Previous article FreeInside the “Constitutional Revolution” of 1937Barry CushmanBarry Cushman Search for more articles by this author PDFPDF PLUSFull Text Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinked InRedditEmailQR Code SectionsMoreThe nature and sources of the New Deal Constitutional Revolution are among the most discussed and debated subjects in constitutional historiography. Scholars have reached significantly divergent conclusions concerning how best to understand the meaning and the causes of constitutional decisions rendered by the Supreme Court under Chief Justice Charles Evans Hughes.1 Though recent years have witnessed certain refinements in scholarly understandings of various dimensions of the phenomenon, the relevant documentary record seemed to have been rather thoroughly explored. Judicial opinions, case records and appellate briefs, congressional hearings and debates, scholarly and popular commentary, and the papers of the Justices all had been examined in considerable detail. Though further review of the papers of government lawyers promised to shed additional light on aspects of the period’s legal and constitutional development, it appeared that the portion of the documentary record illuminating the intentional states of the Justices had been exhausted.Recently, however, a remarkably instructive set of primary sources has become available. 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 of these 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. These docket books supply a wealth of information concerning the internal deliberations of the Justices, much of which has been analyzed in detail elsewhere.2 This article considers what the docket books can teach us about the cases comprising what some have called the “switch-in-time”: West Coast Hotel Co. v Parrish,3 which upheld Washington state’s minimum-wage law for women and overruled Adkins v Children’s Hospital;4 the Labor Board Cases,5 which upheld the constitutionality of the National Labor Relations Act;6 and the Social Security Cases,7 which upheld the constitutionality of provisions of the Social Security Act8 establishing an old-age pension system and a federal-state cooperative plan of unemployment insurance, as well as corresponding state unemployment compensation statutes.During the 1936 October Term, the Court’s personnel consisted of Chief Justice Hughes and Associate Justices Willis Van Devanter, James Clark McReynolds, Louis D. Brandeis, George Sutherland, Pierce Butler, Harlan Fiske Stone, Owen J. Roberts, and Benjamin N. Cardozo. For the 1936 Term, the Office of the Curator’s collection contains the docket books of five of these Justices. Unfortunately, the docket books of Chief Justice Hughes and Justices Sutherland and Cardozo do not appear to have survived, and it seems that for the 1936 Term Justice McReynolds followed his regular practice of burning his docket book at the conclusion of each Term.9 Though Van Devanter’s docket book for the Term survives and contains entries for most of the cases decided by the Court that year, it contains no records of conference votes or conference discussion. As a consequence, it is of little use to the historical researcher.The collection does, however, contain the Term’s docket books kept by Justices Stone, Roberts, Brandeis, and Butler. The Stone docket book contains records of the conference votes in most cases, and occasionally some notes on the remarks made by colleagues during conference discussions. The Roberts docket book similarly contains records of the conference votes in most cases, along with an occasional but none-too-frequent note on conference discussions. Professor Paul Freund, who clerked for Justice Brandeis during the 1932 Term, reported that for most of his judicial career the Justice destroyed his docket books at the end of each Term.10 Brandeis discontinued this practice toward the end of his tenure, however, and as a result the Curator’s collection holds his docket book for the 1936 Term. Brandeis’s docket book contains records of the conference votes in most cases, along with occasional notes on conference discussions. Regrettably, in some instances the Justice’s notes on the conference discussion are obscured by a pasted-over, typed account of the ultimate disposition.The Curator’s collection also contains Justice Butler’s docket book for the 1936 Term. Butler’s docket book provides not only a record of conference votes, but also a remarkably rich set of notes on conference discussions. These notes corroborate numerous accounts of Hughes’s conduct of the Court’s conferences,11 at which the Chief Justice would begin with a masterful presentation of the facts and issues in each case and a statement of his own views of how those issues should be resolved. The Justices next would present their own views in descending order of seniority, and finally would cast their votes in ascending order of seniority, with Hughes voting last. Butler’s notes therefore often consist principally of the Chief Justice’s remarks, which help to compensate for the fact that Hughes’s docket books and Court papers have not survived.12Considered in concert with information previously known, the data revealed by these four docket books shed considerable new light on the nature of the Court’s deliberations in each of these three sets of cases. Let us take up each of them in turn.I. The Minimum-Wage CasesIn the June 1936 decision in New York ex rel. Morehead v Tipaldo, Justice Roberts voted with the Four Horsemen (Van Devanter, McReynolds, Sutherland, and Butler) to strike down New York’s minimum-wage law for women. In the March 1937 decision in West Coast Hotel Co. v Parrish, by contrast, Roberts joined the four Tipaldo dissenters to uphold Washington state’s minimum-wage law for women. This “switch” calls out for an explanation, and in 1945, the year of his retirement from the Court, Roberts supplied one at the request of Felix Frankfurter.13 Roberts explained in his 1945 memorandum that the New York attorney general had not requested that the Court overrule Adkins v Children’s Hospital, but that in West Coast Hotel “the authority of Adkins was definitely assailed and the Court was asked to reconsider and overrule it.”14 For many, the takeaway from the memorandum was that the fault for the result in Tipaldo lay not with the Court but instead with New York’s timorous lawyers.It was true that the New York attorney general had not asked the Justices to overrule Adkins. It also was true that in its opinion upholding the statute in West Coast Hotel, the Washington state supreme court had effectively declared that Adkins already had been overruled. As Chief Justice Hughes put it: “The state court has refused to regard the decision in the Adkins case as determinative and has pointed to our decisions both before and since that case as justifying its position.”15 It was true as well that counsel for the party challenging the Washington statute observed that “the issue before this Court is simply whether the Adkins case is to be reconsidered and reversed or whether its authority is to be sustained.”16 And because the Washington statute was substantially identical to the law struck down in Adkins, it is difficult to see how the Court could have affirmed the state court without overruling Adkins. But despite all of this, the fact that New York’s lawyers had not requested that Adkins be overruled was not particularly helpful to Roberts’s explanation. For there was no denying that neither the brief for the party defending the statute in West Coast Hotel, nor the amicus curiae brief filed by the attorneys for the state of Washington, had requested that Adkins be overruled.17 In that respect, the litigation posture of West Coast Hotel was no different from that in Tipaldo.Other evidence, however, suggests a different explanation. As I have noted, the Roberts memorandum is not without its difficulties, but some of the Justice’s recollections point toward the understanding ultimately articulated by his later confidante, Felix Frankfurter. Roberts reported that at the conference at which certiorari was granted in Tipaldo, he told his colleagues that he “saw no reason to grant the writ unless the Court were prepared to re-examine and overrule the Adkins case.”18 This suggests that it was not Roberts’s position that he would not confront the issue of Adkins’s continuing authority unless the state asked him to. This remark suggests instead that Roberts was prepared to consider the question of whether Adkins should be overruled, but that he would not join an opinion upholding the New York measure on the ground that it was distinguishable from the statute invalidated in Adkins. Roberts’s memorandum recounts that he stated at the conference following the argument in Tipaldo that he was “unwilling to put a decision” on the ground for which New York had contended, namely, that the two statutes could be meaningfully distinguished.19 But that was precisely the ground upon which Hughes planted his flag.20 Hughes was famously averse to overruling precedents where he did not regard it as absolutely necessary, and he has been subject to criticism for the distinctions he sometimes fashioned in order to avoid such official disruptions to the Court’s doctrine.21 In his dissenting opinion in Tipaldo, Hughes insisted that the two statutes were distinguishable, and he therefore refused to entertain the question of whether Adkins should be overruled.22 And though Brandeis, Stone, and Cardozo joined this opinion,23 Hughes declined to join them in Stone’s dissent calling for Adkins to be overruled.24 This caused Stone to complain that it was “‘a sad business to stand only on differences of the two statutes,’” and that he “could not understand why ‘the Chief Justice felt it necessary to so limit his opinion.’”25Roberts was the author of the landmark due process decision in Nebbia v New York, which many observers believed had implicitly overruled Adkins.26 Commentators therefore expressed considerable surprise when he joined the Tipaldo majority,27 and a satisfied sense of resolution when he voted to uphold the Washington statute the following year.28 In a letter to Paul Freund written in 1953, Frankfurter explained the reason for the Tipaldo hiccup on the road from Nebbia to West Coast Hotel. “The fact is that Roberts did not switch. He was prepared in Tipaldo to make a majority overruling Adkins. He was not prepared to distinguish Adkins. Because there was no majority for overrruling Adkins he was in the majority in the Morehead case. …”29 Two years later, in the University of Pennsylvania Law Review, Frankfurter announced publicly that “when the Tipaldo case was before the Court in the spring of 1936,” Roberts “was prepared to overrule the Adkins decision. Since a majority could not be had for overrruling it, he silently agreed with the Court in finding the New York statute under attack in the Tipaldo case not distinguishable from the statute which had been declared unconstitutional in the Adkins case.”30 In Frankfurter’s accounting, Roberts had not believed that the Court could legitimately sustain the New York statute unless a majority of the Justices was prepared to overrule Adkins. Because there was not such a majority, he acquiesced in an opinion invalidating the statute on the authority of Adkins, just as Stone and Adkins dissenters Chief Justice William Howard Taft and Justices Oliver Wendell Holmes, Jr. and Edward Terry Sanford had in the 1920s—even when state attorneys had specifically requested that the Court overrule Adkins.31This explanation suggested that the reason for the outcome in Tipaldo rested not with the litigation strategy of the New York attorney general, but instead with Hughes’s refusal to confront the question of whether Adkins should be overruled. When Hughes got his “shot at redemption”32 later that same year, however, he certainly made the most of it. Butler typically did not keep notes of remarks made during discussions concerning whether to grant certiorari or note probable jurisdiction, but when the Justices met on October 10, 1936 to decide whether to hear West Coast Hotel, he did. The case came up on appeal rather than on certiorari, so the issue was whether to note probable jurisdiction. Appeals remained an area of the Court’s nominally mandatory jurisdiction, but a 1936 treatise on the Court’s jurisdiction that Hughes had commissioned two of his former clerks to prepare reminded its readers that the Court would not note probable jurisdiction unless the case presented a “substantial federal question.”33 The Court would reject a case where the federal question involved was “frivolous,” or where the question was “deemed to be foreclosed by well settled principles enunciated in prior decisions.”34 As then-Professor Frankfurter and James Landis had put it in an article published in 1930, counsel were obliged to “persuade the Court that the record presents an issue that is not frivolous and is not settled by prior decisions.”35This was the question with which the Court was faced at the conference on probable jurisdiction that October. The principles articulated in Adkins would have appeared to be well settled. They had been affirmed in per curiam decisions in 1925 and again in 1927,36 and had been vigorously championed by Butler’s majority opinion in Tipaldo only four months earlier. Yet Butler records Hughes as presenting the case to the conference with the statement, “This case is under Adkins rather than Tipaldo.”37 Tipaldo, he appeared to assert, did not actually settle the precise principles set out in Adkins, because the statutes involved in the two cases had differed materially. Nevertheless, those principles had been settled in Adkins and the two per curiam decisions handed down shortly thereafter, and if they were to be affirmed again, West Coast Hotel might have been handled by a simple summary reversal. But the Court instead noted probable jurisdiction and set the case down for briefing and argument.38At the December 19 conference after oral argument in West Coast Hotel, Hughes made clear why he had wanted to hear the case. Butler recorded the Chief as asking, “Can Adkins be distinguished.” Hughes maintained that the argument in favor of the statute “that [the] Hotel [was a public] utility etc. [was] not good.” It offered a “Possible but not satisfactory distinction” from Adkins. “Then” Hughes raised the question, “should Adkins be overruled.” He indicated that he “Agreed with Taft’s [dissenting] op[inion]” in Adkins. “J’s opn has more weight now.” Those challenging the statute had “not shown” that the “Reasonable value” of the employee’s labor was “less than [a] living wage.” In concluding his argument in favor of overruling Adkins, Hughes “Cited other instances of overruling.”39 Brandeis did not often take notes of remarks made during conference discussions, but on this occasion he wrote, “CJ thinks we should overrule Adkins Case.”40The public reaction to Tipaldo had been very unfavorable. Out of 344 newspaper editorials on the decision, only ten supported it. Some sixty of these publications, including some of the more conservative, called for a constitutional amendment to overturn it. Even Herbert Hoover stated in response to the decision that “something should be done to give back to the states the powers they thought they already had.”41 The Republican party’s 1936 campaign platform included a plank favoring minimum wages for women and children, and the party’s presidential candidate, Alf Landon, endorsed such legislation in his telegram to the convention accepting the party’s nomination.42 The public outcry following Tipaldo was simply of a different order than the criticism that had been leveled at the Court for earlier decisions invalidating New Deal measures.Though Frankfurter maintained that Roberts had been prepared in Tipaldo to face squarely the issue of whether Adkins should be overruled, some scholars have suggested that it was the strength of the public reaction to Tipaldo that prompted Roberts to take that step in West Coast Hotel.43 The docket books do not enable us to evaluate that hypothesis with respect to Roberts, but they do with respect to Hughes. At the October 10 conference on whether to note probable jurisdiction in West Coast Hotel, Butler records Hughes as saying, “Public mind much disturbed—Campaign.”44 The reference to “Campaign” is a bit obscure, but it presumably refers to the fact that both of the major political parties were exercised about the issue and critical of the Tipaldo decision. But there can be no doubt that the mention of the “disturbed” state of the “public mind” refers to the response to Tipaldo. None of the docket books records Hughes as raising such considerations during the deliberations on the merits in West Coast Hotel, nor have I seen in any of the docket books records of this sort of consideration being raised in any other case. Indeed, in view of Hughes’s record in cases involving due process, it seems very likely that if he had confronted the question of whether Adkins should be overruled in the spring of 1936, he would have determined that it should. It did not take the reaction to Tipaldo to persuade Hughes that Adkins was wrong on the merits. But his remarks at the conference on probable jurisdiction suggest that that reaction may have played at least some role in his determination to confront the issue of Adkins’s continuing authority in West Coast Hotel.45In any event, the docket books reveal that, whereas in Tipaldo Hughes refused to confront the question of whether Adkins should be overruled, in West Coast Hotel Hughes took the lead in urging his colleagues to confront and overrule that precedent. This may help to resolve a difficulty with the account that attempts to shift the blame for Tipaldo to the New York attorney general for failing to request that the Court overrule Adkins. Several commentators who question that account have rightly observed that in 1938 Roberts voted in Erie Railroad v Tompkins46 to overrule the nearly century-old precedent of Swift v Tyson47 even though neither of the parties had challenged the vitality of that decision.48 The docket book accounts in West Coast Hotel, however, suggest that Erie may support rather than impeach the claim that Roberts was consistent in these matters. For when Hughes presented Erie to the conference, he announced that, “If we wish to overrule Swift v Tyson, here is our opportunity.”49 Perhaps in part as a result of Hughes’s leadership—which may have been prompted by his experience in Tipaldo—a majority to overrule Swift was assembled. In Tipaldo, by contrast, Hughes played an isolated, idiosyncratic role in the deliberations and did not take the lead in confronting Adkins. As a result, no majority to overrule that decision could be assembled. But in West Coast Hotel, even though none of the litigants had requested that Adkins be overruled, Hughes played the kind of leadership role that he would in Erie. The explanation for Roberts’s “switch” in the minimum-wage cases thus would appear to lie not in the litigation strategies of the parties, but instead in the conduct of the Chief Justice.50II. The Labor Board CasesNo less celebrated than West Coast Hotel were four sharply divided decisions in which the Court upheld the government in cases testing the constitutionality of the National Labor Relations Act (NLRA): NLRB v Jones & Laughlin Steel Corp.,51 which upheld application of the act to a large steel manufacturer; NLRB v Fruehauf Trailer Co.,52 upholding application of the act to a midsized company making trailers; NLRB v Friedman-Harry Marks Clothing Co.,53 upholding application of the act to a small clothing manufacturer in Richmond, Virginia; and Associated Press v National Labor Relations Board,54 upholding the act’s application to a major wire service notwithstanding the company’s First Amendment objections. Unfortunately, in all but the Associated Press case, the docket books are not very revealing about the conference deliberations. Brandeis did not record the vote in any of the cases.55 Stone and Roberts recorded only that each vote was 5–4, with the Four Horsemen dissenting.56 Butler recorded the vote in each case, as well as some remarks of Hughes concerning the Jones & Laughlin case. According to Butler’s notes, Hughes stated: “Extensive operations. Aliqippa Local not I.C. [interstate commerce] normally under control of state. Power ‘to protect’ against direct burden.”57Butler preserved lengthy notes on the conference discussion in Associated Press, however, presumably in part because it appears to have been the one of the Labor Board Cases in which the Justices considered whether the NLRA was facially invalid.58 After laying out some of the facts, Hughes posed the question, “Is it [the NLRA] void on its face?” In order to answer that question, he next “examined [the] Act,” noting that it covered labor disputes that “affect ‘Commerce,’” which section 6 of the act “defines classically.” “But for this”—determining whether a labor dispute was one “‘affecting com[merce]’”—Hughes continued, “ct. is to say what is permissible.” This was because the statute “Refers to [the] constitutional range of power.” The question was, “Is each legitimate?” To be such, the effect of the dispute “must be so ‘immediate and direct’ as to affect com[merce].” The aim of the act, Hughes observed, was to “Protect employ[ee]s in bargaining.” He then added that “‘agencies and instrumentalities’” of commerce “are like the principal.” Both were “interstate com[merce].” Thus, Hughes concluded, the act was “not void on [its] face.”59Hughes next asked, “Is A.P. engaged in i.c. [interstate commerce]?” Here Hughes “Referred to cases on trans[portation] unions [illegible] intelligence.” He “Used illustration to show state law can not burden A.P. [pre]dominantly in i.c.” “Then (passing A.P.[’s] 5th Am. [objection]),” Butler noted parenthetically, Hughes took up the question of “Freedom of Press.” Here, he maintained, there was “no compulsion”—the requirement was “only to have representation.” “Membership [in a union] does[n’t] in itself interfere with freedom of Press,” Hughes argued. AP’s “Right of discharge must be saved except for membership.” Hughes therefore concluded that the Circuit Court’s decision upholding the act should be affirmed.60Van Devanter spoke next, and he voiced disagreement neither with Hughes’s analysis of the statute’s facial validity, nor with his Commerce Clause analysis of the act as applied to the Associated Press (AP). Neither did he defend AP’s Fifth Amendment objections to the statute. Instead, he argued that the Circuit Court should be “Reverse[d] solely on [the] ground of interference with freedom of [the] press.” AP was in the business of “forming” and “shaping” the news, and in order to do so “impartially & fairly” it was under a “Duty” to have “unbiased employees.” For this reason, Van Devanter argued, “A.P. can oppose unions.” McReynolds agreed that the “Freedom [of the] Press [argument was] good.” He also maintained that AP was “a partnership” and “can employ whom they please.” Finally, Sutherland agreed that “A.P. can follow any policy it please.”61 So far as Butler’s notes reveal, none of the Four Horsemen maintained that the AP was not engaged in interstate commerce. In the end, Sutherland’s dissent for his fellow Horsemen confined itself to the First Amendment issue, expressly without meaning “thereby to record our assent to all that has been said with regard to other questions in the case.”62Perhaps the most interesting fact that the docket books reveal about the conference on the Labor Board Cases is the date on which it took place. The cases were argued on February 9, 10, and 11—in the immediate wake of President Roosevelt’s February 5 announcement of his Court-packing plan—and many scholars have contended that they were decided in the government’s favor due to the pressure brought to bear by FDR’s proposal.63 In the ordinary course, the Labor Board Cases probably would have been discussed and voted on at the conference held on the Saturday following oral argument.64 In this instance, that would have been February 13, still in the early days of the plan’s life, when many of its proponents were most optimistic about its prospects for passage. The Justices did meet for conference on February 13, and they voted on at least six cases, including Herndon v Lowry65 and Hartford Steam Boiler, Inspection, & Ins. Co. v Harrison.66 But they did not discuss the Labor Board Cases. Nor did they discuss those cases on the following Saturday, February 20. Indeed, it does not appear that the Justices even met for conference on that day—the docket books contain no record for that date of any votes on or discussions of cases.67 Instead, the conference at which the discussion and vote on the Labor Board Cases took place was held on Saturday, February 27.68The docket books do not disclose the reasons for the delay in the Court’s deliberations, but the two weeks between February 13 and February 27 witnessed important developments in the fortunes of the Court-packing plan. By February 13 there were already significant reasons to doubt that the President’s plan would be enacted by Congress. There was the nearly unanimous denunciation of the plan in the media.69 There was the deluge of mail and telegram traffic into congressional offices that ran heavily against the plan.70 There was the comparable flood of supportive correspondence addressed to the Justices.71 There was the very public opposition of the Chairman of the House Judiciary Committee, Hatton Sumners of Texas.72 There was the passage by the House on February 10 of a previously stalled judicial pension bill that opponents of the plan hoped would defuse the crisis by creating an attractive inducement to retirement for some of the elderly Justices.73 There was the public opposition to the bill by every Republican member of the Senate, and by nearly twenty of their conservative Democratic colleagues.74 And on February 13 came the announcement that liberal Democratic Senator Burton Wheeler of Montana would lead the fight in opposition to the President’s bill.75By February 13 Hughes and his colleagues were aware of two additional, highly salient pieces of information. First, they knew that the factual predicate for the President’s proposal was vulnerable to challenge. In his message to Congress, Roosevelt had charged that the Court was failing to deliver “full justice” because it was “forced by the sheer necessity of keeping up with its business to decline, without even an explanation, to hear 87 percent of the cases presented to it by private litigants.”76 The appointment of additional Justices, Roosevelt contended, was necessary in order to relieve and eliminate this “congestion” on the Court’s calendar by “supplement[ing] the work of older judges and accelerat[ing] the work of the court.”77 Brandeis, who as the Court’s sole octogenarian was deeply offended by Roosevelt’s claim that he and his elderly colleagues had been failing to discharge their duties with alacrity, later suggested to Wheeler that he solicit a letter from the Chief Justice answering the President’s allegations. Hughes agreed to Wheeler’s request,78 and Wheeler read Hughes’s letter to great effect when the opponents of the bill opened their testimony at the hearings before the Senate Judiciary Committee on March 22.Hughes’s letter reported that the Court was “fully abreast of its work,” that there was “no congestion of cases upon our calendar,” and that in fact “[t]his gratifying condition has obtained for several years. We have been able for several Terms to adjourn after disposing of all cases which are ready to be heard.”79 Responding to the charge that the Justices had declined to grant meritorious petitions for certiorari, Hughes insisted that the contrary was the case. The Court had been, if anything, too liberal in accepting cases for review. Indeed, many of the petitions denied had been so wholly lacking in merit that they ought never to have been presented for consideration.80 Moreover, Hughes observed, an “increase in the number of Justices of the Supreme Court … would not promote the efficiency of the Court.” Indeed, the Chief Justice maintained that “it would impair that efficiency so long as the Court acts as a unit. There would be more judges to hear, more judges to confer, more judges to discuss, more judges to be convinced and to decide. The present number of Justices is thought to be large enough so far as the prompt, adequate, and efficient conduct of the work of the Court is concerned.”81Robert Jackson later remarked that Hughes’s letter “did more than any one thing to turn the tide in the Court struggle.”82 Shortly after Wheeler had read the letter before the Judiciary Committee, Vice-President John Nance Garner telephoned FDR at Warm Springs to tell him, “We’re licked.”83 Though Hughes and his brethren could not be certain that they would have the opportunity to refute Roosevelt’s charges in a public forum, they must have anticipated early on both the possibility and the likely effect.The second salient fact about which the Justices had inside information by February 13 was the result in the pending minimum-wage case of West Coast Hotel Co. v Parrish. They knew that Hughes and Roberts had joined Brandeis and Cardozo in voting to uphold the law at the conference on December 19, and they knew that th