Damon Root on How Liberals Learned to Stop Worrying and Love Judicial Activism

In 1935 the U.S. Supreme Court
unanimously struck down the National Industrial Recovery Act, which
was then the central legislative plank in President Franklin
Roosevelt’s New Deal. Just two years later, however, the Supreme
Court famously switched course and began affirming the
constitutionality of all other New Deal laws. Why did the Court
change course? Because the justices embraced a sweeping doctrine of
judicial deference towards the other branches of government. As one
landmark 1938 ruling put it, “the existence of facts supporting the
legislative judgment is to be presumed.” In other words, the
Supreme Court began tipping the scales in favor of government
officials.

Yet at the same time that the Supreme Court was committing
itself to this near-total submission to lawmakers on the economic
front, the justices began testing the bounds of greater judicial
action in other realms. In an excerpt from his new book
Overruled: The Long War for Control of the U.S. Supreme
Court, Senior Editor Damon Root explains how modern liberals
came to abandon judicial deference in cases dealing with civil
liberties, civil rights, privacy, and abortion.

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