Friday, April 8, 2022

Tushnet's "Hughes Court"

It's now out in print, from the Cambridge University Press: Mark V. Tushnet, Harvard Law School, has published The Hughes Court: From Progressivism to Pluralism, 1930 to 1941, the latest volume in the Oliver Wendell Holmes Devise History of the Supreme Court of the United States:

The Hughes Court: From Progressivism to Pluralism, 1930 to 1941
describes the closing of one era in constitutional jurisprudence and the opening of another. This comprehensive study of the Supreme Court from 1930 to 1941 – when Charles Evans Hughes was Chief Justice – shows how nearly all justices, even the most conservative, accepted the broad premises of a Progressive theory of government and the Constitution. The Progressive view gradually increased its hold throughout the decade, but at its end, interest group pluralism began to influence the law. By 1941, constitutional and public law was discernibly different from what it had been in 1930, but there was no sharp or instantaneous Constitutional Revolution in 1937 despite claims to the contrary. This study supports its conclusions by examining the Court's work in constitutional law, administrative law, the law of justiciability, civil rights and civil liberties, and statutory interpretation.
Here are some endorsements:

‘No one understands the politics of law better or takes the law more seriously than Mark Tushnet. With a complete mastery of the decisions of the Hughes Court, Tushnet shows us the justices as they saw themselves, professionals of disparate backgrounds, temperaments, and talents, dispatching, with the tools at hand, the disputes that ceaselessly came to them. Familiar constitutional landmarks are here, as is the high drama of Franklin D. Roosevelt’s ‘Court-packing’ plan, but so are more gradual changes in the law of the presidency, the administrative state, the federal courts, civil liberties, and civil rights that ended with the nation on the verge of a new constitutional order. Despite economic calamity and social strife, the Supreme Court thrived, not by being above politics, but by proving its worth by doing its job.’ Daniel R. Ernst, Carmack Waterhouse Professor of Legal History, Georgetown University Law Center

'In this tour de force, a master doctrinalist unpacks some of the twentieth century's most significant cases. In the process, he brilliantly unlocks the mystery of the Constitutional Revolution of 1937 that did not happen, investigates the invention of federal jurisdiction, explores the evolution of the administrative state, and illuminates the transformation of modern American liberalism. Bravo!' Laura Kalman, Distinguished Research Professor, University of California, Santa Barbara

 You can get a sense of the book’s scale from the TOC, after the jump:

Preface; Part I. The Opening Years: Section A. Setting the Stage
1. Personnel and Organizing Ideas
2. Formulas and Conceptions of Basic Needs: An Overview
3. The Complex World of Simple Formulas
4. Formulas and Considerations of Basic Needs in Business Regulation Cases
Section B. The False Dawn
5. Blaisdell
6. Nebbia
7. The Gold Clause Cases
Section C. Crisis
8. Black Monday 1935
9. Winter 1935–36
10. Spring 1936
11. The Court-Packing Plan
12. Resolution
13. Was There a 'Switch in Time'?
Section D. The New Constitutional Regime;
14. After the Storm: Personnel and Organization
15. Consolidating the Scope of National Power
16. Consolidating State Regulation of Business
17. Consolidating Labor Law and Intergovernmental Immunity
18. Toward a Theory of Pluralism
Part II. Continuities: Section A. Administrative Law
19. Administrative Law Introduction
20. Administrative Law Constitutional Limits
21. Administrative Law Presidential Power
22. Administrative Law Courts' Role
Section B. Civil Liberties and Civil Rights
23. The Uncertainty of Theory
24. Progressivism, Prohibition, and Organized Crime
25. Race, Criminal Justice, and 'Labor Defense'
26. Race and Strategic Litigation
27. Radical Political Dissent
28. Radical Religious Dissent
Section C. Justiciability
29. Basic Concepts of Justiciability
30. Sovereign Immunity and Political Questions
31. Regulating Access to the National Courts
32. Erie
33. Erie's Legacy
34. Form and Style in Statutory Interpretation
Part III: New Approaches Begin to Emerge: Section A. Economics
35. New Deal Economics
36. Regulating Strikes
37. Regulating the NLRB
38. The Labor Antitrust Interface
Section B. Civil Liberties After 1937
39. The Justices and the Theories
40. Demonstrations, Picketing, and First Amendment Theories
41. The Jehovah's Witnesses and First Amendment Theories
42. Conclusion
Historiographical Essay