The Man on the Flying Trapeze
Notre Dame Law School
January 27, 2012
University of Pennsylvania Journal of Constitutional Law, Vol. 15, 2012
Notre Dame Legal Studies Paper No. 1336
Virginia Public Law and Legal Theory Research Paper No. 2012-06
Any history of the controversy over President Franklin D. Roosevelt's Court-packing plan sets out to answer three principal questions. The first is how best to tell what I will call the political story: how to understand the political trajectory of the Plan from its initial conceptualization to its ultimate failure. The second is how best to tell what I will call the legal story: how to understand the constitutional landscape that confronted New Deal reformers, how they negotiated it, and how and in what respects the Supreme Court transformed that body of constitutional law during the Great Depression. The third is how to specify the relationship between these two stories. What effect, if any, did the events recounted in the political story have on the legal story? Each of the three Parts of this essay offers an evaluation of Mr. Jeff Shesol's efforts to address each of these questions in his book, Supreme Power: Franklin Roosevelt vs. The Supreme Court. Part I discusses Mr. Shesol’s treatment of the political story; Part II takes up his account of the legal story; and Part III explores his analysis of the relationship between the two. I conclude that while Mr. Shesol does a very nice job with the first question, his efforts to answer the second and the third are not nearly so successful.
Number of Pages in PDF File: 83
Keywords: New Deal, Hughes Court, Court-packing plan, Jeff Shesol
Date posted: January 29, 2012 ; Last revised: July 26, 2013
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