Can Bush Supreme Court Appointments Lead to a Rollback of the New Deal?
May 1, 2005William Consovoy, Wendy Keefer, Thomas R. McCarthy, Seth Wood
In anticipation of a conflict regarding nominations to the Supreme Court, some commentators have speculated that President Bush will use his power to appoint justices who will advance a supposed "growing campaign to undo the New Deal." Adam Cohen, "What's New in the Legal World? A Growing Campaign to Undo the New Deal", New York Times, at A32 (Dec. 14, 2004). According to these observers, the pre-New Deal "Supreme Court's understanding of the Constitution [was] obviously rooted in the justices' political convictions[.]" Cass Sunstein, "The Rehnquist Revolution," The New Republic, at 32 (Dec. 27, 2004) (reviewing Mark Tushnet, A Court Divided: The Rehnquist Court and the Future of Constitutional Law (2005)). Such a purportedly partisan understanding "jeopardized maximum-hour legislation, minimum wage legislation, the National Labor Relations Act, the Fair Labor Standards Act, and the Social Security Act--and would certainly have forbidden the Civil Rights Act of 1964, the Americans with Disabilities Act, and the Age Discrimination in Employment Act." Id.