Saturday, November 28, 2015

Chief Justices, Then and Now

We could devote an entire roundup to reports of Chief Justice John G. Robert, Jr.'s lecture on Charles Evans Hughes and conversation with the Honorable Robert Katzmann, Chief Judge of the US Court of Appeals for the Second Circuit on November 20.  The event was jointly sponsored by the Supreme Court Historical Society and the Historical Society of the New York Courts. Robert Barnes reported on it in the Washington PostAdam Liptak reported on it in the New York Times.  And I was there, too.

The Sphinx and the Candidates (1908) (LC)
Aided by a very engaging slide show assembled by the Curator's Office of the Supreme Court that drew upon images on display at the Court, the Chief Justice was very good, as surprised no one who has ever heard him speak publicly before.  His rueful "those-were-the-days" after noting Hughes's unanimous confirmation as associate justice and that (as the caption to a Hirschfeld portrait reported) Hughes wrote only unanimous opinions and no dissents in his first term as chief justice were well-received.  He also caught and elaborated upon Chief Judge Katzmann's nonobvious reference to candidate Hughes's snubbing of California progressive Hiram Johnson in the 1916 presidential campaign.  The Chief Justice nicely handled the difficult question of just what William Howard Taft said about the chief justiceship when coaxing then Governor Hughes to go on the Supreme Court as an associate justice, although I missed an acknowledgement that Taft might have wanted to sideline a potential challenger in 1912.  In those days, at least, a governor of New York was a plausible candidate for President of the United States, as Udo Keppler's cartoon, above right, suggests.

Chief Judge Katzmann provided Chief Justice Roberts with opportunities for self-revelation, which he largely passed up.  For example, the Chief Judge invited the Chief Justice to comment on–if I have it right–the following sentence from Hughes’s Supreme Court of the United States (1928).  “While the Chief Justice has only one vote," Hughes wrote, "the way in which the Court does its work gives him a special opportunity for leadership.”  The passage continued: “At the conference it is the practice for the Chief Justice, unless he desires otherwise, to be the first to state his opinion with respect to a the case to be decided; he gives his opinion first and votes last.”  As Chief Justice, Hughes used that protocol and masterful preparation to dominate conference.  Even Felix Frankfurter knew not “to talk unless you were dead sure of your ground, because that gimlet mind of his was there ahead of you.”  In effect, then, Katzmann invited Roberts to open the doors to the Court's inner sanctum.  Not surprisingly, the Chief Justice declined, although he did observe that justices' authority spring from a variety of sources, including, in Justice Scalia's and Justice Kennedy's cases, long tenure on the Court.

Reports (including, in addition to Barnes’s and Liptak’s, this one and this one) have noted the Chief Justice’s praise of Hughes’s opposition to Franklin D. Roosevelt’s “Court-packing" plan.  The Chief Justice cast the Hughes Court as very much the underdog in the fight.  Although he noted Hughes’s political astuteness, I sensed that the Chief Justice would have been unsatisfied with “White House Tommy” Corcoran’s verdict: “Hughes has played a bad hand perfectly while we have played a good hand badly.”  Hughes prevailed not simply because of his superior gamesmanship but because of his close identification with the Court and his understanding of its place in American society.  Had Hughes not prevailed, I believe the Chief Justice implied, the foreign judicial delegations that now turn up at the Marble Palace almost every week might seek out a more fitting symbol of judicial independence and integrity to pose before.

Chief Judge Jonathan Lippman hosted.  When he noted the presence of his predecessor, Chief Judge Judith Kaye, the audience, packed with New York lawyers, responded with vigorous and prolonged applause.

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