Written in 1998, Barry Cushman’s book “Rethinking the New Deal Court: The Structure of a Constitutional Revolution” is a historical analysis of the famous shift by the US Supreme Court from opposing the social legislations of the New Deal to provide full legal support of the programs.
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The author attempts to provide an in-depth analysis of the transformation of the constitutional law during the New Deal era in 1930s. In this book, Cushman’s thesis states that the “switch in time” by the Supreme Court was a result of a long-prepared and internal revolution perpetrated by a building-up of erosions of the SC’s commercial clause and jurisprudence, which took place in a “web-like and interconnected manner”1.
Therefore, this thesis attempts to refute the common notion that the dramatic change in the court’s decision resulted from short-political concerns, especially due to the 1936 elections and President Roosevelt’s announcement of his Court-packing plan. Thus, the purpose of this paper is to develop a comprehensive review of Cushman’s book, using a critical approach to the arguments used to support his thesis.
According to Cushman, the current notion that the cowardly Supreme Court decided to change from opposing the legislation of the New Deal by abandoning a number of doctrines to save itself from Roosevelt’s politics is not only wrong, but also misinformed. To refute this claim and support his thesis, Cushman has attempted to base his arguments on in-depth historical accounts of the situation before the court’s major shift.
Noteworthy, the author claims that the major turning point was in 1934 rather than after the 1936 elections. For instance, the author bases this claim on a historical account of the 1934 rule on milk prices. In history, the Supreme Court, sitting in the state of New York, made a famous ruling by upholding the statute to control the prices of milk.
This had a major impact on the subsequent decisions on statutes that were increasingly trying to increase government control of prices for basic commodities. In addition, Cushman agrees that the pre-New Deal economic laws had been scrapped by 1940 due to Roosevelt’s economic packages.
However, the author uses historical evidence to refute the previous claims on the how, when and why the SC decided to abandon its previous doctrines when approaching the topic of government control of the national economy.
Cushman develops an argument criticizing the poetics of the judicial power in the US. The common way of thinking about the courts and judges has been wrong, yielding a wrong impression that the court’s shift was driven by its coward nature, especially when dealing with political issues.
The standard perceptions of the courts and judges in the US is reductionist because it makes people perceive law as political issues and treat judges as politicians elected through the electoral system.
The American society, ridden with the mentality of politicizing every issue, developed a belief that the Supreme Court was acting politics. However, Cushman attempts to refute this claim, arguing that the SC’s steps to strike the deal contributed to the process of saving the country from the Great Depression, which collided with Roosevelt’s Court-packing program.
The author attempts to show that the historical chronology of events leading to the SC’s shift in doctrines fails to support the standard notion that the court acted in a political and cowardly manner.
The reader is introduced to a relatively new historical knowledge that shown how the nine court judges had decided to change their approach and abandon the previous doctrines2. The author provides historical evidence that the court judges were not aware of the president’s plan when they arrived at this decision.
The major issue that provides ground to Cushman’s argument is the historical consideration of the reason for the court to take a long time to embrace the new deal.
Using a historical approach to the topic, Cushman argues that the Americans have remained confused on the constitutional revolution that took place between 1930 and 1940. Cushman borrows from the historical ideas evidence, which shows that the laissez-faire legal system of the time had a different structure from the current system. For instance, it did was not based on a collection of isolated doctrines.
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Instead, it was based on a combination of interrelated doctrines collected into a whole system. Thus, they were analogous to a tapestry or a web. Accordingly, a change affecting any of the interwoven doctrines was likely to cause major implications on the overall web.
Thus, the constitutional revolution that led to abandoning the previous doctrines the SC was used is based on this idea. By agreeing to uphold the statute on the control of milk prices in New York, the SC made one of the first steps towards interfering with the entire ‘web’ of the doctrines.
Since a change in one of the doctrines in the interwoven web had a high likelihood of causing major changes in the entire system, the SC judges realized that the previous system could not work after some of the doctrines were abandoned.
Therefore, it was necessary to change the whole structure. Accordingly, there is little evidence to show that political interferences or a coward nature of the SC judges led to the sudden shift, contrary common claims.
Cushman, Barry. Rethinking the New Deal Court: The Structure of a Constitutional Revolution. New York: Oxford University Press, 1999.
1 Barry Cushman, Rethinking the New Deal Court: The Structure of a Constitutional Revolution (New York: Oxford University Press, 1999), 54.
2 Cushman, 158