Henry Hart’s Brief, Frank Murphy’s Draft, and the Seminole Rock Opinion
In the summer of 1942, Professor Henry Hart, then ten years into his career as a law professor, temporarily left the Harvard Law faculty to become an associate general counsel at the Office of Price Administration, an agency responsible for setting prices throughout the World War II-economy. Just under three years later, Hart argued the government’s side in the most consequential case that he handled while in public service, Bowles v. Seminole Rock. The opinion in that case, written by Justice Frank Murphy, formed the basis for the doctrine that still sometimes bears its name — Seminole Rock deference, under which a reviewing court defers to an agency’s interpretation of its own ambiguous regulation.
There are many things that could be said about this doctrine, but I’ll focus on the following: I’ve dug up Hart’s brief and Murphy’s case file, neither one of which, to my knowledge, has been the subject of study to date. This post is my attempt to make sense of them. For those readers inclined to draw inferences about the meaning of the Seminole Rock opinion from its drafting history, the Hart brief and the Murphy drafts tend to suggest a particular interpretation of the case and to situate the opinion in the jurisprudential happenings of the era. For those not inclined to view the drafting history of Supreme Court opinions as relevant — and I certainly understand and have some sympathies for that impulse (e.g., Adrian Vermeule, Judicial History, 108 Yale L.J. 1311 (1999)) — let’s chalk up this blog post as an effort, in the tradition of the Greek historian Xenophon, “to record the minor deeds of serious men.”