I've decided that Columbia Law School stacks our first semester with Torts, Contracts and (most of all) Civil Procedure to weed out legal dilettantes like myself. No Criminal Justice or Con Law for us -- not until we've proven ourselves by passing classes in which the phrase "haled into court" is a high point of excitement. Meanwhile, the lucky bastards at Yale, specifically Will Baude, appear to be in a Depression- era section of their syllabus.
Regarding the question of what was the proper response of the conservative judges to FDR's court-packing plan: I'm not sure how destructive it really would have been to the Court to increase the number of justices to eleven, which would have given Roosevelt the two extra votes he would need to overcome the anti-New Deal five. After all, merely because Nature was not so kind as to knock off a couple of the recalcitrant justices is no reason to think that FDR's additional appointments would be less legitimate than his substitutive ones.
The rhetoric of constitutional crisis is invoked more often than it becomes a reality. When Justice Breyer spoke at UVA's public interest law conference in February, he talked about the rule of law (a frequent theme for his speeches) and noted, as he did in his Bush v. Gore dissent, that nowadays Supreme Court decisions are enforced consistently. Yet in the arguments in Cheney v. U.S. District Court, Solicitor General Olson kept raising the specter of a power-struggle between the executive and judicial branches if the Supreme Court required the vice president to disclose the identities of those who consulted on the administration's energy plan.
This strikes me as an overblown fear. I would have thought that if the Bush Administration were to defy the Supreme Court openly, it would be in a matter relating to the treatment of detainees. Yet when the Court ordered the administration to prosecute Hamdi properly, they released him shortly thereafter. Admittedly, this lack of hardcore conflict may be a result of deliberate accommodation by both sides; SCOTUS doesn't ask for too much (like access to lawyers for all Gitmo detainees) and POTUS fulfills the demands that they do make.
This may have been what happened with the "switch in time that saved nine" -- not a sellout on one's beliefs, but a pragmatic appraisal of how far the judiciary ought to push the other branches.
1: Why should we think that "discrete and insular minorities" who fail to get their due from the electoral process are unlikely to be economic entities and disfavored businesses? With lots of money at stake, the incentive to illegitimately work against people via economic regulation might be stronger.First of all, the part to which Will objects is prefaced by "It is unnecessary to consider now..." While this may have been disingenuous of Justice Stone, it does reduce our ability to delve too deeply into his meaning.
2: Even if the Carolene Products dichotomy represents a roughly plausible and sound political judgment, is it a legitimate judgment for a court of law to make? It seems both outside of the Court's jurisdictional capacity and textual bailiwick.
Second, insofar as we are to examine the footenote, it is quite clear about why one might distinguish "legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation," i.e. legislation that restricts political activity (most importantly voting, as in Nixon v. Herndon, but also First Amendment work that affects politics), from "most other types of legislation." Even if "discrete and insular minorities" are singled out in economic regulations, as in the enforcement of the ordinance struck down in Yick Wo v. Hopkins, this does not directly disable them from working to change those policies, as a regulation of their ability to vote or to organize would.
The Carolene Products decision also explains why the Court would give greater discretion to Congress in matters of economic regulation than in those of political prohibition.
But by their very nature such inquiries, where the legislative judgment is drawn in question, must be restricted to the issue whether any state of facts either known or which could reasonably be assumed affords support for it. Here the demurrer challenges the validity of the statute on its face and it is evident from all the considerations presented to Congress, and those of which we may take judicial notice, that the question is at least debatable whether commerce in filled milk should be left unregulated, or in some measure restricted, or wholly prohibited. As that decision was for Congress, neither the finding of a court arrived at by weighing the evidence, nor the verdict of a jury can be substituted for it.The "rational basis" mentioned in footnote 4 is part of this reasoning; the Court deems there to be a rational basis for regulation on interstate commerce in a product, whereas a rational basis for regulating activities specifically protected by the Bill of Rights and 14th and 15th Amendments is more questionable.