Document Type

Article

Publication Date

1-1996

Abstract

When Justice Oliver Wendell Holmes, Jr., died in 1935, he left the bulk of his estate to the United States Government. This gift, known as the Oliver Wendell Hnlmes Devise, sat in the Treasury for about twenty years, until Congress set up a Presidential Commission to determine what to do with it. The principal use of the money has been to fund a multivolume History of the United States Supreme Court. The history of the project itself has not always been a happy one, for some of the authors have been unable to complete their volumes. Among them was one of my teachers, the late Paul Freund, who was the first general editor of the project and also planned to write the volume on the period in which Charles Evans Hughes was Chief Justice, from 1930 to 1941. I have had the good fortune to receive the succeeding assignment to write this volume. I feel fortunate to be part of the Devise History not only because it places me in a wonderful neighborhood of authors, but also because it is a tremendously important prosect; its period of gestation has been very long, but so will be its shelf-life. And I feel particularly fortunate to have the Hughes Court assignment not only because I have already spent considerable time studying the Hughes Court - in what seems like a prior life, I wrote a dissertation on Hughes as Chief Justice - but also because of the importance of the period. For the Court, as for society at large, this was an era of enormous turmoil and transformation. Indeed, I believe it was "The Crucible of the Modern Constitution." That, at any rate, will be the subtitle of my volume. The period began with what has been called the old constitutionalism still apparently dominant, continued through the crisis that culminated in the struggle over Franklin Roosevelt's plan to pack the Court in 1937, and ended as the Justices appointed by Roosevelt consolidated their hold on the Court and on the dramatically new constitutionalism that still prevails. So I have a story to tell and a mystery to solve. The story is of how this transformation was achieved. And at the heart of the ston lies this mystery: In the spring of 1937, shortly after Roosevelt's landslide re-election victory and during the height of the Court-packing battle, the Court seemed suddenly to become more liberal. To what extent, if any, did these political factors account for this apparent suitch? But implicit in this question, as I have phrased it, is another: To what extent was there actually a suitch?

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