The Jurisprudence of the Hughes Court: The Recent Literature

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. …