Supreme Court, United States: The Roosevelt Years

The Roosevelt Years

A third great period of constitutional history began after President Franklin Delano Roosevelt came to office and Congress passed landmark economic legislation. Much of the economic legislation of the New Deal was attacked on various constitutional grounds, e.g., that the laws were unwarranted delegations of legislative power to the President and interfered with the exclusive power of the states over intrastate commerce. From 1935 to 1937, the court struck down such major pieces of New Deal legislation as the National Industrial Recovery Act (in the Schechter Poultry Case), the Agricultural Adjustment Act, and the Bituminous Coal Act. Some of the laws were condemned by five-to-four decisions.

Unalterably in the conservative camp were Pierce Butler, James McReynolds, George Sutherland, and Willis Van Devanter. The liberals (and supporters for the most part of New Deal legislation) were Benjamin N. Cardozo, Brandeis, and Harlan F. Stone. In the center were Chief Justice Hughes and Owen J. Roberts. Roosevelt, who had not appointed a single justice, was determined to change the composition of the court and proposed (Feb., 1937) a measure designed to displace the “nine old men” and to infuse the bench with “new blood” of his choosing.

His plan—which even his opponents conceded was probably constitutional—was to provide retirement at full pay for all members of the court over 70; if a justice refused to retire, an “assistant” with full voting rights was to be appointed. In no case might there be more than 15 justices. The majority in Congress, which characterized the scheme as “packing the court,” prevented it from ever coming up for a vote, and it was abandoned in July.

In April, however, Hughes and Roberts joined the liberal group, thus giving the New Deal a precarious majority of one. By five-to-four votes the National Labor Relations Act and the Social Security Act were upheld. The majority justified these and other decisions by pointing out that the scope of federal legislation had to expand because the growing interdependence of the country made local economic legislation of little value. The court also enunciated the novel view that in acting under the “general welfare” clause of Article 1, Section 8, of the Constitution, Congress was not limited to carrying out its express powers as listed in Article 1 but might pursue a wider range of objectives. Congress was thus given a vast new range of legislative power free of Supreme Court censure.

In 1938, the court took another revolutionary step in overruling Swift v. Tyson. The doctrine of a federal common law was repudiated, and in handling diversity suits the federal courts were directed to use state law. While in this case the Supreme Court limited the scope of federal activity, it took certain steps in the opposite direction. In the conflict of laws (juristic relations between states) it announced many new principles, and it forbade even limited state taxation of federal facilities but offered Congress fairly wide scope to tax various state-supported activities.

The court of the 1940s, with seven appointments by Roosevelt, was not more unified than its Depression-era predecessor. There was less public concern, however, since the court did not invalidate major legislation, while the diverse views of its members on technical subjects—antitrust and patent law, conflict of laws, taxation—mainly concerned lawyers and business. On the contrary, the percentage of dissents and of special opinions was greater than at any previous time. A notable blot on the court's record during World War II was its decision in Korematsu v. United States (1944), which upheld the constitutionality of wartime relocation and internment of Japanese-Americans; that decision was finally overturned by the court in 2018, in a decision in which the court upheld the final version of President Trump's travel restrictions on citizens of several predominantly Muslim nations.

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