Thursday, September 10, 2015

Note: Walter Gellhorn on Crowell v. Benson

Some time ago, I reported on Crowell v. Benson, 285 U.S. 22 (1932), as viewed from the docket books of Justices Pierce Butler and Owen Roberts,  In Crowell, the US Supreme Court by a 5-3 vote decided that certain “jurisdictional” facts found by certain federal administrators were reviewable de novo in the federal courts.  Administrative Law scholars tend to criticize Chief Justice Charles Evans Hughes for granting federal judges too much supervisory power over administrators.  Federal Courts scholars tend to criticize him for leaving federal judges with too little.  Here is another research note on the case, based on a letter in the Herbert Wechsler Papers at the Rare Book & Manuscript Library, Columbia University.

The letter is from Walter Gellhorn, a recent Columbia law graduate who was Harlan Fiske Stone’s legal secretary in the 1931 Term, to his classmate Wechsler, who would succeed him as Stone’s clerk and serve with him on the Columbia law faculty.  The letter is part of an interesting correspondence enlivened by Gellhorn’s Court gossip, humor, and occasional earthiness.  For example, after recounting his disagreement with Stone on the reasoning of an opinion, Gellhorn observed, “I'm a pain in the ass, even to myself.”

Gellhorn dated the letter “Midnight Monday” and wrote that “today we entered upon a two weeks' recess.”  Matthew Hofstedt, Associate Curator, Office of the Curator, Supreme Court of the United States, kindly consulted the Supreme Court's journal for me and found (on p. 213) that on the day Crowell v. Benson was decided (February 23, 1932), the Chief Justice announced a recess from “Monday, February 29, to Monday, March 14, next.”  Gellhorn wrote, then, at midnight, Monday, February 29, 1932.

The letter contains much else of interest, but here, with Gellhorn's introduction, are the two paragraphs on Crowell v. Benson.  “The Keller case” to which Gellhorn refers is the rate regulation decision Keller v. Potomac Electric Power Co., 261 U.S. 428 (1923).  “Hart” is Henry M. Hart, who served as Louis D. Brandeis’s legal secretary in the 1931 term and whose memoranda on Crowell survive in Brandeis's court papers.
Your letter strikes me at a terrible moment.  Today we have entered upon a two weeks’ recess, in which I shall relax by working on five opinions, one dissent, twenty-one petitions for certiorari, five jurisdictional statements, a petition for a writ of prohibition, and a petition for a writ of mandamus.  In short, the slack season is here!

But I’ll try to give you a hasty response to your very interesting letter.  I think you’re dead right on Crowell v. Benson.  It's a terrible business.  Hughes simply created the law of “jurisdictional” facts–they sprang full formed from his penis.  It was all, primarily, to avoid the constitutional question.  I believe that the Court will be swamped with cases in which counsel will seek to prove that a fact is jurisdictional and should have been tried de novo by a court after the administrative body got through with it.  Of course, there will have to be limiting.  I don't think the Keller case is in conflict with Crowell v. Benson, though–it merely said that the court couldn't be called on to fix the rate (as I read it), and Crowell v. Benson doesn't go so far as to suggest that a court must be empowered to fix compensation, for example.

I showed your letter to Hart, who has slept with Messrs. Crowell and Benson the whole two months that they've been knocking about the court.  He will perhaps drop you a note as to his views of it, and he will know whereof he speaks.  I did some work on the case for Stone–not much, but enough to know how far from home plate Hughes wandered; but Henry went over it with a vacuum cleaner dozens of times.
I'm puzzled by Gellhorn's claim that Hughes "simply created the law of 'jurisdictional' facts," because the doctrine figured prominently in Supreme Court decisions before World War I (Toccqueville's Nightmare, ch. 2).  I'm also not entirely clear on the constitutional question Hughes wanted to avoid.  Is it that by treating Benson, who had fired the worker Knudson shortly before his injury, as an employer, the administrator was taking the property of A and giving it to B, in violation of the due process clause?  Presumably Hughes, like other elite lawyers believed that worker's compensation commissioners moved heaven, earth, facts, and logic to compensate workers and their families.  If so, he might have believed that the deputy commissioner Crowell was interpreting the statute to provide compensation for Knudson.  To avoid a question of law--the constitutionality of a statute that required former as well as current employers to compensate workers for their injuries--Hughes would have then framed the case as a question of fact--whether Benson was still Knudson's current employer at the time of the injury.

Gellhorn's characterization of Hughes as wandering from "home plate" is also intriguing.  Is "home plate" the jurisdictional fact doctrine before Crowell, the position Hughes took in conference, both, or something else altogether?  In my earlier post, I suggested that Roberts and Stone left the majority after Hughes circulated an opinion requiring judicial review of jurisdictional facts not on the record before the administrator but de novo in federal court.  Jurisdictional facts would thus differ from constitutional ones, which were reviewed on the record before the commission.  (See Reuel Schiller's "Era of Deference.")  Perhaps in this respect, then, the chief justice "wandered" from "home plate" and Crowell's version of the jurisdictional fact doctrine sprang fully formed from Hughes's, um, loins.

Doubtless a letter from Hart to Wechsler, if one existed, would illuminate the murkiness.  Unfortunately, when Edwin Moloy, Curator of Modern Manuscripts, Historical & Special Collections, Harvard Law School Library, consulted the file of correspondence between Hart and Wechsler in the Henry M. Hart papers, he could find no mention of Crowell.  I leave it to Federal Courts scholars to decide whether Gellhorn's letter sheds any useful light on the dialogue on Crowell in Hart & Wechsler’s Federal Courts and the Federal System.

References.  The best account of the decision is Mark Tushnet's "Story of Crowell," Federal Courts Stories, ed. Vicki C. Jackson and Judith Resnik (Foundation Press, 2010).  Thomas W. Merrill discusses criticism of the decision in “Article III, Agency Adjudication, and the Origins of the Appellate Review Model of Administrative Law,” Columbia Law Review 111 (2011): 972-79.  And for more on the docket books of the early Hughes Court, consult Barry Cushman, "The Hughes Court Docket Books: The Early Terms, 1929-1933,” Journal of Supreme Court History 40 (2015): 103–132.

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