Straight Ahead or Sharp Turn? Court and Constitution in 1937

G. Edward White.The Constitution and the New Deal. Cambridge: Harvard University Press, 2000. x + 385 pp. Notes and index. $47.50.

On Monday, March 29, 1937, a United States Supreme Court decision astonished contemporary observers with its 5-4 vote upholding a Washington state minimum wage law. Chief Justice Charles Evans Hughes' ruling in the case of West Coast Hotel v. Parrishfollowed a two-year series of highly publicized opinions unfavorable to New Deal approaches to economic regulation. West Coast Hotel specifically reversed a ruling inMorehead v. New York ex rel Tipaldo less than a year earlier that held a similar state minimum wage law to be an unconstitutional intrusion into a liberty of contract protected by the due process clause of the Fourteenth Amendment. West Coast Hotel was handed down five months after the extraordinary endorsement of the New Deal in the 1936 elections and two months after FDR announced his plan to reorganize the federal courts, supplementing judges who did not retire at age seventy and, critics were quick to point out, packing the Supreme Court and lower federal courts with jurists sympathetic to the New Deal. Two weeks later five more Court decisions affirmed the National Labor Relations Act, and six weeks thereafter other judgments validated the Social Security Act. These rulings made evident that West Coast Hotel was no isolated aberration but rather the harbinger of an emerging pattern of high court majority thought sanctioning broader governmental authority in the area of domestic economic regulation. Although the court packing plan died and the New Deal suffered a lasting political setback, Roosevelt nevertheless could make a legitimate claim to have lost the battle, but won the war.

The West Coast Hoteldecision, Washington journalists Joseph Alsop and Turner Catledge quickly concluded, amounted to a "A Switch in Time Saves Nine." ¹ Other contemporary accounts, notably those of Princeton political scientist Edwin S. Corwin and Solicitor General Robert Jackson, reinforced the view of a sudden Supreme Court shift in response to a political threat. ² Several generations of legal scholars, political scientists, and historians, impressed with the context as well as the consequences of the Court's actions, agreed that the spring of 1937 represented a "constitutional revolution." The revolution has been framed in terms of a sharp turn in the Court's path as a slender Court majority of 1935 and 1936 gave way to a different, equally slender majority beginning in 1937.

In The Constitution and the New Deal, however,G. Edward White, a distinguished University of Virginia legal scholar well known for insightful studies of John Marshall and Oliver Wendell Holmes, asserts that no such sudden "switch in time" or "constitutional revolution" occurred in 1937. White regards the notion of a sudden Court shift resulting from legislative or electoral pressures as a myth originated by journalists and perpetuated by historians. Furthermore, he scorns what he labels "the conventional account," a narrative positing a fundamental jurisprudential transition in the midst of the New Deal. According to that account, best articulated by William E. Leuchtenburg, the judiciary abruptly abandoned what White terms "guardian review" in which judges closely scrutinized legislative and executive actions for their conformity to explicit constitutional provisions. ³ In its place, they adopted what White calls "bifurcated review" in which, on one hand, the judiciary relaxed its scrutiny of the legislative and executive branches, conceding them greater authority to regulate the economy, distribute economic benefits, and conduct foreign relations. On the other hand, the courts began giving closer inspection to laws or policies bearing on civil rights and liberties. Contrary to this conventional account, argues White, decisions of the Supreme Court during and after the spring of 1937 represented the continuation of a line of judicial reasoning that had been unfolding since the early twentieth century and would continue its steady course in the years ahead.

Historians and legal scholars have sought...