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Erik Visits an American Grave, Part 713

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This is the grave of Owen Roberts.

Born in Philadelphia in 1875, Roberts was the son of a prosperous hardware merchant. He attended the University of Pennsylvania and edited the school newspaper there before graduating in 1895. He stayed there for law school and finished his degree in 1898. He frequently taught law at Penn over the next couple of decades, particularly his specialties in contracts and property law. He was tapped to be assistant district attorney for Philadelphia in 1903 and served in that role until 1906. But mostly, he was a private practice lawyer serving corporate interests for most of his career until the mid 1920s with the exception of working as a prosecutor of the Espionage Act during the Red Scare.

Roberts came to light when Calvin Coolidge named him one of the two lead prosecutors for the corruption that led to Teapot Dome and it was his work that led to the conviction of former Secretary of the Interior Albert Fall. In 1930, Edward Sanford died and a seat opened on the Supreme Court. Herbert Hoover initially appointed John Parker. But that nomination was rejected because Parker was so extremely anti-labor, having supported the yellow-dog contracts that made refusing to join unions a condition of employment, as well as a history of racism that made Black Republicans opposed. When Parker was rejected, Hoover turned to a reliable, quiet pick in Owen Roberts. He was unanimously confirmed.

Roberts would quickly be seen as the swing vote on the Court. The old-line conservative bloc was not going to accept any New Deal legislation. The liberal bloc of course accepted it. Roberts was generally seen as a conservative ally. He was early on, helping to rule several pieces of New Deal legislation or programs unconstitutional. Given that Roberts was always seen as wishy-washy, his early striking conservatism was surprising to commenters. Some believed he was lining himself up to compete for the Republican presidential nomination in 1936. But like Chief Justice Charles Evans Hughes, Roberts realized that this extreme rejection of all change was undermining the Court’s credibility. With Franklin Roosevelt now introducing his court-packing plan, a good idea that needs to be revived today with the Court if anything even more revanchist than in the 1930s, Roberts surprisingly voted to uphold minimum wage laws in West Coast Hotel v. Parrish. This was the “switch in time that saved nine.” Hughes was the more powerful judge and legal mind. He convinced Roberts that it was necessary in some cases to rule in ways other than just affirming your own political beliefs. It saved the Court’s credibility for nearly a century. Felix Frankfurter later defended Roberts as a principled person who was not inconsistent, but it seems that’s an opinion he developed later and that at the time, he responded with ambivalence that the Court really was little more than a political body.

Roberts did not exactly become a liberal, but he did start ruling with the liberals in some key cases. He wrote the opinion in New Negro Alliance v. Sanitary Grocery, which ruled constitutional the right of Black activists to conduct a boycott when fighting discriminatory hiring. This was fairly consistent with a social liberalism that was relatively strongly held, certainly much more than his voting for the New Deal. In Herndon v. Lowry, Roberts wrote an opinion that overturned the conviction of a Black communist organizer because the anti-radical law provided no clear standard of guilt. And in Cantwell v. Connecticut, he overturned the conviction of three Jehovah’s Witnesses for soliciting contributions door-to-door, extending the free exercise clause to the states through the due process clause of the Fourteenth Amendment.

Yet even on the economic issues, Roberts was never truly a reactionary, at least compared to some of his colleagues. He had written the opinion in 1934’s Nebbia v. New York that allowed the New York State Milk Control Board to set prices under the principle that there were products in the public interest that could deserve public regulation and which thus had a higher priority than defunct Gilded Age economic liberalism. This had already outraged the four reactionaries to his right. And while Roberts had voted to void the initial Agricultural Adjustment Act, he wrote the opinion upholding the second AAA in Mulford v. Smith.

Roberts also became a leading interventionist in the run-up to World War II, supporting Roosevelt’s policies and wanting him to go farther. So after Pearl Harbor, when Roosevelt needed to look bipartisan about it, he asked Roberts to write the report investigated how the military had let it happen. Always savvy, he knew Roberts would not say anything to embarrass the administration or undermine the war effort. In fact, Roberts was letting Roosevelt know what the report was going to publish well ahead of time. It was pretty critical of the military but not in a way that would undermine FDR. Interestingly, Roosevelt choosing Roberts led to the other justices feeling jealous, wanting some more active role in the war effort than they had.

A big art collector, Roberts headed what became known as the Roberts Commission in 1943, dedicated to trying to preserve the cultural artifacts of European history during World War II. But while he was allied with FDR on the war, he was increasingly bitter at how the president’s nominees to the Supreme Court were so willing to throw out precedent to promote liberal politics. He was absolutely furious in 1944, when the Court threw out the white primary in Smith v. Allwright. Some of that was because the decision it overturned was only 19 years old and some of it was that he was fine with the white primary.

Roberts resigned from the Court in 1945. His colleagues hated him so much by this time that Hugo Black refused to even sign a letter acknowledging his service on the court and therefore they never sent him a letter at all. This despite a previous history of mutual respect between the two justices. Their break had come over someone leaking Court decisions to the radio columnist Drew Pearson. Roberts demanded Chief Justice Robert Jackson convene a special session of the Court. He believed it was either Jackson or William O. Douglas doing the leaking. Black told Roberts that he had full faith in both justices. When Roberts refused to believe him, Black took it as a personal insult about his honor and never forgave him. This really is not a situation that made either look good, particularly that neither could ever get over the disagreement. This alienation is what led Roberts to leave the Court.

Roberts burned all of his papers and so it’s very difficult to really get into the details of his shifts over time. He spent his initial retirement from the Court attempting to strengthen the UN General Assembly in order that it really could enforce peace. This was through the Dublin Declaration, which referred to New Hampshire, not Ireland, and which wanted a world legislature. It proclaimed,

“Such a government should be based upon a constitution under which all peoples and nations will participate upon a basis of balanced representation which will take account of natural and industrial resources and other factors as well as population. It cannot be based on treaties…in which the states…act and vote as states.”

Roberts was then chair of the Security Board for the Atomic Energy Commission and the Fund for the Advancement of Education. He also became the dean of the UPenn Law School in 1948 and served for three years in that role. He left that in 1951 and died in 1955, at the age of 80.

Owen Roberts is buried in Saint Andrew’s Cemetery, West Vincent Township, Pennsylvania.

This grave visit was sponsored by LGM reader donations. Many thanks! If you would like this series to visit some of Roberts’ colleagues on the Supreme Court, you can donate to cover the required expenses here. Robert Jackson is buried in Frewsburg, New York and Stanley Reed is in Maysville, Kentucky. Previous posts in this series are archived here.

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