The constitution, the supreme court, and the new deal

American Historical Review

Volumn 110, Issue 4, 2005, Pages 1052-1079

  Kalman, Laura ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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[No Author keywords available]

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EID: 33749832014     PISSN: 00028762     EISSN: None     Source Type: Journal    
DOI: 10.1086/ahr.110.4.1052     Document Type: Review

References (284)

1. Morton Horwitz, Foreword, "The Constitution of Change: Legal Fundamentality without Fundamentalism," Harvard Law Review 107 (1993): 32-117, 116.
2. Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398 (1934) (upholding the Minnesota Moratorium Law of 1933, which provided for a conditional moratorium on debtors' mortgage payments against a charge that it violated the contracts clause);
3. Nebbia v. New York, 291 U.S. 502 (1934) (upholding emergency New York legislation during the Depression that set milk prices against the claim that it violated due process);
4. A.L.A. Schechter Poultry Corp. v. U.S., 295 U.S. 495 (1935) (invalidating the National Industrial Recovery Act because the statute unconstitutionally delegated legislative power to the president, and the poultry code at issue had only an indirect connection to interstate commerce);
5. U.S. v. Butler, 297 U.S. 1 (1936) (striking down the processing tax at the heart of the Agricultural Adjustment Act);
6. Railroad Retirement Board v. Alton Railroad Company, 295 U.S. 330 (1935) (striking down the Railroad Retirement Act of 1934 as a violation of the Fifth Amendment's due process clause and the commerce clause);
7. Daniel Farber, "Who Killed Lochner? The Constitution and the New Deal," Georgetown Law Journal 90 (2002): 985-1005, 985 ("progeny" );
8. Lochner v. New York, 198 U.S. 45 (1905);
9. Adkins v. Children's Hospital, 261 U.S. 525 (1923) (invalidating the District of Columbia's minimum wage for women and children);
10. Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936) (applying Adkins to strike down a New York minimum wage law for women);
11. West Coast Hotel v. Parrish, 300 U.S. 379 (1937) (upholding the Washington State minimum wage law for women);
12. Bruce Ackerman, We the People: Transformations (Cambridge, Mass., 1998), 342 ("Lochnerian");
13. James Henretta, "Charles Evans Hughes and the Strange Death of Liberal America," Law and History Review 24 (forthcoming, 2006) (developing the argument about the break with progressivism);
14. Barry Friedman, "The History of the Countermajoritarian Difficulty, Part Four: Law's Politics," Pennsylvania Law Review 148 (2000): 971-1064, 1026, n. 247 (Frankfurter). The phrase "constitutionalizing the New Deal," of course, leaves unanswered the questions of what the New Deal and its constitutional vision were.
15. See Colin Gordon, "Rethinking the New Deal," Columbia Law Review 98 (1998): 2029-2053, 2033-2036;
16. William Forbath, "The New Deal Constitution in Exile," Duke Law Journal 51 (2001): 165-221.
17. NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937) (upholding the National Labor Relations Act of 1935, which guaranteed collective bargaining rights to employees producing goods for interstate commerce, and one of a series of cases involving the National Labor Relations Act;
18. the others were NLRB v. Fruehauf Holding Trailer Co., 301 U.S. 49 [1937];
19. NLRB v. Friedman-Harry Marks Clothing Co., 301 U.S. 58 [1937];
20. Associated Press v. NLRB, 301 U.S. 103 [1937];
21. Washington, Virginia & Maryland Coach Co. v. NLRB, 301 U.S. 142 [1937]);
22. Carter v. Carter Coal Co., 298 U.S. 238 (1936) (striking down the Guffey Coal Act's wage, hours, and price regulation provisions; see especially the majority opinion at 302 insisting that "[m]ining is not interstate commerce, but like manufacturing, is a local business, subject to local regulation and taxation");
23. Steward Machine Co. v. Davis, 301 U.S. 548 (1937) (unemployment insurance);
24. Helvering v. Davis, 301 U.S. 619 (1937) (old-age insurance);
25. and see Carmichael v. Southern Coal & Coke Co., 301 U.S. 495 (1937) (upholding an Alabama state unemployment insurance act).
26. Joseph Alsop and Turner Catledge, The 168 Days (New York, 1938), 147, 143, 206;
27. Leonard Baker, Back to Back: The Duel between FDR and the Supreme Court (New York, 1967), 179 ("defeated");
28. Edward Corwin, Constitutional Revolution, Ltd. (Claremont, Calif., 1941), 12, 64;
29. Benjamin Wright, The Growth of American Constitutional Law (New York, 1942), 200-208, 256-258.
30. Felix Frankfurter, "Mr. Justice Roberts," University of Pennsylvania Law Review 104 (1955): 311-317;
31. and see Michael Ariens, "A Thrice-Told Tale, or Felix the Cat," Harvard Law Review 107 (1994): 620-676,
32. coming close to suggesting that Frankfurter himself wrote the Roberts memorandum, a theory that Richard Friedman has disputed in "A Reaffirmation: The Authenticity of the Roberts Memorandum, or Felix the Non-Forger," University of Pennsylvania Law Review 142 (1994): 1985-1995;
33. Charles Evans Hughes, The Autobiographical Notes of Charles Evans Hughes, ed. David Danelski and Joseph Tulchin (Cambridge, Mass., 1973), 313 ("independence");
34. Merlo Pusey, Charles Evans Hughes, 2 vols. (New York, 1951), 2: 766-772;
35. John Chambers, "The Big Switch: Justice Roberts and the Minimum-Wage Cases," Labor History 10 (1969): 44-73.
36. Paul Murphy, "Time to Reclaim: The Current Challenge of American Constitutional History," AHR 69 (October 1963): 64-79.
37. Early revisionists included Alan Jones, Charles McCurdy, and Michael Les Benedict. Alan Jones, "Thomas M. Cooley and the Interstate Commerce Commission: Continuity and Change in the Doctrine of Equal Rights," Political Science Quarterly 81 (1966): 602-627;
38. "Thomas M. Cooley and the Michigan Supreme Court, 1865-1885," American Journal of Legal History 10 (1966): 97-121;
39. "Thomas M. Cooley and 'Laissez-Faire Constitutionalism': A Reconsideration," Journal of American History 53 (1967): 751-771;
40. Charles McCurdy, "Justice Field and the Jurisprudence of Government-Business Relations: Some Parameters of Laissez-Faire Constitutionalism, 1863-1897," Journal of American History 61 (1976): 970-1005;
41. "American Law and the Marketing Structure of the Large Corporation, 1875-1890," Journal of Economic History 38 (1978): 631-649;
42. "The Knight Sugar Decision of 1895 and the Modernization of American Corporation Law, 1869-1903," Business History Review 53 (1979): 304-342;
43. Michael Les Benedict, "Laissez-Faire and Liberty: A Re-evaluation of the Meaning and Origins of Laissez-Faire Constitutionalism," Law and History Review 3 (1985): 293-331.
44. For Warren, see William Novak, "The Legal Origins of the Modern American State," in Austin Sarat, Bryant Garth, and Robert Kagan, eds., Looking Back at Law's Century (Ithaca, N.Y., 2002), 249-283, 262;
45. for Lochner as an exception, see John Semoneche, Charting the Future: The Supreme Court Responds to a Changing Society, 1890-1920 (Westport, Conn., 1978), 181, 429-430, 434;
46. Melvin Urofsky, "Myth and Reality: The Supreme Court and Protective Legislation in the Progressive Era - A Reinterpretation," 1983 Yearbook of the Supreme Court Historical Society, 53-72;
47. and Urofsky, "State Courts and Protective Legislation in the Progressive Era," Journal of American History 72 (1985): 63-91.
48. For excellent surveys of this literature, which discusses later revisionist work as well, see William Wiecek, The Lost World of Classical Legal Thought: Law and Ideology in America 1886-1937 (New York, 1998), 254-270;
49. Gary Rowe, "The Legacy of Lochner: Lochner Revisionism Revisited," Law & Social Inquiry 24 (1999): 221-252;
50. Barry Friedman, "The History of the Countermajoritarian Difficulty, Part Three: The Lesson of Lochner" New York University Law Review 76 (2001): 1383-1455;
51. Stephen Siegel, "The Revision Thickens," Law and History Review 20 (2002): 631-637.
52. The most important of these were Leuchtenburg, "The Origins of Franklin D. Roosevelt's 'Court-Packing' Plan," The Supreme Court Review, 1966, 347-399;
53. Leuchtenburg, "FDR's 'Court-Packing' Plan," in Harold Hollingsworth and William Holmes, eds., Essays on the New Deal (Austin, Tex., 1969), 69-115;
54. and Leuchtenburg, "FDR's Court-Packing Plan: A Second Life, a Second Death," Duke Law Journal 1985 (1985): 673-689.
55. Versions of these essays were included in Leuchtenburg, The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt (New York, 1995).
56. Michael Parrish provided an excellent survey of the earlier literature about Court packing in history and political science, while noting the tendency of revisionist political historians of the New Deal to ignore it, in "The Hughes Court, the Great Depression, and the Historians," The Historian 40 (1977): 286-308.
57. Parrish himself made the case for a "constitutional revolution of 1937," while also crediting the Hughes Court with important advances in civil liberties and civil rights, in "The Great Depression, the New Deal, and the American Legal Order," Washington Law Review 59 (1984): 723-750, 728-735.
58. Parrish has reevaluated the evidence more recently in light of the internalist evidence in The Hughes Court: Justices, Rulings, and Legacy (Santa Barbara, Calif., 2002).
59. He suggests that the Court-packing plan and "external" political events, such as "rising Democratic majorities in Congress, Roosevelt's decisive reelection, [and] mounting evidence of real class warfare," including the sit-down strikes of December 1936-1937, may have influenced the Court's 1937 decisions, while maintaining that neither Hughes nor Roberts engaged in "a dramatic jurisprudential leap. The evidence is considerably stronger in this regard for Hughes than for Roberts, but the behavior of both justices remains something of a mystery." The Hughes Court: Justices, Rulings, and Legacy, Ibid., 178-179, 183, 38.
60. In the disagreement over the Hughes Court, its expansion of civil liberties and civil rights is not in contention. See, e.g., Leuchtenburg, The Supreme Court Reborn, 245-252;
61. Barry Cushman, "The Secret Lives of the Four Horsemen," Virginia Law Review 83 (1997): 559-584;
62. Parrish, The Hughes Court, 128, 177.
63. William Leuchtenburg, "The Great Depression and the New Deal," reprinted in Leuchtenburg, The FDR Years: On Roosevelt and His Legacy (New York, 1995), 208-235, 222-223 (Van Devanter, "adroit," " strategic");
64. Leuchtenburg, The Supreme Court Reborn, 216, 235-236.
65. Leuchtenburg, The Supreme Court Reborn, 157.
66. Leuchtenburg, The Supreme Court Reborn, Ibid., ix.
67. See Mark Leff, "Revisioning U.S. Political History," AHR 100 (June 1995): 829-853.
68. One indicator of the rebound was a 1995 OAH panel on the fortunes of political history, organized by Steven Gillon, in which Brinkley, Lizabeth Cohen, Sara Evans, Leuchtenburg, James Patterson, and I participated. The room was full. One had the feeling that political historians were celebrating our return from the wilderness. "Scholars Pack Historians' Meeting," Chronicle of Higher Education, April 14, 1995.
69. But only Leuchtenburg and I showed any interest in Court packing. Consequently, I disagree with G. Edward White, who suggests that externalists' defensiveness is a function of both the rise of "revisionist work in constitutional jurisprudence and the disaffection of current political historians with mainstream versions of the conventional account." G. Edward White, The Constitution and the New Deal (Cambridge, Mass., 2000), 22. The point is not that contemporary political historians lack interest in mainstream versions of the account. It is that they lack interest in the constitutional account, whether "mainstream" or "internalist," because "mainstreamers" and "internalists" have been so busy lobbing criticisms at each other that we have not taken the time to try to convince political historians of the relevance of New Deal constitutional history for their work.
70. Roger Corley, "Was There a Constitutional Revolution in 1937?" in Stephen Shaw, William Pederson, and Frank Williams, eds., Franklin D. Roosevelt and the Transformation of the Supreme Court (Armonk, N.Y., 2004), 36-59, 36.
71. See, e.g., David Kennedy, Freedom from Fear: The American People in Depression and War (New York, 1999) ("ideological ground"), 337 ("ideological pressure");
72. Alan Brinkley, The End of Reform: New Deal Liberalism in Recession and War (New York, 1995), 19;
73. James Davidson, William Gienapp, Christine Heyrman, Mark Lytle, and Michael Stoff, Nation of Nations: A Narrative History of the American Republic (New York, 2001), 844;
74. Conrad Black, Franklin Delano Roosevelt: Champion of Freedom (New York, 2003), 413.
75. G. Edward White, "Cabining the Constitutional History of the New Deal in Time," Michigan Law Review 94 (1996): 1392-1421, 1394, n. 6 (marginalization);
76. White, "The Arrival of History in Constitutional Scholarship," Virginia Law Review 88 (2002): 485-632, 560 ("relentlessly").
77. White links the ahistorical nature of constitutional scholarship during this period to the triumph of modernism during the 1930s, White, Virginia Law Review, ibid., 558-570;
78. discuss the approach of the legal academy to history during this period in Kalman, The Strange Career of Legal Liberalism (New Haven, Conn., 1996), 68-77.
79. See also Harry Scheiber, "Introduction: The Bicentennial and the Rediscovery of American Constitutional History," Journal of American History 74 (1987): 667-674.
80. While White has shown interest in constitutional thought, law, and judging throughout his career, he wrote at length about private law at the beginning. G. Edward White, Tort Law in America: An Intellectual History (New York, 1980).
81. Bruce Ackerman, Social Justice in the Liberal State (New Haven, Conn., 1980);
82. Ackerman, "The Storrs Lecture: Discovering the Constitution," Yale Law Journal 93 (1984): 1013-1072.
83. discuss Ackerman's intellectual journey throughout Kalman, The Strange Career of Legal Liberalism.
84. For my version of this story, see Kalman, The Strange Career of Legal Liberalism, 132-163;
85. for White's, see "The Arrival of History in Constitutional Scholarship," 570-614.
86. Planned Parenthood v. Casey, 505 U.S. 833, 862, 961-962, 998 (1992);
87. Roe v. Wade, 410 U.S. 113 (1973).
88. New York v. U.S., 505 U.S. 144 (1992) (ruling that certain provisions of the Low-Level Radioactive Waste Policy Amendments, enacted by Congress to rationalize radioactive waste disposal, exceeded congressional power and violated the Tenth Amendment);
89. U.S. v. Lopez, 413 U.S. 549 (1995);
90. Neal Devins, "Congress as Culprit: How Lawmakers Spurred On the Court's Anti-Congress Crusade," Duke Law Journal 51 (2001): 435-464, 440 ("counterrevolution");
91. Thomas Keck, The Most Activist Supreme Court in History: The Road to Modern Judicial Conservatism (Chicago, 2004), 40, 203-208;
92. Barry Friedman, "The Cycles of Constitutional Theory," Law and Contemporary Problems 67 (2004): 149-174, 162 ("All" [emphasis in the original], "early");
93. Jeffrey Rosen, "The Unregulated Offensive," New York Times, April 17, 2005, sec. 6, col. 1, 42 ("Constitution in exile" movement);
94. see also Randy Barnett, Restoring the Lost Constitution: The Presumption of Liberty (Princeton, N.J., 2004).
95. Of course, there were also progressive "shadow constitutions or constitutions-in-exile." Mark Graber, "Rethinking Equal Protection in Dark Times," University of Pennsylvania Journal of Constitutional Law 4 (2002): 314-339, 334;
96. Forbath, "The New Deal Constitution in Exile";
97. Mark Tushnet, Taking the Constitution Away from the Courts (Princeton, N.J., 1999);
98. Larry Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (New York, 2004).
99. Friedman, "The History of the Countermajoritarian Difficulty, Part Four," 1048, 972; and see Morton Horwitz, address at the 1998 Association of American Law Schools Annual Meeting, Law & Interpretation: "Interpreting '1937,'" January 1998, tape 182.
100. Barry Cushman, "Rethinking the New Deal Court," Virginia Law Review 80 (1994): 201-261, 205-206, 257;
101. Cushman, Rethinking the New Deal Court: The Structure of a Constitutional Revolution (New York, 1998) (1920s).
102. Cushman, "Rethinking the New Deal Court," 208, 261.
103. Leuchtenburg, The Supreme Court Reborn, 317-318, n. 95.
104. Kalman, "Law, Politics, and the New Deal(s)," Yale Law Journal 108 (1999): 2165-2213, 2165-2166, n. 3 (Leuchtenburg and Cushman's subsequent discussions of each other's work);
105. Kalman, The Strange Career of Legal Liberalism, 348-351, n. 70;
106. White, "Cabining the Constitutional History of the New Deal in Time," 1392.
107. The book won the AHA's Littleton-Griswold Prize.
108. Cushman, Rethinking the New Deal Court, 22, 20, 217;
109. U.S. v. Darby, 312 U.S. 100 (1941) (upholding the application of the Fair Labor Standards Act of 1938, which provided wages and hours regulation for all employees in industries involving products shipped in interstate commerce, to the hours and wages of workers in a Georgia lumberyard, whose operations were exclusively intrastate, and overruling Hammer v. Dagenhart, 247 U.S. 251 [1918]);
110. Wickard v. Filburn, 317 U.S. 111 (1942) (upholding the Agricultural Adjustment Act of 1938 against the challenge that federal power to regulate commerce did not extend to a farmer who produced and consumed wheat he never marketed). See note 28 for discussion of Cushman's analysis of Jones & Laughlin.
111. Ibid., 25, 36-40.
112. Oddly, Cushman relied on Schlesinger's distinction between the "First New Deal" of 1933 and the "Second New Deal" of 1935 here, although it had long since been complicated by historians. See Arthur Schlesinger, Jr., The Politics of Upheaval (Boston, 1960), 393-395;
113. Kalman, "Law, Politics, and the New Deal(s)," 2196, n. 217.
114. Cushman, Rethinking the New Deal Court, 20, 23, 32, 224-225.
115. Richard Friedman, "Charles Evans Hughes as Chief Justice, 1930-1941" (D.Phil, diss., Oxford, 1979);
116. Friedman, "Switching Time and Other Thought Experiments: The Hughes Court and Constitutional Transformation," University of Pennsylvania Law Review 142 (1994): 1891-1984, 1955-1957. Friedman is at work on the Holmes Devise volume about the Hughes Court.
117. Richard Friedman, "Taking Decisions Seriously: A Review of Rethinking the New Deal Court: The Structure of a Constitutional Revolution," Journal of Supreme Court History 24 (1999): 314-324, 316 ("weaker");
118. Friedman, "Switching Time," 1947-1953. In explaining why Roberts did not seize on Nebbia at the close of the 1935-1936 term in Tipaldo, however, Cushman pointed not just to the Roberts memorandum (see note 5), but to the different approaches of Roberts and Hughes toward precedents they disliked (here, Adkins); Hughes's insistence on short conferences as chief justice and uneasiness about lobbying colleagues outside them; and the difficult and exhausting nature of the 1935-1936 term, which might well have made Hughes and Roberts even less inclined to communicate with each other about the desirability of disposing of Adkins, as opposed to distinguishing it, at its end. Cushman also suggested that the Roberts memorandum could have reflected an attempt by Roberts to protect Hughes from embarrassment by casting blame elsewhere. Cushman, Rethinking the New Deal Court, 92-104.
119. Friedman, "Switching Time," 1973 ("legitimate");
120. Friedman, "Charting the Course of Commerce Clause Challenge," Arkansas Law Review 55 (2003): 1055-1096, 1056 ("climactic");
121. Friedman, "The Sometimes-Bumpy Road of Commerce Clause Doctrine," Arkansas Law Review, ibid., 981-1007, 1004, 1005 ("continued," "possibility");
122. Cushman, "Small Differences?" Arkansas Law Review, ibid., 1097-1148, 1146 ("time");
123. Cushman, "Continuity and Change in Commerce Clause Jurisprudence," Arkansas Law Review, ibid., 1009-1054, 1043-1046.
124. How to explain the behavior of Hughes and Roberts in Jones & Laughlin? For Cushman, again, it comes back to Nebbia. He focuses on Hughes's "deformalization of the direct/indirect distinction" in commerce clause doctrine in Jones & Laughlin, "the first current of commerce case the Court saw in the post-Nebbia era." There, according to Cushman, Hughes drew on Roberts's "deformalization of the public/private distinction" in Nebbia and synthesized it with "the current of commerce" doctrine articulated in the Progressive Era case of Swift & Co. v. United States (196 U.S. 375 [1905]), making Jones & Laughlin consistent with what had gone before.
125. Cushman, Rethinking the New Deal Court, 170, 174-175. Friedman, though, maintains that the chief justice's opinion in Jones & Laughlin was consistent with his "long-held views," characterizing his concurrence with the majority in Carter Coal as "mysterious." Friedman, "The Sometimes Bumpy Road," 995. He speculates that the concurrence may have reflected the chief justice's desire "to ask the public to consider changing the Constitution rather than blame the Court if it did not like the Court's decisions," perhaps intended as "more a public plea than a statement of legal conclusion."
126. Friedman, "Charting the Course of Commerce Clause Change," 1083.
127. Roberts is another story. Friedman contends that Roberts's willingness to join the majority in Jones & Laughlin indicated "a sharp break in his thinking about national powers" and is difficult to reconcile with his previous "very right-wing opinion" in Alton striking down the Railroad Retirement Act. Friedman, "The Sometimes Bumpy Road," 995; "Switching Time," 1968. But he maintains that Roberts's behavior in Jones & Laughlin was largely unaffected by Court packing or the 1936 election. Friedman, "Switching Time," 1967-1974. Cushman remains confident that Hughes "meant what he appears to have meant" in Carter Coal and that Jones & Laughlin did not represent a major break for either Hughes or Roberts. Cushman, "Small Differences," 1124. Although he acknowledges that Justice Roberts "pummeled the Act to a bloody pulp" in Alton, Cushman nevertheless reminds us that Roberts's opinion left open the possibility that what the Court could not achieve through the Commerce Clause, it might nevertheless achieve through other means, as Congress subsequently did through the Carrier Taxing Act and Railroad Retirement Act. Cushman, "The Hughes Court and Constitutional Consultation," Journal of Supreme Court History 1 (1998): 79-111, 89;
128. Cushman, "Lost Fidelities," William and Mary Law Review 41 (1999): 95-145, 130-131.
129. More generally, Cushman contends that in striking down so many early New Deal statutes, the Hughes Court "was in fact cooperating with the political branches in seeking to formulate constitutional solutions to the economic crisis of the 1930s." Cushman, "The Hughes Court and Constitutional Consultation," 80. Of course, in the case of measures sponsored by the Roosevelt administration, as opposed to the Railroad Retirement Act, Cushman's argument is consistent with his point that the 1933-1934 legislation was poorly drafted. See Leuchtenburg, The Supreme Court Reborn, 42, for a discussion of the importance that the administration nevertheless attached to Alton, and its sense, from Roberts's opinion, that he was "permanently lost" and had gone over to "the Conservative Four."
130. Friedman, "Taking Decisions Seriously," 315, 323 ("Like," "treating");
131. Friedman, "Charting the Course of Commerce Clause Challenge," 1095-1096.
132. White, The Constitution and the New Deal, 199, 5.
133. See Daniel Rodgers, "In Search of Progressivism," Reviews in American History 10 (1982): 113-132,
134. See, e.g., G. Edward White, "From Sociological Jurisprudence to Realism: Jurisprudence and Social Change in Early Twentieth-Century America," Virginia Law Review 58 (1972): 999-1028;
135. White, "The Evolution of Reasoned Elaboration," Virginia Law Review 59 (1973): 279-302;
136. White, "From Realism to Critical Legal Studies: A Truncated Intellectual History," in White, Intervention and Detachment: Essays in Legal History and Jurisprudence (New York, 1994), 274-298.
137. Legal realism makes an appearance in The Constitution and the New Deal on pp. 167-170, 188-196, and 210, but only on p. 210 does it seem to become central to White's fundamental argument.
138. Perhaps White avoids the term because of its association with the behavioralist approach to judging that he dislikes. I have written about legal realism as movement and caricature in Kalman, Legal Realism at Yale, 1927-1960 (Chapel Hill, N.C., 1986);
139. Kalman, The Strange Career of Legal Liberalism;
140. and Kalman, Yale Law School and the Sixties: Revolt and Reverberations (Chapel Hill, N.C., 2005).
141. White, The Constitution and the New Deal, 213;
142. Mark Graber, Transforming Free Speech: The Ambiguous Legacy of Civil Libertarianism (Berkeley, Calif., 1991);
143. David Rabban, Free Speech in Its Forgotten Years (Cambridge, 1997).
144. White, The Constitution and the New Deal, 234-236, 14-15, 19-20, 29-31;
145. Howard Gillman, "The Collapse of Constitutional Originalism and the Rise of the Notion of the 'Living Constitution' in the Course of American State-Building," Studies in American Political Development 11 (1997): 191-247.
146. White, The Constitution and the New Deal, 307, 311, 309;
147. Barry Friedman, "The Birth of an Academic Obsession: The History of the Countermajoritarian Difficulty, Part Five," Yale Law Journal 112 (2002): 153-259;
148. Barry Cushman, "Clerking for Scrooge," University of Chicago Law Review 70 (2003): 721-749, 739-743.
149. White, The Constitution and the New Deal, 307, 309;
150. Robert Gordon, "Introduction: J. Willard Hurst and the Common Law Tradition in American Legal Historiography," Law and Society Review 10 (1975): 9-56, 38 ("tools").
151. See Edward Purcell, The Crisis of Democratic Theory: Scientific Naturalism and the Problem of Value (Lexington, Ky., 1979), 159-178.
152. White discussed behavioralist political science scholarship more specifically and at greater length in G. Edward White, "Unpacking the Idea of the Judicial Center," North Carolina Law Review 83 (2005): 1089-1185, 1097-1117, 1127-1134.
153. Owen Fiss, Troubled Beginnings of the Modern State, 1888-1910 (New York, 1993), 19 ("coherence");
154. Howard Gillman, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (Durham, N.C., 1993);
155. David Bernstein, "Lochner's Legacy's Legacy," Texas Law Review 82 (2003): 1-64, 16 ("government");
156. Novak, "Legal Origins of the Modern American State," 253-260;
157. Rowe, "Legacy of Lochner," 223 ("hover").
158. Whether the legislation in Lochner did represent "the will of the people," and whether legislation ever does, remains open to question. See Paul Kens, Lochner v. New York: Economic Regulation on Trial (Lawrence, Kans., 1998), 47-66, 87-88;
159. Daniel Farber and Philip Frickey, Law and Public Choice: A Critical Introduction (Chicago, 1991);
160. Maxwell Stearns, Public Choice and Public Law: A Commentary (Cincinnati, Ohio, 1987).
161. Brown v. Board of Education, 347 U.S. 483 (1954);
162. Robert Harrison, "The Breakup of the Roosevelt Court: The Contribution of History and Biography" (Ph.D. dissertation, Columbia University, 1987), 333 ("crowd");
163. Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Indianapolis, 1962), 16.
164. Among the revisionists, Fiss, a political liberal, explicitly linked Lochner to Brown. Fiss, Troubled Beginnings of the Modern State, 19;
165. and see Stephen Siegel, "Let Us Now Praise Infamous Men," Texas Law Review 73 (1995): 661-708, 707-708.
166. On Brown and the legal academy, see generally Kalman, The Strange Career of Legal Liberalism;
167. Friedman, "The Birth of an Academic Obsession."
168. Among those who noted the influence of the events of 1937 on political science as a discipline were Walter Murphy, C. Herman Pritchett, and Glendon Schubert. Murphy and Pritchett, Courts, Judges, and Politics: An Introduction to the Judicial Process (New York, 1961), 9;
169. Schubert, "Academic Ideology and the Study of Adjudication," American Political Science Review 61 (1967): 106-129, 106-107.
170. For an informative overview of political scientists' approaches to judicial behavior, see Nancy Maveety, "The Study of Judicial Behavior and the Discipline of Political Science," in Maveety, ed., The Pioneers of Judicial Behavior (Ann Arbor, Mich., 2003), 1-51,
171. and the valuable individual essays on each political scientist in Nancy Maveety, The Pioneers of Judicial Behavior, ibid., including Pritchett, Schubert, Harold Spaeth, Murphy, David Danelski, Edward Corwin, Robert McCloskey, and Robert Dahl.
172. Glendon Schubert, "The Study of Judicial Decision-Making as an Aspect of Political Behavior," American Political Science Review 52 (1958): 1007-1025, 1022-1023;
173. Schubert, Constitutional Politics: The Political Behavior of Supreme Court Justices and the Constitutional Policies That They Make (New York, 1960), 165
174. ("both," emphasis in the original) (Schubert reprinted the Frankfurter memorandum in Schubert, Constitutional Politics: The Political Behavior of Supreme Court Justices and the Constitutional Policies That They Make, ibid., 168-171).
175. Jeffrey Segal and Harold Spaeth, The Supreme Court and the Attitudinal Model (Cambridge, 1993), 64 ("Rehnquist votes");
176. Symposium, "The Supreme Court and the Attitudinal Model," Law & Courts: Newsletter of the Law and Courts Section of the American Political Science Association 4 (Spring 1994): 3-12;
177. and see Segal and Spaeth, The Supreme Court and the Attitudinal Model Revisited (Cambridge, 2002).
178. Walter Murphy, Congress and the Court: A Case Study in the American Political Process (Chicago, 1962), 247, 59-61 ("dramatic");
179. Murphy, Elements of Judicial Strategy (Chicago, 1964), 162 ("attack," "neatest");
180. David Danelski, "The Influence of the Chief Justice in the Decisional Process,"
181. reprinted in abridged form in Murphy and Pritchett, Courts, Judges, and Politics, 497-508, 500;
182. Danelski and Tulchin, "Editors' Introduction," in Hughes, The Autobiographical Notes, xxv ("maintain");
183. Alpheus Mason, Harlan Fiske Stone: Pillar of the Law (New York, 1956), 437-464;
184. Clyde Spillenger, "Lifting the Veil: The Judicial Biographies of Alpheus T. Mason," Reviews in American History 21 (1993): 723-734;
185. Robert McCloskey, The American Supreme Court (Chicago, 1960), 174 ("finally");
186. McCloskey, "Economic Due Process and the Supreme Court: An Exhumation and Reburial," in Philip Kurland, ed., Supreme Court Review (Chicago, 1962), 34-62;
187. McCloskey, "The Supreme Court, 1961 Term, Foreword: The Reapportionment Cases," Harvard Law Review 76 (1962): 54-74.
188. The critical legal scholar was Mark Tushnet. Tushnet, "Post-Realist Legal Scholarship," Wisconsin Law Review 1980 (1980): 1383-1401, 1398. As Cornell Clayton said, "The ultimate irony is that as political science sought more predictive, 'scientific' ways of understanding judicial decision-making, it became of less utility and notice to those actually engaged in the practice of law and to those elected officials who appoint judges. Political scientists, who in the days of Corwin and Haines were considered the leading experts on the Supreme Court and the Constitution, have been increasingly pushed to the sidelines by academic lawyers."
189. Cornell Clayton, "The Supreme Court and Political Jurisprudence: New and Old Institutionalisms," in Cornell Clayton and Howard Gillman, eds., Supreme Court Decision-Making: New Institutionalist Approaches (Chicago, 1999), 15-41, 29.
190. See also Howard Gillman, "What's Law Got to Do with It? Judicial Behavioralists Test the 'Legal Model' of Judicial Decision Making," Law & Social Inquiry 26 (2001): 465-498.
191. For a positive view of attitudinalism and what it can offer academic lawyers, see Frank Cross, "Political Science and the New Legal Realism: A Case of Unfortunate Interdisciplinary Ignorance," Northwestern University Law Review 92 (1997): 251-326;
192. for a more critical one, see Michael Gerhardt, "Attitudes about Attitudes," Michigan Law Review 101 (2003): 1733-1763.
193. Shapiro is quoted in Howard Gillman, "Martin Shapiro and the Movement from 'Old' to 'New' Institutionalist Studies in Public Law Scholarship," Annual Review of Political Science 7 (2004): 363-382, 374.
194. Gerald Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (Chicago, 1991), 338, 169, 123, 341, 342.
195. Keith Whittington, "Once More into the Breach: Postbehavioralist Approaches to Judicial Politics," Law & Social Inquiry 25 (2000): 601-634, 619 ("bringing");
196. Howard Gillman, "Elements of a New 'Regime Politics' Approach to the Study of Judicial Politics" (paper presented at the American Political Science Association, 2004) ("regime," "stories");
197. Gillman, "The New Institutionalism, Part I: More and Less than Strategy - Some Advantages to Interpretive Institutionalism in the Analysis of Analysis of Judicial Politics," Law & Courts 7 (Winter 1996-1997): 6-10;
198. Cornell Clayton and Howard Gillman, "Introduction," in Gillman and Clayton, The Supreme Court in American Politics: New Institutionalist Approaches (Lawrence, Kans., 1999), 1-11, 3-5;
199. Ken Kersch, Constructing Civil Liberties: Discontinuities in the Development of American Constitutional Law (Cambridge, 2004), 360 ("regime-sustaining");
200. Kalman, The Strange Career of Legal Liberalism, 101-163;
201. Karen Orren and Stephen Skowronek, The Search for American Political Development (Cambridge, 2004);
202. Terence McDonald, The Historic Turn in the Human Sciences (Ann Arbor, Mich., 1996);
203. James Mahoney and Dietrich Rueschemeyer, eds., Comparative Historical Analysis in the Social Sciences (Cambridge, 2003).
204. Robert Dahl, "Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker," Emory Law 50 (2001): 563-582, 578,
205. reprinting the original article from Journal of Public Law 6 (1957): 279-295;
206. Mark Graber, "The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary," Studies in American Political Development 7 (1993): 35-73, 36, 37, 56;
207. and see George Lovell, Legislative Deferrals, Statutory Ambiguity, Judicial Power, and American Democracy (Cambridge, 2003) (demonstrating Graber's point in a series of case studies drawn from the history of twentieth-century labor law);
208. Charles Epp, The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective (Chicago, 1998) (examining the relative strength of the rights revolution in the United States, Canada, Britain, and India, and pointing to the importance of a broader support structure from below in creating pressure for, and making meaningful, judicial declarations of rights).
209. Rogers Smith is credited with launching the movement to apply the new institutionalism to public law in Smith, "Political Jurisprudence, the 'New Institutionalism,' and the Future of Public Law," American Political Science Review 82 (1988): 89-108;
210. Clayton, "The Supreme Court and Political Jurisprudence," 30-31.
211. See also Rogers Smith, Liberalism and American Constitutional Law (Cambridge, Mass., 1985), 6-7.
212. That was the memory of John Blum, the lone historian in the group. See Richard Merelman, Pluralism at Yale: The Culture of Political Science in America (Madison, Wis., 2003);
213. Geoffrey Kabaservice, The Guardians: Kingman Brewster, His Circle, and the Rise of the Liberal Establishment (New York, 2004);
214. Warren Goldstein, William Sloan Coffin Jr.: A Holy Impatience (New Haven, Conn., 2004);
215. and Kalman, Yale Law School and the Sixties, for discussion of the atmosphere at Yale during this period.
216. "Constructed" is from Mark Graber, "Constructing Judicial Review," Annual Review of Political Science 8 (2005): 425-451, 446.
217. Graber, "The Nonmajoritarian Difficulty," 68, 72.
218. Constitutional law professors influenced by the new institutionalism included Barry Friedman, Michael Klarman, Mark Tushnet, and Darren Hutchinson. Friedman drew on it to remind law professors that "the judicial process tends to ratify popular preference" in many articles. See, e.g., Friedman, "The History of the Countermajoritarian Difficulty, Part One: The Road to Judicial Supremacy," New York University Law Review 73 (1998): 333-433, 338.
219. Klarman won the Bancroft Prize for insisting, with Rosenberg, that Brown v. Board of Education reflected an emerging national consensus. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Equality (New York, 2004).
220. Tushnet explained that the Rehnquist Court's "economic conservatives won and . . . cultural conservatives lost" through 2005 because in the larger political arena, "economic conservatives were winning and cultural conservatives were losing," Tushnet, A Court Divided: The Rehnquist Court and the Future of Constitutional Law (New York, 2005), 10.
221. Hutchinson addressed the majoritarian nature of the Rehnquist Court's recent decisions about affirmative action and gay rights in "The Majoritarian Difficulty: Affirmative Action, Sodomy, and Supreme Court Politics," Law & Inequality 23 (2005): 1-93.
222. And while he denounced political scientists, Lucas Powe maintained that the Warren Court was the judicial arm of Lyndon Johnson's Great Society. Powe, The Warren Court and American Politics (Cambridge, Mass., 2000), xii-xvi.
223. For a critical reaction to Powe's treatment of political scientists, see Mark Graber, "Constitutional Politics and Constitutional Theory: A Misunderstood and Neglected Relationship," Law & Social Inquiry 927 (2002): 309-333.
224. For discussion of the citation of political scientists in law reviews, see Keith Whittington, "Crossing Over," Law & Courts 14 (Spring 2004): 5-10.
225. Rogers Smith, "If Politics Matters: Implications for a 'New Institutionalism,'" Studies in American Political Development 6 (1992): 1-36, 3 ("historical/interpretivist");
226. Gillman, "The Court as an Idea, Not a Building or a Game: Interpretive Institutionalism and the Analysis of Supreme Court Decision-Making," in Clayton and Gillman, Supreme Court Decision-Making, 65-87, 67, 87 (contingency).
227. For example, Gillman explained that "the Lochner era is the story of how a changing social structure exposed the conservatism and class bias inherent in the dominant ideological structures first formulated and institutionalized by the framers of the U.S. Constitution; it is the story of how an ideology that was fairly (albeit not completely) inclusive around the time of the founding became more and more exclusive as the century progressed and capitalist forms of production matured; and it is the story of how the Court, loyal to a historically defined conception of political legitimacy, struggled to maintain the coherence of this authoritative ideology in an era that witnessed an unprecedented intensification of class conflict." He recognized the autonomous influence of legal ideology as understood by interpretive communities existing in particular historical contexts, as well as the interdependence of law and politics. But Gillman still maintained that "the United States underwent a true constitutional revolution" in 1937, "the moment when the founders' conception of a faction-free American Republic collapsed under the onslaught of corporate capitalism." Gillman, The Constitution Besieged, 199-201.
228. And see Michael Nelson, "The President and the Court: Reinterpreting the Court-Packing Episode of 1937," Political Science Quarterly 103 (1988): 267-293, 293;
229. Kevin McMahon, Reconsidering Roosevelt on Race: How the Presidency Paved the Way for Brown (Chicago, 2004), 65, 84;
230. Rafael Gely and Pablo Spiller, "The Political Economy of Supreme Court Constitutional Decisions: The Case of Roosevelt's Court-Packing Plan," International Review of Law and Economics 12 (1992): 45-67, 57, 65, n. 63;
231. Jamie Carson and Benjamin Kleinerman, "A Switch in Time Saves Nine:
232. Gregory Caldeira, "Public Opinion and the US Supreme Court: FDR's Court-Packing Plan," American Political Science Review 81 (1987): 1139-1153, 1150, 1148.
233. I would not presume to answer the charge for Leuchtenburg, but I note that for him, scholarship and politics stay separate. And certainly he has kept his eye trained on the 1930s, avoiding grand claims about judicial behavior. William Leuchtenburg, "The Historian in the Public Realm," AHR 97 (February 1992): 1-18.
234. White is correct that I am a liberal and that I also believe one's politics affects one's scholarship. I have also adopted a behavioralist approach to judging. In my view, however, he exaggerates the extent of behavioralism's triumph on the Supreme Court during the 1930s and afterward. While an Abe Fortas and his biographer might show little regard for legal doctrine and treat judging as political, not every post-1937 judge was a Fortas, and many of their biographers have taken their decisions more seriously. Compare, for example, Laura Kalman, Abe Fortas: A Biography (New Haven, Conn., 1990), 271-276,
235. with Pusey, Charles Evans Hughes.
236. Kalman, "Law, Politics and the New Deal(s)," 2188.
237. Leuchtenburg was more polite. For discussion of different disciplinary standards of criticism, see Kalman, The Strange Career of Legal Liberalism, 216-219;
238. William Nelson, "Standards of Criticism," Texas Law Review 60 (1982): 447-493.
239. Mark Graber, "Thick and Thin: Interdisciplinary Conversations on Populism, Law, Political Science, and Constitutional Change," Georgetown Law Journal 90 (2001): 233-251, 243 ("Interdisciplinary");
240. Friedman, "Taking Decisions Seriously," 323;
241. Glendon Schubert, "Ideologies and Attitudes, Academic and Judicial," Journal of Politics 29 (1967): 3-40, 20.
242. Richard Friedman, "A Rendezvous with Kreplach: Putting the New Deal Court in Context," Green Bag 5 (2002): 453-462, 454-455, 459.
243. Henry Pringle, The Life and Times of William Howard Taft: A Biography, 2 vols. (New York, 1939), 2: 783.
244. See Mary Dudziak, "The Court and Social Context in Civil Rights History," University of Chicago Law Review 72 (2005): 429-454,
245. and Stephen Feldman, "The Rule of Law or the Rule of Politics? Harmonizing the Internal and External Views of Supreme Court Decision Making," Law & Social Inquiry 30 (2005): 89-129.
246. Edward Purcell, "Rethinking Constitutional Change," Virginia Law Review 80 (1994): 277-290, 280, 290.
247. This is my third attempt in print to account for "1937," and each time, I move closer to the internalist account. Thus White writes that I have used "a strategy of confession and avoidance . . . to buttress the conventional externalist account in the face of revisionist criticism." White, The Constitution and the New Deal, 29-30.
248. Compare Kalman, The Strange Career of Legal Liberalism, 348-351, n. 70,
249. with Kalman, "Law, Politics, and the New Deal(s)," 2185-2188.
250. My chorus has indeed become one of "Yes, but." I also here suggest that we bury the very debate I have previously called "vibrant." Kalman, "Law, Politics, and the New Deal(s), Ibid., 2186.
251. See Kersh, Constructing Civil Liberties, 132-133.
252. Ackerman, We the People: Transformations, 29 (I discuss Ackerman's approach to the New Deal in Kalman, "Law, Politics, and the New Deal[s]," 2165-2213);
253. Sanford Levinson, "Constitutional Norms in a State of Permanent Emergency" (forthcoming, University of Georgia Law Review [pointing to the national and international sense of emergency at the time of Blaisdell]);
254. Ronen Shamir, Managing Legal Uncertainty: Elite Lawyers and the New Deal (Durham, N.C., 1995);
255. Leuchtenburg, The Supreme Court Reborn, 39 ("medieval," "relationship");
256. Cushman, Rethinking the New Deal Court, 162 ("prophetic").
257. With respect to Nebbia, see Leuchtenburg, The Supreme Court Reborn (querying the importance of Roberts's position), 231;
258. David Pepper, "Against Legalism: Rebutting an Anachronistic Account of 1937," Marquette Law Review 82 (1998): 63-154 (maintaining that Cushman overrated the case's contemporary impact);
259. for Cushman's reply, see "Lost Fidelities," 103-141.
260. On the Court's reaction to the Court-packing bill, see William Leuchtenburg, "The Nine Justices Respond to the 1937 Crisis," Journal of Supreme Court History 1 (1997): 55-76;
261. Richard Friedman, "Chief Justice Hughes' Letter on Court-Packing," ibid., 76-86.
262. In addition to Cushman, Neal Devins adopts Schlesinger's "poor draftsmanship" argument as the reason for the failure of the early New Deal before the Court. Devins, "Government Lawyers and the New Deal," Columbia Law Review 96 (1996): 237-267, 241, 251.
263. Parrish has little use for the poor draftsmanship argument in "The Hughes Court, the Great Depression, and the Historians," 289-290, n. 13,
264. and the same is true of Leuchtenburg in The Supreme Court Reborn, 231-232, 318 n. 99,
265. and in his essay in this forum. "[J]ournalists" is from Michael Kammen, A Machine That Would Go of Itself (New York, 1987), 274.
266. Ackerman argues that in 1935 and 1936, "the Court put Americans on notice that the New Deal was shaking the foundations - and that it was not too late to withdraw their mandates." Yet when the people responded by overwhelmingly saying yes to the New Deal in 1936, judicial conservatives realized that the "switch in time" was required. Ackerman, We the People: Transformations, 303, 381.
267. But see Leuchtenburg, "When the People Spoke, What Did They Say? The Election of 1936 and the Ackerman Thesis," Yale Law Journal 108 (1999): 2077-2114, 2114 (cautioning that while it was not "unreasonable to assume that 'the People' would not long tolerate a Court that persisted in striking down legislation they cherished," the people nevertheless viewed Constitution and the Court with "reverence"),
268. and Barry Cushman, "Mr. Dooley and Mr. Gallup: Public Opinion and Constitutional Change in the 1930s," Buffalo Law Review 50 (2002): 7-100, 66-74 (analyzing polling data and suggesting that it would be unwise to read the 1936 election results as a mandate for constitutional revolution);
269. Gregory Caldeira, "FDR's Court-Packing Plan in the Court of Public Opinion," Version 4, August 2004, http://epstein.wustl.edu/research/ courses.LAPSCaldeira.pdf (analyzing polling data in the 1936 election, questioning whether public reverence for the Court caused elite opposition to Court packing, and challenging the scholarly consensus that FDR's promotion of Court packing caused a major change in Roosevelt's base or a large-scale shift away from him).
270. William Leuchtenburg, "Charles Evans Hughes: The Center Holds," North Carolina Law Review 83 (2005): 1187-1203, 1199.
271. Alsop and Catledge, The 168 Days, 139 ("government lawyers").
272. Leuctenburg discusses the lack of popular reaction to Creel's report in The Supreme Court Reborn, 94, 122;
273. Marian McKenna discusses the State of the Union speech in McKenna, Franklin Roosevelt and the Great Constitutional War: The Court-Packing Crisis of 1937 (New York, 2002), 258-263.
274. While Roosevelt said that a constitutional amendment had no chance of passage, David Kyvig argues that Congress might have enacted a constitutional amendment, which would have had a more "strong and solid . . . constitutional foundation" under the New Deal. Kyvig, Explicit and Authentic Acts: Amending the U.S. Constitution, 1776-1995 (Lawrence, Kans., 1996), 305, 314, 481-483.
275. Gely and Spiller list the bills introduced to regulate the Court during 1937 in "The Political Economy of Supreme Court Constitutional Decisions," 58-59. Yet the large number of bills introduced may have indicated liberal disarray and an inability to agree on a solution, which may have augured poorly for the Court-packing bill. William Ross, A Muted Fury: Populists, Progressives, and Labor Unions Confront the Courts, 1890-1937 (Princeton, N.J., 1994), 309.
276. "[M]yth" is from Kramer, The People Themselves, 240;
277. Roberts is quoted in Charles Leonard, A Search for Judicial Philosophy: Mr. Justice Roberts and the Constitutional Revolution of 1937 (Port Washington, N.Y., 1971), 144, 180.
278. Extrapolating from Rosenberg's Hollow Hope, however, we might ask ourselves how much the National Labor Relations Act and judicial interpretation of it mattered and when. While its constitutionality was unclear and the National Labor Relations Board cases were pending, employers hostile to unions ignored it, and the shift toward mass-production unionization was due in large part to the tactics of workers themselves. David Brody, Workers in Industrial America: Essays on the Twentieth Century Struggle (New York, 1980), 103-107.
279. Even so, perhaps a majority of the Court regarded the NLRA as a possible balm for the rash of sit-down strikes and was more inclined to uphold it for that reason. Jim Pope, "Worker Lawmaking, Sit-Down Strikes, and the Shaping of American Industrial Relations, 1935-38," Law and History Review 24 (forthcoming, 2006).
280. The Court also could have been moved by "the inherited Commerce Clause jurisprudence, the particular facts of the NLRB cases, and the arguments advanced by government attorneys." Parrish, The Hughes Court, 179.
281. And in the case of Darby and Wickard, of course, context also remains important. In part, Wickard reflected the changed personnel on the Court and the need to increase food production during World War II. Mary Dudziak, "Wheat Farmers and the Battle for Democracy: Another Look at Wickard v. Filburn" (unpublished paper, Association of American Law Schools, 1993).
282. The larger and more general point is that "[b]y any criteria, . . . the major issues in the explanation of judicial behavior are far from settled." Lawrence Baum, The Puzzle of Judicial Behavior (Ann Arbor, Mich., 1997), 125.
283. Cushman, Rethinking the New Deal Court, 5.
284. Serena Mayeri to Laura Kalman, American Legal History Final, Yale Law School, May 2001.