The Judicial Bookshelf D. GRIER STEPHENSON, JR. Standard nomenclature in Supreme Court literature contrasts the “old Court” and the “new Court” (or, sometimes, the “modern Court”). By most accounts, the dividing line between the two falls during the years 1937-1940, when the nation witnessed a judicial and constitutional revolution. The proverbial “irresistible force” (in the form ofPresident Franklin Roosevelt’s New Deal program to cope with the Great Depression) met the “immovable object” (in the guise ofthe Supreme Court under the leadership ofChiefJustice Charles Evans Hughes that, for a short time, stymied many ofthe President’s initiatives). The result was Roosevelt’s audacious assault on the Court through the Court-packing plan and the hasty change of mind by Hughes and Justice Owen J. Roberts that gave Roosevelt the five sure votes he needed so that his agenda could receive the constitutional stamp ofapproval. This flip-flop was promptly followed by the Court’s adoption of a new agenda for itself, one that elevated civil liberties into a preferred position in the hierarchy of constitutional values and demoted property interests, which heretofore had been accorded heightened judicial protection. To be sure, the categories of old Court and new Court, as they are usually understood, are helpful in understanding a pivotal period in Supreme Court history. Yet they may ob scure as much as they reveal in grasping fun damental changes in the Court’s development across more than two centuries. For this task, perhaps the nomenclature of“classical Court” and “modern Court” (albeit with the “new” or post-1937 Court being a subset ofthe latter) is more appropriate. Compared to the relatively sudden transformationafter 1937, however, the shift from classical to modern Court occurred gradually during roughly the last thirty years of the nineteenth century. That would include the last three years of the Chase Court (18641873 ), all of Morrison Waite’s Chief Justice ship (1874-1888), and the first twelve years of the Fuller Court (1888-1910). The era ofthe classical Court was marked by (1) an exceedingly limited federal jurisdic tion, (2) a structure thatmade the Benchmainly a court oferrors, not a court oflegal policy, and (3) onerous circuit-riding duties. Those famil iarwiththehistory offederaljurisdictionknow that the great bulk of litigation in the federal courts until after the Civil War consisted of admiralty and diversity cases. The latter posed THE JUDICIAL BOOKSHELF 371 questions that would have been heard by state courts except for the fact that the parties were citizens of more than one state and because the dollar amount at issue met a threshold set by Congress. The relatively small number of cases in the Supreme Court that raised federal constitutional questions usually came from the highest court of a state; under section 25 of the Judiciary Act of 1789, these qualified for Supreme Court review only if the court below had ruled against the federal claim. Moreover, except for admiralty and a handful of other cases, the Supreme Court was the sole tribunal in existence to hear ap peals within the federal judicial system (the circuit courts were principally trial, not appel late, bodies). There was no intermediate appel late bench between the circuit courts and the Supreme Court. Thus, much of the Justices’ energy was expended reviewing trial-court de cisions, regardless of their importance. Every case in federal court, it seemed, had an equal claim on the Supreme Court’s time, unless it was a criminal case.1 The burden of review by right of an everexpanding number ofcircuit-court rulings was compounded by the system ofjudicial staffing that Congress had decreed in 1789. There were three types of federal courts (district, circuit, and Supreme Court), but only two types of federal judges (district judges and Supreme Court Justices). A circuit court for a district was staffed by the local district judge and, af ter 1793,2 a Supreme Court Justice assigned to that circuit. Except for a brief period in 1801 when Congress created separate circuit judgeships (before a new Congress repealed that measure in 1802) and a distance-driven creation of a circuit judgeship for California in 1855, there were no distinct circuit judges until 1869, when Congress also reduced...