WI: Hoover nominated a Conservative judge to replace Oliver Wendell Holmes

Thomas1195

Banned
IOTL, he nominated Cardozo, a liberal. What if he ended up nominating a conservative? ITTL there would be only 2 liberal judges compared to 5 conservatives.

How would this affect the New Deal?
 
dark side . . . quite possibly the supreme court strikes down more central parts of the New Deal earlier.

And then, quite frankly, if the New Deal fails, the Republic fails.
 
We're talking about 1932. Back in 1930, when the Senate was still overwhelmingly Republican, the conservative (at least that was his reputation) Parker was defeated due to a then-new coalition of organized labor, liberals, and the NAACP. Even the distinguished Hughes, who was hardly a reactionary, had only been confirmed 52-26 due to labor-liberal concerns about his work for big corporations. In 1932, of course, Hoover is in a much weaker position vis-à-vis the Senate than he was in 1930; the Republicans lost eight Senate seats in 1930 and the Depression had grown worse and worse and Hoover more and more unpopular in the meantime. A conservative simply could not be confirmed, and the last thing Hoover needs as he seeks re-election is a fight with the Senate, especially an unsuccessful one.

(Remember that at least with the previous two vacancies, they were of seats held by conservatives--Taft and Sanford, so appointing a conservative to replace them would not really change the balance on the Court. With Holmes, any replacement not a liberal would be moving the Court to the right--something that the Senate would have a hard time accepting even in 1930 and was in no mood to accept in 1932.)

As for why Cardozo was appointed, "Senator Robert Wagner, Senator William Borah, and many others urged him to select Cardozo, one of America's most distinguished jurists. 160 While the popular view is that President Hoover was overwhelmed by Cardozo's qualifications and yielded to public and professional pressure,161 the appointment was more probably the product of a pragmatic political decision by the President.162 For a while, Hoover apparently resisted sizeable pressure for Cardozo, yielding only when convinced that the appointment would be of political advantage.l63 As Justice Stone argued, albeit in a letter not addressed to President Hoover, '[t]he appointment is so obviously non-political that it will, paradoxically enough, be of great political advantage to the President. But, of course, that is always good presidential politics.'164 At the beginning of Hoover's battle for re-election, there was no better way to cultivate his image as a statesman than to select the respected Democratic judge from the most populous state in the union..." https://www.alternatehistory.com/forum/threads/justice-learned-hand.339654/ Appointing a Republican--even one with a liberal reputation like Learned Hand--would confer no such advantage (though Hand, unlike a conservative, would presumably have been confirmed).

And by the way it's not as though Hoover would have some strong ideological preference for a right-wing justice. He was wary of too-great expansion of federal power and would later applaud the Supreme Court cases striking down New Deal legislation; but the conservative decisions of the 1920's and 1930's that aroused the most controversy were those that struck down Progressive Era state laws aimed at protecting vulnerable workers (especially women) and Hoover was not necessarily opposed to such laws. In 1936, he criticized the Court's decision striking down the New York minimum wage law. https://books.google.com/books?id=hQAgAQAAQBAJ&pg=PA255
 
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. . . With Holmes, any replacement not a liberal would be moving the Court to the right--something that the Senate would have a hard time accepting even in 1930 and was in no mood to accept in 1932.) . . .
Oliver Wendell Holmes, Jr., might might listed on the scorecard as a liberal.

But Wow, looking at the Schenck (1919) and Buck (1927) decisions, I personally have a hard time seeing it.
 
Oliver Wendell Holmes, Jr., might might listed on the scorecard as a liberal.

But Wow, looking at the Schenck (1919) and Buck (1927) decisions, I personally have a hard time seeing it.

(1) Schenk was a unanimous case. That Holmes joined in the wartime anti-free-speech frenzy is less surprising than that he quickly began to disassociate himself from it in his Abrams dissent. https://www.law.cornell.edu/supremecourt/text/250/616 Not to mention later cases like his dissent in Gitlow, https://caselaw.findlaw.com/us-supreme-court/268/652.html his joining Brandeis's famous concurrence in Whitney, etc. https://caselaw.findlaw.com/us-supreme-court/274/357.html Taking his record as a whole, Holmes was definitely one of the more pro-free-speech justices of his time. (One should also note that he took a pro-civil-liberties position on some non-free-speech-related issues like wiretapping as in his Olmstead dissent.)

(2) On Buck v. Bell: eugenics was not really a left vs. right issues in those days--note that Brandeis joined in Holmes' opinion, and that the only dissenter was the very conservative Butler (which may have had something to do with his Catholicism--but it is hard to know Butler's rationale since he merely noted his dissent without writing an opinion).

(3) In general, in the 1930's Supreme Court justices were classified as liberal vs. conservative more than anything else on their willingness to sustain economic regulation laws (allegedly) passed for the benefit of the disadvantaged--and Holmes must also be considered a "liberal" in that sense, even though personally he thought much of that legislation unwise.

So, yes, as the word "liberal" was applied to Supreme Court justices in the 1930's, Holmes has to be considered a liberal, however dubious it may be to so classify him philosophically.
 
So, yes, as the word "liberal" was applied to Supreme Court justices in the 1930's, Holmes has to be considered a liberal, however dubious it may be to so classify him philosophically.

Philosophically, Lochner is probably the most liberal decision ever in American history.

Trying to use 1980-2020 American definitions of liberal and conservative to describe early 20th century US politics seems inherently misleading.
 
Philosophically, Lochner is probably the most liberal decision ever in American history.

By 1932 the use of "liberal" as more or less synonymous with "progressive" or "on the left but not far left" was firmly established, however much self-styled classical liberals might complain about it. (That the actual classical liberals were by no means as dogmatically anti-statist as the modern-day libertarians who claim to be their heirs has frequently been argued by Stephen Holmes, https://prospect.org/article/liberal-idea but that's another matter.)
 
By 1932 the use of "liberal" as more or less synonymous with "progressive" or "on the left but not far left" was firmly established, however much self-styled classical liberals might complain about it. (That the actual classical liberals were by no means as dogmatically anti-statist as the modern-day libertarians who claim to be their heirs has frequently been argued by Stephen Holmes, https://prospect.org/article/liberal-idea but that's another matter.)

I do agree that modern American "social liberalism" is largely a derivation of classical liberalism (as much as most of post-Goldwater American conservatism also is), but I don't think Holmes would in any sense fit into that. Yes, 1933 is a good year to start (FDR and the New Deal), but Holmes literally retired in 1932. Holmes was more Bismarck than FDR.
 
IOTL, he nominated Cardozo, a liberal. What if he ended up nominating a conservative? ITTL there would be only 2 liberal judges compared to 5 conservatives.

How would this affect the New Deal?

I think this might be more what you’re after. The Court strikes down a bigger part of the New Deal sooner. And Congress essentially says, Alright, you want to play hardball, we can play hardball.

United States Constitution, Article III

https://www.law.cornell.edu/constitution/articleiii

“ . . . the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make. . . ”
An exception and/or loophole big enough to drive a truck through!

Easily within the top three of unused or under-utilized parts of the United States Constitution, and arguably the single biggest one.
 
I think this might be more what you’re after. The Court strikes down a bigger part of the New Deal sooner. And Congress essentially says, Alright, you want to play hardball, we can play hardball.


An exception and/or loophole big enough to drive a truck through!

Easily within the top three of unused or under-utilized parts of the United States Constitution, and arguably the single biggest one.

(1) This doesn't deal with a situation where lower federal courts (or state courts) have found a statute unconstitutional. Remember in Butler the Court upheld a First Circuit decision finding the AAA unconstitutional. https://law.justia.com/cases/federal/appellate-courts/F2/78/1/1506359/ In Schechter, it is true, the Second Circuit had partially sustained the NRA but had "reversed the conviction on two counts which charged violation of requirements as to minimum wages and maximum hours of labor, as these were not deemed to be within the congressional power of regulation." https://supreme.justia.com/cases/federal/us/295/495/#tab-opinion-1934743 Indeed, in some cases the lower courts were more conservative than the Supreme Court. In Helvering v. Davis the Court sustained the constitutionality of the old-age pension provisions of the Social Security Act. Even two of the supposedly incorrigibly reactionary Four Horsemen (Van Devanter and Sutherland) concurred. (Only Butler and McReynolds dissented.) Yet the First Circuit had declared the Act unconstitutional! https://casetext.com/case/davis-v-edison-elec-illuminating-co-boston?resultsNav=false Had the Supreme Court been deprived of jurisdiction there would have been no way of reversing the First Circuit's decision.

(2) Even if some federal and state courts would be more liberal than the Supreme Court, as long as others were not, you would have a situation where the same federal law would be constitutional in some states and unconstitutional in others. This can lead to chaos and the frustration of laws whose whole purpose was after all to deal with national problems. I don't think I have to explain at length that a situation where the federal government could collect Social Security taxes in New York City and Los Angeles but not Chicago or Boston or Philadelphia could cause problems.

(3) Finally, it is uncertain how far Congress' powers under the Exceptions Clause goes. I am myself extremely skeptical of some of the limitations (e.g., that the clause can't be used to undermine the "essential functions" of the Court) that have been suggested by Professors Hart and Ratner. https://books.google.com/books?id=2gQSBAAAQBAJ&pg=RA1-PA104 Also at one point Raoul Berger "had emphasized the founders' fear of legislative power and concluded that the clause was intended only to prevent revision of local jury findings of fact" (Berger later changed his mind about that). https://books.google.com/books?id=NFy6N6dRhT0C&pg=PA130 But the question is not whether these theories are sound--the question is, What if the Court agrees with these theories and declares the law limiting its jurisdiction unconstitutional?

So, no, the Exceptions Clause would not be a satisfactory remedy for liberals dissatisfied with a conservative Supreme Court in the 1930's. With all its faults, court packing would at least work in the sense of getting progressive legislation sustained nationally (and would be harder to challenge than legislation passed under the Exceptions Clause). Ironically, though, neither of these flawed remedies was necessary. All the Congress had to do was pass the Summers bill letting Supreme Court justices retire on full pay! https://www.alternatehistory.com/fo...-pack-the-supreme-court.415710/#post-14715169

This is all academic because in 1932 Hoover is not going to appoint a reactionary Justice and if he does the Senate is not going to confirm him. If you want a more right-wing Court in the 1930's there are more plausible ways to get it--maybe have Brandeis in the early 1920's step down from the Court to lead the World Zionist Organization, as he considered doing. https://books.google.com/books?id=lN4zG5Qb1lwC&pg=PA274
 
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(1) Schenk was a unanimous case. That Holmes joined in the wartime anti-free-speech frenzy is less surprising than that he quickly began to disassociate himself from it in his Abrams dissent. https://www.law.cornell.edu/supremecourt/text/250/616
So, the Supreme court was not there in one of the worse cases of war hysteria in U.S. history. And case involving Charles Schenck was decided in 1919, when they could have been a little open and gracious about it!

to me, this is what’s most important,

and then we can talk about how things started to improve and/or whether Holmes was better than average.
 
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So, the Supreme court was not there in one of the worse cases of war hysteria in U.S. history. And case involving Charles Schenck was decided in 1919, when they could have been a little open and gracious about it!

to me, this is what’s most important,

and then we can talk about how things started to improve and/or whether Holmes was better than average.

You have no idea how furious the reaction to his Abrams dissent was--remember this was the height of the Red Scare. For a scathing attack, see John Henry Wigmore (one of America's greatest lawyers) at https://books.google.com/books?id=ghBLAAAAYAAJ&pg=PA539 (The title says it all: "Abrams v. United States: Freedom of Speech and Freedom of Thuggery in War-Time and Peace-Time."

This particular paragraph is a doozy:

"The reason, then, that we should view the Minority Opinion with apprehension is that it is symptomatic. Hundreds of well-meaning citizens—"parlor bolsheviks" and "pink radicals," as the phrase goes—are showing a similar complaisant or good-natured tolerance to this licensing of the violence-propaganda. If such treacherous thuggery as these circulars, designed to hamstring our boys in France, and issued amidst the anxieties and agonies of wartime, could be calmly condoned by those who sit on high, what may we expect in peace-time, now that the easy moments have returned, and the forces of impatient fanaticism are let loose upon our constitutional government?"
 
Philosophically, Lochner is probably the most liberal decision ever in American history. . .
I’m not sure why an economically liberal approach has to ignore the negotiation imbalance between individual and corporation.

For example, I think overtime laws are a stroke of genius, and are probably smarter than anything we human beings have a right to! :openedeyewink: They spread out available jobs. And you’re not telling corporations they can’t work their people long hours, you’re just saying there’s a medium penalty if they do. I think these laws probably score as economically efficient on several dimensions.

And then, instead of various socialist models, I’d prefer talking about the East Asian Miracle (1960 - present), the Tiger economies, the Tiger cubs, etc, as governments which smartly complement markets and learn and get better as they go along. To me, this is a much bigger challenge to Victorian laissez faire than are the socialist models.
 
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(1) This doesn't deal with a situation where lower federal courts (or state courts) have found a statute unconstitutional. Remember in Butler the Court upheld a First Circuit decision finding the AAA unconstitutional. https://law.justia.com/cases/federal/appellate-courts/F2/78/1/1506359/ . . .
I am not talking about allowing ourselves to be gray-area-ed.

I'm talking about when Congress repasses New Deal legislation stating, "Per section 2, Article 3 of the United States Constitution, this legislation is not subject to Supreme Court review." And then if a lower court rules whichever way, we simply repeat that like a broken record.

And this is only radical in U.S. terms.

Most parliamentary democracies have a central court, they just don't near concede the amount of power we do. And/or allow the court to usurp power, when the primary commitment of judges is to various formalistic standards. So, the first thing we might look at is how the UK does things, then Canada, Germany (before things went to shit), France, Poland, Hungary, Greece, etc., etc.

It's we the U.S. who are out of step.
 
I am not talking about allowing ourselves to be gray-area-ed.

I'm talking about when Congress repasses New Deal legislation stating, "Per section 2, Article 3 of the United States Constitution, this legislation is not subject to Supreme Court review." And then if a lower court rules whichever way, we simply repeat that like a broken record..

And (some) lower courts continue to find it unconstitutional. They enjoin it in their jurisdictions before it can even begin to be enforced. They can be as patient as Congress. So again the law is only enforceable in some jurisdictions and not in others.

Why go to all that trouble just to get a law enforceable in some places? Court packing, whatever the arguments against it, would at least produce uniformity of laws.
 
. . . Also at one point Raoul Berger "had emphasized the founders' fear of legislative power and concluded that the clause was intended only to prevent revision of local jury findings of fact" (Berger later changed his mind about that). https://books.google.com/books?id=NFy6N6dRhT0C&pg=PA130#v=onepage&q&f=false
. . .
On re-reading, this might be approaching the crux of where we disagree.

I view our Constitution as very Congress-centric. Yes, there are direct limitations on legislative powers, but there are also parts such as only Congress can declare war, revenue bills must originate in the House, etc. Plus, Article I is by far the longest. Article II (executive) and Article III (judicial) are quite a bit shorter. In my view, the major decisions are intended to be made in Congress and then implemented in relatively straightforward fashion by the president and the courts. So, the president is intended to be a competent executive, but not too much more than that. And of course, various emergencies have pushed us away from this.

So, the whole theory of three co-equal branches is at least decades after the fact, and probably longer.
 
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I mean, Article I (legislative) is the entire first column. Article III (judicial) is a small little section in the middle of the second column.
 
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On re-reading, this might be approaching the crux of where we disagree.

I don't quite get what you mean by that. I wasn't endorsing Berger's theory on the limits of Congress' power to take jurisdiction away from the Supreme Court--in fact, I noted that he himself had backed way from it. I also expressed skepticism about Henry Hart and Leonard Ratner's arguments (e.g., Hart's that "exceptions must not be such as will destroy the essential role of the Supreme Court in the constitutional plan"--I agree with those who say this is question-begging. https://books.google.com/books?id=s6BcDgAAQBAJ&pg=PT200) To be sure, there is the problem that these arguments, which seem unpersuasive to me, might persuade the Court, but even that is not my main argument against the use of the Exceptions Clause in the 1930's.

My main argument is that the Exceptions Clause was simply not a good weapon for liberals in the 1930's because it deals solely with the appellate jurisdiction of the Supreme Court. It says nothing about the lower federal courts or the state courts--yet some of these were as conservative as the US Supreme Court or more so, and might find progressive statutes unconstitutional within their jurisdictions--with no appeal to the Supreme Court possible. Thus, as I noted, the First Circuit found the old-age pension provisions of the Social Security Act unconstitutional--the Supreme Court, even including Van Devanter and Sutherland, disagreed. If the Social Security Act had provided that the Supreme Court could not review cases dealing with the constitutionality with the Act, Social Security taxes could not be collected in Boston (were the First Circuit sits) but could be collected in other parts of the country where courts upheld the Act--clearly an unworkable situation.

Or are you arguing that Congress should divest the lower federal courts of jurisdiction as well? But that would not come under the Exceptions Clause, which applies exclusively to the Supreme Court. It would come under Congress' Article III power to "ordain and establish" lower federal courts https://www.law.cornell.edu/constitution/articleiii (plus the "necessary and proper" clause.) In any event, it is extremely doubtful that Congress could deprive both the Supreme Court and the lower federal courts of jurisdiction over federal question cases. See Akhil Reed Amar's argument that "Congress's exceptions power also includes the power to shift final resolution of any cases within the Supreme Court's appellate jurisdiction to any other Article III court that Congress may create. The corollary of this power is that if Congress chooses to make exceptions to the Supreme Court's appellate jurisdiction in admiralty or federal question cases, it must create an inferior-federal court with jurisdiction to hear such excepted cases at trial or on appeal; to do otherwise would be to violate the commands that the judicial power "shall be vested" in the federal judiciary, and "shall extend to all" federal question and admiralty cases." https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=2026&context=fss_papers (Of course, even if Congress could deprive both the Supreme Court and lower federal courts of jurisdiction, there would still be the state courts to declare New Deal legislation unconstitutional--and many of the state courts were exceedingly conservative.)

BTW, I agree that Congress (especially when it is in accord with the president) is much stronger than the Court--if only because it has the power to pack the Court. (There are of course other reason for the Court's relative weakness, among them the problems it has enforcing its judgments without cooperation from the other branches.) But that is quite distinct from the question of whether the Exceptions Clause would be an effective means of getting liberal legislation validated in the 1930's.
 
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