Vol. 5 No. 7 (July, 1995) pp. 192-194

THE SUPREME COURT REBORN: THE CONSTITUTIONAL REVOLUTION IN THE AGE OF ROOSEVELT by William E. Leuchtenburg. New York: Oxford University Press, 1995. 350 pp. Cloth $30.00.

Review by David G. Barnum, Department of Political Science, DePaul University.

The constitutional revolution of 1937 holds a continuing fascination for constitutional scholars, political scientists, historians, and many others -- for almost anyone, in fact, with even a passing interest in contemporary American history and the way in which the Supreme Court has shaped, and been shaped by, that history. Notwithstanding the fair assumption that the Supreme Court's acquiescence to the policy initiatives of the New Deal was all but inevitable, few if any constitutional events have been as distinct, as dramatic, and as consequential as the famous "switch in time that saved nine."

Historian William Leuchtenburg's THE SUPREME COURT REBORN consists of nine essays. All but one originated as an article or lecture devoted to a relatively specific dimension of the constitutional crisis of the 1930s, and as such most of the chapters of the book can be read independently of one another by anyone interested in the specific subject they address. Taken together, however, their purpose is to provide a coherent and multi-faceted picture of the events of the 1930s and the personalities who shaped them.

Four chapters of the book examine specific Supreme Court decisions: (1) Buck v. Bell (1927), a case well worth study but only tangentially relevant, at best, to the constitutional crisis of 1937; (2) Retirement Board v. Alton R. Co. (1935), an early anti-New Deal decision invalidating the Railway Retirement Act of 1934 and alerting the Administration (even though Roosevelt had not been enthusiastic about the legislation itself) that other New Deal legislation might be in grave trouble with the Court; (3) Humphrey's Executor v. United States (1935), repudiating Roosevelt's ouster of William E. Humphrey from the Federal Trade Commission, and (4) West Coast Hotel v. Parrish (1937), the case which, because it was decided only seven weeks after Roosevelt's February 5, 1937, announcement of his Court-packing proposal, and because it upheld a Washington state minimum wage law in the face of directly contrary precedents, was viewed by many as the Court's gesture of capitulation to the New Deal. Two chapters examine the origins of the Court-packing proposal and the political maneuvering that accompanied its presentation to Congress and eventual defeat. One chapter looks at the confirmation battle over Hugo Black, nominated by Roosevelt to succeed Willis Van Devanter, who had resigned in the midst of the Court-packing debate. The next-to-last chapter covers "The Constitutional Revolution of 1937," that is, the string of decisions commencing in 1937 in which the Court uniformly upheld New Deal economic and regulatory legislation. The final chapter, "The Birth of America's Second Bill of Rights," is a survey of the incorporation controversy from John Marshall's decision in Barron v. Baltimore (1833) (affirming the historical understanding that the Bill of Rights restricted only the federal government) to the eventual application to the states, by 1969, of all of the important "civil liberties"

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protections of the first ten amendments.

The lectures and articles on which most of the chapters are based were originally delivered or published (or both) over a twenty-five year period from the mid-1960s to the late 1980s. In each case, however, they have been updated and revised for inclusion in THE SUPREME COURT REBORN. One chapter, on the Railroad Pension case, was written for inclusion in a projected two-volume history of the Court which will evidently be titled THE SUPREME COURT IN THE AGE OF ROOSEVELT.

Given that THE SUPREME COURT REBORN consists of chapters on discrete but overlapping aspects of the constitutional crisis of the 1930s, there is some repetition. Leuchtenburg acknowledges this feature of the book, however, and has taken pains to make the book as seamless as possible in order to render it useful both to those interested in specific questions and to those seeking an integrated overview of the events of the time.

The two chapters of greatest interest to political scientists may be those on the Court-packing plan itself. Leuchtenburg indicates in his introduction to the "origins" chapter that his account is "markedly different...from that set forth in the standard version of Joseph Alsop and Turner Catledge" (p. 82) and that it draws in part on the papers of Homer S. Cummings, Roosevelt's attorney general. Those papers became available after the publication of Leuchtenburg's own article on the Court-packing episode in the 1966 SUPREME COURT REVIEW, and as a result Leuchtenburg's revised account should be of great interest to students of the Court-packing episode and the scholarly controversies it has generated.

Leuchtenberg concludes that many "putative architects" of the Court-packing plan had little or nothing to do with it (p. 130), that "[s]ave for Cummings, no one in the Cabinet, not even the ubiquitous [Harold] Ickes, knew of the plan" (p. 126), and that the ultimate decision to propose that the Court be enlarged by the appointment of additional justices -- rather than to propose, for instance, that the Constitution be amended to give the federal government greater power to regulate commerce or that the Supreme Court's appellate jurisdiction be restricted. --was developed by a small group of Justice Department officials, including Cummings and Departmental consultant and Princeton professor Edward S. Corwin, with the President himself "intimately involved throughout" (p. 130).

THE SUPREME COURT REBORN is suffused with quotes from the diaries of Cummings and Ickes and others, from correspondence among New Deal decision makers, and from a wealth of other original sources. The book also draws extensively on the Supreme Court decisions of the period, on contemporaneous newspaper, magazine, and book-length accounts of the Court-packing proposal and other events, and on the mountain of scholarship that the constitutional crisis of the 1930s has generated. Leuchtenburg's own interpretive contributions are confined to the interstices of his text and are perhaps fewer and less bold than one might wish. The book is capably written and meticulously documented but is not a fertile

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source of provocative historical insights or memorable prose. Its greatest value lies in the care with which it has collected and presented the factual ingredients of one of the most intriguing and consequential periods of American constitutional history.