by William G. Ross. Columbia: University of South Carolina Press, 2007. 304pp. Cloth. $49.95. ISBN: 9781570036798.
Reviewed by Donald Grier Stephenson, Jr., Department of Government, Franklin & Marshall College. Email: grier.stephenson [at] fandm.edu.
As systematic study of the United States Supreme Court began in the first third of the twentieth century, it became commonplace to think and write about the development of the Third Branch and American constitutional law in terms of periods bearing the name of the chief justice in office at the time. This scholarly convention has inspired the CHIEF JUSTICESHIPS OF THE SUPREME COURT, under the general editorship of Herbert A. Johnson of the University of South Carolina School of Law. The series already includes books on the Court before Marshall (Casto 1995), the Marshall Court (Johnson 1997), the Fuller Court (Ely 1995), the White Court (Pratt 1999), the Vinson-Stone years (Urofsky 1997), the Warren Court (Belknap 2005), and the Burger Court (Maltz 2000). The recent addition by William Ross of Samford University’s Cumberland School of Law explores the legally and politically tumultuous eleven-year period between 1930 and 1941, when Charles Evans Hughes was the eleventh occupant of what has occasionally been called the “chair under the clock.” Well researched and engagingly written, Ross’ contribution lives up to expectations generated by its predecessors. The author seems as comfortable with the literature of political science and constitutional history as with law.
The Hughes Court, its middle years in particular, certainly ranks among the most fascinating and critical moments in Court annals. Against the backdrop of the nation’s severest domestic crisis since the Civil War, the Supreme Court invalidated significant parts of President Franklin Roosevelt’s New Deal legislative program. This turn of events provoked a counterattack that dwarfed all previous attempts at Court-packing and Court-curbing. The justices then jettisoned a substantial body of jurisprudence that for nearly a half-century had characterized its labors to varying degrees in defense of property rights. As if that shock to legal sensibilities were insufficient, the Court, for the first time and on an unprecedented scale, shortly embraced serious protection of noneconomic personal rights and liberties. Moreover, having been unable to make a single appointment to the Court during his first term, Roosevelt enjoyed an abundance of vacancies after 1936 so that, by the time Hughes retired in the summer of 1941 at age 79, the president had been able to reconstruct the bench. That train of events suggests several respects in which the Hughes Court intersects with contemporary interests in public law and the judicial process, including judicial selection, the role of the Court in American government, approaches to constitutional interpretation, judicial decisionmaking, and the Court as a [*640] political institution. The Hughes chief justiceship, therefore, is clearly worth the time of both author and reader.
No chief justice has assumed office with greater breadth and depth of experience in public life. Indeed, unlike any previous chief other than Edward Douglass White, Hughes began his tenure on the Court with the special advantage of having sat as an associate justice (1910-1916). He had also been governor of New York and, in 1916, the Republican nominee for president. As Secretary of State in the Harding administration, he received credit for a naval disarmament treaty among the great powers. An acclaimed leader of the American bar, he was sitting as a judge of the World Court when President Hoover picked him to succeed William Howard Taft in 1930, a nomination that symbolically ran into unexpectedly stiff opposition from progressives. Confirmation by a vote of 52 to 26 (with 18 senators not voting) was evocative of two other highly contentious, but ultimately successful, nominations for chief justice: Roger B. Taney’s in 1835 and Melville W. Fuller’s in 1888.
Concerns expressed that Hughes would lead a Court too solicitous of corporate interests were soon confounded by a record that, for nearly five years, was “more deferential toward regulatory legislation than at any time since his previous tenure on the Court” (p.29) with Hughes sometimes providing the fifth vote to spare a statute from annihilation. Propitiously, the bench seemed less deferential than its predecessor toward laws curtailing personal freedoms, again with Hughes casting an essential fifth vote. For the reform-minded, however, this glimmer of hope proved, in the short run at least, to be the dusk before the dark, once the Court disposed of its first significant batch of New Deal legislation during 1935 and 1936.
The results were even gloomier than the president’s supporters had feared. In just 17 months, the Court struck down eight “federal economic regulatory statutes and limited the scope of another, while upholding only one in its entirety and another only in part.” The carnage was unprecedented. “Never before had the Court so severely frustrated an administration’s political agenda during so short a period” (p.58). State regulatory laws foundered on the shoals of unconstitutionality as well.
Ross offers several explanations for this astonishing resistance to the president’s agenda. First, and most obvious, was the composition of the Court itself which provided an unreceptive environment at best. Any litigant challenging a New Deal measure seemed nearly assured of four votes (from Butler, McReynolds, Sutherland and Van Devanter). By contrast, the president could ordinarily count on no more than three justices (Brandeis, Cardozo, and Stone). This left the validity of the New Deal, as well as state legislation inspired by the New Deal, in the hands of two justices (Hughes and Roberts). Second, with programs that were as novel as the economic emergency to which they were directed, the New Deal imperiled itself. Even though adequate constitutional precedent existed to undergird Roosevelt’s policies, those theories, [*641] which the trio of justices more friendly to the New Deal could capably articulate, had never been applied by the Court to policies fundamentally designed to re-make the national economy. Third, the variety of New Deal responses seemed to disrupt “the delicate balances of federalism and separation of powers” (p.244). These were concerns shared even by the Court’s liberal bloc, as illustrated by the votes in SCHECTER POULTRY (1935) and RADFORD (1935), and the single dissent by Cardozo in PANAMA REFINING (1935). Judicial resistance may have been facilitated as well by public opinion that remained dubious about the new regulatory era even while handing Democrats generous margins in the 1936 elections. Fourth, support of New Deal initiatives was made more difficult at the margin by sloppy legislative drafting and less than stellar legal defense. Finally, Hughes and Roberts, both “Yankee Protestant Republicans who were devoted to an ideal of disinterestedness government” may have shared “a fundamental distrust” of the New Deal “because its power emanated from a coalition of corrupt urban political machines and feudal white southerners” (p.245). The reservations of Hughes and Roberts – and it would be their objections after all that were dispositive – may have thus been as much cultural as jurisprudential.
However one assesses the causes for the hostile environment that prevailed at the Court, there remains in doubt what Ross terms the “enduring dilemma” (p.243) of the Hughes Court and the puzzle the book attempts to unravel: the timing, causes and extent of the transformation that took place. For those the author calls “internalists,” the “Court’s “consistent approval of economic legislation beginning in 1937 was not revolutionary but rather the natural result of an evolutionary process by which the Court gradually had accepted the regulatory state.” By contrast, so-called “externalists . . . draw upon a tradition of legal realism and behaviorialism in contending that the Court’s 1937 decisions constituted a distinct departure” (p.xviii) from the bench’s earlier posture, a reversal brought about by the 1936 elections and particularly the Court-packing proposal. For externalists these events persuaded Hughes and Roberts “to accept more deferential attitudes toward such laws” (p.xviii). The author espouses neither viewpoint exclusively but draws from both as one or the other at various points in the story seems to enrich understanding of the forces that transformed the Hughes Court. For instance, the external factors of the 1936 elections, FDR’s attack, the social tragedy of the Depression, and the transformation of public attitudes toward government itself seem most persuasive at least in accounting for Roberts’ switch to a position favorable to the New Deal. Ultimately, however, what mattered most in changing the Court was not that Hughes and/or Roberts became “wholehearted converts to a theory of judicial restraint in economic cases, but rather because the numerous justices appointed by Roosevelt formed a permanent liberal majority” (p.249). It was this new majority that cemented judicial restraint onto economic regulations and shifted to a new activism as presaged by Footnote Four of [*642] CAROLENE PRODUCTS (1938). This new majority also closed the door on adoption of a regulatory middle ground by which most, but not all, economic regulations would be allowed to stand.
Aside from confronting what happened on Hughes’ watch and why, Ross also assesses Hughes as chief justice. Acknowledging the well-documented success of the “jovian presence” (p.219) as court administrator, the author also acknowledges the views of critics that Hughes “might have done more” (p.219) to avert the crisis of 1937, particularly with respect to Roberts whose position in TIPALDO (1936) Ross finds inadequately explained by Felix Frankfurter’s (1955) latter apparent attempt to enable Roberts posthumously to exculpate himself. Ironically, despite the political experience and presumed acumen that Hughes brought to the bench, his Court needlessly moved to the constitutional brink. Yet Ross believes that Hughes deserves credit for preserving the Court’s power and prestige and, when public support mattered most, in averting long-term hostility toward the institution. Otherwise, a vastly weakened and ineffectual Court, with profound consequences for later generations, might have been Hughes’ legacy. In his lectures on the Court at Columbia University in 1927 to which Ross refers in places, Hughes contributed a term of art to public law when he spoke of the Supreme Court’s “self-inflicted wounds” (Hughes 1928, at 50), mentioning DRED SCOTT (1857), the LEGAL TENDER CASES (1871) and POLLOCK v. FARMERS’ LOAN & TRUST CO. (1895) by name. Making its own unintended additions to that list, the Hughes chief justiceship stands as a sobering reminder that even the combination of an imposing professional pedigree and remarkable insight do not necessarily yield altogether enviable results.
Belknap, Michal R. 2005. THE SUPREME COURT UNDER EARL WARREN, 1953-1969. Columbia: University of South Carolina Press.
Casto, William R. 1995. THE SUPREME COURT IN THE EARLY REPUBLIC: THE CHIEF JUSTICESHIPS OF JOHN JAY AND OLIVER ELLSWORTH. Columbia: University of South Carolina Press.
Ely, James. W., Jr. 1995. THE CHIEF JUSTICESHIP OF MELVILLE W. FULLER, 1888-1910. Columbia: University of South Carolina Press.
Frankfurter, Felix. 1955. “Mr. Justice Roberts.” 104 UNIVERSITY OF PENNSYLVANIA LAW REVIEW 311-349.
Johnson, Herbert A. 1997. THE CHIEF JUSTICESHIP OF JOHN MARSHALL, 1801-1935. Columbia: University of South Carolina Press.
Hughes, Charles Evans. 1928. THE SUPREME COURT OF THE UNITED STATES. New York: Columbia University Press. [*643]
Maltz, Earl M. 2000. THE CHIEF JUSTICESHIP OF WARREN BURGER, 1969-1986. Columbia: University of South Carolina Press.
Pratt, Walter F., Jr. 1999. THE SUPREME COURT UNDER EDWARD DOUGLASS WHITE, 1910-1921. Columbia: University of South Carolina Press.
Urofsky, Melvin. I. 1997. DIVISION AND DISCORD: THE SUPREME COURT UNDER STONE AND VINSON, 1941-1953. Columbia: University of South Carolina Press.
DRED SCOTT v. SANDFORD, 60 U.S. 393 (1857).
LEGAL TENDER CASES [HEPBURN v. GRISWOLD, 75 U.S. 603 (1870) and KNOX v. LEE, 79 U.S. 457 (1871)].
LOUISVILLE JOINT STOCK LAND BANK v. RADFORD, 295 U.S. 555 (1935).
MOREHEAD v. NEW YORK ex rel. TIPALDO., 298 U.S. 587 (1936).
PANAMA REFINING CO. v RYAN, 293 U. S. 388 (1935).
POLLOCK v. FARMERS’ LOAN & TRUST CO., 158 U.S. 601 (1895) (rehearing).
SCHECTER POULTRY CO. v U. S., 295 U.S. 495 (1935).
UNITED STATES v. CAROLENE PRODUCTS CO., 304 U.S. 144 (1938).
© Copyright 2007 by the author, Donald Grier Stephenson, Jr.