New York, 1938

[This is another in a series of posts about my recently published book, Tocqueville’s Nightmare.  The series begins here.]

If the first three chapters of the book study “ideas in action,” the action for the most part transpires in rarefied settings: Ernst Freund and Felix Frankfurter’s studies, the Supreme Court; and the offices of New Deal lawyers in administrative agencies and the Department of Justice.  Scholars used ideas to explain imagined worlds in which they and their peers rightly wielded power; judges justified their authority by bringing precedent, institutional interest, and their more general beliefs into alignment.  The last two chapters shift the focus of the book.  Although law and politics mix throughout it, with Chapter 4 (“New York, 1938”) the balance tips to politics, and the action takes place in larger, more public gatherings, including the meetings of bar associations, a constitutional convention, campaign rallies, and a general election.

Here’s the abstract:

The procedural version of the rule of law that the Hughes Court settled upon did not just appeal to a judicial elite.  New York's general election of 1938 showed that it claimed broad support.  The state constitutional convention adopted an "antibureaucracy clause" that would require weight-of-the-evidence review for most agencies' fact-finding.  It split the state's lawyers and political parties, but even conservative corporation lawyers like John Foster Dulles opposed it, and voters overwhelmingly rejected it in November.  But New Yorkers were not about to leave administrators to their own devices.  They expected them to treat individuals fairly, and they voted in surprisingly large numbers for a relative unknown, John Lord O’Brian, who made his challenge to U.S. Senator Robert F. Wagner a referendum on the procedures of the National Labor Relations Board, Wagner's prized legislative offspring.

The requirement that agencies follow court-like procedures solved the judges’ puzzle of reconciling administrative discretion and the rule of law, but it could not have prevailed had two powerful groups opposed it.  The first were lawyers, who, as Robert H. Jackson observed, were “inclined by habit and training to prefer the court over the administrative tribunal.”  In New York, Ernest Leet, a lawyer in Jackson’s law firm, was so outraged by “the dictatorial, vicious, undemocratic practices” of the Motor Vehicle Bureau in revoking his client’s driver's license that he tried to rally the state’s bar associations to demand the writing of weight-of-the-evidence review into the state constitution.  He was joined by Arthur Sutherland, who represented the losing party in Nebbia v. New York.  Yet elite lawyers with corporate law practices lacked the litigators’ love of the “prescribed ritual” of the courts and fought to preserve administrative discretion from intrusive judicial review.  The corporate lawyers prized administrative agencies for their quick “yeses"; the "noes" they could slow by insisting upon court-like procedure.  Such procedures also assured courtroom advocates that administration would not wholly devalue their commodified expertise in the ways of the courts.  When the anti-bureaucracy clause went before the electorate that fall, only a faction of the New York bar campaigned on its behalf.  The lawyers could not effectively counter the argument that weight-of-the-evidence review would keep state agencies from providing New Yorkers with needed goods and services. 

The second potential group who might have rejected Hughes’s procedural settlement were professional politicians.  As Sidney Milkis, David Plotke, Martin Shefter and others have argued, New Dealers realized that administratively distributed benefits and decisions might do for them what older forms of patronage had long done for “professional” politicians centered in legislative bodies.  Roosevelt’s actions in 1937-38, including the Court-packing plan, executive reorganization proposal, and intervention in the Democratic primaries, persuaded some of these “regular” or “Old Guard” politicians that liberals were out to change the rules of the political game.  The trial lawyers’ call for weight-of-the-evidence review came at an opportune time for New York’s conservative Republicans and Democrats, and they pushed the anti-bureaucracy through the constitutional convention in hopes of hamstringing a rival source of power.  In November, however, New Yorkers voted against a strict, court-centered rule of law, because they feared it would unduly limit agencies upon which they depended.

Wagner after Jones & Laughlin (KMT)

Also on the November 1938 ballot in New York was a senatorial election that pit the liberal Republican John Lord O’Brian against the New Deal’s great congressional tribune, Robert F. Wagner.  Not only O’Brien had held important legal posts in Democratic as well as Republican administrations; when New York’s Republicans named him to face Wagner he was in Chattanooga charting the defense of TVA with its lawyers.  No one gave him much of a chance until he challenged Wagner to debate the need for procedural reform at National Labor Relations Board. It was a shrewd move.  By calling for the reform of the NLRB’s procedures rather than more intrusive review of its decisions, O’Brian, an ally of Hughes during his governorship, allowed for “administration by administrative officers” while seeking the quasi-judicial practices to keep that agency from handing out favorable orders like older forms of patronage.

John Lord O'Brian (LC)

Wagner’s own operatives grew anxious when they heard that rank-and-file unionists, angered over the NLRB’s apparent favoritism of the CIO over the AFL, were threatening to vote for the challenger.  Ultimately, Wagner won; still, to the extent that a vote for a candidate can be taken as a vote for his policies, O’Brian’s surprisingly large turnout suggests that New Yorkers wanted their agencies to observe something like the “fundamental requirements of fairness” Hughes insisted upon in Morgan.  Politics, it seems, as well as law converged on a procedural notion of the rule of law.

“New York, 1938” is one of the book’s two previously published chapters. In an earlier post I discussed the occasion for which I wrote it, a conference in honor of my dissertation adviser, Stanley N. Katz.  Here I also want to express my gratitude to David S. Tanenhaus, who, as editor of the Law and History Review, asked that I cut the original manuscript by a third.  I’ll confess that at the time, I felt trapped: I was an editor of the American Society for Legal History’s book series, and if word got out that I wouldn’t cut my own prose, who would cut theirs when I asked them to?  But after complying with David’s request, I was more satisfied with the result than with anything I had previously written.

[This series continues here.]