Holmes and Brandeis: Companions in Dissent

In the 1920\u27s, the words Justices Holmes and Brandeis dissented had become a familiar refrain in discussions about the work of the Supreme Court. This affinity between two men so unlike each other in background and method naturally puzzled the observers, and the effort to explain their relationship has produced two mutually contradictory theories. One view holds that though the two jurists approached problems differently, they usually arrived at the same conclusion because they shared a common philosophy on all really basic issues. Oliver Wendell Holmes and Louis Dembitz Brandeis, a contemporary press comment read, have achieved a spiritual kinship that marks them off as a separate liberal chamber of the Supreme Court. On the great issues that go down to the fundamental differences in the philosophy of government these two are nearly always together; often they are together against the rest of the court

Did a Switch in Time Save Nine?

Franklin Delano Roosevelt’s court-packing plan of 1937 and the “switch in time that saved nine” animate central questions of law, politics, and history. Did Supreme Court Justice Roberts abruptly switch votes in 1937 to avert a showdown with Roosevelt? Scholars disagree vigorously about whether Roberts’s transformation was gradual and anticipated or abrupt and unexpected. Using newly collected data of votes from the 1931–1940 terms, we contribute to the historical understanding of this episode by providing the first quantitative evidence of Roberts’s transformation. Applying modern measurement methods, we show that Roberts shifted sharply to the left in the 1936 term. The shift appears sudden and temporary. The duration of Roberts’s shift, however, is in many ways irrelevant, as the long-term transformation of the Court is overwhelmingly attributable to Roosevelt’s appointees