TABLE OF CONTENTS
INTRODUCTION 1893 I. PRELUDE TO CRISIS 1898 A. The New Court 1898 B. The 1930 Term 1893 1. Regulation 1904 2. Taxation 1905 3. Civil Liberties 1907 C. Retrenchment? 1909 D. Thunderbolts 1914 1. Blaisdell 1914 2. Nebbia 1919 3. The Gold Clause Cases 1923 4. Rumination 1927 E. The Confrontation Begins 1927 F. Summary and a Look Ahead 1933 II. SWITCHES, REAL OR APPARENT 1935 A. The Minimum Wage Cases 1935 1. The Puzzle 1935 2. Hughes 1936 3. Roberts 1939 a. In Tipaldo 1940 b. Between Tipaldo and West Coast Hotel 1947 c. In West Coast Hotel 1949 B. The "General Welfare" Cases 1953 1. The Puzzle 1953 2. Contradiction Denied 1955 C. The Commerce Clause Cases 1960 1. The Puzzle 1960 2. Hughes 1962 3. Roberts 1967 III. CONSOLIDATION 1974 CONCLUSION 1982 THOUGHT EXPERIMENT 1. SWITCHING THE TIME OF THE COURT-PACK[NG BATTLE
For the most part, the Supreme Court's decisions in 1932 and 1933 disappointed liberals. The two swing justices, Chief Justice Charles Evans Hughes and Justice Owen J. Roberts, seemed to have sided more with the Court's four conservatives than with its three liberals. Between early 1934 and early 1935, however, the Court issued three thunderbolt decisions, all by five-to-four votes on the liberal side and with either Hughes or Roberts writing for the majority over the dissent of the conservative foursome: in january 1934, Home Building & Loan Assn v. Blaisdell(1) severely limited the extent to which the Contracts Clause of Article I, Section 10 of the Constitution forbids state debtor protection legislation; in March, Nebbia v. New York(2) stated in expansive terms the power of the state to regulate prices and in narrow terms the restraint imposed on the states by substantive due process; and in February 1935, the Gold Clause Cases refused to allow pre-existing contractual provisions to obstruct the New Deal's daring changes in monetary policy.(3)
Suppose that shortly before the Blaisdell decision--rather than in 1937-President Franklin Roosevelt unveiled a plan to pack the Court with six additional members, and that the debate over the plan lasted until after the Gold Clause decisions. Would it not have been obvious that the votes of Hughes and Roberts in these three cases resulted from the political pressure created by the plan and, with respect to the Gold Clause Cases, by the thumping Democratic victory in the 1934 elections?
If, as Lincoln said, "we cannot escape history,"(4) then we certainly cannot escape the 1930s. Despite occasional expressions of impatience,(5) scholars of the American Constitution continue to be intrigued by, and to study with great energy, the events that culminated in the so-called "switch in time" of 1937.(6) And with good reason. The climactic events of 1937, including Franklin Roosevelt's attempt to pack the Supreme Court, were part of one of the great constitutional crises in our history.
Moreover, the crisis accompanied one of the great transformations in constitutional law, a transformation that is commonly referred to by such terms as the "constitutional revolution of 1937."(7) The old constitutionalism that prevailed when Charles Evans Hughes became Chief Justice in 1930 and that underlay the crisis provides an abiding reminder of the darker side of an activist Supreme Court--the danger that the Court, by invoking its view of the Constitution to invalidate legislation, might thwart the fundamental processes of democracy. By the time Hughes retired in 1941, the framework of constitutional law that has prevailed in the last half century had emerged. The famous footnote four of Justice Stone's 1938 opinion in United States v. Carolene Products Co.(8) was one of the first attempts to articulate that framework, which is tolerant of economic and social regulation yet is generally more protective than the old constitutionalism of the less powerful segments of society.
Although the issues raised by the constitutional history of the 1930s are vast, one narrow riddle lies at their heart and is the focus of this Article: Why did the Supreme Court achieve the constitutional transformation, and so quickly? My conclusions are as follows.
The predominant factor in explaining the constitutional transformation is changes in the Court's personnel. Although the "Nine Old Men" of the mid-1930s are often remembered as the paradigm of a conservative Court,(9) the Court of the 1920s was actually far more conservative. In Part I of this Article, I will argue that the Court was made substantially more liberal by Herbert Hoover's two appointments of 1930--Hughes to replace William Howard Taft and Roberts to replace Edward T. Sanford. These appointments created the ideological alignment that prevailed until after the Court-packing crisis of 1937. Under that alignment, I contend in Part 1, the Court achieved significant aspects of the constitutional transformation well before the crisis. This Part will pay more attention than do most accounts to decisions of the early 1930s.
After the crisis had passed, a steady stream of Roosevelt appointees made the Court far more liberal, and thus helped achieve some significant aspects of the transformation that, I argue in Part III, would not have occurred with the pre-1937 Court.
Personnel changes cannot, however, account for the great decisions of the spring of 1937, which played a critical role in defeating Roosevelt's attempt to pack the Court. At the height of the Court-packing battle, the Court, by identical five-to-four votes, upheld a state minimum wage law, the National Labor Relations Act (NLRA), and the Social Security Act. Each of these decisions pointed hard in the opposite direction from--and, with respect to the first two, seemed in conflict with--decisions made by the Court, with the same membership, only the previous year. The critical votes in creating the shift belonged to the two justices in the middle--Roberts and, to a lesser extent, Hughes. In Part II, therefore, I focus on the great decisions of 1936 and 1937, and in particular on the roles of Roberts and Hughes. To what extent was their conduct in 1936 and 1937 substantively consistent? To the extent it was not, did they have a conscientious, albeit well-timed, change of view? If they did, to what extent was it affected by the political environment? Or did they simply alter their votes in a manipulative response to political pressure? Or does some other explanation account for their conduct?
I believe I can demonstrate, to quite a high degree of confidence, that Hughes's votes were not affected by political pressure. Hughes, I believe, voted in 1937 as he would have absent the Court-packing battle, Roosevelt's landslide reelection victory of November 1936, or public hostility to the Court's earlier conservative decisions.
As to Roberts, one cannot be as confident. His 1937 votes in the minimum wage and Social Security cases were consistent with, though not absolutely preordained by, views he had expressed before. His votes in the NLRA cases of 1937 are hard to square logically with his vote the prior year in Carter v. Carter Coal Co.,(10) (but Roberts's views on the scope of national powers seem to have been in transition even before the Court-packing crisis. The evidence does not support the view that Roberts's votes were affected by the Court-packing battle itself. The changing political environment may, however, have had an impact on Roberts's willingness to confront the minimum wage issue and on his substantive views on the scope of congressional power. It is difficult to be sure, however; Roberts was sometimes motivated by reasoning of his own, and his mercurial nature may be a sufficient explanation of his conduct.
The point probably transcends Roberts. Even after trying to understand a judge's conduct across cases as best we can, some judicial movement will likely appear to us to be a random walk. To some extent, this may be because judges are affected by factors of the "what the judge ate for breakfast" type that rationally should have nothing to do with decision-making.(11) But to some extent, if the judge's mind is at all complex, his jurisprudential framework has aspects that are difficult to detect from the outside; the judge may be acting perfectly rationally within that framework even though we do not understand it and cannot explain it. The consequence of this argument may appear ironic: if we should expect a certain amount of (apparently) random behavior as a matter of course, then we need not resort in the first instance to a political explanation for such behavior.
One other factor, intangible and inestimable, must be considered in accounting for the constitutional transformation of the 1930s: the passage of time, with the accompanying accumulation of cases. The Court expanded the perimeters of congressional power over commerce step by step. Even liberal Justices took a far more cautious view of that power in 1935 than they did in 1941. If the 1941 Court saw further, that might have been because it was standing on the shoulders of decisions made in 1937 and intervening years.(12)
In short, the picture I will present in this Article is of a less sudden, discontinuous shift, and one less affected by immediate political factors, than may be connoted by the phrase "constitutional revolution of 1937." Some liberal outcomes were possible even in the 1920s, became far more probable after 1930, and virtually inevitable by 1941;(13) other liberal outcomes that could scarcely be imagined in 1930 became achievable by the early 1940s.(14) The shift may have been incremental, a repeated altering of probabilities, but it was both rapid and momentous.
PRELUDE TO CRISIS
The New Court
In the spring of 1930, Felix Frankfurter summarized the prior
decade of constitutional adjudication:
Since 1920, the Court has invalidated more legislation than in fifty
years preceding. Views that were antiquated twenty-five years ago