Academic journal article Texas Law Review

Justice Roberts and the Constitutional Revolution of 1937-Was There a "Switch in Time"?

Academic journal article Texas Law Review

Justice Roberts and the Constitutional Revolution of 1937-Was There a "Switch in Time"?

Article excerpt

Justice Roberts and the Constitutional Revolution of 1937-Was There a "Switch in Time"? RETHINKING THE NEW DEAL COURT: THE STRUCTURE OF A CONSTITUTIONAL REVOLUTION. By Barry Cushman.[dagger] Oxford University Press, 1998. 320 pages. $55.[double dagger]

Barry Cushman's Rethinking the New Deal Court is less a work of history than a carefully crafted defense brief in a peculiar criminal case. The principal defendant is Justice Owen Roberts, who stands accused of perpetrating the Supreme Court's 1937 "switch in time"-a sudden, politically motivated capitulation to Franklin Roosevelt and the New Deal driven by the twin pressures of the 1936 election and the President's subsequent "Court-packing" plan. The victim is the judicial doctrine of laissez-faire, which dominated the Court's jurisprudence from the late 1890s until the summer of 1936, and which, after 1937, was never heard from again. Arguing for the prosecution in this extraordinary trial is the accumulated wisdom of countless legal scholars, political scientists, historians, and journalists, to whom the basic outline of the "constitutional revolution of 1937" is as familiar as it is certain.

Cushman, like any good defense attorney, adopts a two-pronged strategy. He begins by trying to raise sufficient reasonable doubt about the validity of the conventional account (or, as he puts it, to create "sufficient intellectual space"1) to allow for the possibility of a different explanation. Having done so, at least in a cursory way, Cushman proceeds to provide his own interpretation of events, an enterprise which takes up most of the book. He even provides a kind of surprise twist that even the most theatrical lawyer would envy by claiming that laissez-faire constitutionalism was killed in 1934 rather than 1937; its demise came in Nebbia v. New York2 in an opinion written, ironically, by Justice Roberts. The Court's apparent hostility toward the New Deal during 1935 and 1936, Cushman argues, was largely an illusion; the Justices were guided not by political will but by the impartial application of legal doctrine.

Rethinking the New Deal Court is well written and cogently argued and reveals an admirable understanding of the intricate and interwoven fabric of early twentieth century legal doctrine. Cushman's emphasis on doctrine instead of politics provides a useful reminder that Supreme Court Justices, even when immersed in political controversy, are strongly influenced by legal principles and precedents, and perhaps more tightly bound by existing doctrine than is often assumed. Cushman provides a clear and important discussion of the early and pre-New Deal cases, especially Nebbia v. New York, and offers a refreshing look at the post-New Deal cases, which were far more subtle and complex than many scholars assume. Finally, Cushman's argument serves the important function of forcing those who disagree with him to awake from their complacency and to sharpen their arguments.

Like most revisionists, however, Cushman focuses far too intently on proving his own case. His approach makes for an interesting intellectual exercise, but it is not the way to write history. In the end, Cushman fails to provide either a convincing or a complete account of the New Deal constitutional crisis.

I. Cushman's Case

Cushman begins his book by recounting the well-known story of the constitutional revolution of 1937:

Once upon a time, in the dark days of the Great Depression, there was a great liberal president (Franklin Roosevelt) who fought valiantly against rich and powerful economic royalists in a noble effort to better the lot of the common man and save the country from economic ruin. His plan, which he called the New Deal, enjoyed widespread public support but was repeatedly rejected by the Supreme Court. . . . In the general election of 1936 . . . the American people forcefully repudiated the jurisprudence of the Court's majority and wholeheartedly embraced the constitutional theories of Franklin Roosevelt. …

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