receiving that recommendation, the commission was to issue an order stipulating the minimum wage that must be paid. For chambermaids, the weekly minimum was set at $14.50. Twice the statute had been challenged in the courts, and on both occasions the Washington Supreme Court had validated the act. Elsie Parrish appeared to have an airtight case.

Alas, any law student in the land could have told her that her case was hopeless, for, 12 years before, the United States Supreme Court had ruled, in a widely reported decision, Adkins v. Children’s Hospital , that a minimum-wage act for women was unconstitutional because it violated the liberty of contract that the Court claimed was guaranteed by the Constitution. Though the opinion by Justice George Sutherland commanded only five votes and elicited vigorous dissents, it reconfirmed a notion incorporated in constitutional doctrine only a generation before: that a great corporation and its employee—even someone as powerless as a chambermaid—each has an equivalent right to bargain about wages, a fantasy that Justice Oliver Wendell Holmes dismissed as “dogma” and the renowned commentator Thomas Reed Powell of Harvard Law School called “indefensible.” Adkins , said one commentator, “makes forever impossible all other legislation along similar lines involving the regulation of wages.” In principle Elsie’s case was no different from Adkins. Any statute that deprived a person of life, liberty, or property, without due process of law, was disallowed. Though the Washington law remained on the books, it was presumed to be null and void. Hence, it startled no one when, in November 1935, after hearing Elsie’s case, the presiding judge of the Superior Court of Chelan County, explaining that Adkins bound every court in the nation, ruled against her.

Surprisingly, the Supreme Court of the state of Washington took a different view. On April 2,1936, it overturned the lower court’s decision, thereby finding in Elsie Parrish’s favor. To get around the huge obstacle of Adkins, the court pointed out that the U.S. Supreme Court had never struck down a state minimum-wage law, which was true but irrelevant. The decision gave the Parrishes a moment of euphoria, but it hardly seemed likely that this opinion would, in the light of Adkins and the hostility of Justices such as Sutherland, survive a test in the United States Supreme Court.

Just eight weeks later the U.S. Supreme Court settled any doubt on that matter by a decision on a case that, three thousand miles from Wenatchee, had begun to wend its way through the judicial system while Elsie Parrish was still making beds in the Cascadian Hotel. It arose out of the hope of social reformers in New York, especially women active in the Consumers’ League, that the Court, despite Adkins, might look favorably on a minimum wage law for women and minors if it was drafted to emphasize the value of the

services rendered as well as the needs of women. To that end, Felix Frankfurter of Harvard Law School and Benjamin Cohen, a former law clerk of Justice Brandeis, crafted a model law. New York State adopted it in 1933, during the fourth year of a great depression that had reduced some young women, paid starvation wages, to sleeping on subways. Frankfurter warned that it was “foolish beyond words” to expect the Court to reverse itself, but he hoped that the Justices might be willing to distinguish this statute, with its added feature of “value of services,” from the one struck down in Adkins . “Every word” of the New York law, explained a prominent woman reformer, was “written with the Supreme Court of the United States in mind.”

In accordance with the provisions of the model legislation, New York State obtained an indictment against Joseph Tipaldo, manager of the Spotlight Laundry in Brooklyn, who had been brutally exploiting his nine female employees, first by paying them far below the state minimum wage and then by pretending to pay the minimum but forcing the sweatshop laundresses to kick back the difference between what the state required and what he actually intended to pay. When Joe Tipaldo went to jail to stand trial on charges of disobeying the mandatory wage order and of forgery, the hotel industry (the same business that would be involved in the Parrish case) rushed to his side with an offer to bankroll a test of the constitutionality of the New York law. Since hotels were working their employees twelve hours a day, seven days a week, they had a high stake in the case. In fact, the state had already begun minimum wage proceedings against them. Consequently, each hotel put money in a kitty to finance Tipaldo’s petition for a writ of habeas corpus to compel the warden of Brooklyn’s city prison to release the laundry manager from custody. While his case was being prepared, Tipaldo, utterly shameless, renamed his firm the Bright Light Laundry and made a big investment in expanding his business. He explained, “I expect to get it back eventually on what I save in wages.”

On June 1,1936, the United States Supreme Court appeared to justify his optimism when, in a 5-4 decision, it struck down New York’s minimum-wage law. In a sweeping opinion by one of the most conservative Justices, the Court said that there was no meaningful difference between the New York statute and the D.C. act that had been invalidated in Adkins , for both violated the liberty of contract that safeguarded equally the rights of employer and employee to bargain about wages. After quoting from Adkins with obvious approval, the Court declared, in language that shocked champions of social reform, “The decision and the reasoning upon which it rests clearly show that the State is without power by any form of legislation to prohibit, change or

nullify contracts between employers and adult women workers as to the amount of wages to be paid.” Those words all but doomed Elsie Parrish’s cause, and gave Joe Tipaldo the victory of a lifetime.

That victory, however, turned out to carry a very high price. “After the court decision, business looked good for a while,” Joe told a reporter three months later. “1 was able to undercharge my competitors a little on what I saved in labor costs.” But then business started to fall off, then fell some more. “I think this fight was the cause of my trouble,” he said. “My customers wouldn’t give my drivers their wash.” Before the summer was over, the Bright Light Laundry had folded and Joe Tipaldo was unemployed. “I’m broke now,” he confessed. “I couldn’t stand the gaff.”

Elsie Parrish was made of sterner stuff. She was determined to carry on her struggle, though her prospects seemed bleak indeed. Given the precedent of Adkins , her case had never been promising. At one point the attorney for the West Coast Hotel Company asked the Washington Supreme Court judge who had written the opinion sustaining that state’s minimum wage law in Parrish how he could possibly have done so in view of what the U.S. Supreme Court had said in Adkins. The judge replied, “Well, let’s let the Supreme Court say it one more time.” Now, in Tipaldo, the Court had stated unequivocally “one more time” that minimum wage laws for women were invalid. So gloomy was the outlook that, on the advice of Ben Cohen and Felix Frankfurter, the Consumers’ League did not even file a brief in Parrish. “We are both rather pessimistic regarding its outcome,” Cohen confided. Elsie Parrish had every reason to expect the worst.

The Tipaldo decision, though, engendered a powerful backlash, not least from some of the members of the Supreme Court. In a strongly worded dissent, Chief Justice Charles Evans Hughes upbraided the majority for failing to acknowledge either that the New York law differed from the statute in Adkins or that the state has “the power to protect women from being exploited by overreaching employers. …” Far more biting was the separate dissent filed by Justice Harlan Fiske Stone on behalf of himself and his fellow Justices Louis Brandeis and Benjamin Cardozo. In one of the most scathing criticisms ever uttered from the bench, Stone accused the Court of indulging its “own personal economic predilections,” for he found “grim irony in speaking of the freedom of contract of those who, because of their economic necessities, give their services for less than is needful to keep body and soul together.” In an impassioned warning to his brethren to exercise more selfrestraint, Stone asserted, “The Fourteenth Amendment has no more embedded in the Constitution our preference for some particular set of economic beliefs than it has adopted, in

the name of liberty, the system of theology which we may happen to approve.”

Much of the nation shared Stone’s sense of indignation about Tipaldo . Secretary of the Interior Harold Ickes noted angrily in his diary: “The sacred right of liberty of contract again—the right of an immature child or a helpless woman to drive a bargain with a great corporation. If this decision does not outrage the moral sense of the country, then nothing will.” A Republican newspaper in upstate New York declared, “The law that would jail any laundry-man for having an underfed horse should jail him for having an underfed girl employee.”

Only two groups applauded the decision. One was the press in a scattering of cheap-labor towns undismayed by the fact that, following the ruling, the wages of laundresses—mostly impoverished blacks and Puerto Rican and Italian migrants—were slashed in half. The other was a small faction of advanced feminists centered in Alice Paul’s National Woman’s Party. “It is hair-raising to consider how very close women in America came to being ruled inferior citizens,” one of them wrote Justice Sutherland. Their argument was that there should be no special privileges for women—that putting them in a protected category was discriminatory and demeaning. Most women activists, though, were horrified by that view, which they believed reflected the dogmatism of upper-class ladies who had no familiarity with the suffering of workers. They were as devoted as Alice Paul to equal rights, and they must have shuddered at the paternalism implicit in earlier opinions sustaining separate treatment for women on the grounds that they were wards of the state. But they were sure that female employees required protection, and they knew that insistence on the principle of equal rights meant no minimum wage law whatsoever, since the Court, as constituted in FDR’s first term, would never sanction social legislation for men. “Thus,” the historian Mary Beard wrote Justice Stone, Alice Paul “plays into the hands of the rawest capitalists.”

Stone, himself, had no doubt of the implications of Tipaldo. “We finished the term of Court yesterday,” he wrote his sister, “I think in many ways one of the most disastrous in its history. … Our latest exploit was a holding by a divided vote that there was no power in a state to regulate minimum wages fcv women. Since the Court last week said this could not be done by the national government, as the matter was local, and now it is said that it cannot be done by local governments even though it is local, we seem to have tied Uncle Sam up in a hard knot.”

Tipaldo, handed down on the final day of the term, climaxed an extraordinary

thirteen months in which the Court struck down more important socioeconomic legislation than at any time in history. During that brief period, it destroyed the two foundation stones of Roosevelt’s recovery program, the National Industrial Recovery Act and the Agricultural Adjustment Act; turned thumbs down on a number of other New Deal laws and state reforms; and cavalierly rebuked the president and his appointees. The NIRA ruling had been unanimous, but almost all the others had come in split decisions, most often with the “Four Horsemen,” Pierce Butler, James McReynolds, George Sutherland, and Willis Van Devanter, a quartet of adamantly conservative judges, joined in the spring of 1935 by the youngest member of the bench, Owen Roberts. At the end of the term, a nationally syndicated columnist wrote, “After slaughtering practically every New Deal measure that has been dragged before it, the Supreme Court now begins its summer breathing spell, ending a winter’s performance which leaves the stage, as in the last act of a Shakespearean tragedy, strewn with the gory dead.”

Despite the enormous setbacks the New Deal had sustained, Franklin Roosevelt gave every indication that he was accepting his losses virtually without complaint. Having been drubbed in the press for stating after the NIRA was struck down that the Court was returning the nation to a “horse and buggy” conception of interstate commerce, he had said nothing for the next year. Tipaldo moved him to break his silence to observe that the Court had created a “no-man’s-land” where no government could function. But that was all he would say. While Elsie Parrish’s feeble case was advancing toward its final reckoning in the United States Supreme Court, the President gave not the slightest indication that he had any plans whatsoever to make the Justices any less refractory, for it seemed to him altogether inadvisable in the 1936 presidential campaign to hand his opponents, who were hard put to find an issue, an opportunity to stand by the Constitution. As late as the end of January 1937, after FDR had delivered his State of the Union message and his inaugural address, the editor of United States Law Week wrote that “last week it was made plain that he does not at the present time have in mind any legislation directed at the Court.”

Less than two weeks later, on February 5, 1937, the president stunned the country by sending a special message to Congress that constituted the boldest attempt a Chief Executive has ever initiated to remold the judiciary. He recommended that when a federal judge who had served at least ten years waited more than six months after his 70th birthday to resign or retire, the president could add a new judge to the bench. Since this was the most aged Court in history—they were referred to as the “nine old men”—Roosevelt would be able to add as many as six new Supreme Court justices. He claimed he was presenting

this proposal as a way of expediting litigation, but it was widely understood that what he really wanted was a more amenable tribunal. From the very first day, his program was saddled with a designation it could never shake off: the “Court-packing plan.”

Though FDR’s scheme provoked fierce protests, political analysts anticipated that it would be adopted. By winning in a landslide in 1936, Roosevelt had carried so many members of his party into Congress that the Republicans were left with only sixteen of the 96 seats in the Senate and fewer than one hundred of the more than four hundred seats in the House. So long as the Court continued to strike down New Deal reforms —and such vital legislation as the Social Security Act was still to be decided on—it was highly unlikely that enough Democrats would desert their immensely popular President to defeat the measure. The very first evidence of the attitude of the Court would come with its decision on Elsie Parrish’s case, and there was every expectation that, acting not many months after Tipaldo, the Court would render an adverse ruling that would improve Roosevelt’s already excellent chances. On the very day that the Parrish decision was to be handed down, March 29, 1937, the president of the National Women’s Republican Club declared, “I don’t see how the president’s bill can fail to get a majority.”

March 29 came during the Easter holidays, always a gala season in Washington, D.C., and on that bright Monday morning in early spring, a host of camera-toting tourists and children carrying Easter baskets crowded the steps of the recently opened Supreme Court building and queued up in record numbers to enter the marble palace. The unusually protracted time of 103 days had elapsed since Elsie Parrish’s case had been argued, and it was to be the first judgment handed down since FDR had suggested packing the Court. Some 12,000 visitors flocked to the building in anticipation that this would be journey’s end for the suit that had begun nearly two years earlier. An hour before the session was to start, at noon, four thousand visitors had already been admitted to the building, where many lined up two abreast from the courtroom doorway almost to the suite of Justice Stone in the idle hope of getting a peek at the proceedings. “There isn’t room for them,” said a police guard, “if they stood here all day long.”

For some minutes it appeared that the spectators who were fortunate to get into the courtroom were also to be frustrated, for the proceedings began with a recital of an opinion on another case by one of the Four Horsemen that left the audience nearly numb with boredom. But when he finished, the Chief Justice leaned forward in his chair, picked up some sheets of paper, and announced, “This case presents the question of the constitutional validity of the minimum wage law of the

State of Washington.” This was to be Elsie Parrish’s day after all, and the spectators stirred in anticipation. Hughes, fully aware of the effect he was having and surely conscious of his magnificent appearance (with his patrician features, sparkling eyes, and well-groomed beard, he was often likened to Jove), raised his voice to overcome the bustle, then paused and peered out over the crowded chamber for a moment before returning to his written opinion.

Not for some time did Hughes indicate what the Court had decided. Anxious minutes passed as he labored through a reprise of the facts in the case, and when he finally took up one of the arguments of Elsie Parrish’s attorneys, he did so only to reject it disdainfully. It was “obviously futile,” he said, for counsel to claim that the present case could be distinguished from Adkins on the grounds that Mrs. Parrish had worked for a “hotel and that the business of an innkeeper was affected with a public interest.” As it happened, he noted, one of the cases Adkins had disposed of had dealt with a hotel employee. If the Washington State law was to survive the day, it would need a better justification than this rickety effort.

It took only a moment more for Hughes to reveal that the Court was prepared to meet Adkins head on. Unlike Tipaldo, where the U.S. Supreme Court had felt bound by the ruling of the Court of Appeals of New York that the New York minimum wage act could not be distinguished from the statute in Adkins and hence was invalid, Parrish, the Chief Justice declared, presented a quite different situation, for the highest tribunal of the state of Washington had refused to be guided by Adkins and had sanctioned the law in dispute. “We are of the opinion that this ruling of the state court demands on our part a reëxamination of the Adkins case,” he continued. “The importance of the question, in which many States having similar laws are concerned, the close division by which the decision in the Adkins case was reached, and the economic conditions which have supervened, and in the light of which the reasonableness of the exercise of the protective power of the State must be considered, make it not only appropriate, but we think imperative, that in deciding the present case the subject should receive fresh consideration.” To do so properly, he observed, required careful examination of the doctrine of freedom of contract that had bulked so large in Adkins.

“What is this freedom?” Hughes inquired, his voice rising. “The Constitution does not speak of freedom of contract.” Instead, the Constitution spoke of liberty and forbade denial of liberty without due process of law. The Constitution did not recognize absolute liberty, however. “The liberty safeguarded is liberty in a social

organization,” he declared. “Liberty under the Constitution is thus necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process.” As the Chief Justice spoke, members of the bar in the choice seats near the bench followed his every word as though transfixed, and Hughes’s delivery of the opinion in “a clear, resonant voice,” noted one correspondent, “electrified and held spellbound the spectators who crowded every corner of the majestic Supreme Court chamber.”

The Court had long since established that the State had especial authority to circumscribe the freedom of contract of women, the Chief Justice continued. In Muller v. Oregon (1908), he pointed out, the Court had fully elaborated the reasons for accepting a special sphere of State regulation of female labor. In that landmark case the Court had emphasized, in the words of Justice David Brewer, that because a woman performs “maternal functions” her health “becomes an object of public interest and care in order to preserve the strength and vigor of the race.” Hence, Brewer had gone on, a woman was “properly placed in a class by herself, and legislation designed for her protection may be sustained even when like legislation is not necessary for men and could not be sustained.” The State could restrict her freedom of contract, the Court had determined, not merely “for her benefit, but also largely for the benefit of all.”

The precedents established by Muller and several later rulings had led the dissenters Adkins to believe that the D.C. minimum wage law should have been sustained, and with good reason, Hughes asserted. The dissenting Justices had challenged the distinction the majority Adkins had drawn between maximum hours legislation (valid) and minimum wage statutes (invalid), and that challenge remained “without any satisfactory answer.” The Washington State law was essentially the same as the D.C. act that had been struck down in Adkins, he acknowledged, “but we are unable to conclude that in its minimum wage requirement the State has passed beyond the boundary of its broad protective power.” In that sentence, however convoluted, Hughes had said what for some minutes past it had been clear he was going to say: the Supreme Court was sustaining Washington’s minimum wage law. Against all odds, Elsie Parrish had won.

Lest anyone miss the implication of the Court’s reasoning, the Chief Justice spelled it out: “The Adkins case was a departure from the true application of the principles governing the regulation by the State of the relation of employer and employed.” In short, Adkins, written by Sutherland and carrying the votes of a number of Hughes’s other brethren, was being put to death in its fifteenth year. One could not possibly reconcile Adkins, Hughes maintained, with “well-considered” rulings such as