New Deal functional phases

functional phase
or other element
actions or outcomes
signaling election?1932 election
signal100 days, 1933: FDIC, AAA, NIRA, TVA, CCC, Glass-Steagall
2nd 100 days, 1935: NLRA, SSA, WPA
constitutional impasseCourt decisions overturning New Deal programs, 1935-36
proposalbroader interpretation of commerce clause; trading off "economic freedoms" against liberty of contract
triggerElectoral approval of New Deal programs in spite of Court challenges
triggering election (initial electoral approval)1936 landslide elections for presidency and Congress
unconventional threatFDR's court-packing plan (Feb. 1937)
switch in time
--Court decisions upholding Wagner Act (NLRA) and Social Security (holdings, if not dicta, in favor of New Deal);
--Republican opposition on constitutional grounds fizzles out (esp., nomination of "former liberal Democrat" Willkie)
transformative appointments--van Devanter replaced by Hugo Black [Aug. 1937]
--Sutherland replaced by Stanley Reed [Jan. 1938]
At this point -- end of the 1938 term -- the liberal wing consists of five justices: {Black, Brandeis, Cardozo, Reed, Stone}. Thus Hughes and Roberts are no longer pivotal.
--Cardozo [d. July 1938] replaced by Felix Frankfurter [Jan 1939]
--Brandeis replaced by William O. Douglas [Apr 1939]
--Butler [d. Nov 1939] replaced by Wm. Francis Murphy [Feb 1940]
--McReynolds replaced by James Byrnes [July 1941] replaced by Wiley Rutledge [Feb. 1943]
--Hughes [res. June 1941] replaced by Robert Jackson [July 1941, Stone becoming Chief, July 1941]
consolidation--1938, 1940: further elections in which basic New Deal approach to constitution is not strongly contested;
--further electoral victories for FDR, despite 3rd-term taboo;
--new court decisions (below) upholding New Deal programs
transformative judicial opinionsdecisions whose dicta overturn old approaches, upholding broader commerce power:
  • Erie Railroad Co. v. Tompkins (1938): state law (incl. court decisions) contradicting contract liberty held constitutional, killing off Lochner
  • U.S. v. Carolene Products (1938): Federal Filled Milk Act constitutional; "rational basis" test creates presumption in favor of regulatory legislation
  • U.S. v. Darby (1941): Fair Labor Standards Act of 1938, (child labor, minimum wage) constitutional, reversing Hammer v. Dagenhart)
  • Wickard v. Filburn (1942): wheat grown for private consumption affects interstate commerce; its regulation under AAA constitutional