The Hughes Court Docket Books: The Early Terms, 1929–1933

Abstract

The Hughes Court Docket Books: The Early Terms, 1929-1933 BARRY CUSHMAN For many years, the docket books kept by a number of the Hughes Court Justices have been held by the Office of the Curator of the Supreme Court. Yet the existence ofthese docket books was not widely known, and access to them was highly restricted. In April of 2014, however, the Court adopted new guidelines designed to increase access to the docket books for researchers. This article offers a report and analysis based on a review of all of the docket books that the Curator’s Office holds for the early Hughes Court, comprising the 1929-1933 Terms. Only one of the entries in these docket books has been examined and reported on before.1 This article canvasses the available docket book entries relevant to what scholars commonly regard as the major decisions of the early Hughes Court.2 This review in­ cludes fifty-nine cases concerning areas of law as diverse as the Commerce Clause, the dormant Commerce Clause, substantive due process, equal protection, fair trade, labor relations, intergovernmental tax immunities, criminal procedure, civil rights, and civil liberties. The information in the docket books sheds particularly fascinating new light on decisions such as Nebbia v. New York,3 Home Bldg. & Loan Assn. v. Blaisdell? New State Ice Co. v. Liebmann,5 Powell v. Alabama,6 Nixon v. Condon3 and Burnet v. Coronado Oil & Gas Co? In addition, for these and the many other cases examined, this article also reports on whether a unanimous decision was also free from dissent at conference or became so only because one or more Justices acquiesced in the judgment of their colleagues, as well as on whether nonunanimous decisions were divided by the same vote and with the same alliances at conference. The docket books also provide records of instances in which a case that initially was assigned to one Justice was later reassigned to another. These records afford us some insight into the kinds of cases in which this tended to occur, and provide an opportu­ nity to document for the first time the long held suspicion that the notoriously slowwriting Justice Van Devanter frequently was relieved of his opinions by the Chief Justice. 104 JOURNAL OF SUPREME COURT HISTORY By examining the docket books for the early Hughes Court (pictured in 1930), comprising the 1929-1933 Terms, the author was able to report whether a unanimous decision was also free from dissent at conference or became so only because one or more Justices acquiesced in the judgment of their colleagues, as well as on whether non-unanimous decisions were divided by the same vote and with the same alliances at conference. The docket books also provide records of instances in which a case that initially was assigned to one Justice was later reassigned to another. A review of the early Hughes Court docket books also makes possible two contributions to the political science literature on judicial behavior. The first is to the scholarship on vote fluidity and unanimity norms in the Supreme Court. It is widely agreed that the period from the Chief Justiceship of John Marshall through that of Charles Evans Hughes was characterized by a “norm of consensus,” “marked by individual justices accepting the Court’s majority opinions.”9 It is generally believed that this norm ofconsensus collapsed early in the ChiefJusticeship ofHarlan Fiske Stone,10 though some scholars have pointed to causes that antedate Stone’s elevation to the center chair.11 Still others have suggested that there may have been “an earlier, more gradual change in norms” on the late Taft and Hughes Courts.12 Political scientists who have had access to the docket books ofvarious Justices serving on other Courts have demonstrated that much of the consensus achieved by the Court throughout its history has resulted from the decision of Justices who had dissented at conference to join the majority’s ultimate disposition. A substantial body of literature shows that Justices commonly have changed their votes between the conference and the final vote on the merits.13 Of the different types of vote fluidity between the conference vote and the final vote on the merits in major...