Supreme Court Activism in Economic Policy in the Waning Days of the New Deal: Interpreting the Fair Labor Standards Act, 1941-1946

Abstract

Students of the Supreme Court universally agree that it made a dramatic shift in 1937. First, in West Coast Hotel Company v. Parrish,1 it retreated from the unbridled use of the Fourteenth Amendment's Due Process Clause to invalidate state economic regulatory legislation. Then, in National Labor Relations Board v. Jones and Laughlin Steel Corporation,2 the Justices widened the reach of congressional power under the Commerce Clause. This looser reading of the Commerce Clause was solidified in 1941 with United States v. Darby Lumber Company3 and Wickard v. Filburn.4 So decisive were these cases in dividing what went before from what came afterward that Bernard Schwartz has said, “The 1937 reversal marked the accession of what may be considered the second Hughes Court—so different was its jurisprudence from that of the Hughes Court that had preceded it.”5 Whereas the defining jurisprudence of the former had been close supervision of economic policy, the latter refused to second guess the economic wisdom of congressional (and state) regulatory initiatives. Alpheus T. Mason summarized Justice Harlan Fisk Stone's approach, which was indicative of the entire Court of this era, as one that would not say that “no economic legislation would ever violate constitutional restraints, [but that] … in this area the court's role would be strictly confined.”6 Confirming this approach, between 1937 and 1957 the Supreme Court struck down only four federal statutes as unconstitutional, none of which were economic in nature.7