New Court Personnel

The justices President Roosevelt appointed to the Supreme Court would preside over an historic shift in judicial priorities. The New Deal Court gave government the widest leeway with respect to the public regulation of business and property. In order to pass constitutional muster, regulatory legislation only had to have a rational basis related to a legitimate legislative purpose. On the other hand, legislation affecting civil rights and liberties would be subject to a higher standard of judicial scrutiny.

The Commerce Power Unrestrained

The New Deal Court expanded the scope of Commerce Clause jurisprudence in a series of groundbreaking cases. The Court ruled in Darby (1941) that Congress’s exercise of the commerce power is not restrained by the Tenth Amendment. It stretched the Commerce Clause even further in Wickard (1942) and Edwards (1941) to regulate the conduct of private persons in activities only indirectly related to interstate commerce.

The Dormant Commerce Clause Doctrine

The Court expanded on the dormant commerce clause doctrine developed over a century earlier by the Marshall Court. In H.P. Hood (1949) the Court invalidated a New York state licensing measure as a violation of the commerce power even where the federal government had not acted on the issue.

No Federal Common Law

In Erie Railroad Company v. Tompkins (1938) the Supreme Court overturned the rule of Swift v. Tyson (1842). The Erie Court held that federal courts exercising diversity of citizenship jurisdiction must apply all the law of the states in which they sit, case law as well as statutes, thereby voiding nearly a century of federal common law.

Selective Incorporation of the Bill of Rights

Although the New Deal Court virtually abandoned substantive due process with respect to property rights, it applied the doctrine with renewed vigor to protect civil and political liberties. Individual guarantees of the Bill of Rights were selectively enforced against states through the Due Process Clause of the Fourteenth Amendment. Among the first guarantees enforced at the state level were the right to counsel in capital cases and freedom of press.

The Total Incorporation Theory

Justice Black rejected selective incorporation of some of the guarantees of the federal Bill of Rights and advocated instead extending all the federal guarantees to the states. Although his views nearly prevailed in Adamson v. California, the Court, for essentially pragmatic reasons, remained committed to selective incorporation.

Expanding First Amendment Rights

The Court vigilantly protected the First Amendment rights of groups and individuals engaged in public protests and demonstrations, such as picketing and parades. While public authorities could regulate such activities in preserving public order, they could not do so arbitrarily. All regulations of public speech had to be reasonable and consistent with the underlying constitutional right to engage in the activity being regulated.

Political Dissent

The Court even extended First Amendment protection to speech calling for the overthrow of the government. So long as such speech did not pose a clear and present danger to public safely, it was protected by the Constitution.

The Preferred Rights Doctrine

In Thomas v. Collins (1944) the Supreme Court went a step further, holding that laws restricting First Amendment rights do not enjoy the usual presumption of constitutionality. The reason, the majority explained, is that certain rights enjoy a preferred place in the constitutional scheme of things. This resulted in a double standard of constitutional interpretation, wherein some statutes would enjoy the presumption of constitutionality, while others would be treated as presumptively unconstitutional.

Religious Freedom

In Arver (1918) the Court held that the First Amendment does not in itself protect conscientious objectors from conscription for military service. While Congress may exempt them from service, they have no constitutional right to be exempt. Similarly, in Hamilton (1934) the Court held that the amendment does not exempt pacifists from military training as a condition for attending a state university.

Jehovah’s Witnesses Cases

During the 1930s, the Jehovah’s Witnesses undertook an unprecedented proselytizing campaign in the United States, prompting a spate of litigation on religious rights. The Court upheld the right of the witnesses to proselytize through public speeches and fliers so long as they did not breach the peace. However, the Court struggled with whether witnesses could be exempted from mandatory flag salutes in public schools. In Gobitis (1940), the Court ruled that the First Amendment did not exempt students from participating in flag salutes on religious ground. However, the ruling was overturned in Barnette (1943) only three years later.

The Establishment Clause

The Establishment Clause of the First Amendment was at issue in cases involving public support for church-related schools, as well as cases involving religious instruction in public schools. The rulings were deeply divisive at the time and precipitated continuing controversy over church-state relations.

Some Racial Justice

Established in 1909, the National Association for the Advancement of Colored People was instrumental in bringing civil rights cases to the Supreme Court. The NAACP’s earliest legal victories came through challenges to state suffrage laws designed to prevent African Americans from voting. Although “grandfather clauses” favoring the suffrage rights of whites were held unconstitutional by the Supreme Court, these rulings did not prevent other and more sophisticated attempts to rig the ballot.

The White Primary

One of the most effective methods used to disenfranchise blacks was the so-called “white primary.” Arguing that political parties were private associations and therefore not bound by the Fourteenth and Fifteenth Amendments, the Democratic party in the South barred blacks from voting in its primaries. In Smith v. Allwright (1944) the Court overturned an earlier ruling, holding instead that political parties are public entities with respect to elections and therefore subject to the same constitutional constraints as the states.