United States v. Carolene Products (1938)
Introduction
The Constitutional Revolution of 1937 brought to an end the Supreme Court’s granting of special favor to property rights and economic liberty. 1938 would bring a pivot toward a jurisprudence that would safeguard new categories of individual and personal rights. The story of that pivot, through a seemingly stray footnote embedded in a rather pedestrian case, revealed the power of a single justice with a forward vision to reshape the Court’s jurisprudential priorities for the long term.
What is Filled Milk Anyway?
U.S. v. Carolene Products on its face was a rather mundane and seemingly unremarkable case involving the regulation of filled milk. Filled milk was a popular product in the early 20th Century, when a shortage of refrigeration and inefficient means of transportation rendered liquid milk a rarity. It involved removing the butter fat of whole milk and instead fortifying it with fats from sources other than that from dairy cows, usually vegetable or coconut oils. Because the butter fat could be sold separately, the makers of filled milk were able to sell it at a significantly lower price. Unlike milk from cows, it was shelf stable and did not need to be refrigerated. That, along with the price of filled milk, made it a popular alternative to traditional dairy for poor and working-class Americans. Thus did it represent a serious challenge to dairy farmers, who wielded significant political clout at the time.
The dairy industry undertook a successful lobbying effort to convince Congress to ban filled milk. The Filled Milk Act of 1923 prohibited the sale or shipment in interstate commerce of “skimmed milk compounded with any fat or oil other than milk fat.” The statute was undoubtedly an act of protectionism for dairy farmers, favoring them over consumers. A congressional committee reported that filled milk lacked vitamin A and was less “desirable for feeding infants and nursing mothers” than dairy milk. But while filled milk perhaps lacked the nutritional value of whole milk, it had been deemed safe for consumption and was accurately labeled and marketed to set it apart from traditional milk. In other words, the law could not be honestly characterized as a genuine health regulation.
Carolene Products produced something called Milnut, which was a mix of skimmed condensed milk and coconut oil. Filled milk made of coconut oil had become especially popular, since it could be imported cheaply from the Philippines, which was under American control at the time. Carolene Products refused to take the ban on its goods sitting down. It knowingly moved the product across state lines in order to generate a test case to challenge the statute. The company was indicted for selling and shipping “an adulterated article of food, injurious to the public health” across state lines. In its defense, Carolene Products argued that the statute violated the due process clause by depriving it of its property without due process of law.
The trial court which heard the case sided with Carolene Products, concluding that the law represented a form of illegitimate protectionism more than any kind of health or safety regulation. As a result, it ran afoul of the due process and takings clauses of the Fifth Amendment. And because Congress’ ban threatened both the product’s shipment in interstate commerce and its viability within states where Carolene Products did business, the Court determined that it also exceeded Congress’ power over interstate commerce. When several other lower courts heard similar challenges to the statute and reached conflicting outcomes, the Supreme Court granted review to the government’s appeal from the adverse decision in the Carolene Products case.
A Court in Transition Hears the Case
By the time the appeal reached the High Court, FDR’s remaking of the Court was well underway. Several changes to the composition of the Court had assured the entrenchment of the pro-New Deal Constitutional Revolution of 1937. The laissez-faire-minded Four Horsemen had been reduced to a rump presence on the Court, with only Justices Butler and McReynolds remaining. Justices DeVanter and Sutherland were gone, replaced by Hugo Black and Stanley Reed, respectively. The aims of FDR’s packing of the Court were evident in the profiles of his new justices. Justice Reed had served as Roosevelt’s solicitor general from 1935 to1938, during which time he represented the administration in defending a slew of major New Deal initiatives before the Court. Black had served in the U.S. Senate, and in that role, had voted uniformly in support of some two dozen major New Deal programs. In short, there was little doubt which way the new justices would tilt, and the Court with them.
There now existed a decisive majority on the Court that was decidedly deferential to Roosevelt’s expansive federal economic program. By 1938, the Court had abandoned any presumption in favor of economic liberty. The economic substantive due process rights of Lochner were a dead letter, and the Court had turned the corner on the question of the limits of the power to regulate interstate commerce, essentially giving Congress a free legislative hand. Carolene Products had little chance of convincing the Court that the statute unreasonably or arbitrarily deprived it of its property. As expected, the Court ruled by a 6-1 vote in favor the government. (Only seven justices heard the case, with Justice Reed recusing himself, and Justice Cardozo seriously ill.)
The Majority Opinion
Justice Harlan Fiske Stone penned the opinion reversing the district court holding that had struck down the law. In so doing, he cited the new presumption of constitutionality of regulatory laws that dealt with “ordinary commercial transactions,” provided the regulation had “some rational basis within the knowledge and experience of the legislators.” The economic regulations embodied in the Milk Act were "presumptively constitutional" under the rational basis test. Since Congress had held hearings on the supposed public health effects of filled milk, the passage of the act was “an appropriate means of preventing injury to the public” within the legislative discretion of Congress. Questions of adequate product labeling or the suitability of a ban on interstate commerce were matters “for the legislative judgment, and not that of courts.” It was not for the Court to inquire further into the legitimacy or appropriateness of Congress’ concerns.
Had Stone ended his opinion there, the case would not warrant inclusion in the Supreme Court’s historical highlight reel. But Stone did not stop there, instead dropping a lengthy footnote in the opinion. In what would come to be known simply as “footnote 4” the note would also rightly be regarded as the most important footnote in constitutional history, launching a new methodology for Supreme Court rights jurisprudence that continues to the present.
The Court, having conclusively done away any presumption in favor economic or property liberties, Stone now set forth his vision of those rights that might be entitled to special protection. With the presumption in favor of constitutionality around economic regulations settled, Stone reflected on laws where the presumption of validity might be set aside. There were three such categories he identified.
First Stone contended that “there may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the Fourteenth. . .” In other words, the Court was compelled to consider the nature of the right at issue. Regulations that appear on their face to violate those rights explicitly enumerated in the Constitution are not entitled to favored treatment (in contrast to laws impacting economic liberty). If a law were to run afoul of the first ten amendments, the burden would shift to the government to justify its infringement on that enumerated right. Moreover, Stone gave credence to the doctrine of incorporation, by which at least some of the Bill of Rights would similarly be applied to states as well as the federal government.
A second category where there would be no presumption of constitutionality would include “legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation . . .” Stone provided examples of such legislation; laws that amount to “restrictions on the right to vote,” “restraints upon the dissemination of information,” “interferences with political organizations,” or “prohibition[s] on peaceable assembly” would be subject to “more exacting judicial scrutiny” than normal regulatory laws. Stone argued that it was crucial for the Court to give special attention to laws that might impede access to the democratic process by which claims could be asserted and rights protected.
Stone envisioned a third category of legislation that might “call for a correspondingly more searching judicial inquiry.” Statutes that were directed at particular religious, national, or racial minorities or reflected particular “prejudice against discrete and insular minorities” would likewise lose any presumption of constitutionality, and would trigger the more exacting level of scrutiny. Such statutes might well tend to “seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities”, and should be treated with skepticism.
In the end, Stone was positing a judicial approach by which laws would generally be presumed to be constitutional unless they (1) affected a right specifically enumerated in the Constitution, (2) impeded the political process, or (3) targeted what Stone termed a “discrete and insular minority.” Since the Filled Milk Act did none of the three, it was entitled to a presumption of constitutionality.
There were no dissenting opinions. The irrelevancy of the Four Horsemen was apparent; Justice McReynolds stood alone in voting against the statute. Moreover, he simply cast a dissenting vote, without an accompanying dissenting opinion. In only two years, McReynolds had moved from a member of majorities consistently striking down the New Deal to the role of stubborn dissenter. He wrote close to a hundred dissenting opinions in opposition to New Deal programs. In casting a nay vote in Carolene Products without writing, McReynolds may have realized the futility of once more raising his point of view. Or his idle pen may simply have marked a form of silent protest against a mode of constitutional practice that no longer gave credence to constitutional rights that were economic in nature.
The Significance of Footnote 4
The importance of footnote 4 is hard to overstate. It introduced a theory of constitutional law that would come to dictate the Court’s approach to reviewing questions of constitutionality around governmental action. After Carolene Products, the Court began to employ varying degrees of scrutiny depending on the nature of the right under consideration. Regulatory action impacting economic rights, as well as most other normal regulatory acts would enjoy a presumption of constitutionality; this came to be known as rational basis or minimum scrutiny, and most always assured that governmental action would pass constitutional muster (such as it was). In other words, the government would get the benefit of the doubt when laws restricted those liberties not expressly enumerated in the constitutional text.
But the presumption would be reversed where laws impinged on those rights expressly stated in the Bill of Rights or which fit within the other categories Stone articulated in the footnote. In such cases, government action would be subjected to strict (or maximum) scrutiny. This meant that laws, to survive, had to clear the high bar of strict scrutiny; the standard demanded a law narrowly tailored to further a compelling government purpose. Over time, the presumption of unconstitutionality came to be characterized as “strict in theory, fatal in fact,” since in most cases it would prove to be unrebuttable. Eventually, a third level of scrutiny, that of intermediate (or heightened) scrutiny, would be introduced to the mix.
The tiers of scrutiny arising from footnote 4 have been the subject of extensive commentary over the decades, much of it highly critical. Those critiques are well beyond the scope of this particular essay. But as this series continues to explore high profile rights cases from the Court’s modern era, such criticisms will surface. For some critics, the classification of a right as warranting strict or rational basis scrutiny is overly rigid, proving to be ultimately determinative of the outcome. For others, the complaint is the opposite; they deem a sliding scale of tiers of scrutiny as an overly elastic mode of analysis that permits justices to dress up outcome-based jurisprudential reasoning. To quote one contemporary detractor, Justice Neil Gorsuch has worried that levels of scrutiny “do more to obscure than to clarify the ultimate constitutional questions.”
A Postscript
Justice Stone, who drafted footnote 4, was a nominal Republican, appointed to the Court in 1925 by one-time college friend President Calvin Coolidge. Yet he stood well apart from other Republican appointees on the Court, in particular the laissez-faire-minded Four Horsemen. Stone’s more moderate northeastern sensibilities led him to side regularly with liberal Justices Brandeis and Cardozo, the trio whose consistent support for state and federal economic regulations earned them the nickname of the “Three Musketeers.” The motivation for Stone’s inclusion of footnote 4 could be traced to his growing concerns over the bigotry and discrimination in the South that manifested itself in lynching and other forms of racial violence. Stone confided in others his deep alarm over those developments, and with the assistance of his law clerk Louis Lusky (who was Jewish), he drafted footnote 4 as a legal response.
Stone hardly anticipated that the footnote would have the definitive impact that it did. According to his law clerk, the footnote was meant to spark dialogue and debate among the members of the Court around the future of its jurisprudence on rights. The qualifying language Stone utilized to introduce his second and third categories suggested he was positing the ideas for deliberation among his brethren on the Court. Instead, the footnote garnered no serious response from others on the Court, either in agreement or dissent. It simply took on a life of its own, becoming a centerpiece of constitutional law for the next ninety years. Two years after Carolene Products, Stone would be elevated to the seat of Chief Justice of the Court. His tenure as Chief was less than five years. On April 22, 1946, Stone was taken ill while reading a dissent in open court; he passed away later the same day from a massive cerebral hemorrhage.
Charles Hauser was the President and founder of Carolene Products. He did not accept the Supreme Court’s 1938 decision quietly. He spent a weekend in jail, only to be later pardoned by President Roosevelt. He kept his business alive by limiting sales to those states in which he had factories, thus avoiding the ban on interstate trade. He also spent subsequent years, and hundreds of thousands of dollars, on continuing legal challenges to the law. Eventually, Carolene Products would give way to a successor corporation known as Milnot Company. A federal district court in 1972 ruled in Milnot Co. v. Richardson that the act was unconstitutional on the grounds that filled milk was a safe product and as such, the Filled Milk Act was a violation of due process. The U.S Department of Agriculture ceased enforcement of the statute, freeing most states to abandon their restrictions on the product. By the time the 1972 decision came down, Charles Hauser was 92 years old and in too feeble in health to appreciate the victory. Milnot Company’s filled milk continues to be widely available in U.S. supermarkets under the Eagle Brand.
