In 1930 Pres. Herbert Hoover nominated Hughes to become chief justice of the Supreme Court. His nomination elicited opposition within the Senate, however, particularly from Democrats who found that his representation and support of corporate interests appeared at variance with concern for the economic crisis precipitated by the Great Depression; nevertheless, he was confirmed by the Senate 52–26 on February 13. In several cases involving problems raised by the Great Depression, Hughes generally favoured the exercise of federal power.
Response to the Great Depression led to a host of both state and national plans to deal with the economic crisis. The problem for legal draftsmen was determining under what authority a state or the federal government could impose economic regulations. Social and economic theories of the nineteenth century were still very much alive on the bench. Courts were very willing to invalidate laws on theories of laissez-faire, which is free market capitalism using the substantive due process clause of the Constitution. Substantive due process means judging a law based on its subject matter rather than simply determining if the government had legal authority in that particular area. The Supreme Court's willingness to decide a major case on substantive due process grounds in order to protect "entrepreneurial liberty" occurred as late as 1932.
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