Hughes

[This is the third in a series of posts on my book Tocqueville's Nightmare.  The series begins here.]

Governor Hughes

When, in writing his memoirs, Charles Evans Hughes reached his campaign as governor to create a public utility commission for New York, he remarked that the episode “brought me at the beginning of my public career to the close study of administrative agencies, their necessity and appropriate sphere of action.  We were then . . . at the threshold of the extraordinary development which for the past twenty-five years has been the most important feature of the political history of the nation and the States.”  Hughes’s prolonged and thoughtful engagement with the problem of reconciling administration and the rule of law makes him an indispensable guide to the judicial phase of Americans’ facing down of Tocqueville’s nightmare.  He gets two chapters in my book, of which the first is “Hughes.”  Here is its abstract:

Charles and Antoinette Hughes, 1921-23

"No person has a better claim to being the judicial architect of America's peculiarly legalistic administrative state than Charles Evans Hughes.  The proper design of administration occupied him throughout his public career, as an investigator of corrupt business-government relations, a governor who created the nation's leading public utility commission, an associate justice of the U.S. Supreme Court, and an appellate lawyer.  As a justice, he revised A.V. Dicey's court-centered notion of the rule of law when fashioning doctrines that gave administrators great discretion.  By 1920, he decided that the reform of administrative procedure the best way to reconcile autonomous bureaucracy with the rule of law.  He never completely abandoned judicial review of findings of fact, however.  In the 1920s, as litigation over rate regulation grew oppressively long, pluralist-minded reformers cast him as a conservative apologist of Big Business and opposed his confirmation as Chief Justice in 1930."

Still Supreme

I assume that most readers think of Hughes, if at all, as I once did, as an iconic representation of judicial supremacy who as Chief Justice prevailed over President Franklin D. Roosevelt in a “duel” or “great constitutional war.”  Daniel T. Rodgers’s verdict, though unflattering, was not an inaccurate reading of the literature.  “He presided over the U.S. Supreme Court during the key years of the New Deal, though in most histories of the 1930s Court he comes across as something of an also-ran behind its more memorable shapers: Brandeis, Cardozo, Sutherland, Black, even Roberts,” Rodgers wrote in 2006.  “Hard to pin to any achievement or distinct idea, slipping in and out of the dramatic movements of his day, he was the kind of man who makes history but easily falls out of the history books.”

In Tocqueville’s Nightmare, I try to explain Hughes’s achievement and make it and him more memorable.  He didn’t exactly make things easy for me.  Although enough anecdotes survive to suggest that he had a lively and inquisitive mind, “full of fun and whimsey” (as Frankfurter had it), they do not come from admiring Supreme Court clerks intent on making creating a legacy for “their” justices.  Not much of his personality emerges from his papers at Columbia University and the Library of Congress, his "autobiographical notes,” or his public addresses.  The papers from his service on the Supreme Court (1910-1916; 1930-1941) rarely provide behind-the-scenes views of his "gimlet mind"–Frankfurter again–at work.  Also, it doesn’t help that Hughes’s greatest legal achievement involved not the familiar controversies of constitutional history but a seemingly prosaic issue of administrative law.

Albert Venn Dicey (Credit)

For Hughes, as for many other American lawyers, Dicey’s famous statement of the rule of law provided a starting point: “No man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts of the land.”  Translated strictly into legal doctrine, the formula required judges reviewing administrators’ actions to “take the whole case”: that is, to review both the law and the facts of a dispute.  Although he revered the judiciary as “the safeguard of our liberty,” Hughes felt another commitment almost acutely.  In two celebrated investigations on behalf of the New York State legislature, he revealed stunning defalcations by public utilities and insurance companies and the utter inadequacy of the executive and legislative officials charged with policing them. Commission government provided the best answer, but effective commission government required a loosening of Dicey’s rule of law.  If a reviewing court could decided for itself the factual question before an commission, the judges, not the commissioners, would be the real decisionmakers and the focus of fierce political pressure.  “You must had administration,” Hughes declared in a celebrated address in 1907, “and you must have administration by administrative officers.”

The bulk of the chapter shows Hughes shaping judicial review so as to prevent “mere bureaucracy”–an illiberal, autocratic force–but permit responsible administration.  Although Chief Justice Edward Douglass White assigned his court’s first, important cases to fellow southerner Joseph Lamar, Hughes finally got the nod when a complex of convoluted rate disputes reached the Court and no one else was up to the job.  In those and other cases and in private practice, Hughes insisted on retaining weight-of-the-evidence review to keep agencies from finding facts to reach beyond their legislative mandate or to confiscate the property of a regulated industry.

Before 1920, the terrain Hughes would cede the agencies under deferential judicial review was more remarkable than the outposts of weight-of-the-evidence review he insisted on retaining.  But in the 1920s, rate cases increasingly dealt not with railroads but water, gas, and electric companies serving vast urban populations.  As Morton Keller noted, the shift altered the politics of rate setting.  Public utility commissions set rates low rather than suffer the wrath of enraged urbanites; companies fought back with interminable and costly rate cases.  Elsewhere, deferential review became commonplace.  Increasingly, the retention of weight-in-the-evidence review in rate setting seemed anomalous in “an era of deference.”  Robert Lee Hale, John Dickinson, Gerard Henderson, and other law writers joined with Learned Hand, Louis Brandeis, and other judges with slashing attacks on the “miserable obfuscation” (Frankfurter)  that passed judicial reasoning in rate cases and the litigation that made rate regulation “a failure, if not a farce” (Charles Clark, dean of the Yale Law School).  When Herbert Hoover nominated him to the Chief Justiceship in 1930, Hughes seemed far more conservative than he did when he left the Court in 1916.

[The series continues here.]

Ernst's "Tocqueville's Nightmare"

My book Tocqueville’s Nightmare: The Administrative State Emerges in America, 1900-1940 is officially published today by the Oxford University Press. Here's the press’s summary and blurbs:

In the 1830s, the French aristocrat Alexis de Tocqueville warned that "insufferable despotism" would prevail if America ever acquired a national administrative state. Today's Tea Partiers evidently believe that, after a great wrong turn in the early twentieth century, Tocqueville's nightmare has come true. In those years, it seems, a group of radicals, seduced by alien ideologies, created vast bureaucracies that continue to trample on individual freedom.

In Tocqueville's Nightmare, Daniel R. Ernst destroys this ahistorical and simplistic narrative. He shows that, in fact, the nation's best corporate lawyers were among the creators of "commission government" that supporters were more interested in purging government of corruption than creating a socialist utopia, and that the principles of individual rights, limited government, and due process were built into the administrative state. Far from following "un-American" models, American state-builders rejected the leading European scheme for constraining government, the Rechtsstaat (a state of rules). Instead, they looked to an Anglo-American tradition that equated the rule of law with the rule of courts and counted on judges to review the bases for administrators' decisions. Soon, however, even judges realized that strict judicial review shifted to courts decisions best left to experts. The most masterful judges, including Charles Evans Hughes, Chief Justice of the United States from 1930 to 1941, ultimately decided that a "day in court" was unnecessary if individuals had already had a "day in commission" where the fundamentals of due process and fair play prevailed. This procedural notion of the rule of law not only solved the judges' puzzle of reconciling bureaucracy and freedom. It also assured lawyers that their expertise in the ways of the courts would remain valuable, and professional politicians that presidents would not use administratively distributed largess as an independent source of political power.

Tocqueville's nightmare has not come to pass. Instead, the American administrative state is a restrained and elegant solution to a thorny problem, and it remains in place to this day.

And here are the blurbs:

"Daniel Ernst provides a wonderfully rich and subtly revisionist account of one of the crucial eras in the development of American administrative law. The meat he puts on the bones of apparently arid doctrinal disputes both reveals why administrative law has been and remains a sharply contested battleground in American political development and gives us a brilliant account of what 'American exceptionalism' really entails." --Jerry L. Mashaw, Sterling Professor of Law, Yale University

"In this masterful study, Daniel Ernst shows how judges and lawyers in government and private practice constructed the modern American administrative state in the first decades of the twentieth century, reshaping the protean ideal of the rule of law so that law and government institutions supported each other in overcoming constitutional objections to the nightmare of a monstrous bureaucratic state. His account seamlessly integrates ideas, cases, and politics into a compelling explanation for the constitutional world the New Deal created." --Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School

"The conventional narrative of the origins of administrative agencies and administrative law in early twentieth-century America has emphasized similarities between American and Western European agencies of the state and has associated the emergence of agencies with the triumph of collectivist ideologies of governance in the United States. Tocqueville's Nightmare demonstrates that the process was far more complicated. Building on recent revisionist work by early twentieth-century legal and constitutional historians, Daniel Ernst has put forth an account of the growth of the American administrative state that reveals the limitations of conventional wisdom and is likely to become authoritative." --G. Edward White, David and Mary Harrison Distinguished Professor of Law and University Professor, University of Virginia School of Law

"Tocqueville's Nightmare": Origins and Aims

For some time I’ve been writing a book on the legal history of the New Deal, told from the perspective of the elite lawyers who staffed its agencies.  Penetrating, quick-witted, ambitious, and clever, they are fascinating guides to some of the most interesting legal and political terrain of the United States in the 1930s.  After only a few months in their papers, I knew that their lawyering within the federal bureaucracy was a great, largely unwritten chapter in American legal history, but I could also see the limitations of a tale told exclusively from their point of view.  New Deal lawyers, like everyone else, had interests and ideals inclining them to discount what others felt acutely.  And they took much of their legal and political world for granted, without pausing to tell the rest of us how it came to be.  Existing scholarship provided at best a general view of the lay of the land and neglected many features.  The more I investigated their “givens,” the better I understood the New Deal lawyers.  But I also I wondered how I could share what I had learned without lengthy digressions from a narrative constructed around their actions.

The answer, I decided, was to give the New Deal lawyers’ givens their own book.  Tocqueville’s Nightmare is the result.  “Freund and Frankfurter” shows that, long before the New Deal, reformers opted for an Anglo-American rather than a Continental approach to constraining the state.  Two chapters on Charles Evans Hughes describe how a great American jurist revised legal doctrine to accommodate an administrative state.  “New York, 1938” shows that the solution Hughes developed ultimately addressed the fears of politicians and lawyers threatened by the new bureaucracies.  Finally, “Pound and Frank” explains how Roscoe Pound, the greatest legal scholar of his generation, legitimated a transparently partisan assault on the New Deal and provoked a counterattack from Jerome Frank and other legal realists newly installed in the federal administrative state.

Elihu Vedder, "Good Administration" (Carol Highsmith, LC)

The book does two things.  First, it models for legal historians one way to combine legal and political history.  It assumes that lawyers, judges, law professors, and others created administrative agencies on terrain contested by party politicians and other wielders of official power.  The resulting politics explain why Ernst Freund wanted administrators tied down by bright-line rules and Felix Frankfurter them free to exercise their discretion.  It explains why Hughes, as governor of New York, created the nation’s most powerful public utility commission and why, as Chief Justice of the United States, he refused to free regulatory commissions from any judicial oversight.  It explains why a coalition of politicians and lawyers tried to write strict review of agencies’ decisions into New York’s constitution in 1938 and push a bill intended to hamstring the New Deal’s agencies through to a presidential veto in 1940.

Second, Tocqueville’s Nightmare challenges the claim, common in recent public debate, that in the first decades of the twentieth century “progressives” or “liberals” who little regarded the freedom of the ostensible beneficiaries of their reforms sent the Constitution into exile.  I found, instead, broad support for agencies that promised to replace a broken political order, clear-eyed appreciation of the dangers they posed, and the masterful revision of legal doctrine to permit the one and prevent the other.  I’ll develop the book’s two contributions in future posts.

Docket Books at the Supreme Court: A Definitive List and Access Rules

Courtesy: Office of the Curator, US Supreme Court

When U.S. Supreme Justice James McReynolds pushed his docket book across his desk to John Knox, the legal secretary felt “almost as if Moses had unexpectedly handed me the Ten Commandments.”  Knox’s awe was understandable: the book was a large, red volume, locked with a clasp, in which McReynolds, like his brethren, recorded votes, and sometimes more, during the conferences in which they considered the week's cases.  Knox recalled McReynolds saying rather sharply, ‘That book will not be preserved after this term of the Court!  Next June I shall take it downstairs myself and stand before the big furnace in this building and watch it burn up.  A book like this must be destroyed at the end of each term!”

McReynolds may well have destroyed his docket book for the 1936 Term, but, thanks to a list released yesterday by the Office of the Curator of the Supreme Court of the United States (right; click to enlarge), we now know that his docket book for 1934 survives, as do those of many other justices.

As I said in an earlier post, the existence of the docket books is hardly a secret.  Dean Robert C. Post used Pierce Butler’s, Owen Roberts’s, and Harlan Fiske Stone’s in The Supreme Court Opinion as Institutional Practice: Dissent, Legal Scholarship, and Decisionmaking in the Taft Court, Minnesota Law Review 85 (2001): 1267-1390.  I mentioned my use of Butler’s and Roberts’s docket books in a post on Crowell v. Benson (1932).  Recently, Edward A. Purcell, Jr., drew upon Louis Brandeis’s and others’ in Understanding Curtiss-Wright, Law and History Review 31 (2013); 699 n. 99.  But until yesterday, I believe, no one outside the Curator’s office has had a complete list of the surviving docket books.

I consider myself only an accidental constitutional historian.  In Tocqueville’s Nightmare (publication date: May 21), I needed some informant to explain how American judges reconciled the administrative state and the rule of law.  No one served my purpose better than did Charles Evans Hughes.  Once I chose Hughes, a sally into "1937 and all that" was inevitable. 

Butler's docket books helped me not only with Crowell but also with Morgan v. United States (1938).  In an entry for the latter decision, Butler records Hughes's remark that although what constitutes a "full hearing" in an administrative procedure was "relative," the hearing in that case was inadequate.  Hearsay though it is, Butler's report is invaluable, because Hughes destroyed his own docket books, and the chief justice's court papers are quite thin.

Not until after my second visit to the Curator's Office to work with the Butler and Roberts docket books did I realize that others existed that might help with the Supreme Court's 1935 Term, during which Brandeis reported that Hughes was "deeply unhappy" and had lost "control over the court."  Charles E. Wyzanski, Jr., in a letter to his mother dated October 18, 1936, surviving in box 22 of his papers at the Massachusetts Historical Society, passed along gossip from Stone's clerk, Thomas Harris, that in conference Hughes had voted with Brandeis, Cardozo and Stone in Jones v. SEC, 298 U.S. 1 (1936), Great Northern Ry. Co. v. Weeks, 297 U.S. 135 (1936), and Elgin, Joliet R. v. U.S, 298 U.S. 492 (1936), but that he had changed his vote when he found he was in the minority, lest a series of 5-4 decisions undermine the Court's authority. I had a request pending with the Curator's Office to verify Harris's report in one of the surviving docket books for the term, but it was not granted before Tocqueville's Nightmare went to press.

In addition to the list of docket books, the Office of the Curator also released the following "Instructions to Researchers: Access to the Docket Book Collection":

The Office of the Curator at the Supreme Court of the United States maintains a collection of nearly 120 historic docket books used by former Justices. Due to the sensitive and fragile nature of these books, access is restricted. The Court will make these books available to researchers under the following procedures but reserves the right to decline access.

(1) Access to docket books is available to post-graduate scholars, professors, and historians as approved on a case-by-case basis.

(2) Researchers must submit a written request to the Office of the Curator providing:
a. Name.
b. Affiliated Institution.
c. Contact information, including phone number, email, and mailing address.
d. A short description of the project with timeframe.
e. A justification for why access to the docket books is required.
f. A limit of up to 20 specific case citations per request.

Please note: Requests to review an entire docket book will be denied unless there is a compelling reason that necessitates such access. In such a case, the Office of the Curator will offer a reasonable opportunity to view the book in person.

(3) Upon receipt of the above, requests will be reviewed by the Curator’s staff and submitted for approval.

(4) Upon approval, printed copies of the requested entries will provided at no cost. These copies are for research purposes only and may not be reproduced for publication.

(5) Requests will be handled in the order they are received and may take up to 6-8 weeks to review and process.

(6) Additional requests may be submitted, but each request will be handled as a new one and processed in the order it was received.

(7) The preferred citation for the docket books is: Case Name, Docket Book of Justice [name], [Term and Year], Office of the Curator, Supreme Court of the United States.

Please submit requests online here or send request to:

Office of the Curator
Attn: Docket Book Requests
Supreme Court of the United States
Washington, DC 20543

Brandeis's Docket Book, 1935 Term

The new policy is an improvement on prior practice, and I know that the staff of the Office of the Curator has worked hard to clarify and standardize what has been an opaque and ad hoc process.  Still, few scholars and teachers will be satisfied with this access, especially because we and our students have grown accustomed to using equally sensitive and fragile documents at the Library of Congress and other repositories.  For example, after my second visit to work with the Butler and Roberts docket books, I walked a block south to the Madison Building of the Library of Congress and, without any prior notice or approval, examined William O. Douglas's docket book for the 1938 Term, deposited there with the rest of his papers.  Rather than being limited to twenty entries at a time, I could turn the pages of the book at will.  This semester one of my students consulted another of Douglas's docket books for her seminar paper. Even if, under the access rules of the Curator's Office, she qualified as "a postgraduate scholar," I doubt she could have formulated a request, received clearance, and been scheduled for a visit before her paper was due.

The limits on access seem all the more incongruous when one realizes that scholars working on later periods can more easily view the Court’s deliberations, thanks to the court papers of justices deposited at the Library of Congress and other repositories.  See, for example, my former Georgetown colleague Richard Lazarus’s National Environmental Policy Act in the U.S. Supreme Court: A Reappraisal and a Peek Behind the Curtains, Georgetown Law Journal 100 (2012): 1507-86.

I hope the new rules governing access to the docket books will not be the last word on the subject.  I know nothing about how they were formulated, but I imagine they could be greatly improved by a referral to a committee of interested parties, including representatives of the Curator's Office and of the Supreme Court, archivists, historians, legal scholars, political scientists, and journalists.

Update:  Jan Palmer and Saul Brenner, “Working with Supreme Court Docket Books,” Law Library Journal 81 (1989): 41-46, a thoughtful essay on the scholarly value of docket books, does not mention any of those now identified by the Curator’s Office.  The authors may have obliquely referred to them when they described the ones they discussed as the only “presently available” docket books, “as far as we know.”  And see the SSRN paper by Paul Axel-Lute, Justice Bradley's Docket Books and Law Books at Rutgers-Newark.

Chief Justice Hughes

[The is another in a series of posts on my recently published book, Tocqueville’s Nightmare.  The series begins here.]

Here is the abstract for the book’s third chapter, “Chief Justice Hughes”:

Charles Evans Hughes (LC)////

Hughes’s first decisions as Chief Justice reasserted the principle of strict judicial review of agency fact finding when administrators attempted to extend their reach beyond their statutory or constitutional limits.  Having made his point, he returned the Supreme Court to the deferential trajectory it had been on when he left it in 1916.  But when challenges brought the first wave of New Deal legislation to the Supreme Court in the 1934 Term, the justices reacted strongly against what struck them as blueprints for a corporatist state.  Hughes intended his opinions as lessons in the proper structure of the administrative state.  The New Deal lawyers got the message and drafted new statutes that let lawyers keep administrators in line.  Thereafter, without expressly renouncing strict judicial review, Hughes joined President Franklin D. Roosevelt's appointees in practically abandoning de novo review and looking to reformed procedures that allowed lawyers to check official discretion.

In his famous address at Elmira in 1907, Hughes declared, “My whole life has been spent in work conditioned upon respect for the courts.”  In February 1931, he warned that “unscrupulous administrators” might yield to the temptation to say, “Let me find the facts for the people of my country, and I care little who lays down the general principles.” Yet by the time he stepped down from the chief justiceship a decade later he had presided the Supreme Court’s retreat from de novo review of agency fact-finding.  Without formally abandoning the principle, he left the two lines of precedents embodying it, the jurisdictional and constitutional fact doctrines ghosts of their former selves.  What remained to stand for the rule of law were two things.  The first was administrative procedure mimicking, more or less, “the ordinary legal manner” of the common-law courts, including a requirement of finding of facts backed by substantial evidence and hearings that respected “the essence of due process.”  The second safeguard was the legal profession, which administrative procedure empowered.  If “true to the standards of [their] profession,” lawyers would prevent “those stretchings of the law which give play to tyrannical impulses” and the use of administration to dispense political favors.  To simplify: the rule of law did not require that individuals have their day in court if they had already had their “day in commission.”

I’m not the first to note this shift from ex post review to ex ante procedural design.  Walter Gellhorn described it in an introduction to a law-review symposium in 1940, and Mark Tushnet’s studies of Crowell v. Benson, Jones v. Securities & Exchange Commission, St. Joseph Stock Yards Co. v. United States, and Morgan v. United States point in the same direction.  (See also Thomas Merrill's fine study, although I saw nothing to support his speculation about John Dickinson's influence on the Court after Crowell v. Benson.)  But viewing administrative law from Hughes’s perspective makes the long-term trend more vivid and at least partially extracts it from the dark and bloody historiographic ground constitutional historians sometimes simply refer to as “1937.”

Which is not to say that I could avoid engaging with that debate, even if I wanted to.  I knew that when I chose Hughes as my judicial expositor of Dicey’s rule of law, 1937 came with him.  But I also knew that a full reckoning with the Supreme Court’s landmark decisions the doctrines behind them would take me far the throughline of the book. Also, other justices would have to have their due, and although I still don’t think James McReynolds is owed much, one wouldn’t want to slight the intelligence or integrity of George Sutherland and Willis Van Devanter, and Hughes's repeated, needling references to the Minnesota Rate Cases actually made me feel a little sorry for Pierce Butler.

I’ll be interested to see what historians who have spent many more years with the U.S. Supreme Court than I have make of the chapter.  I think it places me somewhere between internalist and externalist accounts or perhaps beyond either but bearing features of each.  I join Barry Cushman, G. Edward White, and others in seeing too much doctrinal continuity to characterize the Supreme Court’s decisions in 1937 as a “revolution.”  (Michelle Landis Dauber’s account of the spending power in The Sympathetic State also argues against a sharp break in constitutional regimes.)  Hughes expanded the reach of federal regulation into the states and accepted the regulation of industries not previously thought of as businesses affected with a public interest, but only when he believed that the structure and procedures of agencies let lawyers protect society "from bureaucratic excesses.”  As unbiased observers, including Zechariah Chafee, Philip Levy, Robert Stern, and Charles Wyzanski, commented, the National Recovery Administration and the coal labor board struck down in Carter Coal certainly failed this test, and the Agricultural Adjustment Administration probably did.  These agencies broke with the model of the independent regulatory commission that “caught Hughes’s imagination powerfully in his early years” (Daniel Rodgers's words) and threatened to set Americans on a path of business-dominated corporatism, which Hughes sensibly feared might lead them from liberal democracy and into in increasingly illiberal world.

Some time ago, Cushman argued that the Hughes Court was engaged in a “constitutional consultation” with the New Deal.  I come to pretty much the same conclusion.  (The qualification is necessary because accounts of Hughes’s dismay in 1936 and giddy relief in 1937 and Wyzanski’s well-informed readings of the Court persuade me that, as the externalists intimate, partisanship was an unusually potent force among the justices in the 1935 Term.) Until Roosevelt’s lawyers showed that they understood the first principles of administrative law as Hughes had been stating them since 1907, the New Deal’s statutes would not survive.  But once the New Deal lawyers showed that they had gotten the message, Hughes relaxed his tutelage and turned to the task of working out just how much process was due individuals in the new administrative state.

A “revolution” marks an epochal change, not a reversion to the mean, and that is what I think Hughes engineered after the Four Horsemen and Roberts ran off with his Court in the 1935 Term. “The Constitutional Reconciliation of 1937” is a more accurate, although admittedly less dramatic, description of the Court’s doings, at least when viewed from the perspective of Chief Justice Hughes.

[The series continues here.]

Freund and Frankfurter

[This is the second in a series of posts on my book Tocqueville’s Nightmare.  The series begins here.]

I'll confess: After devoting much time and thought to assembling the components of Tocqueville's Nightmare into a book, I was disheartened when Oxford asked me to write abstracts for each chapter so that subscribers to Oxford Scholarship Online could decide which ones to purchase and which ones to leave unread in the cloud.  The realization that I could use the abstracts to introduce blog posts on the book was some solace.  Here's the abstract for "Freund and Frankfurter":

One of the few Americans who looked to the European continent not just for programs to address the social ills of capitalism but also to constrain administrators was the German-educated law professor Ernst Freund.  A trusted advisor to Chicago's progressives, Freund believed that the America was a Rechtsstaat, in which bright-line rules distinguished legitimate from illegitimate administrative action.  Most legal progressives, believed instead that administrative discretion was inevitable and desirable.  Their leader, the Harvard law professor Felix Frankfurter, revealed their disagreement when he and Freund jointly directed legal studies of agencies financed by the Commonwealth Fund.  One monograph, by Gerard Henderson on the Federal Trade Commission, influentially argued that an agency's authority turned on the quality of its findings of fact.  By 1932 Frankfurter had prevailed.  Henceforth reformers would look not to the Continent but to the common-law tradition for a rule of law better suited to American politics.

So Tocqueville’s Nightmare begins not with a big bang of statebuilding or the bustle of administrators in action or the stern reprimands of judges but with scholars theorizing about administration and angling for grant money.  I know that sounds a lot less dramatic than FDR’s Hundred Days or Court-packing plan, but the chapter does have its drama, one suggested by recent historical scholarship in the “transnational” vein.  In Atlantic Crossings (1998), Daniel T. Rodgers showed that American progressives thought of themselves as part of a transatlantic search for solutions to the problems of industrial society.  As John Fabian Witt added for legal history, these “cosmopolitans” often found themselves challenged by “patriots,” convinced of the United States’ exceptional place in world history and dismissive of European ways.  Rodgers documented the existence of hundreds of intermediaries intent on bringing reforms from the European Continent to the United States, but in so doing he raised two questions for legal historians.  Did some transnational lawyer attempt the analogous feat of importing a continental approach to constraining official power?  If so, how did he fare in a legal order that apotheosized the common law and its institutions?

Taft, Hughes and the Travails of Progressivism: An ICH Seminar

[Not to belabor the point, but the deadline for registering for this seminar, to be led by Your Humble Blogger and Jonathan Lurie, is this Saturday, January 20.  Last chance!]

The Institute for Constitutional History is pleased to announce another seminar for advanced graduate students and junior faculty, “William Howard Taft and Charles Evans Hughes; the Travails and Contradictions of Progressivism within the Law: 1908-1941.”

WHT (LC)

CEH (LC)

Between them, Taft and Hughes served as Governor (H),
Governor General (T); Circuit Court Judge (T), Secretary of War (T), President (T), Supreme Court Justice (H), Nominee for the Presidency (H), Secretary of State (H), Chief Justice (T), Chief Justice (H), and this list is not complete.  It indicates, however, the impressive scope of their accomplishments.  In 1916, Taft had called himself a "progressive Conservative," while in 1935, the Taft's biographer noted of his successor that as Chief Justice, Hughes had "ruled against capital, against labor, against the farmer and for the farmer, against Congress and for Congress, against the president and for him."  Hughes' biographer described him as "an old fashioned progressive."  Alpheus Thomas Mason wrote that "Hughes's mind was singularly devoid of ideological content or commitment."  How had progressivism been transformed during their careers?  To what extent were both jurists "independent of rigid ideology?"  This seminar seeks to explore these questions through books, articles, and discussion.

Kessler on Ernst, Tushnet Replies

The Harvard Law Review has just published two essays on Daniel Ernst's Tocqueville's Nightmare: a long review, by Jeremy K. Kessler (Columbia University), and a response, by Mark Tushnet (Harvard Law School).  Kessler has posted an abstract of his review, titled "The Struggle for Administrative Legitimacy":

It is telling that the winners of [Daniel] Ernst’s history are not the hardened legal realists whom we generally think of as building, and justifying, the New Deal state. Rather, Ernst turns the spotlight on reform-minded corporate lawyers, such as Charles Evans Hughes and John Lord O’Brian, who stepped back from the edge of realism. While accepting the necessity of the administrative state for managing a modern economy, they fought to imbue that state with a legalistic conception of “fair play” and a distinctively lawyerly form of expertise. These political and intellectual moderates would have agreed with Sunstein and Vermeule when they write that “[a] dose of legal realism . . . has its place, but . . . respect for the governing rules is not optional.” Just as for Sunstein and Vermeule, the APA evacuated administrative law of “any kind of ideological valence,” for Ernst, the “rule of lawyers” insulated the administrative state from becoming a weapon in the hands of any particular social or economic group.

It apparently goes without saying — neither Ernst nor his protagonists say it — that the impartiality of the “rule of lawyers” admits one important exception. Under a “rule of lawyers,” the administrative state will persistently favor one socioeconomic bloc: lawyers and the interests they serve. From this perspective, Tocqueville’s Nightmare can be read as a narrative of regulatory capture: the capture of the administrative state by lawyers themselves. But while regulatory capture is generally understood as a threat to administrative legitimacy, Ernst suggests that lawyerly capture is its condition precedent. If he is right, important new questions come to the fore: how did lawyers win the struggle to equate administrative legitimacy with their control of the administrative state, and what exactly did they win by defining administrative legitimacy in this way? Ernst’s ingenious history not only forces us to ask these questions, but also helps us answer them.

New York, 1938

[This is another in a series of posts about my recently published book, Tocqueville’s Nightmare.  The series begins here.]

If the first three chapters of the book study “ideas in action,” the action for the most part transpires in rarefied settings: Ernst Freund and Felix Frankfurter’s studies, the Supreme Court; and the offices of New Deal lawyers in administrative agencies and the Department of Justice.  Scholars used ideas to explain imagined worlds in which they and their peers rightly wielded power; judges justified their authority by bringing precedent, institutional interest, and their more general beliefs into alignment.  The last two chapters shift the focus of the book.  Although law and politics mix throughout it, with Chapter 4 (“New York, 1938”) the balance tips to politics, and the action takes place in larger, more public gatherings, including the meetings of bar associations, a constitutional convention, campaign rallies, and a general election.

Here’s the abstract:

The procedural version of the rule of law that the Hughes Court settled upon did not just appeal to a judicial elite.  New York's general election of 1938 showed that it claimed broad support.  The state constitutional convention adopted an "antibureaucracy clause" that would require weight-of-the-evidence review for most agencies' fact-finding.  It split the state's lawyers and political parties, but even conservative corporation lawyers like John Foster Dulles opposed it, and voters overwhelmingly rejected it in November.  But New Yorkers were not about to leave administrators to their own devices.  They expected them to treat individuals fairly, and they voted in surprisingly large numbers for a relative unknown, John Lord O’Brian, who made his challenge to U.S. Senator Robert F. Wagner a referendum on the procedures of the National Labor Relations Board, Wagner's prized legislative offspring.

The requirement that agencies follow court-like procedures solved the judges’ puzzle of reconciling administrative discretion and the rule of law, but it could not have prevailed had two powerful groups opposed it.  The first were lawyers, who, as Robert H. Jackson observed, were “inclined by habit and training to prefer the court over the administrative tribunal.”  In New York, Ernest Leet, a lawyer in Jackson’s law firm, was so outraged by “the dictatorial, vicious, undemocratic practices” of the Motor Vehicle Bureau in revoking his client’s driver's license that he tried to rally the state’s bar associations to demand the writing of weight-of-the-evidence review into the state constitution.  He was joined by Arthur Sutherland, who represented the losing party in Nebbia v. New York.  Yet elite lawyers with corporate law practices lacked the litigators’ love of the “prescribed ritual” of the courts and fought to preserve administrative discretion from intrusive judicial review.  The corporate lawyers prized administrative agencies for their quick “yeses"; the "noes" they could slow by insisting upon court-like procedure.  Such procedures also assured courtroom advocates that administration would not wholly devalue their commodified expertise in the ways of the courts.  When the anti-bureaucracy clause went before the electorate that fall, only a faction of the New York bar campaigned on its behalf.  The lawyers could not effectively counter the argument that weight-of-the-evidence review would keep state agencies from providing New Yorkers with needed goods and services. 

The second potential group who might have rejected Hughes’s procedural settlement were professional politicians.  As Sidney Milkis, David Plotke, Martin Shefter and others have argued, New Dealers realized that administratively distributed benefits and decisions might do for them what older forms of patronage had long done for “professional” politicians centered in legislative bodies.  Roosevelt’s actions in 1937-38, including the Court-packing plan, executive reorganization proposal, and intervention in the Democratic primaries, persuaded some of these “regular” or “Old Guard” politicians that liberals were out to change the rules of the political game.  The trial lawyers’ call for weight-of-the-evidence review came at an opportune time for New York’s conservative Republicans and Democrats, and they pushed the anti-bureaucracy through the constitutional convention in hopes of hamstringing a rival source of power.  In November, however, New Yorkers voted against a strict, court-centered rule of law, because they feared it would unduly limit agencies upon which they depended.

Wagner after Jones & Laughlin (KMT)

Also on the November 1938 ballot in New York was a senatorial election that pit the liberal Republican John Lord O’Brian against the New Deal’s great congressional tribune, Robert F. Wagner.  Not only O’Brien had held important legal posts in Democratic as well as Republican administrations; when New York’s Republicans named him to face Wagner he was in Chattanooga charting the defense of TVA with its lawyers.  No one gave him much of a chance until he challenged Wagner to debate the need for procedural reform at National Labor Relations Board. It was a shrewd move.  By calling for the reform of the NLRB’s procedures rather than more intrusive review of its decisions, O’Brian, an ally of Hughes during his governorship, allowed for “administration by administrative officers” while seeking the quasi-judicial practices to keep that agency from handing out favorable orders like older forms of patronage.

John Lord O'Brian (LC)

Wagner’s own operatives grew anxious when they heard that rank-and-file unionists, angered over the NLRB’s apparent favoritism of the CIO over the AFL, were threatening to vote for the challenger.  Ultimately, Wagner won; still, to the extent that a vote for a candidate can be taken as a vote for his policies, O’Brian’s surprisingly large turnout suggests that New Yorkers wanted their agencies to observe something like the “fundamental requirements of fairness” Hughes insisted upon in Morgan.  Politics, it seems, as well as law converged on a procedural notion of the rule of law.

“New York, 1938” is one of the book’s two previously published chapters. In an earlier post I discussed the occasion for which I wrote it, a conference in honor of my dissertation adviser, Stanley N. Katz.  Here I also want to express my gratitude to David S. Tanenhaus, who, as editor of the Law and History Review, asked that I cut the original manuscript by a third.  I’ll confess that at the time, I felt trapped: I was an editor of the American Society for Legal History’s book series, and if word got out that I wouldn’t cut my own prose, who would cut theirs when I asked them to?  But after complying with David’s request, I was more satisfied with the result than with anything I had previously written.

[This series continues here.]

Constitutional Conservatism during the Progressive Era

Out last month from Palgrave Macmillan was Toward an American Conservatism: Constitutional Conservatism during the Progressive Era, ed. Joseph W. Postell, University of Colorado at Colorado Springs, and Johnathan O'Neill, Georgia Southern University.  Here is the abstract:

During the Progressive Era (1880-1920), leading thinkers and politicians transformed American politics. Historians and political scientists have given a great deal of attention to the progressives who effected this transformation. Yet relatively little is known about the conservatives who opposed these progressive innovations, despite the fact that they played a major role in the debates and outcomes of this period of American history. These early conservatives represent a now-forgotten source of inspiration for modern American conservatism. This volume gives these constitutional conservatives their first full explanation and demonstrates their ongoing relevance to contemporary American conservatism.

Here is the TOC:

Introduction; Johnathan O'Neill and Joseph Postell

1. Constitutional Conservatism During the Progressive Era: The National Association for Constitutional Government and Constitutional Review; Johnathan O'Neill

2. The Progressive Origins of Conservative Hostility to Lochner v. New York; David E. Bernstein

3. William Howard Taft and the Struggle for the Soul of the Constitution; Sidney M. Milkis

4. The Election of 1912 and the Origins of Constitutional Conservatism; William Schambra

5. William Howard Taft on America and the Philippines: Equality, Natural Rights, and Imperialism; John Grant

6. Civilization versus Modernity: The League of Nations in the Crisis of World Civilization; W. Taylor Reveley

7. 'Roaring' against Progressivism: Calvin Coolidge's Principled Conservatism; Joseph Postell

8. Rational Compromise: Charles Evans Hughes as a Progressive Originalist; James R. Stoner, Jr.

9. The Two Phases of Herbert Hoover's Constitutional Conservatism; Gordon Lloyd and David Davenport

Epilogue; Charles Kesler

I did not know of the book until this week.  That’s too bad, as Hughes is a central figure in my forthcoming book, Tocqueville’s Nightmare: The Administrative State Emerges in America, 1900-1940, and I would have liked to have learned from Professor Stoner’s interpretation.  I know Professor Postell from his essay “The Anti-New Deal Progressive: Roscoe Pound’s Alternative Administrative State,” Review of Politics 74 (2012): 53-85.  In it, he rejects the thesis that Pound executed an “about face” in his thinking about the administrative state for much the same reasons I did here and will here.  Pace Jerome Frank in his If Men Were Angels, Pound never was an enthusiastic advocate of the administrative state.  Postell makes much of Pound’s position that a judiciary with the proper procedures and personnel could have made the administrative state unnecessary.  I am more impressed by how the modesty of the reforms Pound preferred as chair of the American Bar Association’s Special Committee on Administrative Law in 1937-38, which originally were limited to simplifying the procedures by which agency decisions were appealed into the courts.

Legal History Workshop at Minnesota Law

[Here's the lineup, from our friends at Minnesota Law.]

­­­­­­­ University of Minnesota Program in Law & History

­­Legal History Workshop/Seminar

Professor Susanna Blumenthal

Fall 2013 Schedule

September 30

Naomi Lamoreaux, Stanley B. Resor Professor of Economics and History, Chair, Department of History, Yale University

Title:  “Contractual Freedom and the Evolution of Corporate Governance in Britain, 1862 to 1929” (co-authors: Timothy W. Guinnane and Ron Harris)

October 7

Daniel Ernst, Professor, Georgetown University Law Center

Title: “Chief Justice Hughes and Administrative Law, 1930-1941” (the third chapter of his book manuscript, Tocqueville’s Nightmare: The Administrative State Emerges in America, 1900-1940)

October 14

Bianca Premo, Associate Professor & Graduate Program Director, Department of History, Florida International University

Title: “Agents and Powers: The Art of Suing” (the first chapter of her book manuscript, The Enlightenment on Trial: Ordinary Litigants, Colonialism, and Modernity in the Spanish Empire)

October 21

Laura Weinrib, Assistant Professor, University of Chicago Law School

Title: “From Left to Rights” (the final chapter of her book manuscript, The Taming of Free Speech)

October 28

Kristin A. Collins, Peter Paul Development Professor, Boston University School of Law, Visiting Professor, Yale Law School

Title: “‘Illegitimate Half-Castes’ and the Citizen Family” (forthcoming, 123 Yale Law Journal (2014))

November 4

Sam Erman, Assistant Professor, University of Southern California Law School

Title:  “Santiago Iglesias’s Imperial Citizenship: The Value of a Status with Few Rights, 1890-1930”

November 11

Jeannine DeLombard, Associate Professor of English, University of Toronto

Title:  “Writing Civil Wrongs: Law in Late 19^th-Century American Literature”

November 18

Daniel LaChance, Assistant Professor of History Emory University, Visiting Fellow, Program in Law and Public Affairs, 2013-14, Princeton University

Title:  “The Old West and the New American Death Penalty: Capital Punishment in Harris and Oklahoma Counties, 1980-2000”

November 25

Barbara Young Welke, Professor of History and Professor of Law, Distinguished McKnight University Professor, University of Minnesota

Title: “Owning Hazard: Genre, Law, and History”

DC Area Legal History Roundtable to Convene at GW Law

The DC-Area Legal History Roundtable reconvenes on April 5, 2013, at the George Washington University Law School–more particularly, in the Student Conference Center, on the second floor of Lisner Hall, 2023 G Street, NW.  Thanks to GW Law for sponsoring the event and GW’s Renée Lerner for doing the honors!

12:00    Lunch

12:25    Welcoming remarks by Renée Lerner, George Washington University

12:30    Presentation: Robert Cottrol, George Washington University, Introduction and Chapter Two of The Long, Lingering Shadow: Slavery, Race, and Law in the American Hemisphere (Studies in the Legal History of the South, University of Georgia Press 2013).

1:30    Presentation: Daniel Ernst, Georgetown University, Introduction and Chapter Three, "Chief Justice Hughes," of his forthcoming book, Tocqueville's Nightmare: Americans Confront the Administrative State (Oxford University Press).

2:30    Break

2:45    Presentation: Joyce Malcolm, George Mason University, Chapter One, "The Court Martial of Benedict Arnold," of her forthcoming book about Benedict Arnold (Harvard University Press).

3:45    Half-baked ideas in legal history, moderated by Mary Clark, American University

4:15   Wrap-up and next steps