A Perpetual Monopoly

Guest Blogger

For the Balkinization symposium on Robert Post,  The Taft Court: Making Law for a Divided Nation, 1921–1930 (Cambridge University Press, 2024).

Jill Lepore

In May 1923, weeks after the U.S. Supreme Court handed down its decision in Adkins v. Children’s Hospital, the nation’s leading labor reformer, the lawyer Florence Kelley, called for an overhaul of the federal judiciary. She wanted to put women on the bench.[1] 

In Adkins, the Court struck down DC’s minimum wage law for women. Justice George Sutherland, writing for the majority, argued that labor laws aimed at women amounted to an unconstitutional interference in the liberty of contract and that, in any case, such laws were no longer necessary because the “ancient inequality of the sexes” had become, by the dizzying, Model Ts-and-frozen-food age of the flapper, a thing of the past. Given “the great -- not to say revolutionary -- changes … in the contractual, political and civil status of women, culminating in the Nineteenth Amendment,” Sutherland wrote, “it is not unreasonable to say that these differences have now come almost, if not quite, to the vanishing point.”[2] (Oliver Wendell Holmes notably dissented: “It will need more than the Nineteenth Amendment to convince me that there are no differences between men and women, or that legislation cannot take those differences into account.”) Florence Kelley didn’t think you had to squint to notice the enduringly unequal status of women in the United States in 1923. You could, for instance, turn your gaze on the court itself, and give it one long, hard stare.

Sutherland was celebrating--and, sadly, wildly overstating--changes he’d had a real hand in, as had his wife, Rosamond Lee Sutherland. From the time of Sutherland’s election to Congress from Utah in 1900 and through his years in the Senate, he and she had fought for woman suffrage, hosting delegations at their home in Washington, making speeches at suffrage meetings, and publishing articles in magazines. In 1913 when suffragists “stormed the Capitol to argue why women should have the ballot,” according to the Salt Lake Telegram, Rosamond Lee Sutherland was one two senators’ wives to join the delegation; the other was the formidable feminist lawyer Belle Case LaFollette, wife of Wisconsin Senator Robert LaFollette.[3] The next year, George Sutherland, speaking in the Senate, denounced the rule of women by men: “To deprive... [women] of the right to participate in government is to make an arbitrary division of the citizenship of the country upon the sole ground that one class is made up of men, and should therefore rule, and the other class is made up of women, who should, therefore, be ruled.”[4] In 1915, he introduced the Nineteenth Amendment into the Senate and declared women’s disenfranchisement “an unjust and intolerant denial of equality.”[5] In 1923, Sutherland was working with Alice Paul, head of the National Woman’s Party, on a draft of the Equal Rights Amendment, even as he was writing his opinion in Adkins.[6] 

Adkins is today mainly remembered for setting in (very slow) motion the confrontation between FDR and the Court over the New Deal. Robert C. Post, in his magisterial and richly illuminating study of the Taft Court, reads the case as having “decisively set the Taft Court on the path toward normalcy,” after its tolerance of emergency war measures that included price- and wage-setting and all manner of wartime control of the economy. (I’ve published a review of the book elsewhere.) Taft, who had headed the War Labor Board, and found it hard to dismiss, outright, the need for a wage floor, dissented, but this would be his last real disagreement with his court’s conservative majority. “In the course of the decade,” Post writes, “Adkins would flower into a line of cases prohibiting price fixing that would set the Court on a collision course with the New Deal, and Taft would be solidly in the majority.”[7] When that collision came, Adkins would be reversed, in West Coast Hotel Company v. Parrish (1937), in which the Court upheld a Washington state minimum wage law for women. An aging Sutherland, still on the bench, dissented, accusing the majority of effectively amending the Constitution. “The judicial function is that of interpretation; it does not include the power of amendment under the guise of interpretation,” he scolded them.[8] 

That’s how lawyers tend to think about Adkins, reading it backwards from West Coast Hotel, and thinking about the Fourteenth Amendment. Historians, reading the case forward from the Nineteenth Amendment, are more likely to remember Adkins as marking a fork in the road between Alice Paul and Florence Kelley. “The litigation that culminated in the Adkins decision altered the course of social reform, recast women’s claims to constitutional rights, and propelled Kelley and Paul toward different, incompatible kinds of arguments,” as Joan Zimmerman long ago argued in a particularly incisive article in the Journal of American History.[9] 

No case’s outcome is foreordained, which is why it’s distorting to read Adkins by way of West Coast Hotel, and more sensible to read it as the aftermath of the Nineteenth Amendment. One way to glimpse the contingency of these events—to restore the sense of how differently things might have turned out--is to consider the close alignment between the views of Florence Kelley and those of Justice Sutherland’s wife. In 1910, Rosamond Lee Sutherland published an essay called “The Appeal of Politics to Woman,” in the North American Review. In it, she argued that women needed more than the right to vote: they needed to be elected and appointed to public offices because laws made, enforced, and interpreted by men will be unfair to women and children. “Are there not many ways in which the active voice, as well as the passive influence of women, is sadly needed in remedial legislation to-day?” she asked. “Does not the cause of working women need serious attention?” For instance, there was the problem of unfair wages for women. “Men and women work shoulder to shoulder as teachers, clerks and in countless capacities as wage-earners, but the men almost invariably receive much better salaries, not because they do better work or are more trustworthy, but simply because they are men; which is unjust, illogical and all wrong.” Then, too, she wrote, “the crying evil of child labor would surely be eradicated were women instrumental in making and enforcing the laws.”[10] 

The person in the United States heading the effort to eradicate each of these crying evils was Florence Kelley, who led not only the campaign for maximum-hour and minimum-wage laws for women but also the urgent and exhausting campaign to end child labor. The obstacle to all of that work was the U.S. Supreme Court. In 1918, in Hammer v. Dagenhart, the Court struck down a federal child labor law and in 1922 in Bailey v. Drexel Furniture Co., it overturned the Child Labor Tax Law. Then came Adkins. Kelley called it “a new Dred Scott.”[11] 

“Three times in three years the Supreme Court has given warning that justice and mercy for women and children are not to be expected from a court which, itself a perpetual monopoly of men, incarnates age-long injustice,” wrote Kelley in that commentary published weeks after Sutherland issued the Court’s decision.[12] Where Sutherland had insisted that the “ancient inequality of the sexes” had been all but eradicated by the Nineteenth Amendment, Kelley answered that the Court itself represented an “age-long injustice” in the form of the “perpetual monopoly of men” serving on the bench. To break that monopoly, the next appointees to both the Supreme Court and the DC Court of Appeals, Kelley insisted, had to be female, “the first in a series of women.”[13] 

That was one idea. Devastated and not a little desperate after Adkins, Progressives proposed all manner of reforms to the Court. Robert LaFollette, denouncing the Court’s child labor rulings as “judicial oligarchy,” proposed a constitutional amendment granting states the right to nullify opinions of the Court.[14] An Arizona congressman introduced a constitutional amendment requiring a seven-justice majority for any law to be declared unconstitutional (a proposal Kelley supported).[15] Idaho Senator William Borah proposed legislation to that end. Washington senator Clarence Dill suggested the justices serve for non-renewable six-year terms.[16] Three state governors called for a meeting of governors to frame a constitutional amendment granting Congress the power to set a minimum wage.[17] Restrain the Court; amend the Constitution. And that pretty much gets us to the bottom of the bucket of solutions. 

The Court was indeed reformed in the 1920s, just not along the lines any of these people proposed. Taft joined the Court in 1921 and the next year presented to the House Judiciary Committee legislation that he and a committee of justices had drafted, known as the Judges Bill. Its most important element was the certiorari process which, Taft, said, would allow the justices to “decide what was important and what was unimportant.”[18] The Judges Bill rationalized all manner of procedures within the federal judiciary. It also gave the Court much more power, not less. (Brandeis, for instance, opposed it.) Congress passed the plan in 1925, a date that happened to fall midway through Taft’s tenure—he resigned in 1930, suffering from dementia, one month before his death. 

Taft wanted to make the Court more efficient; Kelley wanted to make it more representative. Set the nine men on the bench aside, two bowties, one cravat, six neckties. Forget the New Deal, which hadn’t happened yet. Wasn’t this a case about women? That was another of Kelley’s points. It still holds. “Although the life, health and happiness of women and girls are at stake, no woman has participated in the minimum wage case at any of its stages,” Kelley pointed out in her reading of Sutherland’s opinion. This wasn’t strictly accurate. No female lawmakers had voted on the DC law, no female judge or justice had heard the case, no female lawyers had argued it. But Kelley had a hand in writing a great many of the nation’s labor laws, including DC’s minimum wage law for women, on which she’d collaborated with Felix Frankfurter, who then went on to argue for the appellants in Adkins.[19] And Molly Dewson, Kelley’s deputy, had drafted much of the 1248-page brief for the DC minimum wage board in Adkins, even though it went out under Frankfurter’s name.[20] Still, in the end, Sutherland decided to ignore Dewson’s work in its entirety, declaring the empirical evidence in her brief—more than a thousand pages of statistics, testimony, and analysis regarding the suffering of women--as having shed “no legitimate light on the question.”[21] 

When Frankfurter read the Court’s opinion, he telegrammed Kelley: “Upshot would be adoption of Alice Paul theory of constitutional law.”[22] The Alice Paul theory of constitutional law is a theory Florence Kelley considered a species of insanity. As soon as the Nineteenth Amendment was ratified, Paul had begun crafting a new constitutional amendment. “There is at this moment an insanity prevalent among women where one would least expect it,” Kelley wrote about an early draft of the Equal Rights Amendment. “The slogans of the insane are ‘A fair field and no favor,--Equal rights for women, nothing more.—We ask no privileges now that we have the vote.”[23] As for the very term—equality, Kelley had little use for it. “Let’s not begin with meaningless words,” she’d once said. ‘Equality’ where there is no equality is a terrible a thing for the defenseless workers as the cry of ‘peace’ where there is no peace.” She felt the same way about “liberty of contract.”[24] 

Alice Paul had struggled over the question of whether a prohibition on discrimination by sex would undermine labor legislation. She’d sent drafts of the Equal Rights Amendment to Sutherland—one draft’s Section 2 read, “This article shall not be interpreted as preventing legislation in the exercise of the police power or for the protection of women in industry”—but after Sutherland and other lawyers she consulted took the position that the clause was not needed, it was deleted.[25] She’d then aided the plaintiffs in Atkins and, by the end of the year, had succeeded in having the Equal Rights Amendment, introduced into Congress. 

Lost in the tug-of-war between Kelley and Paul was their shared understanding that the Constitution was not written for women and children, that neither the Court nor any other institution that excludes women can be counted on to remedy so dire an inadequacy. After Adkins, Florence Kelley turned her attention to drafting and lobbying for the Child Labor Amendment.[26] Paul’s amendment aimed to eliminate a distinction; Kelley’s aimed to make one. The CLA passed Congress in 1924, the ERA in 1972. Neither was ever ratified. They’re two of only six constitutional amendments to have gone to the states and failed. 

The divide between Kelley and Paul impeded both Progressive labor legislation and the movement for equality under the law. It also contributed to the Court’s abandonment of the Nineteenth Amendment. After Adkins, the Nineteenth Amendment hardly ever again made an appearance in a Supreme Court opinion even though there was every reason, at the time, to expect that it would mark the beginning of a rich vein of meaning-making. University of Maryland law professor Paula A. Monopoli has argued in her 2020 book, Constitutional Orphan, that the aftermath of Adkins is itself is responsible for the creation of “a vacuum around the Nineteenth Amendment.”  Followers of Kelley shied away from arguments invoking the Nineteenth Amendment’s implications for equality lest it be used, again, to undermine labor legislation, and followers of Paul pivoted to the Equal Rights Amendment, leaving constitutional thinking around the Nineteenth Amendment undeveloped.[27] 

There is no Nineteenth Amendment Doctrine. But that’s not only because of what divided women after Adkins. It’s also because the Court was fundamentally uninterested in the Nineteenth Amendment. The Taft Court is the last of the originally planned volumes of the Oliver Wendell Holmes Devise History of the Supreme Court of the United States. Whatever history scholars write, the Court tells its own history in the opinions it generates. It erases whatever it wishes, which, as it happens, includes anything and everything ever written by a woman. “Those who sought votes for women made claims for liberty and equality in the family on which constitutional law might now draw—but there is no trace of their voices or claims in constitutional law,” Reva Siegel argued in her searing 2022 essay, “The Politics of Constitutional Memory.” That includes Florence Kelley and Alice Paul and dozens more whose names, as Siegel notes, appear nowhere in the United States Reports.[28] And, as Monopoli noted in a 2023 article, “Situating Dobbs,” “The majority opinion in Dobbs is essentially devoid of women as legal authorities.”[29] In Dobbs, women never appear as thinkers; they appear only as body parts. 

You don’t have to squint to notice the enduringly unequal status of women in the United States in 1924. Florence Kelley wanted to put women on the bench. A century later, a lot of people would like the Court to put women in its opinions. The Dobbs majority’s failure to engage with, to cite, or even to display any knowledge of the existence of constitutional writing by women is bizarre, not least because by no means does this writing fall to one side of any constitutional question, as the history of Adkins illustrates. Women don’t agree with one another anymore than men do, and never have. “The perpetual monopoly of men” that Kelley denounced wasn’t and isn’t about dismissing the ideas of women on the basis of disagreement with them; it was and is about dismissing the possibility that women have ideas. In the Court’s understanding of its own history, this notion not only still prevails but also structures its reasoning and shatters its authority.

Jill Lepore is David Woods Kemper '41 Professor of American History, Harvard College Professor, and Affiliate Professor of Law at Harvard University. You can reach her by e-mail at jlepore@fas.harvard.edu.