When Labor Forced the Hand of a Conservative Supreme Court

 

The United State Supreme Court surprised everyone by upholding the Adamson Act in the face of a looming and crippling national railroad strike just weeks before the U.S. entered World War I.

One of the enduring myths about the U.S. Supreme Court is that in its lofty supposed impartiality it is above and immune from popular pressure, politics, or protest.  Of course, since it first asserted its right to rule on the Constitutionality of laws enacted by Congress and executive actions of the President as a Federalist thumb-in-the-eye to Thomas Jefferson, decisions by the court have often been nearly nakedly political.

Over most of its history the Court was in the continuous hands of the most conservative elements of society and naturally served the interests of the national elite from which its members were almost unanimously drawn.  Which is why until the Warren Court shifted into liberal hands, you never heard charges of judicial activism as it routinely struck down social reforms and efforts to regulate the excesses of unfettered capitalism.

But today we are going to tell the all but forgotten tale of how a conservative Court bowed down before a powerful and united labor movement that had in its hands the power to bring the economy of the United States to a dead halt.

The Supreme Court in 1917—seated, William R. Day, Joseph McKenna, Chief Justice Edward D. White, Oliver Wendel Holmes Jr., and Willis Van Devanter, and, standing, Louis D. Brandeis, Mahlon Pitney, James C. McReynolds and John H. Clarke.

On March 15, 1917 the Court surprised the nation by ruling that the Adamson Act of 1916 that established an eight-hour workday, with no loss in pay, for interstate railroad workers was Constitutionally sound.  The Court voted 5-4 to reverse a lower court decision which had ruled the legislation unconstitutional.  The majority cited the emergency nature of the Act and conformity to the “public character” of interstate rail transportation.  It represented a significant broadening of the interpretation of the interstate commerce provision of the Constitution in that it covered a government action that went beyond regulation.

What moved the Court in this unexpected direction?  It was quite simply the sure knowledge that 200,000 members of the Railroad Brotherhoods acting in full cooperation were prepared to go on a strike that would paralyze the nation.

Those same railroad workers had already forced the hand of both the President of the United States and Congress.

The eight-hour workday had been the holy grail of the labor movement for 60 years.  Wage workers in the rapidly industrializing nation routinely worked 12, 11, and 10-hour days, six days a week in often brutal conditions.  Such drudgery dramatically shortened the life expectancy of laborers, disrupted ordinary family life, and contributed to a culture of heavy binge drinking once a week on paydays as a release from the stress and misery of the job.

The Eight Hour Day had been the Holy Grail of the Labor movement since the Civil War as evidenced by this 1906 newspaper illustration.

In the post-Civil War era the National Labor Union, the country’s first national labor body, launched a series of strikes to demand an eight-hour workday with no decrease in wages.  Although the strikes failed, Congress was alarmed enough to pass weak 8 Hour legislation in 1868.  But there was no enforcement mechanism, and no proscribed punishments for employers who ignored it.  The law was essentially dead before the ink dried.

In the 1870s and ‘80s the Knights of Labor took up the call.  A nationwide strike for the eight-hour day supported by the Knights and by the craft unions which would later become the American Federation of Labor (AFL) was called for May 1, 1886.  After the so-called Haymarket Riot in Chicago the executed anarchists became martyrs to the movement.

For the next decades virtual open class warfare raged in America.  In some local situations and in some industries the 8-hour day would be won—often to be snatched away later when the repeated cycle of panics of those years routinely drove down wages and set workers fighting amongst themselves for the scraps.

In the early 1890’s Eugene V. Debs united craft divided workers into a powerful industrial union, the American Railway Union (AUR).  Their first great victory against the Great Northern Railway included an eight-hour day.  But in 1892 Federal troops smashed the AUR’s Pullman Boycott and sent Debs and his fellow union leaders to jail.  Although the eight-hour day was not an issue in the Pullman affair, the destruction of the AUR effectively ended progress to winning that goal in the railroad industry.

By the early years of the 20th Century the old Railway Brotherhoods, who regarded themselves as the aristocracy of labor, had learned the bitter lessons of being divided by craft.  They agreed to act in concert for a new push for the eight-hour day.

The time could not be better than 1916.  The country had emerged from yet another Panic and was in a solid boom caused in no small measure by the horrible war raging in Europe.  American industry was stepping in to fill a global market disrupted by the war.  It was also in the process of re-arming America in Preparedness in case the country was dragged into the foreign squabble.

The railway unions announced that they were ready to launch a nationwide strike unless they were given an eight-hour workday with no decrease in wages and time and a half pay for overtime.  Railroad operators were intransigent but were aware that the Brotherhoods were well organized, had strong rank and file support, and could rely on broader support from the labor movement.

In the White House President Woodrow Wilson had a problem.  Although he was running for re-election with the boast “He kept us out of war,” he was increasingly convinced that the United States would sooner rather than later be ensnared.  He launched his highly publicized Preparedness campaign to quickly ramp up production of war materials and supplies for a huge new Army and modernized Navy.  A railway strike would disrupt all of that.

Moreover, he had a political problem.  He was running as a progressive Democrat, but unlike 1912, the Republicans were once again united and Deb’s Socialist Party was making serious inroads in his support among urban workers.  He could not afford to force the railroads to continue operations with military force like another Democrat, Grover Cleveland had done in the Pullman Strike.  Such action would alienate the big city working class without which no Democrat could hope to be elected.  And armed action against the strikers would inflame general anti-war sentiment and threaten national unity he would need to go to war.

Wilson called the Railroad operators and the Railway Brotherhoods together for a meeting at the White House where he offered to act as “an honest broker.”  Wilson proposed the eight-hour work day, but without wage guarantees.  The railroads agreed but the unions balked.  They would not accept a plan that essentially reduced the take home pay of their members.  They walked away from the negotiations and noisily resumed plans for the strike.

This anti-Wilson political cartoon from 1916 illustrates the pressure on the President over the eight-hour issue before the Presidential elections that year.

Wilson had no good options.  On August 29, 1916 he appeared before a joint session of Congress and demanded emergency legislation to prevent the looming strike.  In a virtual total capitulation to labor he called for the eight-hour day with no loss of wages and the overtime provision that would discourage bosses from simply continuing to schedule long shifts. 

Enabling legislation was introduced by Democratic Congressman William C. Adamson of Georgia.  It sped through congress and passed both houses beating a September 4 strike deadline.

Even though a special commission was set up to allow the railroads to raise their freight rates, which were regulated by the Interstate Commerce Commission, there was no doubt that the Railroads would turn to the courts to block the new law.  Wilson not only expected it, but he was also pretty sure that the operators would prevail.  He himself had vetoed far less sweeping reform legislation in the past based on his constitutional doubts about the authority of government to meddle in private industry.  None-the-less, he directed his Justice Department to defend the expected attacks.

This full page newspaper illustration shows the owners and managers of the nation's most important railroads united in opposition to the Adamson Act and the pressure they put on Wilson.

The Act was quickly struck down as unconstitutional by the United States District Court for Western Missouri.  The unions announced that they would resume preparations for a nationwide strike.  May Day, traditionally tied to the struggle for the eight-hour day, was a likely target which enhanced the possibility that it might even spread into a general strike.

The Justice Department urged the high Court to rapidly consider its appeal of the lower court decision.  Questioning of lawyers on both sides of the case by the Justices led the press to widely speculate that the law was doomed.  The Brotherhoods allowed scattered local “wildcat” strikes to occur as demonstrations of power and major demonstrations were held in cities across the country. The labor and radical press was full of news and offers of support in solidarity.

Finally, on March 15 enough justices bowed to the pressure of an impending national emergency to uphold the Adamson Act by the narrowest of margins.  Chief Justice Edward D. White, a Louisiana Democrat first appointed to the Court by Grover Cleveland and made Chief Justice by William Howard Taft, was the surprising author of the 5-4 majority opinion.

Soon the U.S. was at war. In December Wilson nationalized the railroads for the duration.  They continued to operate under the provisions of the Act, however.  And the law remained in effect after the operators resumed control of their lines.

The war proved to be a body blow to militant labor.  Wilson enthusiastically intervened time and again against strikes in “essential” industries like copper mining and timber.  He equated the most radical wing of the labor movement, the Industrial Workers of the (IWW), major champions of the eight-hour day, with treasonous interference with war effort.  An unprecedented wave of repression stung not only the IWW but Debs and the Socialist Party, and even AFL unions’

After the war was over the great Red Scare saw thousands of labor leaders deported or jailed.

Under those circumstances moves to extend the eight-hour day to other elements of the economy fizzled.  It did not become the law of the land until late in the New Deal when the Fair Labor Standards Act finally went into effect in 1937.