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

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?"

Holmes' reply was a classic: "Colonel Wigmore may be a better lawyer than I am. but I think I know a little more about war than he does..." https://archive.org/details/in.ernet.dli.2015.499889/page/n129
 
211486-2121x1414-Please-give-my-dad-a-job.jpg


https://jobs.lovetoknow.com/Unemployment_During_the_Great_Depression

So peaking at 25% unemployment and with 10% unemployment lasting for years,

we’re going to at least consider saying, well, we just can do anything because of the supreme court, we’re just poor, pitiful helpless people.

We’d never say we couldn’t fight World War II because of the Supreme court.
 
And in both cases, it’s more like working rather than fighting.

We need to be active in trying a number of things, and as honest as we can with ourselves as far as what’s working and what’s not, steering and correcting our course as we go.

And even with war, so much is logistics and managing a series of ramp ups, short- , medium-, and long-term, that we can at least say the working part of war is equally important to the fighting part.
 
https://jobs.lovetoknow.com/Unemployment_During_the_Great_Depression

So peaking at 25% unemployment and with 10% unemployment lasting for years,

we’re going to at least consider saying, well, we just can do anything because of the supreme court, we’re just poor, pitiful helpless people.

We’d never say we couldn’t fight World War II because of the Supreme court.

One thing to remember: large parts of the New Deal were never in any danger from conservatives on the Court--e.g., the public works programs like the WPA (which after all were the most obvious measures the New Deal aimed at unemployment). Even conservatives justices conceded that the federal government had the right to tax and spend for the general welfare of the United States and that this meant for purposes besides those specified elsewhere in the Constitution. (In other words, the Court accepted the Alexander Hamilton-Joseph Story interpretation of the General Welfare Clause rather than Madison's--and ironically did so in the very case in which it found the AAA unconstitutional. https://en.wikipedia.org/wiki/United_States_v._Butler) In Ashwander v. TVA, which in effect upheld the TVA, McReynolds was the only dissenter. https://supreme.justia.com/cases/federal/us/297/288/ Likewise, as I mentioned, the old-age pension provisions of the Social Security Act were upheld 7-2--so one or even two additional conservatives on the Court would not lead to its invalidation. When Frances Perkins asked Justice Stone how to find constitutional authority for Social Security, he supposedly replied "The taxing power of the Federal Government, my dear; the taxing power is sufficient for everything you want and need." https://www.ssa.gov/history/tea.htm (Other versions have him talking about the spending power.)

So no, it is not true that a more conservative Court would invalidate the whole New Deal and paralyze any federal attempts to end the Depression. Indeed, "Arthur Schlesinger described a conscious decision, in deference to conservative congressional opposition as well as judicial obstacles to economic planning, to utilize the taxing and spending power rather than the regulatory powers of the national government in the Second New Deal. Walter Lippmann thus distinguished between a "Directed" and a "Compensated" Economy. This "Compensated Economy," which allowed free markets to operate but insured individuals against what Roosevelt had called the market's "hazards and vicissitudes," formed the New Deal's ameliorative core." https://www.nationalaffairs.com/publications/detail/a-constitutional-welfare-state

Alll the same, some things a more conservative Court would do would be unpopular. But they would probably be short-lived, and not just because of the threat of court-packing; as I mentioned, at least two of the conservative justices (Van Devanter and Sutherland) realy wantred to retire if they vould only do so on full pay.
 
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. . . (In other words, the Court accepted the Alexander Hamilton-Joseph Story interpretation of the General Welfare Clause rather than Madison's--and ironically did so in the very case in which it found the AAA unconstitutional. https://en.wikipedia.org/wiki/United_States_v._Butler) . . .
Sounds complicated. And sounds like what the court is among the best at is building its own power.

From a couple years back, I did this thread:

WI: U.S. Supreme Court loses credibility from pair of child labor decisions in 1918 and 1922?
https://www.alternatehistory.com/fo...hild-labor-decisions-in-1918-and-1922.383840/

It wasn't that the Court opted not to take an opportunity to declare child labor an abusive practice. Congress had already taken action, generally using the taxing power to bring the products of cheaper child labor more in line with adult labor. And the "supreme" Court said, Oh, no, you can't do that.

And in a number of other cases, the Supreme Court has been on the wrong side of history, and when it matters.
 
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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 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.

What do you think of this article https://www.jstor.org/stable/361775, regarding Holmes's ideology? Also, as Holmes personally opposed many of the economic regulation laws, why did he, famously, say "I like to pay taxes-- with them I buy civilization"?
 
Often when I'm at my best I feel that while my diagnosis may be strong and emphatic, my prescription is very moderate and middle-of-the-road.

So, yes, I believe that the so-called Supreme Court has been a bust and a disappointment. But as far as remedy, I'm mainly just saying, Okay, let's first look at how they do things in the UK.
 
What do you think of this article https://www.jstor.org/stable/361775, regarding Holmes's ideology? Also, as Holmes personally opposed many of the economic regulation laws, why did he, famously, say "I like to pay taxes-- with them I buy civilization"?

(1) As I said, I am not concerned with whether Holmes' personal philosophy was "liberal" or "conservative." My point was simply that he was operationally "liberal" on the Supreme Court in the sense in which the word was used in 1932--willing to uphold government regulations of the economy--and that his replacement by a justice considered "conservative" in 1932 would be politically very difficult to get thtough the Senate (even if the "conservative" considered himself a "true" or "classical" liberal).

(2) "Taxes are what we pay for civilized society" https://quoteinvestigator.com/2012/04/13/taxes-civilize/ is a banality and doesn't really tell you whether a person is a liberal or a conservative--though it does make clear he isn't an anarchist...
 
(1) As I said, I am not concerned with whether Holmes' personal philosophy was "liberal" or "conservative." My point was simply that he was operationally "liberal" on the Supreme Court in the sense in which the word was used in 1932--willing to uphold government regulations of the economy--and that his replacement by a justice considered "conservative" in 1932 would be politically very difficult to get thtough the Senate (even if the "conservative" considered himself a "true" or "classical" liberal).

(2) "Taxes are what we pay for civilized society" https://quoteinvestigator.com/2012/04/13/taxes-civilize/ is a banality and doesn't really tell you whether a person is a liberal or a conservative--though it does make clear he isn't an anarchist...

(1) I agree that it would be impossible to get a conservative confirmed to succeed Holmes in 1932, I was just asking for your opinion on that article.
 
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