Balkinization: How Constrained Is the Supreme Court By "Popular Political Majorities?"

How Constrained Is the Supreme Court By "Popular Political Majorities?"

Rick Pildes

In recent years, many scholars and popular commentators have argued that the Supreme Court cannot and does not stray too far from “mainstream public opinion.” If it does, larger political forces bring the Court back into line; the Justices, knowing this, do not wander far. One of the central eras of historical experience that purportedly demonstrate this view is the dramatic confrontation between the Court, FDR, and the New Deal, in which the Court ultimately backed down from its constitutional resistance to the constitutional vision underlying the New Deal.

I've written an essay reviewing Jeff Sheshol's engaging new book, Supreme Power, in which Sheshol revisits the 1937 Court/FDR confrontation. My reading of that book, along with other material about the era, has convinced me that the conventional story about this crucial era is much too simple, and that the Court has far more latitude to act in countermajoritarian ways than is recognized in much of the recent literature that argues the Court is heavily constrained to reflect only "mainstream majoritarian views." Here's one paragraph from that essay; the full essay is here:

[C]onsider the aftermath of the confrontation: who won the Court-packing fight? The conventional wisdom among constitutional academics, focused narrowly on the Court itself, is that FDR lost the battle, but won the war, since the Court (assisted by 7 FDR appointments between 1937-43), acceded to the New Deal’s constitutionality. But FDR’s legislative assault on the Court destroyed his political coalition, in Congress and nationally, and ended his ability to enact major domestic policy legislation, despite his huge electoral triumph in 1936. As a Fortune magazine poll in July 1937 put it: “The Supreme Court struggle had cut into the President’s popularity as no other issue ever had.” National health-care, the next major item on FDR’s agenda, faded away. The progressive domestic policy agenda did not recover until 1964. Reflecting back, FDR’s second Vice President, Henry Wallace, observed: “The whole New Deal really went up in smoke as a result of the Supreme Court fight.” No rational politician, looking back at FDR’s attempt to bring the Court into line, other than through the ordinary appointments process, is likely to repeat FDR’s efforts.

Posted 11:15 AM by Rick Pildes [link]