Academic journal article The Journal of Southern History

Rethinking the New Deal Court: The Structure of a Constitutional Revolution

Academic journal article The Journal of Southern History

Rethinking the New Deal Court: The Structure of a Constitutional Revolution

Article excerpt

Rethinking the New Deal Court: The Structure of a Constitutional Revolution. By Barry Cushman. (New York and Oxford: Oxford University Press, 1998. Pp. xii, 320. Paper, $124.95, ISBN 0-19-512033-7; cloth, $55.00, ISBN 0-19-511532-5.)

This study of Supreme Court decision making rejects the standard interpretation of the New Deal as a revolution in constitutional law necessitated by conservative judicial opposition to modern liberalism. In the received view, Franklin D. Roosevelt sprang his Court-packing plan on Congress and the country in order to dislodge the judiciary from its attachment to economically outdated and politically discredited laissez faire legalism. Surprisingly, given Roosevelt's reputation for political genius, the plan backfired and was killed by bipartisan opposition in Congress. Nevertheless the Supreme Court got the message FDR was trying to send and in March 1937 started to decide cases favorably to the New Deal.

Cushman's refutation of this historical orthodoxy proceeds in two stages. First, he gives a detailed account showing the instantaneous and widespread opposition to the Court plan. Cushman convinces the reader that the Court had nothing to fear from the president's ill-conceived and cynical scheme. Having demolished the standard interpretation, Cushman argues, second, that no revolution in constitutional law occurred in 1937. In fact the Supreme Court, over the previous forty years, gradually abandoned the system of laissez faire jurisprudence as the judges came to realize it was no longer consistent with social realities. When this fact became unmistakably clear during the Great Depression, the Court, when presented with the right fact situations, rejected the laissez faire legal system. …

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