United States v. Carolene Products Company

Petitioner
United States
Respondent
Carolene Products Company
Petitioner's Claim
That congressional legislation outlawing the shipment of adulterated milk wasa constitutionally permissible regulation of interstate commerce.
Chief Lawyers for Petitioner
Homer S. Cummings, Brien McMahon
Chief Lawyer for Respondent
George N. Murdock
Justices for the Court
Hugo Lafayette Black, Louis D. Brandeis, Pierce Butler, Charles Evans Hughes,Owen Josephus Roberts, Harlan Fiske Stone (writing for the Court)
Justices Dissenting
James Clark McReynolds (Benjamin N. Cardozo and Stanley Forman Reed did not participate)
Place
Washington, D.C.
Date of Decision
25 April 1938
Decision
Congressional regulation of "filled milk" was held to be constitutionally permissible.
Significance
The Supreme Court's decision in United States v. Carolene Products Company marked a significant change in its thinking about when and in what typeof cases it would review the constitutionality of federal legislation. What began as a spat over filled, or adulterated milk became the occasion for a substantial rethinking of judicial review. Justice Harlan Stone's famous footnote in this case has sparked voluminous legal debate over the ensuing decades.
A Dispute over Filled Milk
In 1923, Congress passed the "Filled Milk Act," a law which banned the shipment of "skimmed milk compounded with any fat or oil other than milk fat, so asto resemble milk or cream." It acted under its constitutional authority to regulate interstate commerce, in hopes of preventing the distribution of whatit called an "adulterated article of food, injurious to the public health." The Carolene Products Company of Illinois was indicted under the law after itattempted to market a product called "Milnut," a flavorful combination of condensed skimmed milk and coconut oil designed to seem like condensed milk or cream. The company protested the indictment, arguing that the Filled Milk Actexceeded Congress' authority to regulate interstate commerce and deprived thecompany of its property without due process. The District Court for SouthernIllinois ruled in favor of the Carolene Products Company, prompting the United States to appeal the case to the U.S. Supreme Court.
High Court Rules
On 25 April 1938, the Supreme Court issued its decision. By a vote of 6-1, with two justices not participating, the Court overturned the lower court decision and ruled in favor of the United States. Justice Stone delivered the opinion of the majority, with Justice James McReynolds the lone dissenter.
In presenting his argument, Justice Stone first outlined the parameters of Congress' ability to regulate interstate commerce. Quoting an earlier case, Stone determined that that power is "complete in itself, may be exercised to itsutmost extent, and acknowledges no limitations, other than are prescribed inthe Constitution." With regard to the specifics of the case at hand, he concluded: "The prohibition of the shipment of filled milk in interstate commerceis a permissible regulation of commerce"--provided, in his view, that FifthAmendment due process protections were observed.
Stone and his fellow justices found no violations of due process in the Congress' actions. In fact, Stone concluded, the prerogatives of due process had been scrupulously followed:

The Filled Milk Act was adopted by Congress after committee hearings, in the course of which eminent scientists andhealth experts testified. An extensive investigation was made of the commerce in milk compounds in which vegetable oils have been substituted for naturalmilk fat, and of the effect upon the public health of the use of such compounds as a food substitute for milk.

Stone then turned his attention to a consideration of when and how the Courtought to review congressional laws like the one it had been asked to rule onhere. In doing so, he acknowledged Congress' attempt to "red flag" the issueof filled milk by defining it in the statute as a threat to public health. But he declared that the Court would have been inclined to find in its favor "even in the absence of such aids" because

the existence of facts supporting the legislative judgment is to be presumed, for regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless in the light of the facts made known or generally assumed it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators.

This doctrine gave Congress wide latitude to regulate in commerce cases like the one at issue here.
Stone expanded on these ideas in a footnote to his opinion that has become one of the hallmarks of modern American jurisprudence. In the famous "footnotefour," Stone suggested that there may be circumstances in which the Court must exercise a more rigorous form of judicial review, known in legal circles as"strict scrutiny." He named three specific types of cases in which this narrower presumption of constitutionality should prevail. First, he urged specialjudicial review in cases where "legislation appears on its face to be withina specific prohibition of the Constitution, such as those of the first ten Amendments." Second, he cited cases of "legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation," such as voting rights and freedom of assembly cases. Finally, and most importantly for the course of American law, he called for heightened review of cases where "prejudice against discrete and insular minorities" may tend "to curtail the operation of those political processes ordinarily to be relied upon to protect minorities." In essence, Stone was creatinga hierarchy of cases, each with its own standard of judicial review. Commercial regulation cases would be viewed with the least amount of scrutiny, because it was to be assumed that the legislators were acting with good reason unless there was clear evidence to the contrary. Cases involving the curtailmentof political liberties or discrimination against religious or ethnic groups,values at the heart of a democratic society, were accorded the most intense scrutiny the Court could provide.
Debate and Dissent
Stone's doctrine came to be known as the "preferred freedoms" doctrine and sparked much legal debate. Even among the justices there was disagreement on both sides. Justice McReynolds dissented from the opinion entirely, while Justice Black refused to concur in the provisions of footnote four. He would havegone further than Stone in presuming the constitutionality of all laws passedby Congress. Later scholars debated the meaning of the phrase "discrete andinsular minorities" and argued over whether whites, gays, and other groups claiming discrimination could demand strict scrutiny under this doctrine.
Impact
The impact of the Supreme Court's decision in United States v. Carolene Products Company went well beyond the regulation of an obscure milk product. Stone's "preferred freedoms" doctrine established new parameters for judicial review of federal legislation. The Court continues to struggle with the question of when and with what level of scrutiny to intervene in cases involving the lawmaking power.
Related Cases

• United States v. Lowden, 308 U.S. 225 (1939).
  
• Katzenbach v. McClung, 379 U.S. 294 (1964).
  
• United States v. Bass, 404 U.S. 336 (1972).
  
• Sugarman v. Dougall, 413 U.S. 634 (1973).