Barry Cushman, Notre Dame Law School, is publishing Vote Fluidity on the Hughes Court: The Critical Terms, 1934-1936 in the University of Illinois Law Review. Here is the abstract.
This article makes four principal claims. The first is that the justices of the Hughes Court often changed their positions in major cases between the time that they cast their votes in conference and their final votes on the merits. The second is that the Court achieved comparatively high rates of unanimity even during its most turbulent Terms because justices who had served on earlier Courts had internalized a norm counseling those who lost at the conference vote to acquiesce in the judgment of the majority. The third is that the justices who most frequently did so in this period’s major cases were those widely considered to be its most recalcitrant conservatives: James Clark McReynolds and Pierce Butler. The fourth concerns the common claim that Chief Justice Charles Evans Hughes, for the purpose of lending greater credibility to judgments rendered by a divided Court, frequently changed his vote in major cases so as transform what would have been 5-4 decisions into cases decided by a vote of 6-3. This article contends that such a claim finds little support in the sources by which it could be most reliably verified or refuted. Until recently, it would have been quite challenging to substantiate any of these claims. 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. Recently, however, the Court adopted new guidelines designed to increase access to the docket books for researchers. This article offers a report and analysis based on a review of all of the docket books that the Curator’s Office holds from the critical 1934-1936 Terms of the Hughes Court. This review includes sixty-two major decisions concerning the Commerce Clause, the dormant Commerce Clause, substantive due process, equal protection, labor relations, intergovernmental tax immunities, criminal procedure, civil rights, and civil liberties. Analysis of the voting data in the docket books offers a novel contribution to the extensive political science literature on judicial behavior, specifically to the scholarship on vote fluidity and unanimity norms in the Supreme Court.Download the article from SSRN at the link.