"Saint George and the Dragon": Courts and the Development of the Administrative State in Twentieth-Century America

In January 1938, James Landis, Dean of Harvard Law School, author of much of the New Deal's securities legislation, and a former member of the Securities and Exchange Commission, traveled to New Haven, Connecticut, to deliver the prestigious Storrs Lectures at Yale Law School. His subject was "The Administrative Process." Of particular interest to Landis was defining the correct relationship between courts and the administrative state. According to Landis, the interaction between agencies and courts "gives a sense of battle."¹ He continued: "Here one is presented with decisions that speak of contest between two agencies of government—one, like St. George, eternally refreshing its vigor from the stream of democratic desires, the other majestically girding itself with the wisdom of the ages."²

Landis's simile tipped his hand as to his opinion about who should win this contest. Like many New Dealers, he saw the judiciary as a reactionary institution, intent on thwarting both the democratic desire of Americans to establish a vigorous administrative state and the expert opinions of scientific administrators who were trying to pull the nation out of the Great Depression. Later generations of reformers might have been inclined to switch the parties in Landis's allegory, portraying administrative bureaucracy as the rapacious dragon and courts as the chivalric guardians of freedom and democracy. No one, however, would deny that elemental to the study of the administrative process was understanding the relationship between courts and the administrative state. Indeed, thirty years later, another New Deal alum, Louis Jaffe, would note that judicial review was "the necessary condition . . . of a system of administrative power that purports to be legally valid."³ By the mid-1970s, the notion that courts and agencies were "partners" in the administrative process was commonplace among both judges and legal academics.⁴

Yet despite the fact that at least three generations of administrative lawyers have viewed the nature of the interaction between courts and agencies as an integral part of the study of the administrative state, social scientists who have focused their attention on the development of the American governmental bureaucracy have essentially ignored the judiciary. In particular, historical institutionalists, who have sought to "bring the state back in" to the study of American political history seem to have pushed the judiciary out of the narrative of American political history altogether. In much of this scholarship, courts as a variable in the policy-making process are relegated to the periphery. When they are mentioned at all, it is in one of two marginal contexts. First, courts are portrayed as significant actors only in the premodern, nineteenth-century state.⁵ During the twentieth century their policy-making functions are taken over by bureaucratic, administrative actors. Second, when courts do appear in the twentieth century, they are pushed into limited policy pigeonholes (civil rights and civil liberties, for example) that are viewed as unrelated to the main narrative of state-building in twentieth-century America.⁶

This vision of the judiciary's role in the modern, administrative state profoundly underestimates the significance of courts in the administrative process. Scholars within the legal academy have written historical accounts of the relationship between the judiciary and the administrative state.⁷ Yet these seem to go unread by institutionalist historians and social scientists. Throughout the twentieth century, courts imposed their own, semi-autonomous interests on the policy-making process, bending and warping policy inputs like any other state institution. Accordingly, if we are truly to bring the state back into American political history, we need to include courts.

To bring the state back in, we must identify the institutional interests that courts sought to impose on the administrative process. This will then allow us to see how these interests shaped bureaucratic capacity and the development of the administrative state. At the broadest level, courts had an interest in retaining control over the administrative process. In the early twentieth century, this interest manifested itself as a refusal to allow certain agencies—such as railroad or workman's compensation commissions—to act as anything more...