Supreme Court Review

Article Title

Inside the “Constitutional Revolution” of 1937


The nature and sources of the New Deal Constitutional Revolution are among the most discussed and debated subjects in constitutional historiography. Scholars have reached significantly divergent conclusions concerning how best to understand the meaning and the causes of constitutional decisions rendered by the Supreme Court under Chief Justice Charles Evans Hughes. Though recent years have witnessed certain refinements in scholarly understandings of various dimensions of the phenomenon, the relevant documentary record seemed to have been rather thoroughly explored. Judicial opinions, case records and appellate briefs, congressional hearings and debates, scholarly and popular commentary, and the papers of the Justices all had been examined in considerable detail. Though further review of the papers of government lawyers promised to shed additional light on aspects of the period’s legal and constitutional development, it appeared that the portion of the documentary record illuminating the intentional states of the Justices had been exhausted. Recently, however, a remarkably instructive set of primary sources has become available. 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. These docket books supply a wealth of information concerning the internal deliberations of the Justices, much of which has been analyzed in detail elsewhere. This article considers what the docket books can teach us about the cases comprising what some have called the “switch-in-time”: West Coast Hotel Co. v Parrish, which upheld Washington state’s minimum-wage law for women and overruled Adkins v Children’s Hospital; the Labor Board Cases, which upheld the constitutionality of the National Labor Relations Act; and the Social Security Cases, which upheld the constitutionality of provisions of the Social Security Act establishing an old-age pension system and a federal-state cooperative plan of unemployment insurance, as well as corresponding state unemployment compensation statutes.

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