The Constitutionality of Minimum Wage: The Legal Battles of Elsie Parrish and Frances Perkins for a Fair Day's Pay

By Margaret Murphy '23
Advised by Professor Joseph Fronczak

Introduction

The creation of a national minimum wage for both men and women in the United States was a monumental moment in this nation’s history. However, much of the historical attention to its creation has focused on the male actors in a Supreme Court decision in 1937 and the subsequent passage of an act in 1938.1 While the justices of the Supreme Court and President Franklin Delano Roosevelt did indeed play a large part in the creation of minimum wage, that attention has obscured the women who contributed years of their lives in pursuit of minimum wage.2 This paper will highlight the stories of two women, Elsie Parrish and Frances Perkins, and their indispensable work in achieving a minimum wage. Elsie Parrish sued her employer for paying her less than the minimum wage set by the state of Washington, and she brought her case all the way to the Supreme Court, winning the landmark case, West Coast Hotel Company v. Parrish, et ux. in 1937.3 The case overturned a previous 1923 laissez-faire case called Adkins v. Children’s Hospital of the District of Columbia, which had ruled that minimum wage for women violated the Fifth Amendment right to free contract and therefore was unconstitutional.4 Frances Perkins, the secretary of labor under President Roosevelt and the first woman in any presidential cabinet ever, pushed the Fair Labor Standards Act (FLSA) through Congress in the following year of 1938; the FLSA established for the first time a national minimum wage, regardless of gender.5 This paper aims to highlight the stories, effort, and ultimate victories of these two women, who have been overlooked and omitted from in the mainstream historical narrative surrounding the creation of minimum wage in America.

Minimum wage laws grew out of a gendered and paternalistic interpretation of the Fifth and Fourteenth Amendments in the early 1910s, but with the success of the women’s suffrage movement in the late 1910s and early 1920s, the constitutionality of minimum wage was threatened. Parrish’s legal win was not a reaffirmation of the necessity of minimum wage for women for protective and condescending reasons, but rather it signified a new perspective on minimum wage: women were competent workers and deserved to be paid a livable wage. With this new perspective gaining traction in American politics and the legal success of West Coast Hotel v. Parrish, Perkins was finally able to garner enough political support for establishing a minimum wage for both men and women. A gender-neutral national minimum wage in this country would not have succeeded without the bottom-up legal drive from Elsie Parrish and the top-down political reinforcement from Frances Perkins. Parrish reestablished the constitutionality of laws concerning women’s minimum wage in the post Great Depression economy after the women’s suffrage movement dissolved minimum wage laws for women, and Perkins used the Supreme Court’s ruling in order to propel the first congressional act to stipulate a broader national minimum wage. These two women powered the transformation of minimum wage from a paternalistic, protective measure for women determined on a state-by-state basis into a national economic security for both men and women.

I. The Rise and Fall of Minimum Wage Legislation for Women

The Creations of Minimum Wage Laws, 1910s

When one researches the creation of minimum wage in the United States, the immediate result is that President Roosevelt signed into law the Fair Labor Standards Act on June 14, 1938.6 However, the story of the creation of American minimum wage is much more complicated than that simple statement. Political momentum for minimum wage laws began in the early 1910s. A U.S. Department of Labor Report from 1911 stated, “Apparently, the wages of women in factory industries are very largely unstandardized.”7 Many women across the country were working for less than $6 a week.8 In order to protect the women—and their families—who were being taken advantage of by cruel employers, states began to pass laws prescribing a minimum wage for women. Massachusetts was the first state to pass a minimum wage law on June 4, 1912, with Oregon following on February 17, 1913, then Utah on March 18, 1913, and Washington on March 24, 1913.9, 10 By 1923, 15 states as well as Washington D.C. and Puerto Rico had passed minimum wage laws for women.11 The overall intention of these laws was to protect a vulnerable section of the American workforce.

Advocates in Washington for a women’s minimum wage argued that it was a method of protecting women’s well-being.12 The proposal for a state minimum wage for women met almost no resistance in the state’s Congress; the bill passed easily through both the state Senate and House of Representatives, and it acquired the final stamp of approval from the governor, all within the quick time frame of a month.13 The opening section of the Washington State minimum wage law for women stated, “The welfare of the State of Washington demands that women and minors be protected from conditions of labor which have a pernicious effect on their health and morals.”14 It continued, with Section 2 establishing minimum wage: “[I]t shall be unlawful to employ women workers in any industry within the State of Washington at wages which are not adequate for their maintenance.”15 A committee would be established to determine the appropriate minimum wage and adjust it in relation to economic circumstances.16 The law even went as far as establishing a method of seeking recourse in the event that a woman or child did not receive sufficient wages from the employer in Section 17: “Any worker or the parent or guardian of any minor to whom this act applies may complain to the commission that the wages paid to the worker are less than the minimum rate and the commission shall investigate the same and proceed under this act in [sic] behalf of the worker.”17 Section 18 clarifies Section 17: “Said employee shall be entitled to recover in a civil action the full amount of the legal minimum age as herein provided for … notwithstanding any agreement to work for such lesser wage.” This detailed minimum wage law played an integral role 22 years later, when Elsie Parrish used it as her legal foundation to sue her employer.18

The Lochner Era of the Supreme Court and the Right to Contract

The Civil Rights Act of 1866 declared, “Citizens …. shall have the same right, in every State and Territory in the United States, to make and enforce contracts.”19 Politicians feared, though, that a constitutional challenge to the Civil Rights Act of 1866 would succeed and render the Act null, so in 1868 the 14th Amendment was passed with very similar language and with the same spirit as the Civil Rights Act.20 However, due to political infighting, the 14th Amendment did not use the exact language of the Civil Rights Act of 1866. Instead of the right to “make and enforce contracts” that the Civil Rights Act of 1866 provided, the Fourteenth Amendment guaranteed that “nor shall any State deprive any person of life, liberty, or property, without due process of the law.”21 Known as the due process clause, this phrase exactly parallels the language used in the same clause of Fifth Amendment, but it applies the rights to states. The Fifth Amendment only applies to areas regulated by the federal government, such as territories and D.C. The due process clauses of both the Fifth and the Fourteenth Amendments protect liberty and property, much as the Civil Rights Act’s phrasing did. However, the due process clauses do so much more vaguely, lacking clarity as to which rights are included with the guarantee of “life, liberty, or property.”22 The question that would cause so much legal battling over the next few decades was whether or not the right to freedom of contract was protected by the due process clauses of the Fifth and Fourteenth Amendments.

The right to freedom of contract more explicitly was the right for employer and employee to determine their working conditions, including hours and pay. This alleged right became the focal point for the debates over minimum wage in the following decades. The infamous Lochner v. New York decision of 1905 specifically held that it was unconstitutional to regulate men’s working hours because it violated their right to freedom of contract under the Fourteenth Amendment’s due process clause.23 However, the decision expounded upon the right, stating that there was in fact a constitutional basis to the right to freedom of contract and that any governmental regulation of the affairs between employer and employee was a violation of this right. Emblematic of the laissez-faire style of economic policy of the time, the right to freedom of contract became synonymous with prohibition of any governmental regulation of labor.24

The decades spanning from the late 1890s to 1937 are known as the Lochner Era in judicial history. The Supreme Court first ruled that the Fourteenth Amendment’s due process clause protected the right to freedom of contract in Allgeyer v. Louisiana in 1897.25 From that case until Parrish in 1937, the Supreme Court used this basis to invalidate nearly 200 laws progressive governmental policies on the economy and workforce that they believed were in violation of economic due process.26 The Lochner Era concluded with the drastic reversal of the Court's former conservative rulings in West Coast Hotel v. Parrish.

The Beginning of the Legal Battles

Before Elsie Parrish entered the scene, others had also sought judicial recourse for minimum wage issues, some seeking to establish constitutional legitimacy and some seeking to discredit it. Prior to any enactment of a minimum wage law, a case in 1908 called Muller v. Oregon established that limiting the hours women were allowed to work was not a violation of the right to freedom of contract in the due process clause of the Fourteenth Amendment. The unanimous decision was uncontroversial at the time. The Court distinguished this decision from the one they handed down only three years earlier in Lochner, on the basis of sex.27 The Court reasoned that while men could handle themselves in the workforce, women needed to be protected from overworking themselves due to their child-bearing nature.28 The main opinion for Muller v. Oregon reads: “Women’s physical structure and the functions she performs in consequence thereof, justify special legislation restricting or qualifying the conditions under which she should be permitted to toil.”29 The idea of regulating working hours was a way of restricting women in the workforce and encouraging her in her maternal duties: “The physical wellbeing of women becomes an object of public interest and care in order to preserve the strength and vigor of the race.” The unanimous opinion continued, explicitly saying how the inferiority of women to men was the only reason why their working hours should be limited while men’s should not: “Woman has always been dependent on man …. She is properly placed in a class by herself.”30 Thus, from 1905 to 1908, the Supreme Court gave legitimacy to treating women and men differently under the due process clause because women were seen as dependent upon and inferior to men. Regardless of the constitutional legitimacy of the right to freedom of contract in the first place, men were entitled to it, while women were not.

However, the women’s suffrage movement disrupted this equilibrium. By the late 1910s, many states had enacted minimum wage laws for women on the same rationale that they needed to be protected against maltreatment in the workforce. In 1917 the Supreme Court decided a controversial case called Stettler v. O’hara concerning the right to freedom of contract. In Stettler the Court had to adjudicate a direct challenge to Oregon’s minimum wage law for women, which had been enacted four years earlier.31 The case was deadlocked, with four justices voting in favor of the constitutionality of Oregon’s minimum wage law for women, four justices voting against, and one abstaining. Justice Brandeis had to recuse himself from the vote because he himself had argued in favor of supporting the law before the Supreme Court. His presentation to the Supreme Court in Stettler received exceptional and extraordinary deference from the justices; the Court granted him extra time for the delivery of his brief because his argument captivated the bench.32 However, due to delays in the judicial system, the Court postponed the release of the decision for the Stettler case.33 In between oral arguments and the release of the decision, Brandeis was appointed to the Supreme Court to replace Justice Lamar, who had passed away.34 His prior involvement with the case, though, meant that he was legally obligated to recuse himself from the decision.35 His rationale differed from the predominant misogynistic reasoning.36 In his compelling brief for the case, Brandeis had argued for the minimum wage law not on the basis of legal nor paternalistic reasoning, but rather on the basis that socially, economically, and physically, the limitation of working hours was a good thing. With a 4-4 tie, the United States Supreme Court deferred to the decision of the Oregon State Supreme Court stood: the minimum wage law in Oregon for women would still stand as good law, but the Supreme Court’s ruling would not be precedential for future cases. With Brandeis’s vote, the matter of the constitutionality of women’s minimum wage would have been settled, and the Supreme Court’s decision would have established a precedent that other challenges to minimum wage laws would be unsuccessful.37 The constitutionality of minimum wage thus became very murky and very unstable after Stettler.

Adkins v. Children’s Hospital and the Collapse of Minimum Wage Laws

With the monumental ratification of the Nineteenth Amendment in 1920, women were increasingly seen as equals to men.38 The enforcement of minimum wage laws for women began to erode, since they had been rooted in a gendered and paternalistic reading of the due process clauses of the Fifth and Fourteenth Amendments and because women were gaining more political and social autonomy. The collapse of minimum wage laws for women arrived when the Court decided a case called Adkins v. Children’s Hospital. A challenge raised by a woman to the Washington D.C. minimum wage law for women rose to the Supreme Court.39 In Adkins, they ruled that the law mandating a minimum wage for working women was unconstitutional because it violated the due process clause of the Fifth Amendment.40 While technically this case only determined how the due process clause of the Fifth Amendment applied to minimum wage laws, the ruling implied that minimum wage laws based on the due process clause of the Fourteenth Amendment would soon fall as well. The Court’s opinion noted that women no longer needed special protection in the form of minimum wage laws because they were fully participating in the political institutions of this country, as equals to men.41

The dissenting justices strongly disagreed with the majority’s dismissal of the importance of minimum wage laws and their reasoning for it. In his dissenting opinion in Adkins, Taft wrote: “Legislatures in limiting freedom of contract between employee and employer by a minimum wage proceed on the assumption that employees, in the class receiving least pay, are not upon a full level of equality of choice with their employer and in their necessitous circumstances are prone to accept pretty much anything that is offered.”42 He continued, saying: “The evils of the sweating system [i.e. sweatshops] and of the long hours and low wages which are characteristic of it are well known.”43 This dissenting opinion represented the first time that a justice had recognized that regulations on minimum wages and working hours need not be based upon misogynistic interpretations of the due process clauses, but rather could be based on a pro-laborer standpoint regardless of gender, the social argument that Brandeis had formulated years before. The right to freedom of contract derives from the principle that all people are entitled to create their working conditions free of governmental overreach. However, when the employer has all the power, the employee ought to have governmental support in order to prevent abuse from the employer. Taft also wrote, “It is not the function of this Court to hold congressional acts invalid simply because they are passed to carry out economic views which the Court believes to be unwise or unsound.”44 Taft believed that the decision in Adkins was judicial overreach. It was not the Court’s place to determine whether or not the laws were smart, rather only if they were constitutional or not. Justice Holmes, who wrote his own dissenting opinion, agreed with Taft in this sentiment and extended the argument even further. Holmes explicitly denounced the concept of freedom of contract, saying that the “innocuous” liberty granted in the Fourteenth Amendment had been “expanded into the dogma, Liberty of Contract.”45 Justices were beginning to realize that the lofty, alleged constitutional right to freedom of contract might not actually have as much legitimacy as they had given it and also that perpetuating its existence might cause detriment to society’s workforce.

Despite the strong dissentions, the ruling in Adkins set off a domino effect for the collapse of other minimum wage laws for women across the country. Over the course of the 1920s, seven other lower court cases rendered minimum wage laws unconstitutional in Arizona, Arkansas, Kansas, Minnesota, North Dakota, Wisconsin, and Puerto Rico.46 Six other laws in California, Colorado, Nebraska, South Dakota, Texas, and Utah were repealed or were never legally enforced, and the remaining laws were either weakly enforced or redesigned to be less effective but more in accordance with the alleged constitutional right to freedom of contract.47 Entering the 1930s, the concept of minimum wage had been eviscerated; it had little legal legitimacy and little political merit.

On June 1, 1936, in a case called Morehead v. New York ex rel. Tipaldo, the Supreme Court ruled that the New York minimum wage law for women was unconstitutional based on Adkins.48 Morehead was the first case on minimum wage to rise to the Supreme Court since the stock market crash and the onset of the Great Depression in 1929, and it received a great amount of attention.49 Elsie Parrish had just won her appeal to the Washington State Supreme Court a month earlier, and the lawyers for the Cascadian Hotel were in the process of appealing the decision to the United States Supreme Court. The implications of Morehead did not bode well for the future of her case: the Supreme Court approved the legitimacy of Adkins as a precedent for all minimum wage laws and had applied the ruling on the due process clause of the Fifth Amendment in Adkins to the due process clause of the Fourteenth Amendment, thus incorporating the Adkins ruling against the states.50 Felix Frankfurter, who would later be appointed to the Supreme Court, was the lawyer for the side defending the New York minimum wage law; he, alongside Frances Perkins, had drafted the New York minimum wage law, and it had gone into effect only three years earlier in 1933.51 The law had been specifically designed in an attempt to beat judicial scrutiny in relation to Adkins. The test had failed.  

II. Elsie Parrish

Elsie Parrish and Her Lawsuit

As a working mother of six children in a small town called Wenatchee in Washington, Elsie Parrish had no intention of making national news, but when she decided to sue her employer, she lost any anonymity she had held before. Although the ramifications of the Great Depression were slow to descend upon the Pacific Northwest, Wenatchee had begun to suffer financially by the mid 1930s.52 People needed work, and employers used the upper hand to their benefit, exploiting laborers by overworking and underpaying them. The Cascadian Hotel in Wenatchee was no exception. Built in 1929 just before the Great Depression, it was one of the few prosperous employers in Wenatchee in the early to mid 1930s. Owned and operated by a larger parent company called the West Coast Hotel Company, which would later serve as the name of the party involved in the lawsuit, the Cascadian Hotel had remained relatively protected from the beginning of the Great Depression.53 It had become the central social rendezvous spot in town.54 In an interview many years after the case, Parrish said, “I took what they gave me because I needed the work so bad and I figured they would pay me right.”55 Parrish had started working at the Cascadian Hotel in the summer of 1933, and she stayed there until the spring of 1935 when she left and sued the hotel for underpaying her.56 She knew that the Cascadian Hotel owed her a significant amount of money according to the established state minimum wage. After the ruling of Adkins, Washington State still kept their minimum wage law on the books, but it was no longer enforced well. For the 48-hour work weeks that she had been completing, she had been paid initially $10.80 and then eventually $12.00 a week, both of which were below the $14.50 weekly minimum.57 When she complained on May 11, 1935, the manager of the Cascadian Hotel fired her and offered her $17. But, she stayed true to her convictions and sued rather than take the hush money. Her employer owed her $216.19, which is equivalent to $4,400 in US 2021 dollars.58 A month later, Parrish successfully launched the lawsuit that would become West Coast Hotel Company v. Parrish.59

Charles Burnam Connor, one the town’s most well-renowned lawyers, agreed to take on her case pro bono.60 Using Sections 2, 17, and 18 of the 1913 Washington minimum wage law, he began to construct a case for her. According to the statute, it was unlawful for the Cascadian Hotel to pay her less than the minimum wage, and Elsie Parrish was entitled to legal recourse and full compensation of the difference between what she should have received and what she actually received in wages.61 Connor supposed that the Cascadian Hotel fired Elsie Parrish because of her knowledge of the minimum wage law; her termination was not merely because she was asking for more money but rather because she cited the 1913 minimum wage law as the foundation for her request.62 Although Connor never agreed with the decision in Adkins, he believed that he could avoid arguing for an overruling of Adkins, which seemed to be firmly cemented as precedent.63 Instead of relying on Adkins, which, unless overruled, would certainly predict a losing battle for him, he grounded his argument in another Supreme Court case from 1931: O’Gorman & Young, Inc. v. Hartford Fire Insurance Company.64

The case of O’Gorman had very little circumstantial overlap with the other cases on minimum wages or working hours; it focused on the commission rates of insurance agents selling fire insurance.65 In this case, the Supreme Court held that the State of New Jersey was allowed to regulate the commission rates of insurance agents as a “reasonable exercise of state police power.”66 When placed in context with the concept of freedom of contract, the phrase “reasonable exercise of state police power” undermined the untouchable legitimacy of freedom of contract that Adkins had established; a state could potentially infringe on the right of freedom of contract if it were a reasonable exercise of the state’s granted police power.67 The notion of freedom of contract had been the downfall of the Washington D.C. minimum wage law in Adkins, and Connor hoped to rely on a case that weakened that right. Additionally, in the majority opinion for O’Gorman, Justice Brandeis wrote, “The presumption of constitutionality must prevail in the absence of some factual foundation of record for overthrowing the statute.”68 Connor relied on this key passage to argue that the constitutionality of the Washington minimum wage law must prevail since there was no evidence that the law was unreasonable. By drawing this case into the conversation concerning minimum wage, Connor took a novel approach to the question of the constitutionality of Washington’s minimum wage law.

For his legal team, Willard Abel, the owner of the Cascadian Hotel, hired Frederick M. Crollard and A. J. O’Connor, who assured Abel that a lawsuit against him and his hotel by a disgruntled employee would have no solid legal standing in court because of Adkins.69 They told him that a woman, “who was not, by any measure, in a position of influence,” would likely lose in a lawsuit over contested wages because the Washington minimum wage law would almost surely be ruled unconstitutional based on Adkins.70 Although Adkins had been decided over a decade earlier, no formal lawsuit had challenged the 1913 minimum wage statute of Washington State.71 Thus, the lack of enforcement resulted in many female employees, like Elsie Parrish, working for less than the minimum wage.72 Neither side contested the fact that Parrish was rightfully owed the money based on the 1913 minimum wage law. The lawyers for the hotel simply contended that based on Adkins, the 1913 Washington minimum wage law was unconstitutional, and therefore did not entitle Elsie Parrish to any compensation.73 Elsie Parrish’s lawsuit was quite a challenge to the status quo, and the legal team for the Cascadian Hotel believed they had an open and shut case.74

The Trials

Connor and Elsie Parrish lost the first trial on October 17, 1935, with the judge saying in reference to Adkins, “It seems to me that the decision of the highest court of the land … settles this question absolutely.”75 Determined, though, to fight the legal battle, they appealed the case, and they won the appeal to the Washington State Supreme Court, on April 2, 1936.76 In a unanimous decision, Chief Justice William James Millard of the Washington State Supreme Court wrote that the Court entirely disagreed with Adkins, quoted Taft’s and Holmes’s dissents in Adkins, emphasized the Court’s reliance on O’Gorman as the correct precedent concerning freedom of contract, and ruled in favor of Elsie Parrish.77 The legal team for the Cascadian Hotel was shocked, and they appealed to the Supreme Court of the United States, still believing that Adkins was the correct precedent on which to rely.78 The lawyers laid out before the Supreme Court the same simple and direct argument that they had presented in the two earlier trials. The 1913 Washington law regulating minimum wage for women was not different from the Washington D.C. law struck down in Adkins in any substantial way. The ruling in Adkins still stood. Thus, the 1913 Washington law must also be held as unconstitutional.79 In oral argument before the Supreme Court, the lawyers for the Cascadian Hotel stated that “the issue before this Court is simply whether the Adkins case is to be reconsidered and reversed or whether its authority is to be sustained.”80

Animosity Towards the Supreme Court

Elsie Parrish’s case had started to garner national attention by the time it reached the Supreme Court. For both supporters and critics of minimum wage laws there was great confusion surrounding the constitutionality of such laws during the months following Morehead and leading up to Parrish.81 Although Connor did not argue for the overturning of Adkins, the case had essentially spiraled into whether Adkins was still a good precedent or not, and thus, whether or not minimum wage laws would finally be ruled as constitutional by the Supreme Court. As a New York Times article stated, there was “not even the tiniest echo” or hope that Parrish would win, based on Adkins and now Morehead, which had been decided just after Elsie won her appeal to the Washington State Supreme Court.82

Although the public seemed to believe that Parrish would lose, the public also strongly hoped that she would win. The decision in Morehead, in addition to all the other judicial decisions that had struck down New Deal policies, “brought about a barrage of denunciation of the Supreme Court by all hands, including some of the more sober, but progressive, newspapers of the United States, like the New York Times.”83 The media was not exaggerating the public animosity towards the Supreme Court due to its dismissal of New Deal policies because the public confirmed its desire to see New Deal policies survive judicial scrutiny by reelecting Roosevelt in the fall of 1936. President Roosevelt’s renewed desire to establish a national minimum wage in the wake of Morehead was an integral part of his 1936 presidential campaign. Roosevelt won the 1936 election by the greatest electoral margin since the two-party system had been established 80 years prior; he won all but eight electoral votes.84 In his second Inaugural Address on January 20, 1937, Roosevelt declared, “I see millions of families trying to live on incomes so meager that the pall of family disaster hangs over them day by day.”85 He vowed to establish a national minimum wage, and his campaign clearly appealed to the American public.

Additionally, there was strong bipartisan criticism of the decision in Morehead.86 Many members of Congress on both sides believed that it was time to support minimum wage laws because the economic hardships of the Great Depression still persisted, and minimum wage laws were a reasonable way to help millions of struggling Americans.87 The decision in Morehead immediately sparked outrage, as both Democrats and Republicans in Congress “explicitly called for its repudiation” because “the decision was so at odds with current thinking.”88 The American public, the executive branch, and the legislative branch were all against the trajectory of the Supreme Court in regards to minimum wage. As we will see, this extreme negative national attention surrounding the Court’s decisions affected the justices’ thinking as well as Roosevelt’s future actions.

The “Switch in Time That Saved Nine”

The Roosevelt Administration’s court-packing plan has long-dominated the historical discussion surrounding the decision in Parrish.89 As author James C. Duram wrote, “Vast quantities of ink have been spilled in vain attempts to explain Owen J. Roberts’s shift and the Supreme Court’s subsequent acceptance of liberal nationalism in 1937.”90 The colloquial nickname for West Coast Hotel v. Parrish, “the switch in time that saved nine,” originated from a journal article that propagated this court-packing theory as the reason why some justices switched their vote.91 The plan, which was introduced to Congress on February 5, 1937, proposed the addition of six new justices to the Supreme Court, on the basis that the justices were overworked and needed additional help.92 That argument, though, was only a thin cover for Roosevelt’s real reasons: the addition of six new justices who would support New Deal policies. However, there was bipartisan congressional opposition, as well as strong opposition from the American public, to the court-packing plan.93 The Supreme Court unanimously disagreed with the plan and wrote a scathing letter against the concept of court-packing on March 26, 1937.94 Based on records from December of 1936, the Court had already decided to vote in favor of Parrish in Parrish prior to the announcement to Congress of the court-packing plan in February.95 After the decision for the case had been released, the two swing vote justices publicly denied that the court-packing plan influenced their thinking at all.96

However, there is also evidence that the Supreme Court may have known about the plan beforehand. While she avoids specifying the date, Frances Perkins recalled in an oral interview that Justice McReynolds invited her over to a dinner party sometime in the mid 1930s and asked her what Roosevelt’s plan for the court was.97 Perkins maintained that this dinner occurred before she knew about the court-packing plan and thus she would have been unable to tell him about the plan. In the interview, she speculated, though, that Roosevelt had hinted about his plan to other prominent figures in Washington D.C.98 Perhaps members of the Supreme Court did have an early awareness of the tampering that Roosevelt was planning, though likely not. Perhaps whispers of Roosevelt’s plan were already circulating in late 1936 when the justices were deliberating over Parrish. Whatever truth there is to the sensationalized narrative of the “switch in time that saved nine,” the alleged story overshadows the true legal battle of Elsie Parrish, who instigated the lawsuit in the first place. The court-packing narrative places the focus onto the justices and Roosevelt. Instead we must redirect the focus to the women working behind the scenes who produced the lawsuit and much of the New Deal legislation that the Roosevelt administration hoped to pass.

The Verdict

The nine justices sitting on the Court in 1936 were: Louis Brandeis, Pierce Butler, Benjamin Cardozo, Charles Hughes, James McReynolds, Owen Roberts, Harlan Stone, George Sutherland, and Willis Van Devanter. The three liberal-leaning justices, Brandeis, Cardozo, and Stone, were commonly called “The Three Musketeers,” while the four conservative-leaning justices, Butler, McReynolds, Sutherland, and Van Devanter, were commonly called “The Four Horsemen;” Hughes and Roberts were usually swing votes.99 Since the Four Horsemen, with the help of a swing vote or two, had frequently thwarted New Deal policies, Frances Perkins called the four conservative justices “just plain reactionary and against anything that would be forward-looking and progressive.”100

In Chief Justice Hughes’s Court, the justices would convene on the Saturday following oral arguments for each case in order to discuss and cast preliminary votes, so on Saturday, December 19, 1936, eight justices, all except Stone, gathered to discuss West Coast Hotel v. Parrish.101 Justice Stone had not sat for oral arguments since October due to his failing health.102 The two predictable scenarios due to the absence of Stone did not look favorable for the Parrish legal team: either a loss or another iteration of a deadlocked decision like Stettler. If Stone, a member of the liberal Three Musketeers, did not participate in the decision, the result would likely be in favor of the West Coast Hotel Company or perhaps a 4-4 tie if both swing justices joined the liberal side. Although Hughes planned to join the liberal side, the uncertainty of Roberts’s vote and the absence of Stone from the liberal Three Musketeers essentially ensured that the Four Horsemen would maintain a majority or tie; Elsie Parrish would be unable to win.103 The Court would hold the decision until Stone could vote.104 Justice Butler took notes on Chief Justice Hughes’s opening remarks, writing, “Public mind much disturbed—Campaign.”105 All the justices were very aware of the intense public animosity towards the Supreme Court, and clearly they discussed the public sentiment and President Roosevelt’s presidential campaign in the conference on Parrish. The four remaining docket books for the 1936 Term—those kept by Justices Stone, Roberts, Brandeis, and Butler—all indicate that both Hughes and Roberts indicated that they planned to affirm the decision of the Washington State Supreme Court in favor of Elsie Parrish.106 However, the Court would still hold their decision until Stone recovered from his hospital stay. He did, and he cast his vote on February 6, 1937 in favor of affirming the Washington State Supreme Court’s decision, just as predicted.107 The bench now had a 5-4 majority decision planned in favor of Elsie Parrish.

During the discussion in December, Hughes had asked the group, “Should Adkins be overruled?”108 Although neither side had challenged Adkins, the Supreme Court decided to review—and ultimately overturn—its own ruling. Hughes agreed with Taft’s dissenting opinion in Adkins.109 In Morehead Roberts had been the deciding vote against the New York state law because he believed that there had been no substantial difference between the New York law and the Washington D.C. law. Hughes on the other hand had accepted Frankfurter’s attempt to distinguish the two and conveyed his support of the distinction in his dissent.110 After Parrish, Roberts stated that he had rejected Frankfurter’s argument in favor of the New York law only because it proposed that there was a discernible difference between the two, and he believed that there was not a substantial difference to be found.111

However, the situation was different now in Parrish. Hughes was no longer trying to use Frankfurter’s argument and distinguish between the law struck down in Adkins and the law that was currently being challenged.112 Hughes was rallying the Court to reevaluate their interpretation of how due process clauses in the Fifth and Fourteenth Amendments relate to the concept of freedom of contract, and thus review their ruling in Adkins.113 Overturning a precedent is a much more serious and consequential verdict than only tweaking and refining the standing ruling. Nevertheless, the Court handed down their majority opinion in West Coast Hotel v. Parrish on March 29, 1937.114 On behalf of the majority, Hughes wrote: “The violation alleged by those attacking minimum wage regulation for women is deprivation of freedom of contract. What is this freedom? The Constitution does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law.” He continued, saying that “regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process.” If a state enacted minimum wage laws that were reasonable and intended to help the community, it was a constitutionally acceptable restriction on freedom to contract that fulfilled due process. The concept of an inviable freedom to contract did not exist in the Constitution. What did exist, though, is the concept that the government will not infringe upon the “life, liberty, or property” of any person “without due process of law.” Minimum wage had undergone the due process of the law and was now deemed to be constitutionally valid infringement upon liberty. Only 43 weeks after Morehead, the Court reversed that case, overturned its precedent, Adkins, and established for the first time the constitutionality of minimum wage laws for women.

On May 24, 1937, Elsie Parrish finally received the pay that she had sought; she received a grand total of $250.115 Connor, who had taken the case pro bono and never asked the Parrish family for payment, also received a compensation of $151.74.116 After the case, Elsie said, “I am so glad, not only for myself, but for all the women of the state who have been working for just whatever they could get.”117 She was “thankful her fight to test the state minimum wage law will now make it possible for the nation’s millions of hard-working women to receive just payment for the labor they do.”118 After initiating the lawsuit, the Parrishes had relocated to Omak, Washington, about 100 miles north of Wenatchee.119 Both Wenatchee and Omak claimed her as their local hero. On the day the Court released the decision, the Wenatchee Daily World printed five separate articles on Elsie and the case, including a front page feature.120 The Omak Chronicle printed a detailed article about “the local girl” who won a Supreme Court case.121 After the decision, hundreds of cases flooded the Washington judicial system from women who claimed their rightful compensations.122 Life magazine published an article two weeks later about the decision; the caption under Elsie’s photo stated, “A chambermaid brought the case on which the Supreme Court reversed itself. She is Mrs. Elsie Parrish, a grandmother at 37, who used to get $12 a week from her employer.”123

However, not everyone was thrilled for Elsie Parrish and her victory. Justice McReynolds, who had dissented from the majority, walked out of the courtroom when Chief Justice Hughes read aloud the decision to the public in the morning of March 29, 1937.124 Justice Sutherland wrote a passionate dissent, in which he argued for protecting the freedom of contract and respecting women. In his dissent, Justice Sutherland stated, “The ability to make a fair bargain, as everyone knows, does not depend upon sex.”125 As a very vocal and strong early feminist himself, his dissenting opinion appealed to many feminists who correctly saw the new constitutional support for minimum wage laws for women as a reinstatement of the paternalistic protective measures from the 1910s and an infringement on the liberty they had fought for during the suffrage movement.126 While it was quite revolutionary that the Supreme Court upheld the constitutionality of any minimum wage law, in this case specifically, they had decided on the constitutionality of minimum wage laws for women only. Sutherland wrote, “Women today stand upon a legal and political equality with men. There is no longer any reason why they should be put in different classes in respect of their legal right to make contracts.”127 He still believed that there was a constitutional right to contract and that this right must be protected for women and for men alike.128 Ultimately, the decision in Parrish was one step forward for liberal economic policy but at the same time one step back for gender equality.129

III. Frances Perkins

Frances Perkins to the Rescue

While female workers had now gained the economic security afforded to them because of a guaranteed minimum wage, they had simultaneously also lost progress in their advancement of equality between the sexes.130 Frances Perkins, however, had been working on minimum wage legislation for years, watching the cases rise to the Supreme Court, and waiting for the right opening for her New Deal ideas. On the topic of minimum wage, she said, “I believed, and I still believe, that the putting in of a minimum wage law to prevent the fall of wages… and the putting of a ceiling over hours … would help the emergency [of the Great Depression] and would also offer a permanent stability and safety to the whole structure.”131 From a very young age, Frances Perkins had been inspired to enact change. She became involved in advocacy work while still in college, and she dedicated the rest of her life to political service.132 Under Roosevelt when he was the governor of New York, she became the first woman to have a position in the New York government as well as the highest paid woman in public office ever.133 When Roosevelt appointed her to serve as his Secretary of Labor in 1933, men were astonished, for she was both a woman and also not a person of labor.134 When she began serving in her position as Secretary of Labor, she presented to Roosevelt the strong agenda she hoped to accomplish, an agenda that included establishing a national minimum wage.135 She later said, “I realized when I was made Secretary of Labor that we needed [a] national wage.”136

Before Elsie Parrish’s lawsuit against the Cascadian Hotel even began in 1935, lawyers and politicians were already scheming to thwart the ruling of Adkins. Across the country, in New York, a group of pro-minimum wage advocates coalesced in the mid 1920s.137 Felix Frankfurter and Frances Perkins were two of the more influential members in the New York group. They crafted the minimum wage law for women in the State of New York that they hoped would survive the judicial reliance on Adkins.138 Their plan did not quite succeed, however, as the carefully crafted law was still rendered unconstitutional in Morehead. There had been disagreement over whether their strategy should be based on a single sex or gender neutral attempt at minimum wage.139 While Perkins favored an all gender approach, Frankfurter preferred “a women-first policy” because he “wanted to see the courts uphold a single-sex minimum wage” before including men.140 The first bill applied to men, women, and children, although it was more limited in its scope because it applied only to the emergency economic situation of the Great Depression.141 The other bill applied only to women and children, and it did not refer to the “emergency” economic situation; it more closely resembled the minimum wage bill struck down in Adkins.142 Roosevelt, still the governor of New York at the time, ultimately chose the second bill because he believed the Supreme Court would be more likely to approve it than the first bill.143 Frances Perkins recalls, “It was a subsistence wage for women only… it was not a general wage for everybody.”144 The law finally went into effect in 1933, only to be struck down in the decision of Morehead three years later.145

Despite the result of Morehead, Perkins did not lose hope. She correctly believed that the Supreme Court would eventually come around to recognizing that the majority of the nation and elected officials supported minimum wage legislation. She also had an inside angle to the Supreme Court: the wife of Justice Roberts was a very good friend of hers whom she had known since childhood.146 Mrs. Owen Roberts related a story to Perkins about a meeting that Roberts and Hughes had during the summer.147 Chief Justice Hughes and his wife visited Justice Roberts and his wife over the summer while the Court had adjourned, and the two justices had talked for days about new and old cases relating to minimum wage. Perkins confirmed this story with Justice Stone, who said that Hughes and Roberts “had had a talk” and that he believed it “would save the day.”148 Perkins was also quite close with Justice Roberts, not only with his wife. Following the decision of another case in 1936 about child labor in which Roberts unexpectedly voted with Hughes and the Three Musketeers in order to create a liberal majority, Perkins walked over to their house and “threw [her] arms around Owen,” and said to him, “Owen, I am so proud of you …. [a] man of your standing and intelligence and total stature who is not afraid to change his mind.”149 In her interview, she carefully avoided mentioning if she had had any of her own meetings with Roberts in the leadup to Parrish, citing only that she was thrilled to see him start to come around finally regarding minimum wage.150

Perkins renewed her endeavor for a minimum wage again after Morehead. On June 30, 1936, President Roosevelt approved the Walsh-Healey Public Contracts Act, a plan Perkins had kept in her back pocket in case the Court struck down the New York minimum wage law. 

There had been almost no resistance to the bill when it was introduced to Congress in June of the year prior. The Act stipulated a minimum wage and a limit on hours for workers in government contracts only, because the Roosevelt Administration believed that was all they could constitutionally pass for now.151 However, this new Act, although limited in its application, served as “a kind of promise, a kind of earnest good faith that the President would do this type of thing and would go further in this line.”152 It also, for the first time politically and congressionally, redefined the reason for minimum wage: “the cause of labor standards, once promoted to protect women’s health, now served the nation’s economic health.”153 Brandeis’s social and economic for minimum wage argument was rising in prominence. Men, alongside women and children, would benefit from limitations on hours and wages. The Walsh-Healey Public Contracts Act served as a precursor to the Fair Labor Standards Act, “almost like a placeholder until Parrish made its way through the legal system to the Supreme Court.”154

The Fair Labor Standards Act

The Roosevelt administration had already attempted to indirectly regulate minimum wages and hours through a broad bill called the National Industrial Recovery Act, which Congress passed on June 16, 1933.155 The Supreme Court, however, quickly struck it down in a case called Schechter Poultry Corporation v. United States on May 27, 1935.156 Still, Perkins advised Roosevelt to use the concept of minimum wage regulation as a platform in his campaign in the 1936 election. As discussed above, this strategy clearly worked as he won in a landslide reelection. Perkins recalled that part of their platform in the 1936 election was that “the Supreme Court was exceeding its powers, was attempting to run the country, to determine the policies, and the President had been elected to do good to [sic] the people and was trying to do good to [sic] the people, but the Supreme Court wouldn’t let him.”157 The use of the concept of minimum wage during Roosevelt’s campaign, prior to the Parrish decision even, demonstrates how desperately the American public wanted a minimum wage law and also that Perkins knew how to tap into that American sentiment during the crucial 1936 election. This conceptual discussion of minimum wage began to take shape in what would become the Fair Labor Standards Act.

The legal drafting of the future Fair Labor Standards Act had been in progress prior to the decision of Parrish and even the decision of Morehead in 1936.158 After the Court struck down many other New Deal policies, Perkins remarked, “We couldn’t appear futile and helpless, not knowing what to do next, running around like chickens with their heads cut off. We couldn’t be doing that and still go and ask for the votes of the people, the confidence of the people.”159 She knew that governmental control on wages and hours would be a popular idea with the American people, so she and other members in the Roosevelt administration not only used it for political campaigning, but also “proceeded to get wage and hour legislation drafted up.”160 President Roosevelt approved the draft of the FLSA in early 1936.161 After the decision of Morehead, lawyers for the administration warned them that any attempt by the federal government to regulate wages would be prohibited by the Supreme Court.162

The shocking reversal of Adkins and official judicial approval of the constitutionality of minimum wage laws—albeit limited to women—in Parrish enabled Perkins and the Roosevelt administration to enact the Fair Labor Standards Act and gave them hope that this act would pass judicial scrutiny. Many of their attempted New Deal policies had previously been thrown out by the Court prior to Parrish, but when the Supreme Court finished their term at the end of May in 1937, all the New Deal policies which had been challenged were sustained.163 On May 24, 1937, the very day that Elsie Parrish finally received her compensation, Roosevelt delivered a speech titled “A Fair Day’s Pay for a Fair Day’s Work” to Congress. He began his speech by saying, “The time has arrived for us to take further action to extend the frontiers of social progress. Such further action initiated by the legislative branch of the government, administered by the executive, and sustained by the judicial, is within the commonsense framework and purpose of our Constitution and receives beyond doubt the approval of our electorate.”164 The bill was introduced to Congress later that same day.165

Congress held three major joint hearings on the FLSA over the month of June 1937.166 Perkins herself defended the bill adamantly from the very beginning of the hearings and shepherded it through the Congress; in her testimony before Congress, she stated that minimum wage was a “modern, effective, and democratic method of approaching the problem” of economic hardship that the United States had been experiencing since the onset of the Great Depression.167 The Senate passed the bill by a vote of 52 to 28 on July 31, 1937, and although the bill would likely have also passed in the House, some internecine and unrelated fighting over other items on the agenda hindered the bill from reaching consideration for a vote immediately.168 There was also some political disagreement over whether or not the standards for wages and hours should be flexible, how to administer the overall act, and how to enforce prohibitions on child labor.169 However, after ironing out these details, the House eventually passed the bill by a vote of 314 to 9 on May 24, 1938, exactly one year after Roosevelt’s speech and the presentation of the FLSA to Congress.170 President Roosevelt signed the Fair Labor Standards Act into law on June 25, 1938.

The FLSA was highly specific. It established a minimum wage of 25 cents per hour, which would increase to 30 cents in 1939 and then to 40 cents in 1945, as well as maximum working hours of 44 hours a week, which in two years would drop to the current standard of 40 hours a week.171 These regulations only applied to those working in jobs which were considered interstate commerce, meaning that the FLSA only applied to about eleven million workers, or about 20% of the labor force in 1938.172 Although it did not establish a universal minimum wage for all working adults, it was the first successful national law to stipulate a minimum for any American and set up the foundation for broader minimum wage laws in the future.

The Aftermath

After the initial FLSA many following amendments to it broadened the application of the minimum wage provisions, and gradually minimum wage began to apply to more Americans.173 Perkins herself predicted this incremental expansion and rightly believed that establishing some form of governmental standard for minimum wage would eventually increase to cover all Americans.174 Many states as well revived their women-focused minimum wage laws in order to help many women who were not initially covered by the FLSA.175 Some states stipulated an even greater minimum wage than the FLSA prescribed.176 The proposal of the FLSA following Parrish killed the court-packing plan, since the Justices were against it and the Roosevelt administration had accomplished its goal of passing minimum wage legislation.177 The FLSA also survived a legal challenge to it in a Supreme Court case three years after its enactment. In United States v. Darby, the FLSA passed constitutional muster, and the Supreme Court officially upheld it.178 With this decision, the executive, the legislative, and the judicial branches had all demonstrated their support for a national minimum wage. There have not been any more challenges to the constitutionality of minimum wage laws following this case.

As a Washington State historian writes, “Thanks to the ‘constitutional revolution’ Elsie Parrish helped spark, Secretary of Labor Frances Perkins, the nation’s first female presidential cabinet member, got most of her ambitious agenda, including a federal minimum wage, passed.”179 Their joint bottom-up and top-down approaches finally produced a national minimum wage for both men and women. Elsie Parrish, an ordinary working-class grandmother, and Frances Perkins, the highest-ranking women in public office in the United States in the 1930s, together were driving forces in the creation of minimum wage. Additionally, Parrish and Perkins helped to redefine the rationale for a minimum wage: minimum wage should not be a paternalistic and controlling measure, but rather it should be a supportive and social endeavor. By the end of the 1930s, minimum wage laws were seen as an effective measure to ensure economic security to working-class Americans. Elsie Parrish and her husband kept a quiet and low-profile life out in Washington following the highly public decision.180 Perkins continued working with the Roosevelt administration for many more years afterwards, fighting for progressive economic policies.181 Their harmonious life-altering accomplishments rippled through the American economy and are still felt today.

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Acknowledgements

I would like to thank Professor Fronczak for guiding me with the construction of this paper and for helping me navigate my own thinking. I would also like to thank my parents for proofreading this paper and providing feedback. Lastly, I would like to thank my classmates in my Junior Seminar and the many friends with whom that I casually talked about my topic.