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by Stephen Yellin

Yesterday I covered the first part of the story of Charles Evans Hughes, the Republican who ultimately held the fate of millions of Americans in his hands as Chief Justice of the United States.  An accomplished lawyer, jurist and Governor of New York, with an impressive record of progressive reforms and principled stances, Hughes came within an eyelash – 4,000 votes from California – of winning the White House in 1916. As history tells us, however, Hughes had another role to play in our nation’s history. In the midst of the most difficult crisis since the American Civil War, the former ally of Theodore Roosevelt found himself eyeball to eyeball with Franklin Delano Roosevelt.

Those who read Part 1 will wonder why I changed the title of today’s piece to “conservative” from “progressive”. The reason is not that Chief Justice Hughes changed his positions or judicial philosophy during his career; rather, the political framework (the “Overton Window”) of the nation shifted as a whole towards what political scientists call “American Liberalism”. The development of a large federal bureaucracy, higher taxes on the wealthy and massive investments in social and economic programs to help the poor and vulnerable – all this came from the political philosophy that the government was the only reliable source of help for the public.

Old-time progressives like Hughes believed that the government had to work cooperatively with business and labor alike to improve the country, using a combination of regulatory oversight and private incentives (see Theodore Roosevelt’s Square Deal as an example). In other words, the progressive Hughes was a conservative in the context of the 1930s.

Towards conflict
Chief Justice Hughes was confirmed to his post by the U.S. Senate in 1930, having been appointed by President Hoover to replace the late William Howard Taft.  Having been an Associate Justice from 1910 to 1916, in addition to being a leading public figure for 25 years, the 68-year old Hughes knew the ins and outs of his new job. As I noted yesterday, he also knew all but 1 of his new colleagues quite well; the other new member of the Court, Owen Roberts, was a virtual cipher without any prior judicial or political record. The other 7 consisted of 4 conservatives (James McReynolds, Willis Van Deventer, George Sutherland and Pierce Butler) and 3 liberals (Oliver Wendell Holmes, Louis Brandeis and Harlan Fisk Stone), with the equally liberal Benjamin Cardozo replacing Holmes in 1932. It would be Hughes’ task to keep the Court unified as much as possible, forging consensus whenever possible on all decisions.

The Hughes Court in 1930. From left to right, sitting: McReynolds, Holmes, Hughes, Van Deventer, Brandeis. From left to right, standing: Stone, Southerland, Butler, Roberts.

This task became increasingly impossible, even for the hard-working and well-respected Hughes, as the early 1930s saw America plunge into the depths of the Great Depression. While the historical record shows that 1 out of every 4 American workers were unemployed by 1933, that horrific tally is almost certainly an undercount – there were many more Americans who had simply given up hope. President Hoover, an old-style progressive like Hughes, refused to take any steps that would see the government spend money on jobs programs or social welfare by itself. Not surprisingly, a desperate nation turned to the remarkable Governor of New York – charismatic and soothing, energetic and forceful – for salvation. March 4th, 1933 saw Hughes administer the Oath of Office to Franklin Delano Roosevelt – a task Hughes would repeat twice more in his career. The 2 men would be linked together for the next 8 years.

As James Henretta wrote in “Charles Evans Hughes and the Strange Death of Liberal America”, Hughes had been recommended by Taft as the man to succeed him.

He [Taft] correctly perceived that Hughes's mid-life activism as a lawyer-investigator and reform governor reflected the zeitgeist of the Progressive Era rather than a deep personal commitment to reform. By temperament, Hughes was a conservative, committed from his years of legal practice to the rationalistic procedures and precedents of the common law. (Henretta 65)
Taft was only half-right: when it came to civil liberties, the Hughes Court would pave the way for the landmark decisions of the Warren Court just 2 decades later. Just as he had defended the freedom of Socialist Party lawmakers in court amidst the first “Red Scare” of 1919-20, Hughes as Chief Justice saw the equality under the law as morally and legally correct. In Near v. Minnesota (1931), Hughes would write the Court’s opinion that no government could censor the press before anything was even published. In 1938 he would write the Court’s opinion for Gaines v. Canada, which forced the University of Missouri to admit an African-American law student or else provide him equal resources. Gaines would be a precedent used by Chief Justice Earl Warren in the landmark Brown v. Board of Education ruling of 1954. It was also Hughes’ handiwork in using the 14th Amendment’s Equal Protection Clause to reverse the conviction of one of the “Scottsboro boys”, African-Americans accused of raping a white woman and convicted by an all-white jury.

When it came to economic issues, however, the Chief Justice was much more skeptical of government intervention. He distrusted the expansion of government bureaucracy, having seen it run rather badly for most of World War One, and worried about the hefty expenditures made by the new President as part of his New Deal program. Hughes believed in regulation, not taxation, as the solution to economic abuses, and thought individual rights should trump the right of the state. As Henretta wrote, “In Hughes's hierarchy of values, individual opportunity ranked higher than regulation, while the latter trumped corporate enterprise. (Henretta 77)” This, of course, meant that Hughes was diametrically opposed in his beliefs to President Roosevelt. With 4 conservatives willing to strike down any New Deal initiative that came before it, conflict between the White House and the Supreme Court was inevitable.

The “stitch in time that saved 9”?

During the first 2 years of the Roosevelt Administration, Hughes and Associate Justice Owen Roberts would join with the 4 conservatives (McReynolds, Van Deventer, Southerland and Butler, later dubbed by reporters as “The Four Horsemen of the Apocalypse”) in striking down government initiatives that violated individual property rights. In cases like Crowell v. Benson and Miller v. Standard Nut, the Court stopped government efforts to dig out of the Depression, both nationally and locally, in their tracks. “I am like a voice crying out in the wilderness”, complained Justice Stone as he, Brandeis and Cardozo were outvoted again and again.

Yet there came a point – a full 2 years before Franklin Roosevelt proposed to “pack” the Court to advance the New Deal agenda – when Charles Evans Hughes realized just how far his conservative colleagues would go to uphold the status quo.

In March 1935, with Roberts still on board, the Horsemen not only struck down a law establishing pensions for retired railway workers, but stated that the government had no right to use the Commerce Clause to require any pensions. The Chief Justice broke with the Four Horsemen and publicly dissented for himself and the 3 liberals in Railroad Retirement Board v. Alton. Hughes, still a believer in TR-style regulation, thought this was patently absurd.

“[What] sound distinction from a constitutional standpoint is there between compelling reasonable compensation for those injured without any fault of the employer, and requiring a fair allowance for those who practically give their lives to the service? (Henretta 83)”
Over the next 2 years, Hughes would increasingly join with the 3 liberals in upholding the constitutionality of various government regulations and New Deal legislation. The Horsemen and Roberts, however, continue to strike down program after program – the National Recovery Act, the Agricultural Adjustment Act, New York State’s minimum wage law for women (the infamous Tipaldo decision), and many more. In total, 11 of the 16 New Deal programs introduced in Roosevelt’s 1st term were declared unconstitutional by the Court. Public anger at the Court grew and grew, particularly after Tipaldo, whose precedent was a controversial Taft Court-era decision called Adkins v. Children’s Hospital (1923). The Court was going backwards, not forwards in its judicial outlook, its majority embracing the spirit of Lochner (the classic ruling protecting property rights) over the all-too-real suffering of the country.

Hughes would prove pivotal in turning the tide. He knew that if the Court was to uphold any New Deal legislation going forward, he needed to get Owen Roberts to abandon the Four Horsemen. To do this, Hughes practiced what Otto Von Bismarck called “the art of the possible”: he joined Roberts and the Horsemen in striking down the AAA, but only before convincing Roberts to overturn Adkins at the next possible opportunity.

This was in June of 1936 – months before Roosevelt won reelection, let alone decided to push for the Court-packing plan. It was Roberts – the former corporate lawyer – who history refers to as “the stitch” whose switch “saved [the] 9” from losing their independence as a branch of government. Yet it was due to Hughes, not Roosevelt that this happened.

The turning point came in December 1936, when the Court heard the case of West Coast Hotel v. Parrish. At issue was whether Washington State’s minimum wage law was constitutional – a decision that, if Adkins was upheld as precedent, would have meant that all minimum laws could be struck down.

Hughes, on behalf of the 3 liberal Justices, argued not only that the law was constitutional, but that Adkins was not. In what would be a shock to the nation, Owen Roberts joined him. Somewhere in Arlington National Cemetery, William Howard Taft was spinning in his grave; Hughes and Roberts had joined “the Bolsheviki” (as Taft called the Court’s liberals) in overturning Taft’s most significant decision as Chief Justice.

This fundamental realignment of the Supreme Court, which was confirmed in decision after decision in 1937, ended the long-standing Court position that the 14th Amendment’s “due process” clause was substantively applicable to protecting private property. 1937 would see Social Security, the Wagner Act, the National Labor Relations Board, and other New Deal legislation upheld by 5-4 majorities, with the Horsemen on the losing end.

Why isn’t this successful maneuver by Hughes remembered? The problem was that, while the Court heard West Coast Hotel in December 1936, it followed tradition (then and now) of delaying its decision until the spring of 1937. On February 5th – four days after the Justices voted in private on the case – Roosevelt publicly announced his Supreme Court reform bill in one of his trademark fireside chats. It was not until March 29th that the West Coast Hotel decision was announced, with Hughes speaking on behalf of the majority. Not surprisingly, Roberts (and Hughes, to an extent) were believed to have switched sides in the face of Presidential pressure, a belief that has persisted in history textbooks to this day.

After the storm

Hughes would take a leading role in deflecting Roosevelt’s criticism of the “tired old men” who were holding back much-needed progress. The former courtroom attorney marshaled his facts on how active the Court had been in hearing cases and forming its opinions, lobbied an overwhelmingly Democratic Congress (less than 100 Representatives and 25 Senators were Republicans in 1937) and wrote publicly to defend his Court. Thanks in part to Hughes’ efforts, the plan died in Congress.

Roosevelt may not have gotten to appoint 6 new Justices at once, but between 1937 and 1941, he got to appoint replacements for all, but Stone and Roberts. Owen Roberts, to his credit, would go on to join Robert F. Jackson and Frank Murphy in dissenting in the horribly unjust Korematsu decision that upheld the internment of Japanese-Americans during World War II.

Hughes retired from the Court in 1941, but remained in contact with the Roosevelt Administration, giving advice when asked and supporting their efforts to create the United Nations. He never recovered from the death of his beloved Antoinette in December 1945, one day after their 57th wedding anniversary, and died a semi-recluse in 1948. Thankfully, he had written his memoirs just before his wife's death, which is why we know what happened between him and Owen Roberts in June 1936.

Starting with the Gaines decision in 1938, substantive due process would be applied to civil rights, not property rights. Economic issues would remain on the back burner of Supreme Court cases for several decades. That this was the case, and that the Supreme Court ultimately sided with Franklin Roosevelt and the New Deal initiatives that saved millions of Americans, is due to the efforts of 1 man – a Republican with a conservative mindset, but a progressive’s heart. Charles Evans Hughes, the man who stopped the New Deal, then saved it, deserves far more recognition in American History books than he gets.


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Comment Preferences

  •  Tip Jar (9+ / 0-)

    "We are the leaders we've been waiting for." - Paul Wellstone

    by MrLiberal on Wed Jun 27, 2012 at 08:33:38 AM PDT

  •  Let me know what YOU think (1+ / 0-)
    Recommended by:

    For those of you who haven't read Part 1 of my essay on Hughes, go here to find out more about this remarkable figure.

    "We are the leaders we've been waiting for." - Paul Wellstone

    by MrLiberal on Wed Jun 27, 2012 at 08:35:02 AM PDT

  •  Thanks for this. (0+ / 0-)

    Very interesting.  I enjoyed it.

    I'm from the Elizabeth Warren and Darcy Burner Wing of the Democratic Party!

    by TomP on Wed Jun 27, 2012 at 08:50:16 AM PDT

  •  Thank you, I enjoyed both posts (1+ / 0-)
    Recommended by:

    I find it interesting that there have been so few surprises among recent Justices. With the possible exception of Souter who turned out slightly more liberal than advertised, most recent justices have been what we thought they would be when appointed. The Democratic appointees largely competent, if technocratic, centrists respectful of precident and the Republican appointees radical conservatives who pretended to be centrist technocrats to get confirmed. I'm not sure there is a real liberal left, maybe Ginsburg.

    “Rats and roaches live by competition under the laws of supply and demand; it is the privilege of human beings to live under the laws of justice and mercy.” ― Wendell Berry

    by epc3 on Wed Jun 27, 2012 at 09:57:44 AM PDT

    •  Breyer's a liberal. He espouses a philosophy (1+ / 0-)
      Recommended by:
      Roger Fox

      that stresses the expansion of democratic participation. That can play out in various ways in different cases. He is very much a technocrat at law.

      I had the privilege of working as staff for an expert panel on which he served. Sharp as a razor, his intellect - a cut above most folks at high levels, it appeared to me. He's the kind of smart Scalia covets and japes but can't touch.

      Courage is contagious. - Daniel Ellsberg

      by semiot on Wed Jun 27, 2012 at 11:34:11 AM PDT

      [ Parent ]

  •  Great background piece on an era (0+ / 0-)

    that is relavant in todays economic and political situations.


    FDR 9-23-33, "If we cannot do this one way, we will do it another way. But do it we will.

    by Roger Fox on Wed Jun 27, 2012 at 01:55:34 PM PDT

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