Supreme Power

reviewed by Timothy Sandefur

Jeff Shesol's suspenseful Supreme Power will delight any reader satisfied with the stereotype of the New Deal's jurisprudential revolution. According to that legend, a group of aged justices, riveted to the abstract dogmas of laissez-faire and blind to the atrocious realities of industrial life, barred the way against humanitarian reformers trying to heal the sufferings brought about by the Great Depression. After issuing a series of ex cathedra pronouncements striking down President Franklin Roosevelt's bold legislative experiments, they were at last reined in when Roosevelt threatened to pack the Court with a new majority of his own judicial appointments. The justices, singed but not burned, backed down and began upholding the New Deal against constitutional challenges.

This version is dramatic enough, and it does contain some truths. Roosevelt's court-packing plan really was an attempt to discipline a Court he thought too independent, and the plan's unpopularity even among FDR's supporters opened permanent fissures in the Democratic Party. The jurisprudence of the New Deal era really was revolutionary; the replacement of the "affected with a public interest" test (which governed the constitutionality of business regulations after 1877's Munn v. Illinois) with the "rational basis" test devised in 1934's Nebbia v. New York dramatically shifted the constitutional boundaries. The carving out of heightened protections for "discrete and insular minorities" and certain favored rights in the famous Footnote Four of U.S. v. Carolene Products (1938) established the civil rights agenda for the next 30 years. The political consequences were even more momentous: Governing power came increasingly to be exercised by administrative agencies; the political coalitions that grew up around the new federal programs became firmly rooted; and Republican politicians largely abandoned serious challenges to the legitimacy of federal regulations.

Shesol very competently recounts the political drama of Roosevelt's clash with the judiciary, which certainly occurred on the most profound levels. Having anticipated such a confrontation as early as 1932, Roosevelt told an audience two years later that the Constitution "has been superseded entirely by what has happened and been learned" since it was written. Seemingly eager for an explicit battle with the justices, FDR was repeatedly dissuaded by advisers, but finally he pushed ahead with what became the "court packing plan" of 1937. Even after the justices issued a series of decisions upholding New Deal programs, and after conservative justice Willis Van Devanter announced his retirement, Roosevelt insisted on the court-packing legislation, alienating his more pragmatic supporters, giving color to allegations of his recklessness, and finally suffering a 70?20 defeat in a Senate dominated by Democrats.

But although the political story is smoothly written and thoroughly researched, Shesol is far less competent when addressing the substance of the parties' disputes. His understanding of New Deal economics is shallow enough?even self-contradictory: On page 43 he claims that the National Industrial Recovery Act was intended to "bring down prices," and on page 93, that it was intended to "send prices up." (The latter is correct; the NIRA imposed nationwide cartels to aid business owners, not impoverished consumers. When Shesol reports?accurately?that one consequence of the Court's invalidation of the act was that "prices?no longer set by code agreements?dropped immediately and sharply on items like cigarettes, liquor, books, and medicines," the reader may be excused for wondering how this could have been thought a negative.)

Equally disappointing is Shesol's discussion of the constitutional dispute. His account of the judicial rationale behind the crucial Shechter Poultry case, for example, is barely more than two paragraphs long. Elsewhere, he reverts to unenlightening clichés, regularly describing the conservative justices as rude and bitter and Roosevelt's supporters as noble humanitarians. Even when both sides agreed, they are contrasted by Shesol's partisan adjectives. Justice George Sutherland, for instance, is painted as wedded to the dogmas of Adam Smith, when in reality he was one of history's keenest constitutional minds and a progressive champion of such causes as women's equality, who often issued expansive rulings favoring Roosevelt's authority?and who was a resolute gentleman. To Shesol, Sutherland was "stalwart," "strict," "harsh," "devastating," unable to "contain himself." But Justice Louis Brandeis, who joined Sutherland in such anti?New Deal decisions as U.S. v. Butler, Humphrey's Executor v. United States, and Shechter Poultry, is portrayed as a "hero," a "strenuous" champion of "social reform and social justice." Where Sutherland's vote in such cases was motivated by a heartlessly Darwinistic individualism, Brandeis's identical vote in the same cases arose from his warm "faith in the individual, the family farmer, the small businessman, the local community," which he was protecting against New Deal centralization.

This is nothing new: One's allies are always principled, while the other guys' are always pigheaded. But Shesol's repeated failure to describe the actual views of the New Deal's opponents weakens his book in comparison with Amity Shlaes's The Forgotten Man, Hadley Arkes's The Return of George Sutherland, or Robert Higgs's Depression, War, and Cold War, all of which have shed new light on the conservative side of the Depression-era debate. In Shesol's version, the New Deal's opponents are moved more often by character flaws and psychological fixations than by their understanding of constitutional law. Shesol is certainly entitled to cheer for the side he thinks is right, but a scholar should fairly describe and confront the real merits of the opposition's arguments. Shesol's good-guy-versus-bad-guy story makes an exciting political melodrama, but without a fair account of the period's legal and economic disputes, Supreme Power can make no serious contribution to understanding the most crucial episode in 20th-century American law.

Timothy Sandefur is a principal attorney at the Pacific Legal Foundation in Sacramento.

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