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Vote Fluidity On The Hughes Court: The Critical Terms, 1934-1936, Barry Cushman
Vote Fluidity On The Hughes Court: The Critical Terms, 1934-1936, Barry Cushman
Journal Articles
This article makes four principal claims. The first is that the justices of the Hughes Court often changed their positions in major cases between the time that they cast their votes in conference and their final votes on the merits. The second is that the Court achieved comparatively high rates of unanimity even during its most turbulent Terms because justices who had served on earlier Courts had internalized a norm counseling those who lost at the conference vote to acquiesce in the judgment of the majority. The third is that the justices who most frequently did so in this period’s …
Inside The 'Constitutional Revolution' Of 1937, Barry Cushman
Inside The 'Constitutional Revolution' Of 1937, Barry Cushman
Journal Articles
The nature and sources of the New Deal Constitutional Revolution are among the most discussed and debated subjects in constitutional historiography. Scholars have reached significantly divergent conclusions concerning how best to understand the meaning and the causes of constitutional decisions rendered by the Supreme Court under Chief Justice Charles Evans Hughes. Though recent years have witnessed certain refinements in scholarly understandings of various dimensions of the phenomenon, the relevant documentary record seemed to have been rather thoroughly explored. Recently, however, a remarkably instructive set of primary sources has become available. For many years, the docket books kept by a number …
The Hughes Court Docket Books: The Late Terms, 1937–1940, Barry Cushman
The Hughes Court Docket Books: The Late Terms, 1937–1940, Barry Cushman
Journal Articles
For many years, the docket books kept by a number of the justices of the Hughes Court have been held by the Office of the Curator of the Supreme Court. Yet the existence of these docket books was not widely known, and access to them was highly restricted. Recently, however, the Court adopted new guidelines designed to increase access to the docket books for researchers. This article offers the first-ever examination of the available docket book entries relevant to what scholars commonly regard as the major decisions of rendered during the late years of the Hughes Court, from the 1937 …
Interpreting Secretary Perkins, Barry Cushman
Interpreting Secretary Perkins, Barry Cushman
Journal Articles
This essay is my contribution to an exchange with Professor Daniel R. Ernst of Georgetown University Law Center concerning the timing of a visit by Chief Justice Hughes and his wife to the Pennsylvania summer home of Justice Owen Roberts. In the 1950s, former Secretary of Labor Frances Perkins recounted in the oral history interview she gave to Columbia University that Mrs. Roberts had reported to her that Hughes and Roberts had held extended, private conversations during that visit. It has been argued by some scholars that the visit took place during the summer of 1936, shortly after the Court …
The Man On The Flying Trapeze, Barry Cushman
The Man On The Flying Trapeze, Barry Cushman
Journal Articles
Any history of the controversy over President Franklin D. Roosevelt's Court-packing plan sets out to answer three principal questions. The first is how best to tell what I will call the political story: how to understand the political trajectory of the Plan from its initial conceptualization to its ultimate failure. The second is how best to tell what I will call the legal story: how to understand the constitutional landscape that confronted New Deal reformers, how they negotiated it, and how and in what respects the Supreme Court transformed that body of constitutional law during the Great Depression. The third …
The Limits Of The New Deal Analogy, Barry Cushman
The Limits Of The New Deal Analogy, Barry Cushman
Journal Articles
The past three years of the Obama Administration inevitably have elicited comparisons between the present day and the era of President Franklin D. Roosevelt’s New Deal. While frequently illuminating, such comparisons often overlook an important point that many may have forgotten: compared with the major reform initiatives undertaken during President Obama’s tenure, a review of the roll call votes reveals that the measures enacted by the New Deal Congresses enjoyed a remarkable degree of bipartisan support. In addition, the Democrats enjoyed large majorities in the House of Representatives from 1933 forward, and a filibuster-proof majority in the Senate after 1934. …
The Hughes-Roberts Visit, Barry Cushman
The Hughes-Roberts Visit, Barry Cushman
Journal Articles
In the 1936 case of Morehead v. New York ex rel. Tipaldo, Justice Owen Roberts voted to invalidate New York’s minimum wage law for women. The following spring, Roberts joined the majority in upholding Washington State’s minimum wage statute. How best to account for this “switch” is a central preoccupation of New Deal constitutional history. In recent years, a number of scholars have called attention to a visit that Chief Justice Charles Evans Hughes and his wife made to Roberts’ Pennsylvania farm in the summer of 1936, in the wake of the public firestorm following the announcement of the Tipaldo …
Clerking For Scrooge, Barry Cushman
Clerking For Scrooge, Barry Cushman
Journal Articles
During the Supreme Court’s memorable October,1936 term, a young man named John Knox clerked for Justice James Clark McReynolds. Knox kept a diary during the term, and between 1952 and 1963 converted the diary into a 978-page memoir. Yet his own efforts to publish the memoir came to naught. In 1978 he deposited all or a portion of the manuscript at a series of libraries. But there it languished until rescued from obscurity by David Garrow and Dennis Hutchinson, who in 2002 published an edition of the manuscript with the University of Chicago Press. This essay reviews Knox’s remarkable memoir …
Mr. Dooley And Mr. Gallup: Public Opinion And Constitutional Change In The 1930s, Barry Cushman
Mr. Dooley And Mr. Gallup: Public Opinion And Constitutional Change In The 1930s, Barry Cushman
Journal Articles
Scholars interested in the development of political and constitutional culture during the 1930s sometimes draw inferences about popular preferences on various issues of social and economic policy from the results of presidential and congressional elections. A review of contemporary public opinion polls taken by George Gallup for the American Institute of Public Opinion and by Elmo Roper for the Fortune Magazine survey offers a more granular understanding of popular views on the public policy issues of the day. This article canvasses all of the public opinion polls taken by Gallup and Roper between 1935, when they began publishing their results, …
Lost Fidelities, Barry Cushman
Lost Fidelities, Barry Cushman
Journal Articles
Owen Roberts was accused of a variety of things in 1937, but “fidelity” was not among them. Justice Harlan Fiske Stone and Professor Felix Frankfurter were among many who accused Roberts of performing, as Frankfurter put it, a jurisprudential “somersault” “incapable of being attributed to a single factor relevant to the professed judicial process.” To Frankfurter, it was “all painful beyond words,” and gave him “a sickening feeling which is aroused when moral standards are adulterated in a convent.” Yet when Roberts announced his retirement from the Court eight years later, Chief Justice Stone, along with now-Justices Frankfurter and Robert …
The Secret Lives Of The Four Horsemen, Barry Cushman
The Secret Lives Of The Four Horsemen, Barry Cushman
Journal Articles
"Outlined against red velvet drapery on the first Monday of October, the Four Horsemen rode again. In dramatic lore they are known as Famine, Pestilence, Destruction, and Death. These are only aliases. Their real names are Van Devanter, McReynolds, Sutherland, and Butler. They formed the crest of the reactionary cyclone before which yet another progressive statute was swept over the precipice yesterday morning as a packed courtroom of spectators peered up at the bewildering panorama spread across the mahogany bench above." Or so Grantland Rice might have written, had he been a legal realist. For more than two generations scholars …