Supreme Power: Franklin Roosevelt vs. the Supreme Court.

AuthorGelman, Sheldon
PositionV. The Historical Debate Revisited through VII. Conclusion: Against Internalism, with footnotes, p. 489-518 - Book review
  1. THE HISTORICAL DEBATE REVISITED

    The words "internalism" and "externalism" suggest a historical dispute driven by philosophical differences about the nature of law. But why does the historical disagreement involve anything more than a set of conflicting conclusions about events? How can a debate about what happened in 1937 turn on general views about law?

    This Part argues that an internalist, concept-driven characterization of the historical debate--like the internalist, doctrine-driven account of 1937--is, as a matter of fact, wrong.

    1. VARIETIES OF INTERNALISM AND EXTERNALISM

      On an internalist version of the historical debate, as I will call it, two competing conceptions of law are in conflict. The philosophy of legalism, which views law as autonomous from politics, underlies internalism. (120) Legal realism supposedly undergirds externalism. (121)

      Other views of the debate exist, however. According to what might be called debate externalism, political of other non-philosophical agendas motivate historians in the controversy. And according to what might be termed debate agnosticism, "internalism" and "externalism" represent analytically unhelpful categories, with no more relevance to the issues than current religious views might have to a dispute about events in the Middle Ages.

      To understand the debate, it will be helpful to understand the varying strength of internalist or externalist views of 1937. The "strongest" views hold that the nature of law shaped events. Politics did not drive constitutional change in 1937, a strong internalist might say, because law by nature is autonomous from politics. For a strong externalist, on the other hand, politics had to drive legal change in 1937 because law is inherently political.

      There is a range of "strong" views. Only the very strongest would hold that Justice Roberts necessarily acted for legal of political reasons. And no one consistently advances such a view. No internalist argues, for example, that legal institutions never can become politicized--a position belied by both logic and history. Law may be generally autonomous, but it can be corrupted at times. Court-packing opponents feared precisely that; they believed Roosevelt's plan would transform an autonomous body of constitutional law into a politicized one.

      The strongest possible externalist account--politics decisively shapes law--might not be utterly implausible. But it would be completely unhelpful. Even if law is unavoidably political, Justice Roberts need not have "switched" in 1937 because he feared Roosevelt or because of worries about judicial review. In fact, on a strong legal realist view law would remain political no matter what Roberts did: law would be no less political had Roberts voted with the conservatives Justices in 1937.

      Weaker variants of internalism and externalism are more plausible. A internalist might believe, for instance, that it was unlikely politics motivated Justice Roberts because law is generally autonomous from politics. An externalist might hold that the political content of legal decisions varies--but that the political content is usually high in constitutional cases.

      Debate internalism and externalism may arise from someone's internalist or externalist view of events. If the nature of law influenced events, someone who misunderstands the nature of law will necessarily misunderstand what happened. Thus, a strong legalist will hold that externalists err about events as a consequence of their mistaken view of law. A strong legal realist will believe the same thing about internalists.

      Views of the events and views of the debate do not always correspond, however. For example, a strong event externalist might suppose that a mistaken philosophy of legalism explains internalists' errors regarding the events. The result would be an externalist view of events combined with an internalist view of the historical debate--internalist because it posits a debate driven by philosophical differences about law. On the other hand, an externalist about events may well favor a political of agenda driven explanation for historians' conclusions. The result would an externalist account of both the events and the historical debate, seeing worldly agendas as the driving force in both.

      Or consider a historian who regards the nature of law as irrelevant for an understanding of the events. This historian might find philosophy irrelevant to the historical debate, as well as to the events, and shun the terms "internalist" and "externalist." But another possibility exists. Suppose the historian concludes that politics influenced Justice Roberts. He or she might also conclude that historians who reach a different conclusion were led astray by their views about the nature of law or by their political agendas, which distorted their assessment of the historical evidence. Such views, which do not rely on the nature of law to establish what happened in 1937, may be called "weak debate internalism" and "weak debate externalism," respectively.

      Weak debate internalism and weak debate externalism both feature prominently in the literature, but for different reasons. Consider the situation of a relatively strong event internalist. No one, as just noted, considers it absolutely impossible for politics to have influenced Roberts. Thus, even relatively strong internalists will examine what happened, producing a narrative about singular, unique events. Having done that, however, internalists will be inclined to rest their conclusions on that narrative, not on their general views about law. An example is Cushman's claim that the Justices had no reason to fear Courtpacking. (122)

      When making particular historical arguments, a strong internalist like Cushman is in the same position as an historian who deems the nature of law irrelevant. Thus, in addition to some relatively strong internalist arguments about events, Cushman makes weak internalist arguments about the debate. (123) That is, he argues not only that externalists must be wrong because of the nature of law influenced events, but also that externalists misinterpret the facts because legal realism blinds them to what actually happened. (124) Thus, a relatively strong internalist about events may describe the debate in weak internalist terms.

      A different consideration explains the frequency of weak externalist arguments about the debate. It is not that strong externalists, like strong internalists, make arguments independent of their philosophy of law. Rather--and despite the very idea of an internalist versus externalist debate--there simply are no strong externalists. No one argues that Roberts' switch was probably political because politics usually influences judges.

      In fact, so-called "externalists" in the debate have no need to appeal to the general nature of law. These historians focus on singular events, arguing that Roberts responded to an almost unprecedented threat to judicial review. In that argument, the nature of law and its general relationship to politics are irrelevant. Internalists, on the other hand, invoke the nature of law because events--Roberts' votes in 1936 and 1937 and political circumstances after the 1936 election--run counter to their conclusions. Internalists therefore posit a separate legal realm to make their case, a realm where ordinary legal processes were supposedly at work. Externalists, on the other hand, need not posit hidden realms to make their case.

      There is a related point. If strong event externalists existed, they would cite worldly agendas and motives, on the part of Justices as well as others. But that is the very analysis that political figures, newspapers and lawyers routinely engaged in during the 1930's. And one need not subscribe to any philosophy of law, or even know that such philosophies exist, to form the idea that Justice Roberts "switched" at a time of maximum political pressure. Unless, of course, debate internalists are right and the common sense of observers in 1937 was not common sense at all, but the reflection of a pervasive, yet mistaken, philosophy of law.

    2. REPRESENTATIVE VIEWS

      1. Strong and Weak Internalism--Felix Frankfurter is perhaps the strongest internalist on record. In his 1955 tribute to Roberts, described earlier, Frankfurter argued it was "ludicrous" to believe political developments had influenced the Justice. (125) In ruling out that possibility, Frankfurter cited Roberts' personal and judicial character--as if only a corrupt judge would have saved the Court from packing. (126) Frankfurter's unstated premise was that judges operate in a legal realm entirely insulated from politics, making it an anathema for a judge to take politics into account.

        This argument from "character" was not likely to fare well in the culture of the 1960's. Nor had anyone had ever accused Roberts of switching for corrupt reasons. If Roberts did respond to political pressure, it had been to save the Court--even though those who believe Roberts did switch do not portray him as heroic.

        Forty years later, Cushman voiced a relatively strong internalist characterization of the debate, one that echoed elements of Frankfurter's tribute. Cushman wrote:

        To embrace the thoroughgoing externalist account ... is to deny the constitutional jurisprudence of the period any status as a mode of intellectual discourse having its own internal dynamic. It is to dismiss the efforts of the lawyers defending the constitutionality of New Deal initiatives as irrelevant and redundant, to deprive Hughes and Roberts of a substantial measure of intellectual integrity and personal dignity, and to suggest that sophisticated legal thinkers casually discard a jurisprudential worldview formed over the course of a long lifetime simply because it becomes momentarily politically inconvenient. (127) This came close to suggesting that, because of the nature of law and the character of the Justices, internalism must be right and...

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