- Morgan and the New Dealers
Readers of the New York Times were not accustomed to encountering in its pages a Cabinet official picking a fight with the Supreme Court, but that is what they did on May 8, 1938. Chief Justice Charles Evans Hughes, writing for a majority of the Supreme Court, had recently ruled that Secretary of Agriculture Henry A. Wallace had used the wrong procedures to set the rates that "commission men" charged farmers for marketing cattle, pigs, and sheep at Kansas City's stockyards. It was the second time the case had come before the Court. On the previous occasion, the justices had sent the case back to the lower courts to determine whether the secretary had personally studied the factual record before issuing the rates. In fact, Wallace had given the matter "more personal attention than any previous Secretary of Agriculture had ever given to any case under the Packers and Stockyards Act or for that matter any half dozen cases," so when the case returned to the Court, the justices had to shift their ground. Now they objected that the Department of Agriculture had not revealed its case to the commission men, leaving them with no way of addressing the government's arguments. Wallace fumed that Hughes had implied that "the present Administration" was to blame for the procedures he followed, when in fact earlier, Republican administrations had established them. Besides, the procedures had already been revised in light of the Supreme Court's first decision in the case. The justices' real target, Wallace surmised, must not have been his department. "Both liberals and conservatives on the court were eager to . . . give a warning to the newer quasi-judicial [End Page 447] agencies," Wallace decided. Morgan simply gave them the "first opportunity" to do so.1
Wallace's letter to the Times was not his only public statement on the decision. He had already criticized it on NBC's "National Farm and Home Hour" and in a private letter to Hughes, and he restated his case in letters to every member of the U.S. Senate. The letters to the senators apparently moved the chief justice to return fire. The judiciary, Hughes intoned at a meeting of the American Law Institute, best exemplified "the tradition of independence and impartiality" in the United States. If administrators wanted the respect of their fellow Americans, they should strive to act "in the spirit of the just judge."2
Within hours, messengers from the Department of Agriculture appeared at Washington's newspaper bureaus bearing copies of the secretary of agriculture's earlier letter to Hughes. Later, at a press conference held as Solicitor General Robert H. Jackson readied a petition for a rehearing, Wallace announced that the "last word has not been spoken on the matter yet." When it came on May 31, the last word turned out to be "a stinging rebuke" from the Supreme Court, a brusque, per curiam opinion denying Wallace's petition.3
New Dealers congratulated Wallace for standing up to the justices, but they were the exception.4 More typical was the correspondent who called his letter to Hughes "a mendacious piece of bureaucratic impertinence"; another thought it "one of the most inane utterances of the most cockeyed administration this country has ever known." A New Jersey businessman praised Hughes for standing up to "the New Deal and all its beastial [sic] works." Idaho's former attorney general struggled to find the words to convey to Wallace "my contempt for you and for Solicitor Jackson." Mr. H. M. Sinclair counseled that "you only reveal yourself as small, vindictive and ridiculous when you attempt to lecture the court on its duty." But Mr. C. T. Elliott of Plainfield, New Jersey, had the best advice of all. "In the name of Heaven," he wrote, "Stop Talking!"5
Political historians have neglected Morgan II (as the decision came to be called) in favor of the great constitutional decisions of 1935–37. This is not surprising: in the company of Humphrey's Executor v. United States (1935), Schechter Poultry Corp. v. United States (1935), West Coast Hotel Co. v. Parrish (1937), and NLBR v. Jones...