Demonstration's of Max Weber's Theory of Bureaucratic Perpetuation in Supreme Court Decisions: Franklin Roosevelt’s New Deal Program v. the Lochner Court.

This is the third installment in a series of papers that examining Supreme Court decisions as a process that contests partisanship versus institution building, as an example of Max Weber's Theory of Bureaucratic Perpetuation. The first and second installment of this series examined the case of Marbury v. Madison and the case of Dred Scott v. Sandford where the Supreme Court attempted to conflate institution building with partisanship only to witness the disastrous results. In this installment, the forces of partisanship and institution building are reviewed as they applied to the Great Depression and the twilight years of the Lochner Court. This paper examines a series of decisions that occurred before and during the Great Depression where the partisanship of the court favored rulings that blocked potential remedies to the existential economic crisis that gripped the entire world. Because the Supreme Court stands atop the American legal establishment, the predictability of its decisions is important to the field of law. However, the court has embraced a teleological approach which makes predicting its decisions difficult. Justices show a strong preference to vote along partisan lines, but when they defect from partisanship they do so for a consistent, if not predictable, reason: institution building. This paper demonstrates that the Supreme Court behaves as Max Weber's social theory suggest: as an institution which frequently acts to perpetuate itself. During the Great Depression from 1929 to 1939, the tension between partisanship versus institution building hit a crescendo.