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  • Rethinking the New Deal Court: The Structure of a Constitutional Revolution
  • Mark Tushnet
Rethinking the New Deal Court: The Structure of a Constitutional Revolution. By Barry Cushman (New York, Oxford University Press, 1998) 320 pp. $55.00 cloth $24.95 paper

Cushman offers a powerful revisionist account of the New Deal transformation of constitutional law. The standard view, against which he argues, is that the Supreme Court’s dramatic changes in constitutional doctrine—the famous “switch in time that saved the Nine”—resulted from short-term political concerns. One account, clearly refuted by available documentary sources, is that Justice Owen Roberts changed his position in a key case after President Franklin D. Roosevelt announced his court-packing plan. A slightly more subtle account is that the justices understood that the 1936 election results made it impossible for them to continue to obstruct New Deal legislation. In Mr. Dooley’s terms, the Court followed the election returns.

Cushman offers an internalist account focusing on legal doctrine to replace externalist accounts that point to political events. According to Irons and Shamir, the early New Deal statutes that the Court invalidated were badly drafted, as the better New Deal lawyers acknowledged, and the Justice Department botched the defense of the National Industrial Recovery Act, allowing the small-scale, Schechter Brothers’ chicken-selling business to be the vehicle for the Court’s consideration of the Act’s constitutionality. 1 Cushman also shows that a Court concerned about following the election returns would have been worried after the 1934 elections, which, however, had no apparent effects on the justices’ actions.

Cushman’s alternative account focuses on Nebbia v. New York, a 1934 decision upholding a state regulation of milk prices. From the 1870s to the 1930s, the Court developed a set of linked legal concepts that explained most of its holdings. States could regulate the operations of businesses affected with a public interest, but not merely private businesses. They could regulate the length of the work day because the public might suffer when workers spent too many hours in the job, but there was a core of wage setting that the states could not touch. The Court justified exempting wages from the scope of regulation on the ground that workers were generally not coerced into accepting the wages that they were offered (and, unlike hours regulation, wage regulation could not be justified by referring to a public harm).

According to Cushman, this structure unravelled after World War I. The assumption that workers could bargain with employers over wages was undermined when a world of pervasive unemployment replaced a world of high employment and increasing wages. The judges learned from the World War I experience of regulating labor relations that even wage regulation might be a proper exercise of general police powers. [End Page 154]

Another erosion occurred in cases involving the scope of Congress’ power to regulate interstate commerce. The Court developed the metaphor of the “stream of commerce,” which it used to uphold national regulation of local business activities affected with a public interest that connected interstate transactions. This metaphor would limit congressional power only as long as the category of businesses affected with a public interest remained small.

Not all of the Court’s decisions were obviously consistent with the structure of thought that Cushman identifies, but good lawyers could tug the results into shape. Still, critics could use apparently inconsistent results as the basis for arguing that the doctrinal structure should be replaced by an alternative more friendly to regulation. Gradually, the precedents accumulated to produce a sense that the doctrinal structure to which the Court nominally adhered could not justify the cases’ results; the system lost its intellectual integrity and the Court became vulnerable to the challenge that it was acting merely politically.

Once the doctrinal strand protecting a core of wage setting from public regulation was cut, it became easier to eliminate the requirement that states regulate only businesses affected with a public interest. That change occurred in Nebbia. With no theory left to protect the core of wage setting from regulation, and, after Nebbia, with no theory left to protect purely private businesses from regulation, a doctrinal...

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