After the “Court Packing” Attempt of 1937, the Supreme Court Gave Up Its Mission of Protecting Property from Depredations

 When the Supreme Court, operating under the old principles, declared unconstitutional a number of New Deal laws, Roosevelt tried to alter its composition by adding new and more liberal justices. Although the infamous attempt to “pack the Court” in 1937 failed, the demoralized Court beat a retreat, and as old justices retired and appointees of Roosevelt replaced them, its philosophical complexion underwent substantial change:

The lacerating struggle over the validity of the New Deal Program engendered lasting hostility to the judicial protection of property rights. . . . Once the Supreme Court accepted the New Deal, the justices abruptly withdrew from the field of economic regulation. This reflected a monumental change in the Court’s attitude toward property rights and entrepreneurial liberty. From its inception, one scholar noted, “the Court deemed its mission to be the protection of property against depredations by the people and their legislatures. After 1937 it gave up this mission.” A sharply limited concept of property rights thus operated for the next generation. . . . Consequently, the Court gave great latitude to Congress and state legislatures to fashion economic policy, while expressing only perfunctory concern for the rights of individual property owners.

—Richard Pipes, Property and Freedom (New York: Alfred A. Knopf, 1999), Vintage e-book.