Correcting Jonathan Cohn on the New Deal Cases

(David Bernstein)

Cohn in TNR:

I've tried to make the case previously for why a decision striking down even part of the Affordable Care Act would be so brazen and unjustified… It'd be a five-to-four vote, along party lines, overturning a sweeping legislative initiative on what would be, at best, shaky constitutional arguments. That hasn't happened since those early New Deal cases, just as Obama suggested.

Actually, the most important of the New Deal laws invalidated by the Court, the National Industrial Recovery Act, a law far broader than the ACA, went down 9-0. The other two New Deal decisions on "Black Monday" in 1935 were also 9-0. The second most important piece of New Deal Legislation to be invalidated by the Court, the Agricultural Adjustment Act, went down 7-2. The Guffey Coal Act went down 6-3. Offhand, I can think of several major pieces of New Deal legislation that were upheld 5-4, but I'm drawing a blank on ones invalidated by that vote.

And the Court was NOT split along party lines. Justice James McReynolds, who typically voted with the conservatives, was a Democrat, as was Justice Brandeis, who led the Progressive wing of the Court. All of the other seven Justices were Republican appointees, and most of them were loyal Republicans (as opposed to, e.g., Justice Cardozo, who Hoover appointed because he was the most prominent judge of his era, and not for standard "political" reasons).

So in a sense, from Cohn's perspective, this would make a decision invalidating the ACA even worse. But one can rejoin that never has such an important piece of federal legislation been rammed through on a narrow, partisan vote. And given the Schechter case invalidating the NIRA, it's also true that the Court has even in times of great economic crisis saw fit to unanimously invalidate the signature piece of legislation of an overreaching president. One difference, today, of course, is that the liberal wing of the Court, led by Justice Breyer, sees NO justiciable limits on the scope of federal power, so there's no hope of a unanimous, or even bipartisan, vote today.

Finally, as Barry Cushman points out, the biggest reason early New Deal legislation had trouble getting past the Supreme Court is that the Roosevelt Administration didn't take care to draft the legislation to avoid constitutional objections. Sound familiar?

[post expanded a bit from the original]