The Supreme Court's Decisions This Term Will Decide its Fate More Powerfully than Biden's Commission

The U.S. Supreme Court is working through one of its most consequential dockets of cases in recent memory, tackling everything from abortion to gun rights. It does so amid public discontent: Recent polling suggests that public opinion of the court is at its lowest point since 2004, when the poll was first conducted.

This roiling discontent and the sense that the court is operating in a nakedly partisan way prompted President Biden to impanel a bipartisan commission to assess whether structural reforms are necessary to regain the public’s confidence that the court serves the people and not narrow and unpopular political goals. That commission is slated to issue its final report in early December.

Ironically, perhaps, the cases on the docket — more so than the commission report — will shape the future of the court. Despite the occasional protest by the justices to the contrary, the court has traditionally paid enough attention to public sentiment to safeguard its legitimacy — without which it has very little power. As the justices confront backlash and charges of partisanship, a Justice Roberts from another era offers a guide for how the court can rebuild public confidence that it serves as a defender of democracy, the rule of law and fundamental rights.

During the Progressive Era, as awareness grew about the poor working conditions of low-wage workers, states began to try to improve them. Massachusetts led the way, creating a state wage board with the authority to set a minimum wage for women and children. By 1920, 13 states had passed similar minimum-wage laws: some that were mandatory and some, like Massachusetts, simply encouraged employers to pay employees according to particular guidelines. Congress also followed suit, establishing a board to set minimum wages in the District of Columbia for women and minors.

But they ran into a roadblock: the Supreme Court. In Adkins v. Children’s Hospital, the court found this legislation unconstitutional, holding that the “freedom to contract,” upheld consistently in prior cases, included the ability for employer and employee to agree to wages without governmental interference.

This ruling technically only applied to Congress, freeing some states to continue to pass minimum-wage legislation. The onset of the Great Depression and mass unemployment accelerated these efforts, and 25 states ended up passing minimum-wage statutes. In 1936, however, the Supreme Court interceded once again, this time to invalidate New York’s minimum-wage law. This move came after it previously found federal legislation that enabled the Roosevelt administration to set industry-wide minimum wages unconstitutional.

And these decisions were not anomalies. For decades, the court consistently ruled against Progressive Era reforms and then New Deal legislation in many areas of economic and political life, prioritizing the rights of private enterprise to operate unimpeded over the well-being of average Americans or the democratically expressed sentiments of voters.

But in 1937, just 10 months after striking down New York’s minimum-wage law, the court reversed itself and held in West Coast Hotel v. Parrish that Washington state had the power to pass a minimum-wage ordinance. The decisive vote came from Associate Justice Owen Roberts. While he had joined the court’s four conservative justices to rule against the New York law, in West Coast Hotel he switched sides, forming a new majority with the court’s moderate to liberal justices. This new coalition ultimately paved the way for other minimum-wage and New Deal legislation to survive constitutional challenge.

So what changed?