An Entrenched Legacy: How the New Deal Constitutional Revolution Continues to Shape the Role of the Supreme Court

Introduction

introduction One of the most enduring and heated public controversies of the past half century has involved the role and power of the Supreme Court. Judicial activism has been blamed for an array of unpopular decisions in which the Court has seemingly gone outside the text of the Constitution to create new kinds of rights. This activism has, according to critics, allowed the Court to masquerade its members’ political views as constitutional principles. Under this interpretation , the Court’s growing power results simply from raw politics, from Justices intent on shaping American society according to their own personal ideology. Unquestionably, the Court has decided many highly controversial cases over the past half century. It has crafted a right of privacy, under which it has given constitutional protection to a minor’s right to use contraceptives and obtain an abortion.1 It has cited ‘‘evolving standards of decency’’ in striking down state capital-punishment laws.2 It has carved out a dissenter’s right from the First Amendment Establishment Clause and has used this right to nullify holiday religious displays and student prayers recited before high school football games.3 It has applied its free speech rules to overturn regulations confining sexually explicit programming on cable television to late-night hours and to strike down restrictions on Internet distribution of computer-simulated child pornography.4 It 1. See Carey v. Population Services International, 431 U.S. 678 (1997); Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976). 2. See Roper v. Simmons (2005). 3. See County of Allegheny v. aclu, 492 U.S. 573 (1989); Santa Fe ISD v. Doe, 530 U.S. 290 (2000). 4. See United States v. Playboy Entertainment Group, 529 U.S. 803 (2000); Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). 2 ■ an entrenched legacy has given First Amendment protection to nude dancing and has mandated free public education for the children of illegal aliens. And in all these cases, the Court has used its power to overrule the judgment of a democratically elected legislative body. The Court’s individual-rights activism, however, cannot be explained simply by politics. Justices do not always act as a cohesive liberal or conservative block. Each decision cannot simply be analyzed according to the political views of the respective Justices. Just as the Court itself is larger than any of its individual members, so too are the dynamics of the Court’s role in the constitutional system much larger than the particular ideologies of the Justices. The expanding presence of the Supreme Court in American life, along with its steady encroachment on the legislative process, is in many ways the result of entrenched constitutional forces set in motion during the New Deal—forces that transcend the ideologies of individual Justices. A constitutional revolution that occurred during the New Deal shaped the role of the Supreme Court for the remainder of the twentieth century and into the twenty-first century. To uphold the economic and social legislation being sponsored by President Franklin D. Roosevelt, the Court in the late 1930s dramatically changed course and virtually abandoned the constitutional doctrines of federalism and separation of powers. These doctrines had been used by the Court during FDR’s first term to invalidate various federal programs that usurped traditional state powers and breached traditional lines of separation between the branches of government. It has generally been thought that the Court’s withdrawal from the realm of federalism and separation of powers has in turn diminished its role in the constitutional system. But contrary to this general impression, just the reverse has occurred. Although the constitutional dictates regarding separation of powers were greatly eroded by the New Deal’s transfer of legislative authority to the executive branch, via administrative agencies, the Supreme Court has nonetheless experienced a substantial increase in power as a result of the growth of the administrative state. This increase in power stems from the fact that the Court has far more capacity to review and scrutinize the work of administrative agencies than it does the work of Congress. Consequently, because of introduction ■ 3 the transfer of power from Congress to administrative agencies, the Supreme Court can now exercise authority over matters that were outside its jurisdiction prior to the establishment of the administrative state. A similar effect occurred in the area of federalism. The Court’s abandonment of the federalism doctrine during the...