Thursday, June 28, 2012

“My Whole Life Has Been Spent in Work Conditioned upon Respect for the Courts”

[In light of Chief Justice Roberts's vote in today's Supreme Court decision on the Affordable Care Act, I will indulge myself and move up this post from April.]

As the debate over Franklin D. Roosevelt’s Court-packing plan raged seventy-five years ago, the President’s spokesmen made political hay by quoting from a speech Chief Justice Charles Evans Hughes had delivered years earlier as governor of New York.  “We are under a Constitution,” Hughes told an audience of 2,000 packed into a theater in Elmira, “but the Constitution is what the judges say it is.” 

Ignore the original context, as FDR’s spokesmen did, and the quote fit easily into their argument in favor of the plan.  Justices did not find or declare preexisting constitutional law; they made it.  In making theirs, the superannuated justices of the Hughes Court drew upon the values of a bygone era.  America would be better served by justices whose values originated in modern times.

Had the spokesmen wanted to take the measure of the President’s principal judicial adversary, rather than score points, they would have done better to considered the quote’s context.  Hughes was attempting to rally support for the Public Utilities Commissions Act of 1907, a landmark in the history of regulation.  Business opposed the law unless it granted them the right to retry the decisions of the commission in an appeal to the judiciary.  Hughes insisted on less intrusive judicial review:
I have the highest regard for the courts.  My whole life has been spent in work conditioned upon respect for the courts.  I reckon him one of the worst enemies of the community who will talk lightly of the dignity of the bench.  We are under a Constitution, but the Constitution is what the judges say it is, and the judiciary is the safeguard of our liberty and of our property under the Constitution.  I do not want to see any direct assault upon the courts, nor do I want to see any indirect upon the courts.  And I tell you, ladies and gentlemen, no more insidious assault could be made upon the independence and esteem of the judiciary than to burden it with these questions of administration–questions which lie close to public impatience, and in regard to which the people are going to insist on having administration by officers directly accountable to them.
Hughes was advocating judicial restraint in the review of orders of administrative agencies, not legislation; still, I thought of his subtle understanding of judicial power and judicial legitimacy last weekend as I finished reading James F. Simon’s FDR and Chief Justice Hughes (Simon & Schuster, 2012).  Simon’s book, which will be the subject of a symposium at the New York Law School this afternoon, alternates between FDR and Hughes.  For me, at least, Simon’s treatment of Hughes is more compelling, because he shows that the jurist never foreswore the allegiance to the judiciary that he affirmed at Elmira.  When a sharply divided Supreme Court and Roosevelt’s Court-packing plan jeopardized “the independence and esteem of the judiciary,” Hughes saw to it that his ideal of the judiciary as a repository of reason would survive.  He preserved that ideal–and, as we might say today, “won”–by following his own advice: he extracted his Court from “questions which lie close to public impatience” by crafting decisions that upheld controversial legislation from constitutional challenge.

The Senate’s handling of Hughes nomination as Chief Justice in 1930 was unexpectedly bruising, nothing like the acclamation Hughes enjoyed when he was first named to the Supreme Court in 1910.  Progressive Republicans and Democrats blasted him for leaving the Court to run for President in 1916.  George Norris of Nebraska deplored Hughes’s clientele, “corporations of almost untold wealth.”  But Justice Louis D. Brandeis, a progressive tribune, was happy to have him as his Chief.  For some time Hughes’s predecessor William Howard Taft “had really lost his grip” on the Court, Brandeis told Felix Frankfurter.  The associate justices Willis “V[an] D[evanter] and Pierce Butler were running him.”  Hughes, in contrast, at once exerted the leadership the Court required.  Although Hughes’s “strong feeling for the reputation of the Court” inclined him to distinguish precedents that Brandeis wanted overruled, it also led the Chief Justice to “soft-pedal” the Court’s right wing.  “As a matter of fact,” Brandeis reported to Frankfurter, “the tail feathers of Butler and some of them have been completely plucked.”

They soon grew back.  As a worsening economy drove state and federal governments to pass novel legislation, Hughes struggled to keep the division between the Court’s conservative and liberal wings from jeopardizing the authority of his Court.  Simon thinks Hughes largely succeeded until 1936.  To be sure, his opinions upholding a Congressional resolution preventing creditors from collecting their debts in gold provoked Justice James McReynolds to exclaim from the bench, “This is Nero at his worst.  The Constitution is gone.”  Still, Hughes united his Court behind an opinion striking down a legislative landmark of the Hundred Days, the National Industrial Recovery Act.  Only in 1936, Simons argues, did Hughes lose control of his Court.  In deciding the fate of the New Deal’s principal agricultural program and New York’s minimum wage law for women, Justice Owen Roberts rejected the compromises Hughes advanced and joined the conservatives Butler, McReynolds, Sutherland and Van Devanter.

In lectures delivered as a private practitioner in the 1920s, Hughes chastised the nineteenth-century Supreme Court for three “self-inflicted wounds,” Dred Scott, the Legal Tender Cases, and Pollock v. Farmer’s Loan & Trust (which struck down a federal income tax).  As the term ended in June 1936, Simon believes that Hughes was despondent over his failure to keep the conservative majority from inflicting “fresh wounds upon the prestige of the Court.”  Throughout his career, Hughes had aimed to free law and government from the “blandishments and intrigues of politics”; now he was being dismissed by one of FDR’s correspondents as “nothing more than a ‘Ward Politician.”

Simon thinks that during an overnight visit to Roberts’s Pennsylvania farm in the summer of 1936 Hughes urged his host to forsake the conservatives.  If so, he acted to protect the Court well before FDR’s landslide reelection in November 1936 or FDR’s unveiling of his Court-packing plan in February 1937.  Before the explosion of that bombshell, Roberts had already acquiesced by voting with Hughes and the liberals to uphold Washington State’s minimum-wage law for women; he continued to vote with them in challenges to the National Labor Relations Act and the Social Security Act.  As administration officials expounded upon the unavoidably political nature of judging and Roosevelt chastised the Supreme Court as a balky horse that would not pull together with the other branches of government, Hughes maintained a judicial calm.  If society wished to be governed by “the processes of reason,” he declared before the American Law Institute, “it must maintain the institutions which embody those processes.”

As the Term ended, Felix Frankfurter thought Hughes ought to be castigated for his “political somersaults”; instead, he received one encomium after another.  The spectacle of “a synthetic halo . . . being fitted upon the head of the most politically calculating of men,” he wrote Stone, “makes me . . . ‘puke.’”  Yet after his appointment to the Court in January 1939 even Frankfurter would laud Hughes’s leadership of the Brethren.

Simon concludes his treatment of Hughes with the following appreciation:
He was well qualified to play that pivotal leadership role.  Possessing a brilliant legal mind, he was by judicial temperament a dedicated centrist.  His progressive instincts were deep, but tempered by an innate caution.  Had he been an ideologue, either on the right or left, his tenure as Chief Justice would almost certainly have ended badly, further polarizing a divided Court.  Instead, his incremental approach to constitutional transformation enabled him to preserve both the image and the reality of a strong Supreme Court and, in the process, resist the enormous political pressure exerted by President Roosevelt.  Once the threat of FDR’s Court-packing plan had run its course, Hughes led the Court with renewed confidence, ushering in the modern constitutional era.
Yesterday, the journalists Robert Barnes and Scott Clemens reported the finding of a Washington Post ABC News poll that half the American public expects the Supreme Court justices to decide the challenges to the Patient Protection and Affordable Care Act primarily upon the basis of their “partisan political views.”  Charles Evans Hughes ended a comparable threat to the legitimacy of the judiciary with decisive and astute leadership of his Court.  Will a Chief Justice who has also spent a professional life “conditioned upon respect for the courts” do so today?

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