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SUPREME COURT ACTIVISM IN ECONOMIC POLICY IN THE WANING
DAYS OF THE NEW DEAL:
INTERPRETING THE FAIR LABOR STANDARDS ACT, 1941-46
Students of the Supreme Court universally agree that it made a dramatic shift in
1937. First, in West Coast Hotel Co. v. Parrish,
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it retreated from the unbridled use of
the Fourteenth Amendment’s due process clause to invalidate state economic regulatory
legislation. Then, in National Labor Relations Board v. Jones and Laughlin Steel Corp.,
2
the justices widened the reach of congressional power under the commerce clause. This
looser reading of the commerce clause was solidified in 1941 with United States v. Darby
Lumber Co.
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and Wickard v. Filburn.
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So decisive were these cases in dividing what
went before from what came afterward that Bernard Schwartz has said that “The 1937
reversal marked the accession of what may be considered the second Hughes Court—so
different was its jurisprudence from that of the Hughes Court that had preceded it.”
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Whereas the defining jurisprudence of the former had been close supervision of economic
policy, the latter refused to second-guess the economic wisdom of congressional (and
state) regulatory initiatives. Alpheus T. Mason summarized Justice Stone’s approach,
which was indicative of the entire court of this era, as one that would not say that “no
economic legislation would ever violate constitutional restraints, [but that] . . . in this area
the court’s role would be strictly confined.”
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Confirming this approach, between 1937
and 1957 the Supreme Court struck down only four federal statutes as unconstitutional,
none of which were economic in nature.
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