Switching Time and Other Thought Experiments: The Hughes Court and Constitutional Transformation
For the most part, the Supreme Court's decisions in 1932 and 1933 disappointed liberals. The two swing Justices, Chief Justice Charles Evans Hughes and Justice Owen J. Roberts, seemed to have sided more with the Court's four conservatives than with its three liberals. Between early 1934 and early 1935, however, the Court issued three thunderbolt decisions, all by five-to-four votes on the liberal side and with either Hughes or Roberts writing for the majority over the dissent of the conservative foursome: in January 1934, Home Building & Loan Ass'n v. Blaisdell' severely limited the extent to which the Contracts Clause of Article I, Section 10 of the Constitution forbids state debtor protection legislation; in March, Nebbia v. New York2 stated in expansive terms the power of the state to regulate prices and in narrow terms the restraint imposed on the states by substantive due process; and in February 1935, the Gold Clause Cases refused to allow preexisting contractual provisions to obstruct the New Deal's daring changes in monetary policy.3 Suppose that shortly before the Blaisdell decision-rather than in 1937-President Franklin Roosevelt unveiled a plan to pack the Court with six additional members, and that the debate over the plan lasted until after the Gold Clause decisions. Would it not have been obvious that the votes of Hughes and Roberts in these three cases resulted from the political pressure created by the plan and, with respect to the Gold Clause Cases, by the thumping Democratic victory in the 1934 elections?
Friedman, Richard D. "Switching Time and Other Thought Experiments: The Hughes Court and Constitutional Transformation." U. Pa. L. Rev. 142, no. 6 (1994): 1891-984.
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