Revisiting the Roosevelt Court: The Critical Juncture from Consensus to Dissensus

Abstract

Revisiting the Roosevelt Court: The Critical Juncture from Consensus to Dissensus PAMELA C. CORLEY, AMY STEIGERWALT, AND ARTEMUS WARD Scholars have long debated questions about the decline of consensual norms on the Supreme Court. It is widely understood that ChiefJustice John Marshall is responsible for transforming the institution from one where Justices issued their opinions seriatim—or individually—to a collegial body with a single opinion of the Court. It is also plain that the modem Court is often divided with the Justices only issuing unanimous decisions in about one-third of the cases. What remains unclear, however, is exactly when the norm of consensus ended and what caused its demise. We argue that the institutional transfor­ mation from consensus to dissensus was the result of a series of internal and external changes to the judicial decision-making process during the Roosevelt Court—a period roughly from 1937 to 1947 that was dominat­ ed by Justices appointed by President Franklin D. Roosevelt. These developments—occur­ ring both on the Court and in the broader political environment—fundamentally altered the dynamic among the Justices and forever changed the way they decided cases. The end result was the replacement of collective expression—once the long-standing norm— with individual behavior. We highlight what political scientist Paul Pierson terms a “conjuncture”—a moment in time when “discrete elements or dimensions of politics” collide to produce a new, and often unintended, effect. Specifically, we identify a number of institutional develop­ ments that dramatically altered the extent to which consensus could be achieved in the Court’s decision making.1 We trace these trends by undertaking an extensive examina­ tion ofthe Roosevelt Court—the conjuncture, or moment in time, when its ability to achieve consensus changed. Our investigation is based primarily on the private papers of Justices William O. Douglas and Harlan Fiske Stone, including memos sent between the Justices, draft opinions, and other correspondence, which we use to determine the durable shifts in the Court’s decision-making processes during REVISITING THE ROOSEVELT COURT 21 these years. Our analysis shows that various institutional changes instituted both before and during the Roosevelt Court affected the Court’s decision making and brought about and entrenched a dissensus revolution in which individual expression went from virtual nonexistence to the norm. Most scholars attribute the breakdown in the norm of consensus to internal develop­ ments: specifically, the role of individual Chief Justices. The leadership style of Chief Justice Stone is a common culprit.2 Political scientist Stacie L. Haynie argued that Stone’s predecessor—Chief Justice Charles Evans Hughes—was largely responsible.3 Gregory A. Caldeira and Christopher J.W. Zorn, also political scientists, furthered these findings by suggesting that consensual norms ebbed and flowed over time and under different Chief Justices.4 But there is other research that points to external factors such as the rise of organized interests and the change in issues that the Court began to consider—specifically the growth of the civil rights and liberties docket.5 This research suggests that a mixture of both external and internal factors combined to cause the breakdown of consensus. In short, Stone did not operate in a vacuum and his style alone cannot explain the Court’s fundamental transformation that occurred during his tenure. In the following analysis, we identify a number of heretofore-unexplored institutional changes that were imple­ mented during the Roosevelt Court. We suggest that it is these developments that so fundamentally changed the Court’s operation that a return to the norm of consensus was virtually impossible—regardless ofthe Chief Justices or the other Justices that replaced their Roosevelt Court predecessors. Table 1 shows the important institutional developments—internal and external, cause and effect—that occurred during the Roose­ velt Court era. As we detail next, once on the dissensus path, there remained only a “critical juncture” to fundamentally alter the institu­ tion.6 That moment arrived with the conjunc­ ture of the external intellectual force of legal realism, the largely discretionary docket Table 1: Institutional dissensus developments of the Roosevelt Court Causes Effects External developments • Judges’ Bill (1925): increased discretionary docket, growth in civil liberties cases • Influence of legal realism • Rapid...