The Judicial Bookshelf

Author: Stephenson D.G.

Source: Journal of Supreme Court History, Volume 28, Number 3, November 2003 , pp. 370-386(17)

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Abstract:

Standard nomenclature in Supreme Court literature contrasts the “old Court” and the “new Court” (or, sometimes, the “modern Court”). By most accounts, the dividing line between the two falls during the years 1937–1940, when the nation witnessed a judicial and constitutional revolution. The proverbial “irresistible force” (in the form of President Franklin Roosevelt's New Deal program to cope with the Great Depression) met the “immovable object” (in the guise of the Supreme Court under the leadership of Chief Justice Charles Evans Hughes that, for a short time, stymied many of the President's initiatives). The result was Roosevelt's audacious assault on the Court through the Court-packing plan and the hasty change of mind by Hughes and Justice Owen J. Roberts that gave Roosevelt the five sure votes he needed so that his agenda could receive the constitutional stamp of approval. This flip-flop was promptly followed by the Court's adoption of a new agenda for itself, one that elevated civil liberties into a preferred position in the hierarchy of constitutional values and demoted property interests, which heretofore had been accorded heightened judicial protection.

Document Type: Research article

DOI: http://dx.doi.org/10.1111/1540-5818.00071

Affiliations: 1: Franklin and Marshall College

Publication date: 2003-11-01