The Washington PostDemocracy Dies in Darkness

A key Supreme Court ruling protecting workers is now in jeopardy

The newly conservative court may target the decision that allows for a minimum wage

Demonstrators assemble near the Capitol last year. (J. Scott Applewhite/AP)

Should either Congress or individual states raise the minimum wage? This is a hot-button topic that continually propels fierce debate and advocacy, all while tens of millions of Americans benefit from the existence of laws guaranteeing them a minimum wage. But all of this political debate would be for naught without a crucial Supreme Court decision that has slipped from public memory in recent decades.

Decided 85 years ago this week, the court’s 1937 decision in West Coast Hotel v. Parrish upheld a state minimum-wage law for women, reversing the course of previous decisions. Although at the time this represented a seismic shift in the court’s jurisprudence, the idea that minimum-wage laws were constitutionally permissible quickly became settled law. As Justice Harlan Fiske Stone observed a mere four years later in 1941, it was “no longer open to question that the fixing of a minimum wage is within the legislative power.” For the next eight decades, the justices endorsed that statement.

In recent years, however, some of the court’s conservatives have indicated a desire to depart from stare decisis — adhering to precedent — to overturn decisions that they think manufactured constitutional rights and liberties or abridged freedoms clearly protected by the Constitution. There is every reason to think that Parrish is one of the decisions they are targeting.

In the decades preceding Parrish, time and again the court declared unconstitutional legislative efforts to implement health, safety and social welfare regulations protecting American workers. Repeatedly, the justices hewed to the laissez-faire position adopted in 1905 in Lochner v. New York, which struck down a state law imposing maximum working hours for bakers.

Undeterred by the precedent that Lochner set, reformers in the 1910s forged ahead with their agenda, and succeeded in getting 15 states, the District of Columbia and Puerto Rico to set minimum-wage laws for women. Twice, however, the Supreme Court severely constrained these efforts — in 1923 in Adkins v. Children’s Hospital, which only applied to D.C., and in 1936 in Morehead v. New York ex rel. Tipaldo. Both times, the court deemed the minimum-wage laws under consideration a violation of the “liberty of contract,” which it found to be explicitly protected by the Fifth and 14th amendments. The justices argued that the Constitution guaranteed workers and their employers the freedom to make contracts for hours and wages on their own terms, not terms imposed by the state.

In reality, however, this “freedom” stacked the deck against workers, forcing them to accept lower wages. Elsie Parrish — the plaintiff in Parrish — was one of the millions of American workers who bore the brunt of this reality. She could best be described as not at “liberty” to complain about the wages she received as a chambermaid at the Cascadian Hotel in Wenatchee, Wash.

During the Great Depression, she was lucky to have a job. Cleaning rooms at the hotel from 1933 through 1935, Elsie, a grandmother in her 30s, brought home much-needed money that put food on the table for herself, her husband, Ernie, and the grandson they were raising. When she complained that her employer was not paying her the minimum wage guaranteed by a Washington state law, her boss fired her. Parrish was part of the overwhelming majority of the country for whom the decision in Tipaldo felt egregiously myopic. As Elinore Morehouse Herrick, the New York director of the National Labor Relations Board, said in 1936, minimum-wage laws are “not an academic question or even a legal one,” they are “a human problem.”

The court heard oral arguments in Parrish a mere six months after striking down New York’s minimum-wage law in Tipaldo. That decision left things looking bleak for Parrish.

Yet Justice Owen Roberts, who had been part of the five-justice majority in Tipaldo, famously reversed course in Parrish, joining the four dissenters from the earlier case to form a new, narrow majority that finally realized the necessity of minimum-wage laws for women. The decision in Parrish, upholding the Washington law, came on March 29, 1937. Writing for the court, Chief Justice Charles Evans Hughes (who wrote a dissent in Tipaldo) acknowledged the undeniable “exploitation of a class of workers” — namely, women — “who are in an unequal position with respect to bargaining power, and are thus relatively defenseless against the denial of a living wage.” This was something “which recent economic experience has brought into a strong light.”

Although Hughes couched much of his reasoning in gendered language, observers widely viewed the principles of his opinion as applying to male workers as well. Four years later, in 1941, the justices confirmed that idea when they upheld the sweeping Fair Labor Standards Act.

Since then, very few justices have made suggestions even remotely connected to the idea of revisiting Parrish’s conclusion about the minimum wage. Justice David Souter did express alarm in a dissent in 1995 that some members of the court at the time might have such an interest. Yet, over the next 20 years Souter’s concern seemed unfounded, because justices rarely even cited Parrish, and no member of the court wrote an opinion whose language could be fairly interpreted as criticizing the seminal decision. That’s how things stood until very recently.

In 2015, and again in 2016, however, in Whole Woman’s Health v. Hellerstedt, a decision striking down limits on access to abortion, Justice Clarence Thomas observed that he thought Roe v. Wadewhich first articulated a right to abortion in the Constitution — and Parrish committed errors that are two sides of the same constitutional coin. In both, he argued, the justices substituted their own opinions for the text of the Constitution. Roe struck down a law and, in doing so, manufactured a constitutional right. Parrish upheld a law and, in doing so, violated the clearly constitutionally protected liberty of contract.

Since those dissents, three new conservative justices — Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — joined the court, raising the prospect that Thomas’s views might have company, and that the decision in Parrish is no longer safe.

Attorney General Robert Jackson, a future justice, in 1941 observed that the decisions in Lochner, Adkins and Tipaldo belonged to an “older world of laissez-faire,” which “was recognized everywhere outside the Court to be dead.” To the profound relief of workers across the country, in West Coast Hotel v. Parrish that “older world” finally found its judicial demise.

One now wonders, however, whether members of the current court are seeking to drag the nation back into that “older world” in the name of protecting “liberty of contract.”