I. The Depression in the West

"We are stricken by no plague of locusts." When President Franklin D. Roosevelt launched a New Deal for the American people with these words in 1933, he meant that human solutions, not divine intervention, would lead the country out of economic troubles caused by human actions. The task did not promise to be easy. At that time, the Great Depression was three and a half years old and unemployment nationally stood at 24.9 percent. The western states were struck particularly hard. As income declined, so did consumption of products from the sale of which westerners derived their livelihoods. Ranchers suffered when per capita consumption of beef and veal fell by 10 percent between 1936 and 1939. Mining income plummeted, and oil production rose only slightly in the West throughout the 1930s.^[1]

The Depression discouraged many potential immigrants from moving to the Far West. Contrary to the images conjured up by writers and artists of Dust Bowl migrants blown westward off their Midwest and Great Plains farms, regional population grew more slowly in the 1930s than

in any other decade since the 1840s. The metropolitan communities that blossomed after World War II had been only small towns in the 1930s: Phoenix numbered 65,000 inhabitants in 1940; Tucson, 37,000; Las Vegas, 8,422. Throughout the 1930s Reno, Nevada's largest city, had only 21,000 residents. The population of the great Pacific Coast cities of San Francisco, Los Angeles, Portland, Seattle, and San Diego stayed steady throughout the 1930s. Only two cities in the Ninth Circuit, San Francisco and Los Angeles, were counted among the top twenty-five urban areas in the United States in 1940. At this late date in the country's development, the West contained only 14 percent of the country's population, even though it made up one-half of the nation's land mass.^[2]

The economy of the western states had developed quickly from the mid-nineteenth century to the Great Depression, but natural resources still comprised their primary source of wealth. The Ninth Circuit states lagged far behind the rest of the country in industrial might as well as population density. Consequently, when the Depression caused a drop in agricultural and ore prices worldwide, the Far West suffered most severely. The region's farmers and miners could do little to counteract the falling prices for their goods caused by the systemic effects of the Depression. The lack of a dense population severely constrained the ability of state and local governments to raise revenues for relief and work programs. The dire experience of Montana in the 1920s served as an extreme example for her sister Ninth Circuit states in the following decade. As wheat, copper, and timber prices had plummeted in the early 1920s, Montanans had learned that they lacked the population base and economic diversity to extract themselves from an economic downturn as harsh as the Great Depression was to be.^[3]

What states such as Montana were unable to do at the state level Roosevelt pledged to try at the national. Roosevelt swept into the White House with a mandate to attack the Depression with federal programs. A combination of economic necessity and political expediency brought the West a higher per capita share of New Deal beneficence than any other region of the country. Nevada garnered the most federal expenditures per capita, at $1,130, with Montana second, at $710. Each Ninth Circuit state surpassed the national average of $224. These programs, which included reclamation projects, agricultural price and support programs, the building of great dams and power plants, and numerous construction projects, resulted in federal expenditure in Ninth Circuit states between 1933 and 1939 of an estimated $7.5 billion.^[4]

Just as the New Deal programs transformed the West, so did the Roosevelt administration usher in significant developments for the Ninth Circuit. By the middle of 1935, Roosevelt had named four of the five judges who sat on the court. These judges came to the bench with a wide array of political and judicial philosophies. Some wholly favored the New Deal; others abhorred it. The court's decisions during this period reveal these differences. In some cases, judges antipathetic to the New Deal found in the judicial process ways to subvert Roosevelt's programs, even when these judges constituted a minority on the court as a whole. Fissures on the Ninth Circuit reflected nationwide disagreement among judges and lawyers about the constitutionality of key New Deal programs. Until 1937, by slender majorities the Supreme Court invalidated many crucial recovery laws. These rulings forced Ninth Circuit judges who favored the president's programs to devise creative ways of avoiding Supreme Court precedent. Analyzing these cases sheds light not only on how the Ninth Circuit's judicial process worked in the 1930s but also on how that process affected substantive developments in the West.

Moreover, the addition of two new judgeships in 1937 brought the court's strength up to seven for the first time and presented Roosevelt with an opportunity to pack the Ninth Circuit with jurists sympathetic to his programs. The two Roosevelt chose were Albert Lee Stephens of Los Angeles and William Healy of Boise, Idaho. Born in Indiana on January 25, 1874, Stephens attended public schools before graduating with the LL.B. degree in 1903 from the University of Southern California and taking up the practice of law. In 1906, Stephens began a long career in public service that included stints as justice of the peace in Los Angeles (1906–1910), member of the Civil Service Commission of Los Angeles (1911–1913), Los Angeles city attorney (1913–1919), judge of the California superior court (1920–1932), associate justice of the district court of appeals (1932–1933), and then presiding justice (1933–1935). President Roosevelt appointed Stephens as United States district judge for the southern district of California in 1935, the position from which he was elevated to the Ninth Circuit in 1937.^[5]

A lifelong Democrat, Stephens was an early backer of Woodrow Wilson. Legend has it that Stephens played a prominent, if well-concealed, role in the 1916 reelection of Wilson over Charles Evans Hughes. While Hughes was stumping in the Los Angeles area, Stephens contrived to take newsmen on a tour of Hollywood. Hughes went on to Long Beach unaware that Governor Hiram Johnson was staying there. As Chief Judge Richard Chambers told the story at a memorial for

Stephens in 1965, "Somehow the non-sympathetic newspapermen got back to Long Beach [and] the sympathetic newspapermen who might have given Mr. Hughes the good advice to go see the governor never reached there. Thus, the famous snub occurred which supposedly elected Woodrow Wilson."^[6]

The second new member to the court was William Healy of Idaho. Born September 10, 1881, in Windham, Iowa, Healy graduated in 1906 with an A.B. degree from the University of Iowa. Two years later he received the LL.B. degree from the Iowa Law School and gained admission to the Idaho bar that same year. After engaging in private practice for many years, Healy served as general counsel for the Farm Credit Administration in Spokane, Washington, from 1934 to 1937. He was prominent in state affairs, serving as a member of the legislature in 1913–1914, as a member of the state board of education and board of regents of the University of Idaho from 1917 to 1920, and as a delegate to the Idaho Constitutional Convention in 1933.^[7]

Healy and Stephens joined a group of judges who generally backed the president's programs on appellate review. For Garrecht, Denman, Haney, Stephens, and Healy, the dire economic circumstances of the country affected their analysis of Congress's power to legislate recovery through regulation of commerce and of agency efforts to administer congressional directives. Discussions of the prevailing economic conditions fill their opinions. Wilbur viewed Congress's power much more restrictively even in the midst of crisis, as apparently did Mathews, who routinely voted against the New Dealers' position but rarely wrote to explain why. For these two judges, law had a more static quality: it was to be guided by enduring principles rather than by the exigencies of the moment. These fundamental differences of opinion underlay the court's handling of most of the legal problems emanating from the Depression. Not unlike their Ninth Circuit predecessors, who debated the proper role of the court in adjudicating the diverse issues posed by natural resource development and Prohibition, the New Deal-era judges disagreed on fundamental principles of constitutional law and statutory interpretation.

In both eras, the Ninth Circuit's decisions mattered a great deal, even to people who had only the vaguest notion of the court's existence. The court's rulings on New Deal programs, like those on natural resource controversies a generation earlier, proved that for a vast array of intermediate-level disputes, the circuit court of appeals contributed greatly to regional development. True, not many of these disputes formed the

factual basis for decisions of enduring constitutional significance, and the most important of such cases would be superseded on appeal to the Supreme Court. But the Ninth Circuit decided numerous cases that had social and economic importance for the people of the region it served.^[8] Cases across the spectrum of New Deal efforts, from agriculture to emergency recovery legislation, labor relations, and public works, confirm the court's important role in the assault on the Great Depression. These cases also highlight how the court itself was changing as an institution.