Four 5-4; One 9-0

Mr. Chief Justice Charles Evans Hughes, looking very solemn and very fit in spite of having celebrated his 75th birthday the day before, cast hardly a glance at his jam-packed courtroom as he took his seat. With a rustling of robes his Associates joined him. The Chief Justice, turning his head, gave a brief nod toward the right extremity of the bench. Associate Justice Owen J. Roberts, end man of the Court, took up a manuscript and began to read:

"In this case we are to decide whether the National Labor Relations Act. ..."

The silent intake of spectators' breaths all but caused a vacuum in the courtroom. At last the fateful decision was at hand, the five-case test of the disputed Wagner Labor Act. Those who had camped at the Court's portal since dawn in order to get seats, felt rewarded. Government attorneys, who had preferred seats, nudged one another expectantly. Mrs. Hughes, who had presumably had a tip from her husband that this would be a good decision day to attend, sat in the front row of spectators paying very close attention.

If these decisions went against the Wagner Labor Act the political hue & cry against the Court would be raised once more. If the decisions upheld the Act, they would forecast a new era in the labor relations of U. S. industry: henceforth no industry affected by this law could refuse to bargain collectively with its employes, discharge them for joining a union, force a company union upon them, or interfere with their organizing. To Labor, to industry, to politics the outcome was momentous.

But already Justice Roberts was getting into the case of Newshawk Morris Watson, discharged by the Associated Press for union activity. Presently it appeared that Newshawk Watson had won because AP was engaged in interstate commerce and collective bargaining did not interfere with the Constitutional Freedom of the Press. On the latter point Justice Sutherland dissented on behalf of the four conservatives of the Court. But the major question of whether the Act was valid for ordinary industries was not settled, nor was it settled by the next case. This time Mr. Roberts read again, a unanimous decision, ordering the Virginia and Maryland Coach Co., which operates buses in interstate commerce, to reinstate discharged employes.

The remaining three cases held the gist of the case: were the steel industry (Jones & Laughlin Steel Corp.), the automobile industry (Fruehauf Trailer Co.) and the clothing industry (Friedman-Harry Marks Clothing Co., Inc.) subject to the Wagner Act, obliged to obey the orders of the Labor Board to restore discharged employes, to refrain from intimidating employes against joining a union?

On these cases, Chief Justice Hughes read the majority decisions. As he reached the heart of his decision, Government attorneys grinned excitedly, every spectator in the courtroom realized that he was seeing history made. Excerpts:

"We think it is clear that the National Labor Relations Act may be construed so as to operate within the spirit of constitutional authority. . . . "Employes have as clear a right to organize and select their representatives for lawful purposes as the respondent [Jones & Laughlin Steel Corp.] has to organize its business and select its own officers and agents. "Discrimination and coercion to prevent the free exercise of the right of employes to self-organization and representation is a proper subject for condemnation by competent legislative authority.

"The Congressional authority to protect interstate commerce from burdens and obstructions is not limited to transactions which can be deemed to be an essential part of a 'flow' of interstate or foreign commerce.

"Burdens or obstructions may be due to injurious action springing from other sources. . . .

"When industries organize themselves on a national scale, making their relation to interstate commerce the dominant factor in their activities, how can it be maintained that their industrial labor relations constitute a forbidden field into which Congress may not enter when it is necessary to protect interstate commerce from the paralyzing consequences of industrial war? . . .

"Experience has abundantly demonstrated that the right of employes to self-organization and to have representatives of their own choosing for the purpose of collective bargaining is often an essential condition of industrial peace. . . .

"Refusal to confer and negotiate has been one of the most prolific causes of strife. This is such an outstanding fact in the history of labor disturbances that it is a proper subject of judicial notice and requires no citation of instances. . . ."

The same animity of four conservatives, this time with Mr. Justice McReynolds acting as their voice, made answer. In a booming voice he cried:

"The idea has been advanced that this is legislation intended to prevent strikes and thereby prevent impeding commerce. Let me read a few lines from the Act itself: 'Nothing in this Act shall be construed so as to impede or diminish in .any way the right to strike.' So I think we may start with the idea that the Labor Board Act is not one to prohibit strikes. . . .

"A private owner is deprived of power to manage his own property by freely selecting those to whom his manufacturing operations are to be entrusted. We think this cannot lawfully be done in circumstances like those here disclosed. . . ."

Significance. For the time being at least the Supreme Court's Wagner Labor Act decisions reduced the great debate over the President's Supreme Court enlargement plan to an all but academic question, for the immediate reason which drove many liberals to support it was their wish for Labor legislation. One important aspect of the Wagner Labor Act not involved in last week's decisions was the right of the Labor Board to order plant elections and give exclusive bargaining power for all to the representatives of the majority. With the boost given them by these decisions, no man doubted that it would be long before this right too is threshed out in the courts. Meantime, however, the Supreme Court had once more demonstrated Mr. Hughes's reverberating dictum: "The Constitution is what the Judges say it is." Last week nearly every lawyer agreed that one afternoon in the Supreme Court Chamber, the interstate commerce clause of the U. S. Constitution had been rewritten and enlarged to include many things which for 149 years past it has never held within its few brief elastic words, to wit: "The Congress shall have Power ... to regulate Commerce with Foreign Nations and among the several States and with the Indian Tribes."

New York's Senator Robert Ferdinand Wagner, proud author of the historic law thus confirmed, at once took to the radio. This day's decisions, he declared with German-born reverseness, ranked "alongside the work done in the days of John Marshall" (the crusty old Chief Justice who first declared an act of Congress un-Constitutional). Mr. Wagner warned Labor's foes: "Let no one any longer take the law in his own hands, through self-appointed interpreters of what the Constitution means, through hired police or spies. . . ." Had such an act as his been the law long ago, he opined, there would have been no Sit-Down.

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