The New Deal Court in the 1940s: Its Constitutional Legacy David P. Currie Earlier lectures in this series have traced the ori gins of the New Deal crisis in tum-of-the-century decisions like UnitedStates v. E.C. Knight Co.1 and Lochnerv. NewYork,2 which limited federal and state regulatory authority; the development ofthese ideas through the Progressive era and the days of Chief Justice HowardTaft; the frustration ofthe New Deal by the “Four Horsemen” (Justices Willis Van Devanter, James C. McReynolds, George Sutherland, and Pierce Butler) and their occasional allies in such cases as Schechter Poultry Corp. v. United States2 andMorehead v. New Yorkex rel. Tipaldo? the 1937 judicial revolution, highlightedby West CoastHotel Co. v. Parrish,5 andLaborBoardv. Jones & Laughlin Steel Corp.,6 which gave the New Deal a green light; and the impact ofPresident Franklin D. Roosevelt’s Court-packing proposal in precipitating the change. My task is to discuss the immediate aftermath. What happened after the New Deal revolution? Did the Court live happily ever after? Or did new issues come along to divide the Justices once again? We know they did. What were the new issues? How did the Court react to them? And how were its reactions shaped by the events ofthe 1930s? The revolution of 1937 was one ofthe six major turning points in our constitutional history. The first, characterized by the Declaration of Independence, the Revolutionary War, and the Articles ofConfed eration, was the establishment ofa new nation. The second was the strengthening ofthe central govern ment through adoption of the Philadelphia Consti tution and its sympathetic interpretation by the Su preme Courtunder ChiefJustice John Marshall. The third was the Civil War and the consequent adop tion of the Thirteenth, Fourteenth, and Fifteenth Amendments, which significantly restricted state power. The fourth wasjudicial transformation ofthe FourteenthAmendment from an instrumentdesigned to promote racial equality into a tool for suppress ing the welfare state. The fifth —the subject ofthis series—was the abandonment both of substantive due process and of established limitations on fed eral authority. Forthose were the principal issues in the New Deal crisis: laissez-faire and federalism; economic due process; and the scope of congres sional authority. The sixth, heraldedby the Carolene Products footnote, was an increased insistence on civil rights and liberties, partly discussed in this pa per. In terms of constitutional jurisprudence, 1937 was the end of an era. After West Coast Hotel the 88 JOURNAL 1997, VOL. 1 Court was no longer concerned with the economic reasonableness oflaws; afterJones & Laughlin it no longer questioned Congress’s authority over the na tional economy. In terms ofjudicial personnel, 1937 marked the beginning ofthe end ofan era. Justice Van Devanter left the Court that year. By 1941 all four Horsemen were gone: Sutherland left in 1938, Butler in 1939, McReynolds in 1941. It was symbolic ofthe chang ing times that when it came time for Roosevelt to appoint a new ChiefJustice in 1941 he picked Jus tice Harlan Fiske Stone, who, with his articulate op position to the nullifying decisions of the 1930s— culminating in his electric dissent in United States v. Butler1—best personified the Court’s new ap proach. The only other member of the 1937 Court who remained in 1941 was Owen J. Roberts, whose famous change ofhearthad made the revolutionpos sible. President Roosevelt had the rare opportunity to appoint seven new Justices within five years. Un derstandably, they were carefully selected to be sym pathetic to his program: Hugo L. Black in 1937, Stanley F. Reed in 1938, Felix Frankfurter and Will iam O. Douglas in 1939, Frank Murphy in 1940, James F. Byrnes, Jr., and Robert H. Jackson in 1941. Wiley Rutledge replacedByrnes when the latterwent to work for Roosevelt in 1943. Thus by 1941 the Court, appropriately ensconced inits new building, boasted a new ChiefJustice, seven new members, and a new approach to constitutional interpretation. A new era had indeed begun. The Washington Postcheerily predicted “virtual unanim ity” on the Court “for years to come.” But it was not to be. On the old questions of the 1930s the Post was correct. The new Court carriedthe principles of 1937 to new extremes. Wickard v Filburn...