Vote Fluidity on the Hughes Court

The Critical Terms, 1934–1936

The newly available docket books of the Hughes Court justices offer valuable insight into the deliberations of the Supreme Court of the United States during some of its most important and tumultuous terms. This Article analyzes the content of these docket books, both confirming and dispelling accounts of the justices’ voting behaviors that have persisted up to the present day. First, the docket books confirm that the justices often changed their positions in major cases in the interval between their votes in conference and their final votes on the merits. Second, these sources confirm that the Court achieved comparatively high rates of unanimity even during its most fractious terms because justices who had served on earlier Courts had internalized a norm under which those who lost at the conference vote commonly acquiesced in the judgment of the majority. Third, the docket books reveal that the justices who most frequently acquiesced in this period’s major cases were those widely considered to be its most recalcitrant conservatives: James Clark McReynolds and Pierce Butler. Finally, the docket books lend little support to the common claim that Chief Justice Charles Evans Hughes frequently changed his vote in major cases for the purpose of lending greater credibility to judgments rendered by a divided Court.

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