Overview
On The Bob Zadek Show the New Deal is discussed chiefly as a constitutional and economic rupture rather than as a set of statutes. Bob Zadek, the host, frames it as the point at which economic rights — freedom of contract, free labor, the right to sell what one wishes at a fair price absent crime or fraud — were subordinated or written out of the American system. Guest Damon Root, author of Overruled: The Long War for Control of the U.S. Supreme Court, supplies the legal chronology: courts once struck down economic regulations as violations of economic rights, and then, at the end of the New Deal, stopped. The show returns to the period across multiple episodes, treating it as the origin of the modern regulatory state and of judicial deference to it.
The constitutional revolution of 1937–38
Root locates the change in what legal scholars call the New Deal constitutional revolution, in 1937 and 1938 and then in a series of Supreme Court cases in the early 1940s. Before that, he says, courts regularly struck down economic regulations because they found the regulations violated economic rights. The idea, in his account, derives from the 14th Amendment and from the free labor philosophy of the abolitionists and radical Republicans who ratified it in 1868: that each individual owns himself and the fruits of his labor, and that as long as he harms no one else he should not face burdensome licensing to pursue a basic occupation such as driving a taxi cab. Root argues those rights should receive the same judicial protection as freedom of speech and free association, and that once upon a time they did Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014).
After the revolution, Root says, the Supreme Court backtracked, announced it would defer to regulators, lawmakers, government officials and bureaucrats, and uphold their regulations, treating economic rights as rights that may exist but receive very little respect and attention. Since the end of the New Deal, he concludes, the courts have acted as a sort of rubber stamp in favor of the regulatory state. Zadek puts the same shift in the language of deference: courts, he says, should bend over backwards to find laws constitutional because laws were passed by representatives of the people, and Felix Frankfurter and Oliver Wendell Holmes bought into that system, deferring to the wisdom of the legislature even where individual rights might be sacrificed. Root notes that Frankfurter was a progressive activist, law professor and advisor to Franklin Roosevelt’s New Deal before Roosevelt appointed him to the Supreme Court, and that Frankfurter believed the elected branches should be given a wide degree of latitude by the courts Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014).
Court packing and the “switch in time”
Two episodes give the political backdrop. Zadek, in a 2017 episode with William Watkins Jr., calls February 3rd, 1913 — ratification of the 16th Amendment, the income tax, proposed by William Howard Taft — a black week in American history, and pairs it with 1937, when Roosevelt announced his plan to pack the Supreme Court. In Zadek’s telling, the Supreme Court had been finding Roosevelt’s New Deal legislation unconstitutional, Roosevelt threatened to increase the number of justices to 15 unless the court backed down, and the court backed down; as was said at the time, a switch in time saved nine. The country, Zadek says, has been changed forever [[episodes/crossroads_for_liberty__with_william_watkins_jr|Crossroads for Liberty with William Watkins Jr. (2017)]].
A 2016 episode gives the same story with more institutional detail. Zadek notes that the number of justices is set by Congress, not the Constitution; that the original court had five; that it jumped to 10 for a while; and that in the late 1860s it was reduced back to nine because there were nine federal judicial districts. During the Roosevelt court-packing era of the late 1930s, he says, Roosevelt threatened legislation to increase the justices from nine to 15 when he could not get his way with a conservative Supreme Court that was not backing his New Deal proposals; the justices switched, producing the famous switch in time that saved nine. Zadek draws a structural lesson: nine is random, and a larger court — 15, 21 or 27 — would diminish the power of any single justice, achievable by simple legislation rather than constitutional amendment Sarah Stillman on Minors on the Sex-Offender List (2016).
Economic rights and their modern legacy
The show’s clearest statement of what was lost comes in the 2019 rent-control episode. Zadek tells a caller, a San Francisco landlord, that the New Deal was the death knell of economic liberty in America; that between the Lochner era in the early 20th century and the New Deal there was a golden age when economic rights — the right for consenting adults to negotiate a contract the government would not interfere with — were respected; and that this is gone and only very slowly coming back. It manifests itself, he says, in minimum wage laws and the like, and rent control is simply another example: the government saying individuals are not competent to negotiate a fair bargain between them and putting its thumb on the scale setting the price The Rent Control Bomb (2019).
The caller describes vacancy control — a rule that after a tenant moves out the landlord must offer the unit at the same rent rather than the higher open-market rate — as removing any incentive to remodel or improve a building, and proposes that individual landlords sue the city or state so the question reaches the US Supreme Court as a violation of the right to offer a service for a reasonable amount. Fill-in host Charlie Deist calls the step the atomic bomb of rent control and says it turns the landlord into a serf for the tenant. Zadek closes by saying the future looks bleak, that the virus has been contained to the East and West Coast, and that Middle America respects the free market The Rent Control Bomb (2019).
Competing narratives and the Green New Deal
The New Deal also appears as a historiographical battleground. In a 2010 “Best of” episode, Zadek contrasts Howard Zinn’s A People’s History of the United States, which depicts the United States as oppressive and in which the privileged abuse the downtrodden, with Larry Schweikart’s A Patriot’s History of the US, which describes the New Deal as a calamity that wrecked havoc on the American economy. Zadek notes there is a lot of debate as to whether the New Deal exacerbated the Depression or cured it, and that both books are bestsellers. He asks who should decide what students are taught, and whether the view he was taught — the glorious writing of the Constitution, the battle of ideas, the founding of America, as written by historians such as Daniel Boorstin and Gordon S. Wood — will survive Best of: Changing the Face of History (2010).
In a 2019 episode, fill-in host Charlie Dice introduces the Green New Deal proposed by Alexandria Ocasio-Cortez, noting that Kamala Harris said she was a co-sponsor and that the proposal hearkens back to the Great Depression, when Franklin Delano Roosevelt came out with his New Deal to boost the economy — at least that was the intention. Dice’s guest, Mark Joffe, a senior analyst at the Reason Foundation, discusses California’s high-speed rail project as a cautionary tale for national climate proposals Not Enough Bricks (2019).
Across episodes: no development, one recurring claim
The excerpts show no development in the show’s treatment of the New Deal across the years; the same claim — that the New Deal marked the end of judicial protection for economic rights and the beginning of deference to the regulatory state — is advanced by Damon Root in 2014, by Bob Zadek in 2016, 2017 and 2019, and echoed in the 2010 discussion of competing histories, with the 2019 Green New Deal episode touching the topic only by analogy.
What the sources do not cover
The excerpts do not describe the New Deal’s statutes, agencies or programs by name, nor the specific holdings of the cases said to have worked the constitutional change. They do not state the outcome of any litigation over vacancy control, or whether the Supreme Court ever took such a case. The 2019 Green New Deal discussion is confined to its introduction and to California high-speed rail, and the 2010 episode breaks off before the segment on California’s political correctness.