Telling the Story of the Hughes Court Richard D

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1996 Telling the Story of the Hughes Court Richard D. Friedman University of Michigan Law School, [email protected]

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Recommended Citation Friedman, Richard D. "Telling the Story of the Hughes Court." Law Quad. Notes 39, no. 1 (1996): 32-9.

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This article is based on a paper delivered u at the annual meeting of the American* Society for Legal History in Houston in October 1995. For a copy of the complete version, with footntws, please contact LQN or Professor Friedrnan at Court (3 13) 747- 1078, [email protected] ,/ or the Court, as for

society at large, this was

era of enormous turmoil and

nsformation. Indeed, I believe

it was "The Crucible of the

Modem Constitution."

When Justice Oliver Wendell Holmes, I feel fortunate to be part of the Devise So I have a story to tell and a mysten Jr., died in 1935, he left the bulk of his History not only because it places me in to solve. The story is of how this transfor- estate to the United States Government. a wonderful neighborhood of authors, mation was achieved. And at the heart of This gift, known as the Oliver Wendell but also because it is a tremendously the ston lies this myster).: In the spring Hnlmes Devise, sat in the Treasury for important prosect; its period of gestation of 1937, shortly after Roosevelt's land- about twenty years, until Congress set up has been very long. but so will be its slide re-election victory and during the a Presidential Commission to determine shelf-life. And I feel particularly fortunate height of the Court-packing battle, the what to do with it. The principal use of to have the Hughes Court assignment not Court seemed suddenly to become more the money has been to fund a multi- only because 1 have already spent liberal. To what extent, if any, did these volume History of the United States considerable time studying the Hughes political factors account for this apparent Supreme Court. The history of the Court - In what seems like a prior life. suitch? But implicit in this question, as project itself has not always been a happy I \note a dissertation on Hughes as Chief I have phrased it, is another: To what one, for some of the authors have been Justice - but also because of the extent was there actually a suitch? unable to complete their volumes. importance of the period. For the Court, At the broadest level, of course there Among them was one of my teachers, as for society at large, this was an era of was: Constitutional law was far different the late Paul Freund, who was the first enormous turmoil and transformation. in 1941 from what it was in 1930. general editor of the project and also Indeed, I believe it was "The Crucible of Indeed, the old constitutionalism \\.as planned to write the volume on the the Modem Constitution." That, at any effectively dead as soon as Roo~e\~elt's period in which Charles Evans Hughes rate, will be the subtitle of my ~~olume. appointees began to replace the consera- was Chief Justice, from 1930 to 1941. The period began with what has been tive Four Horsemen in the fall of 1937. 1 have had the good fortune to receive the called the old constitutionalism still Liberal decisions resulting from these succeeding assignment to write this apparently dominant, continued through personnel changes do not represent a volume. the crisis that culminated in the struggle response by the Court to political over Franklin Roosevelt's plan to pack pressure; the new Justices were part of the Court in 1937, and ended as the the victorious side of 1936, not its Justices appointed by Roosevelt consoli- cowered foes. But because these person- dated their hold on the Court and on the dramatically new constitutionalism that still prevails. 7-" . '. -,.; ' ? and then tail&three time .ixgawn<2.

m c ., . J i .c.- , ., might decide a of:c&&.+C5:2.. , ..

nto1on'the other side. - ' X, nel changes occufred so soon after the -- fipheld a fir armore mveepIng zqyiatioa of If there ivai a strategic decision&, Court-packing battle concluded, they labor relations, ahunder the cmmerae therefore, it would have had to be one elf may make it harder to discern what the power. these two Justices*-me hve thought Court's reaction to political pressure was. These developments were draznaic, that this was a role played by.Hughrs. He Certainly, in the spring of 1937, while but we must be mti s in concluding was, after all, Ee Chief Justice, he was a the battle was hot, the Court issued a whether, or to whn &t, the 1937 commanding figure, ahd he itood flurry of significant decisions reaching decisions represented a &den adoption ideologically near the center of the Court. liberal results, far different from the of a new ideology. I belie that.to But there is no basis for concluding that results of an earlier flurry of significant answer these questions quires a great he had strategic control over the Court, decisions in 1936. The most important deal of attention to the grubby details of and there is sound reasdn for concluding cases break down into three sets, which individual Justices and individual cases. that he did not. Indeed, Justice Brandeis we may refer to as the minimum wage, It is tempting to think of the Court - told Felix Frankurter at a crucial moment general welfare, and commerce clause organically, as an institution that moves ' that Hughes was depressed becauqe he cases. In 1936, in Morehead v. New York and makes strategic decisions like an had no control over the Court. Before the ex rel. Tipaldo, the Court held a state army. Perhaps this model is an qppropri- crisis, Hughes was in the dissent in too minimum wage law invalid; but the next ate portrayal of the Court when John many cases of political sigmf&nce to year, in West Coast Hate2 Co. v. Panish, Marshall dominated it. But it does not suppose that he had any real measure of the Court upheld such a law in overturn- come close to reflecting the Court of early control. Hughes.did not solicit his ing the precedent on which Morehead 1937. Obviously, the Court as a whole, colleagues for votes, and he seems to was based. In 1936, in United States v. acting in conference, could not have been have taken an austere view of his role and Butler, the Court held that the Agricul- a strategic decisionmaker; it was too the decisionmaking process of the Court: tural Adjustment Act had exceeded the badly divided; There were blocs on the The Justices each had their say in confer- federal government's ~oweito tax and court, four Justices on the right and three ence, they voted, and they moved on to spend, but in the Social Security Cases of an the left, that held informal caucuses at the next case. 1937 the Court upheld the exercise of which they presumably discussed tactics Then how about Justice Roberts? He those powers in the Social Securiry Act. for conference>.Buteven assurmng each was not in strategic control of the Court; In 1936, in Carter v. Carter coal Co., bloc remained cohesive (which was not he controlled no one's vate but own, the Court held invaw a Congressional always so) neither could prdin any ' and he does not seem to have had attempt under the commerce clause to case without support tram the middle; significant persuasive power over his regulate labor relations in a basic produc- the conservative Four Horsemen needed colleaeues. But certainly Roberts had a tive industry, but in 1937, in NLRB v. the vote of either Chief Justice Hugha ar Jars & hughlin Steel Corp., the Court Owen Roberts, and the liberals needed both their votes. great degree of control over the Court's Hughes and Roberts, rrspmded to certain issues. That is, if we know that A is decisions, kcaw on many significaw pblitical presmm than it would be to more conservative h,Bon issue 1, we issues he was the man in the-middle, the draw such generalizations from the may dbe able to predict how they will Justice most likely to join the conserva- propositian that the Court responded to stand in relation to one another on issue 2. tive fou~to-make a majority. such pressure. TZle trouble is that neither of these The then, should not be In understanding what happened, premises is inevitably true - or any- phrased as whether, or to what extent, phrasing the question in terms of the where close. Each Justice is subject to his 1 the ~iurtwas affected by political CO~rather than of Junice Roberts and own set of influences, and they may pressure. The key question ishvhether Chief Justice Hughes probably would differ, in a multivariate way, from one ' Justice Roberts was affected by political make little difference if we could reliably Justice to another. (The masculine pressure; a subsidiary question is think of decisions by the Court under gender, by the hey, is appropriate for the whether Chief Justice Hughes, who also this model: Any issue is represented by a Court of the 1930s.) This means that the might be thought to have done some point on a continuum runnikg [omLeft Justices cannot be put on a simple switching in 1937, was so affected. To to right, and the Justices by fixed links in continuum. The problem for analysis is adapt tern used by Graham Allison in a rigid chain, running from left to right in part, but not only, that a given justice his celebzated study, Essmce of Decision: with Roberts in the middle. If the chain may be more liberal on some issues, Explaining the Cuban Missile Crisis, if we comes down with five ar more links to relative to his colleagues, than on other want to anderstand the Court's course of the left of the critical point, then the issues. The more difficult aspect of the decisions, we are better off dealing not liberals win, and otherwise the conserva- problem is that any Justice, even one who within Model 11, treating the Court as a tives win. seems moderate on most issues, might be monolithic entity, bur within Model 111, Now, this model does have some affected to a substantial extent by a given emphasizing the roles of the individual explanatory power, because it rests factor that seems far less imponant to his players. implicitly on two premises that are colleagues. If one nevertheless knew with 1 emphasize this point not just out of usually true. First, judges tend to act confidence the full panoply of a given persnicketiness. It is important both for consistently on a given issue. Thus, if Justice's views on matters coming before understanding what tnppenbd in 1937 Justice A is more conservative (whatever the Court, then one ddtest whether and for assessing its s@icance. First, that may mean) than Justice B on issue 1 hls votes and opinions consistently as to the assessment of significance: on one occasion, chances are strong that, reflected those views. But such confi- Suppose that what I shall call the political absent samething unusual happening, dence is, of course, difficult to attain. hypothesis - that political pfiu%e A will be more conservative than B on To a large extent, a Justice's views are explains the course. of decisions - issue 1 on another occasion. Second, revealed only through those votes and appears to be correct. It is probably far there is a substantial correlation between opinions themselves. And this creates at more difficult to draw hhtorically least three signifcant dfficulties. interesting genemlizations from the proposition dmt -Roberts, or perhaps

C Most obvious perhaps is a large The same points apply to sets of cases. Pusey characterized it, was: "Who knows problem of circularity. Suppose that a Suppose a Justice has a batch of conser- what causes a judge to decide as he does? Justice votes on the conservative side of vative votes in one time period and a Maybe the breakfast he had has some- Case 1 and on the liberal side of Case 2. batch of liberal votes in a later time thing to do with it." And it may well be This does not necessarily mean that period. This might be because a political that, in the case of Roberts especially, no anything strange happened, or that the factor intervened, and some historians matter how deeply and accurately we Justice must have responded to political seem to regard this inference - that the may analyze the factors motivating a pressure between the two cases - even if Justice altered his ideological stance, at Justice's decisions, we will be left with a it so happens that a political event that least temporarily - as inevitable. But it is residue of apparent randomness - a might be thought to have created left- not. Just as a fair coin will sometimes be degree to which, though some consistent ward pressure occurred during that flipped heads three times in a row and set of factors might be at work, it will be internal. It might be that there is a then tails three times in a row, a Justice essentially impossible for us to recognize distinction between the two cases that acting conscientiously might decide a run what they are. There is a significant irony made the liberal side appear more of cases on one side of the line and then a here, I think: To the extent that such persuasive in Case 2 than in Case 1; to a second run on the other side. factors as the Justice's breakfast help large extent, the business of appellate Second, even putting aside political explain conduct that might otherwise judgng, and the method by which judge- factors, simply because creative lawyering appear inconsistent, a political explana- made law grows, consists of distinguish- can expose a potentially material distinction is not necessary. ing cases, invoking a given doctrine in tion between two cases, it by no means Finally, because of the group nature of one case but not in another because of follows that this is a difference that the Court's work, its opinions provide material differences between the cases. actually persuaded the individual Justice only a limited insight into the beliefs of a But if the political factor also provides a in question. I have suggested that some particular Justice. The Hughes Court was plausible explanation for the pair of factor that might appear relatively sharply divided, of course, but as com- votes, it may be difficult to know unimportant to most Justices, or most pared to the modern Court it was much whether this substantive distinction observers, may appear critical to one less fragmented; often there was a between the two cases really was a Justice. If we are lucky, we may be able dissent, but in contrast to today cases in significant factor motivating the Justice's to discern these, but I do not think we which there were more than two opin- conduct. always can. I find it very interesting that ions were relatively rare. Ordinarily, a in 1946, when Merlo Pusey, in the course Justice would go along with an opinion of preparing his prize-winning biography that reached the result he favored, of Hughes, asked Roberts to account for without feeling the need to write sepa- his conduct in the minimum wage cases, Roberts' "initial, semifacetious reply", as

36 THE UNIVERSITYOF MICHIGAN LAW SCHOOL ,/" &- believe that, notwithstanding these difficulties, Hughes' judicial ideology can be mapped out in some detail. On some issues, he was very liberal: In the general area of civil rights and civil liberties, I believe there was no member of the Court more liberal. Nearly as strong a statement could be made with respect to the question of the power of the state to regulate prices, including wages, and to overcome private contractual arrangements.

rately simply because he did not agree nomic power are at issue.) When the Furthermore, I believe that, with an with every statement contained in the reach of the federal government's po\vers understanding of Hughes' views, we can opinion. Thus, to a large extent a Justice was at stake, he still tended to be liberal state uith a rather high degree of confi- had two principal options in any given - that is, hospitable to such power - dence that his votes were not affected by case - to join the majority or to dissent though more cautiously so. On many tas political factors, either the public reaction - and the Justice's vote does not in itself matters, however, he was far more to the Court's decisions, or the Roose~relt give more information than which of conservative, sometimes voting to the landslide of 1936, or the Court-packing those two options he preferred; a Justice's right of Justice Roberts, and he was battle. I have presented a rather full concurrence in an opinion did not similarly consenTativewhen he believed arpment else\vhere, in an article entitled demonstrate that he agreed with it in its freedom of individual opportunity uTasat S~ritcl~iltgTimc and 0th~~-TI~ougJzt entirety. Of course, the Justice's own stake. And certain issues seemed to E~pcrimcnts:Tk H~rghcsCourt and opinions are a better guide to his views, matter to him so much that they could Constitutional T~~ansfonnation,142 U. Pa. but at times the author might be willing make him appear, in some contests, to be L. Rev. 1891 (199-t), and will summarize to alter the text to make sure that he one of the most conservative members of it briefly here. retained the concurrence of his col- the Court. More than any other Justice, it Any case for a snitch must be based leagues. seems, he was willing to put weight on primarily on the three sets of cases I have I believe that, notwithstanding these constitutional restrictions against delega- described above - the minimum wage, difficulties, Hughes' judicial ide~lo~gycan tion of legslative authority; Brandeis general welfare, and commerce clause be mapped out in some detail. On some reported that he nras "crazy" about cases. Hughes clearly did not snitch in issues, he was very liberal: In the general confiscation; and he had a distinctive, the minimum wage cases; he had been in area of civil rights and civil liberties, I highly judicialized lieu. of proper the liberal minority in MOT-cltcadin 1936, believe there was no member of the administration. and the views that he established as law Court more liberal. Nearly as strong a in \Arcst Coast Hotcl case in 1937 were statement could be made with respect to ones that he had long espoused. Nor was the question of the power of the state to there a substantive switch for Hughes in regulate prices, including wages, and to the "general welfare" cases. In Butlcl- in overcome private contractual arrange- 1936, he had voted against the particular ments. (I put aside the troublesome esercise of the Government's tasing and question of why ludicial activism is generally considered liberal when what are deemed to be civil rights or civil liberties are at issue, but conservative when asserted rights against state eco- spending power there at issue, an aspect tion. The discussion of the commerce As for Roberts, I can not speak with of the Agricultural Adjustment Act that power inJones G LaughIin is written in nearly so much confidence. This is in appeared coercive to him. But he clearly Hughes' most magmerial and expansive part because I have not spent as much favored the expansive general statement style, and it is consistent with the entire time studylng Roberts. But it is also, I of the Government's power in Roberts' sweep of his career, going back to his suspect, because to a certain extent opinion for the majority; this, too, days as an Associate Justice. The com- Roberts defies understanding. His views echoed a view that he had long held. merce passage in Hughes' Carter opinion, were not as well settled as Hughes', and Indeed, Roberts later told Felix Frank- by contrast, is brief, conclusory, and they appear to have been considerably furter that he had included that dictum cryptic, and unnecessary given the way more idiosyncratic. Thus, his views seem "just to please the Chief." In the Social he would have resolved the case. I to have changed over time, and even Security Cases of 1937, Hughes favored suspect it did not represent his genuine without a significant passage of time he the exercise of the spending power - views, and that he inserted it for some acted in ways that would appear to most but these were much stronger cases for political motive. His commerce discus- observers as inconsistent; inconsistency the Government, and so they appeared sion in Carter ended with what was in in the eyes of others, however, might not only to Hughes and Roberts but also effect a plea to the public to get off the mean simply that Roberts was motivated to two of the four conservative Justices, backs of the Court, amending the by factors that appeared more important Van Devanter and Sutherland. Constitution if the Court's interpretation to him than to others. As for the commerce clause cases, it of the commerce power seemed intoler- I do have some conclusions, which I appears to me that Hughes' opinion for a able; this advertisement, I believe, may have explored more fully in the Switching bare majority of the Court inJones C have provided the motivation for Hughes' Time article, regarding Roberts and the Laughlin in 1937 is not genuinely consis- skimpy substantive discussion, rather political hypothesis. Roberts' conduct in tent with the commerce aspect of his than vice versa. In any event, there is no the minimum wage cases was strange, separate opinion the previous year in basis for concluding that Hughes was and his later explanation of it does not Carter, at least not according to any pushed into Jones G Laughlin by fully hold up. He joined the conservatives reasoning that commanded Hughes' political pressure. in Morehead and the liberals in West Coast conscientious adherence. But it is Carter, Hotel, and later asserted that he did so not Jones G Laughlin, that is the aberra- because in the latter case, but not the former, the question of whether to overrule the precedent that most strongly \upported the conscnratlves was not showed no resenations about Jorles &+ I~rcsentcclThis IS not so, at lc'lst argu- Lnu~hlin.Apart from the timing, there is no ,11~1\~, [lint clucstlnn was actually presented reason to believe that the Court-packing ~-i;o~-ec1ca1-ly by counscl In Morchcad But plan influenced Rohens, and there is good I [hlnk that ~t IS a1 least clear that Roberts' reason to believe it did not: It was not \otc In \\'N Coact Hotc'l, and not the one immediately clear what the political impact In ,!/lor t-hcncl, reflected h~spre\r~ously of upholding the National Labor Relations c\prcsscd substant~veirlews Why he was Act would be, and the Government's io much readier In Wcct Coact Hotcl to victory was far more sweeping that one ojVcrcomeany proceclurnl scruples that might cspect if the decision was inconsis- Iind prevented hlm from jolnlng the tent with Roberts' conscientious beliefs but Ilberals In Morchcad IS not SO clear He motivated by a manipulative desire to help Inny have dec~dedthat he was wrong on defeat Court-packing. Perhaps the storm of ~hlsmatter, or that the conservat~veshad sitdown strikes then compelling national ['ken advantage of hlm And he may attention made Roberts belie1.e that a 11we been shaken by the furlous publlc national solution to labor problems was rc'xctlon to Morcllcad. But the tlmlng of necessary, but I do not believe it is possible the Court's act~onsIn \Vcct Coast Hotcl, to be sure. among other factors, suggests that nelther I have said that I aim to tell a story, the 1936 electlon nor the Court-packlng but 1 have not promised that it would be battle had anythlng to do wlth the a simple, neat story. It \till not satisfy matter those who wish to \riew the Court as an Roberts' votes In the "general welfare" ordinary political institution, subject to cases can probably be esplalned In the ordinary political pressures. Nor \$ill it same way that Hughes', as well as those gratify those ~vhoare committed to the of Van Devanter and Sutherland, can - view that no Justice could have been the Soc~alSecunty Cases appeared to be affected by such pressures. And it may stronger ones for the Government than discomfit those who ~irouldlike to draw Butlcr d~dRoberts appears to have been conclusions about the Court of the slgnlhcantly less enthused about the Hughes era without doing the hard \trork federal spendlng power than Hushes of esamining the particulars of the cases was, el-en at the tlme Roberts wrote it decided, and tning to do so with the broadl). about ~t In Butler, and on the mindset of the individuals who happened commerce clause hls record on the Court to constitute the Court. But I hope that it before 1937 was far more consenratlve will yield us a fuller picture than we now than Hughes' The most notable, but not have of how it happened that the Hughes the only lllustratlon of th~s1s Roberts' Court transformed American constitu- concurrence wlth the majonty In Car-tcr. tional lalv.

I am ~nclined,therefore, to belleve that k -. - 8 Roberts' concurrence with the liberal stde of the Court ~n]orlcsG Latcghl~nrepre- sented a break lor hlm But there 1s no Professor R~chardFiicdmnti jo1 ncd reason to doubt ~tsslncenty, Roberts was thcfacultv in 1988. His rcscarch capable of changing h~smlnd on short focuses on olldcnce, antitnlst, order, h~sButIcr op~nlonsuggests that he and Supremc Court history. was then beglnnlng to expand 111s llews of He is gencral editor nf The New nat~onalpowers, and hls later conduct W~gmore.n m~tlti-\*oIumctr-catisc on o~idcnceno\v in preparation.