Analyse how the role of the Supreme Court has changed since the New Deal

The US Supreme Court has had a turbulent and chequered career, and in fulfilling its function as one of the major players in the system of checks and balances built into the American political system has, on many occasions, upset the progress of a presidential or congressional legislative agenda.
The fact that the Justices are not elected and have no stipulated term of office would theoretically ensure that one branch of the division of power would be acting from a purely independent viewpoint, and would not be swayed by concerns over re-election, etc. Yet the way in which the justices are appointed, by the President subject to Senate confirmation, has resulted in successive executives attempting, when the opportunity arose, to change the balance of the Court in order to achieve a body of judges who were sympathetic to the President's agenda.
Yet the theory does not always reflect the situation, as Roosevelt found out when in 1935 the Court declared the National Recovery Act unconstitutional. Over the next two years, great holes were torn in his New Deal legislation as further decisions rejecting the legitimacy of varied items of legislation went against the President.
This series of landmark decisions marked a watershed period in the history of the Court. Previously, it had always used its judicial power cautiously, asserting judicial self-restraint in most cases. Before 1934, the majority of cases show that the Court was following a restrained line which, rather than attempting to resolve all questions pertaining to the relationship with the government and business, moderated the rate of reform, and provided the nation the opportunity to reflect upon extreme and contentious pieces of legislation.
The decisions taken during the New Deal left the Court isolated from popular opinion during a time of crisis. It is said that the 1936 election was in some ways a referendum on the people's opinion of the Court; if this is true, then the landslide with which Roosevelt returned to the White House was a ringing endorsement of his policies over those of the Court.
Yet Roosevelt knew that, were he to initiate a new set of policies, the Court could very well strike them down again. He therefore attempted to turn the Court to his advantage by presenting to congress legislation designed to increase the number of judges from nine to fifteen, thereby allowing Roosevelt to choose justices who would back his view were any challenges to arise. This measure failed when vacancies among the nine came along, and Roosevelt was able to appoint replacements. Yet it seeks to underline the problems a hostile court can pose to a President.
It was a combination of these three factors; the backlash over the economic decisions the Court had taken, manifested in Roosevelt's return to power, the evident desire for the New Deal to continue among the electorate, and the threat of "court-packing," that lead the Court to overturn a decision it had made nine months previously banning the imposition of a minimum wage for women in New York state. Further climb downs in the form of unexpected decisions followed; the Court upheld the National Labor Relations Act, despite the fact that it could have been struck down as it controlled labour relations in production industries, and the Court had previously ruled that Congress could not legislate on this issue. Finally, the Court also upheld the 1935 Social Security Act, again in dubious circumstances as they might well have been justified in blocking it.
These decisions marked the end of the Courts interventionist role in economic decision-making. The Depression and New Deal had resolved the question of who exercised control over the economy, and the Court had lost. Furthermore, with the welfare legislation passed by Roosevelt, the idea of a laissez-faire economy that the Court had for so long attempted to uphold had also disappeared. The era of the Court's role in determining economic policy had ended; the responsibility for this now rested in the other two branches of power.
It was now necessary to develop a new role for the Court, and to reorient itself towards different areas where it could apply its powers of interpretation of the constitution. These areas were civil rights, privacy and procedural rights, and freedom of speech.
Civil rights took on a new importance in the aftermath of W.W.II as American racial inequalities and prejudices could be taken as being synonymous with the hatred shown by the Nazis to the Jews; something that America did not want to be seen to be advocating if it were to become leader of the free world. The Court resolved to purge racial injustice in the US; it achieved this in two stages, firstly, by ruling that the exclusion of blacks from various political and educational activities was illegal, and then ruling that the provision of separate services for blacks and whites was also illegal, and that full integration was required.
Procedural rights refer to the clause in the Fifth and Fourteenth Amendments guaranteeing citizens the right to "due process of law" before they could be deprived of "life, liberty, or property." The Court has been required to give its opinions on many issues arising from this somewhat ambiguous definition. These have ranged from deciding whether or not evidence obtained by subversive methods such as phone-tapping and hidden recording devices is admissible in court to controversies over the right to be assigned counsel for legal representation. Technically, as long as the defendant can be said to have received a fair trial, the provision of counsel is not, the Court ruled, an absolute right. Furthermore, the Court was asked to rule on the application of the Fifth Amendment, which allows witnesses in trials the option of not answering questions, and not have any inferences drawn from their silence.
In the field of freedom of speech, the Court responded to the underlying state of anxiety expressed in the post-war years, given the initiation of the Cold War, and the shock at the apparent ease of rise to power by Hitler in Germany. Thus, as Congress passed laws inhibiting the freedom of Communists to promote their political ideas, the Court did remarkably little to stand in the way of this legislation, which almost certainly contradicted the First Amendment; in this area, it appeared that the Court was reluctant to address the issue, and was again delegating responsibility to Congress. However, in other areas, the Court overturned numerous state laws that banned, among other things, labour protests and pickets, and those that required all schoolchildren to salute the American flag. In the 1950s, the Court also reverted to a policy of interpreting the law in such a way that it could find itself an area between becoming domineering on the one hand, and abdicating and dodging responsibility on the other.
In contrast to its stance on political speech, the Court reversed many state laws censoring magazines and films. Whilst not condemning censorship altogether, the Court made it clear that censorship did raise constitutional issues under the First Amendment. This opened up a new area for judicial supervision.
The New Deal changed the nature of the Supreme Court radically. Previously, it had been concerned with the relationship between the nation and the state. Later, this changed to the business-government relationship; now, in the aftermath of the New Deal and the Depression, the focus of the Court's attention had turned to the relationship between the individual and the government. The Court had moved from a period of stability where its remit and ability to intervene was assumed to be limited and laid out exactly by an unambiguous constitution; instead, the Court had to become a body that interpreted the gaps and unwritten sections of the constitution, and while doing this, also had to define its own role more clearly, given that it too was not specified in the constitution.
McCloskey suggests that what occurred after the New Deal was a similar phenomenon to the aftermath of the Civil War, when the Court moved from offering judgements on the nation-state relationship to the government-business link - that is, the Court was merely following the issues of the time that the ordinary American was concerned about; before the new Deal it was economic policy, afterwards, civil liberties. Thus the Court has changed to become an arbiter on the issues of the day, and will thus continue to change regarding what peoples' concerns are at any one time. In the 1970s, it may be said that abortion became a key issue; the Roe v. Wade judgement of 1973 was the Court's response to this.
In conclusion then, the New Deal initiated a period of concerns with civil liberties, and prompted a movement away from the court's involvement with economic affairs. In the future, it may well happen that another economic or international political shock of a similar magnitude to those mentioned above steers public opinion onto a new topic of debate, one that the Court will feel compelled to address as well.