The History of the Countermajoritarian Difficulty, Part Four: Law?s Politics

81 Pages Posted: 5 Apr 2000  

Barry Friedman

New York University School of Law

Date Written: February 2000

Abstract

This paper takes a somewhat novel approach to problems regarding the separation of law and politics raised by Roosevelt's Court-packing plan. Most scholarship about the New Deal focuses on the Court's response to the threat of political retribution that the plan represented. This article argues that if one is concerned about questions regarding the separation of law and politics raised by the Court's doctrinal change following the defeat of the Court-packing plan, it is more profitable to examine public reaction to the Court, rather than the more common scholarly approach of examining the Court's reaction to political pressure. Thus, this paper is a study of popular understandings about democracy, judicial supremacy, constitutional interpretation and the role of judicial review in the 1930's. The thesis of the article is that these deeper strains in public thought at the time of the New Deal can explain why the Court-packing plan was a logical proposal, as well as why it was defeated. Public understandings about the proper role of judicial review also mirror the doctrinal direction taken by the Court beginning in 1937, suggesting at the least that there is some "empirical legitimacy" to the Court's change in direction.

Suggested Citation

Friedman, Barry, The History of the Countermajoritarian Difficulty, Part Four: Law?s Politics (February 2000). University of Pennsylvania Law Review, Vol. 148, No. 4, April 2000. Available at SSRN: https://ssrn.com/abstract=213789 or http://dx.doi.org/10.2139/ssrn.213789

Barry Friedman (Contact Author)

New York University School of Law ( email )

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