The March 29th, 1937, session of the Supreme Court, held in the midst of the judiciary controversy begun by President Roosevelt, will always stand out as one of the strangest and most exciting sessions in its history. I know, of course, that one is expected always to deal solemnly with the members of the Supreme Court. But I have already indicated that the justices are only human. On that particular day they showed themselves to be easily as human as Congressmen or Senators.

On the belief that the opinion in the Wagner Labor Relations Act would be brought out that day, I attended Court. It was one of these "charged with electricity" days. And the largest crowd in the Court's history attended the proceedings.

As a member of the Supreme Court Bar, I am entitled to sit in front with my fellow saviors of the Constitution. But even though I came forty minutes early, the lawyers' seats were filled. So with others I was put way in the back. Several of the lawyers were dressed in a manner that really entitled them to front display, but there was absolutely no room.

The court attendants politely and funereally handed out little slips, which showed the seats of the judges as they appear on the next page. They also read:

And silence there was. The great red, heavy hangings just behind the justices, had been covered with white cloth, to get better light. The black-robed justices entered like apparitions, their deathly attire standing out against the white background. They popped out at their different openings in the curtains, and entered as though it was a well rehearsed performance.

The members of the Court were noticeably nervous.

The people rose.

The Deputy Court Marshall and First Crier, elevating his head and looking blankly into the space above, intoned: "The Honorable the Chief Justice and Associate Justices of the Supreme Court of the United States.

"Oyez! Oyez! Oyez! All persons having business before the Honorable the Supreme Court of the United States are admonished to draw near and give their attention, for the Court is now sitting.

"God save the United States and this Honorable Court!"

The people sat down in silence.

"God can't save both," said a lawyer near me. "It ought to be God save the United States or the Court."

"Or," he added, "it ought to be God save the United States from the Court."

A gentleman lawyer who by apparel rated a front seat glowered at the offender. A lady just in front of us, with a husband, two children and a daughter, was pointing at the little chart, whispering like a boa constrictor—or like boas should whisper and hiss, if they don't. Judge Cardozo started reading. The lady continued her whish-whishing; people could not hear. I leaned over and glowered at her, like the gentleman lawyer had done at the common lawyer. She looked scared and stopped.

All was stillness, as if we were in a crypt gazing at mummies.

People were packed and jammed in every aisle, and outside were several thousand people waiting in long lines extending all the way down a floor below, into the Court's swanky cafeteria. Justice Cardozo is the junior member of the Court, who sits on the extreme left-hand side of the High Bench. He sits in one of the great high chairs and looks very small, in spite of his enormous shock of white hair. He has the fragile appearance of a Dresden doll with great intelligence.

Then Justice Roberts, in a great, clear, resonant voice, without once looking at his notes, read from memory an entire opinion. He did well, as though he was the star actor of an all-star cast.

Mr. Justice Stone then read the Railway Labor Act and held it constitutional in some well-chosen words. He is a mentally powerful, able looking fellow. He is not as good a reader as Mr. Roberts, but he is a man of more understanding.

Mr. Justice McReynolds sat nervously, and paid no attention to the other justices. His obvious dislike of the usual minority, especially of Cardozo and Brandeis, is well known. During their delivery of opinions, he shifted uneasily and irritably from side to side, twisted papers, read books, and registered a bored expression.

Then he read his case. He seemed to speak purposely in a voice no one could hear, in contempt of the lawyers in front of him and the people who had come to hear. Whereas he delivered his opinion jumpily in a slip-shod, low voice, we were soon to hear both Mr. Chief Justice Hughes and Mr. Justice Sutherland shout and thunder their opinions like filibusterers in the Senate.

Not at word that McReynolds spoke was heard by anyone. Having delivered his opinion, he rose and abruptly stalked out of the chamber. I did not realize until Mr. Chief Justice Hughes had delivered his opinion that McReynolds left because his sense of sportsmanship, of which he speaks so much, would not let him listen to Hughes deliver an opinion in which he did not agree.

Van Devanter then delivered an opinion, which is very rare for him. He spoke in a halting manner, and appeared very old and feeble.

Bouncing in like a century-shaking surprise, came Justice Hughes' opinion on minimum wages for women in the State of Washington. It was soon evident that he had not changed his position, for he had previously found a similar New York State law constitutional, although he had then been in the minority.

It was immediately apparent, therefore, that the Chief Justice was reading a reversal of the opinion which had held a minimum wage law unconstitutional a few months before. Who had swung around?

The previous opinion had been delivered before the last election, when the press was ragin at the Administration, and Liberty Leaguers and reactionaries in general were unknowingly making asses of themselves and wasting millions of dollars to defeat Roosevelt. In those days the Court thought it could have its way—and did.

What had happened to them? How could they explain this sudden shifting under the bitter resentment of the American people? How could they show their previous opinion had not been based on personal prejudice?

I was glad the minimum wage law was being upheld for the States. But years ago minimum wages for the District of Columbia had been thrown out, and subsequently, as a result, the nation's capital suffered some of the worst conditions of wages in America. And last summer, before the election, the Court knocked out the New York law, scattering its administrators to the four winds and causing the return of sweatshop conditions.

Why were they switching? Obviously, because of their crumbling prestige. Obviously, also, to throw out a bone, to appease popular indignation, so that they might take more power later, and strike down other important laws.

I listened to the beginning of the opinion. Mr. Justice Hughes was explaining why it was that a few months ago the act had been declared void and now it was being declared valid. "You see," he said, "we could not declare this act valid in the New York case because the Washingon, D. C., case stood in our way. Now we think maybe that the District case is wrong, but this aspect of the question did not occur to us at that time. The reason it never occurred to us to look into the matter was because no one asked us to do it."

He entered into long, ponderous technicalities about why the case was being reversed. "You see," he said, "if they do not ask us to overrule a previous decision which, except for the establishment of a precedent, may have nothing to do with the appeal before us, no matter how wrong the precedent may be, even if it is unconstitutional and immoral, we must follow it."

That, in effect, was what he said—a long, involved excuse which not even a brace of Philadelphia lawyers could understand. But all these words of mysterious nonsense were being uttered to save the face of a Philadelphia lawyer—Mr. Justice Roberts, who was changing sides again. All this hypocritical welter of words was like the incantations of a primitive medicine man.

What everyone really wanted to know was why Mr. Justice Roberts had changed his mind. Here he was turning a judicial somersault. He was to turn one forty-eight times as great within two weeks, but no one knew it then. Why was Mr. Justice Roberts changing his mind?

Mr. Chief Justice Hughes continued reading his opinion, and what he said after that was not so bad in sentiment, but it was a speech, pure and simple. He would pause now and then, gain the attention of the audience, and then come to a resounding conclusion. The speech was verbose and wordy beyond belief, an arsenal of prejudices slapped together to lend the impression that Pity descends from the Bench-on-High all the way down to the poor and down-trodden women of the land.

He spoke of "the health, safety, morals and welfare of the people" in fervent tones. Then he pointed out that the Court had found there was a depression, and people were out of work. He then got to complimenting the women again, and said they were a great sex; and that they should be protected against the "unscrupulous."

He gave the impression that he had sat up all night for many months in order to declare these startling and revolutionary facts, and that it took a man of great learning to say them. He also assumed that we should be grateful to the Constitution for letting us live. He exuded liberality and progressiveness, which he exudes now and then.

All I could think of similar to the speech of the Chief Justice was a rousing and glorious praise of the First Settlers of Podunk Crossing, the very best people in all the world, who had made the greatest sacrifices ever made for Patriotism, Valor, Honor, and Virtue. It was all sweetness and consoling words about the female sex. Not a word about men and children. Ah, me, the suffering women!

This would have been funny had it not been tragic. Only the heavy presure of the people had brought this speech forth, these words of wisdom from on high. Why should the courts ever have knocked out the laws protecting women in their miserable minimum wages anyhow? Why should they have interfered in a matter of legislative policy and have broken down the laws?

Few listened to the last words of Hughes, because they knew by the resounding speech that the law was now constitutional. Everyone had figured it was Mr. Roberts who had swung around, for they knew none of the Old Guardsmen, Sutherland, Van Devanter, Butler or McReynolds, would ever change. The speech ended rather dismally, but the moment Hughes stopped talking, Sutherland snapped into reading the minority opinion.

Justice Sutherland read on in a rather low voice. Like Van Devanter, he looked old and feeble. He spent a little time saying the Court had a right to knock laws out. Then, his voice rising to a crescendo, and looking rather angrily in the direction of the Chief Justice, he said: "Its exercise (the power to declare acts of Congress unconstitutional) cannot be avoided without betrayal of the trust." Justice Roberts, who was the cause of the Court's marching up the hill and down again, sat uneasily and knew what was coming. For, deliberately slapping at Roberts, Sutherland said: "If upon a question so important he thus surrender his deliberate judgment, he stands forsworn. He cannot subordinate his convictions to that extent and keep faith with his oath or retain his judicial and moral independence." Very few of the citizens attending understood it, but all of the lawyers did. A murmur, something of a titter, went up in the courtroom among the lawyers. Justice Roberts flushed and looked with evident displeasure in the direction of Sutherland. He looked his usual part—the big vigorous football hero, angry at the other side, and as though he should like to start a free-for-all. He pulled out his handkerchief and wiped his face and showed evident marks of disapprobation.

But Mr. Justice Sutherland, sitting on the highest bench in all the world, from which there is no appeal, had other insults for his colleagues. This time he was taking Mr. Justice Stone for a ride, and quoting a phrase of Mr. Justice Stone's opinion in the Agricultural Adjustment case, in which Stone had said that the only restraint on a Supreme judge is his own self-restraint. Mr. Justice Sutherland glanced at Mr. Justice Stone and said: "This is both ill-considered and mischievous. . . . The check upon the judge is that imposed by his oath of office,"—oath of office being thoroughly emphasized—"by the Constitution and by his own conscientious and informed convictions."

A flicker of a smile came over Justice Stone's face.

Then, wholly without any excuse whatever, he criticized proponents of judicial reform. His voice rose to a shout: "The remedy in that situation—and the only true remedy—is to amend the Constitution."

As I sat there looking at this feeble old man, honorable but stupid, I began to think of the egotism one gains as a judge who needs never to meet the people, never to be responsible for his acts, never to fear he will not be paid. By what he said, he meant that the will of one man in the court, changing one way or the other, was absolutely supreme for 130 million people. More, he meant that in order to secure a decent living for the hundreds of thousands of women who had been deprived of it for years, the whole 130 million people should have the legislatures of their
States adopt an amendment. This just to save the face of one justice.

But the Justice was not through. For what he had already said, and would now say, this day will go down as the Historic Insult Day of the High Bench. He used the judge's trick—quoting someone else—to embarrass the majority judges. He quoted Judge Cooley to the effect that a court or legislature which allowed "a change of public sentiment to influence it in giving to a written constitution a construction not warranted by the intention of its founders, would be justly chargeable with reckless disregard of official oath and public duty."

Then the Justice began to deliver the professors' and schoolboys' oration that the Constitution created "three separate, distinct, independent and coequal departments of government." But the effect of the rest of his argument was that the Supreme Court is supreme over the other two branches, and that no one should undertake to say that it is not. More, that judges of the High Court should never, never, under any circumstances, pay any attention to what anybody else thought; that the authors of the Constitution made no mention of the fact that they paid any attention to women's suffering or anything else. It appeared that all matters of policy, social, moral, and economic, had to be settled by the High Court.

Then he said:

"In principle, there can be no difference in the case of selling labor and the case of selling goods."

This he gave as the opinion of the Four Old Guardsmen: that humanity is still a commodity to be sold down the river. There was not a millionth of an ounce of human sympathy in his voice. It was with evident impatience that he considered the proposition that any person who works should regard human effort and human relations as anything but a commodity to be sold in the open market without protection.

It was the shade of Dred Scott. For a slave was a commodity and so is labor and human endeavor to at least the Four Old Guardsmen, and occasionally to Mr. Roberts. Here Sutherland went beyond the Dred Scott slavery decision, saying that not even a State could correct conditions in its own jurisdiction.

He then said men could bargain as they pleased. I could not quite understand this, for if their product is to be sold—if men are commodities—I could hardly see how men could make a free contract. He said that now women had legal and political equality, that they should not be given any superior rights. This was his way of criticizing the speech of Mr. Hughes which extolled womanhood and demanded its protection.

With final and full emphasis, he announced the dissent of the Four Old Guardsmen, and seemed to stop suddenly, as though he had not finished.

In a split second, before anyone could comment, the Chief Justice announced the court would meet again at three o'clock.

A great babble of voices rose which the Court Marshall, clerks, ushers, and attendants could not stop. They did not try. In front, the lawyers who had come to be admitted to the bar stood and conversed excitedly. Senator Bob Wagner and a coterie of labor lawyers, Bob Jackson, Assistant Attorney General; Solicitor General Reed, Dr. Thurman Arnold of Yale, temporarily with the Attorney General's office—all huddled for earnest conversation. They had come to hear a delivery of the opinion of the Wagner Labor Relations Act.

Even though they did not hear any opinion on the Wagner Act, all saw and heard what was up to that time the Greatest Constitutional Somersault in History. For Owen Roberts, on single human being, had amended the Constitution of the United States by nodding his head instead of shaking it.

The lives of millions were changed by this nod.