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During the 1920s, over repeated dissents by Justices Holmes, Brandeis, and Stone, the Supreme Court under Chief Justice Taft had been unprecedentedly aggressive in striking down social and economic regulation.1 In 1930, when Taft resigned, President Hoover turned naturally to Charles Evans Hughes, who had distinguished himself not only as governor of New York and as secretary of state but also as associate justice from 1910 until 1916.2 In that capacity, Hughes had tended to vote with Holmes to uphold economic regulation, and he had taken a strikingly broad view of the federal commerce power.3 The sudden death of Justice Sanford later the same year thus left a Court that could be expected to divide four to four on basic questions of regulatory authority. As the country slid ever deeper into depression, and as legislators and executives turned toward increasingly intrusive regulation as an antidote, the question of Sanford's replacement assumed extraordinary importance. After liberal senators defeated his first nominee for the crucial ninth seat,4 President Hoover appointed Owen J. Roberts of Penn-

The Constitution in the Supreme Court: The New Deal, 1931-1940