936 was merely attributable to an overwhelmingly liberal or
Democratic electorate.
William Leuchtenburg has attempted to break down the 1936 campaign to
determine: first, which parties publicly raised the issue of the Court or the Constitution;
and second, what the country actually responded to at the polls on November 3.273
268 Interior Secretary Harold Ickes used the “mandate” argument in 1937. Of Court-Packing in particular,
Ickes wrote: “You Republicans…raised these issues and the people brought in a verdict against you.”
Leuchtenburg, supra note 18, at 2111.
270 Id. (emphasis added).
272 Cushman, supra note 238, at 74. While partisan divisions (Democrat versus Republican) do not
necessarily line up with political divisions (liberal versus conservative), for the purposes of this analysis I
agree with Professor Cushman that the overlay is appropriate. The New Deal was enacted by a
Democratic Administration and a Democratic Congress, and the Justices on the Court who consistently
voted to uphold the legislation were labeled as “liberal”, even in contemporary accounts. While it is
more difficult to simply equate Republicans and “conservatives”, given that so much opposition to the
New Deal came from Democrats, that difficulty proves the point here: that political divisions do not
adequately explain the breakdown of the 1936 election results.
273 William Leuchtenburg, “When the People Spoke, What Did They Say?: The Election of 1936 and the
Ackerman Thesis,” 108 Yale L.J. 2077 (1999). Leuchtenburg’s main goal is to critically evaluate
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Leuchtenburg determined, first, that Roosevelt never made an issue of the Court
during the campaign.274 He had been stung by the sharp rebuke directed at his 1935
criticism of the Court275 and consequently scaled back any further public commentary
on the Court.276 Roosevelt’s Attorney General, Homer Cummings, recommended that
the President should instead campaign on the accomplishments of the New Deal, and
not allow the Republicans to turn the election into a referendum on the Constitution.277
Cummings advised Roosevelt that without any specific plans on how to act, any
express campaign promises would limit his options in the future.
Cummings political sense in this regard cannot be overestimated. While the
Court had invalidated many New Deal measures on constitutional grounds, the Court
also refused to hear constitutional challenges to many other statutes. In a 1923
decision278 the Court had held that “no taxpayer had standing to challenge federal
expenditures paid…out of general revenue.”279 This limited standing doctrine allowed
the Court to sidestep ruling on the constitutionality of the Public Works Administration
and other New Deal programs, including “the Farm Credit Act, the Reconstruction
Ackerman’s “Constitutional moment” thesis. However, by discussing the election in such detail,
Leuchtenburg provides a valuable guidepost for determining what general effects, if any, the election
may have had on the Court.
274 Id. at 2085.
275 In the wake of the Schechter decision on June 2, 1935, which invalidated the National Recovery
Administration (what the New York Times called “the symbol of the New Deal itself”), Roosevelt held a
press conference where he accused the court of living in “horse-and-buggy” days. Roosevelt must have
been surprised by the voluminous vituperations among politicians and the press against his comments.
Senators likened him to Hitler or Stalin, while the Baltimore Sun called him “lugubrious” and
“pessimistic.” Henry Stimson dismissed Roosevelt’s remarks as “extreme…hyperbole” that, if serious,
would have been “a rather dangerous and inflammatory statement.” Leuchtenburg, supra note 273, at
2079-2080.
276 Roosevelt made one exception: when the Court struck down the New York minimum wage law for
women in Tipaldo, he declared that the Court had created a constitutional “no-man’s land” against both
state and federal power. He refused, however, to expound on this clear allusion to World War I. Id. at
2080.
277 Id. at 2085.
278 Frothingham v. Mellon, 262 U.S. 447 (1923).
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Finance Corporation, the Rural Electrification Administration Act, the Emergency Relief
Appropriation Act, and the…Civilian Conservation Corps.”280 By dismissing these suits
on standing grounds, the Court effectively upheld them against any constitutional
challenge. Furthermore, the Court had upheld281 several New Deal and Progressive
statutes including the Minnesota Mortgage Moratorium Law282 and a state law setting
the price of milk.283 Because the Court had not uniformly inhibited the New Deal under
the Constitution, such a campaign would have seriously limited the efficacy of the
Democrats’ message to voters.
Leuchtenburg notes that, while Roosevelt did not raise the issue in his campaign,
both his opponents and supporters kept it in the public spotlight.284 Republican
presidential nominee Alf Landon praised the “courage and integrity of the Supreme
Court,” and directly challenged Roosevelt to raise the issue in the campaign.285 On the
other hand, Landon may have alienated some voters with his rhetoric against Social
Security, in which he claimed that workers would “have to wear identification tags
around their necks every day for the rest of their lives.”286
Many of Roosevelt’s opponents also raised the issue on behalf of Landon’s
campaign. The president of the American Bar Association, William Ransom, claimed
that only the Court prevented extreme congressional legislation.287 In October, William
Randolph Hearst ran an editorial in his papers specifically claiming that Roosevelt, if
280 Id. at 64-65.

281 See Powe, supra note 6, at 203-205.
282 In Home Building and Loan Association v. Blaisdell, 290 U.S. 398 (1934), Chief Justice Hughes upheld the
law as an “emergency measure” authorized under the police power.

283 In Nebbia v. New York, 291 U.S. 502 (1934), Justice Roberts concluded that legislative regulation of milk
prices was permissible because the affected businesses were “affected with a public interest.”
285 Id. at 2092-2093. Four days before the election, at Madison Square Garden, Landon declared: “Tell us
where you stand, Mr. President….tell us why you have evaded the issue….”
286 Id. at 2114. Landon’s remarks were especially damaging considering the tremendous public support
for old-age pensions at the time (nearly 70%).

287 Id. at 2089. Ransom’s list of terribles included laws “that no red-headed man could have a job, that no
Catholic could go to mass…or that no woman could be employed, except as a housewife.”
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reelected, would “change the Constitution and pack the Supreme Court.”288
Newspapers and politicians alike claimed to have uncontroverted evidence that
Roosevelt intended to pack the Court in 1937.289 Finally, the 1936 Republican National
Convention adopted a platform claiming that, under Roosevelt, “the integrity and
authority of the Supreme Court have been flouted.”290 The Republican platform
pledged
to maintain the American system of Constitutional and local self government,
and to resist all attempts to impair the authority of the Supreme Court of the
United States, the final protector of the rights of our citizens against the arbitrary
encroachments of the legislative and executive branches of government.291
This position seemed solid for the Republicans, given the current trend of public
opinion in favor of the Court. Additionally, Landon’s campaign seemed to show
significant promise. In July 1936, Gallup reported that Landon was just barely behind
Roosevelt, and on October 31, Literary Digest made its famous prediction that Landon
would win 370 electoral votes to 161.292
While Roosevelt kept mum during the election, his supporters did not remain
silent on the issue. On the heels of the Butler decision, academics at top law schools
stepped up their criticism of the Court. One Yale professor told his students that
Roberts’ opinion “would not get a D in any course in constitutional law in any first-
class law-school.”293 Justice Stone’s dissent in Butler likewise castigated the Court for
288 Id. at 2097. Hearst threatened that Roosevelt would place on the Court “Richberg, the revolutionist,
Tugwell, the Bolshevist, and Frankfurter, the Communist.” In the later years of the New Deal, Hearst
must have been relieved that only the Communist made it to the Court. It seems that not even Roosevelt
wanted the revolutionist or the Bolshevist interpreting the Constitution.
289 Id. at 2095-2096.
290 Id. at 2091.
291 Id.
292 Id. at 2086.
293 Id. at 2106. Leuchtenburg argues in fn. 155 that the professor was Fred Rodell.
Page 48 of 58
overstepping its own limits of self-restraint.294 Bolstered by this intellectual support,
Progressives did not hesitate to keep the Court’s actions in the public mind during the
election. Arthur Krock wrote that the election would put the Court “more or less on
trial”.295 In its decisions, the Court had managed to alienate bankers, farmers, labor
unions, and low-income workers at a time when Roosevelt was reinventing interest-
group politics.296 Irving Brant claimed the Court’s “moral obtuseness” had discredited
it among the American people.297 The Philadelphia Record even compared some Court
decisions to the infamous Dred Scott decision which had precipitated “four horrible
years of death, destruction and devastation,” and argued that “Congress [must] curb
the Court.”298 Speakers at the Democratic National Convention maintained that the
Court was not “above criticism”.299 With the parties taking such disparate stands on the
Supreme Court, one newspaper concluded that “the basic issue in the…election will be
that of concentration of powers in the national government.”300
With the Democrats arguing so forcefully against the Court’s resistance to
concentrated national power, their victory in 1936 can be at least partially attributed to
public agreement on this position. As stated earlier, however, the electorate was not
overwhelmingly liberal or Democratic. What made the difference was the relative
strength of the constitutional opinions of each candidates’ supporters. Well over a
supermajority of Democrats supported increasing the scope of federal power and even
more agreed that the Court should be more liberal.301 At the same time, Republicans
294 Id.
295 Id. at 2109.
296 Shlaes, supra note 7, at 10-11.
298 Id. at 2102.
299 Id. at 2104.
300 Id. at 2113.
301 Id. at 2110. 84% of Democrats supported a minimum wage amendment, and 65% of those would have
vested the power in Congress. 80% of Democrats wanted the Court to be more liberal.
Page 49 of 58
were nearly evenly split on questions of federal power and relief measures, although
they much more strongly supported the Court’s present course.302
Certainly, then, the Court’s record through 1936 had some bearing on the
election. Even though a majority of the public supported the Court as a protector of the
people against rash legislation, an even greater majority supported the political party
that had pushed that legislation. Leuchtenburg argues that “in a year when millions
were still jobless, and millions more were surviving only because of the programs of the
New Deal, that conundrum was not foremost in their minds.”303 In other words, it
would be disingenuous to read too much into the 1936 election. The public very likely
agreed with the Court’s decisions, even if they did not express it at the polls.
2. Political Pressure and Court-Packing
All that is left to evaluate, then, is what influence, if any, contemporary political
pressures may have had on the Court’s decision. While contemporary polling data and
election returns make public opinion easily discernible, it would be a mistake to ignore
the pressure placed on the Court by political leaders of the time. While individual
accounts of their statements and actions do not necessarily indicate trends in elite
political opinion, lasting records of the opposition and approbation by the politically
powerful do indicate that someone found each one important enough, eloquent enough,
or simply infuriating enough to write it down. It is possible that these accounts simply
represent the best criticism of the Court at the time, which leaves us to evaluate how
much the Court was affected by quality argument. Further, by judging the success or
failure of legislative proposals or individual politicians, we can discern which
viewpoints carried popular support, at least among those in power.
302 Id. Over half (51%) of Republicans supported the minimum wage amendment, and 40% of those
supported giving the power to Congress. The real partisan split is revealed by the fact that only 22% of
Republicans thought the Court should be more liberal.
303 Id. at 2115.
Page 50 of 58
It is not clear whether Congress or the President was more indignant at the
Court’s resistance to the New Deal. As discussed earlier, Progressives in the Senate had
objected to the Court’s conservatism well before the New Deal cases. The Hughes
Court was no stranger to Court-curbing legislation by 1937. Chief Justice Hughes knew
from his confirmation proceedings that he was viewed with skepticism by the Senate as
to his political preferences and legal doctrines. The Senate’s attempt to curb the power
of the Court before Hughes could even take his seat meant that Hughes could not have
ignored Congress’ hostility to current Supreme Court doctrine. Combined with his own
political and ideological preferences, Hughes had to have been sensitive to the way the
country wanted the court to evolve.304
Even though Hughes was able to direct Roberts in Butler to endorse his
expansive view of the spending power, Hughes could not prevent the Court from
invalidating the AAA. In the wake of Butler, Congress stepped up its opposition to the
court.305 Over one hundred measures to curb the power of the Court were introduced in
Congress in 1936.306 One proposal would have required a seven-Justice majority to hold
a statute unconstitutional, while others would have expanded the membership of the
Court.307 One measure would have removed from the Court any Justice who voted
against the TVA Act.308
These measures were political hyperbole, and everyone recognized them as such.
Individual Congressmen were simply responding to what they felt was popular
sentiment at the time. Senators argued that farmers were entitled to the AAA, or that
304 During Hughes’ confirmation hearings, Senator Clarence Dill (D-Wash) declared: “Democrats and
Republicans should realize when they vote to confirm Mr. Hughes as chief justice that they will vote to
put a man in that position who will read into the decisions of the court doctrines that will overturn and
destroy practically everything that liberals like Jefferson and Jackson stood for”…Hughes, he argued,
would protect “property rights” over “human rights”. Maltese, supra note 149, at 21.
306 Id. at 2100.
307 Id.
308 Id.
Page 51 of 58
the Court had no authority under the Constitution to strike down legislation.309 In
February 1936 one member of the House publicly asserted that the Justices were
“minions of wealth”, that “four or five of them” were “old fossils”, and that “seven of
the nine” were “corporation lawyers.”
Sympathetic journalists supported Congress in this crusade. The New Republic
criticized the Butler decision with the acerbic assertion: “The Constitution is the
Lord…and the Supreme Court is its prophet!”310 In their book The Nine Old Men, Drew
Pearson and Robert Allen castigated Justice Roberts as “the biggest joke ever played
upon…the U.S. Senate” and as a “Philadelphia Lawyer.”311 They attacked the
Horsemen in every way imaginable: Butler for his Catholicism, Van Devanter for his
supposed writers’ block, Sutherland for incompetence, and McReynolds for his
Lochnerism. McReynolds bore the brunt of Pearson and Allen’s criticism. They called
him “scrooge” and asserted that he was both “stupid [and] lazy.”312
Despite this outcry from Congress and the press, the Court continued to strike
down New Deal legislation throughout 1936.313 None of the court-curbing measures
ever made it out of committee, and most were recognized for the political
grandstanding that they were.314
On the heels on his 1936 reelection, however, President Roosevelt undertook his
own crusade against the Court. Roosevelt announced his Court-Packing Plan to
Congress on February 5, 1937, in a speech before Congress.315 The Plan provided that
for every sitting Justice above age seventy who did not retire, the President could
309 This power of Judicial review was criticized by Senator George Norris, the Republican from Nebraska
who had earlier opposed Hughes’ nomination to the Court.
310 Shesol, supra note 7, at 189.
311 Shlaes, supra note 7, at 272-273.
312 Id. at 273.
314 Id.
Page 52 of 58
appoint one additional Justice.316 Based on the ages of the Justices at the time, the Plan
would have allowed Roosevelt to appoint six new Justices, ensuring a substantial pro-
New Deal majority on the Court.317
Roosevelt made several key mistakes during the Court-Packing debate. First, he
never consistently or satisfactorily defended the proposal. Second, he alienated political
allies in the way he pushed the legislation. Finally, Roosevelt severely underestimated
public and political opposition to what was seen as a blatant attempt to stack the deck
in his favor.
Roosevelt initially justified his Plan by claiming that the Court was
overworked.318 Adding new, younger Justices, he argued, would relieve pressure from
the Court and allow it to more efficiently decide cases.319 Roosevelt initially relied on
this justification at the recommendation of Attorney General Cummings, who thought
that a politically neutral explanation would make the proposal more acceptable to
Congress.320 Robert Jackson had urged Roosevelt to instead defend the Plan for what it
was—an attempt to break the deadlock between the Administration and the Court.321
This initial decision hurt Roosevelt’s credibility as the debate dragged on through a
delay brought about chiefly due to Roosevelt’s other two mistakes.
Roosevelt could not have introduced his plan in a more politically inept way. He
did not consult with congressional leaders before springing it on them on February 5,
just before submitting it to Congress.322 Roosevelt’s Vice President, John Garner,
opposed the measure, and visibly gave it a thumbs-down as the House Clerk read the
316 Id.
317 Id.
318 Id.
320 Shesol, supra note 7, at 285-286. Ironically, Shesol notes at 287 that Cummings himself had just
submitted a report to Congress “stating that the federal courts, all the way up to the Supreme Court, were
free of congestion.
321 Rehnquist, supra note 7, at 125.
322 Shesol, supra note 7, at 291-293.
Page 53 of 58
announcement.323 Roosevelt and his aides initially took the Senate for granted, causing
them to misjudge their quantum of support.324
Roosevelt was unprepared for the onslaught of criticism directed at his plan. The
public never supported the idea. At the time of the 1936 election, only 41% favored
“limiting the power of the Supreme Court.”325 And in six separate Gallup polls between
February and May 1937, the Court-Packing Plan never commanded majority support.326
Only 38% of the country supported the Plan after its introduction.327 While Americans
seemed to agree with the idea of mandatory retirement of Justices,328 they seemed
uncomfortable with the idea of simply packing the Court with New Deal partisans.
Congress shared the public’s opposition to the Plan. As chairman of the Senate
Judiciary Committee, Henry Ashurst of Arizona delayed action by scheduling hearings
to begin in mid-March.329 This gave Senator Burton Wheeler, an otherwise-ardent New
Deal supporter, time to rally eighteen southern Democrats in opposition to the Plan.330
The eighteen Republicans in the Senate, sensing the dissention in the Democratic ranks,
kept silent, content to let the majority cave in on itself.331 Party leaders Charles McNary
of Oregon, Arthur Vandenberg of Michigan and William Borah of Idaho kept silent to
avoid the appearance of a partisan fight.332
Even though Roosevelt initially thought he could rely on Senator Ashurst to
support the Plan in the Judiciary Committee, Ashurst quickly revealed that he was at
most lukewarm to the idea. It is possible that Senator Ashurst was more sympathetic to
323 Id. at 299; Cushman, supra note 6, at 213.

326 Id.
327 Id. at 71.
328 Id. at 72. By April, 64% supported some mandatory retirement age for the Supreme Court.
330 Id. at 123-124.
331 Id.; Shesol, supra note 7, at 310-311.
332 Rehnquist, supra note 7, at 123-124.
Page 54 of 58
the Court than he let on. During the first week of 1937, before Roosevelt announced his
Plan, the Court had upheld333 the Ashurst-Sumners Act of 1934334 under a broad
interpretation of the Commerce Clause.335
Roosevelt responded to this delay by switching his public justification for the
plan. On March 4, in a speech at the Mayflower Hotel, Roosevelt took Jackson’s advice
and justified the plan on the grounds that the current Court was blocking much-needed
reforms.336 Once hearings on the Plan began on March 10, Robert Jackson testified to
the Judiciary Committee that the Court was denying the country the right to self-
government, making reform necessary.337 Cummings maintained in his testimony,
however, that the principal issue was the age of the Justices and the need to lighten
their workload.338
At this point, Senator Wheeler dropped a bombshell on the proceedings. He
presented the Judiciary Committee with a letter339 from Chief Justice Hughes, signed by
Van Devanter and Brandeis, which stated
The Supreme Court is fully abreast of its work….there is no congestion of cases
upon our calendar. This gratifying condition has obtained for several years. We
have been able for several Terms to adjourn after disposing of all cases which are
ready to be heard….An increase in the number of Justices…would not promote
the efficiency of the Court…..340
333 Kentucky Whip & Collar Co. v. Illinois Central Railroad Co., 299 U.S. 334 (1937).
334 The Act prohibited importation of convict-made goods into states that had banned the sale of those
products.
337 Id. at 126.
339 For a discussion of Hughes’ initial reluctance to assist Wheeler in fighting the plan, and his eventual
agreement to at least write the letter delivered by Wheeler, see Rehnquist, supra note 7, at 128.
Page 55 of 58
With Hughes’ letter, Senator Wheeler conclusively eviscerated Roosevelt’s initial
justification for the Plan.341 While the Administration maintained that the need for
reform was still present, the Senate and the public finally recognized the effort as a
baseless power-grab. More Senators began to defect from their initial support of the
Plan. Three Democrats on the Judiciary Committee publicly announced their
opposition, and rumor spread through the Senate that the Plan would receive a no-pass
recommendation from the Committee.342 Support for the Plan collapsed.
Roosevelt blamed Ashurst for the Plan’s eventual defeat. He accused Ashurst of
intentionally delaying the Committee vote and allowing time for the opposition to
muster its resistance.343 In 1940, Roosevelt actively campaigned against Ashurst in
Arizona and helped ensure his re-election defeat.344
Despite his tantrum against Ashurst, Roosevelt did not realize what was obvious
even at the time: the Plan never had a chance of passing the Senate, much less the entire
Congress. It never commanded enough support to survive a filibuster by its opponents
in the Senate.345 By the time Helvering was decided in May, the Plan did not even
command majority support.346 The Court-Packing Plan, like previous measures before
it, was an empty threat.347
341 Id.
342 Id. at 129.
343 Id.
345 Cushman supra note 6, at 224-228. A filibuster, which the Plan’s proponents could not stop, would
have allowed even more time for opposition to foment.

346 Id. By May, opponents of the Plan could have killed the bill in a floor vote.
347 None of the measures previously struck down were as popular as Social Security. While it could be
argued that an invalidation of that Act would have galvanized public support for Court-curbing
legislation, several factors militate against this. First, the collective whole of the previously invalidated
acts was insufficient to spur action by Congress. Even with approval of Social Security at 90%, it is
unlikely the invalidation of one more act would have tipped the balance. Second, the decision still would
have come down more than a month after the Court-Packing Plan was politically defeated. That defeat
made it less likely that Congress would revive the argument, even if plausible, that the Court was
standing in the way of progress. Finally, Justice Van Devanter’s resignation on the heels of the Helvering
Page 56 of 58
III. Conclusion
In 1937 the Supreme Court was undeniably aware the political pressures exerted
upon it by Roosevelt and the Congress. By May, however the Court had weathered the
political storm and emerged politically strengthened. At the same time, the Court never
really strayed too far from representing popular opinion during a decade of social and
economic upheaval. While Roosevelt and the Congress may have been at times
exasperated by defeats the Court, by 1937 even those had subsided. By the time the
Court upheld the Social Security Act in May, it had seemingly reversed course on a
number of issues in a historic spring term.
Even though the Court seemed to change from opposition to support of the New
Deal in 1937, the Justices remained consistent with their prior rulings, at least with
respect to the Social Security Act. Instead of bending to political pressure, the Justices
each reflected their usual contributions to the evolution of the law. Justices Cardozo,
Brandeis, and Stone did what they could to avoid lending credence to a tortured
reading of the Tenth Amendment, but they were ultimately willing to affirm the Act
under principles of precedent and deference to Congress. Chief Justice Hughes secured
an endorsement of his vision of the General Welfare clause that he had pushed since his
days in private practice. He voted with the majority on both aspects of the case and
once again controlled the direction of the Court. Justice Roberts tried in vain to avoid a
constitutional question, but then supported the view of the General Welfare clause he
had written a year earlier. Justices Van Devanter and Sutherland were finally able to
clarify their views of the Tenth Amendment and the proper scope of federal power.
Justices Butler and McReynolds remained obstinate to the end, stalwarts of a prior era,
fundamentally opposed to the New Deal.
decision gave Roosevelt the appointment he wanted and undercut any remaining momentum for
legislative Court-packing.
Page 57 of 58
The Court did not change with respect to the General Welfare clause or the Tenth
Amendment in 1937. That change came four years later, in United States v. Darby.
Instead, Helvering v. Davis was predictable and justifiable under existing precedent. It is
time the Court be given credit for this.
Page 58 of 58

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A SWITCH IN TIME AND A SPLIT IN FOUR:

GENERAL WELFARE, THE TENTH AMENDMENT,

the challenged provisions were “repugnant to the Tenth Amendment.”5

Justice Owen Roberts—from opposition to New Deal legislation to support.

1 301 U.S. 619 (1937).

4 301 U.S. at 640-641.

divided between a three-justice “liberal” wing and a four-justice “conservative” wing,

Justices McReynolds, Butler, Willis Van Devanter, and George Sutherland—were

Immunities Clause, and others.10

9 Shesol, supra note 7, at 5.

votes, with Roberts and Hughes joining the liberals.11

own survival as a legitimate institution of government. First, the presidential election

historical and legal controversy.13 Hughes is seen as recognizing a change in public

weak to continue supporting an unpopular legal position.

by the conventional narrative. Sometimes it struck down statutes unanimously.15

11 Powe, supra note 6, at 210.

16 Ross, supra note 6, at 1158-1159; Friedman, supra note 14, at 1892-1893.

on the Constitution.18 Furthermore, the Court-Packing Plan, while dramatic political

theater, simply never had a reasonable chance of passing through Congress.19

bringing along two of the Four Horsemen in a larger, seven-justice majority.

While some scholarship has admirably and convincingly criticized the

conventional narrative,21 Helvering provides a little-explored starting point for analyzing

heretofore undiscovered influence on the Court. Rather, my goal is to assemble the

Ackerman Thesis,” 108 Yale L.J. 2077, 2115 (1999).

Amendment or the General Welfare clause of the Constitution. In light of legal

political pressures did not significantly impact the Court’s decision.

understanding what the Court did.

than a month after granting cert.

Security”, created a Treasury account called the “Old-Age Reserve Account” to be

funded by future congressional appropriations to the extent necessary to fund benefit

on a reserve basis in accordance with accepted actuarial principles…tables of

respect to regular employment.”29

26 301 U.S. at 634-635.

revenue raised went directly into the Treasury.32

individuals in his employ” and was measured by employees’ wages.35

separability clause that disconnected the various Titles.38

B. Background: The Constitutional Challenge

George P. Davis, a stockholder in several Massachusetts corporations including

the Edison Electric Illuminating Company of Boston, sued Edison in equity on

the Collector of Internal Revenue for the District of Massachusetts to intervene as

defendants in the case.42

payments under Title VIII.46

The government intervener-defendants raised a standing defense to Davis’s

to challenge the tax; Davis, as a shareholder, lacked standing as well.47 In response,

powers reposed in Congress, complying with the limitation of uniformity, and is a

government strategically constructed its response to keep both of the challenged

52 Id. (emphasis added).

the general welfare of the United States.57

Constitution was adopted, the Tenth Amendment kept it out of Congressional

would allow Congress to “step in” in such a situation.63

taxes to fund it were likewise unconstitutional.66

Biographical Directory Entry for Judge Scott Wilson,

Judicial Center Biographical Directory Entry for Judge James Morton,

Center Biographical Directory Entry for Judge George Bingham,

federalist structure of the United States.70

C. At the Supreme Court: Arguments

structured, seven-point “questions presented” section.71 By laying out the issues in a

that separate, constitutional provisions cannot be made unconstitutional by being

collected—over $58 million—plus interest.80

conditions across the country.82

In light of these “serious budgetary, fiscal and administrative problems” the

government waived “any technical objections whatever…and desire[d] to have a

77 Brief for Petitioners, supra note 71, at 22-30.

constitutionality of the statute. The government relied on Congress’ authority, under