Laura Kalman

AHR Forum

The Constitution, the Supreme Court, and the New Deal

The central problem of modern constitutional law is how to reconcile the idea of fundamental law with the modernist insight that meanings are fluid and historically changing.¹

The "constitutional revolution of 1937" makes for dramatic lectures. According to the abridged story line, first the Court led liberals to hope for the best by upholding state legislation aimed at fighting the Depression in 5–4 opinions in Blaisdell and Nebbia in 1934. Then it vitiated the National Industrial Recovery Act and the Agricultural Adjustment Act—the centerpieces of the early New Deal—in Schechter and Butler in 1935–1936, and struck down the Railroad Retirement Act as well in Alton. Soon afterward, a bare majority bent on protecting property rights and privileging the market routinely struck down New Deal and state redistributive legislation designed to cope with the Depression. Thus Justice Owen Roberts joined the "conservative" Willis Van Devanter, George Sutherland, Pierce Butler, and James McReynolds to invalidate a state minimum wage law for women and children in the June 1936 Tipaldo decision as an unconstitutional violation of the "liberty" interest in the Fourteenth Amendment's due process clause—just as five justices had struck down a state law establishing a ten-hour day for bakers in the 1905 Lochner case and a federal minimum wage statute for women and children in the 1923 Adkins case. But suddenly, a year after Tipaldo, "it became clear that Lochner and progeny were dead or dying." On March 29, 1937, the justices stupefied many by handing down West Coast Hotel v. Parrish, a 5–4 decision by Chief Justice Charles Evans Hughes, joined by Roberts, overruling Adkins and sustaining a state minimum wage statute for women virtually identical to the one invalidated in Tipaldo. Although the Court did not overrule Lochner in Parrish, it began the process of laying "the Lochnerian Constitution" to rest, breaking with the liberalism of the Progressive Era and apparently constitutionalizing the New Deal—a process completed by Memorial Day. An amazed Felix Frankfurter said that Roberts's "somersault" bore no relation to the judicial process.²

"Say! I'm Flyin' This Kite!" Drawing by unknown artist, originally published in the Memphis Commercial Appeal on March 11, 1937. Reproduced courtesy of the Franklin D. Roosevelt Library.

When did the Court shift and why? In the 1930s, most Court watchers agreed with Frankfurter. They looked to political pressures. They pointed out that Parrish was announced five months after Franklin Delano Roosevelt had won his huge victory in 1936, and seven weeks after the president had announced his plan to add one justice to the Supreme Court for each one over the age of seventy who did not retire, up to fifteen justices. Further, two weeks after Parrish, Hughes and Roberts joined just three colleagues to uphold the constitutionality of the National Labor Relations Act in Jones & Laughlin, a decision that took an expansive view of the commerce clause and national power seemingly at odds with their recent positions in Carter Coal and, additionally, for Roberts, in Alton. Six weeks later, on May 24, with Roberts again in the majority, the Court upheld the unemployment insurance and old age insurance provisions of Social Security, apparently taking a broader view of the taxing and spending power than Roberts had in Butler.³

The cumulative effect was to convince many that Hughes and Roberts had "gone over" to join the three "liberal" justices acceptant of the New Deal. It was the Court, it seemed, that had somersaulted, signaling its willingness to uphold the same sweeping national/state economic regulation under the due process clause, the commerce clause, and the taxing and spending power that it had previously invalidated. And this flip-flop drained public and congressional support for Court packing. Indeed, the Court's behavior seemed calculated to undermine that support, since it became harder for FDR to claim that he needed additional justices to protect his program. The Court had engaged in "self-salvation by self-reversal," realizing that if it "balked, the court bill would surely pass." It beat the president "by surrendering to him," particularly after Van Devanter's resignation in May 1937—another step planned by Roosevelt's opponents to defeat Court packing—gave the president his first judicial vacancy. Thus Court packing failed. The tangled skeins of legal doctrine, the New Dealers crowed, in a judgment echoed at the time by political scientists Edward Corwin and Benjamin Wright, had capitulated to political exigency. A "constitutional revolution" had occurred.⁴

But that was hardly the last word. Once on the Court, Frankfurter himself somersaulted. He grew close to Justice Roberts, who wrote a memorandum insisting that he had been unswayed by politics. Roberts maintained that his positions in Tipaldo and Parrish were actually reconcilable. The Court had not been asked to overrule Adkins in the former, as it had been in the latter. Further, he had originally cast his vote in Parrish to overturn Tipaldo in December 1936, before Roosevelt announced his Court-packing plan; the normal business of the Court delayed announcement of Parrish until afterward. Frankfurter published the document when Roberts died in 1955, at a time when the Court was under attack—this time for "liberal" judicial activism, as opposed to the "conservative" judicial activism of the 1935–1936 Court. Frankfurter hoped to prove that his colleague had remained true to "law." Meanwhile, Hughes and his authorized biographer maintained that the chief justice had also demonstrated consistency throughout the controversy, and that "[t]he Court acted with complete independence." Predictably, some found Frankfurter, Roberts, and Hughes unpersuasive, pointing out, for example, that while Roberts did indeed cast his vote in Parrish before Roosevelt's announcement of his plan, he did so after the 1936 election. Thus it was that a vigorous debate occurred about the timing of, and reasons for, the Court's behavior.⁵

Instead of dying down, the controversy has, of late, been reignited. Today there is even a shorthand by which those involved in it often identify our position. We are either "externalists" or "internalists." Externalists argue for the importance of politics, making the case that Roberts and Hughes, and therefore the Court, dramatically changed course during the "constitutional revolution of 1937" because of the threat posed by the 1936 election and/or the Court-packing plan. Internalists highlight the primacy of law over politics, pointing to doctrinal changes that began well before 1937 and continued afterward, to say that there were plausible intellectual reasons for the Court's journey and that no sudden shift took place.

In this article, I explore the debate's recent history. To make the case for the desirability of interdisciplinary scholarship, and despite the risk of reifying disciplinary boundaries, I stress how participants' disciplinary homes affect their contentions. First I consider the case made by externalist political historians for the Court's "switch" under political pressure. Then I show how constitutional law professors and the Supreme Court itself became increasingly interested in the Court-packing episode and its significance during the 1980s and 1990s. Next I examine the internalist case made by historians in law schools during the 1990s. I then maintain that internalists, externalists, and law professors ignored evidence from political science casting Court packing in a different light. I conclude that the "externalist" and "internalist" categories are useless and intertwined and do not describe our approaches, and that we should adopt the standard postrevisionist tactic of aiming for synthesis.

By the 1980s, the debate about whether "law" or "politics" caused what happened on the Court was losing steam. Despite Paul Murphy's insistence on the timeliness of reclaiming it, constitutional history was as unfashionable as its sibling political history. Insofar as there was interest in the Court, the focus was on the Gilded Age and the Progressive Era. Historians demonstrated that the justices whom Charles Beard and other Progressives had vilified as the willing servants of the rich were in fact defending older U.S. constitutional values of individualism, liberty, economic opportunity, state neutrality, federalism, and free labor. Like Charles Warren before them, they stressed that Lochner was the exception rather than the rule, and that the "old Court" Progressives so despised had actually upheld a great deal of regulation. But revisionists left the New Deal alone.⁶

At this point, most historians of the Constitution and the New Deal probably agreed that the Court had changed course quite suddenly in 1937 because of political pressure. William Leuchtenburg had convinced us that such was the case. In a dazzling series of essays based on exhaustive research in the most out-of-the-way archives, Leuchtenburg showed how the battle lines between FDR and the Court hardened before the 1936 election; the long gestation of the Court-packing plan; why FDR did not confront the Court sooner; why, when he did, he launched a disingenuous and frontal attack, initially requesting additional justices to help the Court handle its overcrowded docket, rather than because the Court was overturning the New Deal, and instead of a constitutional amendment limiting judicial power; how FDR ingeniously paved the way for a compromise plan that would have permitted the appointment of new justices just when his fortunes were lowest; and the consequences of the failure of Court packing.⁷

While the president lost the skirmish with the Court, he won the battle. The election of 1936 may have played a role. After reviewing Van Devanter's papers, Leuchtenburg was convinced that "he and men like him seriously thought a Republican victory possible in 1936," and although FDR stayed silent about the Court during the 1936 campaign, others did not. But the real threat, in Leuchtenburg's view, came after the election. In 1970, Leuchtenburg said that the Court, led by Chief Justice Hughes, "a very adroit politician and also a man with a sense of the need to preserve the integrity of the Court as an institution," beat "a strategic retreat ... largely in response to the Court-packing plan." The result was the Court's "astonishing about-face" and the "constitutional revolution of 1937," which transformed the Court's business, "ended, apparently forever, the reign of laissez faire," and legitimated the arrival of "the Leviathan State."⁸

Yet although the battle was won, the war was lost. As Leuchtenburg also demonstrated, Court packing divided Democrats and undermined middle-class and bipartisan support for the New Deal. It shattered FDR's aura of invincibility, helped "blunt the most important drive for social reform in American history," and "squandered" the president's 1936 triumph by welding together a coalition of conservative Southern Democrats and Republicans that blocked reform in Congress until 1964.⁹

These essays appeared between the late 1960s and the mid-1980s as offshoots of Leuchtenburg's two-volume constitutional history of the 1930s in progress. In 1995, he collected them in The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt. Among historians, the timing was good. Political history was just beginning to rebound.¹⁰ The emphases on ideology, thought, institutions, language, politics, and culture in the profession proved more compatible with political history than social history had been. Most of Leuchtenburg's fellow twentieth-century political historians, such as Alan Brinkley, were inclined to accept his conclusions. Their books, textbooks, and biographies have continued to maintain that the Court prudently shifted its "ideological ground" under pressure.¹¹ Historians in law schools reacted more skeptically.

By this time, legal history in law schools had expanded to include constitutional history. G. Edward White and others like him, who had received their Ph.D.s in history or American Studies and gone to law school as the job market for historians collapsed, had revived American legal history when they became law professors. Most such individuals originally stayed away from constitutional history, perhaps because constitutional scholarship in the 1970s was "relentlessly ahistorical," and perhaps because, except during Watergate, constitutional history had joined political history in the dumpster. Legal historians were having enough trouble making their own field less marginal without teaching constitutional history, which would have been dismissed as irrelevant and old-fashioned. Most historians who landed in law schools wrote about private law.¹²

But in the 1980s, there was a resurgence of interest in history in the academy. "Interdisciplinarity" became a buzzword in law schools, with history seen as indispensable to constitutional scholarship. For one example, Bruce Ackerman turned from political philosophy to constitutional law in the 1980s and drew upon history to advocate a theory of popular sovereignty, which allegedly empowered a mobilized "we the people" to engage in creative "higher lawmaking" during the Founding, Reconstruction, and the New Deal, and which had the practical effect of amending the Constitution. In such "constitutional moments," Ackerman said, the judiciary fulfilled the function that Alexander Hamilton envisioned for it in Federalist 78 by serving as the voice of the people.¹³

Such work reflected constitutional scholars' sense that their field had reached a dead end for which history offered a fix. For liberals, it also arguably reflected an effort to fight the fire of the Reagan administration's politically conservative celebration of original intent with fire—or liberal originalism.¹⁴ It all meant that legal history could no longer be relegated to the children's table in law schools, and constitutional history got to sit with the grownups, too.

Another key moment occurred in 1992, when the Supreme Court handed down Planned Parenthood v. Casey, which reaffirmed the constitutional right to abortion upheld in Roe v. Wade. The joint opinion by Justices Sandra Day O'Connor, David Souter, and Anthony Kennedy and the dissents by Chief Justice William Rehnquist and Justice Antonin Scalia addressed the "lessons" of "1937." All the Reagan-Bush appointees had obviously thought about the "constitutional revolution of 1937" and, like Leuchtenburg, concluded that the Court had changed direction because of political pressure and to save itself as an institution. And all seemed emphatically grateful that their New Deal predecessors had "switched."¹⁵

That was not to say that the Rehnquist Court endorsed the New Deal agenda or a broad vision of constitutional change. Simultaneously and suddenly, it struck a blow for federalism. In 1995, in U.S. v. Lopez, and for the first time since "1937," the Court stunned many by invalidating the Gun-Free School Zones Act on the grounds that Congress had exceeded its power under the commerce clause. The decision augured poorly for Congress and the regulatory state. The Supreme Court struck down twenty-three congressional statutes in the next five years in a "constitutional counterrevolution" that, at least in terms of the number of times the battle was joined, proved more vigorous than that launched by any other Court over a comparable period. "All of the sudden, the talk among progressives is of complaints about judicial supremacy and the hegemony of the Supreme Court," one progressive law professor noted. It was "the early 1900s all over again, and one might as well forget that the Warren Court happened in the middle." Progressives became even more alarmed in 1995, when Judge Douglas Ginsburg of the D.C. Circuit Court of Appeals spoke wistfully of restoring "the Constitution in Exile" that had existed before the Supreme Court constitutionalized the federal and state regulatory legislation of the New Deal. Consequently, the legacy of the New Deal came under attack by the Court at just the moment that the Court signaled its interest in constitutional change during the New Deal.¹⁶

So New Deal scholarship became hot in the early 1990s—not just for political historians, but for constitutional law scholars, too. But as one of the latter said, the externalist approach seemed "too historically contingent." Did law professors really want to believe that the big questions could be "answered primarily by what Owen Roberts was thinking in 1937"? Perhaps not, but the Casey opinions showed that "1937" had become a parable for those who sought to make claims about the relationship between law and politics. Where Leuchtenburg had focused on their interrelationship during the New Deal, some would extrapolate, using the evidence about the Court's behavior during the 1930s as a building block toward the argument that it always acted politically. At such charged moments, revisionist historians who challenge the consensus often receive considerable attention. Thus it was that 1937 became "a battleground."¹⁷

The turn to the constitutional history of the New Deal by historians teaching in law schools became apparent in 1994, when the University of Virginia held a symposium on the topic. It showcased the work of Barry Cushman, a thirty-four-year-old Virginia J.D.-Ph.D. His dissertation director had been Charles McCurdy, one of the few in a history department who had continued writing constitutional history during its lean years and whose work challenged the Progressive understanding of the Gilded Age Supreme Court as the agent of the trusts, while underlining how attorneys for big business had nonetheless manipulated the Court to their advantage. Cushman had not chosen his dissertation to be trendy. In fact, he had originally set out to write about the constitutional culture of the 1920s. But the developments described here may have helped to create interest in Cushman's work, which argued for the same kind of investigation of ideology and the "internal component" of the New Deal cases that revisionists had undertaken of the Gilded Age and the Progressive Era. "The initial conceptualization of the 1937 decisions in externalist terms—as a political response to political pressures—has deflected scholars from inquiring into the plausibility of an internal component to a more comprehensive explanation of the New Deal Court's behavior," Cushman maintained. He criticized "externalist[s]," such as Leuchtenburg, for "substitut[ing] the language of political science for the legal language in which the Justices discussed these issues" and reducing "constitutional jurisprudence to a political football."¹⁸

Cushman blamed "our stalled and impoverished understanding of the New Deal Court" on externalists who attributed it to the 1936 election and/or to Court packing. Instead of laying out a full alternative explanation, he launched a detailed challenge against "anachronistically unsophisticated" externalism. "For the past fifty years, we have heard reiterated a constitutional bedtime story with a happy ending for New Deal liberals," he concluded. "Unfortunately, it has put us to sleep."¹⁹

Those were fighting words. Responding, Leuchtenburg charged in The Supreme Court Reborn that Cushman had "contemptuously dismissed the conclusion of two generations of scholars." And, he said, Cushman "reached that judgment without the benefit of any original research in the papers of the Justices, ... without scrutinizing most of the cases of the era and, in particular, without coping with the arguments of Justices such as Stone who had no doubt" that the Court had suddenly switched direction.²⁰

Leuchtenburg and Cushman would write about each other's work more respectfully later, but in the meantime, others poured oil on the flames. I entered the fray with a four-page footnote hailing Leuchtenburg's narrative and characterizing Cushman's as "unpersuasive." Then G. Edward White, a University of Virginia Law School legal and constitutional historian, published a review of The Supreme Court Reborn contending that Leuchtenburg provided "a conventional, traditionalist view" that did not even attempt "the task of any new history, that of cabining a historical era in time."²¹

The full statement of what would be considered the "internalist" case—despite the fact that it was not completely "internalist"—came in 1998, with publication of Cushman's revised dissertation, Rethinking the New Deal Court: The Structure of a Constitutional Revolution. It turned out that Cushman had done a great deal of research indeed. He argued that the "constitutional revolution" began not in 1937 but in 1934, in Nebbia v. New York. Central to Roberts's 5–4 opinion for the majority, there was a rejection of the "public/private distinction," which had characterized classical legal thought since the 1870s, with law supposedly relegated to the public sphere, and the Court insisting that the state could regulate private property only when it was "affected with the public interest." Roberts abandoned the "affected with the public interest" doctrine in Nebbia, announcing that regulations of private property would violate due process only if they were arbitrary or discriminatory. He pulled the doctrinal thread that eventually unraveled the old jurisprudence in Parrish. Using battle metaphors, Cushman concluded: "The empire of substantive due process was already in a state of collapse when the Parrish decision officially lowered the flag over its last colony."²²

What was more, Cushman said, the Social Security cases, which were handed down in May when "backing for the Court-packing plan was at its ebb," were easy and marked no real reversal in taxing and spending power jurisprudence. Some of the supposedly most conservative justices approved of the unemployment insurance provisions of the Social Security Act. In his dissent, Justice Sutherland, joined by Justice Van Devanter, objected "only to certain easily correctable provisions of the Act." Sutherland and Van Devanter were part of the seven-person majority voting to uphold the act's old-age provisions. Jones & Laughlin, too, was consistent with what had gone before. The real transformation in commerce clause doctrine, according to Cushman, did not come until FDR put new justices on the Court who decided Darby and Wickard in the early 1940s. Here was the "jurisprudential Rubicon": small wonder that the Court upheld every economic regulation enacted pursuant to the commerce clause until Lopez. Thus the three externalist landmarks of 1937—Parrish, Jones & Laughlin, and the Social Security cases—were no milestones. The "constitutional revolution of 1937" was an act of doctrinal evolution occurring between 1934 and 1942.²³

Neither FDR's 1936 triumph nor Court packing had much to do with this evolution. The Court had gutted New Deal legislation after "the Democrats' spectacular success in 1934." Why would Roosevelt's landslide have changed the Court's behavior? Law moved the Court. Cushman blamed the Court's 1935–1936 decisions on the fact that, unlike the 1935 legislation that the Court upheld in 1937, the early New Deal statutes were badly drafted, and the government chose bad test cases and argued them poorly.²⁴

Fear of Court packing could not have explained the Court's actions in 1937 any more than the election did, according to Cushman. Despite the timing of their announcement, the 1937 decisions that externalists fetishized were reached either before FDR announced his Court-packing plan, in which case Court packing could not have caused them, or after it became clear that Congress would not sustain it. According to Cushman, the justices knew by late February "that the opposition had the votes to sustain a successful filibuster, if not to defeat the bill outright." If true, this might have persuaded some that the justices were anything but inattentive to politics and congressional tea leaves. But for Cushman, it supported the conclusion that since the justices had "ample reason" to doubt FDR's success, the Court-packing plan was "unlikely to have been the proximate cause of the Constitutional Revolution of 1937," which was not a constitutional revolution anyway. The externalist hypotheses about 1936 and Court packing, he insisted, were as implausible as the theory "that the Court decided cases the way it did ... because the Yankees won the 1936 World Series."

Thus Cushman brilliantly poked holes in the externalist hypothesis. He said that the Court's regulatory decisions were more complicated and the jurisprudential changes more subtle than the externalists maintained. And in a surprising twist, while criticizing the externalists for equating law with politics, Cushman maintained that politics helped explain the Court's behavior. Ultimately, his explanation for jurisprudential change focused on Hoover's appointment of Roberts, Hughes, and Benjamin Cardozo and FDR's eight appointments to the Court, who transformed commerce clause jurisprudence after the Court-packing crisis ended. So, Cushman concluded, ironically, the Supreme Court had followed election returns and law followed politics, just not the way externalists claimed.²⁵

Cushman had company. Beginning in 1994, Richard Friedman, a University of Michigan law professor whose Oxford dissertation had focused on Hughes's chief justiceship, also called "the constitutional revolution of 1937" into question. Friedman's tone was measured and experimental, and he thanked Leuchtenburg for reading his work in manuscript. Yet like Cushman, Friedman said that the significance of Roberts's opinion in Nebbia had been overlooked. He also agreed that the Social Security cases reflected no major change in taxing and spending jurisprudence. As Friedman pointed out, Roberts had approved a broad, Hamiltonian approach to the general welfare clause in U.S. v. Butler even as he attacked federal legislation for the majority. When he became part of the majority that upheld Social Security, Roberts was simply implementing that view, which, as both Friedman and Cushman observed, had conservative support.²⁶

Unlike Cushman, however, Friedman did not agree that Court packing was so obviously doomed from the outset that the justices had no reason to fear it, although he subscribed to Cushman's "weaker conclusion, that the Justices had reason to believe that total and immediate surrender was not necessary." Friedman conceded, though, that there might have been some odd shifts, even acknowledging the possibility that Roberts's vote in Parrish might have been explained by the hostile reaction outside the Court to Tipaldo. But as he observed, Roberts would not have required the 1936 election results to understand the unpopularity of Tipaldo, which Democrats and Republicans reviled upon release.²⁷

The two scholars also disagreed over the commerce clause, with Friedman suggesting that Hughes's Carter Coal vote had been an anomaly corrected in Jones & Laughlin, while Roberts's Jones & Laughlin vote reflected a "legitimate change ... in his views," which may have reflected his capacity for growth, rather than his surrender to political pressure. More significantly, Friedman and Cushman differed over Jones & Laughlin's significance. Where Cushman did not find the case extraordinary, Friedman maintained that it represented the "climactic moment in the development of Commerce clause doctrine," while observing that it did not change everything. Even Darby and Wickard, Friedman said, "continued to articulate a demand that there be a real nexus between the matter regulated and interstate commerce," which meant "there was always a possibility that, sooner or later, a majority of the Court would rule that Congress had transcended the broad limits on its power," as it did in Lopez. Cushman remained certain that Thermidor did not occur until Darby and Wickard and maintained that "over time, Wickard came to be understood as standing for the proposition that there were no judicially enforceable federalism limitations on the commerce power." That was why Lopez stunned Court watchers.²⁸

Another crucial entry in the internalist bibliography followed in 2000 with White's The Constitution and the New Deal. To view this book as another attempt to puncture the externalist balloon echoing Cushman's is to underestimate its significance. White acknowledged that only "an eccentric" would deny the major doctrinal changes between 1933 and 1943. He situated them among others stretching back to the early twentieth century. The shifts occurred, he wrote, not because of politics, but because of "modernism," a world view that "elevates human agency ... to a position of causal primacy in the universe" and assumes that humans can control their environment and shape "their collective destinies."³⁰

Some might consider White's modernism synonymous with politics. Indeed, it bears some resemblance to some of the definitions of Progressivism we heard when we still thought that Progressivism existed and that we could define it. And interestingly, in law, modernism might take the name of legal realism, an early twentieth-century jurisprudential movement that exposed the role of idiosyncrasy in judicial decision making and was inaccurately caricatured as proposing that judges made decisions on the basis of what they ate for breakfast. But oddly, given his own importance in explaining the emergence of legal realism and his emphasis on its centrality to the New Deal and legal thought, White largely avoided the phrase "legal realism" in his book.³¹ Legal realism was identified with the "political" approach to judging, and White may have chosen the term "modernism" because he saw modernism as prior to politics.

It was modernism, White said, that created a jurisprudential crisis between the early 1920s and World War II. The law of foreign affairs and administrative law had changed long before Court packing, and in some cases before the New Deal. The same was true of free speech, as Mark Graber and David Rabban had shown. Further, it was during the 1920s, White observed, that the "living Constitution" theory of constitutional interpretation emerged. Thus Hughes could say in his 1934 Blaisdell opinion for himself, Roberts, and the three "liberals" that "the Contracts Clause meant something different in the interdependent, depressed American economy of the 1930s from what it previously had meant."³²

At bottom, what happened, according to White, was "an interpretive revolution" that celebrated the "living constitution," a Constitution that changed to keep pace with the times and transformed the judge's role in constitutional interpretation. As Howard Gillman powerfully demonstrated, after 150 years, the New Deal witnessed "the collapse of constitutional originalism." White masterfully made Court packing the symptom, not the cause, of that interpretive revolution, which went, he pointed out, "far deeper and wider than any 'switch in time.'" In assuming that the Court "could be 'packed' with persons who sympathized with the New Deal," he reminded us, "New Dealers took it as a given that America was a government of men, not laws."

So the "constitutional revolution" was one of epistemology. And as winners, those taking the modernist "living constitution" view had so many followers, White alleged, that no one remembered that "there was even a crisis of adaptivity." White faulted externalist historians Leuchtenburg and Kalman with viewing the "constitutional issues" of the early twentieth century "from ... their purported resolution" during the 1930s. We had branded the justices who lost out as "jurisprudentially obsolescent or 'reactionary,'" while saluting the winning justices as "modern" or "progressive." We had written winners' history, ignoring the world that was lost because we could not imagine it. We focused on judicial behavior instead of judicial opinions. We had also popularized the view of judges as politicians, uninfluenced by legal doctrine.³³

The triumph of modernism proved pernicious for constitutional scholarship, too, White observed. It brought us the problem "of a Supreme Court composed of unelected human political actors serving as the final arbiter" of key constitutional issues. That problem came to obsess constitutional commentators after World War II, many of whom had reached maturity during the 1930s and who had dedicated their lives to an anxious celebration of legal modernism.³⁴

Constitutional scholars' anxiety was easily understood. The dominant account of "1937," White stressed, taught us that judges were "political actors" who showed creativity in constitutional interpretation, and that most constitutional provisions were indeterminate. Consequently, White wrote, the "lodestar in constitutional interpretation ... [became] conformity to the principles of democratic theory, which requires deference in many cases, as well as aggressive scrutiny, against a backdrop of normal deference, in a few." Federal judges read the Constitution to grant broad legislative and administrative authority over the economy and broad executive power over foreign policy. But the few cases that judges subjected to aggressive scrutiny involved the most important issues, civil rights and civil liberties. This post–New Deal settlement caused anxiety because the Germans' reduction of "their courts to tools of the Nazi party" showed what could happen when law became overtly intertwined with politics. In sum, the externalists had projected the New Deal backward and demonized the "conservative" justices of the 1930s, while also projecting it forward. We had made the New Deal "an inspirational example for twentieth-century governance." Instead of treating it as a period with "time-bound constitutional issues," we lauded it as one in which "new essentialist constitutional principles" were grasped. And here White seemed to want to drain law of politics, for he charged that externalists' blindness prevented us from imagining a world in which legal actors did not adopt "behavioralist theories of law, judging, and constitutional interpretation." White did not advance a normative theory of judging, but his implicit theory seemed antibehavioralist, even, at times, exclusively internalist.³⁵

More than any other participant in the debate, White linked Court packing to the central concern of constitutional scholarship: Should the Supreme Court possess such power in a democracy? Lochner continued to encapsulate that question. For despite the continued flowering of revisionist scholarship maintaining that Lochner and the rest of the output of the turn-of-the century Court "had a coherence and an inner logic—that should be understood not as an exercise of class justice but as an attempt to explicate and protect the constitutional ideal of liberty," scholars in the late twentieth century still saw the Lochner-era Court as backward-looking, overly activist, and/or prohibiting "the government from altering common law entitlements or wealth redistribution." As William Novak said, the Progressive critique of law as hindrance to politics between the end of Reconstruction and 1937 remained intact. Further, constitutional scholars, in particular, remained uneasy that the Court in Lochner struck down Progressive legislation arguably embodying "the will of the people." Consequently, despite the apparent "death" of Lochner in 1937, the case still "hover[ed] over constitutional law like a ghost, ... haunt[ing] every judge's chambers and every constitutional law classroom." Liberals dominated elite law school faculties until the 1970s, and many law professors who taught and wrote about Lochner and the anti–New Deal activism of the Supreme Court in the 1930s worried whether the "liberal judicial activism" of the Warren Court they so admired also defied majority will.³⁶

Brown v. Board of Education particularly tested such individuals. On the one hand, liberal law professors awarded iconic status to the decision declaring school segregation unconstitutional, maintaining that the Court had heroically shown the nation the future. On the other, many believed that the Brown Court defied the wishes of the majority, as articulated by both Eisenhower and Congress. While some academics celebrated Warren Court activism in Brown and its expansion of civil rights and civil liberties, others worried that activism detracted from the Warren Court's integrity, and that the Court they had despised in Lochner and when it was striking down New Deal legislation was usurping the power of federal and state lawmakers to legislate from the bench for "our crowd." In short, law professors worried that judicial review was antidemocratic, a fear that Alexander Bickel famously dubbed "the counter-majoritarian difficulty."³⁷

Political science provided a possible solution to that difficulty, which, oddly, most law professors and historians ignored. Corwin's generation of political scientists both studied the Court's role in public life and took its opinions seriously. Yet, as White said, because of the perception that the Court had suddenly switched direction in 1937, many of those political scientists who continued to study it adopted behavioralist approaches to judging that focused on its political aspects.³⁸

Among them, Glendon Schubert laid the groundwork for what scholars working on law and courts would later variously call rational choice, social choice, public choice, or positive political theory, depending on their disciplines and methodologies. Applying game theory to the Court's 1936 term, Schubert devised the "Hughberts Game," which made Hughes and Roberts a sole player and examined how "Hughberts" would behave if he wished to heighten his authority on the Court, increase its unanimity, and move it in a direction designed to stave off Court packing. Given a bloc of three "liberals" and four "conservatives," a rational Hughberts could maximize the power of two. "Hughberts has a pure strategy, which in essence requires that he form a coalition with the Left when possible, that he form a coalition with the Right when splintering or non-participation makes it impossible for him to form a winning coalition with the Left, and that he always join the coalition of the Left, and the Right when other players do not choose to adopt conflicting strategies. In fact, the voting behavior of Hughes and Roberts conforms very closely to the prescriptions of the game model." Schubert believed that "both Hughes and Roberts switched, in order to protect the institutional integrity and authority of the Supreme Court from the threatened much greater danger presented by the President's proposal to subject the Court to external political domination." But as he implied in his 1960 textbook, Frankfurter's memorandum denying that Roberts had caved to political pressure cast a long shadow.³⁹

While Schubert himself obviously paid due attention to group dynamics and the Court's relationship to other branches of government, "attitudinalists" inspired by him were less likely to do so. They used quantitative data and modeling to portray the Court as insulated and autonomous—a place where individual judges' policy preferences, not law, explained outcomes. In the words of Jeffrey Segal and Harold Spaeth, "Rehnquist votes the way he does because he is extremely conservative; [Thurgood] Marshall votes the way he does because he is extremely liberal." Between the 1960s and 1990s, the "attitudinalists" came to dominate the constitutional law subfield of political science.⁴⁰

This was not to say that all political scientists who studied courts became attitudinalists. Some behavioralists reacted against attitudinalism by pointing to the role of strategic decision making when the justices interacted with each other and when the Court considered its relationship with other branches of government. Princeton's Walter Murphy, another forerunner of rational/public choice, highlighted "the most dramatic and important reversal in Court history," along with Hughes's "attack against President Roosevelt's Court-packing proposal," as "the neatest example of judicial intervention in the legislative process to kill a bill." Fusing the strategic approach with social psychology, David Danelski focused on the different forms of leadership a skilled chief justice such as Hughes could provide, particularly given his determination that the Court "maintain public confidence and not suffer 'self-inflicted wounds,'" a phrase Hughes himself had coined. Traditional institutionalist approaches to public law also survived, although Corwin's successor at Princeton, Alpheus Mason, who used his nearly unprecedented and completely unrestricted access to a Supreme Court justice's papers and private correspondence to examine Court packing through the prism of judicial biography, came in for rough sledding from law professors. (Their favorite political scientist was probably Harvard's Robert McCloskey, who combined doctrinal analysis with intellectual and institutional history, and who saw 1935–1936 as the time when the Court "finally and dangerously overstepped the line that marks the limits of its authority.") Nevertheless, academic lawyers were probably correct to assume attitudinalism's hegemony.⁴¹

And despite the accuracy of attitudinalism in predicting final judicial votes, law professors and political scientists were disinterested. While acknowledging that "there is something to this kind of argument," even those on the left associated with the "law is politics" view of critical legal studies accused "the vote-counters" of "unbearable simple-mindedness" and of ignoring "the richness of the systems of legal rules and institutions." So, too, in the early 1990s, Martin Shapiro bemoaned the existence of "the marginalized constitutional law-Supreme Court ghetto of little interest to other political scientists."⁴²

Help was on the way. Gerald Rosenberg, a lawyer with a Ph.D. in political science, would attack left-of-center law professors' idea of a transformative Court bringing social justice with his 1991 book The Hollow Hope: Can Courts Bring About Social Change? Rosenberg found that liberal lawyers wrongly counted on courts to do so: "At best, they can second the social reform acts of other branches of government." Rosenberg maintained, for example, that in Brown, the Court reflected, rather than created, social, economic, and political pressures for change, and that the decision had little immediate impact until Congress and the executive accepted desegregation in the 1960s because of "the fear of violence, not the inspiration of Court action." Courts acted "as 'fly-paper' for social reformers who succumb to 'the lure of litigation.'" Rosenberg insisted that "the broad and untested generalizations offered by constitutional scholars about the role, impact, importance, and legitimacy of courts and court opinions ... must be rejected."⁴³

More important for Court packing, just as some younger political scientists were "bringing the state back in," recognizing its importance as an actor in its own right and creating the field of American political development, so "new institutionalists" in political science began "bringing the law back in." Like Rosenberg, they situated the distinctive story of the Court in the context of "regime politics" and "a more general set of stories about how regimes organized, exercise, and protect their power." They highlighted the Court's usefulness to governing elites in promoting their aims while they were in power, "entrenching" their most vulnerable policies after they had lost that power, bringing regional outliers into line, and resolving difficult issues that divided the public. Calling for "post-attitudinalism," the new institutionalists also challenged externalism: they stressed the Court's concern with its institutional integrity, its need to legitimize and justify its behavior to the legal profession, the significance of ideology, as well as the role of "regime-sustaining scholars." With law professors, historians, and other social scientists, many new institutionalists in political science also made the interpretive and "historic turns."⁴⁴

Building on a 1957 essay by Robert Dahl pointing out that it was "unrealistic to suppose that a Court whose members are recruited in the fashion of Supreme Court justices would long hold to norms of Right or Justice substantially at odds with the rest of the political elite," Mark Graber observed how much the Court could do for governing regimes. "Rather than treat judicial review as a practice that either sustains or rejects the measures favored by lawmaking majorities, theoretical and descriptive studies of the Supreme Court should pay closer attention to the constitutional dialogues that take place between American governing institutions on crosscutting issues that internally divide the existing lawmaking majority," he contended. "Historically, the justices have most often exercised their power to declare state and federal practices unconstitutional only when the dominant national coalition is unable or unwilling to settle some dispute" and then "foist[ed] disruptive political debates on the Supreme Court," as, for example, in Roe v. Wade.⁴⁵

In fact, according to Graber, there generally was no countermajoritarian difficulty. Bickel and Dahl had belonged to a luncheon group of law professors and political scientists at Yale, but it devoted no attention to the Court. Had it done so and had Bickel been won over, he might have turned constitutional theory in different directions. For the mantra of the new institutionalists was that "judicial review is politically constructed," not antidemocratic.⁴⁶

Yet while the work of law professors during the 1990s occasionally reflected the arrival of the new institutionalism in political science beginning in the 1990s, the new institutionalists showed little interest in revising the account of the 1937 constitutional crisis for obvious reasons. As Graber explained it, the Supreme Court of 1935 and 1936 was the exception rather than the rule, its behavior understandable because, unusually, there was only one appointment to the Court between 1930 and 1937. "When the Court is temporarily dominated by 'holdover[s] from the old coalition,' justices 'perform the counter-majoritarian functions ascribed to it by traditional theory.'" And even here, the record of the New Deal, once affirmed by the electorate in 1936, indicated that resistance was futile. "The Supreme Court is simply not structured to impede a determined majority for any length of time."⁴⁷

At the same time that they exploded the countermajoritarian difficulty, then, political scientists who adopted "the historical/interpretivist 'new institutionalism'" and risked their colleagues' disapproval by eschewing models and cautiously embracing historical contingency lent credence to the concept of the "constitutional revolution of 1937." Indeed, whatever their approaches, virtually all political scientists and public/rational choice experts who focused on the period from the Bicentennial onward did. Michael Nelson explained the failure of Court packing as the classic overreaching of a two-term president elected by an extraordinary majority. Kevin McMahon, however, maintained that Court packing failed not so much because of FDR's missteps, but because his opponents saw it as part of his effort to strengthen the power of the presidency and administrative state. But Nelson and McMahon, both political scientists, alluded to "the switch in time." Business school professors Pablo Spiller and Rafael Gely demonstrated that the chance of a constitutional amendment constraining the Court became increasingly apparent after the 1936 presidential election, and it was important that "the shift in Justice Roberts's position occurred after the election of 1936 but before Roosevelt's announcement" of his plan to pack the Court. From another public choice perspective, that of political scientists Jamie Carson and Benjamin Kleinerman, on the other hand, "Roosevelt, as the initiator of the court-packing plan, obtained what he wanted politically (a shift in policy direction on the Court), while allowing both Congress and the Court to believe they had successfully outmaneuvered him." Meanwhile, Gregory Caldeira's analysis of public opinion showed that support for Court packing dropped in the aftermath of Jones & Laughlin and Justice Van Devanter's resignation, although "[i]t is not at all clear what the public would have done if the Court had insisted on continuing its opposition to the New Deal." But like Gely and Spiller and Carson and Kleinerman, Caldeira treated 1937 as a "watershed." The internalist-externalist debate was left to historians.⁴⁸

Among historians, of course, the "ahistorical" label that internalists pinned on externalists stung.⁴⁹ The "my way or the highway" tone of the debate is unfortunate. Especially since I have contributed to it, I may just make matters worse by calling attention to it. Yet surely style can affect substance, even prevent scholars from taking each other's positions seriously and perhaps finding common ground.

One factor contributing to the polemics may be that those in law schools and history departments employ different standards of criticism. To a historian, legal argumentation may seem at once too confident and insecure, overly tendentious and footnoted. Yet while strong attacks typically undermine the credibility of historians' work, such critiques mean that a law professor's scholarship is "provocative" and "important." Those historians in law schools who did embrace the internalist view approached Court packing as they would any controversy. Although those historians in history departments who advocated externalism sometimes treated Roberts sarcastically—I once speculated that he had undergone a "jurisprudential lobotomy"—externalists may have expected more respect from other scholars. Kicking a dead historical figure is one thing; kicking a live historian is another. The debate reminds us that even those in the same disciplines residing in different academic homes write differently.⁵⁰

Beyond that, political, legal, and constitutional historians, political scientists, and professors of constitutional law take different approaches to the New Deal. Why not? "Interdisciplinary work is also disciplinary work." Our locations and interests are not identical. When Friedman observes that externalists cannot "effectively respond" to Cushman "unless, like him, they are willing to get their hands very dirty, delving very deeply into the details from which any sound understanding on the grand scale must emerge," he implies that there is only one way to get dirty. But there are many: Glendon Schubert said that the law professors who criticized attitudinalism also "ought to be willing to get their hands dirty (with empirical, perhaps even quantitative, labor)." The variety of ways to dirty hands, along with the fact that each generation must write its own history, keeps everybody employed. There should be more occasions like this where we exchange points of view instead of, or at least in addition to, taking potshots at each other.⁵¹

What would come out of such exchanges? We could drop the "internalist" and "externalist" tags, which obscure more than they clarify. The categories collapse into each other. When a judge uses an "externalist" opinion, such as Brown, as a precedent in a subsequent case, does it becomes "internalist"? Assume, alternatively, a president and congressional majority who hammer home the evils of "judicial activism," which presumably includes, among other things, doctrinal infidelity. When the president's nominee to the Supreme Court plays to the Senate by declaring his opposition to "judicial activism" in confirmation hearings, is that "internalist" or "externalist"? The labels perpetuate a false dichotomy. As Friedman has said in disputing my characterization of him as an internalist, to understand constitutional change, we must examine doctrinal constraints and the world outside the Court.⁵²

The statement seems transparently obvious. Yet Friedman rightly makes it, because the concentration on whether law or politics was paramount during the constitutional crisis of the New Deal has helped to create the erroneous impression that we see the debate in terms of either/or, law or politics. It has pushed "externalists" and "internalists" into corners. And to quote my favorite tragic figure, William Howard Taft, "Even a rat in a corner will fight."⁵³ We should speak in terms of law and politics. We should remember that the Court can be at once a legal and a political institution. We should stop arguing about which account is correct and see how both together are. Our accounts are not mutually exclusive. Just as some speak of life in terms of body and soul, so law and politics create the life of the Court. Like objectivity and subjectivity, form and substance, public and private, law and politics are interdependent.⁵⁴

Yet acknowledging the interrelationship takes us only so far. How did it work for "1937"? Reasonable people disagree, as would each person involved in the debate. A full account is beyond the scope of this essay. In my view, the case for the proposition that, doctrinally speaking, the constitutional revolution preceded 1937 and lasted beyond it is strong. It seems stronger than Cushman's case against the possibilities that the 1936 election and/or the Court-packing plan influenced Hughes and Roberts. As Edward Purcell has said, "[t]o show that a doctrinal passageway existed ... is important, but it is not to show why the individual Justices ... chose to walk through it," especially when other indicators suggest that "Roberts was responsive to outside criticism."⁵⁵

I have previously argued the externalist case in terms of the history of events, as if the 1936 election and the Court-packing plan were the only way that politics might influence judicial decision making.⁵⁶ Yet political historians and scientists today speak in terms of political phenomena, electoral behavior, structures of the state, and ideology. The new institutionalists are surely correct that judicial review is politically constructed. The Court's unique mission affects and constrains the way its members speak. Its voice also reflects ideology, which is as important to political history as it is to legal and constitutional history, along with social, economic, and political context and other interrelated and interreacting considerations.⁵⁷

The new institutionalists rightly treat the "old Court" of the 1930s as time-bound. The lack of vacancies on the Court between 1932 and 1937 was significant: Jimmy Carter and George W. Bush were the only other twentieth-century presidents who did not have spots to fill during their first terms. Unlike lawyers, historians have the luxury of being able to appreciate the Hughes Court's historicity.

In the context of the 1930s, I agree with Ackerman: the internalists "are right in insisting that the New Deal did not reconstruct constitutional law out of thin air," while the externalists "are right in insisting the doctrinal revolution would not have happened without sustained Presidential leadership." If the externalists have it entirely right, which I doubt, the internalists usefully focus our attention on doctrinal evolution. If the internalists have it entirely right, which I doubt, externalists must change our dating of the "constitutional revolution." My own current account of constitutional change would therefore highlight the significance of the Hughes, Roberts, and Cardozo appointments to the Court in 1930–1932 and the lack of vacancies afterward; the greatness of the Great Depression and the sense of emergency at home and abroad, along with the specter of dictatorship that some thought Hitler, Mussolini, and Roosevelt evoked; the difficulty of New Dealers, corporate lawyers, and the Court as they struggled to manage the legal uncertainty that created and was created by the times; Roberts's Nebbia opinion and Hughes's embrace of "a living Constitution" for himself and Roberts in Blaisdell; Roberts's literal approach to constitutional interpretation in Butler and his shrill 1935 Alton opinion taking "almost medieval" conception of "the relationship of employer and employee"; the New Dealers' disappointment in Carter Coal, despite the bone thrown to them by "Hughes' prophetic citation of Nebbia" in his separate opinion; popular constitutionalism; the 1936 election; the waiting period of December–January, when many anticipated that Roosevelt would propose some remedy for the Court; the Court's anxiety about the possibility that Congress would try to curb it (although I would give the 1936 election more purchase than the Court-packing bill); the sit-down strikes of 1936–1937; the importance of Roosevelt's appointments of New Dealers to the Court between 1937 and 1941; and the end point of Darby and Wickard.⁵⁸

Why did the Court treat New Deal legislation and state minimum wage legislation so poorly before November 1936 and so well afterward? Some early New Deal legislation was sloppy, but not all was. Further, a bitter current of antagonism to the New Deal runs through many 1935–1936 majority opinions that poor draftsmanship alone cannot explain. Perhaps the "journalists and academics with acid-dipped pens" who attacked the Court in 1936, along with the presidential election, played a role in explaining why later New Deal measures fared so much better, beginning in December. Although FDR said nothing explicit about the Court while running for reelection, the 1936 campaign was replete with discussion of it. After the president carried every state but Maine and Vermont, all three branches of government may have recognized that "the people" had, in some way or another, spoken, although there is room for disagreement about what they said.⁵⁹

Thus, while Roberts would have been aware of the widespread dissatisfaction with Tipaldo earlier, the 1936 campaign and results would have made him still more conscious of it. Hughes may have, too. When Hughes and his wife invited themselves to the Robertses' Pennsylvania farm in the summer of 1936, the chief justice and his host closeted themselves together so long they seemed rude. "What they said to one another over these many hours at a critical moment for the Court, subjected to savage condemnation for several of its decisions and with rumors brewing about reprisals Roosevelt was hatching, we have no way of knowing."⁶⁰ But the Depression, the threat to the Court, and legal uncertainty, Roberts may have now decided, mandated change. And perhaps that was one reason he risked charges of inconsistency by joining the Parrish majority in December. Still, he could take comfort in the fact that the Court had not been asked to overrule Adkins in Tipaldo, and Nebbia might have made Roberts's position in Parrish more acceptable to him intellectually. Roberts had joined the majority in Blaisdell, and although his literal approach to constitutional interpretation in Butler and his opinion in Alton sound like battle cries for an older United States, Parrish adopted Blaisdell's idea of a living constitution.

More generally, after the election, the four justices who had consistently opposed the New Deal stopped treating "government lawyers as though they were thieving schoolboys." Although George Creel's December 1936 Colliers report suggesting that FDR intended to deal with the Court did not spark a popular reaction, the justices may well have focused on it, and Creel's article may have received so little attention because of the general expectation that Roosevelt would take action. FDR's confrontational remarks about the Court in his January State of the Union address may have led the Court to anticipate a rebuke, perhaps a proposed constitutional amendment.⁶¹

Roosevelt did something even more dramatic in February: he called for changing the Court. Unlike Cushman, I doubt that Hughes, Roberts, or anyone else on the Court had "ample reason" to anticipate the president's failure. I follow Leuchtenburg in concluding that some version of the Court-packing bill might have been enacted well into the spring. Even if, as Cushman maintains, Hughes and Roberts had cause to believe that Congress would reject it—an assumption that may itself be "winner's history" in projecting the outcome back on those 168 days—surely they harbored a residue of doubt. Quite aside from Court packing, more than twenty-five bills somehow regulating the Court were introduced between January 8 and May 20, 1937. And certainly Hughes, who was indeed an adroit political strategist, and other justices fought the Court-packing bill tooth and nail. Of course, the fact that he and other justices detested Court packing and may have feared its enactment does not prove that they changed their votes in the hope of defeating Roosevelt's plan, but it makes those possibilities more likely. Although "we have stubbornly held onto a myth of the Court as some sort of institution that time forgot, the one public body that somehow managed to remain immune from pressures that remolded every other public institution," Roberts would later say publicly that "the Court took cognizance of the popular will" and testify before Congress that the Court-packing plan caused "tremendous strain and threat to the existing Court of which I was fully conscious."⁶²

Again, however, the legal story also reads as one of doctrinal evolution. Although Social Security and the National Labor Relations Act were a big deal to the New Deal, Cushman and Friedman rightly point to the behavior of the "conservative" justices in the Social Security cases. And like Cushman, I see Darby and Wickard as a giant doctrinal step forward from Jones & Laughlin.⁶³

In the end, what scholars conclude about "1937" may depend on which pair of disciplinary glasses they choose to bring to the table, and many today possess more than one. Thus the larger the table we set, the better. Where Friedman concludes that "[t]he strongest reason for rejecting the overt political explanation is that there is no support for it other than a brief and not unprecedented flurry of liberal decisions while the Court-packing plan was pending," someone else will focus on "the flurry" and the astonished reaction to it. As Cushman reminds us, there is no "utterly irrefutable smoking gun," and we all draw different inferences from the circumstantial evidence.⁶⁴

Ultimately, that is, the constitutional crisis of 1937 underscores the vexed problems of causation and interpretation. Serena Mayeri asks what we might make of a hypothetical newly discovered diary entry by Justice Roberts indicating that the 1936 election results moved him to side with the majority in Parrish. Would it resolve the debate? Unlikely. It might be that "the forces shaping his decision were ... just too complex to express."⁶⁵

This uncertainty we accept when we decide to become historians. However much we study, we will never know. Yet as we learn more, we can always change our minds. And we are optimists; that we can never be sure what happened and why does not deter us from embarking on the voyage of discovery. Perhaps, however, we might tentatively advance our conclusions about what we see along the way, even if that means using the vertical pronoun. In the case of "1937," we should try to reconstruct the political and legal worlds of the justices. By re-creating both, we may better understand, at least in the context of the New Deal, how law and politics feed on each other.

I am very grateful to Michael Les Benedict, John Blum, Elizabeth Borgwardt, Alan Brinkley, W. Elliot Brownlee, Elizabeth Cafer du Plessis, Gregory Caldeira, Barry Cushman, Daniel Ernst, Barry Friedman, W. Randall Garr, Howard Gillman, Sarah Barringer Gordon, Mark Graber, Michael Grossberg, James Kloppenberg, Pnina Lahav, Sanford Levinson, William Leuchtenburg, Jane Lyle, Serena Mayeri, Donald Powell, P. C. Rowley, John Schlegel, Maxwell Stearns, G. Edward White, Keith Whittington, Rosemarie Zagarri, and the anonymous readers for the AHR for their help with this essay.

Laura Kalman is Professor of History at the University of California, Santa Barbara. She is the author of Legal Realism at Yale, 1927–1960; Abe Fortas: A Biography; The Strange Career of Legal Liberalism; and Yale Law School and the Sixties: Revolt and Reverberations. She is currently at work on a book about the political culture of the United States during the 1970s.

Notes

¹ Morton Horwitz, Foreword, "The Constitution of Change: Legal Fundamentality without Fundamentalism," Harvard Law Review 107 (1993): 32–117, 116.

²Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398 (1934) (upholding the Minnesota Moratorium Law of 1933, which provided for a conditional moratorium on debtors' mortgage payments against a charge that it violated the contracts clause); Nebbia v. New York, 291 U.S. 502 (1934) (upholding emergency New York legislation during the Depression that set milk prices against the claim that it violated due process); A.L.A. Schechter Poultry Corp. v. U.S., 295 U.S. 495 (1935) (invalidating the National Industrial Recovery Act because the statute unconstitutionally delegated legislative power to the president, and the poultry code at issue had only an indirect connection to interstate commerce); U.S. v. Butler, 297 U.S. 1 (1936) (striking down the processing tax at the heart of the Agricultural Adjustment Act); Railroad Retirement Board v. Alton Railroad Company, 295 U.S. 330 (1935) (striking down the Railroad Retirement Act of 1934 as a violation of the Fifth Amendment's due process clause and the commerce clause); Daniel Farber, "Who Killed Lochner? The Constitution and the New Deal," Georgetown Law Journal 90 (2002): 985–1005, 985 ("progeny"); Lochner v. New York, 198 U.S. 45 (1905); Adkins v. Children's Hospital, 261 U.S. 525 (1923) (invalidating the District of Columbia's minimum wage for women and children); Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936) (applying Adkins to strike down a New York minimum wage law for women); West Coast Hotel v. Parrish, 300 U.S. 379 (1937) (upholding the Washington State minimum wage law for women); Bruce Ackerman, We the People: Transformations (Cambridge, Mass., 1998), 342 ("Lochnerian"); James Henretta, "Charles Evans Hughes and the Strange Death of Liberal America," Law and History Review 24 (forthcoming, 2006) (developing the argument about the break with progressivism); Barry Friedman, "The History of the Countermajoritarian Difficulty, Part Four: Law's Politics," Pennsylvania Law Review 148 (2000): 971–1064, 1026, n. 247 (Frankfurter). The phrase "constitutionalizing the New Deal," of course, leaves unanswered the questions of what the New Deal and its constitutional vision were. See Colin Gordon, "Rethinking the New Deal," Columbia Law Review 98 (1998): 2029–2053, 2033–2036; William Forbath, "The New Deal Constitution in Exile," Duke Law Journal 51 (2001): 165–221.

³NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937) (upholding the National Labor Relations Act of 1935, which guaranteed collective bargaining rights to employees producing goods for interstate commerce, and one of a series of cases involving the National Labor Relations Act; the others were NLRB v. Fruehauf Holding Trailer Co., 301 U.S. 49 [1937]; NLRB v. Friedman-Harry Marks Clothing Co., 301 U.S. 58 [1937]; Associated Press v. NLRB, 301 U.S. 103 [1937]; Washington, Virginia & Maryland Coach Co. v. NLRB, 301 U.S. 142 [1937]); Carter v. Carter Coal Co., 298 U.S. 238 (1936) (striking down the Guffey Coal Act's wage, hours, and price regulation provisions; see especially the majority opinion at 302 insisting that "[m]ining is not interstate commerce, but like manufacturing, is a local business, subject to local regulation and taxation"); Steward Machine Co. v. Davis, 301 U.S. 548 (1937) (unemployment insurance); Helvering v. Davis, 301 U.S. 619 (1937) (old-age insurance); and see Carmichael v. Southern Coal & Coke Co., 301 U.S. 495 (1937) (upholding an Alabama state unemployment insurance act).

⁴ Joseph Alsop and Turner Catledge, The 168 Days (New York, 1938), 147, 143, 206; Leonard Baker, Back to Back: The Duel between FDR and the Supreme Court (New York, 1967), 179 ("defeated"); Edward Corwin, Constitutional Revolution, Ltd. (Claremont, Calif., 1941), 12, 64; Benjamin Wright, The Growth of American Constitutional Law (New York, 1942), 200–208, 256–258.

⁵ Felix Frankfurter, "Mr. Justice Roberts," University of Pennsylvania Law Review 104 (1955): 311–317; and see Michael Ariens, "A Thrice-Told Tale, or Felix the Cat," Harvard Law Review 107 (1994): 620–676, coming close to suggesting that Frankfurter himself wrote the Roberts memorandum, a theory that Richard Friedman has disputed in "A Reaffirmation: The Authenticity of the Roberts Memorandum, or Felix the Non-Forger," University of Pennsylvania Law Review 142 (1994): 1985–1995; Charles Evans Hughes, The Autobiographical Notes of Charles Evans Hughes, ed. David Danelski and Joseph Tulchin (Cambridge, Mass., 1973), 313 ("independence"); Merlo Pusey, Charles Evans Hughes, 2 vols. (New York, 1951), 2: 766–772; John Chambers, "The Big Switch: Justice Roberts and the Minimum-Wage Cases," Labor History 10 (1969): 44–73.

⁶ Paul Murphy, "Time to Reclaim: The Current Challenge of American Constitutional History," AHR 69 (October 1963): 64–79. Early revisionists included Alan Jones, Charles McCurdy, and Michael Les Benedict. Alan Jones, "Thomas M. Cooley and the Interstate Commerce Commission: Continuity and Change in the Doctrine of Equal Rights," Political Science Quarterly 81 (1966): 602–627; "Thomas M. Cooley and the Michigan Supreme Court, 1865–1885," American Journal of Legal History 10 (1966): 97–121; "Thomas M. Cooley and 'Laissez-Faire Constitutionalism': A Reconsideration," Journal of American History 53 (1967): 751–771; Charles McCurdy, "Justice Field and the Jurisprudence of Government-Business Relations: Some Parameters of Laissez-Faire Constitutionalism, 1863–1897," Journal of American History 61 (1976): 970–1005; "American Law and the Marketing Structure of the Large Corporation, 1875–1890," Journal of Economic History 38 (1978): 631–649; "The Knight Sugar Decision of 1895 and the Modernization of American Corporation Law, 1869–1903," Business History Review 53 (1979): 304–342; Michael Les Benedict, "Laissez-Faire and Liberty: A Re-evaluation of the Meaning and Origins of Laissez-Faire Constitutionalism," Law and History Review 3 (1985): 293–331. For Warren, see William Novak, "The Legal Origins of the Modern American State," in Austin Sarat, Bryant Garth, and Robert Kagan, eds., Looking Back at Law's Century (Ithaca, N.Y., 2002), 249–283, 262; for Lochner as an exception, see John Semoneche, Charting the Future: The Supreme Court Responds to a Changing Society, 1890–1920 (Westport, Conn., 1978), 181, 429–430, 434; Melvin Urofsky, "Myth and Reality: The Supreme Court and Protective Legislation in the Progressive Era—A Reinterpretation," 1983 Yearbook of the Supreme Court Historical Society, 53–72; and Urofsky, "State Courts and Protective Legislation in the Progressive Era," Journal of American History 72 (1985): 63–91. For excellent surveys of this literature, which discusses later revisionist work as well, see William Wiecek, The Lost World of Classical Legal Thought: Law and Ideology in America 1886–1937 (New York, 1998), 254–270; Gary Rowe, "The Legacy of Lochner: Lochner Revisionism Revisited," Law & Social Inquiry 24 (1999): 221–252; Barry Friedman, "The History of the Countermajoritarian Difficulty, Part Three: The Lesson of Lochner," New York University Law Review 76 (2001): 1383–1455; Stephen Siegel, "The Revision Thickens," Law and History Review 20 (2002): 631–637.

⁷ The most important of these were Leuchtenburg, "The Origins of Franklin D. Roosevelt's 'Court-Packing' Plan," The Supreme Court Review, 1966, 347–399; Leuchtenburg, "FDR's 'Court-Packing' Plan," in Harold Hollingsworth and William Holmes, eds., Essays on the New Deal (Austin, Tex., 1969), 69–115; and Leuchtenburg, "FDR's Court-Packing Plan: A Second Life, a Second Death," Duke Law Journal 1985 (1985): 673–689. Versions of these essays were included in Leuchtenburg, The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt (New York, 1995). Michael Parrish provided an excellent survey of the earlier literature about Court packing in history and political science, while noting the tendency of revisionist political historians of the New Deal to ignore it, in "The Hughes Court, the Great Depression, and the Historians," The Historian 40 (1977): 286–308. Parrish himself made the case for a "constitutional revolution of 1937," while also crediting the Hughes Court with important advances in civil liberties and civil rights, in "The Great Depression, the New Deal, and the American Legal Order," Washington Law Review 59 (1984): 723–750, 728–735. Parrish has reevaluated the evidence more recently in light of the internalist evidence in The Hughes Court: Justices, Rulings, and Legacy (Santa Barbara, Calif., 2002). He suggests that the Court-packing plan and "external" political events, such as "rising Democratic majorities in Congress, Roosevelt's decisive reelection, [and] mounting evidence of real class warfare," including the sit-down strikes of December 1936–1937, may have influenced the Court's 1937 decisions, while maintaining that neither Hughes nor Roberts engaged in "a dramatic jurisprudential leap. The evidence is considerably stronger in this regard for Hughes than for Roberts, but the behavior of both justices remains something of a mystery." Ibid., 178–179, 183, 38. In the disagreement over the Hughes Court, its expansion of civil liberties and civil rights is not in contention. See, e.g., Leuchtenburg, The Supreme Court Reborn, 245–252; Barry Cushman, "The Secret Lives of the Four Horsemen," Virginia Law Review 83 (1997): 559–584; Parrish, The Hughes Court, 128, 177.

⁸ William Leuchtenburg, "The Great Depression and the New Deal," reprinted in Leuchtenburg, The FDR Years: On Roosevelt and His Legacy (New York, 1995), 208–235, 222–223 (Van Devanter, "adroit," "strategic"); Leuchtenburg, The Supreme Court Reborn, 216, 235–236.

⁹ Leuchtenburg, The Supreme Court Reborn, 157.

¹⁰ Ibid., ix. See Mark Leff, "Revisioning U.S. Political History," AHR 100 (June 1995): 829–853. One indicator of the rebound was a 1995 OAH panel on the fortunes of political history, organized by Steven Gillon, in which Brinkley, Lizabeth Cohen, Sara Evans, Leuchtenburg, James Patterson, and I participated. The room was full. One had the feeling that political historians were celebrating our return from the wilderness. "Scholars Pack Historians' Meeting," Chronicle of Higher Education, April 14, 1995. But only Leuchtenburg and I showed any interest in Court packing. Consequently, I disagree with G. Edward White, who suggests that externalists' defensiveness is a function of both the rise of "revisionist work in constitutional jurisprudence and the disaffection of current political historians with mainstream versions of the conventional account." G. Edward White, The Constitution and the New Deal (Cambridge, Mass., 2000), 22. The point is not that contemporary political historians lack interest in mainstream versions of the account. It is that they lack interest in the constitutional account, whether "mainstream" or "internalist," because "mainstreamers" and "internalists" have been so busy lobbing criticisms at each other that we have not taken the time to try to convince political historians of the relevance of New Deal constitutional history for their work.

¹¹ Roger Corley, "Was There a Constitutional Revolution in 1937?" in Stephen Shaw, William Pederson, and Frank Williams, eds., Franklin D. Roosevelt and the Transformation of the Supreme Court (Armonk, N.Y., 2004), 36–59, 36. See, e.g., David Kennedy, Freedom from Fear: The American People in Depression and War (New York, 1999) ("ideological ground"), 337 ("ideological pressure"); Alan Brinkley, The End of Reform: New Deal Liberalism in Recession and War (New York, 1995), 19; James Davidson, William Gienapp, Christine Heyrman, Mark Lytle, and Michael Stoff, Nation of Nations: A Narrative History of the American Republic (New York, 2001), 844; Conrad Black, Franklin Delano Roosevelt: Champion of Freedom (New York, 2003), 413.

¹² G. Edward White, "Cabining the Constitutional History of the New Deal in Time," Michigan Law Review 94 (1996): 1392–1421, 1394, n. 6 (marginalization); White, "The Arrival of History in Constitutional Scholarship," Virginia Law Review 88 (2002): 485–632, 560 ("relentlessly"). White links the ahistorical nature of constitutional scholarship during this period to the triumph of modernism during the 1930s, ibid., 558–570; I discuss the approach of the legal academy to history during this period in Kalman, The Strange Career of Legal Liberalism (New Haven, Conn., 1996), 68–77. See also Harry Scheiber, "Introduction: The Bicentennial and the Rediscovery of American Constitutional History," Journal of American History 74 (1987): 667–674. While White has shown interest in constitutional thought, law, and judging throughout his career, he wrote at length about private law at the beginning. G. Edward White, Tort Law in America: An Intellectual History (New York, 1980).

¹³ Bruce Ackerman, Social Justice in the Liberal State (New Haven, Conn., 1980); Ackerman, "The Storrs Lecture: Discovering the Constitution," Yale Law Journal 93 (1984): 1013–1072. I discuss Ackerman's intellectual journey throughout Kalman, The Strange Career of Legal Liberalism.

¹⁴ For my version of this story, see Kalman, The Strange Career of Legal Liberalism, 132–163; for White's, see "The Arrival of History in Constitutional Scholarship," 570–614.

¹⁵Planned Parenthood v. Casey, 505 U.S. 833, 862, 961–962, 998 (1992); Roe v. Wade, 410 U.S. 113 (1973).

¹⁶New York v. U.S., 505 U.S. 144 (1992) (ruling that certain provisions of the Low-Level Radioactive Waste Policy Amendments, enacted by Congress to rationalize radioactive waste disposal, exceeded congressional power and violated the Tenth Amendment); U.S. v. Lopez, 413 U.S. 549 (1995); Neal Devins, "Congress as Culprit: How Lawmakers Spurred On the Court's Anti-Congress Crusade," Duke Law Journal 51 (2001): 435–464, 440 ("counterrevolution"); Thomas Keck, The Most Activist Supreme Court in History: The Road to Modern Judicial Conservatism (Chicago, 2004), 40, 203–208; Barry Friedman, "The Cycles of Constitutional Theory," Law and Contemporary Problems 67 (2004): 149–174, 162 ("All" [emphasis in the original], "early"); Jeffrey Rosen, "The Unregulated Offensive," New York Times, April 17, 2005, sec. 6, col. 1, 42 ("Constitution in exile" movement); see also Randy Barnett, Restoring the Lost Constitution: The Presumption of Liberty (Princeton, N.J., 2004). Of course, there were also progressive "shadow constitutions or constitutions-in-exile." Mark Graber, "Rethinking Equal Protection in Dark Times," University of Pennsylvania Journal of Constitutional Law 4 (2002): 314–339, 334; Forbath, "The New Deal Constitution in Exile"; Mark Tushnet, Taking the Constitution Away from the Courts (Princeton, N.J., 1999); Larry Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (New York, 2004).

¹⁷ Friedman, "The History of the Countermajoritarian Difficulty, Part Four," 1048, 972; and see Morton Horwitz, address at the 1998 Association of American Law Schools Annual Meeting, Law & Interpretation: "Interpreting '1937,'" January 1998, tape 182.

¹⁸ Barry Cushman, "Rethinking the New Deal Court," Virginia Law Review 80 (1994): 201–261, 205–206, 257; Cushman, Rethinking the New Deal Court: The Structure of a Constitutional Revolution (New York, 1998) (1920s).

¹⁹ Cushman, "Rethinking the New Deal Court," 208, 261.

²⁰ Leuchtenburg, The Supreme Court Reborn, 317–318, n. 95.

²¹ Kalman, "Law, Politics, and the New Deal(s)," Yale Law Journal 108 (1999): 2165–2213, 2165–2166, n. 3 (Leuchtenburg and Cushman's subsequent discussions of each other's work); Kalman, The Strange Career of Legal Liberalism, 348–351, n. 70; White, "Cabining the Constitutional History of the New Deal in Time," 1392.

²² The book won the AHA's Littleton-Griswold Prize.

²³ Cushman, Rethinking the New Deal Court, 22, 20, 217; U.S. v. Darby, 312 U.S. 100 (1941) (upholding the application of the Fair Labor Standards Act of 1938, which provided wages and hours regulation for all employees in industries involving products shipped in interstate commerce, to the hours and wages of workers in a Georgia lumberyard, whose operations were exclusively intrastate, and overruling Hammer v. Dagenhart, 247 U.S. 251 [1918]); Wickard v. Filburn, 317 U.S. 111 (1942) (up- holding the Agricultural Adjustment Act of 1938 against the challenge that federal power to regulate commerce did not extend to a farmer who produced and consumed wheat he never marketed). See note 28 for discussion of Cushman's analysis of Jones & Laughlin.

²⁴ Ibid., 25, 36–40. Oddly, Cushman relied on Schlesinger's distinction between the "First New Deal" of 1933 and the "Second New Deal" of 1935 here, although it had long since been complicated by historians. See Arthur Schlesinger, Jr., The Politics of Upheaval (Boston, 1960), 393–395; Kalman, "Law, Politics, and the New Deal(s)," 2196, n. 217.

²⁵ Cushman, Rethinking the New Deal Court, 20, 23, 32, 224–225.

²⁶ Richard Friedman, "Charles Evans Hughes as Chief Justice, 1930–1941" (D.Phil. diss., Oxford, 1979); Friedman, "Switching Time and Other Thought Experiments: The Hughes Court and Constitutional Transformation," University of Pennsylvania Law Review 142 (1994): 1891–1984, 1955–1957. Friedman is at work on the Holmes Devise volume about the Hughes Court.

²⁷ Richard Friedman, "Taking Decisions Seriously: A Review of Rethinking the New Deal Court: The Structure of a Constitutional Revolution," Journal of Supreme Court History 24 (1999): 314–324, 316 ("weaker"); Friedman, "Switching Time," 1947–1953. In explaining why Roberts did not seize on Nebbia at the close of the 1935–1936 term in Tipaldo, however, Cushman pointed not just to the Roberts memorandum (see note 5), but to the different approaches of Roberts and Hughes toward precedents they disliked (here, Adkins); Hughes's insistence on short conferences as chief justice and uneasiness about lobbying colleagues outside them; and the difficult and exhausting nature of the 1935–1936 term, which might well have made Hughes and Roberts even less inclined to communicate with each other about the desirability of disposing of Adkins, as opposed to distinguishing it, at its end. Cushman also suggested that the Roberts memorandum could have reflected an attempt by Roberts to protect Hughes from embarrassment by casting blame elsewhere. Cushman, Rethinking the New Deal Court, 92–104.

²⁸ Friedman, "Switching Time," 1973 ( "legitimate"); Friedman, "Charting the Course of Commerce Clause Challenge," Arkansas Law Review 55 (2003): 1055–1096, 1056 ("climactic"); Friedman, "The Sometimes-Bumpy Road of Commerce Clause Doctrine," ibid., 981–1007, 1004, 1005 ("continued," "possibility"); Cushman, "Small Differences?" ibid., 1097–1148, 1146 ("time"); Cushman, "Continuity and Change in Commerce Clause Jurisprudence," ibid., 1009–1054, 1043–1046.
How to explain the behavior of Hughes and Roberts in Jones & Laughlin? For Cushman, again, it

³⁰ White, The Constitution and the New Deal, 199, 5.

³¹ See Daniel Rodgers, "In Search of Progressivism," Reviews in American History 10 (1982): 113–132. See, e.g., G. Edward White, "From Sociological Jurisprudence to Realism: Jurisprudence and Social Change in Early Twentieth-Century America," Virginia Law Review 58 (1972): 999–1028; White, "The Evolution of Reasoned Elaboration," Virginia Law Review 59 (1973): 279–302; White, "From Realism to Critical Legal Studies: A Truncated Intellectual History," in White, Intervention and Detachment: Essays in Legal History and Jurisprudence (New York, 1994), 274–298. Legal realism makes an appearance in The Constitution and the New Deal on pp. 167–170, 188–196, and 210, but only on p. 210 does it seem to become central to White's fundamental argument. Perhaps White avoids the term because of its association with the behavioralist approach to judging that he dislikes. I have written about legal realism as movement and caricature in Kalman, Legal Realism at Yale, 1927–1960 (Chapel Hill, N.C., 1986); Kalman, The Strange Career of Legal Liberalism; and Kalman, Yale Law School and the Sixties: Revolt and Reverberations (Chapel Hill, N.C., 2005).

³² White, The Constitution and the New Deal, 213; Mark Graber, Transforming Free Speech: The Ambiguous Legacy of Civil Libertarianism (Berkeley, Calif., 1991); David Rabban, Free Speech in Its Forgotten Years (Cambridge, 1997).

³³ White, The Constitution and the New Deal, 234–236, 14–15, 19–20, 29–31; Howard Gillman, "The Collapse of Constitutional Originalism and the Rise of the Notion of the 'Living Constitution' in the Course of American State-Building," Studies in American Political Development 11 (1997): 191–247.

³⁴ White, The Constitution and the New Deal, 307, 311, 309; Barry Friedman, "The Birth of an Academic Obsession: The History of the Countermajoritarian Difficulty, Part Five," Yale Law Journal 112 (2002): 153–259; Barry Cushman, "Clerking for Scrooge," University of Chicago Law Review 70 (2003): 721–749, 739–743.

³⁵ White, The Constitution and the New Deal, 307, 309; Robert Gordon, "Introduction: J. Willard Hurst and the Common Law Tradition in American Legal Historiography," Law and Society Review 10 (1975): 9–56, 38 ("tools"). See Edward Purcell, The Crisis of Democratic Theory: Scientific Naturalism and the Problem of Value (Lexington, Ky., 1979), 159–178. White discussed behavioralist political science scholarship more specifically and at greater length in G. Edward White, "Unpacking the Idea of the Judicial Center," North Carolina Law Review 83 (2005): 1089–1185, 1097–1117, 1127–1134.

³⁶ Owen Fiss, Troubled Beginnings of the Modern State, 1888–1910 (New York, 1993), 19 ("coherence"); Howard Gillman, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (Durham, N.C., 1993); David Bernstein, "Lochner's Legacy's Legacy," Texas Law Review 82 (2003): 1–64, 16 ("government"); Novak, "Legal Origins of the Modern American State," 253–260; Rowe, "Legacy of Lochner," 223 ("hover"). Whether the legislation in Lochner did represent "the will of the people," and whether legislation ever does, remains open to question. See Paul Kens, Lochner v. New York: Economic Regulation on Trial (Lawrence, Kans., 1998), 47–66, 87–88; Daniel Farber and Philip Frickey, Law and Public Choice: A Critical Introduction (Chicago, 1991); Maxwell Stearns, Public Choice and Public Law: A Commentary (Cincinnati, Ohio, 1987).

³⁷Brown v. Board of Education, 347 U.S. 483 (1954); Robert Harrison, "The Breakup of the Roosevelt Court: The Contribution of History and Biography" (Ph.D. dissertation, Columbia University, 1987), 333 ("crowd"); Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Indianapolis, 1962), 16. Among the revisionists, Fiss, a political liberal, explicitly linked Lochner to Brown. Fiss, Troubled Beginnings of the Modern State, 19; and see Stephen Siegel, "Let Us Now Praise Infamous Men," Texas Law Review 73 (1995): 661–708, 707–708. On Brown and the legal academy, see generally Kalman, The Strange Career of Legal Liberalism; Friedman, "The Birth of an Academic Obsession."

³⁸ Among those who noted the influence of the events of 1937 on political science as a discipline were Walter Murphy, C. Herman Pritchett, and Glendon Schubert. Murphy and Pritchett, Courts, Judges, and Politics: An Introduction to the Judicial Process (New York, 1961), 9; Schubert, "Academic Ideology and the Study of Adjudication," American Political Science Review 61 (1967): 106–129, 106–107. For an informative overview of political scientists' approaches to judicial behavior, see Nancy Maveety, "The Study of Judicial Behavior and the Discipline of Political Science," in Maveety, ed., The Pioneers of Judicial Behavior (Ann Arbor, Mich., 2003), 1–51, and the valuable individual essays on each political scientist in ibid., including Pritchett, Schubert, Harold Spaeth, Murphy, David Danelski, Edward Corwin, Robert McCloskey, and Robert Dahl.

³⁹ Glendon Schubert, "The Study of Judicial Decision-Making as an Aspect of Political Behavior," American Political Science Review 52 (1958): 1007–1025, 1022–1023; Schubert, Constitutional Politics: The Political Behavior of Supreme Court Justices and the Constitutional Policies That They Make (New York, 1960), 165 ("both," emphasis in the original) (Schubert reprinted the Frankfurter memorandum in ibid., 168–171).

⁴⁰ Jeffrey Segal and Harold Spaeth, The Supreme Court and the Attitudinal Model (Cambridge, 1993), 64 ("Rehnquist votes"); Symposium, "The Supreme Court and the Attitudinal Model," Law & Courts: Newsletter of the Law and Courts Section of the American Political Science Association 4 (Spring 1994): 3–12; and see Segal and Spaeth, The Supreme Court and the Attitudinal Model Revisited (Cambridge, 2002).

⁴¹ Walter Murphy, Congress and the Court: A Case Study in the American Political Process (Chicago, 1962), 247, 59–61 ("dramatic"); Murphy, Elements of Judicial Strategy (Chicago, 1964), 162 ("attack," "neatest"); David Danelski, "The Influence of the Chief Justice in the Decisional Process," reprinted in abridged form in Murphy and Pritchett, Courts, Judges, and Politics, 497–508, 500; Danelski and Tulchin, "Editors' Introduction," in Hughes, The Autobiographical Notes, xxv ("maintain"); Alpheus Mason, Harlan Fiske Stone: Pillar of the Law (New York, 1956), 437–464; Clyde Spillenger, "Lifting the Veil: The Judicial Biographies of Alpheus T. Mason," Reviews in American History 21 (1993): 723–734; Robert McCloskey, The American Supreme Court (Chicago, 1960), 174 ("finally"); McCloskey, "Economic Due Process and the Supreme Court: An Exhumation and Reburial," in Philip Kurland, ed., Supreme Court Review (Chicago, 1962), 34–62; McCloskey, "The Supreme Court, 1961 Term, Foreword: The Reapportionment Cases," Harvard Law Review 76 (1962): 54–74.

⁴² The critical legal scholar was Mark Tushnet. Tushnet, "Post-Realist Legal Scholarship," Wisconsin Law Review 1980 (1980): 1383–1401, 1398. As Cornell Clayton said, "The ultimate irony is that as political science sought more predictive, 'scientific' ways of understanding judicial decision-making, it became of less utility and notice to those actually engaged in the practice of law and to those elected officials who appoint judges. Political scientists, who in the days of Corwin and Haines were considered the leading experts on the Supreme Court and the Constitution, have been increasingly pushed to the sidelines by academic lawyers." Cornell Clayton, "The Supreme Court and Political Jurisprudence: New and Old Institutionalisms," in Cornell Clayton and Howard Gillman, eds., Supreme Court Decision-Making: New Institutionalist Approaches (Chicago, 1999), 15–41, 29. See also Howard Gillman, "What's Law Got to Do with It? Judicial Behavioralists Test the 'Legal Model' of Judicial Decision Making," Law & Social Inquiry 26 (2001): 465–498. For a positive view of attitudinalism and what it can offer academic lawyers, see Frank Cross, "Political Science and the New Legal Realism: A Case of Unfortunate Interdisciplinary Ignorance," Northwestern University Law Review 92 (1997): 251–326; for a more critical one, see Michael Gerhardt, "Attitudes about Attitudes," Michigan Law Review 101 (2003): 1733–1763. Shapiro is quoted in Howard Gillman, "Martin Shapiro and the Movement from 'Old' to 'New' Institutionalist Studies in Public Law Scholarship," Annual Review of Political Science 7 (2004): 363–382, 374.

⁴³ Gerald Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (Chicago, 1991), 338, 169, 123, 341, 342.

⁴⁴ Keith Whittington, "Once More into the Breach: Postbehavioralist Approaches to Judicial Politics," Law & Social Inquiry 25 (2000): 601–634, 619 ("bringing"); Howard Gillman, "Elements of a New 'Regime Politics' Approach to the Study of Judicial Politics" (paper presented at the American Political Science Association, 2004) ("regime," "stories"); Gillman, "The New Institutionalism, Part I: More and Less than Strategy—Some Advantages to Interpretive Institutionalism in the Analysis of Analysis of Judicial Politics," Law & Courts 7 (Winter 1996–1997): 6–10; Cornell Clayton and Howard Gillman, "Introduction," in Gillman and Clayton, The Supreme Court in American Politics: New Institutionalist Approaches (Lawrence, Kans., 1999), 1–11, 3–5; Ken Kersch, Constructing Civil Liberties: Discontinuities in the Development of American Constitutional Law (Cambridge, 2004), 360 ("regime-sustaining"); Kalman, The Strange Career of Legal Liberalism, 101–163; Karen Orren and Stephen Skowronek, The Search for American Political Development (Cambridge, 2004); Terence McDonald, The Historic Turn in the Human Sciences (Ann Arbor, Mich., 1996); James Mahoney and Dietrich Rueschemeyer, eds., Comparative Historical Analysis in the Social Sciences (Cambridge, 2003).

⁴⁵ Robert Dahl, "Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker," Emory Law 50 (2001): 563–582, 578, reprinting the original article from Journal of Public Law 6 (1957): 279–295; Mark Graber, "The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary," Studies in American Political Development 7 (1993): 35–73, 36, 37, 56; and see George Lovell, Legislative Deferrals, Statutory Ambiguity, Judicial Power, and American Democracy (Cambridge, 2003) (demonstrating Graber's point in a series of case studies drawn from the history of twentieth-century labor law); Charles Epp, The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective (Chicago, 1998) (examining the relative strength of the rights revolution in the United States, Canada, Britain, and India, and pointing to the importance of a broader support structure from below in creating pressure for, and making meaningful, judicial declarations of rights). Rogers Smith is credited with launching the movement to apply the new institutionalism to public law in Smith, "Political Jurisprudence, the 'New Institutionalism,' and the Future of Public Law," American Political Science Review 82 (1988): 89–108; Clayton, "The Supreme Court and Political Jurisprudence," 30–31. See also Rogers Smith, Liberalism and American Constitutional Law (Cambridge, Mass., 1985), 6–7.

⁴⁶ That was the memory of John Blum, the lone historian in the group. See Richard Merelman, Pluralism at Yale: The Culture of Political Science in America (Madison, Wis., 2003); Geoffrey Kabaservice, The Guardians: Kingman Brewster, His Circle, and the Rise of the Liberal Establishment (New York, 2004); Warren Goldstein, William Sloan Coffin Jr.: A Holy Impatience (New Haven, Conn., 2004); and Kalman, Yale Law School and the Sixties, for discussion of the atmosphere at Yale during this period. "Constructed" is from Mark Graber, "Constructing Judicial Review," Annual Review of Political Science 8 (2005): 425–451, 446.

⁴⁷ Graber, "The Nonmajoritarian Difficulty," 68, 72. Constitutional law professors influenced by the new institutionalism included Barry Friedman, Michael Klarman, Mark Tushnet, and Darren Hutchinson. Friedman drew on it to remind law professors that "the judicial process tends to ratify popular preference" in many articles. See, e.g., Friedman, "The History of the Countermajoritarian Difficulty, Part One: The Road to Judicial Supremacy," New York University Law Review 73 (1998): 333–433, 338. Klarman won the Bancroft Prize for insisting, with Rosenberg, that Brown v. Board of Education reflected an emerging national consensus. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Equality (New York, 2004). Tushnet explained that the Rehnquist Court's "economic conservatives won and ... cultural conservatives lost" through 2005 because in the larger political arena, "economic conservatives were winning and cultural conservatives were losing." Tushnet, A Court Divided: The Rehnquist Court and the Future of Constitutional Law (New York, 2005), 10. Hutchinson addressed the majoritarian nature of the Rehnquist Court's recent decisions about affirmative action and gay rights in "The Majoritarian Difficulty: Affirmative Action, Sodomy, and Supreme Court Politics," Law & Inequality 23 (2005): 1–93. And while he denounced political scientists, Lucas Powe maintained that the Warren Court was the judicial arm of Lyndon Johnson's Great Society. Powe, The Warren Court and American Politics (Cambridge, Mass., 2000), xii–xvi. For a critical reaction to Powe's treatment of political scientists, see Mark Graber, "Constitutional Politics and Constitutional Theory: A Misunderstood and Neglected Relationship," Law & Social Inquiry 927 (2002): 309–333. For discussion of the citation of political scientists in law reviews, see Keith Whittington, "Crossing Over," Law & Courts 14 (Spring 2004): 5–10.

⁴⁸ Rogers Smith, "If Politics Matters: Implications for a 'New Institutionalism,'" Studies in American Political Development 6 (1992): 1–36, 3 ("historical/interpretivist"); Gillman, "The Court as an Idea, Not a Building or a Game: Interpretive Institutionalism and the Analysis of Supreme Court Decision-Making," in Clayton and Gillman, Supreme Court Decision-Making, 65–87, 67, 87 (contingency). For example, Gillman explained that "the Lochner era is the story of how a changing social structure exposed the conservatism and class bias inherent in the dominant ideological structures first formulated and institutionalized by the framers of the U.S. Constitution; it is the story of how an ideology that was fairly (albeit not completely) inclusive around the time of the founding became more and more exclusive as the century progressed and capitalist forms of production matured; and it is the story of how the Court, loyal to a historically defined conception of political legitimacy, struggled to maintain the coherence of this authoritative ideology in an era that witnessed an unprecedented intensification of class conflict." He recognized the autonomous influence of legal ideology as understood by interpretive communities existing in particular historical contexts, as well as the interdependence of law and politics. But Gillman still maintained that "the United States underwent a true constitutional revolution" in 1937, "the moment when the founders' conception of a faction-free American Republic collapsed under the onslaught of corporate capitalism." Gillman, The Constitution Besieged, 199–201. And see Michael Nelson, "The President and the Court: Reinterpreting the Court-Packing Episode of 1937," Political Science Quarterly 103 (1988): 267–293, 293; Kevin McMahon, Reconsidering Roosevelt on Race: How the Presidency Paved the Way for Brown (Chicago, 2004), 65, 84; Rafael Gely and Pablo Spiller, "The Political Economy of Supreme Court Constitutional Decisions: The Case of Roosevelt's Court-Packing Plan," International Review of Law and Economics 12 (1992): 45–67, 57, 65, n. 63; Jamie Carson and Benjamin Kleinerman, "A Switch in Time Saves Nine: Institutions, Strategic Actors, and FDR's Court Packing," Public Choice 113 (2002): 301–324, 302; Gregory Caldeira, "Public Opinion and the US Supreme Court: FDR's Court-Packing Plan," American Political Science Review 81 (1987): 1139–1153, 1150, 1148.

⁴⁹ I would not presume to answer the charge for Leuchtenburg, but I note that for him, scholarship and politics stay separate. And certainly he has kept his eye trained on the 1930s, avoiding grand claims about judicial behavior. William Leuchtenburg, "The Historian in the Public Realm," AHR 97 (February 1992): 1–18. White is correct that I am a liberal and that I also believe one's politics affects one's scholarship. I have also adopted a behavioralist approach to judging. In my view, however, he exaggerates the extent of behavioralism's triumph on the Supreme Court during the 1930s and afterward. While an Abe Fortas and his biographer might show little regard for legal doctrine and treat judging as political, not every post-1937 judge was a Fortas, and many of their biographers have taken their decisions more seriously. Compare, for example, Laura Kalman, Abe Fortas: A Biography (New Haven, Conn., 1990), 271–276, with Pusey, Charles Evans Hughes.

⁵⁰ Kalman, "Law, Politics and the New Deal(s)," 2188. Leuchtenburg was more polite. For discussion of different disciplinary standards of criticism, see Kalman, The Strange Career of Legal Liberalism, 216–219; William Nelson, "Standards of Criticism," Texas Law Review 60 (1982): 447–493.

⁵¹ Mark Graber, "Thick and Thin: Interdisciplinary Conversations on Populism, Law, Political Science, and Constitutional Change," Georgetown Law Journal 90 (2001): 233–251, 243 ("Interdisciplinary"); Friedman, "Taking Decisions Seriously," 323; Glendon Schubert, "Ideologies and Attitudes, Academic and Judicial," Journal of Politics 29 (1967): 3–40, 20.

⁵² Richard Friedman, "A Rendezvous with Kreplach: Putting the New Deal Court in Context," Green Bag 5 (2002): 453–462, 454–455, 459.

⁵³ Henry Pringle, The Life and Times of William Howard Taft: A Biography, 2 vols. (New York, 1939), 2: 783.

⁵⁴ See Mary Dudziak, "The Court and Social Context in Civil Rights History," University of Chicago Law Review 72 (2005): 429–454, and Stephen Feldman, "The Rule of Law or the Rule of Politics? Harmonizing the Internal and External Views of Supreme Court Decision Making," Law & Social Inquiry 30 (2005): 89–129.

⁵⁵ Edward Purcell, "Rethinking Constitutional Change," Virginia Law Review 80 (1994): 277–290, 280, 290.

⁵⁶ This is my third attempt in print to account for "1937," and each time, I move closer to the internalist account. Thus White writes that I have used "a strategy of confession and avoidance ... to buttress the conventional externalist account in the face of revisionist criticism." White, The Constitution and the New Deal, 29–30. Compare Kalman, The Strange Career of Legal Liberalism, 348–351, n. 70, with Kalman, "Law, Politics, and the New Deal(s)," 2185–2188. My chorus has indeed become one of "Yes, but." I also here suggest that we bury the very debate I have previously called "vibrant." Ibid., 2186.

⁵⁷ See Kersh, Constructing Civil Liberties, 132–133.

⁵⁸ Ackerman, We the People: Transformations, 29 (I discuss Ackerman's approach to the New Deal in Kalman, "Law, Politics, and the New Deal[s]," 2165–2213); Sanford Levinson, "Constitutional Norms in a State of Permanent Emergency" (forthcoming, University of Georgia Law Review [pointing to the national and international sense of emergency at the time of Blaisdell]); Ronen Shamir, Managing Legal Uncertainty: Elite Lawyers and the New Deal (Durham, N.C., 1995); Leuchtenburg, The Supreme Court Reborn, 39 ("medieval," "relationship"); Cushman, Rethinking the New Deal Court, 162 ("prophetic"). With respect to Nebbia, see Leuchtenburg, The Supreme Court Reborn (querying the importance of Roberts's position), 231; David Pepper, "Against Legalism: Rebutting an Anachronistic Account of 1937," Marquette Law Review 82 (1998): 63–154 (maintaining that Cushman overrated the case's contemporary impact); for Cushman's reply, see "Lost Fidelities," 103–141. On the Court's reaction to the Court-packing bill, see William Leuchtenburg, "The Nine Justices Respond to the 1937 Crisis," Journal of Supreme Court History 1 (1997): 55–76; Richard Friedman, "Chief Justice Hughes' Letter on Court-Packing," ibid., 76–86.

⁵⁹ In addition to Cushman, Neal Devins adopts Schlesinger's "poor draftsmanship" argument as the reason for the failure of the early New Deal before the Court. Devins, "Government Lawyers and the New Deal," Columbia Law Review 96 (1996): 237–267, 241, 251. Parrish has little use for the poor draftsmanship argument in "The Hughes Court, the Great Depression, and the Historians," 289–290, n. 13, and the same is true of Leuchtenburg in The Supreme Court Reborn, 231–232, 318 n. 99, and in his essay in this forum. "[J]ournalists" is from Michael Kammen, A Machine That Would Go of Itself (New York, 1987), 274. Ackerman argues that in 1935 and 1936, "the Court put Americans on notice that the New Deal was shaking the foundations—and that it was not too late to withdraw their mandates." Yet when the people responded by overwhelmingly saying yes to the New Deal in 1936, judicial conservatives realized that the "switch in time" was required. Ackerman, We the People: Transformations, 303, 381. But see Leuchtenburg, "When the People Spoke, What Did They Say? The Election of 1936 and the Ackerman Thesis," Yale Law Journal 108 (1999): 2077–2114, 2114 (cautioning that while it was not "unreasonable to assume that 'the People' would not long tolerate a Court that persisted in striking down legislation they cherished," the people nevertheless viewed Constitution and the Court with "reverence"), and Barry Cushman, "Mr. Dooley and Mr. Gallup: Public Opinion and Constitutional Change in the 1930s," Buffalo Law Review 50 (2002): 7–100, 66–74 (analyzing polling data and suggesting that it would be unwise to read the 1936 election results as a mandate for constitutional revolution); Gregory Caldeira, "FDR's Court-Packing Plan in the Court of Public Opinion," Version 4, August 2004, http://epstein.wustl.edu/research/courses.LAPSCaldeira.pdf (analyzing polling data in the 1936 election, questioning whether public reverence for the Court caused elite opposition to Court packing, and challenging the scholarly consensus that FDR's promotion of Court packing caused a major change in Roosevelt's base or a large-scale shift away from him).

⁶⁰ William Leuchtenburg, "Charles Evans Hughes: The Center Holds," North Carolina Law Review 83 (2005): 1187–1203, 1199.

⁶¹ Alsop and Catledge, The 168 Days, 139 ("government lawyers"). Leuctenburg discusses the lack of popular reaction to Creel's report in The Supreme Court Reborn, 94, 122; Marian McKenna discusses the State of the Union speech in McKenna, Franklin Roosevelt and the Great Constitutional War: The Court-Packing Crisis of 1937 (New York, 2002), 258–263. While Roosevelt said that a constitutional amendment had no chance of passage, David Kyvig argues that Congress might have enacted a constitutional amendment, which would have had a more "strong and solid ... constitutional foundation" under the New Deal. Kyvig, Explicit and Authentic Acts: Amending the U.S. Constitution, 1776–1995 (Lawrence, Kans., 1996), 305, 314, 481–483.

⁶² Gely and Spiller list the bills introduced to regulate the Court during 1937 in "The Political Economy of Supreme Court Constitutional Decisions," 58–59. Yet the large number of bills introduced may have indicated liberal disarray and an inability to agree on a solution, which may have augured poorly for the Court-packing bill. William Ross, A Muted Fury: Populists, Progressives, and Labor Unions Confront the Courts, 1890–1937 (Princeton, N.J., 1994), 309. "[M]yth" is from Kramer, The People Themselves, 240; Roberts is quoted in Charles Leonard, A Search for Judicial Philosophy: Mr. Justice Roberts and the Constitutional Revolution of 1937 (Port Washington, N.Y., 1971), 144, 180.

⁶³ Extrapolating from Rosenberg's Hollow Hope, however, we might ask ourselves how much the National Labor Relations Act and judicial interpretation of it mattered and when. While its constitutionality was unclear and the National Labor Relations Board cases were pending, employers hostile to unions ignored it, and the shift toward mass-production unionization was due in large part to the tactics of workers themselves. David Brody, Workers in Industrial America: Essays on the Twentieth Century Struggle (New York, 1980), 103–107. Even so, perhaps a majority of the Court regarded the NLRA as a possible balm for the rash of sit-down strikes and was more inclined to uphold it for that reason. Jim Pope, "Worker Lawmaking, Sit-Down Strikes, and the Shaping of American Industrial Relations, 1935–38," Law and History Review 24 (forthcoming, 2006). The Court also could have been moved by "the inherited Commerce Clause jurisprudence, the particular facts of the NLRB cases, and the arguments advanced by government attorneys." Parrish, The Hughes Court, 179. And in the case of Darby and Wickard, of course, context also remains important. In part, Wickard reflected the changed personnel on the Court and the need to increase food production during World War II. Mary Dudziak, "Wheat Farmers and the Battle for Democracy: Another Look at Wickard v. Filburn" (unpublished paper, Association of American Law Schools, 1993). The larger and more general point is that "[b]y any criteria, ... the major issues in the explanation of judicial behavior are far from settled." Lawrence Baum, The Puzzle of Judicial Behavior (Ann Arbor, Mich., 1997), 125.

⁶⁴ Cushman, Rethinking the New Deal Court, 5.

⁶⁵ Serena Mayeri to Laura Kalman, American Legal History Final, Yale Law School, May 2001.

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