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Con Law Symposium: the New Deal and the Obama administration

February 02, 2012

By Jenny Chung C’12

Panelists at the Journal of Constitutional Law Symposium convened Jan. 20 explored constitutional law lessons derived from the New Deal and their relevance to the Obama administration.

According to JCL Editor-in-Chief Vivian Lee L’12, who delivered opening remarks, the Symposium aimed not only to advance dialogue within the discipline of constitutional law scholarship but also to showcase the “best work from the brightest scholars” in the field.

IMG_4402.jpgPenn Law Dean Michael A. Fitts further characterized the New Deal as a “transformative Constitutional moment,” reflective of an “obvious connection” between doctrinal issues of Supreme Court decision-making and events occurring beyond the Court’s chambers. The Symposium, Fitts said, addressed a topic both “amazingly timely” and “academically important.”

The first of the day’s panels centered on the court-packing plan proposed by President Franklin Roosevelt and its influence on present-day perceptions of the three branches of government and the separation of powers they collectively enforce.

Texas Southern University School of Law Professor Craig Jackson, who acted as panel moderator, opened discussion by remarking on the significant theoretical development occurring within the period in question, which—like the present—had confronted a range of economic and social pressures.

The panel commenced with University of Virginia School of Law Professor Barry Cushman’s critique of Supreme Power: Franklin Roosevelt vs. The Supreme Court, authored by historian Jeff Shesol and named a 2010 New York Times Notable Book of the Year.

Cushman explained that any history of the court-packing controversy intends to answer three questions: how to understand the “political story,” or trajectory of the plan; how to understand the “legal story,” or constitutional landscape that confronted New Deal reformers; and how to articulate the relation between both narratives.

While Cushman commended Shesol’s rendering of the “political story,” in his view the author’s attempts to answer the second and third questions were less successful.
Shesol’s treatment of the topic, according to Cushman, overlooks the fact that doctrine was frequently employed by Justices to fulfill ideological and class ends.

Additionally, Cushman said, Shesol’s misunderstanding of legal doctrine resulted in his misconstruing certain court decisions and contributed to his failure to illustrate the relationship between the legal and political narratives at hand. “Shesol does not assess the salient causal elements and possibilities […] he instead tries to place potentially relevant factors on the table but doesn’t integrate them into comprehensive accounts,” Cushman concluded. “He never finds firm middle ground on which to stand.”

Cushman was followed by Professor Laura Cisneros of the Golden Gate University School of Law, who examined the legacy of the court-packing plan and its effects on institutional power arrangements with reference to the plan’s use and significance as a rhetorical tool.

Among the plan’s effects, Cisneros asserted, were the realigned balance of power among the branches, the reassertion of Congressional power vis-à-vis the President and the formation of factions within the Democratic party.

Though the term “rhetoric” has suffered a “serious decline in popular perception”— given its suggestion of “deceit [and the] dishonest use of language”—she maintains that this perception is “incomplete,” given the value of rhetorical orientation.

“Understanding a writer’s perception of experience provides insight into their basis for knowing what they know,” she explained. “What we see as reality is shaped by the words we use, and what we say is a product of how we say it.”

To Cisneros, the court-packing plan’s sustaining significance is representational: specifically, it functions as a trope signifying “institutional hegemony and governmental hubris and excess.” Close-reading both concurring and dissenting Supreme Court opinions to bolster her claims, Cisneros establishes the role of the court-packing plan’s language as a reminder to the public that judicial independence remains a vital component of the system of government and as a confirmation of the integrity of the separation of powers.

IMG_4483.jpgNYU School of Law Professor Deborah Malamud concluded the panel by addressing the New Deal’s “social and cultural radicalism,” its “preservative role” with regard to existing class structures and “resonance” with the current administration’s policy decisions.

In adjudicated cases of the New Deal involving the exercise of judicial power, Malamud said, “it is convincing that it made a big difference that the legal work done by the New Deal administration and the soundness of the litigation strategy made a big difference in what was rejected or accepted.” Adding that the above constitute “powerful internalist arguments” and stressing the importance of “[taking] seriously the phenomenology of the feeling of constraint by doctrine,” she explained that the “struggle with the question of doctrinal constraint was inconsistent with a purely externalist account.”

Malamud subsequently affirmed the necessity of attending to the Court’s own perception of the political and economic exigencies of the time in which the Justices lived, as decisions made under the conditions of “perceived exigency” acquire “precedential value.”

“Justices are called upon to understand the needs of the day,” she said, inviting the audience to contemplate how this condition influences the “positions taken by key Justices.” 

After a break for lunch following the first panel, Symposium attendees and participants reconvened for an interview featuring Jeff Shesol, conducted by Jeffrey Toobin for C-SPAN’s Book TV.

When asked about the impetus governing his authorship of Supreme Power, Shesol replied that he had consistently been “drawn to stories of conflict,” and the court-packing crisis may arguably be the “greatest constitutional conflict” of the age. “Institutions and individuals [were] fighting for great stakes,” he reflected.

Shesol recounted each stage of the conflict between Roosevelt and the Supreme Court, which had “struck down the centerpieces of the New Deal […] in short succession.”

“The real question was whether FDR [could] get anything fundamental done because the Supreme Court was standing in the way of everything,” he recalled.

The oldest Court in U.S. history, Roosevelt’s Court was known popularly as the “nine old men” and, according to Shesol, still subscribed to the spirit of the 19th century on many issues. “Justices were scrambling in favor of doctrines thought dead for decades [and] applying them with vigor to New Deal cases,” Shesol explained.

Though the prospect of amending the Constitution had greater currency than that of court-packing, FDR rejected the former notion as he was convinced that the “problem” can be traced to the group of Justices as opposed to any inherent contradiction between the Constitution and the New Deal.

Despite playing out decades ago, Shesol said, the court-packing conflict is not without relevance to present-day issues. “It raises the question of whether the Court is a political institution and whether public pressure should exercise any influence on [its practices]—the perennial question in American public life,” he explained.

“The Court had taken itself out of the mainstream of American thought and was standing in the way of what a lot of Americans felt had to be done; it had allowed itself to fall out of step, and there was a sharp public counterreaction which had an effect on the Court itself and its decisions.”