Today, Supreme Court invalidation of federal laws or regulations may seem like an annual occurrence. It is simply part of implementing a new federal policy – the policy will be legally challenged by those who oppose it. However, this is a fairly modern development in the civic history of the federal judiciary.

Nearly 100 years ago, in April 1923, the U.S. Supreme Court struck down a law enacted by Congress to set a minimum wage for women and children working in the District of Columbia. The opinion, authored by Sutherland Institute’s namesake, Justice George Sutherland, struck down the law as a violation of the Fifth Amendment to the U.S. Constitution. (Sutherland remains the only Supreme Court justice from Utah.)

The law had been challenged by the D.C. Children’s Hospital, which employed “a large number of women in various capacities, with whom it had agreed upon rates of wages and compensation satisfactory to such employees, but which in some instances were less than the minimum wage.” The other plaintiff was

a woman twenty-one years of age, [who] was employed by the Congress Hall Hotel Company as an elevator operator, at a salary of $35 per month and two meals a day. She alleges that the work was light and healthful, the hours short, with surroundings clean and moral, and that she was anxious to continue it for the compensation she was receiving, and that she did not earn more. Her services were satisfactory to the Hotel Company, and it would have been glad to retain her but was obliged to dispense with her services by reason of the order of the board and on account of the penalties prescribed by the act. The wages received by this appellee were the best she was able to obtain for any work she was capable of performing, and the enforcement of the order, she alleges, deprived her of such employment and wages. She further averred that she could not secure any other position at which she could make a living, with as good physical and moral surroundings, and earn as good wages, and that she was desirous of continuing and would continue the employment but for the order of the board [responsible for setting the minimum wage].

Justice Sutherland’s opinion described the role of the court:

if, by clear and indubitable demonstration, a statute be opposed to the Constitution, we have no choice but to say so. The Constitution, by its own terms, is the supreme law of the land, emanating from the people, the repository of ultimate sovereignty under our form of government. A congressional statute, on the other hand, is the act of an agency of this sovereign authority, and, if it conflict with the Constitution, must fall; for that which is not supreme must yield to that which is. To hold it invalid (if it be invalid) is a plain exercise of the judicial power — that power vested in courts to enable them to administer justice according to law.

This was a fair statement of the concept of judicial review going back to the 1790s. As historian Gordon Wood explained, however, in the earlier period striking down a law “remained an extraordinary and solemn political action … something to be invoked only on the rare occasions of flagrant and unequivocal violations of the Constitution. It was not to be exercised in doubtful cases of unconstitutionality and was not yet accepted as an aspect of ordinary judicial activity.”

That this sentiment was widely held is confirmed by statistics showing that judicial invalidation of acts of Congress was quite low until the post-Civil War period. A significant increase in the number of laws struck down by the court began at the outset of the 20th century.

Indeed, the decision by Justice Sutherland found that any interference with the right of an employer and employee to negotiate a contract “can be justified only by the existence of exceptional circumstances.”

The opinion relied on a 1905 decision, Lochner v. New York. This decision invalidated a New York law prohibiting bakers from working more than 60 hours a week or 10 hours a day, on the grounds that the law violated a right of workers to enter into contracts with their employers without interference implied in the protection of “liberty” in the 14th Amendment.

The right-of-contract cases contributed to a more active role for the Supreme Court in reviewing and striking down acts of Congress, but the doctrine was not to last.

During the Great Depression, the court came under pressure to back away from its expansive protection of economic rights. President Franklin Roosevelt even promoted an effort to add additional justices to the court, hoping to break the pattern of defeat suffered by the administration in a number of court challenges to New Deal economic legislation.

That effort failed in 1937; much of its momentum had disappeared after the court upheld a number of administration initiatives. One of the justices who had earlier joined the opinions striking down New Deal legislation, Justice Owen Roberts, joined the new decisions upholding the laws. Roberts’ change of heart was characterized as “the switch in time that saved nine” (i.e., saved the court from being expanded to more than nine members).

In West Coast Hotel v. Parrish, in 1937, the Supreme Court overruled Sutherland’s decision and upheld a Washington minimum wage law for women. It would be some time before the court would reenter the business of actively exercising the power of judicial review.

The fluctuation in the frequency of judicial review by the Supreme Court during the 20th century illustrates the evolving civic history of the court. What was infrequent in the past can become commonplace practice in the present, only to be relegated to occasional practice in the future. Where the civic history of Congress and the presidency can be seen as the swinging of a political pendulum, the history of the Supreme Court can be seen as the swinging of a pendulum of legal philosophy and practice.

This is an important feature of federal jurisprudence to keep in mind when new rulings come out regarding a federal law or regulation. Rather than being the latest in an unending and unbroken line of future liberal or conservative judicial thinking, what is the norm today may become only an occasional thing in the future. That is the nature of judicial review, because it is the nature of the court itself.