Monday, April 10, 2023

Kalman Comments on Tushnet's "Hughes Court"

[On Tuesday, April 4, Georgetown Law devoted a session of its faculty workshop to honoring the publication of The Hughes Court: From Progressivism to Pluralism, 1930-1941 (Cambridge University Press, 2022), a volume in the Oliver Wendell Holmes Devise History of the Supreme Court of the United States, by Mark V. Tushnet, the William Nelson Cromwell Professor of Law Emeritus at the Harvard Law School.  The HLS Library hosted a virtual symposium on the book last year, Georgetown Law wanted to celebrate its appearance as well, because Professor Tushnet was a former, longtime member of its faculty.  My colleague Brad Snyder organized the event, at which Laura Kalman, Distinguished Research Professor of History, University of California, Santa Barbara, and I gave remarks.  With her permission, Professor Kalman's appear below.  Mine follow in the next post.  We ask you to keep the setting in mind as you read them.  DRE.]

Professor Kalman's Remarks:

Like some of you, I bet, I have my own very particular vision of Heaven. It includes a fabulous library where those who've died can continue reading what authors have written about them.  When the authors themselves arrive, they sit down with their subjects in the library café and consume great amounts of pizza from Frank Pepe's and beer as authors and subjects chew over what the authors wrote.  Given the food, the library's beauty, and the fact that the mantra in my heaven is that reasonable people can disagree, these discussions are usually very cheerful.  

Now when it happens the lunch between Oliver Wendell Holmes, Felix Frankfurter, and Paul Freund after they've read the book, with Mark, who I hope doesn't arrive in Heaven until he's 120, may start out a tad tense.  Holmes is probably thrilled to see Mark.  He's got to be relieved someone has FINALLY finished this volume of the Devise. Frankfurter--not so much.  Frankfurter was obviously the moving force on the Court behind the Devise, having launched it "into high gear” (ha ha) in 1955--while Earl Warren was distracted by Brown II and calls to run for President after Ike's heart attack. Mark is no Frankfurter fan, and he's called Frankfurter "sloppy" about procedural matters dear to the justice's heart. And Frankfurter has got to be bothered by the fact that Mark said in 1976 that the "time has come to blow the whistle on the Holmes Devise History of the Supreme Court"-presumably because the volumes have been taking too long to get out, since Frankfurter and Freund assigned them to the wrong people.  And then there's Freund, general editor of the Devise before he was succeeded by Stan Katz, then Maeva Marcus.  Freund was also supposed to have written the Hughes Court volume, but he didn’t deliver. Frankfurter and Freund can't relish having Mark at Harvard, much less as an author of the sainted Holmes Devise that the justice promoted to provide proof that Harvard was superior in all things.
But if our luncheon guests put all these issues aside, as you're supposed to do in my heaven, I bet Frankfurter and Freund are absolutely wowed by Mark's spectacular book. It is a masterpiece right from the early sentence, "There was no Constitutional Revolution of 1937, and this is a book about it." Mark explodes tired old dualities like progressive-conservative, formalist-realist, internalist-externalist and shows how the justices navigated their way between formalism and social reality to shape progressivism into pluralism. And in my favorite sentences on page 1162 (Holmes Devises double as doorstops), Mark identifies a "constitutional revolution" "IN" 1937 in the precise location of Jones & Laughlin's "dismissal of Carter Coal as "not controlling."  Then Mark rightly adds, "And yet, because legal consciousness is never fully consolidated, it is also a mistake to describe a constitutional revolution OF 1937." Absolutely brilliant! To conclude, I revere this book, and Frankfurter and Freund should also!