Timothy Sandefur: Comes a Horseman
[Timothy Sandefur is a principal attorney at the Pacific Legal Foundation and author of The Right to Earn a Living (Cato Institute, 2010). This article originally appeared in the Sep. 20, 2010, issue of National Review.]
Franklin Roosevelt’s clash with the Supreme Court is one of history’s greatest legal dramas, but it has generated an unfair and misleading mythology. In this legend, the Court greeted the New Deal with a blast of reactionary decisions in 1935 and 1936 — invalidating, among other things, the National Industrial Recovery Act (NIRA) and the Agricultural Adjustment Act (AAA) — to which Roosevelt retaliated by threatening to pack the Court with a new, more loyal majority of justices. The judiciary avoided the embarrassment of an expanded, politically neutered Court when Justice Owen Roberts switched sides in 1937, leading to a series of decisions upholding the New Deal.
This account further holds that the justices opposing Roosevelt — the “Four Horsemen”: George Sutherland, Willis Van Devanter, James McReynolds, and Pierce Butler — were wedded to the cruel, sink-or-swim philosophy of Social Darwinism; “thoroughly deluded,” in the words of Harvard’s Robert McCloskey; and clinging to “the brave old world of their youth.” To legal historian Peter Irons, they “recognized only the ‘liberty’ of powerful corporations and sweat shop owners,” and to UCLA’s Kenneth Karst they used “constitutional legerdemain” to impose a “root-hog-or-die theory of capitalist enterprise” on the Constitution. Others portray the Horsemen as motivated more by personal hostility to Roosevelt than by ideology. Jeff Shesol’s new book, Supreme Power: Franklin Roosevelt vs. The Supreme Court, for example, barely glances at the legal arguments the justices found persuasive, instead painting the entire affair as a political clash between compassionate idealists and icy reactionaries. His adjectives are telling. Justice Sutherland was “stalwart,” “harsh,” and “devastating,” unable to “contain himself” — while liberal darling Louis Brandeis was a “strenuous” champion of “social reform and social justice” who, “battling injustice and corruption . . . stood above reproach” and even bore a “likeness to Lincoln.”
All this is tame compared with the rhetoric of the time. Howard Lee McBain, the Columbia professor who coined the term “living Constitution,” described the anti–New Deal decisions in 1936 as “judicial supremacy at its worst.” Harvard professor Thomas Reed Powell thought the Court was “pick[ing] new, strange clubs out of the air to swat anything that it doesn’t like.” The deeply partisan Felix Frankfurter called its decisions “intellectual frivolity” that “reinforced” his doubts about “the capacity of [the] Court and the Constitution to satisfy the needs of our national life.” Irving Brant, whose 1936 Storm Over the Constitution featured a foreword by future vice president Henry Wallace, argued that the Court’s lack of “sympathy” with “the striving of the people for well being” made it “a stimulus to fascist or communist revolt.” He proposed appointing a new liberal majority of justices, although he facetiously distanced himself from the court-packing threat in a footnote that recommended against expanding the Court, “even though Lincoln did it.”
Such language only caricatures what was actually a complex series of legal crises. Attorney Dean Alfange came closer to the truth when he wrote in 1937 that the New Deal’s “one guiding principle” was “wholesale and pervasive governmental interference with all branches of private business,” which required a “readjustment of constitutional values.” That “readjustment” meant bending the Constitution, whose authors tried to hamper government’s expansion, to accommodate a spectrum of initiatives that often stifled economic recovery, destroyed crucial resources, and favored the same “economic royalists” Roosevelt excoriated. These schemes were executed by a horde of new bureaucracies, each brandishing unprecedented power to redistribute wealth, confiscate property, and dictate industrial production. The 1935 decisions invalidating them were firmly grounded in precedent and in the text and history of the Constitution. The judiciary’s eventual capitulation was the final act in a decades-long shift in political philosophy, generating a new federal government unlike anything the Founders contemplated....
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Franklin Roosevelt’s clash with the Supreme Court is one of history’s greatest legal dramas, but it has generated an unfair and misleading mythology. In this legend, the Court greeted the New Deal with a blast of reactionary decisions in 1935 and 1936 — invalidating, among other things, the National Industrial Recovery Act (NIRA) and the Agricultural Adjustment Act (AAA) — to which Roosevelt retaliated by threatening to pack the Court with a new, more loyal majority of justices. The judiciary avoided the embarrassment of an expanded, politically neutered Court when Justice Owen Roberts switched sides in 1937, leading to a series of decisions upholding the New Deal.
This account further holds that the justices opposing Roosevelt — the “Four Horsemen”: George Sutherland, Willis Van Devanter, James McReynolds, and Pierce Butler — were wedded to the cruel, sink-or-swim philosophy of Social Darwinism; “thoroughly deluded,” in the words of Harvard’s Robert McCloskey; and clinging to “the brave old world of their youth.” To legal historian Peter Irons, they “recognized only the ‘liberty’ of powerful corporations and sweat shop owners,” and to UCLA’s Kenneth Karst they used “constitutional legerdemain” to impose a “root-hog-or-die theory of capitalist enterprise” on the Constitution. Others portray the Horsemen as motivated more by personal hostility to Roosevelt than by ideology. Jeff Shesol’s new book, Supreme Power: Franklin Roosevelt vs. The Supreme Court, for example, barely glances at the legal arguments the justices found persuasive, instead painting the entire affair as a political clash between compassionate idealists and icy reactionaries. His adjectives are telling. Justice Sutherland was “stalwart,” “harsh,” and “devastating,” unable to “contain himself” — while liberal darling Louis Brandeis was a “strenuous” champion of “social reform and social justice” who, “battling injustice and corruption . . . stood above reproach” and even bore a “likeness to Lincoln.”
All this is tame compared with the rhetoric of the time. Howard Lee McBain, the Columbia professor who coined the term “living Constitution,” described the anti–New Deal decisions in 1936 as “judicial supremacy at its worst.” Harvard professor Thomas Reed Powell thought the Court was “pick[ing] new, strange clubs out of the air to swat anything that it doesn’t like.” The deeply partisan Felix Frankfurter called its decisions “intellectual frivolity” that “reinforced” his doubts about “the capacity of [the] Court and the Constitution to satisfy the needs of our national life.” Irving Brant, whose 1936 Storm Over the Constitution featured a foreword by future vice president Henry Wallace, argued that the Court’s lack of “sympathy” with “the striving of the people for well being” made it “a stimulus to fascist or communist revolt.” He proposed appointing a new liberal majority of justices, although he facetiously distanced himself from the court-packing threat in a footnote that recommended against expanding the Court, “even though Lincoln did it.”
Such language only caricatures what was actually a complex series of legal crises. Attorney Dean Alfange came closer to the truth when he wrote in 1937 that the New Deal’s “one guiding principle” was “wholesale and pervasive governmental interference with all branches of private business,” which required a “readjustment of constitutional values.” That “readjustment” meant bending the Constitution, whose authors tried to hamper government’s expansion, to accommodate a spectrum of initiatives that often stifled economic recovery, destroyed crucial resources, and favored the same “economic royalists” Roosevelt excoriated. These schemes were executed by a horde of new bureaucracies, each brandishing unprecedented power to redistribute wealth, confiscate property, and dictate industrial production. The 1935 decisions invalidating them were firmly grounded in precedent and in the text and history of the Constitution. The judiciary’s eventual capitulation was the final act in a decades-long shift in political philosophy, generating a new federal government unlike anything the Founders contemplated....