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2011

The Four Horsemen of the New Deal Apocalypse

December 01, 2011
Author: Timothy Boone

And I saw when the Lamb opened one of the seals, and I heard, as it were the noise of thunder, one of the four beasts saying, Come and see. And I saw . . . a white horse . . . another horse that was red . . . a black horse . . . and behold a pale horse[,] [a]nd power was given unto them over the fourth part of the earth, to kill with sword, and with hunger, and with death, and with the beasts of the earth.1

The federal government was designed to be a government of enumerated powers. Powers not delegated to the federal government were reserved to the states. By the 1930s and early 1940s, the federal government’s powers extended beyond that which the founders intended. For the first time the federal government instituted price controls and set a minimum wage. While price controls and a minimum wage may have been good ideas, they were an unprecedented expansion of federal powers. To achieve these aims, Congress sought to expand its power under the Commerce Clause, and American courts let it. But, for a brief period during the 1930s, four men stood fast against this expansion of federal powers.

The press called them “The Four Horsemen,”2  an allusion to “The Four Horsemen of the Apocalypse” as described in poetic, horrific detail in the sixth chapter of the book of  Revelation. “The Four Horsemen” of the Bible were unleashed upon the Earth as part of God’s judgment for unrepentant humanity—a humanity that had engaged in wicked deeds that God never designed it to perform. Who were the “Four Horsemen” of the 1930s? They weren’t totalitarian dictators or mobster bosses—they were Associate Justices on the Supreme Court of the United States: George Sutherland, Pierce Butler, Willis Van Devanter, and James McReynolds. In the eyes of the press, they loomed as a metaphorical “Four Horsemen of the Apocalypse” over President Franklin Roosevelt’s New Deal from 1932-1937. For a brief moment in time, they left a tattered and barren New Deal in the wake of their legal sickle. For conservatives, these men are legal heroes—men who stood up to progressive attempts on the part of the federal government to subsume powers never delegated to it. For liberals, these men were brief obstacles to progressive change, but a testament to the power of a like-minded voting bloc on the Supreme Court.

Two ideological blocs dominated the Supreme Court during the 1930s. The Horsemen were the conservative wing. Their liberal counterparts, “The Three Musketeers” included Louis Brandeis, Benjamin Cardozo, and Harlan Stone. The chosen nicknames for the two groups give one idea of whom the press viewed as the “bad guys.” In the middle of these two blocs were Chief Justice Charles Evans Hughes and Owen Roberts—Hughes generally sided with the liberals; Roberts the conservatives.

The Four Horsemen received their nickname not only for their unanimity of thought, but also for their close-knit camaraderie: they often rode in the same car to the Supreme Court building, formulating their strategy along the way. All four championed individual rights—especially freedom of contract—and were openly opposed to New Deal legislation addressing unemployment and economic recovery. They often saw such legislation as exceeding Congress’ authority under the Commerce Clause and the Fourteenth Amendment’s Due Process Clause.

The initial years during the Roosevelt era were gloomy for the Horsemen. The Court seemed inclined to accept most of Roosevelt’s New Deal. But a glimmer of hope shone through during the 1935 term when the “Four Horsemen”—with Roberts and Hughes as their willing accomplices—struck down the Agricultural Adjustment Act of 19333, the Federal Farm Bankruptcy Act4, the Railroad Act, and the Coal Mining Act. Finally, the Horsemen had the votes necessary—and then some—to garner the majority opinion. Hughes’s alliance with the Horsemen was short-lived, however, and starting with Carter v. Carter Coal Co.5, where the Court struck down legislation regulating the coal industry, the Horsemen could count on only Justice Roberts as their ally, giving them a slim five to four majority. Still, with Roberts on their side, the Horsemen managed to strike down a New York minimum wage law for women and children, claiming it violated freedom of contract as protected under the Due Process Clause.6

President Roosevelt’s frustration with the Horsemen was the catalyst for his infamous “Court Packing” scheme proposal in 1937. If successful, the plan would have allowed him to increase the number of justices on the Court; he could then appoint more progressive justices, effectively nullifying the Horsemen. His efforts ultimately failed, as people overwhelmingly disapproved of the idea. Unfortunately for the Horsemen, President Roosevelt did not need to pack the Court. In 1937, the Horsemen lost their majority when Justice Roberts switched sides, and in the process helped the liberal bloc overturn much of the Horsemen’s precedents from the past two years.7 This “switch in time that saved nine” would be the beginning of the end for the Horsemen. Having delayed his retirement for five years so that he could combat New Deal legislation, Justice Devanter retired in 1937, and was replaced by Hugo Black.8 With his influence waning, Justice Sutherland retired in 1938, while Justice Butler died in 1939. James McReynolds—retired in 1941, the last of the valiant, but embittered, “Four Horsemen.” With the departure of these old-guard conservatives, the decades that followed saw the Supreme Court increasingly expand the scope of Congress’ power under the Commerce Clause, with increased—and, some might say, uninhibited—federal power the result.

Although their successful war against New Deal legislation was short-lived, the Four Horsemen remain a striking example of how a few men can stand up to the encroachments of federal power. The Horsemen sought to curb federal power—to make sure the federal government remained a government of enumerated powers. They understood that a government of unlimited powers is a government that can take away freedom. And, although the press viewed them as “bad guys” standing in the way of progress, perhaps the “Four Horsemen” would have viewed themselves differently—as men sent to judge Congress for the sin of expanding power and curbing freedom. As the upcoming battle over the healthcare legislation looms, perhaps a new “Four Horsemen” has appeared. Conservatives will be counting on Chief Justice John Roberts and Associate Justices Scalia, Thomas, and Alito to prevent the federal government from consuming the last vestiges of power not granted to it by the Commerce Clause.9 And—perhaps this time—Congress will get the message, and repent of its evil ways.

 

NOTES
1 Revelation 6:1-8 (KJV).
2 They were given the name by the press. See Carol E. Jensen, New Deal, in OXFORD COMPANION TO THE UNITED STATES SUPREME COURT (Kermit L. Hall ed., 1992).
3 United States v. Butler, 297 U.S. 1 (1936).
4 Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555 (1935).
5 Morehead v. New York, 298 U.S. 587 (1936).
6 Id.
7 West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937).
8 Hugo Black and Franklin Roosevelt considered the Four Horsemen to be the “direct descendants of Darwin and Spencer.” See Howard Ball, Hugo L. Black: Cold Steel Warrior 90 (2006).
9 See Ellis Washington, Today’s 4 Horsemen of the Apocalypse, WORLD NET DAILY, (Jan. 8 2011) http://www.wnd.com/index.php?pageId=248517; see also Jonathan Turley, The Roberts Court and the Return of the Four Horsemen, JONATHAN TURLEY: RES IPSA LOQUITUR (“THE THING SPEAKS FOR ITSELF”), (July 2, 2008), http://jonathanturley.org/2008/07/02/the-roberts-court-and-the-return-of-the-four-horsemen/.