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Journal of Supreme Court History • • PUBLICATIONS COMMITTEE Kenneth S. Geller, Chairman Donald B. Ayer Charles Cooper Louis R. Cohen James J. Kilpatrick Melvin I. Urofsky BOARD OF EDITORS Melvin I. Urofsky, Chairman Herman Belz Craig Joyce Maeva Marcus David J. Bodenhamer Philippa Strum David O'Brien Kermit Hall Laura Kalman Michael Parrish MANAGING EDITOR Clare Cushman CONSULTING EDITORS Patricia R. Evans James J. Kilpatrick David T. Pride Jennifer M. Lowe Kathleen Shurtleff Supreme Court Historical Society Board of Trustees Honorary Chairman William H. Rehnquist Honorary Trustees Harry A. Blackmun Byron R. White Lewis F. Powell, Jr. WilliamJ. Brennan,Jr. Chairman President Dwight D. Opperman Leon Silvennan Vice Presidents VincentC. Burke,Jr. Frank e. Jones E. Barrett Prettyman, Jr. Secretary Treasurer Virginia Warren Daly Sheldon S. Cohen George R . Adams Dorothy Tapper Goldman Gordon O. Pehrson Noel 1. Augustyn John D. Gordan, III Leon Polsky Herman Belz William T. Gossett Charles B. Renfrew Barbara A. Black W. Fulton Haight William Bradford Reynolds Hugo L. Black, Jr. Geoffreye. Hazard. Jr. George Ridder Vera Brown Judith Richards Hope John R. Risher, Jr. Wade Burger William E. Jackson Harvey Rishikof Patricia Dwitmell Butler Robb M. Jones William P. Rogers Andrew M. Coats James 1. Kilpatrick Jonathan Rose William T. Coleman,1r. Peter A. Knowles Jerold S. Solovy F. Elwood Davis Harvey e. Koch Kenneth Starr Charlton Dietz Jerome Lubin Cathleen Douglas Stone John T. Dolan Maureen Mahoney Agnes N. Williams James e. Duff Howard T. Markey Lively Wilson William Edlund Mrs. Thurgood Marshall W . Foster Wollen Johne. Elam Thurgood Marshall, Jr. James D. Ellis VincentL. McKusick Robert E. Juceam Michela English Francis J. McNamara, Jr. General Counsel Thomas W. Evans Joseph Moderow Wayne Fisher James Morris Charles O. Galvin David T. Pride John M. Nannes Kenneth S. Geller Executive Director Phile.Neal Frank B. Gilbert Kathleen Shurtleff Stephen W. Nealon Assistant Director General Statement The Supreme Court Historical Society is a private nonprofit organization, incorporated in the District of Columbia in 1974. The Society is dedicated to the collection and preservation ofthe history of the Supreme Court of the United States. The Society seeks to accomplish its mission by supporting historical research, collecting antiques and artifacts relating to the Court's history, and publishing books and other materials which increase public awareness of the Court's contribution to our Nation's rich constitutional heritage. Since 1975, the Society has been publishing a Quarterly newsletter, distributed to its membership, which contains short historical pieces on the Court and articles detailing the Society's programs and activities. In 1976, the Society began publishing an annual collection of scholarly articles on the Court's history titled the Yearbook, which was renamed the Journal ofSupreme Court History in 1990 and became a semi-annual publication in 1996. The Society initiated the Documentary History ofthe Supreme Court ofthe United States, 1789-1800 in 1977 with a matching grant from the National Historical Pub\.ications and Records Commission (NHPRC). The Supreme Court became a cosponsor in 1979. Since that time the Project has completed flve of its expected eight volumes, with a sixth volume to be published in 1997. The Society also copublishes Equal Justice Under Law, a I 65-page illustrated history of the Court, in cooperation with the National Geographic Society. In 1986 the Society cosponsored the 300-page ILlustrated History of the Supreme Court of the United States. It sponsored the publication of the United States Supreme Court Index to Opinions in 1981 , and funded a ten-year update of that volume that was published in 1994. The Society has also developed a collection of illustrated biographies of the Supreme Court Justices, which was published in cooperation with Congressional Quarterly, Inc. in 1993. This 588-page book includes biographies of aliI 08 Supreme Court Justices and features numerous rare photographs and other illustrations. Now in its second edition, it is titled The Supreme Court Justices: Illustrated Biographies, 1789-1995. In addition to its research and publications projects, the Society is now cooperating with the Federal Judicial Center on a pilot oral history project on the Supreme Court. The Society also conducts an active acquisitions program which has contributed substantially to the completion of the Court's permanent collection of busts and portraits, as well as period furnishings, private papers, and other artifacts and memorabilia relating to the Court's history. These materials are incorporated into displays prepared by the Court Curator's Office for the benefit of the Court's one million annual visitors. The Society also funds outside research, awards cash prizes to promote scholarship on the Court, and sponsors or cosponsors various lecture series and other educational colloquia to further public understanding of the Court and its history. The Society ends its 1997 fiscal year with approximately 5,000 members whose financial support and volunteer participation in the Society's standing and ad hoc committees enable the organization to function. These committees report to an elected Board of Trustees and an Executive Committee, the latter of which is principally responsible for policy decisions and for supervising the Society's permanent staff. Requests for additional infonnation should be directed to the Society's headquarters at III Second Street, N.E., Washington, D.C. 20002, Tel. (202) 543-0400. The Society has been determined eligible to receive tax-deductible gifts under Section 501 (c) (3) under the Internal Revenue Code. 1997 Journal of Supreme Court History, vol. 1 Table of Contents page Introduction Melvin I. Urofsky Articles Dawn of the Conservative Era Paul Kens The Court in the Progressive Era Benno C. Schmidt, Jr. 14 A Return to the Four Horsemen Hadley P. Arkes 33 The Nine Justices Respond to the 1937 Crisis William E. Leuchtenburg, Jr. 55 Chief Justice Hughes' Letter on Court-Packing Richard D. Friedman 76 The New Deal Court in the 1940s: Its Constitutional Legacy David P. Currie 87 Bibliographic Essay John B. Taylor Contributors 119 Photo Credits 120 Copyright 1997, by The Supreme Court Historical Society III Second Street, N.E. Washington, D.C. 20002 Introduction Melvin I. Urofsky Chairman, Board of Editors To students of American history in general, a Depression-ridden America, the jurisprudence md of the Supreme Court in particular, the constitu­ men like James C. McReynolds, George Suther­ tional crisis of 1937 is a key event in deciphering land, Pierce Butler and Willis Van Devanter es­ much of the history of the twentieth century. A poused was not in and of itself wrong. The iurisprudential mindset that had been in place program put forward in the New Deal, while ,ince the 1880s ran head-on into a pol itical tidal certainly humane and compassionate, had its own wave whose elements had been building up since problems, not the least of which was the often the 1890s. The conservative emphasis on prop­ sloppy draftsmanship which made laws like the ~rty rights, epitomized on the high court by the so­ National Industrial Recovery Act the target not :alled Four Horsemen, stymied efforts to reform a only of the Four Horsemen but of the liberal bloc 50ciety wracked not only by the Great Depression as well. Dut also by the deleterious effects that the indus­ What is perhaps the most fascinating aspect of Irialization ofthe nation had on its working classes. the confrontation is the overtly political activities fhe proposal by Franklin D. Roosevelt to pack the of some of the Justices. By this I do not mean Court, while it failed to pass in Congress, nonethe­ simply the conservative judicial activism that less broke the logjam, and the Court abandoned all openly fought reform measures that impinged on ~fforts to block economic regulation for the next propert rights. Rather, led by Chief Justice Charles ~alf-century. Roosevelt's comment that he lost Evans Hughes, the Justices fought back to protect ;he battle but won the war is now accepted wisdom the integrity of the Court as an institution. The in examining the events of six decades ago. letter the Chief Justice sent to Congress through The articles in this issue (most of them origi­ Senator Burton K. Wheeler, is of prime interest to nally delivered as the 1996 Supreme Court Histori­ two of our contributors, and they take far different ;al Society Lecture Series), however, point up a far views on its importance in determining the final mOre nuanced interpretation. Moreover, they elon­ outcome of the President's plan. Our readers will ~ate the period of examination backward to cover have to judge which one makes the more compel­ :he development of the jurisprudence that led up to ling case. We at the Journal are happy to present :he conflict, and forward to see the results of the a symposium that once again demonstrates the Jattle. While the conservative bloc on the Court is drama and continuing vitality of Supreme Court lOrmally seen as out of touch with the reality of history. Dawn of the Conservative Era Paul Kens Introduction To proponents of laissez-faire theory this was more than a preferred policy. It was a matter of When I was working on this project, a friend natural law and of natural rights. Of these natu­ who is neither a lawyer nor a historian, asked ral rights, two stood out. First was the natural what I was doing. I told her I was working on a right of property. The other, called "the natural lecture entitled "The Dawn of the Conservative right of free exchange," was the natural, self-evi­ Era" and that it was about the conservative Court dent, and inalienable right of all people to em­ at the turn of the century.

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