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Viewed in This Article to Varying Degrees Build Upon, Synthesize, and Offer Original Contribu- Tions to That Considerable Body of Scholarship \\jciprod01\productn\N\NDL\89-5\NDL502.txt unknown Seq: 1 30-MAY-14 13:52 THE JURISPRUDENCE OF THE HUGHES COURT: THE RECENT LITERATURE Barry Cushman* FRANKLIN ROOSEVELT AND THE GREAT CONSTITUTIONAL WAR, MARIAN C. MCK- ENNA (Fordham University Press 2002); THE HUGHES COURT: JUSTICES, RUL- INGS, AND LEGACY, MICHAEL E. PARRISH (ABA-CLIO 2002); THE CHIEF JUSTICESHIP OF CHARLES EVANS HUGHES, 1930–1941, WILLIAM G. ROSS (Uni- versity of South Carolina Press 2007); BACKLASH: THE KILLING OF THE NEW DEAL, ROBERT SHOGAN & IVAN R. DEE (2006); FDR V. THE CONSTITUTION: THE COURT-PACKING FIGHT AND THE TRIUMPH OF DEMOCRACY, BURT SOLOMON (Walker & Company 2009). The literature on the Supreme Court under the Chief Justiceship of Charles Evans Hughes and the tumultuous events surrounding the struggle over President Franklin D. Roosevelt’s (FDR’s) Court-packing plan in 1937 is vast and varied. The five recent monograph-length studies reviewed in this Article to varying degrees build upon, synthesize, and offer original contribu- tions to that considerable body of scholarship. It is both difficult and hazard- ous to generalize about such a substantial corpus of scholarly work, but the antecedent literature has been grouped roughly into two types of accounts: “externalist” and “internalist.”1 Externalist accounts tend to see a rather sharp break in constitutional doctrine in the spring of 1937, and attribute © 2014 Barry Cushman. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice. * John P. Murphy Foundation Professor of Law, University of Notre Dame. 1 For an instructive overview of the literature’s development, see G. EDWARD WHITE, THE CONSTITUTION AND THE NEW DEAL 13–32 (2000). For classics of the externalist litera- ture, see EDWARD S. CORWIN, COURT OVER CONSTITUTION (1938); EDWARD S. CORWIN, CON- STITUTIONAL REVOLUTION, LTD. (1941); ROBERT H. JACKSON, THE STRUGGLE FOR JUDICIAL SUPREMACY (1941); WILLIAM E. LEUCHTENBURG, THE SUPREME COURT REBORN (1995); ALPHEUS THOMAS MASON, HARLAN FISKE STONE (1956); ROBERT G. MCCLOSKEY, THE AMERI- CAN SUPREME COURT (1960); PAUL L. MURPHY, THE CONSTITUTION IN CRISIS TIMES (1972); BENJAMIN F. WRIGHT, THE GROWTH OF AMERICAN CONSTITUTIONAL LAW (1942). For contri- butions to the internalist literature, see, for example, BARRY CUSHMAN, RETHINKING THE NEW DEAL COURT (1998); WHITE, supra; Richard D. Friedman, Switching Time and Other Thought Experiments: The Hughes Court and Constitutional Transformation, 142 U. PA. L. REV. 1891 (1994). 1929 \\jciprod01\productn\N\NDL\89-5\NDL502.txt unknown Seq: 2 30-MAY-14 13:52 1930 notre dame law review [vol. 89:5 that sudden change to the influence of exogenous factors such as the threat of the Court-packing plan or the impression made on the Justices by FDR’s landslide re-election in 1936.2 Internalist accounts tend to see the change in constitutional doctrine as more gradual and spread out over a longer period of time, and to emphasize the importance of presidential appointments to the Court in pushing doctrinal development along or in new directions. Such accounts attribute the greater success of later New Deal initiatives before the Court to legal factors such as improved constitutional conceptual- ization at the stages of legislative drafting, test case selection, and briefing and argument. Externalist accounts tend to view the constitutional doctrine of the period as more open-textured and attribute the selection among avail- able doctrines (and thus case outcomes) to the political, economic, and social preferences or ideological commitments of the Justices. Internalist accounts tend to note evidence and patterns of judicial performance that are incompatible with this view, and instead tend to see the Justices as experienc- ing constitutional doctrine as an independent constraint on their extra-legal preferences. Externalist accounts tend to present the Justices as the moving parts in the story, and the relevant changes as the changes in the Justices’ positions. Internalist accounts tend, by contrast, to emphasize adaptations by Congress and administration lawyers—made in light of the Court’s decisions invalidating portions of the early New Deal—that enabled them to accommo- date their regulatory objectives within the Court’s evolving body of doctrine. I want to underscore, as have scholars with perspectives as diverse as those of Professors Richard Friedman,3 Laura Kalman,4 Mark Tushnet,5 and G. Edward White,6 that this rough taxonomy can be misunderstood, and can obscure important commonalities. These terms are not best understood as denoting a stark, mutually exclusive dichotomy. Instead, they are best under- stood as locating explanations along a spectrum, with externalists attributing less importance to internal legal factors, and internalists ascribing less impor- tance to certain exogenous, extralegal factors. Externalists do not deny that legal ideas sometimes operated as constraints on judicial behavior, and internalists do not deny that some external factors were sometimes relevant to constitutional adjudication. The disputed terrain is over which factors were relevant, how much constraint and how much influence each of these factors brought to bear on the Justices, and the relationships among those factors. 2 This paragraph and the next draw upon this author’s previous work. See Barry Cushman, The Man on the Flying Trapeze, 15 U. PA. J. CONST. L. 183, 211–12 (2012) (review- ing JEFF SHESOL, SUPREME POWER (2010)). 3 See Richard D. Friedman, . A Rendezvous with Kreplach: Putting the New Deal Court in Context, 5 GREEN BAG 2D 453, 455 (2002) (reviewing WHITE, supra note 1). R 4 See Laura Kalman, The Constitution, the Supreme Court, and the New Deal, 110 AM. HIST. REV. 1052, 1074–75 (2005). 5 See Mark Tushnet, The New Deal Constitutional Revolution: Law, Politics, or What?, 66 U. CHI. L. REV. 1061, 1062 (1999) (reviewing CUSHMAN, supra note 1). R 6 See G. Edward White, Constitutional Change and the New Deal: The Internalist/Externalist Debate, 110 AM. HIST. REV. 1094 (2005). \\jciprod01\productn\N\NDL\89-5\NDL502.txt unknown Seq: 3 30-MAY-14 13:52 2014] t h e jurisprudence of the hughes court 1931 For example, in my own “internalist” work, I have incorporated a range of factors external to the law into my efforts to explain constitutional devel- opment in this period: free labor ideology;7 changes in unemployment and understandings of its causes;8 changes in the structure of the labor market;9 changes in cultural perceptions of and self-conceptions of portions of the labor movement;10 reactions to the experience of the World War and its aftermath;11 the onset of an economic depression;12 developments in eco- nomic integration;13 the wave of sit-down strikes in 1936 and 1937;14 and personnel changes on the Court, which are due to presidential appointments made for political reasons and as a result of political victories in presidential elections.15 At the same time, I have attempted to show the ways in which law shaped and channeled political activity into prescribed legal forms, and how such political activity, so channeled, reconfigured the legal landscape from the inside.16 The debates among internalists and externalists therefore are not about whether law is related to politics and other aspects of social experi- ence. Everyone agrees that it is. The debate is instead about how law was related to such variables in a particular chapter in American legal and consti- tutional history. It is thus a mistake to see internalist accounts as resting upon a theory of law that posits the autonomy of law from politics. To be sure, some Marxist and Critical Legal scholars have remarked upon the “relative autonomy” of law from politics,17 and their views have been influential in the development 7 See CUSHMAN, supra note 1, at 6, 90, 107, 139. R 8 See id. at 90–91, 116–17. 9 See id. 10 See id. at 115, 120–21. 11 See id. at 119–20, 123–24. 12 See id. at 90–91, 117. 13 See id. at 217–21. 14 See id. at 168, 237 n.156. 15 See id. at 208, 224–25. 16 See id. at 7, 133, 162–207. See generally Barry Cushman, The Hughes Court and Consti- tutional Consultation, 23 J. SUP. CT. HIST. 79 (1998) (discussing instances in which the Hughes Court cooperated with the political branches to formulate solutions for the eco- nomic crisis of the 1930s). 17 See, e.g., EUGENE D. GENOVESE, ROLL, JORDAN, ROLL 25 (1974) (“[T]he fashionable relegation of law to the rank of a superstructural and derivative phenomenon obscures the degree of autonomy it creates for itself.”); E.P. THOMPSON, WHIGS AND HUNTERS 262 (1975) (arguing that the law is “something more” than “a pliant medium to be twisted this way and that by whichever interests already possess effective power,” but instead “has its own charac- teristics, its own independent history and logic of evolution”); Robert W. Gordon, Critical Legal Histories, 36 STAN. L. REV. 57, 101 (1984) (“[L]egal forms and practices don’t shift with every realignment of the balance of political forces. They tend to become embedded in ‘relatively autonomous’ structures that transcend and, to some extent, help to shape the content of the immediate self-interest of social groups.”); Duncan Kennedy, Toward an Historical Understanding of Legal Consciousness: The Case of Classical Legal Thought in America, 1850–1940, 3 RES. L. & SOC. 3, 4–5 (1980) (urging recognition of “the existence of legal consciousness as an entity with a measure of autonomy” and defining “legal consciousness” as “a set of concepts and intellectual operations that evolves according to a pattern of its \\jciprod01\productn\N\NDL\89-5\NDL502.txt unknown Seq: 4 30-MAY-14 13:52 1932 notre dame law review [vol.
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