Justice Owen Roberts’ humiliating but understandable flip-flop saved the court from immediate annihilation, but the court-packing saga was not without adverse effects on our system of government. In the decades that followed, the court overcorrected for its Lochner Era abuses by slingshotting itself to the other extreme: a jurisprudence of judicial abnegation and hyperdeference. The result was a court that largely receded from the constitutional scene, letting Congress and the president reign supreme. Even when the Constitution placed clear limitations on congressional or executive power, the court showed itself unwilling to step in for fear that too strong an exhibition of authority might evoke the infamy of Lochner and the court-packing threat it engendered.
So while the court’s capitulation to Roosevelt cleared the way for the New Deal initiatives that many liberals at the time cherished, their immediate victory came at a price. The most significant products of the court’s timidity during the period that followed would surely make any true liberal cringe. These include Korematsu v. United States, which upheld Roosevelt’s internment of American citizens during World War II; United States v. Curtis-Wright Export Corp., which upheld Congress’ delegation to the president of nearly limitless authority to enact the policies of his choosing in the name of national security; and Wickard v. Filburn, which on its face simply upheld a federal regulation of wheat storage but in the process promulgated a theory of congressional power so broad that it opened the gates to the massive federalization and expansion of criminal law that followed and hasn’t stopped since.
These decisions weren’t aberrations. They were perfect representations of what happens when judicial independence is compromised: in a word, tyranny.
Many of today’s liberals seem to have lost that critical insight. Like the Lochner-era conservatives, they believe deeply in the importance of resisting the worst manifestations of a toxic political movement, and they see the courts as their best hope for effecting that resistance. But also like those Lochner-era conservatives, they mistakenly think that the judicial prerogative to negate the acts of democratically elected majorities within our broader system of law is the same thing as actual, sustainable political power.
That mistake is a crucial one. The judiciary’s pronouncements are not talismanic imperatives. The doctrine of judicial review derives not from some wellspring of magical power, but from the carefully crafted legal order of checks and balances our Constitution prescribes. When we upset that order by allowing any of the three branches to overstep, we come that much closer to causing the whole thing to unravel, with disastrous consequences to the very freedom from tyranny the modern left purports to be trying to preserve.