Dealing with the Kavanaugh Court

Associate Justice Owen J. Roberts. Conventional history has characterized his vote in 1937's case West Coast Hotel Co. v. Parrish as a strategic measure to save the judicial integrity and independence of the U.S. Supreme Court. Maybe it was more prosaic.

Associate Justice Owen J. Roberts. Conventional history has characterized his vote in 1937’s case West Coast Hotel Co. v. Parrish as a strategic measure to save the judicial integrity and independence of the U.S. Supreme Court. Maybe it was more prosaic.

WC doesn’t propose to do a post-mortem on the Kavanaugh confirmation. The nearly-secret installation of the serial liar says it all. As citizens and voters, our only recourse is at the polls in November and in November 2020. We have to move on, which takes WC back to his Administrative Law course, back in law school.

The professor in that class was the late Nate Nathanson. It says something about WC’s age that some of his law school profs were members of the Roosevelt Administration.1 But it’s true. Nathanson was part of Roosevelt’s Justice Department, whose tasks included defending the reform and Great Depression recovery programs from the unrelenting attacks of the U.S. Supreme Court. And Nate had great stories.

In 1935 alone, the four justice majority of the Hughes court struck down the Agricultural Adjustment Act of 1933 (United States v. Butler, 297 U.S. 1 (1936)), along with the Federal Farm Bankruptcy Act, the Railroad Act, the National Industrial Recovery Act and the Coal Mining Act. Despite the vast human misery caused by the Great Depression, the Four Horsemen clung to a 19th Century policy of “laissez-faire” economics, narrowly interpreting the Commerce Clause of the U.S. Constitution despite the profound changes in the nature of the U.S. economy.

On the political side, the Roosevelt Administration pursued its controversial – and ultimately unsuccessful – court packing scheme. But in the trenches, DOJ’s tactic, according to Prof. Nathanson, was to keep the new federal laws enacted to replace those voided by the Supreme Court, away from the Supreme Court for as long as possible. The idea was to stall as long as possible, letting the laws have as much impact as possible in relieving the economic crisis before the SCOTUS voided them. The Rules of Appellate Procedure – the rules for getting cases heard on appeal – were a lot more Byzantine back in the 1930s, as were the trial court rules. Nate told how his DOJ team took every advantage of those overly-complex rules to keep cases away from the Four Horsemen for as long as possible.

But Nate’s best story involved Justice Owen Roberts. He was the swing vote on New Deal cases. Nathanson had clerked for Justice Roberts after graduating from law school. In 1936, Justice Roberts changed his views on the Commerce Clause, and started voting with the other four justices and the New Deal programs started passing constitutional muster. It’s called “The switch in time that saved nine,”

But, at least according to Nathanson, its origins may have been more prosaic. Justice Roberts hosted an annual dinner for his former law clerks. At the 1936 dinner, another former law clerk movingly told the group how he had been volunteering at a soup kitchen, and described eloquently the size of the lines waiting for a meal, the misery and despair, and the sheer human suffering. Justice Roberts, according to Nathanson’s story, was visibly shaken. And after oral argument the next week in the federal minimum wage case,  West Coast Hotel Co. v. Parrish, Justice Roberts reversed his position in the earlier Adkins v. Children’s Hospital (a decision he had authored) and voted to sustain the federal minimum wage, a 180 degree change from the year before.

When one of the Four Horsemen, Justice Willis Van Devanter, retired the next year Roosevelt appointed Hugo Black in his place. And very few New Deal initiatives were held unconstitutional afterwards.

So the solution for dealing with the Kavanaugh court may be to stall, to work to keep cases away from the SCOTUS, and to work on changing the points of view of some of the members of the conservative majority. Impeachment of Justice Kavanaugh for his multiple lies to Congress while under oath will have to wait for a change in Congress.


  1. Prof. Nathanson went on to have a distinguished career at the University of San Diego School of Law, where an important lecture series memorializes his time there, the Nathan L. Nathanson Memorial Lecture Series

3 thoughts on “Dealing with the Kavanaugh Court

  1. WC
    That’s an excellent new insight into that momentous change of direction by scotus.
    Paul Eaglin

  2. Your post here did mention FDR’s court-packing plan, which finally has provided me the camel’s nose to poke under your blog-tent.
    Surely other commentators have discoursed on this possibility, but I have not seen such reference. Can you provide some insight as to whether a successor Administration fruitfully could either (1) add two more justices to the Supreme Court, thereby diluting the antediluvian reptiles, or (2) threaten to do the same, thus theoretically recapitulating the 1937-38 Court history you have just related?

    • There’s not a chance that the number of seats could be expanded now. The threat would likely be counter-productive. Nor would I support it if it were possible. It’s a mug’s game. The next unhappy Congress could then expand it yet again. I recognize that a number of precedents have been shattered by the Republicans: the filibuster rule, Merrick Garland, limited production of Kavanaugh’s work product, limited FBI inquiry.As bad as that has been, I would not support tearing down more. I’d impeach the sorry SOB first.


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