During the late 1930s, the Supreme Court issued a series of decisions widely seen by scholars, and later by historians generally, to be a sea change from the judicial philosophy of confining the federal government to the limited powers granted by the Constitution, plus subsequent amendments. The post-Civil War court had interpreted the sweeping civil rights amendments narrowly, to the great detriment of Blacks as well as women and Native Americans; the Depression-era court slumbered indifferent to the poor and suffering for almost a decade. This lassitude toward Americans in need was unsustainable.
The Great Depression eroded that indifference. Even inside the court cocoon, justices knew the country was broke and on its back. Just as today’s jurists drive past homeless residents of the nation’s capital, so, too, the court of the 1930s saw the misery that had engulfed the country.
When random mass shootings and skyrocketing fentanyl deaths plague every major city and much of the suburban and rural United States, as well, the question is: Will today’s justices take “judicial notice” of the calamities and try to assist federal, state and local governments in their struggles? What is needed now is a move in the opposite direction of that taken by the Depression Court, a direction away from the vast failure of centralized power.
The country is not anywhere near the economic and social crisis of the 1930s, but the amount of pain among the citizens is large and growing. Beneath the deeply and almost perfectly divided slabs of red and blue, there is agreement from left to right that government has failed. The border is not secure; drug-related deaths are epidemic; violent crime has been escalating; schoolchildren are being indoctrinated but not educated; and — most ominous of all — our principal adversary, the Chinese Communist Party, has so little respect for our defenses that it spies with impunity within (and above) the country as never before.
Many observers might counsel strongly against a bold move by the court back to the Constitution and away from the failed rule of the administrative state. Election results in the past decade have been too close, they reason, to find justification in them for sweeping action. The 1930s court shifted toward federal power in reaction to the huge electoral victories by Franklin D. Roosevelt and his New Deal Democrats.
Yet, surely those justices were looking at more than just the ballot box to see that the court had drifted too far from the center of public opinion. They also must have followed their eyes to see that the stresses of the Great Depression demanded a new approach.
What reaction is demanded by our current condition? The obvious conclusion is that the federal government, especially — and government, generally — has lost its way in the thicket of progressive excesses and is hopelessly adrift, but expanding nevertheless. Like the 1930s court, today’s justices do not need a particular case or controversy to take notice of the general collapse of credibility among institutions. Formerly trusted figures in public health, education and technology are seen as menacing, reckless and rampantly politicized.
Have the courts — one-third partners in the federal government — acquiesced in the malignant growth of incompetence? Have they clothed that incompetence in power that they ought to rein in, instead?
One obvious abdication of judicial responsibility has been the long refusal to protect the rights of private property owners. We are everywhere short of houses, buffeted by rising prices and rents. A whole generation of young people despairs of owning a home and building the nest egg that traditionally begins with homeownership.
This shortage is a creation of the government, and its roots are in the Supreme Court’s blessing of — and protection of — government authority. The justices can shift rapidly, 1930s-style, to favor owners against rampant takings of property rights. This includes the cynically named “temporary” takings exercised by local officials withholding permits by the hundreds of thousands.
Where the housing problem gets confused with problems of mental illness and addiction, and people are left to live on the streets, the courts can reinforce the authority of governments to clear away homeless encampments and place people in need into treatment. Where heavy-handed efforts to advance one minority group at the expense of another — Asian Americans, it can be argued, lose out when colleges factor race into admissions — courts can crush discrimination. The judiciary can look with favor on states deeply injured by the collapse of the border. Judges can defend the individual’s ownership of personal data against both Big Tech and Big Government.
In short, the project begun with the Dobbs decision on abortion last year — returning power to the people and authority to governments closest to the people — must continue. The need for a U-turn away from an ever-growing government is everywhere we look, and the justices of the Supreme Court must not be blind to the signs of the time.