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The Man On The Flying Trapeze, Barry Cushman Aug 2019

The Man On The Flying Trapeze, Barry Cushman

Barry Cushman

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 …


Consequences Of Supreme Court Decisions Upholding Individual Constitutional Rights, Jesse H. Choper Aug 2019

Consequences Of Supreme Court Decisions Upholding Individual Constitutional Rights, Jesse H. Choper

Jesse H Choper

The thrust of this Article is to attempt to ascertain just what differences the Court's judgments upholding individual constitutional rights have made for those who fall within the ambit of their protection. It seeks to address such questions as: What were the conditions that existed before the Court's ruling? How many people were subject to the regime that was invalidated by the Justices? Was the Court's mandate successfully implemented? What were the consequences for those affected? At a subjective level, were the repercussions perceived as salutary by those (or at least most of those) who were the beneficiaries of the …


Vote Fluidity On The Hughes Court: The Critical Terms, 1934-1936, Barry Cushman Jan 2017

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 Jan 2017

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 Limits Of The New Deal Analogy, Barry Cushman Oct 2016

The Limits Of The New Deal Analogy, Barry Cushman

Barry Cushman

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.These …


The Hughes-Roberts Visit, Barry Cushman Oct 2016

The Hughes-Roberts Visit, Barry Cushman

Barry Cushman

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 …


Lost Fidelities, Barry Cushman Oct 2016

Lost Fidelities, Barry Cushman

Barry Cushman

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 …


Vote Fluidity On The Hughes Court: The Critical Terms, 1934-1936, Barry Cushman Aug 2016

Vote Fluidity On The Hughes Court: The Critical Terms, 1934-1936, Barry Cushman

Barry Cushman

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 …


Interpreting Secretary Perkins, Barry Cushman Jun 2016

Interpreting Secretary Perkins, Barry Cushman

Barry Cushman

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 Hughes Court Docket Books: The Late Terms, 1937–1940, Barry Cushman Jan 2015

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 Oct 2014

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 …


Mr. Dooley And Mr. Gallup: Public Opinion And Constitutional Change In The 1930s, Barry Cushman Apr 2014

Mr. Dooley And Mr. Gallup: Public Opinion And Constitutional Change In The 1930s, Barry Cushman

Barry Cushman

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, …


Clerking For Scrooge, Barry Cushman Nov 2013

Clerking For Scrooge, Barry Cushman

Barry Cushman

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 …


The Secret Lives Of The Four Horsemen, Barry Cushman Nov 2013

The Secret Lives Of The Four Horsemen, Barry Cushman

Barry Cushman

"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 …


The Man On The Flying Trapeze, Barry Cushman Oct 2012

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 Hughes Court And Radical Political Dissent: The Case Of Dirk De Jonge And Angelo Herndon, Mark Tushnet Mar 2012

The Hughes Court And Radical Political Dissent: The Case Of Dirk De Jonge And Angelo Herndon, Mark Tushnet

Georgia State University Law Review

No abstract provided.


The Limits Of The New Deal Analogy, Barry Cushman Feb 2012

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 Jan 2012

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 Jan 2003

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 Jan 2002

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 Jan 1999

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 Jan 1997

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 …


Telling The Story Of The Hughes Court, Richard D. Friedman Jan 1996

Telling The Story Of The Hughes Court, Richard D. Friedman

Articles

When Justice Oliver Wendell Holmes, Jr., died in 1935, he left the bulk of his estate to the United States Government. This gift, known as the Oliver Wendell Hnlmes Devise, sat in the Treasury for about twenty years, until Congress set up a Presidential Commission to determine what to do with it. The principal use of the money has been to fund a multivolume History of the United States Supreme Court. The history of the project itself has not always been a happy one, for some of the authors have been unable to complete their volumes. Among them was one …


Consequences Of Supreme Court Decisions Upholding Individual Constitutional Rights, Jesse H. Choper Oct 1984

Consequences Of Supreme Court Decisions Upholding Individual Constitutional Rights, Jesse H. Choper

Michigan Law Review

The thrust of this Article is to attempt to ascertain just what differences the Court's judgments upholding individual constitutional rights have made for those who fall within the ambit of their protection. It seeks to address such questions as: What were the conditions that existed before the Court's ruling? How many people were subject to the regime that was invalidated by the Justices? Was the Court's mandate successfully implemented? What were the consequences for those affected? At a subjective level, were the repercussions perceived as salutary by those (or at least most of those) who were the beneficiaries of the …