Thursday, June 23, 2016

Cushman on the Taft Court, Viewed from the Docket Books

Barry Cushman, Notre Dame Law School, continues his investigation of the docket books of the US Supreme Court with Inside the Taft Court: Lessons from the Docket Books, published in the volume 2015 of the Supreme Court Review but available in draft on SSRN.  Here is the abstract:
CJ William Howard Taft (LC)
For many years, the docket books kept by certain of the Taft 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. This article offers a report and analysis based on a review of all of the Taft Court docket books held by the Office of the Curator, which are the only such docket books known to have survived.

This article examines the available docket book entries relevant to what scholars commonly regard as the major decisions of the Taft Court. This examination includes 117 cases concerning areas of law as diverse as the Commerce Clause, the dormant Commerce Clause, substantive due process, equal protection, the general law, antitrust, intergovernmental tax immunities, criminal procedure, civil rights, and civil liberties. The information in the docket books, which frequently includes notes of conference discussions, sheds particularly interesting new light on decisions such as Whitney v. California, Village of Euclid v. Ambler, Adkins v. Children’s Hospital and its successor minimum wage cases, Pierce v. Society of Sisters, Buck v. Bell, Frothingham v. Mellon, Wolff Packing v. Court of Industrial Relations, Fiske v. Kansas, Tyson & Bro. v. Banton, Coronado Coal v. United Mine Workers, Corrigan v. Buckley, Miles v. Graham, Brooks v. United States, and Radice v. New York. The docket books also provide records of instances in which a case that initially was assigned to one justice later was reassigned to another. These records afford us some insight into the kinds of cases in which this tended to occur, and provide an opportunity to document for the first time the long held suspicion that the notoriously slow-writing Justice Willis Van Devanter frequently was relieved of his opinions by the Chief Justice.

In addition, this article reports on whether a unanimous decision also was free from dissent at conference or became so only because one or more justices acquiesced in the judgment of their colleagues, and on whether non-unanimous decisions were divided by the same vote and with the same alliances at conference. This in turn makes possible contributions to two bodies of political science literature on judicial behavior: first, to the scholarship on vote fluidity and unanimity norms in the Supreme Court; and second, to the so-called “freshman effect” argued by some to characterize the voting behavior of newcomers to the Court.