Wikipedia:Peer review/Judiciary Reorganization Bill of 1937/archive1

Judiciary Reorganization Bill of 1937

• A script has been used to generate a semi-automated review of the article for issues relating to grammar and house style; it can be found on the automated peer review page for January 2009.

This peer review discussion has been closed.
I've listed this article for peer review because…

Thanks, Foofighter20x (talk) 03:56, 3 January 2009 (UTC)

Copy Editing Notes Pre-FA

I'm just listing stuff here for discussion prior to taking this to FA. Eusebeus (talk) 15:46, 3 January 2009 (UTC)

1. Opponents of the measure viewed the legislation as an attempt to stack the court leading to the name "Court-packing Plan."

I feel this prevaricates unnecessarily. It was a court stacking attempt. Also, it might be nice to push the New Deal stuff in to the very first paragraph.

I left that sentence in there because I think it was an indirect attempt by previous editors to explain why a search for "Court-packing plan" or "Court-packing bill" redirected to this article. Foofighter20x (talk) 16:38, 3 January 2009 (UTC)

Resolved

2. Was this the first piece of legislation proposed by Roosevelt after he won reelection?

No. In January of 1937, Roosevelt had submitted a bill to vastly overhaul and restructure the executive branch. Foofighter20x (talk) 16:36, 3 January 2009 (UTC)

Right, but acc. to McKenna (246) it was his principal focus after his victory. Also, sorry about the wikilink stuff. I tend to do the prose and then go back and do things like wiklink fixes, but I am glad to have you correct my feeble efforts! Eusebeus (talk) 16:54, 3 January 2009 (UTC)

Resolved

3. Can we move the picture of Roosevelt from its current spot near the top of the article? I find it aesthetically a bit unsettling.

I got no prob with that. Foofighter20x (talk) 17:28, 3 January 2009 (UTC)

Resolved

4. Cite #3... I'm not seeing what you are saying there... Enlighten me? Foofighter20x (talk) 17:35, 3 January 2009 (UTC)

Ooops, let me confirm the ref. I may have put it in the wrong place while I was shifting text around. Eusebeus (talk) 18:09, 3 January 2009 (UTC)

Resolved

5. The last sentence of the lede's last paragraph: The entire episode garnered several negative consequences for Roosevelt that lasted through the rest of his administration: the President's pyrrhic victory had provided a rallying point for his opponents, divided his own party, cost him dearly in public opinion, subverted bipartisan support for the New Deal, and sapped his influence over Congress. This should be nuanced, I think, or else we should quote the source directly for such a trenchantly drawn conclusion. Does this sentiment reflect overwhelming scholarly consensus? I see this is basically Leuchtenburg's conclusions at 157 ff. I'll look a bit deeper and see if there's any reaction in the literature. Eusebeus (talk) 18:09, 3 January 2009 (UTC)

McKenna said a mostly the same thing, but she took a whole chapter ("Aftermath") and an epilogue instead of just a few pages like Leuchtenburg. Foofighter20x (talk) 18:20, 3 January 2009 (UTC)

Ok fair enough. Eusebeus (talk) 19:34, 3 January 2009 (UTC)

Resolved

6. Is there any way to avoid at all cost labels such as "liberal," "conservative," "progressive," or "reactionary" when describing the court? G. Edward White was very thorough in showing how all the justices were applying the jurisprudence of their day; only individually did they have different emphasis on priority and weight due each principle and precedent, but they still generally adjudicated in alignment with the going theory of the role of judges. Any characterization with the four labels above are anachronistic. The biggest difference among them was the extent they defered to the legislature and what emphasis they put on the need for procedural safeguards for the individual. Foofighter20x (talk) 22:53, 3 January 2009 (UTC)

I would suggest that generally we use the language of the prevailing scholarship. What terms do Leuchtenburg, White, etc... use? You are right that such labels can be misleading, but summary shorthand like this is useful for readability and flow. More in-depth probing of the jurisprudential viewpoints of the individual justices could perhaps be treated at the bio pages, as well as the articles on the Four horsemen, etc.... However, some explication of the labels may be salutary. Eusebeus (talk) 17:47, 4 January 2009 (UTC)

That's just the point White was making though. It's also why Cushman and McKenna wrote their works. Prevailing scholarship is predicated upon a particular, biased perspective. I'm sure you're just like me in not judging historical figures by today's standards, as it's hardly fair to those figures, who were people of their time, and not ours. This same principle applies to the conventional and comtempory narrative concerning this whole article. Using such labels both oversimiplifies what took place and, as White thoroughly showed, sticks modern labels on those figures which just don't fit. If we are going to keep this article in line with WP:NPOV, then we must be careful not to fall prey to the POV inherent in the conventional account through the use of those labels. Foofighter20x (talk) 18:05, 4 January 2009 (UTC)

Right. We could use terms like (un)friendly or (un)sympathetic to the "New Deal" in lieu of liberal/conservative which, you are right, could be subjected to a modern political prism. Eusebeus (talk) 19:39, 4 January 2009 (UTC)

Works for me. Foofighter20x (talk) 19:45, 4 January 2009 (UTC)

Btw, here's Leuchtenburg (2004) on this specific point, which we might put in there somewhere:

Some scholars disapprove of the terms "conservative" and "liberal," or "right, center, and left," when applied to judges because it may suggest that they are no different from legislators; but the private correspondence of members of the Court makes clear that they thought of themselves as ideological warriors. In the fall of 1929, Taft had written one of the Four Horsemen, Justice Butler, that his most fervent hope was for " 'continued life of enough of the present membership ... to prevent disastrous reversals of our present attitude. With Van [Devanter] and Mac [McReynolds] and Sutherland and you and Sanford, there will be five to steady the boat ...." Six counting Taft. (North Carolina Law Review, 2004, 83: 1187)

So even if we avoid the terms liberal and conservative, I think it's important to retain the idea of an judicio-ideological split on the court. This is probably worth some back and forth so we get it right, as it is an important point. (Perhaps we might consult a wider literature.) Eusebeus (talk) 20:23, 4 January 2009 (UTC)

Hmm... I have to admit I think Leuchtenburg failed to support the point of his opinion. "Our present attitude" is pretty vague to be used as he foundation of an assertion saying those members of the court were conservatives. Both McReynolds and Butler were Democrats, even though appointed to the court by Republicans. See p441 of the Epstein cite in the article. For all Taft could have been saying, "our present attitude" could be a reference to the present body of case law and jurisprudence; without further context from that letter, it's honestly impossible to tell. Foofighter20x (talk) 21:23, 4 January 2009 (UTC)

Resolved

 – worked a reasonable explanation into the paragraph about Jurisprudential differences

7. The para about the Justice department after 1933 was a bit confused so I have reordered it in a way that I hope makes it a bit clearer along thematic/chronological lines. I think it would be good if we could find an additional source to complement McKenna for this section. Any ideas? Did White address the J.D. issue? Eusebeus (talk) 20:23, 4 January 2009 (UTC)

McKenna's text speacks of the opinion of Senator Joseph O'Mahoney, stating DoJ didn't do its homework, but she doesn't cite anything. In her footnote on Hughes's opinion, she cites William Swindler, Court and Constitution in the Twentieth Century: The new Legality, 1932-1968, Vol. 2, pp. 72-73. White's focus was primarily on shattering the conservative/liberal dichotomy of the conventional narrative, and thus focused on lines of jurisprudential thought. He didn't mention the Justice Department at all. Don't have too many other ideas on where to look. Foofighter20x (talk) 21:23, 4 January 2009 (UTC)

Ok, McKenna is in part Schlesinger rehash, so I'll add in AMS directly and see if I can find other stuff to round it out. Eusebeus (talk) 21:45, 4 January 2009 (UTC)

Found a related cite... Who killed Lochner?. Check it out when you can. It's sort of a review analysis of White's book, and may have a few good items in it. Foofighter20x (talk) 02:43, 5 January 2009 (UTC)

8. I'm thinking the back half of the last intro paragraph would be better placed at the end of the article under the "Consequences" heading. I can see keeping a mention of the episode costing Roosevelt much political capital there, but everything else should probably be used to flesh out the other section. What do you think? Foofighter20x (talk) 21:41, 4 January 2009 (UTC)

Sure. We could replace it with a summary line noting simply that the struggle proved politically costly to Roosevelt. Eusebeus (talk) 21:45, 4 January 2009 (UTC)

Sweet. I'll let you handle it so there's no edit conflict. :) Foofighter20x (talk) 21:50, 4 January 2009 (UTC)

Resolved

9. Some of this is redundant to the above, but I think it useful to centralise our discussion of the bias/perspectives of the principal sources. I'll throw my comments in and I hope others will do the same. As a general point, I would suggest that where possible no section be single-sourced, given the various biases that exist in the literature (as noted by FF above). Eusebeus (talk) 18:03, 5 January 2009 (UTC)

• McKenna

I checked the literature and her book is suspiciously light on reviews (I found 2 - google scholar gives up the goods -, compared to a dozen + for Leuchtenburg, who is admittedly a Big Deal in the field). At any event, that doesn't mean the book is not valuable as a source, especially since both reviews (AHR 2003 & JAH 2003) are favourable. However, I think the following criticism of McKenna is entirely valid and we should be mindful of it in using her as a source:

"In her book on the Court-packing plan, McKenna argues that most analyses of the Supreme Court's devastation of the New Deal and Roosevelt's subsequent battle with the Court have misplaced blame and praise. But if past studies erred in excoriating the Court and exonerating the president, this book errs in the opposite direction. For instance, often the author uses personal papers, biographies and autobiographies to reveal decision and tactics, and she is quick to dismiss Roosevelt's and his allies' justifications as disingenuous while accepting the stated motivations of the president's opponents.

... despite its problems, this is an important study that makes a definitive contribution. But it should be read in conjunction with one of the many studies that takes a more favorable view of Roosevelt as a means of achieving some balance."

-RICHARD L. PACELLE, JR., AHR 103:2003, 866-7

So I see an issue with using McKenna as an exclusive source for material in the article as we will end up following her bias. I have already amended the Reaction section to include the National Committee (an elision noted by Best, JAH, 2003). This is not to diminish McKenna, but simply to agree with Pacelle's point.

Thus, a phrase like The public, having seen through Roosevelt's subterfuge, refused to rally behind the President sourced from McKenna will prove hardly credible in its current form once this goes up to FAC (=reflects her POV). Either we refer back to her sources to provide much more direct evidence for such a claim, or else I think we need to moderate this kind of language and get wider input from other material. Eusebeus (talk) 17:50, 5 January 2009 (UTC)

I think McKenna could attack the administration's stance due to the prolific amounts of documents, journals, news articles, and statements made by all the people on the administration's side: altogether, you can see through the pretenses... On the other hand, claiming she's defended the justices is sort of unfounded as there's not a whole lot of stuff on them other than their case decisions and what little they wrote or said about the incident. You've got boatloads of people versus nine men. Judges, let alone Supreme Court justices, keep pretty mum, so you have to keep the criticism in perspective. Foofighter20x (talk) 21:27, 5 January 2009 (UTC)

Agreed, but what I am saying is more procedural really. At FAC we are likely to get objections if we follow too closely only one author's line, especially where other major figures in the field disagree (as noted in the AHR review). So to get through FA, I think we need either to moderate or else contextualise these kind of claims. However, there's still a lot of work to do before we have to worry about this. Eusebeus (talk) 23:03, 5 January 2009 (UTC)

Another point you might not get without reading McKenna in full:

1. McKenna had Schlesinger review her book before publication (at least, she says as much in the intro to the book).
2. She relied on additional documents that weren't previously avaiable to scholars, namely Homer Cummings secret diary, which would explain why her narrative differs in certain areas from established scholarship.

-- 03:13, 31 January 2009 (UTC)

• Leuchtenburg

More extensively and favourably reviewed than McKenna, this book is of course a compendium of previously published essays. Reviews at:

• 1. http://www.jstor.org/stable/2169829
  2. http://www.jstor.org/stable/845577
  3. http://www.jstor.org/stable/2945385
  4. http://www.jstor.org/stable/744341
  5. http://www.jstor.org/stable/1123220
  6. http://www.jstor.org/stable/1289954

I generally don't see an issue with using Leuchtenburg as either a factual or interpretative source (but again, as above, balanced out). Eusebeus (talk) 17:50, 5 January 2009 (UTC)

• White

10. Jurisprudential Debate

With the date range, I was summarizing White. The problem with citing that sentence was that it took up a whole chapter in his book. Foofighter20x (talk) 20:56, 5 January 2009 (UTC)

I can well sympathise with the difficulty in trying to summarise a dense and weighty issue like this. It took me quite a while to get my head around this, though, and as it stands we could get a lot of grief at FAC for this section, so we almost certainly need to make this clearer. It would be helpful if we could cite some specific examples of how this competition between judicial outlooks shaped various rulings. (Although this is discussed further on in the build-up section). Still, I am concerned about lay reader concerns for FA. I have tried to flesh it out a bit already and may try to expand it a bit further to make these issues a little clearer.

Also, this struck me as the right place to tackle head on the "right" v "left" stuff we raised above. I hope you agree. Eusebeus (talk) 21:13, 5 January 2009 (UTC)

Not a problem. I thought I'd explain this one paragraph for you, since you but that HTML comment in before it

During the period 1900-1920 the formalist and realist camps clashed over the nature and legitimacy of judicial authority in common law, given the lack of a central, governing authority in those legal fields other than the precedent established by case law - i.e. the aggregate of earlier judicial decisions. This debate spilled over into the realm of constitutional law, raising the issue of the so-called Living Constitution, a judicial and ideological disagreement which persists to the present day.

Common law is, as you put it in the article, the aggregate of the case law. The raging debate was where and by what authority had all those judges of the past based their decisions. It was that debate which originated the American Law Institute's restatement project, which tried to give the common law a central source. It's only been in the last 60 or so years that the common law has begun to become codified. Hope this helps. Foofighter20x (talk) 21:27, 5 January 2009 (UTC)

Thanks for that. I have now finished the rewrite for this section. The only thing that I would add would be specific caselaw areas to illustrate the three examples of the "older" view. I can think of the minimum wage cases (e.g. 1905) as an example of #3, but there are probably better instances. Anyway, if you can think of any, I would say add them in. I am going to mark this now as resolved. Eusebeus (talk) 22:02, 5 January 2009 (UTC)

Resolved

11. Can you explain this sentence for me? Roosevelt was wary of the Supreme Court early in his first term, and his administration was slow to bring constitutional challenges of New Deal legislation before the court. I thought the Supreme Court controlled its own docket, so a bit more explanation here would be fruitful. How did the administration manage the delay? Eusebeus (talk) 22:11, 5 January 2009 (UTC)

Basically, Roosevelt was saavy enough to presage his coming conflict with the court. However, many people doubted the constitutionality of his programs. As such, he attempted to squeeze out some time before they would face a USSC hearin on their consitutionality by not appealing adverse decisions. Typically the USSC will hear a case if the Solicitor General brings it forth, but if or when the SG brings it forth is still subject to administration control, as the SG is the chief lawyer for the administration (which used to be the AG's job, until he sort of became the chief law enforcement officer). Foofighter20x (talk) 22:22, 5 January 2009 (UTC)

Thanks, Ill try to amplify to make that point a bit clearer. Eusebeus (talk) 22:56, 5 January 2009 (UTC)

12. It is often noted that Black Monday's NRA decision was the most important strike against the New Deal and what really got Roosevelt's blood up; I wonder if it should be mentioned in the lede. Eusebeus (talk) 22:56, 5 January 2009 (UTC)

I simply followed the Leuchtenburg and McKenna narratives, which told the story chronologically. The order of the cases in the article is same in which the court announced them that day... Foofighter20x (talk) 20:56, 12 January 2009 (UTC)

General Comments

The edit you did on the New Deal section: me likey. Foofighter20x (talk) 19:45, 4 January 2009 (UTC)

Thanks. this is really good stuff you have done and I hope my copy editing can build a little on your solid work. Eusebeus (talk) 20:06, 4 January 2009 (UTC)

Citing formats: nobody is judging here. :p Just make sure you go back and format it later... :) Foofighter20x (talk) 20:51, 5 January 2009 (UTC)

Sorry I edit conflicted you there. I'll citeref it properly when I have the thing rewritten. Promise. Eusebeus (talk) 20:58, 5 January 2009 (UTC)