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FDR and Chief Justice Hughes: The President, the Supreme Court, and the Epic Battle Over the New Deal Hardcover – February 7, 2012
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“A spectacular book, brilliantly conceived and executed – an illuminating window into the question of the ages: Who has the power? The President, Congress or the Supreme Court?”
“Franklin Roosevelt once called Charles Evans Hughes the finest politician in the United States. In this marvelously written, meticulously researched study, James F. Simon demonstrates why that was so. He also shows that except for their brief confrontation in 1937, in which Hughes prevailed, these two former governors of New York shared a deep affection for one another. Together they led the United States into the modern era.”
—Jean Edward Smith, author of FDR and John Marshall: Definer of a Nation
“The story of this relationship, as historically significant as any between a President and Chief Justice, is brilliantly unfurled by James Simon. Fresh, often moving, and hugely readable, it's a textbook case of statesmanship - and politics - at both ends of Pennsylvania Avenue."
—Richard N. Smith, author of The Colonel: The Life and Legend of Robert R. McCormick
Arthur Schlesinger, Jr., on Lincoln and Chief Justice Taney:
“James F. Simon has written an exciting and notable book where Abraham Lincoln and Roger B. Taney, the president and the chief justice, two men of the highest intelligence and passionate judgment, argued the future of this democratic republic.”
Joseph J. Ellis, The New York Times Book Review on What Kind of Nation: Thomas Jefferson and John Marshall:
“A study of the political and legal struggle between these icons of American history….A major contribution….A model of the narrative history written by someone who knows the law.”
About the Author
James F. Simon is the Martin Professor of Law and Dean Emeritus at New York Law School. He is the author of seven previous books on American history, law, and politics, including What Kind of Nation: Thomas Jefferson, John Marshall, and the Epic Struggle to Create a United States, and lives with his wife in West Nyack, New York.
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Most other studies of court packing (and I have reviewed a number on Amazon) focus on Congressional developments and FDR's maneuvering. One of the great virtues of this book is that focuses extensively on Chief Justice Hughes as the key opponent of the plan, not Congress. It is generally recognized that a letter drafted by Hughes (with help from Justices Brandeis and Van Devanter) sent to the Senate Judiciary Committee, powerfully refuting FDR's claim that the Court was behind in its work and needed more Justices, really was crucial in defeating the proposal. The author is correct to make this episode the centerpiece of the book, and to examine it in depth. Hence the juxtaposition of FDR v. Hughes. This approach has both strengths and limitations.
Its principal benefit is that it introduces this remarkable Chief Justice to newer generations who might never even have heard of him before. The last major biography of Hughes I recall appeared in 1952, shortly after his death in 1948. Since then, Hughes has been largely forgotten, despite his extensive service as Governor of New York, Supreme Court Associate Justice, 1916 GOP presidential candidate against Wilson, Secretary of State, architect of the 1924 Washington arms control conference, president of the American Bar Association, and of course Chief Justice. Most everyone knows something about FDR; now Hughes reclaims his rightful place in American history as well.
The disadvantage of the book's approach is that its length, inter-weaving of multiple themes, and extensive detail may unfortunately discourage the very folks who ought to read it from doing so. Offsetting this is that the author, James F. Simon, has written previously some outstanding studies of the Court and its Justices (including Black, Frankfurter and especially William O. Douglas), and he really knows how to put an effective historical narrative together. So, do not be put off by the heft of this important book; reading it brings a rich treasure trove of historical rewards.
Simon starts with sketch biographies of Hughes and FDR and begins interweaving their stories as they both enter public life. He then turns his attention to the big battles between the Court and the president, with particular focus on each man.
Hughes served as governor of New York, Associate Justice on the Supreme Court, Secretary of State, judge on the International Court of Justice, and Chief Justice of the Supreme Court. He was also the Republican nominee for president in 1916. The son of a Welsh immigrant, Hughes went on to graduate in the top of his class from Columbia Law, briefly teach law at Cornell, and become one of NY's leading lawyers. He made his reputation largely on the strength of his performance as counsel for two state senate investigative committees. FDR's bio is likely familiar to most readers. What most struck me is how poorly FDR compared to Hughes. Hughes came from modest circumstances, excelled as a student, built a successful professional career with talent and hard work, and added integrity and a zeal for reform to make his political career. FDR was a member of one of NYC's leading old-money families, had a distant cousin in the Whitehouse, and rose through the New York political world primarily by affability and canny political skills. He also had a penchant for exaggeration.
Hughes argued 25 cases before the Supreme Court between his failed presidential run (and after having already served as Associate Justice) and his appointment as Secretary of State. He showed a progressive streak. He successfully argued that actions by striking workers did not violate the Sherman Antitrust Act because they didn't affect interstate commerce. Long before Joseph McCarthy, he successfully argued the cases of 5 state legislators from the Socialist Party barred from the NY state legislature because of their political views. He identified three self-inflicted wounds by the Supreme Court: Dred Scott, and two times the Court reversed decisions it had only recently made.
Hughes reentered as chief justice a Court embroiled in an increasingly contentious philosophical battle. The conservative wing of the Court--justices Butler, McReynolds, Sutherland, and Van Devanter--believed that Congress could only legitimately exercise the powers enumerated in the Constitution and that both Congress and state legislatures were restrained from abrogating individual (including economic) rights by the 5th and 14th Amendments. The progressive wing of the Court--justices Brandeis, Stone, and Cardozo--believed in great deference to legislatures and did not believe the 5th and 14th Amendments protected economic rights. Hughes and Justice Roberts became the swing justices.
Things really heat up 3/5ths of the way through as challenges to New Deal legislation passed during FDR's famous first 100 days in office begin to trickle up to the Supreme Court. But Simon starts with discussion of a case--Blaisdell--challenging a state statute providing foreclosure relief. Hughes wrote for a 5-4 majority upholding the law, rather ominously stating, "While an emergency does not create power, an emergency may furnish the occasion for the exercise of power." It is after the Blaisdell case that a newspaper article gives us our first hint that FDR was already considering the court-packing option.
The Court then upheld a NY law fixing the price of milk, notable both because it came only 2 years after the Court struck down a Oklahoma permitting scheme for the ice industry and because it was written by Roberts. Roberts eviscerated the earlier decision by redefining the phrase "affected with a public interest" to "an industry, for adequate reason, is subject to control for a public good." The Court addressed federal regulation in a challenge to the NIRA petroleum code. The virtually untrammeled power the bill gave the president over the oil industry made it an easy case, and the justices voted 8-1 to strike down the provision as an unconstitutional delegation of congressional power.
In Perry, a challenge to a congressional statute invalidating public and private contracts requiring payment of debts in gold presented a more vexing question. On one hand, overturning the law threatened to bankrupt the US. On the other, the federal government was both meddling in people's private dealings and attempting to renege on its own obligations. The Court--again with Hughes speaking for a 5-member majority--declared that Congress had the constitutional authority to nullify private contracts but not to alter the explicit terms of public contracts. But in a striking bit of judicial disingenuousness, Hughes decided that to actually enforce the contract would provide "unjust enrichment." (Hughes apparently did not deign to explain how making a contract payable in a certain commodity and then profiting when the value of that commodity went up was "unjust.") FDR was exultant.
FDR's pleasure with the Court was not to last. In another 5-4 decision, with Roberts writing for the majority, the Court struck down the Railroad Retirement Act. Roberts evidently saw the Act as the sort of health and welfare regulation reserved to the states rather than a valid exercise of federal power under the Commerce Clause. In dissent, Hughes accused Roberts of putting his personal policy preferences above good constitutional law. He undermined his own point by analogizing the Act to state workers' compensation schemes (a very valid comparison from a policy perspective; not so much from a constitutional law perspective). FDR was more annoyed than irate, but the Court released three more rebukes on the same day scolding the president for exceeding his authority in an FTC Commissioner, declaring a change to the federal bankruptcy code unconstitutional, and gutting the NIRA (Schechter Poultry). All three were unanimous.
The NIRA likely represented the high water mark in American central economic planning, and the Schechters' attorney suggested (in terms that should sound familiar to the modern reader) that upholding the law would open the door to Congress taking "charge of all human activity." By the government's own admission, the NIRA absurdly defined "unfair competition" implicitly as "what the industry considers unfair." Here was a perfect storm: a terribly designed act from a policy perspective that was also a massive aggrandizement of power by Congress and the President (even Justice Brandeis, solidly in the progressive bloc, privately chastised members of the administration for overreliance on central planning). Hughes's opinion found fault with the NIRA both as an unconstitutional delegation of power to the president and as exceeding Congress's constitutional authority under the Commerce Clause. For the latter, he drew a distinction between direct and indirect effects, reviving a defunct constitutional doctrine. FDR angrily denounced it as a "horse-and-buggy definition of interstate commerce."
FDR's Second Hundred Days relied noticeably less on central planning than his first, but next before the Court was another key, early piece of New Deal legislation. The Agriculture Adjustment Act spurred an incredible 1,700+ lawsuits, and well over 2,000 people showed up when the issue came before the Court in US v. Butler. Notably, Hughes suggested in conference that the AAA violated the seldom-used 10th Amendment reserving powers to the states. But Roberts wrote an opinion for a 6-justice majority focusing on what he saw as limitations to the Taxing and Spending Clause. Justice Stone shot back in dissent that the power to spend went necessarily along with the power to tax as a part of the larger power of the purse. He also accused the majority of passing judgment on the wisdom of the legislation as a matter of policy rather than constitutional law.
Butler perhaps represented a breaking point for a Court under enormous pressure. Stone took obvious umbrage at Roberts's majority opinion and pulled no punches in his dissent. Roberts took offense, but Hughes refused to intervene. Stone's emotions visibly flared when he read his dissent in open court (as Justice Stevens's would decades later reading his dissent in Citizens United). The attorney general passed on false gossip that Hughes had been willing to follow Roberts's vote to avoid another 5-4 decision overturning a law. Stone intimated to Felix Frankfurter he felt Hughes lacked vision and a willingness to trust his "own intellectual processes." As farm prices dropped in reaction, the justices were hung in effigy and politicians decried the decision as political. FDR hinted at simply ignoring Supreme Court decisions to a cabinet secretary. A very narrow holding crafted by Hughes upholding the TVA did little to tamp down the heat. Members of the administration and New Deal congressman began discussing imposing age limits on the justices. A journalist argued the same by citing an old suggestion along those lines by Hughes himself (Hughes wrote the journalist in response that he wanted to keep justices who maintained their intellectual rigor, apparently without addressing the rather enormous problem of who would decide that). The Court again constricted Congress's power under the Commerce Clause, overturning coal mining regulation under a manufacturing-commerce (as well as direct-indirect) distinction despite 97% of coal being sold across state lines (Hughes wrote a separate opinion agreeing with in part, disagreeing in part, and suggesting the people might want a constitutional amendment to "give Congress the power to regulate industries within the State"). After Hughes wrote a separate opinion in another case, Brandeis observed that Hughes had "no control over the Court." A decision invalidating a state minimum wage law for women--Morehead v. Tipaldo--was widely condemned.
FDR was easily reelected and the Democrats expanded their majority in Congress. The Court was now under serious threat. Rumors of a court-packing scheme persisted, and a number of proposals to rein in the Court were introduced in Congress. A polemic entitled The Nine Old Men labeled Hughes "the most pathetic figure on the Supreme Court." Simon suggests Hughes influenced Roberts's votes in that term with a short visit to his country estate. That may well be the case; it was Roberts's vote allowed the Court to narrowly uphold NY's unemployment law. He voted in conference to uphold Washington's minimum wage law for women in West Coast Hotel Co. v. Parrish, despite his earlier contrary vote in Tipaldo. Hughes chose to delay the Court's formal decision in West Coast Hotel so one of the progressive justices could return and provide an extra vote. While they waited, the Court confirmed the president had broad power over foreign policy, upheld a law banning the sale across state lines of harnesses manufactured by convicts, upheld a bankruptcy code provision subordinating landlords' claims to those of shareholders, and overturned the conviction of a Communist activist by combined votes of 35-1.
Nonetheless, FDR began seriously discussing a court-packing scheme with his attorney general. FDR also rather oddly decided that Alexander Hamilton, John Marshall, and pretty much every constitutional scholar were wrong that the courts had the power to overrule an act of Congress. FDR publicly criticized the Court in his State of the Union address (much as Obama later would). When FDR announced his court-packing scheme, he referenced an overloaded judiciary and "aged and infirm judges" and quoted Hughes (out of context) in explanation. FDR fully expected the public to support him. They did not (notably, the opposition included civil libertarians happy with the Court's record protecting individual rights). A national poll quickly showed a majority of Americans disapproved of his scheme. FDR marshaled his considerable talents for wholesale politicking in response. Hughes considered testifying before the Senate Judiciary Committee, but both Brandeis and Justice Van Devanter thought it unbecoming. Instead, Hughes wrote a letter laying out in detail the Court's efficient disposition of cases. He kept his other feelings on the scheme close to his vest and refused media invitations.
With the West Coast Hotel decision in his back pocket, Hughes timed its announcement to the height of the uproar over the court-packing scheme and assigned the opinion to himself. It all but overruled the Court's recent decision in Tipaldo. The Court announced three other opinions favorable to the New Deal on the same day. Opponents of the Court were not assuaged. Frankfurter proclaimed to FDR that Roberts changed his vote for purely political reasons. A pundit later labeled it "the switch in time that saved nine." Two weeks later the Court upheld the constitutionality of the NLRB, and Hughes's opinion discarded the direct-indirect distinction he had only recently resurrected. The Court would not strike down a single piece of New Deal legislation that term.
FDR kept quiet about the Court publicly. Privately, FDR seemed angrier about what Hughes's NLRB opinion meant for his court-packing scheme than happy about what it meant for the New Deal. He demanded the scheme be reported out of the Judiciary Committee without recommendation. They refused, and it was reported out unfavorably. While the Committee was voting, FDR was reading a resignation letter from Van Devanter timed to take some of the wind out of the scheme's sails. FDR was again strangely displeased but countered by giving the Senate Majority Leader full control over the fight for the bill along with an implied promise of Van Devanter's seat. It proved all for naught. A scathing report from the Judiciary Committee paraphrasing Alexander Hamilton and a deviously timed vacation by FDR's VP (no friend to the scheme) combined to drive the final nail in its coffin. The scheme was quickly buried back in committee after the sudden death of the Majority Leader.
Simon disputes FDR's later assertion that he lost the battle but won the war. It was Hughes who won the war, Simon argues, by proving to be the cannier politician. And Hughes certainly did, as Simon shows, play an integral role in stopping the court-packing scheme and preserving the Court as an independent branch of the federal government. But where Simon sees a Court that "steered . . . away from outmoded constitutional interpretations," I see a Court that clumsily rendered a fundamental principle of the Constitution--that our federal government is one of enumerated powers--into a dead letter. It would perhaps be more accurate to say that FDR won that war and lost another. He replaced Van Devanter with the reliably progressive Hugo Black and went on to appoint 8 more justices. None would prove to be an enemy to the economic regulation and social welfare legislation (thankfully they would not be so deferential about civil rights). Congress, on the other hand, no longer feared FDR and it would be a noticeably tepid New Deal going forward (though the court-packing scheme was not FDR's only self-inflicted wound).
Simon wants Hughes to take his proper place as a giant of a justice. If you ask the average law student to name a justice from that period, they would name Cardozo, Black, and even Roberts before Hughes. Hughes's legal reasoning was sometimes muddled. He resurrected a defunct doctrine only to cast it away again a few years later. But he held together a deeply divided Court, and for that I agree with Simon that he deserves greater recognition. He was also a great, early defender of civil liberties.
This is a wonderfully timely book. The current Court received heavy criticism from the president and the press for its decision in Citizens United. Obamacare is one of the largest pieces of legislation since the New Deal, and to the shock of constitutional law scholars its constitutionality is under serious review, with circuit court decisions going both ways. The Court is again faced with that vexing question: just how far does Congress's power under the Commerce Clause extend? Simon wisely leaves it to the reader to draw these connections.
Simon paints his picture of this time with enough detail for lawyers and broad enough strokes for lay readers. He takes us deep inside the constitutional law of the day. A number of the cases discussed in depth are only mentioned in passing or are omitted entirely from Akhil Reed Amar's mammoth 1,856 page Con Law casebook.
Reference material makes up about 35% of the Kindle version and includes acknowledgments, illustrations, notes, index, illustration credits, and a quick bio of Simon. Both the notes and the index are hyperlinked to the main text. Unfortunately, the lack of endnotes prevents the reader from checking the notes from main text. I would have loved to check a few of his sources, but it's difficult with this setup on the Kindle. Simon frequently sticks parentheticals in footnotes, which are a pain to look at on the Kindle.