Book Review

At noon on February 5, 1937, President Roosevelt delivered a message to the United States Congress recommending passage of his proposal to reform the federal court system. This court-packing plan, which was modeled on a recommendation that James McReynolds had made during his term as Woodrow Wilson's attorney general, was immediately seen as a partisan measure. Republicans, Arthur Krock reported in the New York Times, "were at first stunned" but soon "burst into violent criticisms"; leaders of the conservative Democrats warned of "real opposition"; while more liberal members of Congress asserted that the proposal was based on "a sound principle of judicial reform."	1
The political drama that unfolded in the months that followed captured the attention not only of the players--administration officials, legislators, and the justices themselves--but also of the journalists who covered the national political scene and citizens who, despite their rousing endorsement of FDR in the 1936 elections, grasped the significance of the reform proposal and voiced their opposition.	2
As Barry Cushman notes in his introduction to Rethinking the New Deal Court, scholars too have been "inclined to predominantly political explanations of judicial behavior," thereby obscuring "interesting lines of development in constitutional thought and doctrine" (4). His strategy, in contrast, is to examine judicial decision making in cases that served as precedents and those that dealt directly with New Deal legislation. His objective is to challenge the standard political account of the constitutional revolution that occurred by offering an alternative approach that deals almost exclusively with the evolution of judicial thinking in the early decades of the twentieth century. "Judges," he reminds us, "are participants not merely in a political system, but in an intellectual tradition in which they have been trained and immersed, a tradition that has provided them with the conceptual equipment through which they understand legal disputes. To reduce constitutional jurisprudence to a political football, to relegate law to the status of dependent variable, is to deny that judges deciding cases experience legal ideas as constraints on their own political preferences" (41).	3
Starting from that premise, Cushman traces the evolution of constitutional concepts that, taken together, provided the justices--at least those who were prepared to reevaluate established guidelines in light of current circumstances--with sufficient grounds for deciding in favor of New Deal regulations. The real revolution, he concludes, came with "the replacement of the Nine Old Men with younger men who had more recently come to legal maturity--men who, though not without difficulty, were able to break free from an older constitutional vocabulary and embrace a new conception of the judicial function--that brought forth a new paradigm for commerce clause jurisprudence" (224).	4
Over the course of three decades, the justices struggled with a variety of questions: What is meant by "liberty of contract"? Do government regulations undermine the "principle of neutrality" in labor-management relations? What is a "business affected with a public interest"? Where is the line drawn between "intrastate" and "interstate" business? Is a labor union protected by the constitutional provision for freedom of association? Cushman examines the justices' answers to these questions and endeavors to explain why their thinking changed over time.	5
The shift in the Court's position resulted in part from a realization that long-held assumptions relating to labor and management were simply not valid. However, individual justices--most notably Oliver Wendell Holmes and Charles Evans Hughes--played critical roles. Holmes's major contribution to the debate was reliance on the "current of commerce" concept, which greatly expanded the number of businesses falling under the jurisdiction of the Commerce Clause. Hughes, in turn, "summoned his considerable skills at doctrinal synthesis" (86) in an effort to reconcile new views on specific issues with established principles. He also led the Court in the direction of a more liberal interpretation of free association, one that shaped their decisions regarding unions and greatly enhanced the bargaining position of labor.	6
Cushman examines relevant correspondence, conference notes, memoranda, and drafts as well as the opinions delivered by the justices. His research is impressive, but the absence of a complete record--justices of this generation were inclined to dispose of both personal and official files--forces him to resort to a good deal of speculation as he attempts to determine factors that influenced judicial reasoning and final votes. This is most evident when he attempts to determine why justices, particularly Owen Roberts, voted as they did. The discussion of Morehead v. Tipaldo, A. L. A. Schechter Poultry Corp. v. United States, and Carter v. Carter Coal Co. is, for example, rife with guessing (92 ff.). The questions Cushman raises and the explanations he gives are certainly logical; however, the conclusions are not definitive and, ultimately, leave him open to the same criticism--not enough hard evidence--that he levels against scholars who have focused on the political aspects of this episode.	7
Similarly, Cushman's one-dimensional approach has its shortcomings. While Cushman makes a strong case for weighing intellectual developments on the Court, to set aside the influence of politics is neither realistic nor satisfying. What needs to be determined is the extent to which the Court's shift was governed by changes in judicial thinking rather than political pressures, and this is an issue that is left unresolved.	8
Christine L. Compston Bellingham, Washington

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