TW: As you may recall, the SCOTUS threw serious wrenches in the FDR New Deal policies in the mid-30's declaring many attributes of his programs unconstitutional. It was iffy for awhile whether social security would survive a court made up of very conservative cro-magnons judicial appointees leftover from the Taft/Wilson/Harding/Coolidge/Hoover period. The infamous court packing crisis resulted whereby FDR threatened to expand the number of justices from 9 to 11 in order to alter the majority view.
Some are speculating Obama may run into similar constraints dealing with the current SCOTUS now composed largely of increasingly conservative Republican appointees. The last 30 years have been the longest heyday for laissez-faire since the 1920's (things crashed after that period too, wonder why?) and the longest stretch of conservative judicial appointments as well. A collision is likely.
From Newsweek:
"...From the TARP bank bailout, to climate change "cap and trade," to health-care reform, new laws could face an array of judicial doctrines recently honed by conservative lawyers.
...In fact, for most American of history, this alignment has been the norm. From the time Thomas Jefferson faced an array of Federalist judges, the unelected third branch has tended to be more conservative, more protective of private property, than the elected branches...In the early 20th century, the Supreme Court blocked Progressive Era laws, such as the minimum wage for women and limitations on working hours. It began to strike down key New Deal laws, too, until Franklin Roosevelt threatened to pack the bench by expanding the number of justices. When the court abruptly started to uphold FDR's laws, wags dubbed it "the switch in time that saved nine." The era marked by Chief Justice Earl Warren, when liberal federal judges sometimes raced ahead of the public and political leaders, was something of a fluke that lasted only about two decades.
For the past quarter century, the courts have been conservative, but so has the government. Few new sweeping regulatory schemes became law. Now the Roberts Court has tilted markedly more conservative than the Rehnquist Court—at the same time the voters elected a more liberal set of politicians than they had in half a century.
...Challenges to TARP, which gives vague powers to the executive branch, may unfold soon. If banks are nationalized, shareholders may assert they have been unfairly deprived of the value of their investments. Other goals, such as health-care reform and climate-change curbs, inevitably involve a blizzard of new rules, mandates and taxes. These will face challenges from businesses, who have found a sympathetic hearing in many recent cases. As law professor Jeffrey Rosen points out, of 14 antitrust cases heard by the court over the past two terms, business won every time. Conservatives increasingly cite the limits of the Constitution's "commerce clause," or states rights, to blunt federal action.
...In some ways, the biggest battles will be over doctrine—over the meaning of the Constitution and how to interpret it. Once, liberals like Justice William Brennan relied on what he called a flexible "living Constitution." In response, conservatives argued for relying on the original intent of the Founders and decried "activist judges." Now debates have turned topsy-turvy. Arguably the most visible advocates of a "living Constitution" are John Yoo and Dick Cheney, who claim it gives the president nearly unlimited power, while liberals are more likely to quote Madison and Hamilton on checks and balances. Justice Stephen Breyer, in his book "Active Liberty," argued that the Constitution at its heart seeks to boost the participation of citizens in their government. This deference to the idea of democracy may give room to uphold energetic new statutes. Faced with the prospect of courts far more likely to strike down liberal laws, many progressives may again embrace the virtues of "judicial restraint."
http://www.newsweek.com/id/189234
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