The clerks of the Four Horsemen (Part II, George Sutherland and Pierce Butler)

For many years, the docket books kept by a number of the justices of the Hughes Court 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. Recently, however, the Court adopted new guidelines designed to increase access to the docket books for researchers. This article offers the first-ever examination of the available docket book entries relevant to what scholars commonly regard as the major decisions of rendered during the late years of the Hughes Court, from the 1937 through the 1940 Terms. The decisions examined concern the Commerce Clause, the dormant Commerce Clause, substantive due process, equal protection, the general law, antitrust, labor relations, intergovernmental tax immunities, criminal procedure, civil rights, and civil liberties. The information in the docket books sheds new light on decisions such as Erie Railroad v. Tompkins, South Carolina State Highway Department v. Barnwell Bros., Inc., Lane v. Wilson, Railroad Commission of Texas v. Pullman, and United States v. Darby Lumber Co., and helps to explain how a nine-justice Court divided evenly on one of the issues in Coleman v. Miller. The docket books often reveal the justices' remarks at their conference deliberations over major cases, and illuminate many previously unknown changes in justices' positions between the conference votes and their final votes on the merits. Analysis of the voting data contained in the docket books also offers a contribution to two bodies of political science scholarship on judicial behavior: *John P. Murphy Foundation Professor of Law, University of Notre Dame, bcushman@nd.edu.Thanks to Matthew Hofstedt, Devon Burge, Franz Jantzen, Lauren Morrell, Nikki Peronace, and Erin Huckle, all of the Office of the Curator of the Supreme Court of the United States, for their kind hospitality and splendid assistance with the Hughes Court docket books; to Jon Ashley, Dwight King, Kent Olson, Cathy Palombi, and Janet Rose for their cheerful and excellent research assistance; and to Michael Gilbert, John Harrison, Greg Mitchell, and participants in the Notre Dame Law School Faculty Colloquium for valuable comments and conversation. OThe Author 2015. Published by Oxford University Press. All rights reserved. For Permissions, please email: journals. permissions@oup.com AMERICAN JOURNAL OF LEGAL HISTORY the literature on vote fluidity and unanimity norms in the Supreme Court, and the literature on the so-called "freshman effect" that some scholars have found exhibited by the Court's newest members. In particular, the analysis documents the prominent contribution that new justices, who disdained the Court's longstanding norm of acquiescence in the judgments of conference majorities, made to the substantial increase in the percentage of its cases that the Court decided by a divided vote. The analysis further reveals the significant part played by the last remnants of the Old Court in retarding what would become a precipitous decline in unanimity rates under Chief Justice Harlan Fiske Stone. For many years, the docket books kept by a number of the Hughes 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 provides the first report on and analysis of the contents of all the docket books that the Curator's Office holds for the late Hughes Court, comprising the 1937-1940 Terms. Only one of the entries in these docket books has been examined and reported on before.' This article canvasses the available docket book entries relevant to what scholars commonly regard as the major decisions of the late Hughes Court. 2 This review includes seventy-six 1 Professor Daniel Ernst has reported on Justice Butler's entry for Morgan v. United States, 304 U.S. 1 (1938). See Daniel R. Ernst, Tocqueville's Nightmare: The Administrative State Emerges in America, 1900-1940, 186 n.115 (Oxford, New York, 2014) (citing Butler OT 1937 Docket Book). The existence of docket books of Justices Pierce Butler and Harlan Fiske Stone for several of the Terms of Chief Justice William Howard Taft's tenure was brought to the attention of the scholarly community by Robert Post, The Supreme Court Opinion as Institutional Practice: Dissent, Legal Scholarship, and Decisionmaking in the Taft Court, 85 Minn. L. Rev. 1267 (2001). 2 The cases selected as "major" or "salient" are those that regularly appear in scholarly treatments of the early Hughes Court. See, e.g., William G. Ross, The Chief Justiceship of Charles Evans Hughes, 1930-1941 (Univ. of South Carolina, Columbia, S.C., 2007); Michael E. Parrish, The Hughes Court: Justices, Rulings, Legacy (ABACLIO, 2002); G. Edward White, The Constitution and the New Deal (Harvard, Cambridge, Mass., 2000); Barry Cushman, Rethinking the New Deal Court: The Structure of a Constitutional Revolution (Oxford, New York, 1998); William E. Leuchtenburg, Vol. 55 362 THE HUGHES COURT DOCKET BOOKS: THE LATE TERMS cases3 concerning areas of law as diverse as the Commerce Clause, the dormant Commerce Clause, substantive due process, equal protection, the general law, antitrust, labor relations, intergovernmental tax immunities, criminal procedure, civil rights, and civil liberties. The information in the docket books sheds particularly fascinating new light on decisions such as Erie Railroad v. Tompkins,4 South Carolina State Highway Department v. Barnwell Bros., Inc., Lane v. Wilson, Coleman v. Miller,' and United States v Darby Lumber Co.8 In addition, for these and the many other cases examined, this article also reports on whether a unanimous decision was also free from dissent at conference or became so only because The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt (Oxford, New York, 1995); Alpheus Thomas Mason, Harlan Fiske Stone: Pillar of the Law (Viking, New York, 1956); Barry Cushman, The Secret Lives of the Four Horsemen, 83 Va. L. Rev. 559 (1997); Richard D. Friedman, Switching Time and Other Thought Experiments: The Hughes Court and Constitutional Transformation, 142 U. Pa. L. Rev. 1891 (1994). I have selected these cases not with an eye toward obtaining a representative sample of the Court's output, but instead because of the interest that previous scholars have shown in them. Scholars may differ concerning the inclusion or exclusion of particular cases from this category, and the statistical discussion in the Conclusion must be read with that caveat in mind. Notwithstanding such potential differences, however, my effort has been to select cases about which I believe there would be a broad measure of agreement. For other scholarship exploring judicial behaviour in "major" or "salient" cases, see Forrest Maltzman & Peter J. Wahlbeck, Strategic Policy Considerations and Voting Fluidity on the Burger Court, 90 Am. Pol. Sci. Rev. 581, 589 (1996); Robert H. Dorff & Saul Brenner, Conformity Voting on the United States Supreme Court, 54 J. Politics 762, 772, 773 (1992); Timothy M. Hagle & Harold J. Spaeth, Voting Fluidity and the Attitudinal Model of Supreme Court Decision Making, 44 Western Political Quarterly 119, 124 (1991); Saul Brenner, Timothy Hagle, & Harold J. Spaeth, Increasing the Size of Minimum Winning Coalitions on the Warren Court, 23 Polity 309 (1990); Saul Brenner, Timothy M. Hagle, & Harold J. Spaeth, The Defection of the Marginal Justice on the Warren Court, 42 Western Political Quarterly 409 (1989); Saul Brenner, Fluidity on the Supreme Court: 1956-1967, 26 Am. J. Pol. Sci. 388, 389 (1982); Saul Brenner, Fluidity on the United States Supreme Court: A Reexamination, 24 Am. J. Pol. Sci. 526, 530 (1980); Ellliot E. Slotnick, Who Speaks for the Court? Majority Opinion Assignment from Taft to Burger, 23 Am. J. Pol. Sci. 60 (1979). 3 This count includes five cases decided per curiam. I exclude from this count National Licorice Co. v. NLRB, 309 U.S. 350 (1939), discussed infra, n. 55, because disparities in the conference records pose difficulties of classification. 4 304 U.S. 64 (1938). 5 303 U.S. 177 (1938). 6 307 U.S. 268 (1939). 7 307 U.S. 433 (1939). 8 312 U.S. 100 (1941). 2015 363 AMERICAN JOURNAL OF LEGAL HISTORY one or more justices acquiesced in the judgment of their colleagues, as well as on whether non-unanimous decisions were divided by the same vote and with the same alliances at conference. The docket books also provide records of instances in which a case that initially was assigned to one justice was later reassigned to another. These records afford us some insight into the kinds of cases in which this tended to occur. A review of the docket books of the late Hughes Court also makes possible two contributions to the political science literature on judicial behavior. The first is to the scholarship on vote fluidity and unanimity norms in the Supreme Court. It is widely agreed that the period from the Chief Justiceship of John Marshall through that of Charles Evans Hughes was characterized by a "norm of consensus," "marked by individual justices accepting the Court's majority opinions."9 It is generally believed that this norm of consensus collapsed early in the Chief Justiceship of Harlan Fiske Stone,'0 though some scholars have pointed to causes that antedate Stone's elevation to the center chair.1 Still others have suggested that there 9 Pamela C. Corley, Amy Steigerwalt, & Artemus Ward, Revisiting the Roosevelt Court: The Critical Juncture from Consensus to Dissensus, 38 J. Sup. Ct. Hist. 20, 22 (2013); Mark S. Hurwitz & Drew Noble Lanier, I Respectfully Dissent: Consensus, Agendas, and Policymaking on the U.S. Supreme Court, 1888-1999, 21 Review of Policy Research 429, 429 (2004); Lee Epstein, Jef