Cushman on the Docket Books of the Late Hughes Court

We’ve previously noted the analysis by Barry Cushman, Notre Dame Law School, of the docket books of the US Supreme Court during the early terms of Chief Justice Charles Evans Hughes.  Professor Cushman has posted another installment: The Hughes Court Docket Books: The Late Terms, 1937-1940,” which is forthcoming in the American Journal of Legal History 55 (December 2015):

For many years, the docket books kept by a number of the justices of the Hughes Court 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. Recently, however, the Court adopted new guidelines designed to increase access to the docket books for researchers. This article offers the first-ever examination of the available docket book entries relevant to what scholars commonly regard as the major decisions of rendered during the late years of the Hughes Court, from the 1937 through the 1940 Terms.

The decisions examined concern the Commerce Clause, the dormant Commerce Clause, substantive due process, equal protection, the general law, antitrust, labor relations, intergovernmental tax immunities, criminal procedure, civil rights, and civil liberties. The information in the docket books sheds new light on decisions such as Erie Railroad v. Tompkins, South Carolina State Highway Department v. Barnwell Bros., Inc., Lane v. Wilson, Railroad Commission of Texas v. Pullman, and United States v. Darby Lumber Co., and helps to explain how a nine-justice Court divided evenly on one of the issues in Coleman v. Miller. The docket books often reveal the justices’ remarks at their conference deliberations over major cases, and illuminate many previously unknown changes in justices’ positions between the conference votes and their final votes on the merits.

Analysis of the voting data contained in the docket books yields some surprising results, and offers a contribution to two bodies of political science scholarship on judicial behavior: the literature on vote fluidity and unanimity norms in the Supreme Court, and the literature on the so-called “freshman effect” that some scholars have found exhibited by the Court’s newest members. In particular, the analysis documents the prominent contribution that new justices, who disdained the Court’s longstanding norm of acquiescence in the judgments of conference majorities, made to the substantial increase in the percentage of its cases that the Court decided by a divided vote. The analysis further reveals the significant part played by the last remnants of the Old Court in retarding what would become a precipitous decline in unanimity rates under Chief Justice Harlan Fiske Stone.