Obama and the Court: We've been here before, says Stanford professor in review of two new books on FDR-era justices

Now that the Supreme Court has announced it will, as expected, wade right into the 2012 presidential election with a ruling next summer on the Affordable Healthcare Act, it’s no surprise that legal writers everywhere are thinking back to 1937. 

That’s the year that high court ended its emnity to Franklin Roosevelt’s New Deal activism, issuing its famous decision upholding national regulation of labor relations in NLRB v. Jones &Laughlin Steel Corp. It was the famous “switch in time that saved nine,” and signaled a victory by the President as and the progressives on the court who had been fighting for years against the dominant view that the power of Congress to regulate economic activity as enshrined in the Commerce Clause of the Constitution was so narrow as to forbid reforms like minimum wage laws, industrial regulation and the like. 

The Pittsburgh-based steel company involved was massive — with nearly 100,000 miners of ore, coal and limestone, more than 350,000 manufacturers and 83,000 drivers and others to transport the goods — and it had fired workers at its plant in Aliquippa, Pennsylvania for helping organize a union.

The case was important for labor unions, but its place in our imagination these days stems from the role it played in ending Roosevelt’s frustrations with the court, and doing away with his supremely suspect plan to pack the court with cronies by growing it by as much as 15 justices.

Stanford law professor Robert W. Gordon takes up these issues and more in the December issue of the New York Review of Books. He reviews two new books — one about the court-packing plan in 1936 and one about the “great justices” of the New Deal-era court — in a piece entitled, appropriately, How the Justices Get What they Want.

It’s interesting history, made all the more relevant by the justices’ pending decision on President Obama’s signature initiative (for my early take on what’s at stake there, read this February piece from TIME). In that decision, the court will encounter its own fault lines over questions of legitimacy, its own political divide — as sharp now as ever — and its ideological differences of the justices.

Which set of influences will prevail is anyone’s guess at this point, but reading Gordon’s take on these two new books should help sort out the historical context of the court’s relationship to progressive legislation.

The books reviewed are available below. 

Supreme Power: Franklin Roosevelt vs. the Supreme Court
by Jeff Shesol 
Norton, 637 pp., $18.95 (paper)                                                  

Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices
by Noah Feldman 
Twelve, 513 pp., $30.00