Although a good deal of progressive legislation had met the test of judicial review during the administrations of Taft and Wilson, the tide turned starting in about 1919 and thereafter decisions of the Supreme Court took a decidedly conservative, perhaps reactionary, direction. In its 1923 decision Adkins v. Children`s Hospital, the U.S. Supreme Court ruled that Congress had acted unconstitionally in establishing a Minimum Wage Board to ascertain and fix sufficient wages for women employees in DC.
The Court applied the Fifth Amendment prohibition against the deprivation of life, liberty or property without due process. By a vote of 5 to 3, the court concluded that Congress had interfered with the freedom of employer and employee to contract however they pleased. Writing in dissent, justices William Howard Taft, Sanford and Oliver Wendell Holmes stated that the Fifth Amendment should not be interpreted as interfering with reasonable legislation to overcome recognized evils.
In discussing the decision, Justice Sutherland gave a cogent description of the principle of judicial review, but his decision to apply the Fifth, Fourteenth, and even the Nineteenth amendments against the constitutionality of the legislation reflected the conservative view of the court between the Progressive Era and the New Deal.
An interesting feature of Sutherland`s opinion is his commentary on the status of women. Referencing an earlier court decision (the Muller Case), he remarked:
In view of the great -- not to say revolutionary -- changes which have taken place since that utterance, in the contractual, political, and civil status of women, culminating in the Nineteenth Amendment, it is not unreasonable to say that these differences have now come almost, if not quite, to the vanishing point.
Adkins was explicitly overturned by the Supreme Court`s ruling in the West Coast Hotel Co. v. Parrish case in 1937.