Monday, June 2, 2014


[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.]