The Man on the Flying Trapeze

83 Pages Posted: 29 Jan 2012 Last revised: 26 Jul 2013

Date Written: January 27, 2012


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.

Keywords: New Deal, Hughes Court, Court-packing plan, Jeff Shesol

Suggested Citation

Cushman, Barry, The Man on the Flying Trapeze (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, Available at SSRN:

Barry Cushman (Contact Author)

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States

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