Judicial Restraint and the Acceptance of the Administrative and Social Welfare State

In April 1937, the Court handed down decisions in several important cases involving state and federal legislation from the second New Deal. The two swing votes on the Court (Justices Roberts and Hughes) joined the liberals, providing the basis for the derisive contemporary comment that, in view of the pending Court-packing measure, their actions were a "switch in time that saved nine." In West Coast Hotel v. Parrish, the court by a five-to-four vote sustained a Washington State minimum-wage law, abandoning the substantive due-process arguments that it had previously invoked to strike down state regulatory measures. Shortly thereafter the justices granted labor a significant victory, upholding the Wagner Act in National Labor Relations Board v. Jones and Laughlin Steel Corporation. The Court discarded the rule against manufacturing as commerce that it had relied on only two years before in Schechter. Justice Hughes, speaking for another five-to-four majority, found that the unfair labor practices outlawed by the Wagner Act were detrimental to interstate commerce. "When industries organize themselves on a national scale," Hughes concluded, "making their relation to interstate commerce the dominant factor in their activities, how can it be maintained that their industrial labor relations constitute a forbidden field into which Congress may not enter when it is necessary to protect interstate commerce from the paralyzing consequences of industrial warfare?"³²

The Court's changed direction undercut the little congressional support still re

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maining for the Court-packing plan. Charitably, one could say that Roosevelt had lost the battle but won the war. The justices proceeded to endorse the other major parts of the second New Deal. These included Social Security in Steward Machine Co. v. Davis ( 1937), the Fair Labor Standards Act in United States v. Darby ( 1941), and the second Agricultural Adjustment Act (AAA) in Wickard v. Filburn ( 1942). Moreover, by 1941, Roosevelt had placed his own stamp on the Supreme Court with seven new appointments. Among the new justices were Felix Frankfurter, a Roosevelt crony and adviser, Hugo Black, a senator from Alabama, and William O. Douglas, chairman of the Securities and Exchange Commission during the New Deal. Together they composed the heart of the Roosevelt Court that dominated American constitutional law through the 1960s.

The Court-packing scheme and the Court's changed direction climaxed a long struggle by legal and economic progressives to force the justices to accept the social welfare and administrative state. The New Deal between 1933 and 1940 created fourteen new agencies whose duties it was to manage rather than police the various aspects of the economy. A significant part of the economic regulatory business of the nation, over which the federal courts had presided since the 1880s, was finally in the hands of administrative agencies that exercised powers granted to them by Congress. Administrative regulations, moreover, replaced judicially applied common law principles as the most important rules governing the conduct of the national economy. This constitutional revolution also destroyed the last barriers to the welfare state and embraced the "transformation of the presidency into an instrument of virtually permanent emergency government."³³

The constitutional developments of the New Deal had somewhat contradictory consequences for the Supreme Court. On matters of economic regulation the justices eventually adopted a position of judicial restraint. One of the most important demonstrations of this was its decision in Erie v. Tompkins ( 1938). This case involved an injury sustained by a man hit by a train while walking along the tracks of the Erie Railroad in Pennsylvania. In that state the common law rule held that he had no cause of action because he was negligent for walking on the tracks. Instead, he brought suit in federal court based on grounds of diversity of citizenship between himself and the railroad. He won damages of $30,000, but the railroad appealed to the Supreme Court.

Since the late nineteenth century, liberal critics of federal judicial power had complained that the diversity jurisdiction of the federal courts had given its judges too much power. They aimed their criticism specifically at the Court's earlier decision in Swift v. Tyson ( 1842), in which Justice Joseph Story had tried to establish the basis for a consistent and uniform body of commercial law supervised by the federal courts. In practice, the result had been two sets of common law, one state and one federal, and a disposition by the lower federal courts (which, ironically, was not followed in Erie) to favor interstate corporations.

Justice Brandeis wrote for the majority of the Court in remanding Tompkins's case back to the federal court for trial on the basis of Pennsylvania law. For the first and only time in U.S. history, the Court in Erie declared one of its own decisions ( Swift v. Tyson) unconstitutional. Brandeis held that the Constitution had made no provision for a federal common law of any kind, whether commercial or criminal. The decision was a ringing affirmation of the independence of state courts and state law within the federal system.

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In operation, however, the decision did not diminish the power of the federal judiciary and no new authority was allocated to the states. Moreover, the federal courts retained an important hand in matters of economic regulation, because an increasingly large part of their responsibilities entailed interpretation of congressional statutes delegating broad powers to administrative bodies.

The Supreme Court also had substantial authority, thanks to the expanded certiorari jurisdiction in the Judiciary Act of 1925, to reset its agenda. In the highly fluid society of the emerging modern United States, special-interest litigation groups, such as the NAACP and the ACLU, pressed the justices to blaze new paths of constitutional law. The New Deal, for example, had treated blacks paternalistically, and the NAACP recognized as a result that important civil rights breakthroughs would have to be imposed by the judicial rather than the political process. The ACLU was already seeking fuller protections for the civil liberties of various minority political and religious groups. The New Deal had demonstrated that the law and legal institutions could be positive, active forces. With the matter of economic regulation largely settled, and with Roosevelt appointees filling judgeships, the federal courts were primed to consider a range of new civil liberties and civil rights issues.

Emergence of Liberal Legal Culture

The New Deal culminated a long-term trend toward greater centralization of lawmaking power in the national government and a declining role for the states as primary centers of policy making. Economic crisis, the legacy of Progressivism, and the experience of World War I encouraged the development of a relativistic and instrumentalist view of law. The emergency of the Great Depression justified programs that, in short order, became the central features of the American version of the social welfare state. More so than ever before in U.S. history, lawmakers emerged as social engineers, who believed that government had a positive responsibility to fix a basic standard of living and to smooth out the erratic swings in the business cycle. The concept of distributive justice, which stretched back into the nineteenth century, took on a new meaning, one in which government under law was supposed to diminish economic risk taking and to heighten individual economic opportunity. Lawmakers had an affirmative duty to provide for rights and liberties, not just to refrain from interfering with their enjoyment. If the courts were to restrain themselves in considering economic regulatory measures, the new configuration of rights consciousness encouraged them to act assertively to promote individual rights and liberties. This new approach raised powerful expectations among groups long disadvantaged, such as blacks, ethnics, native Americans, and women, that judicial institutions were on their side and that through them old wrongs could be legally righted.

The Great Depression was the catalyst of liberal legalism, the dominant force in the U.S. legal culture after World War II. Liberal legalism is an inchoate and largely unarticulated concept, but in its essence it fused the social reformist impulse of Progressivism, the relativism and instrumentalism of legal realism and sociological jurisprudence, and the regulatory responsibility of the state associated with the New Deal. ³⁴ The traditional liberal doctrine of laissez-faire and individualism, which had been in tension with the concept of an active state since the founding of the nation, finally gave

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way to the new orthodoxy of liberal legalism. It held forth the promise of broad-scale social justice by relying on the administrative-legal process and judicial power to resolve conflict among contending social interests. ³⁵ Yet, as the Wagner Act foreshadowed, the roots of liberal legalism in the New Deal stressed social stability and harmony; rights protected by the state were exercised subject to how the public interest might best be served. The New Deal's commitment to state responsibility for curing social and economic ills was a final break from traditional laissez-faire assumptions, but, in both public and private law, the course of the new liberal legalism in the forty years after World War II was as uncertain and fraught with contention as that which it replaced.

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15
Contemporary Law and Society

Consensus, Social Change, and the Law Explosion

Following the carnage of World War II, the world's richest and most powerful nation locked ideological horns with its former ally, the Soviet Union, in a new kind of conflict called the Cold War. Americans in the 1950s settled into a period of political consensus in response to the threat of communism. This consensus upheld the idea that the United States was a free, moral society, and a political democracy that cherished individual equality and public discourse. Republicans and Democrats, while differing on specific policies, embraced a bipartisan foreign policy, the social welfare state, and the scheme of government--business relations forged by the New Deal.

Lyndon B. Johnson, who became president in 1963 following the assassination of John F. Kennedy, attempted to build upon this consensus. Johnson was a New Deal Democrat whose Great Society program was the embodiment of liberal legalism. It proposed to use legal authority to foster equality of opportunity by promoting racial harmony and by fighting, through the largess of the federal government, a War on Poverty that involved urban renewal, job training, public housing, education, and health and legal services for the poor.

This political consensus crumbled during the late 1960s and early 1970s under the weight of the Vietnam War and social, technological, and scientific change. As Martin Luther King, Jr., the leader of the black civil rights movement in the 1960s, explained, the Great Society was "shot down on the battlefield of Vietnam." ¹ Antiwar protesters began with the nonviolent tactics of the black civil rights movement, but peaceful resistance turned to political rebellion and a counterculture of drugs, free love, and rock music. Drug freaks and antiwar protesters were lumped together in the minds of the majority of Americans, many of whom were fed up with the war but clung to the traditional values of hard work, the nuclear family, good manners, and patriotism.

The rebels of the 1960s, products of the baby boom of the postwar era, became in

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large part the "me" generation of the 1970s and 1980s. At the height of the baby boom, the average family had more than 3 children. By 1980, that figure had fallen to less than 1.6 children. The declining birthrate of the 1960s and 1970s reflected changing attitudes toward gender roles and women's new economic aspirations as well as the availability of oral contraceptives. Attitudes toward marriage, childraising, and the family also changed. The divorce rate surged, climbing 100 percent during the 1960s, and premarital sex and homosexual relationships between consenting adults became socially acceptable.

The baby-boom generation also ushered in a new crime wave. The ranks of the most crime-prone age group, that of fifteen to twenty-four, swelled by more than a million persons a year during the 1960s. Between 1960 and 1974, the year with the highest crime rate in the twentieth century, the crime rate soared 203 percent with violent crimes against people rising even faster. The assassinations of John F. Kennedy ( 1963), Robert F. Kennedy ( 1968), and Martin Luther King Jr. ( 1968), as well as the attempted assassination of George C. Wallace ( 1972), contributed to a sense of unbounded lawlessness, as did the great urban riots in New York, Newark, Los Angeles, Cleveland, and Detroit from 1964 to 1968.

The United States seemed to be "unraveling." ² The wisdom of the leaders, either in business or politics, was no longer taken for granted. Even the "silent majority," to which Republican President Richard M. Nixon successfully appealed in 1968, had its faith shaken. Nixon, a longtime proponent of law and order, resigned in 1974 after revelations that he had attempted to cover up a break-in by his political henchmen at Democratic national headquarters in the Watergate complex in Washington, D.C.

The loss of faith in leadership encouraged an atmosphere of impatience with previously ignored social and environmental issues. Feminists, environmentalists, and consumer rights advocates, while different in many ways, shared an instrumental view of the legal system, borrowing from the courtroom tactics pioneered by the NAACP. Its lawyers in 1954 won a landmark victory in Brown v. Board of Education, which overthrew the doctrine of separate but equal in public facilities. The decision nourished the sense of rights consciousness that had begun in the World War I era and, as important, demonstrated the possibilities of social change through litigation. Special- interest litigation became a fixed feature of the contemporary United States.

Rapid technological and scientific advances also placed new demands on the legal system. The computer, jet flight, robotics, in vitro fertilization, and complex life support systems made possible undreamed-of feats that afforded Americans control over "time, distance, and destiny" to a degree unparalleled in the nation's history. ³ These developments furthered a trend that had originated with the Industrial Revolution: social interdependence. Strangers increasingly relied on strangers to perform the myriad tasks of a complex modern society.

By the late 1970s, observers of the U.S. legal system had concluded that the combination of a brittle social order and rapid technological change had produced a "law explosion." "Americans in all walks of life," reported a popular weekly news magazine in 1978, "are being buried under an avalanche of lawsuits." ⁴ The quantitative evidence suggests a rise in the number of civil and criminal cases filed in state trial courts, and between 1960 and 1980 the number of cases filed in the federal courts of appeal almost quintupled, and during the same period filings in the Supreme Court more than doubled. ⁵

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Whether this increase in court filings constituted an explosion (an unprecedented and unwieldy increase in the appeal to the courts to settle problems at a greater rate than in the past) remains in hot debate. But there is no doubt that important qualitative changes did occur in the legal culture that involved the legal profession, substantive private law, the criminal justice system, and the federal administrative and regulatory apparatus. In the next chapter we shall examine the ways in which these changes appeared in public law.

Date: 2015-01-29; view: 573