Thursday, June 5, 2014

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.]