Considered as a historical artifact, Justice Louis D. Brandeis's opinion in Erie Railroad Co. v. Tompkins 2 is an American cornucopia. It pours forth an abundance of fascinating issues that range from the Olympian heights of legal philosophy and constitutional theory through the tangled jungles of political, economic, and social conflict to the street-smart litigation practices of forum shopping and ambulance chasing. From the variety of issues it raises, I would like to consider one that I noted but did not address in my book: 3 the relationship between Brandeis's opinion in Erie and what is commonly called the New Deal "constitutional revolution." 4 Scholars disagree, of course, about when, why, and even whether a "constitutional revolution" occurred, about its nature and significance, and about its causal connection with the New Deal itself. Regardless of the disagreements, however, few question the basic proposition that between approximately 1937 and 1943 the Supreme Court made substantial changes in American constitutional law. 5 Those changes included increasing the power of government at all levels, vastly expanding the authority of Congress and the President, and narrowing the role of the federal judiciary in supervising the actions of other branches of state and federal governments.Erie came down in 1938, in the midst of those changes, and overruled Justice Joseph Story's ninety-six-year-old decision in Swift v. Tyson. 6 Story had ruled that, in cases presenting questions of "general" common law, the federal courts were not bound to follow the decisions of state courts. Rather, in such cases the federal courts could make their own "independent judgment" as to the proper common law rule to be applied. Erie changed matters drastically. First, it terminated the power of the federal courts to lay down their own "independent" rules of general common law and required them, instead, to follow the decisions of state courts in common law matters. Second, it subordinated the federal judiciary to the lawmaking primacy of Congress. It held that the federal courts could not make nonconstitu-
BRANDEIS, ERIE, AND THE NEW DEAL
259The eight Court members who heard Erie included only two dissenters-Justices Pierce Butler (seated at right) and James C. McReynolds (seated second from right)-stalwart conservatives who were holdovers from the anti-New Deal era. Benjamin Cardozo (standing at left), was too ill to participate.
BRANDEIS, ERIE, AND THE NEW DEAL
261The author of the Erie opinion, Louis D. Brandeis, did not intend to limit the power of Congress but to limit the powers of the federal courts. He also favored extending both federal and state power to address the nation's social and economic problems.