The New Deal Lawyers

The New Deal Lawyers

THE NEW DEAL

LAWYERS

——— By Peter H. Irons ———

PRINCETON UNIVERSITY PRESS

PRINCETON, N. J.

Copyright © 1982 by Princeton University Press

Published by Princeton University Press, 41 William Street,

Princeton, New Jersey

In the United Kingdom: Princeton University Press,

Chichester, West Sussex

All Rights Reserved

Library of Congress Cataloging in Publication Data will be found on the last printed page of this book

eISBN: 978-0-691-21964-6

R0

For

Mary Walton Livingston

and

Leonard Rapport

____________________ Table of Contents ____________________

PREFACE  ix

INTRODUCTION: Boys with Their Hair Ablaze  3

SECTION ONE: THE LEGAL POLITICIANS OF THE NATIONAL RECOVERY ADMINISTRATION

CHAPTER ONE: Corporatism and Cartels: The National Industrial Recovery Act  17

CHAPTER TWO: The Blue Eagle in Court  35

CHAPTER THREE: Hot Oil and Hot Tempers: The NIRA Reaches the Supreme Court  58

CHAPTER FOUR: The Felling of Belcher and the Search for a Successor  75

CHAPTER FIVE: The Schechter Case and the Horse-and-Buggy Court  86

SECTION TWO: THE LEGAL REFORMERS OF THE AGRICULTURAL ADJUSTMENT ADMINISTRATION

CHAPTER SIX: The Search for Parity: The Agricultural Adjustment Act  111

CHAPTER SEVEN: The Triple A in Court  133

CHAPTER EIGHT: King Cotton and the Triple-A Purge  156

CHAPTER NINE: Hamilton’s Ghost in the Supreme Court  181

SECTION THREE: THE LEGAL CRAFTSMEN OF THE NATIONAL LABOR RELATIONS BOARD

CHAPTER TEN: Labor under the Blue Eagle  203

CHAPTER ELEVEN: Legal Craftsmen and the Wagner Act  226

CHAPTER TWELVE: The NLRB Implements Its Master Plan  254

CHAPTER THIRTEEN: The Supreme Court Opens Its Eyes  272

CONCLUSION: The Limits of Legal Liberalism  290

NOTES  301

BIBLIOGRAPHY  333

INDEX  341

____________________ Preface ____________________

On the scales of American legal history, books about judges and their decisions far outweigh those about lawyers and their litigation. Even more pronounced is the bias toward biographies of members of the United States Supreme Court and accounts of notable Supreme Court decisions. Marshall, Taney, Story, Holmes, Brandeis, Stone, Frankfurter, Warren, and Douglas— these giants and a host of lesser lights on the highest bench have attracted biographers of varying capabilities and degrees of objectivity. Cases such as Charles River Bridge, Dred Scott, the Steel Seizure case, and Brown v. Board of Education have been plumbed in depth. And doctrinal exegesis, increasingly from a critical or neo-Marxist perspective, constitutes a well-established category of historical study. Lawyers, particularly those who combined political or judicial careers with law practice, have hardly suffered historical neglect, as studies of such luminaries of the bar as Daniel Webster, Elihu Root, and John W. Davis illustrate. But the focus on lawyers has been largely biographical, with little attention paid to questions of litigation strategy—how the cases they argued progressed from the filing of a suit to decision by the Supreme Court.

One reason for the imbalance between studies of judges and those of lawyers is evident. The Supreme Court sits at the pinnacle of the American legal system, and both its members and its decisions command notice as the expositors and exposition of the authoritative body of law that binds, at any given time, the decisions of inferior state and federal courts and that shapes, with due consideration of conflicting lines of precedent and unsettled areas of doctrine, the arguments available to lawyers who seek review by the Supreme Court. Other factors influence historians in their choice of topic: the opinions of judges, collected in bound volumes and often written with elegance and force, are easily accessible and reflect, in leading cases, deep-rooted issues of social, economic, and political controversy. In contrast, historians interested in litigation must search for hard-to-locate briefs and law office correspondence, the latter source frequently lost altogether or protected by the lawyer-client privilege. Private law firms rarely open their litigation files to historians, and lawyers rarely donate their law-practice papers to libraries or archives.

The process of litigation that leads to momentous Supreme Court decisions, however, is a topic deserving of historical study. This book is designed as a contribution to a field limited, thus far, to only two comparable studies. Forty years ago, in Lawyers and the Constitution, Benjamin R. Twiss examined critically the lawyers who argued, in the decades that spanned the turn of the past century, the cases that offered a receptive judiciary the opportunity to fashion a jurisprudence based on states-rights federalism and laissez-faire economics. Twiss might well have titled his study The Union League Lawyers, since most of the men whose work he discussed— leaders of the corporate bar such as William M. Evarts, Joseph H. Choate, James C. Carter, John F. Dillon, and William D. Guthrie—belonged to that bastion of Wall Street orthodoxy and shared the conservative values of the bankers, brokers, and judges with whom they fraternized in its exclusive clubhouse. More recently, in Simple Justice, Richard Kluger illuminated in compelling detail the litigation strategies pursued by lawyers who shared the liberal and humane values of racial equality. These men— Robert L. Carter, Thurgood Marshall, William H. Hastie, Charles H. Houston, Spottswood W. Robinson III, and Jack Greenberg among them— worked with the National Association for the Advancement of Colored People in the long legal struggle that began in the 1920s and culminated in 1954 in Brown v. Board of Education and its companion cases. Studies of church and state litigation, and of single cases, have added to this field, but the contributions of Twiss and Kluger stand out in richness of detail and in perception of the lawyer’s role in constitutional litigation.

What is remarkable is that, in this slim body of work, lawyers employed by the nation’s largest law firm—the federal government—have been all but neglected. And certainly, along with their corporate law predecessors and civil rights successors, the New Deal lawyers constitute the most influential group in bringing to the Supreme Court and in arguing the cases that have changed the shape of our legal landscape over the past century. My decision to study their differing litigation strategies was first stimulated in law school by my reading of Twiss’s and Kluger’s books, and given a concrete focus by questions left unanswered by Jerold S. Auerbach in his critical dissection of the 20th-century bar, Unequal Justice. The New Deal, Auerbach wrote, was a lawyer’s deal, a period in which lawyers, trained to govern in the modern liberal activist state spawned by the Depression, enjoyed direct access to its newest and most critical levers of power and monopolized the instruments of governance. However, Auerbach emphasized that his book was not about how lawyers practice law, nor is it an exegesis of legal doctrine.

Since I have taken up the implicit challenge of filling these gaps in Auerbach’s social history, and of producing a study comparable in approach to those of Twiss and Kluger, I feel some need to explain the sources of my ambivalence toward the New Deal lawyers, an attitude that differs from Twiss’s hostility to his corporate lawyers and Kluger’s admiration of his civil rights lawyers. Part of the reason stems, I think, from my longstanding antipathy toward (or at least suspicion of) the exertion of federal power over both the community and the individual. Raised in a family setting that combined Republican economic orthodoxy with social tolerance and concern for civil liberties, I became active in college (at Antioch in the late 1950s and early 1960s) in the sit-in and anti-draft movements. Experience as a criminal defendant, first in a sit-in case in Maryland and then as a draft resister in federal court, left a residue of resentment toward the government lawyers who proclaimed to be only doing our jobs in prosecuting me and others for what we felt were legitimate protests against illegitimate government policies. Twenty-six months in federal prisons, following my draft conviction, offered a chance to read widely in constitutional law and American political history.

Four years of graduate study in political science after my release from prison led to a dissertation on the last years of Roosevelt’s New Deal (and the first years of Truman’s Fair Deal), in which I explored the domestic political roots of the Cold War period. With the exception of my dissertation research, I found the study of political science sterile and apolitical. But two experiences during this period and the three years of teaching political science and sociology that followed graduate school led me increasingly to an interest in law and legal history. My familiarity with State Department records in the National Archives and the national security records classification system led to my employment in 1971 by the Pentagon Papers Defense Fund, with the task of compiling a list of former government officials who had taken with them on leaving office, or used in subsequent writings, classified documents. Working with Charles Nesson of Harvard Law School and Leonard Boudin, the lawyers defending Daniel Ellsberg, gave me an appreciation of the tactical and strategic issues raised by a highly political case. Second, my interest in the Alger Hiss case, as an offshoot of my dissertation research, grew into a continuing investigation of the tangled roots of the Hiss case and a friendship with Hiss that included fascinating discussions of his role as a New Deal lawyer.

Spurred by these growing interests, I abandoned teaching in 1975 to enter Harvard Law School, with the intention of concentrating in legal history and constitutional law and returning to teaching in law. At the time, I had only an academic interest in litigation, but short stints while in law school as a criminal defense lawyer and in a state anti-discrimination agency whetted this interest, as did a seminar on government lawyers. Thus, when I faced the task of choosing a topic for the required third-year writing project, my knowledge of the New Deal period, my fascination with the litigation process, my historical interest in the background of crucial constitutional cases, and my awareness of the resources of the National Archives combined to make almost inevitable my choice of the topic from which this study evolved. These varied experiences help to explain (if explanation is needed) the mixture of admiration and skepticism that leads me to acknowledge the skill and idealism of the New Deal lawyers, and the worth of their work in establishing a foundation for basic economic protection and federally protected civil rights, and yet to admit the inherent limitations of the government lawyer’s role as a servant of bureaucratic rigidity and political repression in those periods (under both Democratic and Republican administrations) when dissent poses a threat to power. As a lawyer, I understand these limitations; as a historian, I explore its sources and consequences with as much objectivity as I can muster; and as a political activist, I admit my profound ambivalence toward the New Deal period, with its accomplishments in social welfare and its legacy of bureaucratic ossification, and toward those lawyers who shaped, administered, and defended the New Deal’s conflicting policies.

SINCE readers will soon notice them, I hasten to point out and justify two significant omissions in this book. With a focus on only three of the many New Deal agencies, I have neglected the work of such influential New Deal lawyers as Dean Acheson, David E. Lilienthal, James M. Landis, and William O. Douglas. Two reasons justify this omission: first, these men served during this period primarily as administrators and not as litigators; and, second, the detailed case studies of litigation strategy that follow necessarily have imposed limitations of space and topic. Further studies of the agencies left out of this study (such as the Tennessee Valley Authority and the Securities and Exchange Commission) will, I hope, shed additional (and perhaps corrective) light on the federal litigation process, as will studies of government lawyers in prior and later administrations. The second omission relates to that handful of New Deal lawyers (most in the AAA, and a few in the NLRB) alleged to be Communist Party members or fellow-travelers. Of the lawyers who appear in this book, Alger Hiss, John Abt, Nathan Witt, and Lee Pressman were later accused of membership in a party cell in Washington. Pressman, in the early 1950s, admitted his party membership and named both Abt and Witt (but not Hiss) as fellow members. Abt and Witt declined to acknowledge party membership before congressional committees, and Hiss has consistently and vehemently denied such charges. Some or all of these New Deal lawyers (and others as well) may have been party members during the period covered by this book. But a diligent examination of the available records, with this fact in mind, discloses no evidence that Communist Party membership or sympathy affected in any way their work as lawyers, or that they acted differently from their colleagues who were Democrats or even conservatives. As far as this book is concerned, my conclusion is that the communist issue is a non-issue. I would, of course, welcome and consider any evidence to the contrary.

BY far the most gratifying task in completing a book is that of acknowledging the support and assistance of those who have helped along the way. The dedication of this book to Mary Walton Livingston and Leonard Rapport is intended to acknowledge, in the place where it really belongs, my debt to two people who have worked in the National Archives for decades and who have helped me immeasurably over the past decade, first in my dissertation research, then in my work on this book, and presently in my current study of the early years of the FBI. On every visit to the Archives, Mary Walton and Leonard have listened patiently as I listed my research needs, suggested where to look and whom to talk to, and helped me find the next needle for which I was searching in the haystack of federal records. Others on the National Archives staff, particularly Donald Mossholder, Meyer Fishbein, Charles Stovall, and Joseph Howerton, deserve mention for their help in this study. Erika Chadbourne of the Harvard Law School Library has been especially helpful, on this and other projects. In addition, the staffs of the Oral History Collection of Columbia University, the Franklin D. Roosevelt Library in Hyde Park, the Manuscript Division of the Library of Congress, the Yale University Library, and the library of the Cornell University School of Industrial and Labor Relations have all been remarkably cooperative and eager to suggest overlooked sources.

I am grateful as well to those New Deal lawyers whom I interviewed about their experiences, especially to those who responded, often at considerable length, to the draft chapters I sent them: those who contributed reactions (and corrected numerous errors of fact and interpretation in the process) are Eugene F. Bogan, Thomas I. Emerson, the late Charles Fahy, Abe Fortas, Milton Handler, Alger Hiss, Leon Keyserling, David L. Kreeger, Walter L. Rice, Blackwell Smith, and Robert L. Stern. Some of these lawyers took exception to my analysis, but all took seriously my request to criticize and correct the manuscript. Three of those I asked for interviews declined on various grounds; I have tried to treat them in my writing as fairly as I have those with whom I talked.

Morton J. Horwitz of the Harvard Law School faculty not only taught me much legal history but also supervised this study in its first stages and provided a critical reading of the first draft of the NRA section. Robert J. Glennon of Wayne State University Law School contributed his knowledge of Jerome Frank to an exceedingly useful editing of the AAA section, and the opportunity to comment on his paper about Frank at a meeting of the Association of American Law Schools provided the spark, as I listened to his presentation, that led to the models of litigation style around which this book is constructed. David Conrad of Southern Illinois University also commented helpfully on the AAA section. Thomas I. Emerson of Yale Law School gave me an incisive critique of the NLRB section; and Thomas E. Vadney of the University of Manitoba sent me overlooked documents from the Donald Richberg papers. Jerold S. Auerbach of Wellesley College, whose book Unequal Justice helped to stimulate this one, and Harry N. Hirsch of Harvard University, whose psychobiography of Felix Frankfurter aided my understanding of that complex and contradictory figure, both read the entire manuscript and provided suggestions for revisions and refinements. I am glad to acknowledge, as well, the modest but essential grant from the Mark deWolfe Howe Fund of Harvard Law School that made possible my initial research, and the help of Stephen Arons of the University of Massachusetts at Amherst in securing funds for typing. None of those listed above, of course, bears any responsibility for errors of fact or deficiencies of analysis in what follows.

Gail Filion of Princeton University Press has been unfailingly supportive in guiding this book to press, and R. Miriam Brokaw of the Princeton editorial staff contributed a meticulous and sensitive copyediting to the manuscript. Diane Truax, Terry St. Helaire, and Peter Pruhaska expertly typed early drafts, and Susan Munro typed the final draft in a close race with motherhood, retaining her skill as she grew farther from the typewriter (the book barely beat the baby). Howard Zinn played no direct role in this book, but in sending me books while I was in prison, arranging my admission to graduate school during that time, serving as a mentor and model of the committed historian, and remaining as a friend along with Roz Zinn over the past decade, deserves an expression of indebtedness. Stephen Jay Gould, whose lucid and witty writings in science gave me an incomparable model to emulate in my field, has long been a devoted friend and perceptive critic; this book is better for our bowling-alley discussions.

And, finally, there is Priscilla Long, with whom I have shared my life for fifteen years. Her contribution has been that combination of love and living space that has kept us both together and apart, in the best sense of that shared life. To end this preface without expressing my love for Priscilla would leave this book incomplete.

P.H.I.

The New Deal Lawyers

A plague of young lawyers settled on Washington. They all claimed to be friends of somebody or other, and mostly of Jerome Frank and Felix Frankfurter. They floated airily into offices, took desks, asked for papers, and found no end of things to be busy about. I never found out why they came, what they did, or why they left.—George Peek

____________________ Introduction ____________________

BOYS WITH THEIR HAIR ABLAZE

Bitter conflict between New Dealers and their Old Guard opponents marked the first four years of Franklin D. Roosevelt’s presidency. Swept into office with a mandate to repair the ravages of the Depression, the New Deal Congress that began its "Hundred Days’’ session in March 1933 enacted an innovative package of legislation designed to revive a moribund economy. Debate on the programs of industrial and agricultural reconstruction that formed the core of the New Deal centered around the construction of broadly worded constitutional provisions and the allocation of power between the states and the federal government. The arena in which these issues were most heatedly contested was not, as one might expect, the chambers of Congress. Popular rejection of the charity-basket policies of the Republicans in the 1932 elections had reduced the once-grand old party to a vocal but ineffectual remnant in both wings of the Capitol. Commanding majorities of almost three-to-one in the House of Representatives and two-to-one in the Senate, the Democratic leadership in Congress easily deflected the rhetorical barbs of the GOP minority as it shepherded Roosevelt’s legislative program to passage.

The real confrontation between New Dealers and their foes took place, rather, in federal courtrooms dominated by Republican judges wedded to the states-rights and laissez-faire ideologies repudiated overwhelmingly by the voters in three successive elections between 1932 and 1936. The constitutional limitations of ballot-box democracy gave the electorate the power to reshape only two of the three coordinate branches of the federal government. Armed with the judge-made weapon of judicial review and shielded from the arrows of change by the doctrine of stare decisis, life-tenured judges at all three levels of the federal judiciary wielded a potent veto over New Deal programs in the name of constitutional fundamentalism. When Roosevelt took office after twelve years of GOP control of the White House, the federal bench reflected a mirror image of Congress. The 140 judges appointed by Roosevelt’s three Republican predecessors made up three-fourths of the district court bench and two-thirds of the appellate bench. It was this group, partisan in background and conservative in judicial philosophy, that constituted the most formidable barrier to the New Deal.

Given this balance of political forces, the task of defending the New Deal fell, not to experienced congressional leaders, but to the untested young lawyers who staffed the legal offices of the emergency agencies created by Congress. Between 1933 and 1937, New Deal lawyers matched their skills and idealism against the twin obstacles of equally skilled corporate lawyers and hostile federal judges in hundreds of courtroom battles over New Deal statutes. Their efforts were largely unavailing until the dramatic Constitutional Revolution of 1937, in which the Supreme Court capitulated to the reality of the 20th century and upheld the power of the federal government to regulate relations between workers and employers. Four years of working-class eruption, electoral vindication of the Roosevelt program, and growing frustration over the obduracy of the courts lay between the first assaults by New Deal lawyers on the fortress of laissezfaire jurisprudence and the final breaching of its massive walls.

The drama of this conflict and its denouement in itself justifies a recreation of the litigation skirmishes that ended in three decisive battles in the Supreme Court chambers: first, the invalidation of the National Industrial Recovery Act in May 1935 in Schechter Poultry Corp. v. United States; second, the rejection of the Agricultural Adjustment Act in January 1936 in United States v. Butler, and, finally, the upholding of the National Labor Relations Act in April 1937 in NLRB v. Jones & Laughlin.¹ These were the New Deal cases that tested the federal government’s regulatory powers over the central components of the national economy: industry, agriculture, and labor. My concern, however, is less with the chronicle of conflict than with its dynamics. The three case studies that follow explore in detail the litigation process that begins with legislative drafting and ends with Supreme Court decisions in constitutional test cases. Although these two points mark the formal boundaries of the litigation process, the intermediate stage between drafting and decision constitutes the heart of these case studies, since what happens along the route from Congress to the Supreme Court is largely the province of the lawyers on whose work this book is focused.

Two related questions animate this study: first, how do constitutional test cases emerge from the crowded litigation dockets of federal regulatory agencies; and, second, can differences be discerned in the litigation strategies adopted by different agencies in the selection of test cases? The complex process of planting and weeding a litigation docket of hundreds or even of thousands of cases, in search of the sturdiest test case, is subject to several factors over which government lawyers have little control. The assignment of judges, the arguments of lawyers on the other side, the rulings of judges on points of fact and law during trial, and the timing of judicial decisions are vagaries that may suddenly uproot a promising test case. In addition, the discretionary jurisdiction of the Supreme Court provides no guarantee that a case will be accepted for review at a propitious time or even at all. There is, nonetheless, considerable room for maneuver in framing a litigation strategy designed to bring a particular test case to the Supreme Court within a particular term. Agency dockets generally contain cases with similar facts and issues, and the intermediate appellate courts regularly decide cases ripe for final review by the Supreme Court. But, as this study shows in its comparative aspect, lawyers in different agencies vary greatly in the litigation strategies they pursue. At one extreme, an agency’s lawyers may seek to avoid a Supreme Court test altogether, or to defer one as long as possible; at the other, the strategy might be to push for the earliest possible test. The factors that influence these choices of strategy are manifold and often obscure. Two factors, however, almost invariably affect the ultimate shape of an agency’s litigation strategy. One is that of politics, the forces brought to bear on government lawyers by an agency’s administrators, by its constituency, by the White House and Congress, and by the intangible but often powerful pressure of public opinion. The other is that of personality, represented most directly through an agency’s general counsel, the official most directly responsible for litigation decisions.

The joint impact of politics and personality, a conjunction of influences often impossible to separate, can most fruitfully be explored in the context of federal litigation through the concept of style formulated by James David Barber in his studies of the American presidency.² Barber’s explorations of the components of presidential leadership—the distinctive handling of words, work, and people, and the balance between them—provide models of political style that have obvious corollaries in the political environment in which government lawyers operate. My conclusion that each of the New Deal general counsel I have studied—Donald Richberg of the National Recovery Administration, Jerome Frank of the Agricultural Adjustment Administration, and Charles Fahy of the National Labor Relations Board—personified a distinctive legal style that shaped his agency’s approach to litigation and influenced agency lawyers in their handling of cases, emerged not from any preconceived model of the litigation process but rather from my examination of the decisions made by lawyers in each agency in hundreds of cases. As the dockets were winnowed from hundreds of cases filed in federal courts (chosen in turn from thousands of complaints brought to the agencies of violations of statutes and regulations), to some sixty cases decided on constitutional grounds by lower federal courts between 1933 and 1937, and finally to the handful of test cases decided by the Supreme Court, distinctive patterns of case-handling emerged. It became clear that lawyers in each agency followed the general contours of the legal style of the general counsel under whom they worked.

The labels I apply to the three groups of New Deal Lawyers—Legal Politicians in the NRA, Legal Reformers in the AAA, and Legal Craftsmen in the NLRB—are meant to be suggestive rather than definitive. Lawyers in each agency displayed traits of each approach to litigation. Given the ferment of the New Deal and the nature of legal training, it is hardly surprising that New Deal lawyers would exhibit political sensitivity, reformist sentiment, and legal craftsmanship in their handling of cases. Particularly at the level at which decisions on test case strategy were made, however, differences in approach between the agencies are evident. The fact that each general counsel tended to recruit lawyers whose backgrounds matched his adds force, I think, to the utility of these models of legal style.

The meshing of politics and personality gives this book a biographical focus in conjunction with that on the litigation process. Although the three general counsel stand in the foreground of this group portrait of New Deal lawyers, a composite picture will help to identify the biographical snapshots that follow. The 95 lawyers whose work is discussed in this book are those directly involved in the litigation that led to each agency’s test cases. This sample is biased toward litigators and those at the middle and upper levels of the agencies, but includes as well a fair cross-section of the 500-odd lawyers employed in them and in the Justice Department during this period.³ One shared characteristic defines them: with few exceptions they were products of the 20th century. Well over half were born in the decade between 1900 and 1910 and completed law school between 1925 and 1935. They were disproportionately urban in upbringing, Jewish and Catholic in heritage, and liberal in politics. In these respects, they differed significantly from the bar as a whole and from the judges before whom they argued. They were, additionally, products of elite law schools. Fully 60 percent attended law school at Harvard, Yale, or Columbia; 4 out of 10, in fact, were Harvard graduates. The proportions varied considerably between agencies, however; only 2 of 16 NRA litigators attended Harvard, while 15 of 26 in the AAA were Harvard graduates. But only in the NRA did fewer than half (43 percent) of the litigators come from one of these three elite schools.⁴

That these elite law schools channeled lawyers into New Deal offices is less remarkable, given the prestige of their diplomas, than the unorthodox and often heretical approaches to legal education of their faculties. Centered in these three schools, a loosely connected segment of the law school professoriate revolted during the 1920s and 1930s against the sterile formalism and conceptualism of 19th-century jurisprudence and the casestudy straightjacket imposed on legal education in the 1870s by Harvard’s dean, Christopher Columbus Langdell. The Langdellian notion of law as a rigidly deductive and mechanistic science, and its study through the lens of appellate court opinions, drew the fire of those who championed sociological jurisprudence and its offspring, ‘‘legal realism."⁵ Young legal academics fashioned a new jurisprudence from the intellectual currents sweeping other disciplines; relativism in philosophy, behavioralism in psychology, and indeterminacy in science undermined the certitude of jurisprudential formalism. Law, the insurgents argued, was a social institution rooted in the reality of conflicting interests and shaped by individual predilection; judges did not find the law as oracles but made it as mortals subject to the biases of their backgrounds.

Columbia and Yale in particular exposed young lawyers to legal realists who put judges on the psychoanalyst’s couch and litigation under sociological scrutiny. Karl Llewellyn headed a group of realists at Columbia that included Underhill Moore, Herman Oliphant, Edwin W. Patterson, R. L. Hale, and Hessel Yntema. Their behavioral analysis of the judicial function, which owed less to Freud than to John Watson’s stimulus-response psychology, was complemented by the work and teaching of Adolf A. Berle, Jr., Gardiner Means, and Milton Handler, who stressed the positive role of government regulation as a counterweight to corporate power. Courses at Columbia such as Llewellyn’s in Law and Society, Handler’s in Trade Regulation, and Berle’s in Corporation Finance prepared budding New Deal lawyers to look on judges as manipulators of law and on regulation as a modern necessity.⁶

Even more than Columbia, Yale Law School during these decades was the intellectual seedbed of the realists. Under the deanship first of Robert M. Hutchins and then of Charles E. Clark, the Yale faculty abounded with social science-oriented scholars. Thurman Arnold, William O. Douglas, Walton H. Hamilton, Walter Nelles, and Wesley A. Sturges (joined in the 1930s by Underhill Moore from Columbia) viewed law less as a profession than as one of the social sciences. In 1928 the law school joined the medical school and the social science departments to establish the Yale Institute of Human Relations, and added Eugen Kahn, a psychiatrist, and Edward S. Robinson, a psychologist, to the law faculty. Jerome Frank, whose book Law and the Modern Mind became the most widely read (and widely denounced) realist work, taught at Yale in 1932-1933; when he left for Washington he took with him Abe Fortas, editor-in-chief of the Yale Law Journal.⁷

In contrast to Columbia and Yale, Harvard harbored no realists on its faculty. What it provided, through Felix Frankfurter and his colleagues James Landis and Calvert Magruder (both former students under Frankfurter), was an emphasis on lawyers as members of the emerging mandarinate of the regulatory state. In Frankfurter’s courses on Administrative Law, Jurisdiction and Procedure in Federal Courts, and Public Utilities, he preached the ideals of administrative expertise and disinterested public service. Magruder’s and Landis’s courses on Labor Law and Legislation reinforced Frankfurter’s vision of the lawyer as an indispensable adjunct to the legislative and administrative process. Thomas Reed Powell, who taught constitutional law, disclaimed membership in the realist club but similarly challenged the notion that judges found the law in the constitutional bullrushes. Powell propounded his view that judicial decisions depended on what the judge had for breakfast with a biting Vermont wit and polemical sharpness in his lectures and writings.⁸

Among these men of divergent but collectively unorthodox views, Frankfurter most directly put his stamp on the New Deal lawyers and, in their subsequent litigation debates, pressed his opinions on them and their superiors. Not only did his former students far outnumber those from other schools and occupy the most influential New Deal legal positions, but Frankfurter’s long-standing and intimate relationship with Franklin D. Roosevelt gave him easy access to the White House and a voice in the internal debates over litigation strategy and legislative policy. Eternally combative, Frankfurter epitomized the inherent duality of the New Deal lawyers; preaching to his students the ideal of the lawyer as servant to policymakers, he irrepressibly intruded himself into the whole gamut of policy debates within the New Deal. Given this role as mentor of the Happy Hot Dogs whom he stuffed into New Deal agencies, an examination of the fundamentally contradictory values Frankfurter inculcated in his protégés illuminates the conflicts between politics and practice that pervade this book.⁹

With the exception perhaps of the aging Clarence Darrow, no other lawyer of his time shared Frankfurter’s undeserved reputation as a dangerous radical. New Deal critics singled him out for attack because of his involvement in two notorious episodes in recent history: first, his defense of aliens threatened with deportation in the wake of the 1919-1920 Red Raids initiated by Attorney General A. Mitchell Palmer and led by J. Edgar Hoover, and his subsequent sponsorship of a critical report on the Illegal Activities of the Department of Justice; and, second, his passionate advocacy in 1927 of a new trial for Sacco and Vanzetti.¹⁰ Frankfurter’s role in these controversies was that of a civil libertarian who disavowed sympathy for the radical views of those he defended, but the legal establishment recoiled in horror. And following Roosevelt’s election, it was predictable that Frankfurter’s well-publicized role as presidential confidant would make him a target of conservatives. Frankfurter and Roosevelt were a curiously matched pair. Both born in 1882 but totally dissimilar in background— one an immigrant from Vienna to the Jewish ghetto in New York City at the age of twelve, the other the scion of Hudson Valley landowners descended from pre-Revolutionary Dutch patroons—the two men first met in 1917, when Roosevelt sat as the Navy Department representative on the War Labor Policies Board that Frankfurter chaired while on leave from Harvard, whose law faculty he joined in 1914 after stints in Wall Street practice and with the U.S. Attorney in New York.¹¹

Bound by reformist sympathies, the two men met frequently over the following two decades and carried on a voluminous correspondence marked on Frankfurter’s side by sycophantic flattery mixed with policy prescriptions; Max Freedman, who edited this correspondence, perceptively labeled Frankfurter an artist in adulation. . . .¹² Frankfurter reveled in Roosevelt’s receptiveness, and during Roosevelt’s two terms as governor of New York peppered him with suggestions aimed at making the state a legislative laboratory for reforms in unemployment compensation, utility regulation, and other schemes later incorporated in the New Deal program. Four days after his presidential inauguration, Roosevelt expressed his esteem by offering Frankfurter the post of Solicitor General. Happy in his Harvard position and reluctant to abandon his more influential role as freelance advisor for the striped pants and cutaway of a technical lawyer,’’ Frankfurter declined with the response that I can do much more to be of use to you in Cambridge than by becoming Solicitor General.’’¹³ For the next six years, until his belated appointment to the Supreme Court, Frankfurter made himself of use through regular trips to Washington on the Federal Express and by placing, through his protégé, Tommy Corcoran, scores of former students in New Deal legal posts.

In his teaching, however, Frankfurter displayed few of his extracurricular enthusiasms. His students absorbed a view of the lawyer’s function as essentially apolitical; a thoroughgoing Anglophile who revered the model of the British civil service, Frankfurter in 1930 expressed his belief that the lawyer’s role was that of "putting at the disposal of government that ascertainable body of knowledge on which the choice of policies must be based.’’¹⁴ Before and even during the New Deal, he urged on his students the advantages of corporate practice as a skill-sharpening experience and recommended more lawyers to Wall Street friends such as Emory Buckner and Henry L. Stimson than he did to the New Deal. And in all his courses and contacts with former students, Frankfurter drummed home his cautionary advice that litigation should never be sought but accepted only as a last resort to compromise and conciliation.

Exposure to the realists and technocrats biased young lawyers toward reform and regulation. They ingested as well, however, a powerful antidote in their basic courses in property, contracts, and procedure. The Harvardtrained New Dealers, for example, parsed cases with such orthodox dispensers of the received doctrine as Joseph Warren, Joseph H. Beale, and Samuel Williston. Most New Deal lawyers, then, emerged from law school with a veneer of progressive liberalism over a foundation of doctrinal orthodoxy and apolitical professionalism. They could hardly escape, in the contentious atmosphere of the early New Deal, the conflicting tugs of politics and practice.

This book observes the New Deal lawyers at work primarily in their litigating function, but also in the related roles unique to government lawyers: drafting legislation, writing regulations, participating in enforcement proceedings, advising policy-makers, and negotiating with a wide range of persons affected by their agency’s operations. In each of these roles, government lawyers are enmeshed in a political system that imposes constraints on them and engenders recurrent conflict. Each of the sections that follow examines in detail the effect of these political factors; it is useful, however, to sketch here the four major sources of political conflict, both internal and external, with which New Deal lawyers contended in performing their roles.¹⁵

The first source of conflict lay within the agencies themselves. In principle, the general counsel of a federal agency is subordinate to its chief administrator, and in most instances an agency head chooses (or approves before presidential appointment) a general counsel on the basis of mutual compatibility in both personality and policies. Perhaps more than any other president, however, Franklin Roosevelt showed no compunction in staffing New Deal agencies with officials whose personalities or policies (or both) clashed. Ego and ambition rather than policy divided Hugh Johnson and Donald Richberg in the NRA; the agency was simply not big enough for both disputatious men. Jerome Frank in the AAA had opposed its first administrator, George Peek, in a bankruptcy battle before either came to the New Deal and their policy disputes exacerbated this personal feud until Peek was forced out; Frank’s differences with Peek’s successor, Chester Davis, were less personal but equally intractable. Only the NLRB exhibited harmony between its chairman, Warren Madden, and its general counsel, but even in this instance Charles Fahy rarely consulted Madden’s fellow Board members and made litigation decisions on his own.

Animosity at the top often colors the attitudes of administrators toward those in lower ranks. Peek in particular had nothing but scorn for the young lawyers on Frank’s staff. Boys with their hair ablaze,’’ he called them, attributing to their machinations a socialist" plot to collectivize agriculture.¹⁶ Peek’s subordinates equally detested the AAA lawyers, finding them insufficiently solicitous of the interests of large landowners and processors. General Hugh Johnson had a similarly bilious view of the boys whom Felix Frankfurter had insinuated into obscure but key positions in every vital department of the New Deal.¹⁷ Richberg’s lawyers, in fact, generally sympathized with the interests of the big businessmen who dominated NRA policy, but suspicions of political heresy on occasion prompted Johnson to request FBI investigations of liberal lawyers, and at least one was fired for possession of subversive literature. Charles Fahy insulated his staff from Board interference, but conservative Board members and staff who considered some NLRB lawyers excessively pro-labor collaborated with red-hunting congressional investigators who launched a demoralizing probe of the Board’s case-handling and decisions in 1940.¹⁸ Internal politics and the resultant power struggles in each New Deal agency complicated the work of the lawyers, often spilling over into debates over individual cases and general litigation strategy.

The relentless bureacratic imperialism of the Justice Department created a second source of conflict. Every federal agency and cabinet department shares litigation responsibility with the Justice Department, if not in the lower courts, then at the levels of appellate and Supreme Court litigation subject to supervision by the Solicitor General. Early in the New Deal, through an Executive Order issued in June 1933, the Department wrested litigation control from all existing agencies; Roosevelt’s order, however, did not cover those agencies subsequently created by Congress such as the NRA, AAA, and NLRB. Newly created agencies and the Department generally negotiate complex and delicate agreements ratifying their divisions of labor; in his study of Department-agency relations, Donald L. Horowitz noted that such agreements have some of the attributes of treaties among sovereign states.¹⁹ But, during the New Deal, the Department fought to impose control over the agencies as if they were subjugated colonies.

Pure and simple expansionism, a feature of the Justice Department since its establishment in 1870, explains much of this conflict. Personality and politics, however, affected litigation differences as well. New Deal lawyers generally considered the Justice Department a haven for political hacks whose sympathy for their programs was suspect, and the Department’s composition lent some substance to these charges. Attorney General Homer Cummings (a last-minute choice after Roosevelt’s designate, Montana Senator Thomas Walsh, died unexpectedly two days before the inauguration) came from a background as a Democratic party wheelhorse who helped swing the 1932 convention to Roosevelt. A 62-year-old Yale Law School graduate and a politician by temperment, Cummings had little interest in litigation but a ferocious appetite for bureaucratic power. His staffing of the Department with deserving Democrats led two Supreme Court Justices, Louis Brandeis and Harlan Fiske Stone (the latter a former Attorney General), to convey concern over the Department’s competence to Roosevelt shortly after Cummings assumed office.²⁰

Cummings infrequently intruded himself into litigation debates, and when he did so he generally advocated caution and avoidance. His two chief subordinates with litigation responsibility, however, were constantly embroiled in dispute with agency lawyers. After Frankfurter declined Roosevelt’s offer of the Solicitor Generalship, the President inexplicably picked an amiable nonentity for the post. J. Crawford Biggs, a 60-year-old North Carolina judge and politician (widely assumed to owe his job to the influence of Senator Josiah Bailey), lasted two years before his lackadaisical performance led Roosevelt, at Frankfurter’s urging, to replace him with Stanley F. Reed. A 51-year-old Kentuckian who served as a state legislator after attending Columbia Law School, Reed had served under President Hoover as general counsel of the Federal Farm Board and then of the Reconstruction Finance Corporation, where his right-hand man was Frankfurter’s recruiting officer, Tommy Corcoran. Reed’s major distinction (which later won him nomination to the Supreme Court) was an unwavering loyalty to Roosevelt; his ties to Frankfurter created discord with lawyers in the NRA, and Reed harbored deep misgivings about the constitutionality of the New Deal program.

The Justice Department official directly responsible for New Deal litigation was Harold M. Stephens, Assistant Attorney General in the Antitrust Division. A 1913 Harvard Law School graduate who practiced and served as a judge in Utah before joining a Los Angeles law firm, Stephens pursued an ill-concealed campaign for a federal judicial appointment, which he finally achieved in 1935 when Roosevelt placed him on the U.S. Court of Appeals in Washington. Stephens clashed repeatedly with agency lawyers. His innate antipathy toward litigation constituted one reason, but a more important factor was that the Antitrust Division he headed had virtually no antitrust litigation to handle (only five minor cases in 1934) since Congress had exempted both business and agriculture from the antitrust laws in 1933. Quite naturally, Stephens and his staff approached agency litigation with a notable lack of enthusiasm. Stephens’ successor, John Dickinson, assumed office after the demise of the NRA and the debacle of the AAA litigation campaign, but his litigation perspective was equally cautious. Dickinson’s appointment illustrates the limitations of Frankfurter’s influence. A former Harvard economics instructor and University of Pennsylvania law professor, Dickinson earned a Princeton doctorate in 1919 and a Harvard law degree in 1921, and moved to the Justice Department from a post as Undersecretary of Commerce. An economic and legal conservative with a pompous demeanor (Frankfurter’s followers called him ‘‘the Pope’ ’), Dickinson had earlier opposed the government as counsel for the American Sugar Institute in a major antitrust suit and later became general counsel of the Pennsylvania Railroad. Frankfurter vigorously, but to no avail, opposed Dickinson’s appointment for lack of antitrust enthusiasm. Under Stephens in particular, Justice Department lawyers and their agency counterparts sparred over dozens of cases, against a background of ideological dispute and institutional infighting.

The group with which New Deal lawyers most directly clashed was, of course, the federal judiciary. As mentioned above, in the period before 1937 (and for another decade, in fact) the federal bench was dominated by conservative Republicans. Particularly at the trial level, the 140 judges in the federal district courts generally exhibited an innate hostility toward the New Deal. Given the traditions of judicial appointment, such attitudes were hardly surprising. Drawn largely from small-town practice, with judicial nomination most often a reward for faithful party service, these judges shared—in contrast to the New Deal lawyers who argued before them—a