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Is this 1936?

The following contribution to our post-decision symposium on the health care cases is written by David E. Bernstein. David is the George Mason University Foundation Professor at the George Mason University School of Law in Arlington, Virginia, where he has been teaching since 1995. Professor Bernstein is also an expert on the “Lochner era” of American constitutional jurisprudence. He is the author of Only One Place of Redress: African-Americans, Labor Regulations, and the Courts from Reconstruction to the New Deal (Duke University Press 2001), and of Rehabilitating Lochner: Defending Individual Rights against Progressive Reform (University of Chicago Press 2011).

Before the ACA decision was announced, many liberal pundits warned that the Supreme Court was on the verge of repeating its mistake in 1936, when the Court revealed that retained a 5-4 majority hostile to broad regulation of economic activity.  These pundits suggested that if the modern Court invalidated the ACA, it would be repeating the mistake of its conservative New Deal-era predecessor.  The Court would then face a backlash of the sort that led to FDR’s Court-packing plan, and ultimately to the famous “switch in time that saved nine.”

Now that the Court has voted 5-4 to uphold the ACA, I want to suggest a different historical analogy, also focusing on 1936.  What if the Court’s ACA decision, like the Court’s controversial 1936 ruling invalidating a state minimum wage law, turns out to the last gasp of a dying constitutional regime?

In the early part of the twentieth century, traditional views of legislative authority gave way to more statist Progressive assumptions.  While Progressives thought of themselves as under siege, in retrospect we can say that the pre-New Deal era was one of Progressive dominance.  The problem legal Progressives faced, however, was they were never able to achieve a strong majority on the Supreme Court.  Disappointing appointees (McReynolds by Wilson), bad luck in the timing of vacancies (Harding’s four nominees), and an unwillingness by most of the Justices with a long pre-Court Progressive record to reconsider constitutional verities stymied Progressive reform on the Supreme Court.  The Court, nevertheless, did gradually and grudgingly uphold most of the novel regulations that came before it, but failed to relinquish the underlying ideological underpinnings of traditional constitutional doctrine.

The old Warren Court regime is not as thoroughly discredited as the Gilded Age Court was by the 1930s, and the modern era is perhaps not as thoroughly conservative as the early twentieth century was Progressive.  But conservative jurists have made remarkable strides in persuading legal elites that originalism and textualism are first rather than last resorts.  Conservatives have controlled the Executive Branch for the majority of time since Reagan was elected, but a combination of disappointing appointments (Souter), inopportune timing on the loss of the Senate (Bork), and a reluctance by various of the conservative Justices, save Thomas, to question the underpinnings of the preexisting constitutional regime has stymied radical change.

But what if Mitt Romney gets elected in 2012, and what if the current 5-4 conservative majority ultimately becomes a 7-2 majority, as Breyer and Ginsburg leave the Court?  The Harriet Miers debacle suggests that conservative constituencies will no longer tolerate a Republican nominee who is not a “sure thing.”

As important, the ACA litigation shows that ideas once deemed beyond the pale in “respectable” legal circles have now become mainstream among elite conservative lawyers.  Indeed, though the individual mandate was upheld, the five conservative Justices expressed a willingness to put real, substantive limits on the scope of the Commerce power (Lopez and Morrison were easily evaded). The five conservatives, plus two liberal Justices, also endorsed substantive limits on the Spending power, the first time such limits were applied to Congress since the 1930s.

Like the other Justice Roberts in the 1936, the current Justice Roberts unexpectedly voted with a 5-4 majority to continue the old regime.  But while the Justices continued to dance in 1936, the music had died.  Not only did the first Justice Roberts soon become a consistent vote to uphold New Deal legislation, but a series of FDR appointments unleashed a wave of liberal jurisprudence that ultimately went far beyond the Progressives’ original goal of keeping the courts out of economic matters.

The conservatives on the Court have already rewritten the constitutional law of campaign finance, sovereign immunity, and more, but only tenuously with five vote majorities.  A 7-2 or better majority would expand those rulings, but, more important, expand conservative jurisprudence into areas not currently considered in play.  What would happen to the Contracts Clause with a 7-2 conservative majority? Could vouchers for religious grade schools become  mandatory, not just permitted?  What powers now denied to the states would be allowed, and what powers now allowed to the federal government would be denied? Or maybe disputes between more “activist” and less “activist” Justices, and between libertarian-leaning and more authoritarian conservative woulds mimic the infamous Douglas-Black-Frankfurter debates of the early Warren Court.  The Old regime would be overthrown, but progress toward affirmative conservative goals for an indefinite period of time.

No one can accurately predict these things, of course, just as no one could have predicted that FDR’s war on an activist judiciary would ultimate result in Brown v. Board of Education, Roe v. Wade, and the like.

The obvious caveat is that Mitt Romney may not get elected, and if he does he may not get to appoint any Justices.  Moreover, the Warren Court revolution was given crucial support by Eisenhower appointees, and it’s hard to imagine that future Democratic nominees will play a similar role on a future conservative Court.

But then history never repeats itself precisely. So my point is simply that despite the Obama administration’s victory today, we [may–Italics] be on the cusp of new and unpredictable era in conservative jurisprudence.  Liberal pundits were sure that the Commerce Clause challenge to the individual mandate would lose 8-1, and that the Spending Clause challenge to Medicaid expansion was even more frivolous.  These pundits may be in for even greater surprises in the relatively near future.

Recommended Citation: David Bernstin, Is this 1936?, SCOTUSblog (Jun. 29, 2012, 9:32 AM),