I think this might be more what you’re after. The Court strikes down a bigger part of the New Deal sooner. And Congress essentially says, Alright, you want to play hardball, we can play hardball.
An exception and/or loophole big enough to drive a truck through!
Easily within the top three of unused or under-utilized parts of the United States Constitution, and arguably the single biggest one.
(1) This doesn't deal with a situation where lower federal courts (or state courts) have found a statute unconstitutional. Remember in
Butler the Court upheld a First Circuit decision finding the AAA unconstitutional.
https://law.justia.com/cases/federal/appellate-courts/F2/78/1/1506359/ In
Schechter, it is true, the Second Circuit had
partially sustained the NRA but had "reversed the conviction on two counts which charged violation of requirements as to minimum wages and maximum hours of labor, as these were not deemed to be within the congressional power of regulation."
https://supreme.justia.com/cases/federal/us/295/495/#tab-opinion-1934743 Indeed, in some cases the lower courts were
more conservative than the Supreme Court. In
Helvering v. Davis the Court sustained the constitutionality of the old-age pension provisions of the Social Security Act. Even two of the supposedly incorrigibly reactionary Four Horsemen (Van Devanter and Sutherland) concurred. (Only Butler and McReynolds dissented.) Yet the First Circuit had declared the Act unconstitutional!
https://casetext.com/case/davis-v-edison-elec-illuminating-co-boston?resultsNav=false Had the Supreme Court been deprived of jurisdiction there would have been no way of reversing the First Circuit's decision.
(2) Even if some federal and state courts would be more liberal than the Supreme Court, as long as others were not, you would have a situation where the same federal law would be constitutional in some states and unconstitutional in others. This can lead to chaos and the frustration of laws whose whole purpose was after all to deal with
national problems. I don't think I have to explain at length that a situation where the federal government could collect Social Security taxes in New York City and Los Angeles but not Chicago or Boston or Philadelphia could cause problems.
(3) Finally, it is uncertain how far Congress' powers under the Exceptions Clause goes. I am myself extremely skeptical of some of the limitations (e.g., that the clause can't be used to undermine the "essential functions" of the Court) that have been suggested by Professors Hart and Ratner.
https://books.google.com/books?id=2gQSBAAAQBAJ&pg=RA1-PA104 Also at one point Raoul Berger "had emphasized the founders' fear of legislative power and concluded that the clause was intended only to prevent revision of local jury findings of fact" (Berger later changed his mind about that).
https://books.google.com/books?id=NFy6N6dRhT0C&pg=PA130 But the question is not whether these theories are sound--the question is, What if the Court agrees with these theories and declares the law limiting its jurisdiction unconstitutional?
So, no, the Exceptions Clause would not be a satisfactory remedy for liberals dissatisfied with a conservative Supreme Court in the 1930's. With all its faults, court packing would at least
work in the sense of getting progressive legislation sustained nationally (and would be harder to challenge than legislation passed under the Exceptions Clause). Ironically, though, neither of these flawed remedies was necessary. All the Congress had to do was pass the Summers bill letting Supreme Court justices retire on full pay!
https://www.alternatehistory.com/fo...-pack-the-supreme-court.415710/#post-14715169
This is all academic because in 1932 Hoover is not going to appoint a reactionary Justice and if he does the Senate is not going to confirm him. If you want a more right-wing Court in the 1930's there are more plausible ways to get it--maybe have Brandeis in the early 1920's step down from the Court to lead the World Zionist Organization, as he considered doing.
https://books.google.com/books?id=lN4zG5Qb1lwC&pg=PA274