The Veil Of Impartiality Drops -- Some Rights Are More Equal Than Others, And The Supreme Court Goes Berserk

The consistent (although dubious) application of a broad concept of “due process” and “equal protection” review to state laws soon gave way to the practice of selecting some rights over others as more worthy of the Court’s protection. In particular, the Court began to draw the artificial distinction between “economic” and “non-economic” rights that the Court had never before perceived, disfavoring “economic” rights such as property and freedom of contract. Such differentiation revealed the Court members’ personal agenda, whereas the older Court could at least make the claim that it had acted to protect all forms of freedom.

This relegation of “economic rights” came about in response to the Great Depression, which took the nation by storm in October of 1929. Shortly after the Great Depression began, Franklin Roosevelt rode to the presidency on the steam of his promise to brandish the power of government as never before in order to alleviate people’s suffering. The Supreme Court, however, still adhered to a strong and consistent vision of rights, as well as to a reverence for the Constitution’s limitations on federal power. Roosevelt locked horns with the Court when the Court began striking down much of his vaunted New Deal legislation; in 1937, Roosevelt attempted to “pack” the Court by proposing legislation that would have allowed him to appoint additional members beyond the nine already serving. Although Roosevelt’s plan ultimately failed, most of the Court members wanted to avoid a political showdown and therefore began to “massage” their opinions, not only on the limits on federal power (to be addressed later), but also on the power of the States vis-à-vis the Fourteenth Amendment.

A watershed 1937 decision showcased the Court’s new hostility to intervening in the States’ economic regulations, with the Court upholding a minimum-wage law for women despite having previously stricken down such a law as an invasion of women’s freedom of contract. As the Court rationalized:

[T]he violation alleged by those attacking minimum wage regulation for women is deprivation of freedom of contract. What is this freedom? The Constitution does not speak of freedom of contract.

Continuing with this same rationale even after the Great Depression had ended, the Court handed down a 1955 decision loudly proclaiming that the Court had returned to the hands-off posture of the old 1872 Court – at least with regard to “economic rights,” that is: 

The day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought.

Despite this apparently renewed deference to the States, the Court went hyperactive in the realm of “non-economic” rights and began striking down state laws with such unpredictability and fervor as to confirm that the Court had ceased functioning as a “court” and had instead become the supreme legislature. Armed with a steadily-evolving arsenal of legalisms, the Court took a wrecking ball to both the Constitution and American society. 

The upcoming posts will take a look at what the Court has unleashed upon us in terms of race, religion, freedom of speech, abortion, sex, gender, crime, and immigration.