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Book Review
| Edward G. White, The Constitution and the New Deal, Cambridge: Harvard University Press, 2000. Pp. x + 385. $ 45.00 (ISBN 0-674-00341-1).
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| Ted White has been nosing around the New Deal years for some time. The book implied by and derived from this activity has finally appeared. In it White has joined New Deal revisionists, such as his colleague Barry Cushman, in opposition to the traditional story about how Roosevelt's court packing plan—the famous switch in time that saved nine—precipitated a revolution in the Supreme Court's jurisprudence. According to this tale, told first by the Princeton political scientist Edward Corwin, further popularized by William Leuchtenburg, and recently reinvigorated by Bruce Ackerman, in 1937 the Court abandoned both careful scrutiny of social and economic legislation and, at the same time, adopted careful scrutiny of actions taken to limit the civil rights of citizens, in effect reversing the polarity of its jurisprudence. |
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In opposition to this story, White offers up a slow shift away from a conception of the judicial function as applying "prepolitical, essentialist constitutional principles" (4) by means of what he calls "guardian" review, the policing of the boundaries between the powers of governmental units and between governmental units and the powers of private citizens—powers that were seen by late nineteenth-century legal theorists as, in Duncan Kennedy's words, "absolute within their spheres." According to White, it was only at the end of this slow shift that the judicial function in constitutional cases was seen as explicitly political and deferential to the legislative branches in economic matters, but not in matters affecting civil rights; so that, in order to maintain the ideal of the rule of law, judges adopted what White calls "bifurcated" review. |
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White sees this change not as the political revolution that Corwin and others identify, but as the Court's confrontation with modernity—"the combination of advanced industrial capitalism, increased participatory democracy, the weakening of a hierarchical class-based social order and the emergence of science as an authoritative method of social inquiry" (5). In response, the Court adopted an explicitly "modernist" consciousness that gave "human agency ... a position of causal primacy in the universe, and thus takes for granted that humans are capable of controlling their environment and shaping their collective destiny" (5). In support of his proposition, explicitly linked to a similar one by Dorothy Ross, White carefully and most often persuasively examines foreign relations law, administrative law, and free speech doctrine; then the jurisprudence underlying the first Restatement project and the jurisprudential language used in the crucial New Deal era cases; and finally the way that the record of the change in jurisprudential understanding was shaped by later scholars in discussing the relevant court cases and in reflecting on the careers of Holmes and Brandeis. |
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I have no trouble seeing that the conventional account of the New Deal's relationship to the Court is flawed. Doctrinal change seldom comes overnight except in constitutional law classes. In courts it most often comes slowly and piecemeal. At the same time I am unpersuaded by the broader proposition that the change White chronicles is a jurisprudential response to modernity and therefore not a political shift. After all, the changes in economic and social relations that he labels modernity are intensely political. |
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The structure of White's argument consists of the refutation of the claim of a narrowly political cause—the switch in time—interwoven with demonstrations of change in jurisprudential language over time. White is very good, surely one of the best, at treating judicial utterances as the materials for an intellectual history. There is, however, a significant difficulty in his doing so. White's work here is remarkably uninfluenced by American Legal Realism, odd for one who has written often and illuminatingly on the topic. In seeking evidence for his modernist thesis in judicial rhetoric, White (and here he is by no means alone) regularly chooses to take such rhetoric at face value. Whatever the case in intellectual history generally, in the case of the speech of lawyers this seems to me to be a mistake. |
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Lawyers are masters of a particular public rhetoric. They speak as they do in public because that is the language available to them and the best evidence of that proposition is their often quite different speech chosen in dissent, speech that White from time to time makes use of. What lawyers believe and thus why they do things are not necessarily closely related to what they say. They may be, but they may not. Rather, it seems likely that Fred Rodell had it right when he quipped, "For Every Justice Judicial Deference Is A Sometimes Thing" (Georgetown Law Review 50 [1962]: 700). |
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The language that is any rhetoric makes certain things easier to do because they are easier to say. But within a rhetoric, judges then, as now, seem capable of using shared words to reach differing results. When those differing results show discernible patterns at the margins, which in our overdetermined world is the only place where they would show up, it seems plausible to treat those patterns as reflective of some ideology properly described as political. Whether the judges are able to 'fess up to this political aspect of judging within a given rhetoric may be interesting as a matter of la deformation professionnelle, but it strikes me as unlikely that a good lawyer is significantly constrained by that rhetoric in any crucial instance. Perhaps all of the Four Horsemen and those who voted with them were poor lawyers who deployed their rhetoric unthinkingly and reflexively. That is surely what the progressive academic commentators said at the time. However, I rather seriously doubt that such was the case. |
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| John Henry Schlegel
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| State University of New York at Buffalo |
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