Rethinking the New Deal Court

The Structure of a Constitutional Revolution

Barry Cushman

"Barry Cushman's excellent book is meant to, and does, provoke fundamental rethinking of the Supreme Court's famous 'switch in time' from opposing to supporting the social legislation of the New Deal era. Cushman shows that the switch came about from a long-prepared revolution from within, a build-up of tiny incremental erosions of the 'weblike, interconnected structure' of the Court's commerce clause and due process jurisprudence. For many decades the Court had upheld very stringent regulations of business, even direct regulations of wages and prices and federal regulations of local business, but only if the business was classified as 'public' or 'affected with a public interest'. By gradual degrees dissenters within the Court and reformers outside it had picked away at this basic public-private distinction. When the distinction collapsed in the Nebbia case of 1934, so that any business could be called 'public' for some purposes, the whole grand edifice of 'laissez-faire constitutionalism' collapsed with it. A meticulous craftsman, Cushman builds a convincing case for his revisionist thesis. His book is a smooth blend of intellectual and political history; he is equally at home with the nuances of legal doctrine on the Court and the political battles going on outside it. He brings out of the large unruly mass of constitutional cases decided between 1870 and 1937 a strong, clear story, powerful in its simplicity and very persuasive. After this book no one will be able to talk about the 'Constitutional Revolution of the New Deal' in quite the same way again."--Robert W. Gordon, Yale Law School

"Barry Cushman has produced an exhaustive and enlightening Reconstruction of substantive due process and commerce clause jurisprudence during the Hughes and Stone courts that draws into question the common understanding of this period of our constitutional history. Those who favor a political history of the Court should consider Cushman's work as a cautionary tale. Doctrine may explain more of the details of the Supreme Court's fight with the New Deal than many would like to think."--John Henry Schlegel, SUNY at Buffalo Law School

Rethinking the New Deal Court

The Structure of a Constitutional Revolution

Barry Cushman

Description

This book challenges the prevailing account of the Supreme Court of the New Deal era, which holds that in the spring of 1937 the Court suddenly abandoned jurisprudential positions it had staked out in such areas as substantive due process and commerce clause doctrine. In the conventional view, the impetus for such a dramatic reversal was provided by external political pressures manifested in FDR's landslide victory in the 1936 election, and by the subsequent Court-packing crisis. Author Barry Cushman, by contrast, discounts the role that political pressure played in securing this "constitutional revolution." Instead, he reorients study of the New Deal Court by focusing attention on the internal dynamics of doctrinal development and the role of New Dealers in seizing opportunities presented by doctrinal change.

Recasting this central story in American constitutional development as a chapter in the history of ideas rather than simply an episode in the history of politics, Cushman offers a thoroughly researched and carefully argued study that recharacterizes the mechanics by which laissez-faire constitutionalism unraveled and finally collapsed during FDR's reign. Identifying previously unseen connections between several different lines of doctrine, Rethinking the New Deal Court charts the manner in which Nebbia v. New York's abandonment of the distinction between public and private enterprise hastened the demise of the doctrinal structure in which that distinction had played a central role. As intelligent as it is revisionist, this volume will greatly interest students of legal history, constitutional law, and political science.

Rethinking the New Deal Court

The Structure of a Constitutional Revolution

Barry Cushman

Introduction
PART I: Rethinking the New Deal Court
1. Roosevelt's Shadow
2. Judging the Image of New Deal Court Judging
PART II: A New Trial for Justice Roberts
3. The Public/Private Distinction and the Minimum Wage Issue
4. From Adkins to Nebbia
5. The Minimum Wage Cases Revisited
PART III: The Trail of the Yellow Dog
6. The Liberal Dilemma
7. Associationalism Ascendant
8. Doctrinal Synergies
PART IV: The Levee Breaks
9. A Stream of Legal Consciousness
10. Catching the Current
11. The Persistence of Memory
12. The Struggle with Judicial Supremacy

Rethinking the New Deal Court

The Structure of a Constitutional Revolution

Barry Cushman

Reviews and Awards

Winner of the AHA's Littleton-Griswold Prize

"A meticulous craftsman, Cushman builds a convincing case for his revisionist thesis. His book is a smooth blend of intellectual and political history; he is equally at home with the nuances of legal doctrine on the Court and the political battles going on outside it. He brings out of the large unruly mass of constitutional cases decided between 1870 and 1937 a strong, clear story, powerful in its simplicity and very persuasive. After this book no one will be able to talk about the 'Constitutional Revolution of the New Deal' in quite the same way again."--Robert W. Gordon, Yale Law School

"It is not often that a book comes along that provides a whole new way of thinking about a familiar subject. But Barry Cushman has written a convincing, revolutionary reinterpretation of the conventional wisdom about the so-called 'Constitutional Revolution of 1937' and its notorious 'switch in time'. In the process, Cushman provides us with a compelling and powerful counter-argument about the true origins and dimensions of constitutional and historical change in the New Deal period."--Alfred S. Konefsky, SUNY at Buffalo Law School