Today in Supreme Court History

Today in Supreme Court History: May 4, 1942

|The Volokh Conspiracy |

5/4/1942: Wickard v. Filburn argued.

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  1. Infamous. Most of what we see now in terms of the scope of the federal government can be blamed on this awful decision.

    1. Exactly….

    2. That’s not right. I share your view that it is wrongly decided, but only a tiny part of federal legislative jurisdiction relies on Wickard. The big reason we have a vastly expanded commerce power is because interstate commerce itself has vastly expanded. Most commerce was local in 1787; most commerce is interstate or global in 2020.

      1. Most of the power fed.gov has gathered to itself is related to economic activity that occurs first within a given state and secondarily between the states. Gun control, federal carjacking laws, the entire department of education, federal law enforcement that is not pertaining to the borders of the US. There are literally 100s of functions that should be the sole responsibility of the individual states and has been usurped by the feds.

        And a case where the feds do have commerce clause jurisdiction, say the proposed natural gas pipeline across NY state, they are hands off. Cuomo is causing economic hardship to the New England area because, virtue signaling.

      2. Most commerce is still local as defined prior to Wickard. Commerce has vastly expanded, and this means that interstate commerce has, too, but the federal government is still, based on Wickard, regulating things which are not really interstate commerce.

  2. I have always wondered how much this was influenced by the war. Battle of Midway was still a month away and the only bright spot had been Wake Island and the Doolittle raid. How many justices were not in the mood to go against the government? Would any have voted differently before Pearl Harbor? Probably wouldn’t have been enough to change the outcome.

    1. I think the justices who were appointed by Roosevelt simply felt that the old doctrines like Lochner and Hammer v. Dagenhart were failures. They had simply prevented the government from doing anything about such things as labor conditions and a national epidemic of unemployment and poverty.

      It’s notable that even with respect to substantive due process, although the Court did put in footnote 4 in Carolene Products, it took quite awhile, until Griswold, before the Court revived substantive due process, and even then they didn’t really implement footnote 4.

      I think the consensus of the Roosevelt court was that these doctrines were simply mischievous and needed to be cashiered. And you can argue- and many have- that they overreacted on both fronts.

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