The jurisprudence of the Hughes Court: the recent literature.

• Author: Cushman, Barry
• Position: Introduction through II. Doctrinal Development B. Solomon, p. 1929-1963 - The Evolution of Theory: Discerning the Catalysts of Constitutional Change

Franklin Roosevelt and the Great Constitutional War, Marian C. McKenna (Fordham University Press 2002); The Hughes Court: Justices, Rulings, and Legacy, Michael E. Parrish (ABA-CLIO 2002); The Chief Justiceship of Charles Evans Hughes, 1930-1941, William G. Ross (University of South Carolina Press 2007); Backlash: The Killing of the New Deal, Robert Shogan & Ivan R. Dee (2006); FDR v. The Constitution: The Court-Packing Fight and the Triumph of Democracy, Burt Solomon (Walker & Company 2009).

The literature on the Supreme Court under the Chief Justiceship of Charles Evans Hughes and the tumultuous events surrounding the struggle over President Franklin D. Roosevelt's (FDR's) Court-packing plan in 1937 is vast and varied. The five recent monograph-length studies reviewed in this Article to varying degrees build upon, synthesize, and offer original contributions to that considerable body of scholarship. It is both difficult and hazardous to generalize about such a substantial corpus of scholarly work, but the antecedent literature has been grouped roughly into two types of accounts: "externalist" and "internalist." (1) Externalist accounts tend to see a rather sharp break in constitutional doctrine in the spring of 1937, and attribute that sudden change to the influence of exogenous factors such as the threat of the Court-packing plan or the impression made on the Justices by FDR's landslide re-election in 1936. (2) Internalist accounts tend to see the change in constitutional doctrine as more gradual and spread out over a longer period of time, and to emphasize the importance of presidential appointments to the Court in pushing doctrinal development along or in new directions. Such accounts attribute the greater success of later New Deal initiatives before the Court to legal factors such as improved constitutional conceptualization at the stages of legislative drafting, test case selection, and briefing and argument. Externalist accounts tend to view the constitutional doctrine of the period as more open-textured and attribute the selection among available doctrines (and thus case outcomes) to the political, economic, and social preferences or ideological commitments of the Justices. Internalist accounts tend to note evidence and patterns of judicial performance that are incompatible with this view, and instead tend to see the Justices as experiencing constitutional doctrine as an independent constraint on their extra-legal preferences. Externalist accounts tend to present the Justices as the moving parts in the story, and the relevant changes as the changes in the Justices' positions. Internalist accounts tend, by contrast, to emphasize adaptations by Congress and administration lawyers--made in light of the Court's decisions invalidating portions of the early New Deal--that enabled them to accommodate their regulatory objectives within the Court's evolving body of doctrine.

I want to underscore, as have scholars with perspectives as diverse as those of Professors Richard Friedman, (3) Laura Kalman, (4) Mark Tushnet, (5) and G. Edward White, (6) that this rough taxonomy can be misunderstood, and can obscure important commonalities. These terms are not best understood as denoting a stark, mutually exclusive dichotomy. Instead, they are best understood as locating explanations along a spectrum, with externalists attributing less importance to internal legal factors, and internalists ascribing less importance to certain exogenous, extralegal factors. Externalists do not deny that legal ideas sometimes operated as constraints on judicial behavior, and internalists do not deny that some external factors were sometimes relevant to constitutional adjudication. The disputed terrain is over which factors were relevant, how much constraint and how much influence each of these factors brought to bear on the Justices, and the relationships among those factors.

For example, in my own "internalist" work, I have incorporated a range of factors external to the law into my efforts to explain constitutional development in this period: free labor ideology; (7) changes in unemployment and understandings of its causes; (8) changes in the structure of the labor market; (9) changes in cultural perceptions of and self-conceptions of portions of the labor movement; (10) reactions to the experience of the World War and its aftermath; (11) the onset of an economic depression; (12) developments in economic integration; (13) the wave of sit-down strikes in 1936 and 1937; (14) and personnel changes on the Court, which are due to presidential appointments made for political reasons and as a result of political victories in presidential elections. (15) At the same time, I have attempted to show the ways in which law shaped and channeled political activity into prescribed legal forms, and how such political activity, so channeled, reconfigured the legal landscape from the inside. (16) The debates among internalists and externalists therefore are not about whether law is related to politics and other aspects of social experience. Everyone agrees that it is. The debate is instead about how law was related to such variables in a particular chapter in American legal and constitutional history.

It is thus a mistake to see internalist accounts as resting upon a theory of law that posits the autonomy of law from politics. To be sure, some Marxist and Critical Legal scholars have remarked upon the "relative autonomy" of law from politics, (17) and their views have been influential in the development of some internalist thinking. (18) But it would be an error to view the internalist project as an effort to defend the normative or jurisprudential tenets of, say, the Legal Process School. (19) Internalism is not inherently a normative or jurisprudential position--it is instead an historiographical approach. Indeed, to the extent that it has any jurisprudential association, internalism may be best understood as a species of legal realism that emphasizes an often-neglected social fact about the past: that at least some, if not most Justices have experienced legal ideas and legal materials as restraints on the implementation of their own policy preferences through judicial action.

Let me illustrate this phenomenon with a few examples from the period. One commonly associates the divergence of judicial action from policy preferences with Justice Holmes, who believed that a good deal of the social legislation he voted to uphold was humbug. (20) But there are many other instances of such role differentiation among Justices who served on the Court during the Lochner and New Deal eras. For example, when future Justice Edward Douglas White was representing Louisiana in the United States Senate in 1892, he delivered a lengthy speech in opposition to the "Hatch Anti-Option Bin " (21) That hip would have imposed prohibitively high excise taxes on options contracts concerning certain enumerated agricultural commodities. (22) During that speech Senator White maintained that the 1886 federal statute imposing an excise tax of two cents per pound on colored oleomargarine (23) had been "objectively" constitutional, as on its face it appeared to be designed to raise revenue, but "subjectively unconstitutional," because it was in fact designed not to raise revenue but instead to regulate a matter reserved to the several states. (24) White insisted that as a Senator he "would not vote for a dishonest bill raising revenue," but conceded that if he were "a judge and the bill came to me, then having passed out of this sphere and into another sphere where motives could not enter, I should say the sole question presented to me was, does it raise revenue on its face, and, if so, I would hold it constitutional." (25)

White passed into that other sphere in 1894, when he was appointed to the Supreme Court by President Cleveland. In 1902, Congress amended the 1886 statute to raise the excise on colored oleomargarine from two to ten cents per pound. (26) The 1886 bill, in its original form, similarly had imposed a ten cent per pound excise, (27) a tax White had characterized as "prohibitive" in the Anti-Option Bill debate. (28) The constitutionality of the amended statute was challenged in McCray v. United States. (29) As he had suggested he would on the Senate floor in 1892, now-justice White wrote for the majority upholding the tax. In an opinion laced with expressions of concern over the possibility of judicial usurpation" eliminating "the entire distinction between the legislative, judicial and executive departments of the government, upon which our system is founded," (30) White rejected the contention "that the judiciary may restrain the exercise of lawful power on the assumption that a wrongful purpose or motive has caused the power to be exerted." (31) Though White believed that the statute was subjectively unconstitutional, and would have voted against it for that reason as a Senator, his conception of the judicial role prevented him from vindicating that conviction in his capacity as a Justice.

Consider next an instance involving Justice Mahlon Pitney. Section 10 of the Erdman Act of 1898 prohibited interstate carriers from requiring their employees, or any person seeking employment, as a condition of employment to enter into an agreement not to become or remain a member of a labor organization (a so-called "yellow-dog contract"). (32) That section further prohibited carriers from threatening any employee with loss of employment or discriminating against any employee because of his union membership. (33) During the debates on the bill, no member of either house of Congress suggested that this provision was unconstitutional, (34) and Pitney, who was then a Representative from New Jersey, voted to enact the bill. (35) In 1908, the Supreme Court invalidated section 10 as an infringement of the liberty of contract guaranteed by the Fifth Amendment in Adair v...