The judicial response to the New Deal: the United States Supreme Court and economic regulations 1934-1936

The behaviouralist movement in political science has had a profound effect on the study of American judicial institutions. Particularly in the nineteen fifties and sixties political scientists of a behavioural persuasion have argued that the study of courts and judges should be made more rigorous and scientific. To fulfill this intention, political scientists have developed a wide array of different methodologies to examine various aspects of the judicial process. Most of these methodologies, however, share an underlying assumption that the explanation of judicial behaviour must be sought outside of the legal process in such factors as the judge's personal, social or political predilections or his socio-economic background. Most judicial behaviouralists have consequently de-emphasised the importance of legal factors and in particular have dismissed the role of legal rules in judicial decisionmaking. In this respect judicial behaviouralism is indebted to the work of the American legal realist movement who originally questioned the efficacy of rules in judicial decision-making. This dissertation examines a period of United States Supreme Court history when the Court was accused of being flagrantly political. The response of the Court to the New Deal's economic legislation has been portrayed as the judicial embodiment of the political conservation of the majority of the Court, which tends to support the dominant behaviouralist assumptions on judicial decision-making. This dissertation, however, suggests that the Supreme Court's response to the New Deal between 1934 and 1936 was not based on the political and social ideology of the majority. Instead, the dissertation argues the Court's decisions were guided by a sense of history and constitutional propriety but above all by legal rules. The dissertation concludes by suggesting that analysis of judicial decision-making offered by a number of judicial behaviouralists is misplaced as far as the United States Supreme Court's response to the New Deal between 1934 and 1936 is concerned.