The Federalist Society

Can Bush Supreme Court Appointments Lead to a Rollback of the New Deal?

May 1, 2005

William 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.

Can Bush Supreme Court Appointments Lead to a Rollback of the New Deal?  


The Federalist Society