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Abstract

Supreme Court scholars have long discussed and debated the dramatic shift in constitutional decision-making that took place in the late 1930sa shift that led the Justices to presume the constitutionality of any and all commercial statutes no matter how "preposterous" they might seem. The conventional wisdom holds that the Supreme Court altered its decision-making calculus to avoid the consequences of President Roosevelt's "court-packing plan," but various other explanations have also emerged in the literature. In this Article, Professor Staudt and Ms. He investigate an explanation that scholars and commentators have largely ignored: the role of the economy itself. Staudt and He begin their analysis by noting that rational Justices are likely to consider the state of the economy when deciding cases and controversies, and then go on to observe that the rhetoric and dicta found in the published opinions support this theoretical perspective. To make their point, Staudt and He undertake a qualitative investigation of a handful of well-known cases decided in the early decades of the twentieth century and highlight the Justices' systematic desire to promote national economic prosperity (albeit from widely differing perspectives). The authors argue that while politics and doctrine may have played a role in the famous "shift in time that saved nine," the economy is also a factor that played an important role in the observed changes in judicial behavior. Staudt and He conclude that while economic rhetoric has largely disappeared from judicial opinions and the Court now presumes the constitutionality of economic statutes, it is more than likely that the Justices continue to advance their economic preferences through the process of statutory interpretation.

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