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Brandeis and the Progressive Constitution

Brandeis and the Progressive Constitution: Erie, the Judicial Power, and the Politics of the Federal Courts in Twentieth-Century America

Copyright Date: 2000
Published by: Yale University Press
Pages: 432
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  • Book Info
    Brandeis and the Progressive Constitution
    Book Description:

    During the twentieth century, and particularly between the 1930s and 1950s, ideas about the nature of constitutional government, the legitimacy of judicial lawmaking, and the proper role of the federal courts evolved and shifted. This book focuses on Supreme Court justice Louis D. Brandeis and his opinion in the 1938 landmark caseErie Railroad Co. v. Tompkins,which resulted in a significant relocation of power from federal to state courts. Distinguished legal historian Edward A. Purcell, Jr., shows how theEriecase provides a window on the legal, political, and ideological battles over the federal courts in the New Deal era. Purcell also offers an in-depth study of Brandeis's constitutional jurisprudence and evolving legal views.Examining the social origins and intended significance of theEriedecision, Purcell concludes that the case was a product of early twentieth-century progressivism. The author explores Brandeis's personal values and political purposes and argues that the justice was an exemplar of neither "judicial restraint" nor "neutral principles," despite his later reputation. In an analysis of the continual reconceptions of both Brandeis andErieby new generations of judges and scholars in the twentieth century, Purcell also illuminates how individual perspectives and social pressures combined to drive the law's evolution.

    eISBN: 978-0-300-14739-1
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Acknowledgments
    (pp. ix-xii)
  4. Introduction
    (pp. 1-8)

    From the moment that Justice Louis D. Brandeis announced the Supreme Court’s decision in the spring of 1938,Erie Railroad Co. v. Tompkinshas fascinated members of the legal profession.¹ Reaching far beyond Harry Tompkins’s personal injury claim, Brandeis’s decision addressed fundamental constitutional issues involving the locus and scope of lawmaking authority in the American legal system. OverrulingSwift v. Tyson,a ninety-six-year-old decision that had expanded the power of the national courts to create a “general” federal common law independent of the common law of the states, it sought to limit that judicial power and rebalance the lawmaking structure...

  5. PART 1: The Federal Judicial Power and Progressive Reform

    • 1 The Premise of an Age: LAW, POLITICS, AND THE FEDERAL COURTS, 1877–1937
      (pp. 11-38)

      Legalized race-based slavery, the issue that dominated American politics in the middle third of the nineteenth century, ended with the Civil War and the Thirteenth Amendment; the resulting question of the status of free blacks faded in national importance after the end of Reconstruction in the 1870s. The dominant constitutional issues of the earlier period—the nature of American federalism and the scope of national sovereignty—similarly appeared settled by the war and the two other constitutional amendments that followed. By the end of the 1880s the North and South had reunited in sentiment as well as law, in large...

    • 2 Expanding the Federal Judicial Power: JUSTICE DAVID J. BREWER AND THE “GENERAL” COMMON LAW
      (pp. 39-63)

      Neither the Progressives nor their adversaries were entirely accurate in their complementary portraits of the federal judiciary. The national courts allowed far more economic regulation than Progressives acknowledged, and they protected far fewer individual “liberties” than their conservative defenders proclaimed.¹ Not surprisingly, historical reality was more complicated than political rhetoric.

      Still, however, both sides had reasons for their views of the judiciary. The federal courts did foster the growth of the national market, protect private property, and encourage corporate enterprise. “Corporations are a necessary feature of modern business activity,” the Supreme Court explained in 1906, “and their aggregrated capital has...

    • 3 Progressive Judicial Reform After World War I: DIVERSITY JURISDICTION AND THE LABOUR INJUNCTION
      (pp. 64-92)

      Progressives bristled at Brewer’s exhortations. They were convinced that he and too many other federal judges imposed their values on the law in service of wealth and property. Brewer, Theodore Roosevelt remarked derisively, simply “translate[d] his private surmises into public decisions.”¹ Consequently, Progressives sought repeatedly to restrict the national judiciary and the powers of its judges.

      One of their targets was the jurisdiction that the federal courts exercised suits between citizens of different states, the core area whereSwiftand the general common law reigned. Diversity jurisdiction symbolized for both Progressives and their adversaries the de facto alliance between corporations...

  6. PART II: Brandeis, Erie, and the Complexities of Constitutional Judging

    • 4 Litigant Strategies and Judicial Dynamics
      (pp. 95-114)

      In early 1934, as Senator Norris joined the Progressive drive to pass the Johnson Act and the New Deal’s recovery program sputtered along, Harry J. Tompkins a twenty-seven-year-old factory worker, was laid off from his job. The mild mannered and slightly built Tompkins lived with his wife and young daughter in the small mining town of Hughestown, Pennsylvania, far from the political turmoil of the nation’s capital. A half block from their white frame house lay a one-track rail line belonging to the Erie Railroad, whose freight trains often awakened the young man in the middle of the night as...

    • 5 Brandies: THE JUDGE AS HUMAN
      (pp. 115-140)

      Born on November 13, 1856, Louis Dembitz Brandeis grew up in a family of German Jewish immigrants that had settled in Louisville, Kentucky.¹ His father was a successful grain merchant, providing his family with a comfortable home that emphasized education, culture, and a respectable middle-class liberalism. At sixteen Brandeis began two years of study in Dresden, where he a German pre-university education, and then he attended Harvard Law After graduating in 1877, he practiced briefly in St. Louis and then returned to Boston to open a partnership with a friend and law school classmate. Brandeis possessed unflagging energy, a brilliant...

      (pp. 141-164)

      Although Brandeis usedErieto honor Holmes, he cast his opinion along his own chosen lines. “[E]xperience in applying the doctrine ofSwift v. Tyson,” he stated, “had revealed its defects, political and social.”¹ Holmes’s animosity towardSwiftrested largely on intellectual grounds, his contempt for the idea of a “transcendental body of law.”² Not surprisingly, in hisTaxicabdissent he had not even alluded toSwift’s social impact or its tactical significance. For Brandeis, however, those factors were profoundly important shortcomings that constituted one of the two paramount reasonsSwifthad to be overturned.

      Brandeis’s view ofSwift’s “social...

      (pp. 165-192)

      Swift’s “defects” were “political” as well as “social,” Brandeis wrote, and its paramount political flaw was its elevation of the judiciary over the legislature. Brandeis believed in the constitutional primacy of the legislature, andErie—rooted in the political ideals of Progressivism—implemented that principle. “Primacy,” of course, did not mean “supremacy.” Like most Progressives, Brandeis did not wish to abolish judicial review or give unlimited power to the legislature. Instead, he sought to limit the judiciary, constrain its anti-Progressive activism, and force it to defer more broadly to legislative policy.¹ Although his decision fostered decentralization, ultimately it rested not...

  7. PART III: History and the Dynamics of Legal Change

    • 8 Erosion and Creation of Meaning in an Age of Transition
      (pp. 195-228)

      Eriewas a response to a half century of American history whose most characteristic legal, social, and political concerns were passing away as Brandeis delivered his opinion. The crises of the 1930s and 1940s, followed by a sustained postwar economic boom, the explosive pressures of the cold war, and the long and divisive struggle for black civil rights restructured American society, reshaped its culture, and reoriented its politics. They also transformed the social role and political significance of the federal courts. Embodying a set of assumptions forged in one politico-constitutional age,Eriecould hardly maintain its intended social and political...

    • 9 Henry M. Hart, Jr., and the Power of Transforming Vision
      (pp. 229-257)

      The career of Henry M. Hart, Jr.—a student of Frankfurter’s, a clerk to Brandeis, and by the 1950s one of the nation’s most influential authorities on the federal judicial system—exemplified the ways in which American legal thinking changed between the Depression and the cold war. A New Dealer who became a critic of the Warren Court, Hart personified the shift from social reform to cultural reaffirmation. His brilliant and multilayered portrait of the federal judicial system illustrated the way that changing cultural preconceptions and personal politics molded both systematic legal theory and technical case analysis. Indeed, Hart produced...

    • 10 Cold War Politics and Neutral Principles: THE FEDERAL JUDICIAL POWER IN A NEW AGE
      (pp. 258-284)

      Hart and Wechsler’s casebook appeared in 1953, and the following year the Supreme Court decidedBrown v. Board of Education,declaring racial segregation in public schools unconstitutional.¹ The public image and political role of the federal courts was quickly and profoundly transformed.

      During the late 1940s and early 1950s liberals had grown increasingly suspicious of the legislative branch, and after 1954 they moved enthusiastically to embrace the national courts. They regarded state legislatures as dangerous and saw Congress as controlled by economic conservatives, anti-Communists, and segregationists. Then, suddenly, the Supreme Court transformed itself into “the Warren Court,” first and foremost...

      (pp. 285-308)

      During the last quarter of the twentieth century, while massive social transformations continued to reshape the nation and its political culture, the fundamental branch affinities that had evolved during the postwar decades (spurred and symbolized byBrownandRoe v. Wade)weakened and showed signs of fracturing.¹ Changes in political orientations and shifts in power relations among the three branches of government began to jar the expectations of both liberals and conservatives.² A pervasive sense of social and ideological fragmentation spurred a burgeoning effort to rethink basic assumptions and inspired a proliferation of what came to be called “constitutional theory.”³...

  8. Notes
    (pp. 309-408)
  9. Index
    (pp. 409-417)