Taking Decisions Seriously: A Review of Rethinking the New Deal Court: The Structure of a Constitutional Revolution

Abstract

Taking Decisions Seriously: A Review of Rethinking the New Deal Court: The Structure of a Constitutional Revolution RICHARD D. FRIEDMAN The New Deal era is one ofthe great turning points ofAmerican constitutional history. The receptivity ofthe Supreme Court to regulation by state and federal governments increased dra­ matically during that period. The constitutionalism that prevailed before Charles Evans Hughes became ChiefJustice in 1930 was similar in most respects to that of the beginning ofthe twen­ tieth century. The constitutionalism that prevailed by the time Hughes’ successor Harlan Fiske Stone died in 1946 is far more related to that of the end of the century. How this transformation occurred is a crucial and enduring issue in constitutional history. How we perceive both the Supreme Court and the process by which its members are selected depends significantly on how we view the process by which the Court develops and changes constitutional doctrine. To what extent are the Justices’ decisions shaped by the doctrines enunciated in the prior decisions ofthe Court, to what extent by their own personal ideologies, and to what extent by external events and conditions, including political pressure exerted in one direction or another? The story often told about the constitu­ tional transformation of the New Deal era is that political pressure on the Court was criti­ cal, Franklin D. Roosevelt’s landslide re-elec­ tion victory in 1936 and his campaign for Court-packing the next year having induced a conservative Court to change directions. Ad­ vocates ofthis view—and indeed anyone who is interested in the history of the Court during this era—will now have to contend with the arguments presented with enormous skill by Barry Cushman in his stimulating and meticu­ lous new book, Rethinking the New Deal Court: The Structure of a Constitutional Revolution. Professor Cushman does not deny that CONSTITUTIONAL REVOLUTION 315 “dramatic changes in constitutional jurispru­ dence” occurred during the New Deal era; no sensible observer could do so. Rather, he at­ tempts “to recharacterize both the jurispru­ dence that changed and the mechanics by which it changed, approaching the phenom­ enon examined as a chapter in the history of ideas rather than as an episode in the history of politics.”1 Cushman’s account ofconstitutional transformation is therefore “internal” in the sense that he emphasizes the interplay of pre­ cedent and of the Justices’ own ideologies rather than the influence of external political pressures. Broadly, he contends that the doc­ trinal context in which the Justices operate has a great deal to do with their jurisprudence, as do the political, economic, social, cultural, and intellectual contexts: Judges are participants not merely in a political system, but in an intellec­ tual tradition in which they have been trained and immersed, a tradition that has provided them with the concep­ tual equipment through which they understand legal disputes. To reduce constitutional jurisprudence to a po­ litical football, to relegate law to the status of dependent variable, is to deny that judges deciding cases ex­ perience legal ideas as constraints on their own political preferences.2 Thus, Cushman refuses to treat the Justices’ opinions as shams, merely as tools to give a veneer oflegitimacy to results reached on other grounds. Treating the opinions seriously, rather than as counters to be placed either on the left side or on the right side of a grand political divide, entails a great deal of hard work. Cushman has not shied away from it, and he has done it very well. More specifically, Cushman argues that an integrated web of thought that had dominated constitutionaljurisprudence since the Civil War collapsed before 1937; Cushman identifies Nebbia v. New York? the 1934 decision up­ holding a New York statute regulating the price of milk, as “occup[ying] center stage” in the Court’s abandonment of the old framework.4 He argues that the reach of Nebbia extended far beyond its immediate doctrinal context. This point he illustrates well with an extended discussion of the Court’s jurisprudence con­ cerning yellow-dog contracts. The majority’s ultimate grant of constitutional approval of laws prohibiting these contracts, and thus re­ moving one ofthe great obstacles to the orga­ nization oflabor, reflectedNebbia's expansion...