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Comes a Horseman

by Timothy Sandefur
The early New Deal Court was right about FDR’s overreach

Franklin Roosevelt’s clash with the Supreme Court is one of history’s greatest legal dramas, but it has generated an unfair and misleading mythology. In this legend, the Court greeted the New Deal with a blast of reactionary decisions in 1935 and 1936 — invalidating, among other things, the National Industrial Recovery Act (NIRA) and the Agricultural Adjustment Act (AAA) — to which Roosevelt retaliated by threatening to pack the Court with a new, more loyal majority of justices. The judiciary avoided the embarrassment of an expanded, politically neutered Court when Justice Owen Roberts switched sides in 1937, leading to a series of decisions upholding the New Deal.

This account further holds that the justices opposing Roosevelt — the “Four Horsemen”: George Sutherland, Willis Van Devanter, James McReynolds, and Pierce Butler — were wedded to the cruel, sink-or-swim philosophy of Social Darwinism; “thoroughly deluded,” in the words of Harvard’s Robert McCloskey; and clinging to “the brave old world of their youth.” To legal historian Peter Irons, they “recognized only the ‘liberty’ of powerful corporations and sweat shop owners,” and to UCLA’s Kenneth Karst they used “constitutional legerdemain” to impose a “root-hog-or-die theory of capitalist enterprise” on the Constitution. Others portray the Horsemen as motivated more by personal hostility to Roosevelt than by ideology. Jeff Shesol’s new book, Supreme Power: Franklin Roosevelt vs. The Supreme Court, for example, barely glances at the legal arguments the justices found persuasive, instead painting the entire affair as a political clash between compassionate idealists and icy reactionaries. His adjectives are telling. Justice Sutherland was “stalwart,” “harsh,” and “devastating,” unable to “contain himself” — while liberal darling Louis Brandeis was a “strenuous[]” champion of “social reform and social justice” who, “battling injustice and corruption . . . stood above reproach” and even bore a “likeness to Lincoln.”

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