Administrative Law in the 1930s: The Supreme Court's Accommodation of Progressive Legal Theory
Tushnet, Mark V., Duke Law Journal
In the first decades of the twentieth century, Progressive politicians and legal theorists advocated the creation and then the expansion of administrative agencies. These agencies, they argued, could address rapidly changing social circumstances more expeditiously than could courts and legislatures, and could deploy scientific expertise, rather than mere political preference, in solving the problems social change produced. The proliferation of administrative agencies in the New Deal--the SEC, the NLRB, and others--meant that defending administrative agencies from close judicial oversight became intertwined with defending the New Deal itself. In a series of contentious cases decided by the Hughes Court, Progressives believed that they had suffered loss after loss. And, counting only outcomes, they had. Yet by the end of the decade, the Court had moved administrative law closer to the position the Progressives had sought. This Lecture examines developments in administrative law in the 1930s. Focusing on three major cases during that decade, this Lecture describes how far administrative law adapted to the vision articulated by Progressive scholars, most notably Felix Frankfurter and James Landis. In each case, Progressives believed that the Court had substantially eroded the accomplishments of administrative law; but in each, Progressives were mistaken. And whereas the Progressives failed to acknowledge how much they had gained from the Supreme Court during the 1930s, by the end of that decade, their opponents better understood what had occurred and mobilized political support to retrench. Only a presidential veto stood in the way of a substantial revision of administrative law. That veto, though, allowed modern administrative law to adapt to the changing place of administrative agencies in the modern administrative state.
TABLE OF CONTENTS Introduction I. Progressives and Administrative Law: The Scholarly View of Administrative Agencies A. Felix Frankfurter and James Landis on Administrative Law B. I.L. Sharfman on Administrative Law in the Interstate Commerce Commission C. Freund and Dickinson on Administrative Law: Review of Law and Review of Facts D. A New Vision Begins to Emerge E. Summary II. The Courts' Role in Administrative Law A. Background: Administrative Law to 1930 B. The Supreme Court Weighs In: The St. Joseph Stock Yards Case C. The SEC as a "Star Chamber"? D. The Morgan Cases E. Looking Backward and Forward from 1940 III. Administrative Law Outside the Supreme Court Conclusion
Between 1900 and 1930, Progressive politicians and legal theorists advocated the adoption and then the expansion of administrative agencies. These agencies could address rapidly changing social circumstances more expeditiously than could courts and legislatures, and could deploy scientific expertise, rather than mere political preference, in solving the problems produced by social change. The Supreme Court initially was skeptical about the proposition that the new administrative state could fit easily into the American constitutional order. But by the time Charles Evans Hughes became Chief Justice in 1930, the Court had accommodated the administrative state, in part because the advocates for administrative agencies tempered their claims out of the prudential concern that seeking too much would lead the Court to reject the administrative state entirely.
Yet Progressive legal theorists never fully abandoned their defense of what Roscoe Pound pejoratively called "administrative absolutism," and the economic crisis that began in 1929 gave them the opportunity to press aggressively forward. The proliferation of administrative agencies in the New Deal--the Securities and Exchange Commission (SEC), the National Labor Relations Board (NLRB), and more--meant that defending administrative agencies from close judicial oversight became intertwined with defending the New Deal itself. …