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February 27, 2007


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Joan A. Conway

FDR's court-packed plan was hotly disputed and as I believe the Chief of Justices had to retire in the process, and the court review was not in FDR's favor in a series of court reviews that attacked various issues for the little man.

His influence eventually won out, but I can't remember now how it was accomplished.

I'll reread this in the revelant cases of the time, that I have recently read and forgot!

Thanks for the reminder and refresher.

Joan A. Conway

How he accomplished Brown vs. the Board of Education must stem from his court-packed plan, retirement of the Chief Justice, and fellow followers.

Again I am very interested in this area of the law and every post will be read carefully with full consideration of its impact.

Please discuss this blog on how FDR socialized the nation for racial tolerance, under the constitutional norm, when the current president, G. W. Bush, and his father, have not been socialized to the constitutional norm, under the Wars Power Act of 1973, Iraqi Freedom and the Gulf War.


Your site is really good,
Keep it on, thanx!

Joan A. Conway

One of the Men who made a different during the Brown v. The Board of Education 20th century legal hurdle for race equality.

Muravchik, 90, Socialist and Jewish Labor Committee Leader

Ralph Seliger | Fri. Jan 12, 2007
When Emanuel Muravchik, a son of secular Russian Jewish immigrants, recalled his “bar mitzvah,” he was not thinking of a religious ceremony, which he didn’t have. He recalled the day in 1930, at age 13, that he was given free rein in the library of the Rand School, then associated with the Socialist Party, and later the Tamiment Library. He had gone there to research a school paper, but he was captivated and spent all 10 days of spring break reading everything he could on socialism. It was there, he would recall, that he decided on his life’s course as a socialist activist.

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Today the Tamiment, now associated with New York University, is the home of Manny’s historical papers. It is a rich history. He spent three quarters of a century living and breathing democratic socialism, as a party leader, a union organizer, a staffer and then director of the Jewish Labor Committee, and as a volunteer leader of the Workmen’s Circle/Arbeter Ring and of the Forward Association. When he died January 8 at age 90, he left a world indelibly changed for the better by his work.

Muravchik threw himself into his chosen career immediately after that crash course in the library. Joining the Socialist Party at 13, he began to speak at street-corner rallies (he said he was big for his age). Occasionally he wandered from his home in New York City’s Washington Heights area to visit the party local in nearby Harlem, where he got to know unionist and civil rights leader A. Philip Randolph and his lifelong associate, Bayard Rustin.

His father, Chaim, worked as a “corrector” — a combination copy editor and proofreader — for the Forverts and other Yiddish publications. His mother, Rachael, wrote for the Forverts “at least once a week.” She also lectured frequently for the Workmen’s Circle — where they were “active members” — on issues involving child rearing and family.

Perhaps surprisingly, this champion of the working class was educated at elite private institutions: the Ethical Culture and Fieldston schools, followed by undergraduate studies at the University of Chicago and Columbia, and post-graduate studies in political science at The New School for Social Research and in clinical psychology at NYU. But he learned his most profound lessons as an organizer.

Working for the SP in 1940, he barnstormed New York’s rural upstate counties with Norman Thomas to gather signatures for Thomas’s presidential run that year. Those six intense, 18-hour days began a friendship that lasted until Thomas’s death in 1968.

Afterward, Muravchik was dispatched by David Dubinsky’s International Ladies’ Garment Workers’ Union to unionize workers in Kingston, N.Y. He later worked for a time in an aircraft factory in Newark, N.J., where employees were represented by United Auto Workers.

He served in the U.S. Army during World War II. Ever the organizer, he worked even before discharge to establish a progressive, anticommunist veterans’ organization. After the war, he became executive secretary of the Veterans League of America, which later merged with the American Veterans Committee.

In 1947, following a brief stint as a party staffer, he began his long career at the Jewish Labor Committee, becoming national field director in 1949 and executive director in 1967, finally retiring in 1984. The JLC speaks to organized labor about Jewish issues — such as combating antisemitism and supporting Israel’s security — and to the Jewish community about labor issues, such as fair labor standards and the right to organize. Muravchik oversaw the committee’s anti-discrimination work and its relations with Jewish federations.

In 1962, he delivered a groundbreaking report on Soviet antisemitism at the world meeting of the International Confederation of Free Trade Unions. His work led the world organization later that year to make the first-ever representation on the topic to the United Nations, a year before the United States and Israel raised the issue.

Muravchik recalled being asked once by Norman Thomas why Jews felt the need for a state. Manny did not consider himself a Zionist, but he visited Israel frequently and had a granddaughter who lived there for a time. “I don’t believe in principle that the Jews should have to have a separate state,” he said, “but it’s good that they have one.” Yet he spent years fighting for Israel’s rights and security within labor and the larger political arena, making this a signature cause of the JLC. It is largely due to Manny’s effective work that organized labor in this country remains solidly allied to the Jewish state.

But Israel was not the JLC’s only cause. A pioneer in civil rights, the organization was a central player in the black-Jewish alliance of organizations that worked during the 1950s to pass fair housing, employment and education acts around the country. When the civil rights movement reached its crescendo with the 1963 March on Washington, Muravchik worked closely with his old SP comrades, Randolph and Rustin, the march’s main organizers. The JLC helped mobilize union and Jewish community turnout, and Manny Muravchik was there, marching proudly with his two young sons.

Some of Manny’s stormiest years were during the 1960s and ’70s, when the party was torn by disputes over the Vietnam War and the growing strains in the civil rights movement. Manny had been a strong anticommunist independent of Max Shachtman breaking with Trotsky on the long march of his disciples from being independent radicals to being social democrats, and then (many) becoming neoconservatives. When the Vietnam War began to heat up in the early 1960s, Manny was one of those who saw the antiwar movement as soft on communism. He was friendly with the young activists of the SP-affiliated Student League for Industrial Democracy, including Tom Hayden, who split off in the early 1960s to form Students for a Democratic Society. But the friendships faded as SDS became more militant.

When the SP itself finally split in two in the early 1970s, Muravchik remained with Rustin in the Social Democrats USA, which supported the pro-war position of George Meany’s AFL-CIO. The antiwar faction, led by Michael Harrington and Irving Howe, left to found the Democratic Socialist Organizing Committee and later the Democratic Socialists of America.

Civil rights was also a divisive issue. In 1968, when black community activists in New York City pressed for neighborhood control of schools — including hiring and firing teachers — a clash developed with the United Federation of Teachers, quickly escalating into a black-Jewish ethnic feud. The JLC sympathized with the teachers’ union and its fiery president, Al Shanker, whom Muravchik would describe as a “very close” friend. Shanker served as secretary of the JLC.

Manny’s son Joshua, who had served in the 1960s as head of the SP’s youth wing, the famous Young People’s Socialist League (better known as Yipsel), took up his father’s anticommunist cause and carried it much further than Manny ever did. Joshua became a leading figure in the neoconservative movement, serving as a fellow at the American Enterprise Institute and writing frequently for Commentary. Father and son remained close, though Manny remained resolute in his advocacy of democratic socialism.

In a May Day 2002 posting on the Social Democrats Web site, titled “Socialism in My Life and My Life in Socialism,” Manny mused on the beauty of Wave Hill, a city-run park near his rent-stabilized apartment in the Riverdale section of the Bronx, and on other benefits of the welfare state — Social Security, Medicare and Medicaid — that the socialist movement bequeathed to this country. “Our impact,” he wrote, “was epitomized by Franklin D. Roosevelt who, after initiating the New Deal, whispered to Norman Thomas, ‘Norman, I stole your platform.’”

Manny turned 90 last September. He was staying with his wife, Miriam, at the Workmen’s Circle Rehabilitation Center, where she was recovering from a fall, when he died peacefully. He is survived by his wife of 67 years, their sons Joshua and Aaron, four grandchildren and four great-grandchildren.

A memorial for Emanuel Muravchik is scheduled for Friday, January 12, at 11 a.m. at the Atran Center for Jewish Culture, 25 East 21st Street, Manhattan. In lieu of flowers, the family asks that donations be sent to the Jewish Labor Committee or to the Workmen’s Circle Multicare Center.

Joan A. Conway

Some moe about Mr. Muravchik:

October 31, 1962

Mr. Emanuel Muravchik
Executive Secretary
National Trade Union Council For Human Rights
Jewish Labor Committee
25 East 78th Street
New York 21, New York

Dear Mr. Muravchik:

Your letter of October 17 reached our office Friday, October 19 but we had received calls from two newspapers October 18 asking for comment upon it. The letter was among the mail awaiting me upon my return to my desk October 22.

While your remarkable communication was under study we learned by telephone from a member of the executive committee of our Los Angeles, California, branch, that a copy had been received by a trade union group in that city with the request that it adopt a resolution condemning the NAACP. Later we had a report from an officer of our branch in Duluth, Minnesota, stating that a copy of your letter had been shown him by trade union people in that city.

In the light of these two instances we conclude that the National Administrative Committee of the National Trade Union Council for Human Rights of the Jewish Labor Committee was not particularly interested in either the factual or the interpretative accuracy of the assertions in its long resolution, or in the reaction of the NAACP to them, but only in spreading the resolution around the country and creating--on the basis of its own bare statement and interpretation -- a climate of hostility to the NAACP.

We knew, of course, that Mr. David Dubinsky, president of the International Ladies' Garment Workers' Union, also holds the key office of treasurer of the Jewish Labor Committee, and that Mr. Charles S. Zimmerman, vice president of the ILGWU, is also chairman of the National Trade Union Council of the JLC, the segment under whose auspices your letter was sent. This knowledge, however, did not warn us of the kind of operation that was to be launched. Nevertheless, in the interest of the record, we address ourselves to such parts of the committee resolution as we believe merit attention.

Mr. Emanuel Muravchik-2- October 31, 1962

We find the language of this resolution strange, indeed. It is as vituperative and unrestrained as any against which complaint has been lodged by some labor spokesmen in the past. Words and phrases like "irrational abuse," "villification," "false," "flag of hostility," "jeopardy," "outrageous behavior," "foment," "odd and perverse," are not words which are calculated to inspire calm and objective consideration of the merits of an issue. Indeed, under such a shower of coloration, it is doubtful that an issue could fight its way to any attention whatsoever. We believe the language itself, quite apart from the assertions advanced, serves to categorize the resolution in a definitive fashion.

In addition to the language, there are the threats which can hardly be received with equanimity by an organization which has traditions of its own imbedded in a long history. Not a few chapters of that history detail the heartbreaking struggles through the decades against the icy indifference, the callous and active hostility or the lukewarm and opportunistic attitude of a vast body of trade unionists.

When you declare in 1962 that the NAACP's continued attack upon discrimination against Negro workers by trade union bodies and leaders places "in jeopardy" continued progress toward civil rights goals or rends the "unity" among civil rights forces, or renders a "disservice" to the Negro worker, or raises the question "whether it is any longer possible to work with the NAACP" you are, in fact, seeking by threats to force us to conform to what the Jewish Labor Committee is pleased to classify as proper behavior in the circumstances.

Needless to say, we cannot bow to this threat. We reject the proposition that any segment of the labor movement is sacrosanct in the matter of practices and/or policies which restrict employment opportunities on racial or religious or nationality grounds. We reject the contention that bringing such charges constitutes a move to destroy "unity" among civil rights groups unless it be admitted that this unity is a precarious thing, perched upon unilateral definition of discrimination by each member group. In such a situation, the "unity" is of no basic value and its destruction may be regarded as not a calamity, but a blessed clearing of the air.

We believe the record of our activity against racial discrimination renders invalid the assertion in the resolution that we have concentrated attacks "not on unions clearly guilty of discriminating against Negro workers." The record reveals that since as far back as the late Teens and early Twenties the NAACP has attacked discrimination in all types of unions.

In this connection, it is well to reiterate a facet of this discussion which appears to have escaped the attention of the various reviewers and resolution writers. It is that Herbert Hill, our Labor Secretary, has but one duty and that is to serve the interests of the Negro worker through the NAACP. Other groups, including trade unions, have powerful

Mr. Emanuel Muravchik-3- October 31, 1962

machinery to protect their principal interests. Mr. Hill is employed to maintain anti- discrimination work in the employment field as his top and only priority. He is not for trade unions first and Negro workers second. He has no divided loyalties.

While Mr. Hill is not unmindful of the immense aid that can be rendered his cause by trade unions and their leaders and while he, himself, is philosophically an ardent trade unionist, in any issue involving discrimination against Negro workers his loyalty is to them and to their cause without qualification. This is the general mandate under which he functions as an NAACP staff member. If at times those who have other priorities profess to see in his singleminded attention to his priority a special hostility to theirs, we and he regret it.

We are aware that the trade union movement can be a strength to the Negro population of our country whose employed portion is largely in the working class. We have followed, almost too faithfully, the procedure of waiting and working in every possible way to resolve union-race situations without open breaks. But our care in this respect, born of our concern for the long-run welfare of the Negro workers, as well as for the conservation of unions as a protection for all workers, should not be regarded as foreclosing a frontal attack, irrespective of the opponent of the Negro worker. In such circumstances our protests and our use of appropriate methods of redress cannot be characterized as "irresponsible," "destructive" or "vicious."

We assert with the greatest emphasis that nothing, absolutely nothing, in Mr. Hill's recent or more remote statements can be construed as anti-Semitic. This is a grave charge to make. It requires more substantiation than your flip reference in a part of a sentence. The charge is not only against Mr. Hill, but against the NAACP itself. We do not deign to defend ourselves against such a baseless allegation. Its inclusion in the resolution, as well as in the statements to the press by Mr. Zimmerman is unworthy of an organization like the Jewish Labor Committee which, in the very nature of things, must be conversant with the seriousness of such a charge and with the evidence required to give it substance. No such evidence has been submitted in this case beyond the citation of the use by Mr. Hill of one word, "ethnic," out of a total of 4,500 words in his testimony before the House subcommittee. The relevance of his comparison of the ethnic composition of the membership and the leadership of the ILGWU can hardly be questioned in this context.

Similarly, we do not feel that the general denials and outraged protests which have been the response of the ILGWU to our charges of discriminatory practices are in any way an adequate answer to those charges. As we have repeatedly indicated, we are prepared to withdraw any or all of them upon genuine proof of their inaccuracy.

Mr. Emanuel Muravchik-4- October 31, 1962

There seems no better way to summarize the position of the NAACP in this and similar matters than to quote the two last paragraphs of my letter of March 20, 1959, to Mr. Louis Stulberg, now General Secretary-Treasurer of the ILGWU and a member of the General Executive Board of the JLC:

"The NAACP has always regarded the ILGWU as a friendly organization and still so regards it. This does not mean that we regard it as being perfect or sacrosanct. We will be happy to accept the implied invitation in your next to final paragraph to discuss with you any apparent failures of the union in our special field which come to our attention. In past years we have received directly from Negro members of the ILGWU, who are also members of chapters of the NAACP in New York City, allegations of unfair treatment in the union. On several occasions we have attempted to discuss these with the proper official of the local concerned, but have been rebuffed, sometimes in summary fashion.

"It is our wish that no act of ours shall contribute to the division of the forces of liberalism in America, but we know that the effective union of these forces is built upon mutual acknowledgement of the problems to be faced, mutual recognition of the strengths and weaknesses involved, and mutual respect in the joint and continuing attack upon the evils. We know that the ILGWU has no truck with paternalism for it has fought economic paternalism all its life. We, too abhor paternalism, from whatever source, and choose, instead, honest and adult partnership. In that spirit there need be nothing except good will, good intentions, and fruitful cooperation between our two organizations."

Very sincerely yours,

Roy Wilkins
Executive Secretary

Joan A. Conway

1932 Franklin Delano Roosevelt elected 32nd president
Franklin Delano Roosevelt (1882-1945) was the only president elected four times, serving more than 12 years, longer than any other president. Roosevelt led the United States through its worst depression and through its worst war, WW II. Coming to office during the Depression, Roosevelt inaugurated a new era, a New Deal, for America. For the first time, the federal government stepped in to stimulate and regulate the economy. Roosevelt wanted to help the average American, whom he called the "forgotten man." Since Abraham Lincoln, no other president had been so bitterly hated or so deeply loved. Critics thought that Roosevelt's policies gave the federal government too much of the power that they believed belonged to the states. Many thought that government controls over business would destroy the free enterprise system. Those who supported Roosevelt saw him as the friend and protector of the "common man" and woman. Roosevelt appointed Frances Perkins, the first woman to be appointed to a presidential cabinet, as his Secretary of Labor. He died just 83 days after being elected to his fourth term.

Joan A. Conway

Published on Monday, May 17, 2004 by the San Francisco Chronicle
Brown vs Board of Education: 50 Years Later
1954 Ruling Seen as Model of Judicial Activism
Landmark Segregation and Gay Nuptial Cases have Similarities

by Bob Egelko

Fifty years to the day after the U.S. Supreme Court outlawed school segregation, another court ruling will allow same-sex couples to marry in Massachusetts today.

There are many differences between Brown vs. Board of Education and Goodridge vs. Department of Health Services - for one, gays and lesbians have not faced the same historic level of discrimination as African Americans - but the two cases have more in common than a date.

Both the nation's high court and the Massachusetts Supreme Judicial Court used their constitutional power to protect a politically weak minority from state laws that the justices considered discriminatory, directing legal and societal changes from the bench that would not have happened in a state legislature.

In the intervening decades, the U.S. Supreme Court has followed much the same path in rulings that legalized abortion and interracial marriages, outlawed organized school prayer, suspended the death penalty nationwide from 1972 to 1976 and required police to tell suspects of their right to remain silent and consult a lawyer. Last year, the court overturned state laws against consensual sodomy, a ruling that laid the groundwork for the Massachusetts decision on same-sex marriage.

Following the Supreme Court's lead, lower courts have taken control of prisons and mental hospitals after finding that the state was failing to protect inmates, another vulnerable group, from abuse.

The model for each case was Brown, which set a modern precedent for the judiciary as the guardian of rights - some constitutionally specified, some not - for the outcast, the downtrodden and the unpopular. The extent to which courts can, and should, perform that role remains a topic of hot debate.

"When the court advances liberty or equality in a way that the legislature won't, I think the court's performing its highest mission,'' said University of Southern California Law Professor Erwin Chemerinsky. "I believe that the courts make a positive difference in society.''

To take two prominent examples, he said, abortion was illegal in 46 states on the day before Roe vs. Wade was decided in 1973, and legal in all 50 states the day after; private homosexual conduct was illegal in 13 states before the Supreme Court struck down those laws last year.

But John Eastman, law professor at Chapman University in Orange, said courts raise questions about judicial legitimacy when they second-guess elected lawmakers - particularly on subjects that are not mentioned in the Constitution, like abortion and gay rights.

Even in the Brown case, whose equal-protection rationale he supports, Eastman said the court should have confined its ruling to individual students and districts and left broader changes to the democratic process, where they would have been "longer lasting and more stable.''

Such critiques are not limited to conservatives like Eastman. Liberal scholar Mark Tushnet's 1999 book, "Taking the Constitution Away From the Courts,'' advocated relying on political rather than judicial action to protect individual rights. And University of Virginia Law Professor Michael Klarman argues that rulings like Brown and the Goodridge decision in Massachusetts often backfire.

"By outpacing public opinion on issues of social reform, such rulings mobilize opponents, undercut moderates, and retard the cause they purport to advance,'' Klarman said in a recent law review article. "... In the short term, Brown retarded progressive racial reform in the South'' by generating a fierce backlash, and Goodridge appears to be having the same effect, he said.

Brown-style activism on behalf of minorities has been rare in Supreme Court history. A different kind of activist court overturned minimum-wage laws and other economic regulations on property-rights grounds early in the 20th century, relenting in the late 1930s only after President Franklin Roosevelt proposed his court-packing plan to appoint additional justices.

The court laid the groundwork for the modern era with a famous footnote in a 1938 case suggesting that minorities who were not protected by the political process were entitled to special constitutional status. It took another 16 years, a procession of new justices and a wave of social changes to turn the judicial theory into dramatic reality.

Klarman attributed the Brown ruling to developments outside the court: World War II's effect on racial attitudes, a rise in African American political power and the growth of a black middle class, and Cold War politics, which made Southern white supremacy an international embarrassment.

"The justices in Brown did not think they were creating a movement for racial reform; they understood that they were working with, not against, historical forces,'' Klarman wrote, adding that the civil rights movement was the chief catalyst for change.

Other commentators said the court deserves more credit. Pulitzer Prize- winning historian David Garrow called the Brown ruling "a huge motivating, encouraging force'' for such watershed events as the Montgomery bus boycott of 1955-56 and the sit-ins of the early 1960s. USC's Chemerinsky said the ruling ultimately doomed Southern segregation in all walks of life and represented a triumph for the court's power to subject laws to constitutional review.

Fast-forward a half-century. Today's Supreme Court is arguably as activist as the court that decided Brown, usually in another direction - overturning federal disability-rights and gun-control laws in the name of state autonomy - but occasionally in decisions reminiscent of the earlier court, like last year's ruling overturning state sodomy laws.

Courts in some states, like Massachusetts, are taking the lead in expanding constitutional protections - perhaps following the path of the California Supreme Court, which defied public opinion and decades of precedents by overturning a ban on interracial marriage in 1948, 19 years ahead of the U.S. Supreme Court.

Both sides of the same-sex marriage issue are preparing for crucial tests on opposite coasts: in California, where the state Supreme Court hears arguments May 25 on the legality of same-sex weddings in San Francisco, and in Massachusetts, where the state court's ruling allowing gay marriages to begin on Monday could be undone by a 2006 ballot measure.

Whether the marriage cases are part of the legacy of Brown and the surrounding civil rights movement is one point of disagreement between the opposing sides. But veteran gay-rights litigator Evan Wolfson, executive director of Freedom to Marry, draws another lesson from the Brown case.

"The tremendous resistance that followed Brown showed it's not enough to win a legal victory,'' he said, stressing the need to organize politically and change public attitudes.

"Courts have sometimes been willing to get out ahead of the nation, but we have an obligation not to leave them out there.''

©2004 San Francisco Chronicle

Joan A. Conway

April 20, 2007
Posner, Barak, and Judicial Activism
Richard Posner's recent review of Aharon Barak's "The Judge in a Democracy" in The New Republic is good reading and focuses attention not only on a favorite of constitutional activists but also of many Israelis who are proud of their creative, intelligent, and extremely aggressive (recently retired) Chief Justice. Barak's activism is often glorified in American Law Schools; he often found "unreasonable" government actions illegal, and occasionally compelled government action where democratically elected officials had chosen not to act or to act differently, and thus appealed to the optimistic and wildly self-confident views of American academics. Posner, unsurprisingly and refreshingly, is much less smitten than many of the constitutional law scholars I have observed.

I have some trouble with the Review's second step, which is to say that Barak's hubris should reveal why we would not want to cite foreign decisions as precedent. I suppose foreign opinions are more valuable the more the foreign system resembles ours, but if foreign judges follow (or take upon themselves) different standards of review that does not necessarily make them useless. To be sure, if they struck down statutes simply because they thought them unwise, our courts ought to learn to pay little attention, but even Judge Posner is not making that claim about Barak. Just as our legislatures are, or ought to be, interested in how other countries deal with issues like health care and taxes, so too our courts might care about foreign treatments - even if they ought not use a foreign decision (alone) to find some U.S. statute unconstitutional.

In any event, we might see judicial activism as a long-term product of judicial quality. If, over time, a democracy finds that its legislature performs well, it is natural for it to build up more hostiity to judicial activism than if it found its legislature wanting and its judges prescient. At various times our judges have taken it upon themselves or even been encouraged to decide important questions of environmental policy, policing strategies, campaign finance, and much more. We like to think that the proper judicial role is one set by our constitutional structure, but surely we should expect a greater (or lesser) judicial role the more that branch appeared to have outperformed the legislature (or botched things) the last few times around. Judge Posner recognizes this in his Review, of course, but wishes that Barak had been more self-conscious about the role of local conditions or the possibility that he (Barak, not Posner!) was occasionally misguided. But the larger point is that the degree of activism, and possibly even the "right" degree of activism might be a function of expected quality.

Finally, I wonder whether our conceptions of judical activism have something to do with our three branches of government, so that a parliamentary system (like Israel's) might be much less concerned with judicial overreaching. If the citizenry of Israel thought that its supreme court went too far, I think the government there would have a much easier time ignoring the court than would our executive or legislative branch in similar circumstances. This conjecture requires more evidence about legal systems around the world, but it is interesting that Barak was treated so respectfully in a country that rarely exalts its elected officials.

Posted by saul levmore at 12:00 PM | Permalink

Joan A. Conway

Chief Justice Charles Vans Hughes was not the only one who retired during FDR's reign. (1930-1940)

It was Justice Van Devanter; Controversy raged over FDR's court-packed plan to place young blood next to superannuated justices.

The Court change direction in a number of decisions sustaining regulatory statutes during Van Devanter's retirement.

FDR's radio address challenged Court more directly and defended his plan more forthrightly on March 9, 1937, known as FDR's Fireside Chats.

The Interstate Commerce clause was ruled on with limits prior to 1937 by the Justices, afterward the Commerce had no limits.

The 1935-1936 decisions persuaded the Roosevelt Administration that strong measures were needed to save the New Deal from judicial invalidation.

Such cases as U.S. vs. e. C. Knight, Co. calling for formal boundaries between interstate and intrastate activities, such as manufacturing became the standard, along with Schechter (so remote) and Carter (invalid).

Several major New Deal laws held unconstitutional, and the danger was that the National Labor Relations Board and the Social Security Act were coming up.

The adverse report of Senate Judiciary Committee on June 14, 1937 rejected FDR's proposal, but while Roosevelt lost the battle, he won the war. Roosevelt appointed 7 justices during his 3 term office from Black, Reed, Frankfurter, Douglas, Murphy, Byrnes, and Jackson, that left Chief Stone and Justice Roberts in office from the Hoover Administration (1929-1933), the height of the great depression.

Justice Roberts was known as the switch that saved the nine in a struggle for Judicial Supremacy in 1941.

The 168 days (1938) dual between FRD and Supreme Court was fought for the little man.

See "A Thrice Told Tale" or "Felix the Cat," 107 Harv. L. Rev., 620 (1994).

But afterward activist judges went further than Governments' arguments, such as National Labor Relations Board v. Jones & Laughlin Steel Corp. concerning "unfair labor practices" against employees with discriminatory discharges for union activity, through dicrimination and coercion.

Joan A. Conway

A Thrice-Told Tale, or Felix the Cat
Michael Ariens
Harvard Law Review, Vol. 107, No. 3. (Jan., 1994), pp. 620-676.
Stable URL: http://links.jstor.org/sici?sici=0017-811X%28199401%29107%3A3%3C620%3AATTOFT%3E2.0.CO%3B2-O
Few legal scholars would dispute the constitutional, historical, and political importance of the events of 1937, when the Supreme Court, faced with President Franklin Delano Roosevelt's plan to reorganize the federal judiciary, ultimately approved a sweeping interpretation of governmental authority to implement socioeconomic legislation. The course of events, although frequently canvassed, has yielded conflicting interpretations of the actions and motivations of the Justices who took part in the fabled "switch in time that saved nine." In this Article, Professor Ariens argues that Felix Frankfurter played a pivotal role in disseminating a particular history of the events of 1937. Reversing his own privately expressed position of dismay at the Court's actions in 1937, Frankfurter, in a memorial tribute to Justice Owen Roberts in 1955, revised the history of the events of 1937, a history that placed the Court above the fray of politics in its decisionmaking. Professor Ariens argues that the events of 1954-1959, the era of Brown v. Board of Education, played an integral part in shaping Frankfurter's revised history of 1937 and led to its widespread acceptance. Professor Ariens draws, from the interrelationship of these two constitutional events, telling lessons about post-War legal thought and the evolution of constitutional history.

Joan A. Conway

Phrases from A Thrice-Told Tale follow:

"If the integrity of our democratic framework required a committment to civil rights for Negroes, and if the judiciary was the only branch of the federal government able to create a constitutional framework to implement civil rights, then it was crucial that the Court maintain its integrity. The revised history was one effort toprovide a foundation for that integrity. At the time Frankfurter worte his tribute (and continuing through today), judicial independence from politics was a necessary prerequisite to judicial integrity. Professor Sunstein is right: Bron is the Court's leading symbol of judicial independence. Part of the reason Brown is so viewed is that a plausible story of the Court's fedility to law, including the events of 1937, made it easier to sell Brown as a permissble interpretation of the Constitution in the face of massive resistance. Jsutice Felix Frankfurter helped to create and disseminate that plausible story. Page 675.

Cavalieri-Conway, Joan

AbstractLetter from Wyoming
Boomtown Blues
How natural gas changed the way of life in Sublette County.
by Alexandra Fuller
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Sublette County, Wyoming; Natural Gas; Oil and Gas Companies; Drilling; Energy Boom; Drug Addicts; Crystal Meth (Methamphetamines) LETTER FROM WYOMING about how natural gas has changed the way of life in Sublette County. The annual Rendezvous Rodeo, held the second weekend in July, is the largest of the season in Sublette County, Wyoming. Roper Saul Bencomo was on the 14th team to ride. Seated next to the writer, Bencomo’s wife, Holly Davis, smiled. Davis is a third-generation cowgirl. The two work for local ranchers. This part of Wyoming is experiencing a boom in natural-gas exploitation, but locals still refer to the drilling fields as “the oil patch.” Sublette, with a population of 7,000, insists on its identity as a ranching community. But the truth is that oil-patch jobs-and the accompanying crime and drug use-are overwhelming ranching in the community. Since 2000, almost 1,800 new wells have been added, and 7,000 more have been approved for drilling in the next 10 years. Energy companies are pushing for unfettered access to private and public lands in the area. Wyoming’s leaders are almost all pro-energy development. Mentions Gillette syndrome-the depression and lawlessness that come with mineral wealth. A recent report by Ralph Boynton shows the Sublette crime rate rising by 30% from 2004 to 2005; air quality and the quality of life have also been affected. With the arrival, since 2000, of nearly 3,000 roughnecks, off-rig boredom has increased and this helps explain some of exploding crime rate. Fuelling all this is the growing use of methamphetamines-primarily crystal meth, the roughneck’s drug of choice. Mentions Jeff Swain. Tells about roughneck Levi Licking-a former crystal meth addict-and his wife, Becca. Licking is concerned about meth use causing work accidents. A young roughneck named the Kid said the oil-patch bosses have no incentive to clean up the drug use, because if they did, “they’d have no one left working.” The writer visited the Jonah natural-gas field operated by the Canadian company EnCana. Mentions EnCana spokesman Paul Ulrich. Describes the damaging environmental consequences of drilling. What has been upset by the boom is the careful balance of ranching, drilling, and tourism that the community has maintained for almost 100 years. Mentions rancher Freddie Botur. A place in the throes of an energy boom isn’t so different from a person in the throes of addiction. “They’ve ripped the roots out of the very thing they say they care about: community values, family values, property rights,” Botur said.

Alexandra Fuller, "Boomtown Blues," The New Yorker, February 5, 2007, p. 38

Cavalieri-Conway, Joan

"The Capitalist System" Second Edition, Richard C. Edwards/Michael Reich and Thomas E. Weisskopf, "The Development of the Wage-labor Force, page 179:

In short, the United States has become a nation of wage and salary employees who have virtually no access to income from property or control over the production process, and whose economic welfare is determined by the vicissitudes of the labor market.

"The process by which capitalist development progressively reduces more adults to the status of seller of labor-power has taken place in all capitalist countries, for example, data for France and Germany also indicate a steadily increasing proportion of wage-and salary-earners.

Furthermore, the independent status of many once elite professional white-collar jobs has been steadily eroded. Scientists, engineers, architects, teachers, nurses, university professors, technicians, etc. find that they work in ever-larger organizations in which the content of their jobs, as well as their working conditions, are more narrowly defined and set down from above.

Even doctors and lawyers have not escapted some loss of independence....Fewer lawyers are engaged primarily in their own practice; many now work for large law firms or are employed directly by corporations and governments on an annual salary basis."

See, Bunting v. Oregon, 243 U.S. 426 (1917), "That the police power extends to health regulations is not denied, but it is denied that the law has such purpose or justification. It is contended that it is a wage law, not a health regulation, and takes the property of plaintiff in error without due process. The contention presents two questions: (1) Is the law a wage law, or an hours of service law? And (2) if the latter, has it equality of operation?"

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