Academic journal article Notre Dame Law Review

The Jurisprudence of the Hughes Court: The Recent Literature

Academic journal article Notre Dame Law Review

The Jurisprudence of the Hughes Court: The Recent Literature

Article excerpt

D. Parrish

Professor Parrish distances himself from "traditional accounts" that "emphasize the importance of 1937 and argue that the Hughes Court executed a sudden constitutional revolution, an abrupt departure from earlier rulings when it came under intense political pressure from Roosevelt and Congress." (414) Instead, he clearly associates himself with "[r]evisionist interpretations" that "stress a more gradual constitutional evolution during the decade, one with doctrinal roots that reached back to the jurisprudence of the Taft and White eras." (415) He maintains that "[t]he year 1937, dominated by the 'Court-packing' fight and the Court's endorsement of critical New Deal reforms, has loomed so large in histories of the era that it has tended to oversimplify the convoluted course of constitutional development during the decade," (416) and urges greater attention to "the internal dynamics of legal reasoning and the more astute lawyering of the Roosevelt administration and its allies after 1935." (417) He rejects the contentions of scholars such as Edward Corwin and Bruce Ackerman that American constitutional law underwent a "sea change" during Hughes's tenure. (418) While he recognizes that decisions such as Nebbia, West Coast Hotel, and Jones & Laughlin "formally emancipated both state and federal governmental authority from constitutional constraints that had limited their regulatory functions over the previous half century," he insists that those constraints "had been weakened significantly during the progressive movement prior to World War I and even during the years of so-called constitutional fundamentalism under Chief Justice Taft. The depression decade," on this view, "provided the occasion for their final interment through a slow ritual that might have been shortened had the Court not been often sharply divided and, like most courts, unwilling to break too suddenly from the doctrinal grooves laid down in the past." (419) "In short, the Hughes Court finally confirmed the revolution in the relationship between the state and the American economy, one made ad hoc, piece by piece, at least since the eras of Theodore Roosevelt and Woodrow Wilson." (420) "American constitutional law," he concludes, "has been one long, winding river of development. So, too, with Hughes and his brethren. The road to West Coast Hotel, Jones iff Laughlin, or Herndon v. Lowry had been mapped, however faintly, by those jurists who came before them." (421)

Professor Parrish recognizes the important role that the narrow category of '"businesses affected with a public interest'" played in limiting government power to regulate wages and prices before 1934. (422)

   Marshaling a slim majority of five, the Hughes Court methodically
   chipped away at this inherited due process limitation beginning in
   1931 with O'Gorman & Young v. Hartford Fire Insurance Co., which
   sustained a legislative regulation of the commissions paid to
   insurance agents by their companies. Nebbia three years later
   effectively eliminated "business affected with a public interest"
   as a due process barrier to price regulations mandated by the
   state.... (423)

"The Four Horsemen, who dissented [in Nebbia], rightly regarded this judicial innovation as one that opened wide the doors to legislative control of the economy. Blaisdell and Nebbia, it can be argued, represented a significant shift in constitutional doctrine equal to any that came later." (424) For Nebbia "ultimately laid the foundation for the successful defense of state and federal minimum wage legislation," (425) "and the walls came tumbling down on minimum wage statutes with West Coast Hotel v. Parrish (1937), despite the brief procedural detour taken in Morehead v. New York ex rel. Tipaldo (1936)." (426)

With respect to developments in the Court's federalism jurisprudence, Professor Parrish emphasizes the importance of the doctrinal categories the Hughes Court Justices inherited, and the inattentiveness of early New Deal lawyers to the restraints those categories imposed. …

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