Vol. 10 No. 4 (May 2000) pp. 301-303.

RETHINKING THE NEW DEAL COURT: THE STRUCTURE OF A CONSTITUTIONAL REVOLUTION by Barry Cushman. New York: Oxford University Press, 1998. 320 pp.

Reviewed by Susan E. Grogan, Department of Political Science, St. Mary's College of Maryland.



Barry Cushman, of the Law School of the University of Virginia, argues that there was a constitutional revolution at the United States Supreme Court in the 1930s. However, that the revolution did not occur when or as the "conventional wisdom" (p. 4 and passim) would have it. Rejecting as simplistic and incomplete the now familiar political switch-in-time explanations of the Court's decisions upholding key New Deal legislation, Cushman offers an account of those 1937 cases that sees them as logical as well as intellectually and legally honest outcomes of somewhat earlier developments in constitutional doctrine. The cornerstone in this revisionist history is the case of NEBBIA v. NEW YORK (1934), where the Court upheld a state law regulating milk prices. According to Cushman, it was in this decision that the New Deal's constitutional revolution began as the Court abandoned the public-private distinction it had previously employed in determining the constitutionality of economic regulation. Cushman argues that constitutional doctrine is best understood as a "web" of legal thought, not merely a line or even several lines of doctrine (p. 6). The doctrinal web that had guided the Supreme Court in its laissez-faire days began to unravel with the NEBBIA decision.

Cushman's task in this book is two-fold: to identify the flaws in the conventional explanation of the New Deal Court -- an account that Cushman sees as "externalist" and reflecting the "language of political science" (p. 4) -- and to demonstrate the accuracy and advantages of his reading of Supreme Court jurisprudence and behavior. In Cushman's view, an "internal" explanation appears in the language of law. Part I of the book reviews and evaluates two arms of the conventional political explanation for the Court's 1937 "switch." The Court-packing thesis -- that the justices reformed under threat of President Franklin D. Roosevelt's plan to alter the size and make-up of the Court -- does not hold up chronologically, Cushman noting that the Court had already begun upholding New Deal legislation before the proposal was made public. Cushman also identifies flaws in the argument that the Supreme Court changed its ways in response to the election of 1936. He argues, first, that it was in no way unusual for the Supreme Court to decide cases contrary to the will of the public and that there was no particular reason for the Court to be so acutely sensitive to the policy implications of the 1936 presidential election. Moreover, Cushman notes, if an electoral signal can lead to shifts in judicial decisions, the election of 1934, given the Democratic victories in the Congressional elections, would have sent a strong enough message of public sentiment to the Court.

Identifying legal history as "intellectual history" (p. 41), Cushman proposes his alternative explanation of

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the New Deal Court. The way in which laws were crafted, fact patterns in the cases that came before the Court, and legal theories all influenced the "doctrinal categories" seen in the "constitutional consciousness of individual justices" (p. 41). The complex story woven from these elements, observed Cushman, would explain how the Supreme Court came to uphold New Deal economic legislation in 1937 having determined that similar laws were unconstitutional only a few years earlier. The doctrinal categories of which Cushman writes are not immutable; justices reevaluate the bases of their categorizations in light of changing social and economic circumstances and may find themselves required to discard those legal premises that are no longer appropriate for the world in which law operates.

In the rest of the book Cushman provides an analysis of key Supreme Court cases and the decision making involved in those cases to support his revisionist reading of the New Deal Court. He focuses on two areas of law -- federal and state minimum wage statutes and laws protecting unionization and collective bargaining activities--demonstrating how constitutional theories develop and change. Eventually the doctrinal changes seen in the minimum wage and labor cases are reflected in Supreme Court decisions on price and production regulation of commercial activities in general. Cushman argues that the demise of the dichotomies between public and private enterprise and between indirect and direct involvement in interstate commerce, in conjunction with the development of a more comprehensive view of a "current of commerce" (p. 146) ultimately directs the Court to upholding such expansive readings of the Commerce Clause as would be seen in WICKARD v. FILBURN (1942). The path to WICKARD v. FILBURN and like cases, first signaled in NEBBIA v. NEW YORK, is made inevitable in the decision in another milk-pricing case, UNITED STATES v. WRIGHTWOOD DAIRY CO. (1942), where the Court held that Congress's Commerce Clause authority extended into regulation of a clearly local business. Here the Court was ready "with a single blow to demolish what was left of the doctrinal edifice that NEBBIA had already done so much to erode" (p. 207).

Approval of the expansion of economic regulation and the attendant excursions by the federal government into areas traditionally reserved to the states is not, in Cushman's view, a politically expedient move but the rational outcome of developing constitutional theory. This is not to say that the justices of the Supreme Court cannot and do not act to shape the course of the law. Their own backgrounds, belief systems, and patterns of legal thinking influence the justices in their construction of constitutional doctrine. In Cushman's view, the contribution -- certainly not the capitulation -- of Justice Owen Roberts is especially important in the development of the new constitutional theories used by the Supreme Court of the late New Deal era and after. In this way, too, the president most responsible for the "new" Supreme Court and, perhaps, the development of the modern administrative state is not Franklin Roosevelt but Herbert Hoover.

Although Cushman may be criticized for overstatement and oversimplification in his description and critique of political explanations of the Supreme Court's decision making, this book is clearly valuable for what Cushman brings to "his" side of the political versus legal factors debate. Trained as an historian, with a Ph.D. in American History as well as attorney, Cushman brings a variety of important

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materials into the development and detailing of this intellectual history of the New Deal Court. Collections of the justices' papers, congressional debates and hearings, and government reports have all been mined as Cushman builds his re-telling of the Supreme Court of the New Deal era. This is a well-documented book. Fully one-third of the volume is devoted to endnotes. This is a well-crafted book; it offers a compelling story. Most valuable of Cushman's contributions in RETHINKING THE NEW DEAL COURT are perhaps the reminders found here that even old stories deserve reexamination, that the making of constitutional law is a complex project, and that we should continue to explore new ways to improve our understanding of courts and law.

CASE REFERENCES:

NEBBIA v. NEW YORK, 291 U.S. 502 (1934).

UNITED STATES v. WRIGHTWOOD DAIRY CO., 315 U.S. 110 (1942).

WICKARD v. FILBURN, 317 U.S. 111 (1942).

Copyright 2000 by the author, Susan E. Grogan.