Thursday, August 27, 2009

Cushman on the Constitutional Consultation and Hughes Court

Barry Cushman, University of Virginia School of Law, has posted The Hughes Court and Constitutional Consultation. It was published as "The Hughes Court and Constitutional Consultation," 1998 J. Sup. Ct. Hist. 79 (1998). Here is the abstract:
This lecture, delivered to the Supreme Court Historical Society, details the ways in which justices of the Hughes Court provided guidance to members of the political branches in formulating constitutional solutions to the economic crisis of the 1930s. Among the policy areas considered are farm debt relief, energy policy, agricultural policy, civilian relief and public works, retirement pensions, and unemployment compensation.
Here's a taste:
Franklin Delano Roosevelt was the greatest politician of his age. But he was not the greatest constitutional lawyer. For example, he had rather unorthodox views on questions of the separation of powers. Early in his first term, the President approached Chief Justice Hughes and suggested that the two of them form a sort of consultative relationship. As one contemporary account has it, Roosevelt "intimated that he would like to talk over with the Chief Justice all his important plans concerning the general welfare, to get the Court's slant on them before acting." Article III, Section 2 of the Constitution provides that the judicial power of the United States shall extend only to certain specified cases and controversies; and the Supreme Court had first declined a presidential request for an advisory opinion in Washington's first term, when the first president had sought counsel on specific questions of international law. Hughes similarly demurred to Roosevelt's overtures, informing the president that "'the Supreme Court is an independent branch of government.'" As one account puts it, "he turned the President down flat." Roosevelt related this story while defending his Court-packing plan to a doubtful Senator. "You see," the President sighed, "he wouldn't co-operate."
Image Credit: Library of Congress

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