Rethinking Constitutional Change

This article examines the so-called “New Deal Constitutional Revolution” and comments in particular on the work of Barry Cushman who maintains that neither the election of 1936 nor Franklin Roosevelt’s “Court packing” plan caused a “switch in time” in 1937. Severely challenging “externalist” explanations, Cushman maintains that the individual justices remained doctrinally consistent. This article argues that, in spite of the importance of “internalist” considerations and arguable consistencies in the jurisprudence of the Justices, several factors suggest the limits of Cushman’s thesis and point to the likelihood that “external” factors also played an important role in the Court’s decisions in 1937. Most important, it points to reasons to believe that Justice Roberts, the critical “swing” Justice in those decisions, did in fact shift his views in voting to uphold pivotal New Deal measures, and it stresses the critical importance of doctrinal areas where Justices enjoy relatively open areas for the exercise of discretion