1936, Supreme Court Opposition To New Deal Laws – Guest Essayist: Horace Cooper

 

The United States Supreme Court and the New Deal

Many a law student is familiar with the line, “A switch in time, saved nine.”  It refers to the actions of Chief Justice Charles Evans Hughes and Justice Owen J. Roberts – Supreme Court justices who switched their votes from holding the legislative program of President Franklin Delano Roosevelt unconstitutional to joining the “political deference” team of Harlan F. Stone, Louis D. Brandeis and Benjamin N. Cardozo to approve FDR’s proposals.

Why did it save nine?  Because it ended FDR’s efforts to directly emasculate the federal judiciary.  At the same time, the switch ultimately undid the existing Constitutional order.

After four years of the Supreme Court striking down the measures pursued by his administration to respond to the nation’s worst economic downturn – what would be later deemed the Great Depression by historians — President FDR pursued an attack on the Supreme Court that was as audacious as it was unprecedented.  While critics called the plan “court-packing”, his proposal would allow him to remake the federal judiciary into a rubber stamp adjunct of his administration.  The plan would allow him to appoint up to 6 new Supreme Court justices and 44 new judges in the federal circuits and lower courts.

Instead of acknowledging the legitimate precedents and role that distinguished members of the Supreme Court played in protecting the Constitution and thereby the rights of the American people, FDR insinuated that “A lower mental or physical vigor leads men to avoid an examination of complicated and changed conditions,” pretending that the problem was senility or rigidity.

How could this happen?

First a little history.  Many Americans take for granted the near total dominance that the federal government plays in our lives.  Even though ostensibly we have a Constitution that grants defined and limited powers to the Federal government, Americans today live in a political realm very different from the one our founders contemplated.  Instead of a Constitutional order with only a few specific limitations such as provided for in the Bill of Rights and other provisions of the Constitution, our system use to presume that unless identified and specially authorized, the Constitution didn’t give broad power to the national government.

If Congress wanted to regulate, subsidize or ban activity, the Courts required Congress and the President to identify which granted power they were exercising and if they couldn’t the laws would likely be held unconstitutional.   This proved particularly a challenge to President Roosevelt who used America’s severe economic downturn to unleash federal authority in ways unheard of by our Founders.

There were several cases that came before the Court including: Schechter Poultry Corp. v. United States, United States v. Butler, Morehead v.  New York ex rel. Tipaldo in which the Supreme Court struck down actions of the Federal government.

The Schechter case involved regulations put forward by a federal agency authorized under the National Industrial Recovery Act.  Here the Court held that the regulations not only violated the constitutional separation of powers as an impermissible delegation of legislative powers to the executive, the Court also held that the authorizing laws provisions exceeded the power granted to Congress with the Commerce Clause.

US v. Butler involved a federal agriculture subsidy statute that taxed some farmers in order to send payments to other farmers — all done ostensibly as a means of limiting crop production to artificially raise prices.  Here the Court struck down the tax as impermissible because it violated local and state sovereignty and that the Constitution provided no specific power to generally regulate agriculture.

In addition, in Morehead the Supreme Court struck down a state minimum wage law because it violated the fundamental liberty right of employers and employees to enter into contracts for work free from governmental interference.

In cases like these and others the Supreme Court adhered to its traditional role as guardian of our liberty by insisting that the Federal and state government exercise only those powers specifically granted and presumed that the Constitutional framework of America protected liberty best by leaving broad space for private interaction.

FDR specifically rejected this model and was able to use the state of the economy as a pretext for change.  The presidential election of 1936 gave him just the opportunity he needed.  He ran against Kansan, Alf Landon and set a lop-sided record for the largest Electoral College victory carrying all but two states while sweeping in a supermajority of his party in Congress.

He announced his plan to remake the Supreme Court in his inaugural address and while it was considered very controversial, most political analysts at the time thought that its prospects for passage were good.

Ironically the Senate voted down the measure as a “usurp[ation of] the power of the legislative and judicial branches in the name of the necessity… to promote the general welfare of the masses.”  However, by then the damage had been done.  Seeing the handwriting on the wall, the Supreme Court intimidated by the Presidential election and the withering rhetorical assaults on its action switched courses and began approving federal laws regardless of whether they were explicitly authorized by the Constitution.

Today Americans live in a constitutional regime whereby government is presumptively authorized to act and regulate, and liberty is only haphazardly protected at the ballot box.  Ironically, a consensus has developed that the very measures pursued by FDR extended and made more severe the economic downturn now known as the Great Depression.  Elections have consequences and in this case, they have been quite substantial.

Horace Cooper is a legal commentator and a fellow at the National Center for Public Policy Research.

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