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

These books provide fine examples of different ways of doing constitutional history. The political scientist David Alistair Yalof emphasizes politics; Walter F. Pratt Jr. looks at doctrine; and Edward A. Purcell Jr. presents a splendid intellectual history of a specific case by examining layer upon layer of material exposed by close study.

Yalof examines how presidents since World War II have selected Supreme Court nominees. Drawing on archival sources and, for themost recent appointees, news accounts, Yalof offers detailed descriptions of the process. Coupled with Mark Silverstein’s Judicious Choices (1994), Yalof’s book gives us a reasonably good picture of the political aspects of the modern nomination and confirmation processes.

As a political scientist, Yalof is interested in developing some general themes in the modern selection process, although he acknowledges that the number of choices—twenty-eight—is too small to support firm conclusions. Yalof identifies nearly a dozen factors shaping presidential choices. Some are obvious, such as the Supreme Court’s increasing visibility in the governing process. Others are less so, such as the growth and bureaucratization of the Department of Justice and the White House, divided party government, and the increasing ease of access to information about potential nominees. Yalof notes as well that the selection process has shifted from one in which presidents tended to know their nominees personally to one in which presidential aides compile lists of candidates who satisfy specified criteria that they, and sometimes the president, think important. For historians, this observation and Yalof’s comments about the changing role of interest groups in the confirmation process may be the book’s most valuable aspects. It may be worth noting as well that Yalof provides a persuasive explanation for the fact that recent nominees have almost all been promoted from positions on the federal courts of appeals: Such nominees have an easily verified “track record” and, having been constrained by the Supreme Court as lower-court judges, are unlikely to have taken positions that would attract critical comment from interest groups. The case of Robert Bork’s nomination is a counterexample, but only because Bork’s extrajudicial writings gave his opponents the ammunition they needed.

Walter Pratt provides a traditional institutional and doctrinal account of the Supreme Court’s decisions during Edward Douglass White’s tenure as chief justice (1910–1921). Pratt ably deals with the problem forced on him by the “Chief Justice synthesis” that parallels in constitutional history the presidential synthesis in general political history. The tenure of a particular chief justice need not coincide with any interesting historical developments, and that was true of White’s tenure. The Court decided some major individual cases, such as the World War I sedition cases, but those cases were important more for what they foreshadowed, such as the Court’s later attention to the Bill of Rights, than for what they meant when decided.

Doing the best he can, proceeding through White’s tenure term by term, Pratt presents the Court’s decisions as a struggle between the old and the new. The old was represented by the substantive due process legacy of Lochner v. New York (1905) and the Court’s attention to a rural-oriented federalism; the new, by Louis Brandeis’s progressive constitutionalism and the Court’s occasional confrontations with recently created administrative agencies. Pratt also identifies and describes with acute insight those fleeting moments when individual justices confronted the tension between an older formalism and a nascent vision of legal rules as embedded in particular contexts, a vision that later was consolidated in American legal realism. In the end, however, as Pratt puts it, “What is remarkable about the White Court is how it stood almost completely apart from the turmoil in the national and international arenas during the period.” Important cases were swamped by the pedestrian ones the Court was forced to hear because of jurisdictional rules that gave it little control over its docket.

Edward Purcell starts with one jurisdictional rule but expands his vision to provide a superb example of the intellectual history of constitutional doctrine. In 1842 the Supreme Court held in Swift v. Tyson that federal courts hearing cases brought by a citizen of one state against a citizen of another, in the courts’ so-called diversity jurisdiction, should apply substantive rules of law developed by the federal courts themselves, not the rules applied in the courts of any particular state. Over the next century, Swift v. Tyson’s reach expanded dramatically. The Court treated corporations as citizens, which meant that diversity cases frequently involved suits by individuals against the corporations that injured them. The federal common law developed by the federal courts in diversity cases took on a decidedly pro-corporate slant.

Purcell shows how Swift v. Tyson became one of the focal points of Progressive criticism of the federal courts. For Progressives, Swift v. Tyson was part of the same ensemble of federal jurisdictional rules that allowed federal courts to issue injunctions crippling the ability of labor unions to organize and strike. The Progressive attack on Swift was clearly political in origin. Yet, as Purcell argues, the Progressive attack also drew on the themes of administrative efficiency in government decision making that pervaded the reform tradition.

Purcell describes congressional efforts to reform federal jurisdiction, which failed in the late 1920s and early 1930s. Success came in the Court’s own repudiation of Swift v. Tyson in the 1938 case of Erie Railroad Co. v. Tompkins. Purcell provides a detailed account of the process by which the opinion in Erie was shaped, stressing the strategic decisions made both by the railroad’s lawyers and by Justice Louis Brandeis. Purcell concludes that Erie resulted from a “confluence of factors” that “reflected sweeping political, social, and legal developments” over the prior half century, but that “[m]ost immediately, it was due to Brandeis.” Purcell roots Erie in Brandeis’s constitutional theory, the position he had earlier taken regarding the constitutionality of declaratory judgments, his sense that as he aged his opportunity to reshape the law was diminishing, and his indebtedness to Justice Oliver Wendell Holmes. Purcell’s subtle examination of the interplay among broad social factors and personal ones is perhaps the book’s most important contribution.

Purcell also examines Erie’s later career. Brandeis argued that the rule of Swift v. Tyson was defective on political and social grounds. Purcell takes the reference to Swift’s political defects as the basis for arguing that Brandeis has been misunderstood as adopting a broad principle of legal positivism akin to the one Holmes clearly did take. For Purcell, Brandeis’s positivism was a practical one dictated by his understanding of the needs of a changing federal system, not by some overarching philosophical concept. Even more important, Purcell argues, was Brandeis’s view of Swift’s social defects. Purcell demonstrates that Brandeis, as a Progressive reformer, objected to Swift primarily because it had become the vehicle by which national corporations gained strategic advantages over injured individual litigants and only secondarily because it resulted in inefficiencies in judicial administration. Yet, Purcell argues, it did not take long for Erie to lose its Progressive thrust, in part because Progressivism itself, and its hostility to corporate enterprise, waned. Erie came to be understood as an exercise in abstract formalism without connection to the social concerns that had animated the Progressive attack on Swift. Again interweaving the political and the personal, Purcell also stresses the deteriorating personal relations between Brandeis and Felix Frankfurter as one source of Frankfurter’s later transformation of Erie from a Progressive political opinion into a technocratic one. Purcell provides an insightful treatment of the vision of federal courts held by the Harvard University law professor Henry Hart, who reacted to McCarthyite excesses by seeking to revitalize state courts and enlisted Erie in that effort. Again stressing the importance of the “loss of Erie’s social inspiration,” Purcell offers a subtle presentation of the relation between Warren court activism on human rights and its re-vision of Erie.

Purcell’s deft treatment shows how historians can profit from close attention to what might seem a highly technical doctrine of federal jurisdiction. Combining a wide view of the social and political setting and the intellectual framework in which the controversy over Swift v. Tyson occurred with close attention to the play of personality, Purcell’s book is a model for legal historians.

Mark Tushnet
Georgetown University Law Center
Washington, D.C.