Rethinking the New Deal Court: The Structure of a Constitutional Revolution.
New York: Oxford University Press, 1998. ix + 320 pp. Notes, Index. $55.00
(cloth), ISBN 0-19-212043-4 ISBN 0-19-511532-5; $24.95 (paper), ISBN .
Thomas Hilbink , Institute for Law & Society, New York University.
New Antidote for the Nine Old Men
Taking on Externalist History
Rethinking the New Deal Court
possesses a characteristic that any historian would like his or her book to
have: After you finish reading it, you find it hard to imagine the story
being any other way. Barry Cushman, who teaches at the University of
Virginia Law School, reframes the story of the "switch in time that saved
nine" -- "One of the great morality plays of American civics," Cushman calls
it (p. 3) -- so convincingly that I wonder how the dominant "bedtime
story" version of events -- that the political threat of President
Franklin D. Roosevelt's ill-fated Court-packing plan was the cause of the
Court's 180-degree jurisprudential turn -- will survive. Not surprisingly,
the book has received a great deal of attention from legal scholars and
legal historians alike. Before he published this book, Cushman previewed his
argument in law reviews, giving others a chance to digest, comment on,
and critique his new take on the history of the New Deal. As a result,
this review travels well-trodden ground and does not attempt a daring new
reading of the Cushman thesis. Rather, it discusses Cushman's main
argument and comments on Cushman's direction as it fits in with recent legal
dominant view of the "switch" story, in place since the event itself, is
best represented by the work of political historian William Leuchtenburg.
Leuchtenburg explains the "switch in time" by pointing to political forces
and concerns -- namely the Court-packing plan -- as an explanation for the
Supreme Court's "change of heart."
Court struggle speeded the acceptance of a substantial change in the role of
government and in the reordering of property rights and also had the
probably unanticipated result of the appointment of Justices much more
solicitous of civil liberties and civil rights.
Leuchtenburg presents a far richer account than Cushman allows in his
critique, though Cushman's shorthand retelling gets the basic parameters
Considering the wide acceptance of the political forces theory as an
explanation for the switch, Cushman is bold to take it on so aggressively,
but he goes further by questioning whether there was even a jurisprudential
switch at all. He summarizes his twofold challenge:
that the Supreme Court suddenly and substantially reversed its position in
the cases decided in the spring of 1937; and second, that this reversal was
a political response to such external political pressures as the 1936
election and the Court-packing plan. (p. 5)
Cushman looks to the second matter first. This choice makes sense,
considering that generations of people have accepted it as obviously true.
As he sees it, the story's logic is flawed, based on post hoc, ergo propter
hoc ("after this, therefore because of this") reasoning. By closely
analyzing the dates on which oral arguments, discussions in conference, and
rendering of decisions took place, Cushman reveals that the cases
characterized as marking the "switch" most likely were not influenced by
Roosevelt's plan. The "switch" decisions were decided (though not
necessarily released) either before the plan was announced or after it
became obvious that the plan would fail. Why, Cushman asks, would the Court
Roosevelt when the
challenge had dissipated?
Cushman also challenges the back-up theory that the Justices were reacting
to Roosevelt's 1936 landslide electoral victory, that the Court saw that
election as a referendum of sorts on the Social Security Act (SSA) and
realized their decisions on that issue were out of the mainstream. Cushman
demonstrates the flaws of this explanation as well. In 1936, the SSA was not
a major issue (whereas it was in 1932 and 1934, when Roosevelt and the
Democrats won by a landslide). Furthermore, Alf Landon, Roosevelt's opponent
in 1936, shared Roosevelt's position on the SSA. True, these facts could
be interpreted to show that if both candidates took the same position on the
SSA, then the Court was far out of the mainstream, but it is hardly
conclusive on that matter. Although Cushman does not deal a knock-out blow
to the dominant theory, he certainly weakens it enough with his left that he
is able to knock it out with his right. As G. Edward White points out in his
review of Leuchtenburg's book, Leuchtenburg's response to Cushman's argument
indicates the extent to which the switch theory is threatened:
Leuchtenburg discusses his critics... he seems to act as if they threaten
the whole of his historical enterprise -- his effort to show that the
Supreme Court was "reborn" in the New Deal period -- if they place the
origins of the constitutional revolution other than "in the pivotal year of
Cushman's book shines is in his analysis of the law in the decades leading
up to the New Deal. In his major argument, he contends:
highly integrated body of jurisprudence referred to as laissez-faire
constitutionalism was an interwoven fabric of constitutional doctrine.
Within that body the distinction between public and private enterprise
performed a critical integrative function. When the Court abandoned the old
public/private distinction in Nebbia, then, it pulled a particularly
important thread from that fabric. (p. 7)
Cushman methodically (though not dryly) lays out the changes in
jurisprudence that took place as a result of changing ideas about law and
society in the late nineteenth and early twentieth centuries. Countering the
dominant historiography, which he characterizes as "externalist" in its
approach, Cushman argues that the Court was driven by considerations and
concerns internal to its work and jurisprudence as well as an increasing
awareness of socio-economic changes in the outside world (namely
worker-employer relations and the interconnectedness of production and
commerce). Moving away from facile "conservative versus liberal"
descriptions of the Court's members, Cushman identifies three dominant
strands of jurisprudential thinking that emerged after the Civil War. The
first was rooted in republican fear of centralized authority; the second
stemmed from the bifurcation of law into public and private realms intended
to protect private interests from legislative corruption that sought limits
on governmental authority to infringe on "vested rights"; and the third
emerged from a tradition of Lockean property rights and freedom of contract.
Woven together, these three strands of thinking formed a powerful fabric;
once one strand began to weaken, however, the fabric fell apart. It is this
unravelling that Cushman traces back decades before the conventional
wisdom's "switch" to make his case that the death of the public/private
distinction was the key to the New Deal's constitutional revolution.
occurred at all, Cushman's argument goes, the Court's fabled "switch"
occurred not following the 1936 elections or the 1937 Court-packing scheme,
but in 1934 with the Court's decision in Nebbia v. New York.
Cushman looks at the gradual evolution of thinking about the bifurcation of
public and private realms under law, shifting understandings of economics
and commerce, the leadership and judging styles of Chief Justice Charles
Evans Hughes and the various Associate Justices who composed the Hughes
Court, and the Supreme Court's internal decision-making processes as they
existed in the early twentieth century. Assumptions that shaped the law in
the nineteenth century were slowly abandoned over the course of thirty years
thanks to decisions (first) by Justice Oliver Wendell Holmes, Jr., followed
by Justices Louis D. Brandeis and Benjamin Nathan Cardozo, and further
developed by the new generation of jurists whom Roosevelt
named to the Court at the end of the 1930s.
(1917), the Court established a class of businesses "affected with a
public interest" subject to state regulation. Still, the Justices recognized
an inner core of activity that they held to be immune from government
regulation. Adkins v. Children's Hospital (1923) affirmed the
protection for that inner core in 1923, striking down the District of
Columbia's minimum wage law on liberty of contract grounds. However,
over the next eleven years, the Court gradually expanded the scope of the
"affected with a public interest" doctrine. Finally, in Nebbia, the
Justices held that New York State's Milk Control Act of 1933 (a law that set
maximum price controls for milk) was constitutional; in the process, Justice
Owen J. Roberts's opinion for the Court finally abandoned the "affected with
the public interest" doctrine. All business can be construed to have some
impact on the public interest, the Court declared, and is thus regulable
under state police powers. Although historians point to the Court's 1937
decision in West Coast Hotel v. Parrish as the marker of the
"switch," Cushman maintains that West Coast Hotel did little that
Nebbia had not already done. It was significant not for jurisprudential
reasons but for procedural reasons (the parameters of certiorari) and
political reasons (Hughes's style as Chief Justice) that were internal to
the court. Roberts, the one who "made the switch," did
vote to override Adkins altogether before 1937 because the earlier
case was not subject to reconsideration before then. Roberts really made the
crucial switch in 1934, with his opinion in Nebbia, but, due to the
constraints of the Court's operations, he had to wait until 1937 to say so
in the U.S. Reports.
Cushman's jurisprudential analysis makes his point most vigorously. Although
some commentators challenge Cushman's reading of the case law, at the
very least Cushman's account calls into serious question the dominant
historical account of the New Deal's constitutional history -- so long as
Leuchtenburg and others do not look closely at the changes in the Supreme
Court and its decisions in the years preceeding 1937. This does not mean,
however, that Cushman has come up with the definitive version of events,
merely the most persuasive thus far. The "real" story will quite surely
be found in a synthesis of these versions, recognizing that while the
Court's decisions are shaped and constrained by internal factors, they are
also influenced by external forces, be they micro-forces (i.e. the
Court-packing plan) or macro-forces (i.e. changes in political thinking and
The Strengths and Weaknesses of Internalist History
from making a splash in the historiography of the New Deal, Cushman's book
shares an approach adopted by other legal historians in recent works. It
contrasts with what Peter Karsten called the "economic-determinist" school
(that includes historians James Willard Hurst, Morton J. Horwitz, and many
others). Karsten argues that American legal history cannot be explained
solely by pointing to economic considerations as the primary factor in
judicial decision-making. His thesis, along with those advanced by
Cushman and by Howard Gillman, suggests the emergence of a larger trend in
recent legal historiography -- what political scientists have dubbed "the
new institutionalism" and what others have called the "internalist" approach
(in contrast to Leuchtenburg's "externalist" approach). This admittedly
amorphous school of thought takes the view that analyses of law must look
beyond political and economic influences on jurisprudence to structural and
institutional factors that shape and constrain the judicial decision-making
process. Law, in this view, is not a trojan-horse in which the upper-class
hides its self-interest. It is a system that exists to a large extent in its
Certainly, looking at such considerations renders a more accurate history
than a purely economic-determinist or hyper-realist approach. As Cushman
notes, jurisprudence is more than a "political football" (p. 41), and any
legal history that looks at internal constraints, professional codes and
norms, personal relations among judges, and intellectual trends will render
a more nuanced explanation of the past. But isn't it possible that, in
addition to all the above-mentioned factors, law is also influenced by
external politics and political considerations -- if not directly, then in a
larger and more general way than the predominant "switch in time" story
claims? Progressive and Realist critiques of law, which arose in the first
decades of the century and reached prominence in the 1930s and 1940s,
powerfully compelled reconsideration of the shape of the law. Although the
Progressive and Realist movements can be portrayed as new intellectual
trends in legal thought, they are at least as accurately described as
political movements within academia and the judiciary.
more overtly political was the role of New Deal lawyers in shaping the law.
To his credit, Cushman attributes a significant role to the work of lawyers
(as both legislators and litigators) in helping move the law in a new
direction (pp. 5, 162-168). Lawyering, bad and good, played a significant
role in the rejection and later acceptance of Roosevelt's New Deal
legislation. But Cushman fails to acknowledge that the lawyers working
in this field were political actors and strategists working through the
courts to have their positions adopted and accepted as law. True,
government lawyers always have played a role in shaping the law, but a new
politics in the nation and (increasingly) in the legal profession saw the
federal government as the protector of the weak and a player in the nation's
economic life at a time when it was playing an increased role in American
law and political life more generally. Thanks to the elections of 1932 and
1936, politicians seeking such a role for government took control of both
executive and legislative branches, filling the executive departments and
committee staffs with political lawyers. Government lawyers became powerful
"repeat players" (to use Marc Galanter's term) against corporate
interests in litigation battles previously fought between corporations and
weaker state governments, unions, or individual workers. Electoral victories
-- and nothing else -- allowed them to do this.
not explicitly dismissing this interpretation of lawyers as political
actors, Cushman minimizes the political aspects of the new thinking and the
new lawyering. In his account (as in Karsten's interpretation of
nineteenth-century judicial decision-making), Justices develop their ideas
in a cloistered atmosphere. It is almost as if Holmes, Cardozo, Brandeis,
Hughes, and others existed solely in a separate legal realm, disconnected
from their roots, their eras, and the political battles they waged as
lawyers before coming to the Court. This rarefied realm is also separate
from the larger political world -- a view of judging with many similarities
to pre-realist descriptions of judicial law-making. This underemphasis on
outside influences leads me to worry that Cushman, like Karsten, might have
overstated his case in an effort to counter the dominant interpretation. In
an effort to debunk the conventional wisdom, these two authors underestimate
and thus downplay the influence of external politics and economics on the
shape of the law. Their books are necessary correctives, but they may also
require corrections themselves.
Barry Cushman, "Rethinking the New Deal Court," Virginia Law Review
80 (1994): 201, 260-261.
Barry Cushman, "Doctrinal Synergies and Liberal Dilemmas: The Case of the
Yellow Dog Contract," 1992 Supreme Court Review 235 (1993); Barry
Cushman, "A Stream of Legal Consciousness: The Current of Commerce Doctrine
from Swift to Jones & Laughlin," 61 Fordham Law Review 61
(1992): 105; Barry Cushman, "Rethinking the New Deal Court," Virginia Law
Review 80 (1994): 201.
Cushman's work was a major topic of a recent symposium on twentieth-century
constitutional history -- certainly not typical of a work of legal history.
See generally "Symposium on Twentieth-Century Constitutional History,"
Virginia Law Review 80 (1994): 1ff. -- especially Eben Moglen, "Toward a
New Deal Legal History," id., 263, and Edward A. Purcell, Jr.,
"Rethinking Constitutional Change," id., 277.
am in the same position as Eben Moglen, who, in his critique of Cushman's
Virginia Law Review article, said, "Fortunately for me, I am not
presently working in New Deal history, and so this Commentary does not
require me either to defend my own approaches against Cushman's trenchant
criticisms or to enlist in his army of revision." Moglen, "Toward a New Deal
Legal History," 264.
William E. Leuchtenburg, The Supreme Court Reborn: The Constitutional
Revolution in the Age of Roosevelt (New York: Oxford University Press,
1995); William E. Leuchtenburg, "The Origins of Franklin D. Roosevelt's
'Court-Packing' Plan," 1966 Supreme Court Review 347 (1966); William
E. Leuchtenburg, "Franklin D. Roosevelt's Supreme Court Packing' Plan," in
Harold M. Hollingsworth and William F. Holmes, eds., Essays on the New
Deal (Austin: University of Texas Press, 1969), 94. For critiques of
Leuchtenburg's book, see Neal Devins, "Book Review: Government
Lawyers and the New Deal,"
Law Review 96
(1996): 237; G. Edward White, "Book Review: Courts and Constitution:
Cabining the Constitutional History of the New Deal in Time," Michigan
Law Review 94 (1996): 1392.
Leuchtenburg, Supreme Court Reborn, at 162.
But see, William E. Leuchtenburg, "Symposium: When the People Spoke, What
Did They Say?: The Election of 1936 and the Ackerman Thesis," Yale L.J.
108 (1999): 2077 at 2092-2097.
Laura Kalman argues that things were far more complicated than Cushman (and
Ackerman and others) allows. Laura Kalman, "Law, Politics and the New Deal(s),"
108 Yale L. J. 108 (1999): 2165. Also see Leuchtenburg's challenge to
Cushman and Ackerman on this very issue, Leuchtenburg, "When the People
Spoke, What Did They Say?," 2092-2097.
White, "Courts and Constitution," 1413 (quoting Leuchtenburg, Supreme
Court Reborn, 231).
New York, 291
U.S. 502 (1934).
v. New, 243 U.S.
261 U.S. 525 (1923).
West Coast Hotel v. Parrish, 300 U.S. 379 (1937).
See David A. Pepper, "Against Legalism: Rebutting an Anachronistic
Account of 1937,"
Law Review 82
In his review of Cushman's book, Mark Tushnet raises an interesting point
pertaining to this issue: "For the historiographer, the interesting question
is not whether a good externalist account of doctrinal development is better
than a good internalist one, but rather why externalist or internalist
accounts are attractive to different people, or at different times." Mark
Tushnet, "Book Review: The New Deal Constitutional Revolution: Law,
Politics, or What?,"
of Chicago Law
(1999): 1061, at 1077.
Peter Karsten, Heart versus Head: Judge-Made Law in Nineteenth-Century
(Chapel Hill: University of North Carolina Press, 1997).
By contrast, Morton J. Horwitz argues that judges made a conscious effort to
conform the law the needs of the emerging bourgeoisie in the eighteenth and
nineteenth centuries. Morton Horwitz, The Transformation of American Law,
1780--1860 (Cambridge, Mass.: Harvard University Press, 1977).
Christopher Tomlins makes the case that nineteenth-century judges worked
within a capitalist structure that shaped and constrained their thinking
about law and legal outcomes, though they were not consciously choosing one
side (capital) over another (labor). Christopher Tomlins, Law, Labor, and
Ideology in the Early
(Cambridge, Eng., and New York: Cambridge University Press, 1993).
Howard Gillman, The Constitution Beseiged: The Rise and Demise of Lochner-Era
Policy Powers Jurisprudence (Durham, N.C.: Duke University Press, 1993);
Rogers M. Smith, "Political Jurisprudence, The 'New Institutionalism,' and
the Future of Public Law," American Political Science Review 82
(1988): 89; Tushnet, "Review."
Although it seems unnecessary to prove that realism and other schools of
legal thought are political movements, note that Karl Llewellyn, considered
by many to be the leader of the realists, was also a major figure in the
National Lawyers Guild, an organization committed to melding politics and
law. See N.E.H. Hull, Roscoe Pound and Karl Llewellyn: Searching
for an American Jurisprudence (Chicago: University of Chicago Press,
1997); Stuart Scheingold, "The Struggle to Politicize Legal Practice," in
Austin Sarat and Stuart Scheingold, eds., Cause Lawyering (New York:
Oxford University Press, 1998), 118, 199; Ann Fagan Ginger and Eugene M.
Tobin, eds., The National Lawyers Guild: From Roosevelt through Reagan
(Philadelphia: Temple University Press, 1988); Jerrold S. Auerbach,
Unequal Justice: Lawyers and Social Change in Modern America (New York:
Oxford University Press, 1976). For the argument that the New Deal and
Realism were "two interrelated forms of practice," see Ronen Shamir,
Managing Legal Uncertainty: Elite Lawyers in the New Deal (Durham,
N.C.: Duke University Press, 1995), 213 n.18, which Laura Kalman cites
approvingly. Kalman, "Law, Politics, and the New Deal(s)," 2165.
A strong endorsement of this position may be found in Devins, "Book Review."
See also Peter Irons, The New Deal Lawyers (Princeton: Princeton
University Press, 1982).
See, e.g., Auerbach, Unequal Justice; Irons, New
Deal Lawyers; and Laura Kalman, Abe Fortas: A Biography (New
Haven: Yale University Press, 1990).
See Marc Galanter, "Why the 'Haves' Come Out Ahead: Speculations on
the Limits of Legal Change," Law and Society Review 9 (1974): 95.
Call Number: KF4541.C873 1998
Constitutional history -- United States.
United States -- Economic policy -- 1933-1945.
New Deal, 1933-1939.
Citation: Thomas Hilbink . "Review of Barry Cushman, Rethinking the New Deal
Court: The Structure of a Constitutional Revolution," H-Law, H-Net Reviews,
October, 1999. URL:
“Professor Cushman has written a brilliant, provocative
account that contributes a much-needed broadened interpretive perspective to
the constitutional history of the New Deal era. He correctly reminds us
that it was the Hoover appointees who led the charge toward liberal
nationalism on the Court, that the shift was the result of increasing
awareness of the courts that traditional antiregulatory doctrines were
increasingly out of step with the demands of the emerging welfare state, and
that the completion of the New Deal revolution in federalism would occur
long after the alleged ‘switch in time that saved nine’.”
James C. Duram, review of Rethinking the New Deal
Court: The Structure of a Constitutional Revolution, by Barry Cushman,
The Journal of American History, 85 (March 1999): 1646-1647.