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The Hughes Court and Constitutional Consultation, the Ourj Nal of Supreme Court History, Vol Notre Dame Law School NDLScholarship Journal Articles Publications 1998 The uH ghes Court and Constitutional Consultation Barry Cushman Notre Dame Law School, [email protected] Follow this and additional works at: https://scholarship.law.nd.edu/law_faculty_scholarship Part of the Legal Commons Recommended Citation Barry Cushman, The Hughes Court and Constitutional Consultation, The ourJ nal of Supreme Court History, Vol. 79, 1998. Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/295 This Article is brought to you for free and open access by the Publications at NDLScholarship. It has been accepted for inclusion in Journal Articles by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. The Hughes Court and Constitutional Consultation Barry Cushman* Our conventional image of the Supreme imagination of a great many extremely able and Court under Charles Evans Hughes calls to mind distinguished scholars. In my own impetuous the riddle of the Sphinx: What creature walks youth I have come to conclusions that differ on four feet in the morning, on two at noon, from theirs. But I will not belabor all ofmy rea- and on three in the evening? The answer with sons for reaching those conclusions here, for it which Oedipus rescued the city ofThebes from is not my immediate objective to convert you a reign of terror was, ofcourse, "Man": he crawls to my view of the matter. I ask only that you on all fours in infancy, stands erect on two legs suspend disbelief. Forget for a moment, if you in adulthood, and leans on a staff in old age. will, that the Justices invalidated New Deal ini- The established story of the Hughes Court in- tiatives because they thought them unwise verts the chronology somewhat, but the char- social policy; forget that they later upheld fed- acters are the same. In the mid- 1930s, the crotch- eral regulations only because the Court-pack- ety Nine Old Men impetuously flouted the ing plan put the fear of God into them; forget popular will, eviscerating the New Deal. Chas- that they continued to do so only because they tened by the disciplining hand of a stem presi- had seen the light. Forget that the Court's role dential father figure in 1937, a repentant Court under Hughes was entirely reactive: first ob- was "reborn," then blossomed into beautiful structing, then surrendering to, the political but uncertain youth under Harlan Fiske Stone branches. This will, of course, be disorienting. and Fred Vinson, and grew into mature adult- But ifall of this forgetting has not already ren- hood under Earl Warren. dered you unconscious, it may enable us to The story has its charm, and a certain simple see the Hughes Court and its role in the New elegance. It has for many years captured the Deal saga in a new light. 80 J JL'RNL 1998, VOL. I Franklin Delano Ioosvelt wa the g::at- dent that the Supreme (r is ansu indepen est pomilka of , ht ag. ut he was not the den branh ofeoxerinitin. Asone. aecunt weatestncon tonallawye Fno enaple.h. put it. "he tuoe -t: he resien down t1at hua rather unorthodox, V::S Ofn qUtSO nS 01 ooevel relaed tis torywhie det:nding the separationof powers- E arl bnhr firs term his Curt-pakng plan to dubtfu Senator1 the P:esiden approahd (u i Jut c Hughes "You see," the Presient sihd, he wouldn't and sugested tha the :two fhendrn fbm sorl of consubhane aiinshp . Asone ont'em- ITheris uget no littl irnyi rn th porary acount ha 0, Rooseve:r "int iae th defense of th ffortn topc:he Court for in he would liketon. talk ovriththe Chief ustice was thai0 o svel aprntly:didwnot vl all hb iraperta plans concerming the geerual apprecite. but wicRh oter i the ( oun wai we far to cct the ( ourt \ 'dat on themn ber mn fact ay c opem .n wih. h political bianch: atng"Artil Il ectron 2 othe Conru- inm skn. to forulate :osrutinal souons iron pron id:s that the inhdal power of the t o ecooic crisso th l93s I hope to Uited States shall etend only to cain speei- il.unninte tisphm nn by1 skehing se- lid eses n cunroeries and the Supin ris of vignettas nolmg thefaeof sval C our had tir:t.dec.ne a reidential rquest Tkeresr-era c progiam Through thee I hop' fran advisory opinion in Ceorge toshow tha within the chane'lprescrbed by Washinton's scond term, wh th efirst Presi Aricle IlL, and occasionallyo'utie diem asn dent had souht cousel o ispcoih quetins w~ell the Hughe Comur ofered the Roosexcl ottiitmatonal :HwA Hughesn ady demwure admminirton a disrncie formHu of comnsut to Roosvelt's <senure. orrnb n Ihe Pre:-+ Senatr l~o Joseh krae~er abovt) r~srow o the hors f C,'air t~e 1 'rn Db tele Act~~~~~~ ~~ ~~ of 194 IhAtpoIde xrotia eitt ia~il~dresdtre~ loi te CHARLES EVANS HUGHES 81 Consider, for example, the Frazier-Lenike order to pass constitutional muster. Instead, he Farm Debt Relief Act of 1934. The Act provided listed five specific substantive rights of the extraordinary relief to financially distressed creditor that the Act infringed.'" As one com- farmers, allowing them to stay foreclosure pro- ment in the Cornell Law Review noted, the ceedings for five years by paying a reasonable Court "definitely showed that it appreciated the rental on the mortgaged land. At any time dur- situation which led to this drastic measure. .. It ing this period the debtor could take title to the indicated that similar legislation might be up- land free and clear of any mortgage simply by held if it were found to preserve substantially paying its appraised value- even if that value the rights of mortgagees." 9 was substantially less than the amount of the The Radford case was handed down on mortgage debt. "Black Monday" -May 27, 1935, That same The Act "inspired a stoma of controversy day the Court unanimously drew the curtain on lover] its validity"" Commentary in the law jour- the brief career of the National Industrial Re- nals characterized the Act as "hastily drafted covery Act in the famous "sick chicken" case, and hurriedly passed" "by a harried Con- Schechter Poultrv. United States. Immediately gress,'2 rushing it "through as last minute emer- following delivery of the decisions, Brandeis gency legislation."' It was criticized as "one of pulled Roosevelt lieutenant Ben Cohen aside the worst recent examples, of draftsnianship in and told him "The President has been living in Federal legislation."" "The failure of its ulti- a fool's paradise. ... I should not be surprised mate passage even was feared at times," noted if eveiything would have to be redrafted."2 0 one observer." It was enacted "[d]espite., the Brandeis' message was clear. The Court, de- doubts of many members of Congress,"" and spite its unanimity, was not saying that the fed- "the fears of its proponents were not allayed eral government was powerless to address the when the President retained the bill for ten days economic crisis I-lad this been the import of before signing it" "with apparent hesitation the decisions, there would have been little and misgiving."" At the signing ceremony sense in redrafting anything. Brandeis' point Roosevelt presciently remarked, "The bill is in was instead that the crisis would have to be some respects loosely worded and will require addressed with measures consistent with the amendment at the next session of'Congress.'" Constitution. And Brandeis' opinion in The Act's constitutionality was challenged Radford, with its meticulous discussion of the before the Court in the Spring of 1935 in the Act's constitutional infirmities, provided illu- case of Louisville Joint Stock Land Bank v. minating advice on how the statute ought to be Radford` The Justices of the Supreme Court redrafted. were unanimously of the opinion that the Act And redrafted it was." Within ten days of transgressed limits imposed by the Due Pro- theRadforddecision Senator Frazier had intro- cess Clause of the Fifth Amendment. ChiefJus- duced a revised bill, and by the first of July the tice Hughes assigned the opinion to Justice Senate Judiciary Committee had issued a unani- Louis D. Brandeis, who had great sympathy for mous favorable report with amendments." the plight of distressed small farmers and for "Their task was simplified," noted one observer, the objectives of the Act." Brandeis did not "by the opinion pointing out the constitutional squander the opportunity presented by the as- defects of the former Act- .." The result, as signment, Ile offered a thirty-page examination another put it, was a "more carefully drawn" of the history of legislative attempts to provide statute that sought "to cure the flagrant de- relief for distressed mortgagors, in which he fects summarized by the Court." painstakingly identified the ways in which the When the bill reached the floors of the Frazier-Lemke Act enlarged these protections House and Senate, several legislators asked beyond anything previously sanctioned by the whether the revised bill had rectified the con- Court. The Justice did not confine himself to stitutional deficiencies of the first Act, and its identifying one or two deficiencies of the Act many proponents uniformly professed confi- and leave Congress guessing whether other dence that it had,-" Senate Judiciary Commit- features of the Act would require revision in tee Chairman Henry Ashurst was one among 82 - I()[RNA 1L, 1998, N ()L. I many who assured his colleagues that "This serted, was "the result of a paitnstaking attetmpt bill is an earnest and, I believe, an able effort by Congress to comply with the decision of to meet the obestion announced by the .his Cout holing the firs I r'ier-1LHntk At C out I with.t anym atcempt to defy the Cour.t u1constitutin0 ' After recountin the leg or to circumvent th ( mo.,tiC.tlon ' IThe islative hitory of the staltute and dtii ng its ol d dah ron:ressie Snor s Wlliam: Borab.
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