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Hughes, Charles Evans

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Birth: April 11, 1862, Glens Falls, New York.

Education: Madison College (now Colgate University), 1876–1878; Brown University, A.B., 1881, A.M., 1884; Columbia Law School, LL.B., 1884.

Official Positions: Special counsel, New York State investigating commissions, 1905–1906; governor of New York, 1907–1910; U.S. secretary of state, 1921–1925; U.S. delegate, Washington Armament Conference, 1921; U.S. member, Permanent Court of Arbitration, 1926–1930; judge, Permanent Court of International Justice, 1928–1930.

Supreme Court Service: Nominated associate justice by President William Howard Taft, April 25, 1910, to replace David J. Brewer, who had died; confirmed by the Senate, May 2, 1910, by a voice vote; took judicial oath October 10, 1910; resigned June 10, 1916; replaced by John H. Clarke, nominated by President Woodrow Wilson; nominated chief justice by President Herbert Hoover, February 3, 1930, to replace Chief Justice William Howard Taft, who had retired; confirmed by the Senate, February 13, 1930, by a 52–26 vote; took judicial oath February 24, 1930; retired July 1, 1941; replaced by Harlan F. Stone, nominated by President Franklin D. Roosevelt.

Death: August 27, 1948, Osterville, Massachusetts.

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Charles Evans Hughes
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Charles Evans Hughes

Charles Evans Hughes was born during the Civil War in a small town in upstate New York. He was the only child of a preacher and of a rigidly devout Baptist mother who believed implicitly in the hot fire of Hell and the looming wrath of a just God. Together, they inculcated in their child the stark discipline of hard work, moral diligence, and the paramount importance of order. From such seemingly parochial beginnings would emerge one of the most outstanding, influential, and urbane figures of twentieth-century American law.

A prodigy with a photographic memory and compulsive attention to detail, the young Hughes matured prematurely. At three, he was reading English; at eight, he was reading Greek and German. At age six, and less than a year into first grade, he persuaded his parents to let him leave school by drafting and sending to them a detailed agenda for assiduous study at home. At thirteen, he earned a high school diploma and a year later enrolled in Madison College (now Colgate University), dutifully following his parents' plan for him to prepare for the ministry. But here a spark of rebellion appeared, and the sixteen-year-old Hughes transferred to Brown University in search of broader horizons. His preoccupation with order in an orderly universe remained, but now in a more secular context: he chose law. He graduated from Columbia Law School, immediately began practice with one of the leading law firms in New York City, and became a partner three years later. He was then twenty-five.

Hughes's rejection of his father's calling evoked from his parents desperate anxiety “that,” as his father wrote, “you may be turned from the path of rectitude by the influence of your worldly associates.” His parents need not have worried. Most of the stern habits that ordered his life during his childhood tutelage endured into his old age. At least twice they would drive him close to physical and mental breakdowns, and they induced a recurrent bleeding ulcer. They would decisively shape the way he approached his duties in his truly remarkable public career. “Whatever I do, wherever I go,” Hughes once wrote, “when the question of right or wrong comes up, it is decided by what Pa or Ma will say if I did it.”

Never a profound but always a meticulously systematic thinker, Hughes forged for himself one of the most extraordinary careers a man of the law might ever hope for. In a society that formally invested authority in law rather than in persons, his career afforded him high place, public honor, and exceptional opportunity to influence his society's structure of power. During the first half of his life, he earned wealth and widespread respect as a practicing attorney who also willingly gave his time and talents to public service. During the second half he was elected governor of New York; was appointed associate justice of the U.S. Supreme Court; resigned to become the Republican Party's 1916 candidate for president and very nearly unseated the incumbent, Woodrow Wilson; served as president of the American Bar Association; was appointed secretary of state; served on the Permanent Court of International Justice, or World Court; and was appointed a second time to the Supreme Court—a unique achievement—this time as chief justice. In short, this man, whose intellect was so profoundly shaped by the rigid discipline of early nineteenth-century rural American Protestant fundamentalism, became one of the most influential figures of twentieth-century pluralist, urban America.

During Hughes's lifetime, the United States was dramatically transformed in almost every way. The postDCivil War political settlement provided the framework for a centralized or national constitutional order. Local and regional economies were gradually absorbed into a national matrix by the transportation and industrial revolutions. Small-unit private proprietary business enterprise yielded to large-scale multidivisional, multifunctional public corporations as the dominating force and defining feature of the American business system.

It is not clear that Hughes understood the significance of these changes any better than most other people. As a member of the Court, however, he did understand two things that would help bring American law and constitutional jurisprudence into line with those changes. The first was the paramount need for social and political order. The second was the importance of preserving the integrity of the Court itself as the vital arbiter of conflicting and sometimes mutually exclusive claims on justice that are inevitable in a complex and fast-changing society. “We secure our peace and confidence,” he remarked, “by loyal acceptance of the decisions of our umpires.”

Consistent with that idea were the immortal words that Hughes, when he was governor of New York, ad-libbed during an address—words that he came to regard as a plague: “The Constitution,” he said, “is what the judges say it is.” As he explained later, he intended neither denigration of the Constitution nor a complaint about judges. What he meant was that because judges play such a pivotal role in declaring the Constitution's meaning, they should stay out of the business of reviewing the fact-findings of government regulatory agencies. That would, he said, place them too “close to the public impatience.” Because the courts are indispensable for protecting “our liberty and …. our property under the Constitution,” and because judges determine what the Constitution says, it is essential that the public continue to regard judges as demigods. Do not weaken them, he pleaded, by exposing them to the public pressures implicit in fact-finding. Keep the judges “for …. questions of property rights,” to sustain the “constitutional right to hold property and not to be deprived of it without due process of law.”

Hughes was too sophisticated to believe that judges either did or should disinterestedly apply the principles of law to particular cases of fact without regard to favored social outcomes. He would himself suffer (probably fair) criticism for allegedly tailoring his judicial opinions to outcomes he favored. But in his mind it was the myths of an aloof judiciary and of inalienable property rights that sustained liberty in a democratic polity; those myths represented for him the vital buttresses of the good society. He worked hard throughout his career to protect the strength of those myths, even as his meticulous attention to detail and to facts impelled him to factor the real, everyday consequences of legal decisions into his judicial opinions.

Hughes's concern for order and, perhaps most of all, his remarkably profound, inner-directed sense of right often moved him to digress from legal reasoning shaped prior to the transportation, industrial, and corporation revolutions. Always acutely conscious of the need to maintain the perception of stability in the law, he strove nevertheless to apply a juridical logic that accommodated to modern times. His efforts resulted in two important long-term outcomes.

The first was to enhance the power of government at both the state and federal levels to regulate American life. In contemplating cases requiring a fine-line interpretation of the commerce or contract clauses of the Constitution, Hughes usually sought outcomes that empowered Americans to use their government to make social and economic policy commensurate with the vast changes they were experiencing. Once on the Court, Hughes almost always favored a strong public direction of economic behavior. As one writer noted, “Hughes's judicial opinions consistently manifested …. a desire for some central ordering force to supplant the inadequate ordering of markets and contracts.”

The second important result of Hughes's work was to give substance to the Constitution's restraints on government when it came to protecting the personal and communicative rights emphasized in the first six amendments. Justice Oliver Wendell Holmes Jr. is usually assigned credit for shaping doctrine that would infuse federal jurisprudence with meaningful limits on the power of government to abridge speech, press, and lawful assembly. His and Justice Louis D. Brandeis's repeated dissents in civil liberties cases during the 1920s surely did build the case for confining such power to circumstances in which the alleged offense presented “a clear and present danger” to public safety or national security. But it was not until the 1930s, with Hughes as chief justice and writing some of the major opinions, that Holmes's principles began to emerge as those of the Court's majority.

Some of Hughes's actions during his first Court tenure (1910–1916) in the era of Taft and Wilson foreshadowed the achievements of the Court over which he would later preside. From the beginning, Hughes showed a tendency to uphold social legislation that, as he put it in a case concerning state regulation of the hours of labor for women (Miller v. Wilson, 1915), had a “reasonable relation to a proper purpose.” The purpose he usually had in mind concerned civil order, the integrity of government authority, and (although he would have denied it) his own standards of justice. On behalf of federal regulation, he tended to give broad scope to the power granted to Congress in the Constitution to regulate interstate commerce.

When Hughes first came on the Court, as well as during his chief justiceship, that idea was still fiercely in dispute. In United States v. E.C. Knight Co. (1895), fifteen years before Hughes began his first tenure, the Court had found that a sugar refining company whose raw sugar came entirely from out of state, and most of whose refined sugar found markets outside the state, nevertheless lay beyond Congress's power to regulate interstate commerce. Notions of state sovereignty dominated constitutional law, except where judges deemed state legislation “confiscatory” or somehow in violation of “due process”—which usually meant in violation of the judges' view of the prerogatives of private property.

As the youngest member of the Court, Hughes moved cautiously, but effectively, toward augmenting government regulatory powers. In the much celebrated Minnesota Rate Cases (1913), he asserted the power of the states to control intrastate transportation even when it might seriously affect interstate commerce, as long as Congress had not already acted in the field. But in the same opinion, Hughes insisted that all commerce had become so intricately depen-dent that Congress might well preempt intrastate rules in order to effectively regulate interstate commerce.

Shortly afterward came the most famous of his early opinions, Shreveport Rate Cases (1914):

Congress is empowered to regulate—that is, to provide the law for the government of interstate commerce;…“to promote its growth and insure its safety.”… Its authority …. necessarily embraces the right to control the operations in all matters having such a close and substantial relation to interstate traffic that the control is essential or appropriate to the security of that traffic, [and] to the efficiency of the interstate service.

In shaping what came to be known as the Shreveport Doctrine, Hughes argued that the states' regulatory power must yield to that of Congress whenever the conduct of even purely intrastate commerce might adversely affect interstate conduct.

Hughes was willing, moreover, to extend this principle to Congress's jurisdiction over businesses when there was “actual movement” of their goods or services across state lines. “In determining whether commerce is interstate or intrastate,” he insisted, “regard must be had to its essential character” (Pennsylvania Railroad Co. v. Clark Bros. Coal Mining Co., 1915). These opinions appeared to contrast sharply with the Court's earlier rulings, especially that in the Knight case.

Hughes did not remain entirely consistent on such matters. The Court on which he sat did not overturn Knight, and, in any case, Hughes himself would later join in supporting comparably narrow decisions. In an opinion he wrote shortly before resigning to run for president, Hughes sustained an injury liability claim against an interstate railroad that was validated by state law, although under federal law, no such claim could stand. In Chicago, Burlington & Quincy Railroad Co. v. Harrington (1916), while noting that the injured man had been loading coal brought entirely from outside the state, Hughes could find no “close or direct relation to interstate transportation.” In another case that same year, however, Hughes had no difficulty in holding that federal law controlled a railroad's liability if merely the goods involved in the accident had crossed state lines (Southern Railway v. Prescott, 1916). Such apparent contradictions led critics to see Hughes's jurisprudence as focusing less on principle than on favored results—albeit results that contrasted with his brethren's more common solicitude for corporate business immunity from government regulation or civil tort actions.

Like Justice Holmes, whom he greatly admired, Hughes refused to accept “liberty of contract” or the sanctity of contract as absolutes. The first, he believed, did not preclude state action to protect certain classes of workers from accepting unduly burdensome contracts. And the second did not preclude the state from modifying or abrogating contracts that it determined obstructed legitimate legislative objectives. In several cases, sometimes in dissent, Hughes argued that a state or city retained the power to revoke a franchise on the grounds that “It is a tacit condition annexed to grants of franchises that they may be lost by misuser or nonuser”; and that the grant of a franchise does not preclude the government from subsequently regulating rates or services (New York Electric Lines Co. v. Empire City Subway Co., 1914).

On the other hand, Hughes would not permit a state to enforce a contract that imposed unconstitutional burdens on an individual. In Bailey v. Alabama (1911), Hughes wrote for the Court striking down a statute that compelled an employee to work off his debt to a creditor by stipulating that refusal to do so ipso facto constituted a criminal offense as a fraudulent violation of contract. Such a law violated the Constitution's ban on involuntary servitude, Hughes wrote, because it was a crude form of coercion—forcing a person to choose between performing involuntary services or facing criminal charges—an instrument especially effective “against the poor and ignorant, its most likely victims.”

Hughes's solicitude for personal rights emerged early in his first Court tenure. He wrote for the Court in overturning an Arizona statute that limited the number of aliens a single employer could hire. Although he usually granted legislatures wide scope in determining means for protecting the public welfare, in this case he saw that the language of the statute showed that “discrimination against aliens [is] …. an end in itself.” That made it an unconstitutional intrusion on “the right to work for a living.” Because Congress had full power to invite immigrants to the nation, a state could not effectively nullify that power by forcing an alien into penury (Truax v. Raich, 1915).

In McCabe v. Atchison, Topeka & Santa Fe Railway Co. (1914), he wrote for the 5–4 majority an opinion that declared unconstitutional a part of an Oklahoma statute permitting railroads to provide luxury cars for whites, but none for nonwhites. Although he accepted the “separate but equal” doctrine laid down in Plessy v. Ferguson (1896), Hughes insisted that even if only one nonwhite required a luxury car, the railroad must bear the cost of providing it. “The constitutional right [to such a car does] not depend upon the number of persons who may be discriminated against.… The essence of the constitutional right,” wrote Hughes, “is that it is a personal one.” This decision was probably the first legal victory in the twentieth century for blacks after decades of reverses that effectively nullified the intent of the Fourteenth and Fifteenth Amendments to secure the freedmen's civil rights and guarantee them equal protection of the law. Unfortunately, because Hughes also found that the plaintiffs in the case did not have standing, because they were not the individuals denied access to a luxury car, Hughes's obiter dictum about the personal essence of a constitutional right assertion served merely as an invitation for future litigation. And it was not until 1941, Hughes's last year as chief justice, that the Court finally made the principle stick.

Hughes's concern for civil liberties showed up most clearly after he left the Court. Following his defeat for president in 1916, he returned to private practice and, in that capacity, he represented many large corporations, sometimes before his former colleagues on the Court. But his most distinguished ser-vice occurred in 1920 when, on his own initiative, he volunteered his services on behalf of five duly elected New York assemblymen who had been peremptorily denied their seats because they belonged to the Socialist Party. In the bigoted American postwar environment following the Bolshevist triumph in Russia, Hughes's efforts proved as futile as comparable good-citizen actions of the McCarthy era of the 1940s and 1950s. But his was a gesture that would eventually help build civil liberties into an important feature of American democracy.

In 1931 Chief Justice Hughes wrote the Court's opinion in Stromberg v. California, a decision attorney and educator Harry Kalven Jr. has called “the first case in the history of the Court in which there was an explicit victory for free speech.” Even so, Hughes did not move the law very far. He ordered reversal of a conviction on grounds that a part of the California law under which Yetta Stromberg was convicted was unconstitutional because it was too vague, while he explicitly upheld the constitutionality of another part of the law that made it a felony to use provocative flags or symbols that might serve as “an invitation or stimulus to anarchistic action or as an aid to propaganda that is of a seditious character.” The Court evidently was not yet prepared to regard “anarchistic action” or “seditious character” as at all vague, to say nothing of what might constitute “an invitation” or “an aid to propaganda.”

Hughes and his brethren continued to regard government authority as superior to most private rights, at least when those rights concerned lifestyle or political expression. In Hamilton v. Regents of the University of California (1934), a unanimous Court rejected a Methodist's conscientious objection to serving in a university's reserve officer training corps, then required of all able-bodied male students. Even the Court's three most liberal members, Benjamin Cardozo, Harlan Stone, and Brandeis, joined in a concurring opinion that pointedly rejected the claims of private conscience to some measure of immunity from state command. “The right of private judgment,” Cardozo wrote, “has never yet been so exalted above the powers and compulsion of the agencies of government.”

It would not be until after 1937 that the Court began moving civil liberties into the center of modern liberal law. And that would come primarily after numerous Court vetoes of New Deal economic legislation brought about a major political crisis, and after resignations from the Court permitted President Franklin Roosevelt to appoint new justices. Until that time, Hughes's record was spotty on this issue.

When Hughes was nominated in 1930 to replace William Howard Taft as chief justice, progressives were strongly opposed, regarding Hughes mainly as a Republican lawyer for corporations. The Senate confirmed him by a small majority, with twenty-six opposed and eighteen abstaining. And Hughes did not get off to an auspicious beginning. His first public statement after confirmation, a speech to the American Bar Association, emphasized the importance of preserving states' rights against federal encroachment—at a time when the country was facing a national economic calamity.

Once his term began, Hughes joined again and again with the conservatives—in particular, the four fiercely antireform justices—Willis Van Devanter, George Sutherland, Pierce Butler, and James McReynolds—in overturning state and federal measures designed to alleviate the country's critical conditions. In one case, Crowell v. Benson (1932), against even his own declared principles that the courts should refrain from second-guessing the fact-findings of regulatory commissions, he contrived to find that the courts could properly review the facts ascertained by the commission charged with administering a workman's compensation act. In another case, ostensibly out of solicitude for state court jurisdiction, he joined those four again, plus Justice Owen Roberts, in throwing out a case against six top executives of the American Tobacco Company, who had bilked the corporation for millions of dollars in “bonuses” and sold themselves stock for a fifth of its market value. As Justices Stone and Brandeis noted in dissent in Rogers v. Guaranty Trust Co. (1933), Hughes revealed (untypically) an almost willful blindness to the obvious interstate character of modern corporate business.

What was going on? A fair guess is that Hughes was troubled by the popular outcry against American business that followed on the stock market crash of 1929 and the devastating Great Depression that followed. His keen concern for order led him to “tilt” against what appeared to be a movement toward radical change that would, among other things, undermine the security of private business property. Like many fundamentally conservative people at the time, Hughes seems to have believed in the nearness of revolution.

His celebrated opinion in Home Building & Loan Assn. v. Blaisdell (1934), for a 5–4 majority, revealed this clearly. In upholding a Minnesota law that suspended foreclosures on indebted properties, Hughes acted in line with his earlier opinions on the legitimate power of states to alter or abrogate contracts. But in this case, instead of emphasizing, as Stone, Cardozo, and Brandeis wanted him to, that the states have plenary power to determine the balance between private rights and public welfare (a phrasing Hughes did take from Cardozo to include in his opinion), Hughes preferred to highlight the temporary nature of the act, and to stress how it helped to preserve the public's faith in a just and orderly government amid emergency conditions. Hughes's acknowledgment of the emergence of the state in America as an entity independent of the multiple social forces that made demands on it was an important contribution to modern political thinking. But Cardozo and Stone let it be known at the time that by failing to emphasize the plenary powers of the state to treat the allocation of economic advantages, the Court missed an opportunity to bring constitutional law fully into the twentieth century.

In another 1934 case Hughes joined in sustaining a state's regulatory power. In Nebbia v. New York, Justice Roberts wrote for a 5–4 majority to uphold New York's right to counter “destructive competition” by regulating milk prices. With Hughes joining in an expansive assertion of government's power to regulate, Roberts wrote, “There is no closed class or category of businesses affected with a public interest.… The phrase …. can …. mean no more than that an industry, for adequate reason, is subject to control for the public good.” But for the next two years, Hughes would be found mostly on the other side, going a long way toward eviscerating the federal government's major programs for coping with the Depression.

On May 27, 1935, a day that came to be called “Black Monday,” a unanimous Court overturned the National Industrial Recovery Act (NIRA), the measure that some regarded as the heart of the New Deal, in Schechter Poultry Corp. v. United States, as well as the Frazier-Lemke Act, a farm mortgage relief measure, in Louisville Joint Stock Land Bank v. Radford. The Radford case was not critical because it fell mostly on the act's careless wording. Brandeis, for the Court, stressed that although government may alter contracts for good public purpose, as Hughes had successfully argued during his first Court tenure, the poor wording of the act seemed to give government the right to take property without compensation.

But much more was at stake in the NIRA case, and Hughes again split with his more progressive colleagues, even though his earlier record might have indicated he would do otherwise. The key to the case for Brandeis, Cardozo, and Stone was the virtually unlimited and uninstructed delegation of government power to private trade associations for setting prices, wages, and production levels. The example of fascism, which was then vigorously ascending in Europe and in theory featured a superficially similar form of syndicalism, played a strong role in the justices' view of the NIRA. It was not altogether unreasonable in those years to fear the spread of authoritarian regimes, even in liberal democracies. But Hughes seemed to have a more antiquated concern for states' rights. He threw his support to a distinction between “direct” effects on interstate commerce that Congress could regulate and “indirect” effects that he insisted it could not. That line of reasoning brought the Court back to 1895 and E.C. Knight and the sugar trust.

The next year, Brandeis, Cardozo, and Stone found themselves alone again, this time in dissent, when Hughes's Court threw out the New Deal's Agricultural Adjustment Act (AAA) in United States v. Butler (1936). Here, Roberts wrote a truly astonishing opinion for the 6–3 majority that Hughes joined. The opinion first asserted that although Congress did have the power to tax and spend for the general welfare, it could not do so for purposes reserved to the states, namely, to regulate agriculture—notwithstanding the plain interstate and international character of modern agriculture. Second, according to Roberts, “A tax …. has never been thought to connote the expropriation of money from one group for the benefit of another”—notwithstanding that nearly all taxation does that. Third, Roberts said that by tying receipt of such benefits to specific regulations, Congress was engaged in “coercion by economic pressure,” even though the law required no one to accept the benefits and thereby the regulations, and nearly all government largesse is conditioned by some required behavior. Fourth, he said that if the federal government could purchase compliance by offering grants, one could foresee a condition whereby “the independence of the individual states [will be] obliterated, and the United States converted into a central government exercising uncontrolled police power in every state of the Union, superseding all local control or regulation of the affairs or concerns of the states.”

Stone, with Brandeis and Cardozo joining, dispatched such blather with a brief, sharp dissent: “The suggestion that [the government's power of the purse] must now be curtailed by judicial fiat because it may be abused by unwise use hardly rises to the dignity of argument. So may judicial power be abused.… Courts are not the only agency of government that must be assumed to have capacity to govern.” The Court and the American people, Stone concluded, would benefit most from “the frank recognition that language, even of a constitution, may mean what it says: that the power to tax and spend includes the power to relieve a nationwide economic maladjustment by conditional gifts of money.”

But the Court majority remained incorrigible. By a 5–4 margin, with Hughes concurring, it followed the AAA decision by striking down a congressional act that sought to stabilize prices and wages in the troubled bituminous coal industry. In Carter v. Carter Coal Co. (1936), Hughes once again seemed to return to the E.C. Knight doctrine: “If the people desire to give Congress the power to regulate industries within the state, and the relations of employers and employees in these industries,” he pontificated in a concurring opinion, “they are at liberty to declare their will in the appropriate manner, but it is not for the Court to amend the Constitution by judicial decision.” As one law school dean complained that year, “What we face now is the question, not how governmental functions shall be shared, but whether in substance we shall govern at all.”

By this time, the Hughes Court's collision with Franklin Roosevelt's New Deal program had attracted criticism across the country, and not altogether on partisan political or strictly ideological grounds. A widespread sentiment had formed that the Court, made up mostly of aging men deep into their seventies and eighties, was out of touch with reality and was engaging in blunt political acts aimed at blocking every effort of the Roosevelt administration to deal with the modern corporate economy realistically and to end the crisis of the Depression. Why Hughes was participating in this obstructive course is still not clear. It is true he was a lifelong Republican who may well have resented his much younger, shallow, patrician-born Democratic neighbor from downstate New York. But then, Harlan Stone was also a New York Republican who distrusted the New Deal experiments and had no personal fondness for Roosevelt. Perhaps the best answer is that Hughes was always profoundly conservative, and his departures from the old came mainly—and usually grudgingly—when he feared that to do otherwise would put order into jeopardy.

Following the Carter Coal decision, the Hughes Court in June 1936 took one more dramatic step toward provoking disorder when it overturned a New York minimum wage law. This time Hughes voted with the minority in the 5–4 decision in Morehead v. New York ex rel. Tipaldo. But the damage was done. Even conservative students of the law exclaimed their disapproval. Stone, in his dissent, denounced the “economic predilections” of the Court's majority. Calls for revamping the Court grew.

That November, FDR won a landslide reelection victory in which he made “the Republican Supreme Court” a campaign issue. Thinking the time ripe, he asked Congress to pass a reform bill that would have permitted the president to name an additional justice to the Court for every sitting justice over the age of seventy (six of them were). But Roosevelt's plan misfired. Although Congress had changed the number of seats on the Supreme Court several times before, many in the president's own party in Congress opposed him this time. So great had the Supreme Court's authority grown in Americans' sense of nationhood, so important had the myth of its nonpartisanship become, that, even in the face of the manifest partisanship of at least the consistently united four conservatives on the Court, the public recoiled from what the press quickly dubbed “Court-packing.” FDR found his plan attacked as if he had challenged the importance of motherhood, religion, and apple pie. To make matters worse, he chose to sidestep the political reasons for the proposal and disingenuously argued the need to relieve the workload of the superannuated justices.

That comment eased the task of his enemies. Although Hughes wished to avoid a direct confrontation with the administration on what he recognized was a proper political issue, FDR's claim that the aging Court members needed help gave him his opening. He responded to FDR's proposal in two ways. The first was to pick apart, in his well-practiced fashion of providing detailed data, the president's contention that the Court's aging members needed relief. Taking cues from Sen. Burton Wheeler, D-Mont., he addressed a letter to the Senate Judiciary Committee as if in answer to a factual inquiry. Hughes easily showed that the Court had had no more trouble handling its full load of cases than had any previous Court. Hughes spoke for himself but claimed that the letter was “in accord with the views of the Justices,” although in fact he had consulted only with Van Devanter and Brandeis. Had he consulted all, he would have risked revealing division among the brethren on the issue. And the others, although miffed by their chief's presumption, declined to expose the Court to the embarrassment and controversy that a public challenge would entail. FDR's congressional opponents used Hughes's letter in their successful campaign to sink the plan.

Although he would forever after deny it, Hughes's second response to the Court-packing controversy was essentially to change his judicial posture. The year 1937 marked the beginning of a nearly complete reversal of the Hughes Court's earlier positions on reform legislation, with Hughes and Roberts joining Brandeis, Cardozo, and Stone for a new 5–4 majority in the 1937 term.

By that margin, in March 1937, only months after voiding New York's minimum wage law, the Court upheld Washington State's minimum wage law in West Coast Hotel Co. v. Parrish and explicitly reversed the decision in Morehead and the main precedent cited in that case, the infamous Adkins v. Children's Hospital (1923). In April Hughes gave the New Deal its greatest victory when he and the same four others upheld the 1935 National Labor Relations Act (NLRA) in National Labor Relations Board v. Jones & Laughlin Steel Corp. To do so, he almost cavalierly waved aside his own position in the NIRA, AAA, and coal act cases, as if rediscovering his earlier view that “regard must be had to [the] essential character” of the stream of commerce to determine Congress's jurisdiction. Justice McReynolds had every right to protest in his dissent: “Every consideration brought forward to uphold the [National Labor Relations] Act …. was applicable to support the Acts held unconstitutional in cases decided within [only the past] two years.”

The Jones & Laughlin decision represented something new in modern American government. Until 1935 the growth of a government regulatory regime had responded almost entirely to demands made by various elements within the business community. With passage of the NLRA, a major piece of federal regulatory law emanated from concerns of the state itself to establish a controllable order in industrial relations, as well as in response to demands from among nonbusiness interests within the society for the kind of statutory protection from adverse market outcomes that different business groups commonly enjoyed. In upholding the act and in recognizing collective bargaining as a “fundamental right,” the Hughes Court dramatically altered the employer-employee relationship, restoring to the state a large part of the mediating role it had had before nineteenth-century changes in law created a free labor market that underwrote industrial capitalism. The restoration of government's active role in regulating industrial relations won firm standing in 1941, the last year of Hughes's stewardship. With the Court largely restructured by six resignations and deaths, Hughes reluctantly joined in a unanimous validation of the Fair Labor Standards Act of 1938, which reversed several precedents that had denied Congress's full power to regulate interstate commerce and the labor and goods that produced that commerce. The case was United States v. Darby Lumber Co. (1941).

Before the end of 1938, the Court clearly indicated that it would henceforth presume the legitimacy of legislative efforts to govern the economy. In an obscure case, United States v. Carolene Products Co., Justice Stone, for the Hughes Court, declared: “The existence of facts supporting the legislative judgment [in economic matters] is to be presumed.” Then, in what became a famous footnote, Stone added that “legislation which restricts …. political processes …. is to be subjected to more exacting judicial scrutiny.” Stone included among such restrictions the right to vote, to assemble, to organize politically, and in general, “restraints upon the dissemination of information.”

In a vital way, this development marked the maturing of modern liberalism. Traditional liberalism had placed private property at the center of its emphasis on individual liberty, reasoning that from the immunity of property from arbitrary constraint or expropriation all other elements of individual liberty followed. Modern liberalism placed personal freedom—lifestyle, speech, assembly, religious choice—at the center of its concern for individual liberty, recognizing that the industrial and corporation revolutions, by bringing about a concentration of propertied power, had impaired the function of private property to protect individual liberty.

What is often overlooked about the Hughes Court is that it set the first important precedents for developing a civil liberties jurisprudence. In DeJonge v. Oregon (1937), in which the Court unanimously overturned the conviction of a man for attending a Communist Party meeting, Hughes declared plainly, “Peaceable assembly for lawful discussion cannot be made a crime.” In Herndon v. Lowry that same year, for the first time the Court put Justice Holmes's test of “clear and present danger” into a majority opinion that overturned a conviction for illicit speech. In this case, a black organizer for the Communist Party had been convicted for inciting insurrection. Roberts for the Court declared the law under which the state had obtained the conviction “a dragnet which may enmesh anyone who agitates for a change of government” and “an unwarrantable invasion of the right of free speech.” In Hague v. C.I.O. (1939), the Hughes Court found a municipal ordinance requiring permits for citizens to hold peaceful public meetings to be an unconstitutional burden on free speech and assembly. And in Thornhill v. Alabama (1940), the Court held a statute banning peaceful picketing to be “invalid on its face,” interfering as it did with the free discussion “indispensable to the effective and intelligent use of the processes of popular government to shape the destiny of modern industrial society.” In all these cases, the Hughes Court set apart certain rights and immunities having to do with the communicative freedoms that no government could abridge without establishing some impelling reason of safety or order. Although a thorough protection for civil liberties still had a long way to go, the Hughes Court prepared a solid base.

Finally, there remains an assessment of the reputation of Charles Evans Hughes as a jurist. Most public accounts of the man's career have treated him with high honor. One scholar called the body of opinions by Hughes to be the most important since those of the great John Marshall. Others also extolled his administrative abilities as chief justice. Some contemporaries even cited his great sense of humor—a quality not obvious from either the character of his writings, including his autobiographical notes, or his public image. The man's very appearance, perhaps most of all his full, well-groomed but imperious beard, suggested a formidable authoritative presence. He appeared the very embodiment of a “great judge.” “He radiated authority,” which he exerted “by the artistic mastery with which he presided,” wrote Justice Felix Frankfurter.

On the other hand, private opinions of Hughes by many of his contemporaries, including some of the same colleagues who publicly extolled him, differ sharply. The papers of Harlan Stone, who succeeded Hughes as chief justice, are full of scorching judgments of both the man's legal opinions and his conduct as chief. “At conference,” Stone wrote about one case, “the case was presented by the Chief Justice in his usual fashion of greatly over-elaborating the unimportant details of the case and disposing, by ipsi dixit, in a sentence or two, of the vital question.” Others found his opinions verbose, often obscuring the critical issues. Some contemporaries jibed that Hughes, who coveted a reputation as a liberal like Holmes and Brandeis, usually chose not to speak for the Court when he joined conservative opinions, but assigned himself the Court's voice when he could agree on a liberal decision. Many stressed his inconsistency, and conservatives especially deplored his results-oriented activism. Archibald Cox of the Harvard Law School gave faint praise in saying that the Hughes Court did “appreciably less violence” than did the Warren Court “to the ideal of a coherent, growing, yet continuing body of law.”

Perhaps it may best be said that Charles Evans Hughes presided over the U.S. Supreme Court at a time when great things were happening in constitutional law and that they probably happened as much in spite of Hughes as because of him.


The Hughes papers are in the Library of Congress. The most complete biography remains Merlo J. Pusey, Charles Evans Hughes, 2 vols. (1952), which is very much an “official” work. David J. Danelski and Joseph S. Tulchin have edited The Autobiographical Notes of Charles Evans Hughes (1973), which provides the most intimate portrait of Hughes we are likely to get.

For various interpretations of the man, see Paul A. Freund, “Charles Evans Hughes as Chief Justice,” Harvard Law Review 81 (1967): 4; Samuel Hendel, Charles Evans Hughes and the Supreme Court (1951), a balanced account that pays more attention than most to Hughes's record on civil liberties; and, in this regard, see Merle William Loper, “The Court of Chief Justice Hughes: Contributions to Civil Liberties,” Wayne Law Review 12 (1966): 535. The best and most succinct account of Hughes's first tenure on the Court is an anonymous note, “Governor on the Bench: Charles Evans Hughes as Associate Justice,” Harvard Law Review 89 (1976): 961. Michael F. Parrish provides a critical account of the Hughes Court in “The Great Depression, the New Deal, and the American Legal Order,” Washington Law Review 59 (1984): 723.

A revisionist study that argues the Court was not as reactionary as critics or historians have believed is Barry Cushman, Rethinking the New Deal Court: The Structure of a Constitutional Revolution (1998). For Hughes's role in the Court fight, see William E. Leuchtenburg, “The Nine Justices Respond to the 1937 Crisis,” Journal of Supreme Court History (1997): 55; and Leuchtenburg, “Charles Evans Hughes: The Center Holds,” North Carolina Law Review 83 (2005): 1187. A different view is Richard Friedman, “Chief Justice Hughes's Letter on Court-Packing,” Journal of Supreme Court History (1997): 76.

One should also consult Alpheus T. Mason, Harlan Fiske Stone: Pillar of the Law (1956), which provides an intensive examination of the Hughes period, and a rare less-than-wholly favorable treatment of the chief justice.

Noteworthy Opinions

Minnesota Rate Cases, 230 U.S. 352 (1913)

Shreveport Rate Cases, 234 U.S. 342 (1914)

McCabe v. Atchison, Topeka & Santa Fe Railway Co., 235 U.S. 151 (1914)

Truax v. Raich, 239 U.S. 33 (1915)

Chicago, Burlington & Quincy Railroad Co. v. Harrington, 241 U.S. 177 (1916)

Stromberg v. California, 293 U.S. 359 (1931)

Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398 (1934)

Schechter Poultry Corp. v. United States 295 U.S. 495 (1935)

Carter v. Carter Coal Co., 298 U.S. 238 (1936) (Partial Dissent)

Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936) (Dissent)

DeJonge v. Oregon, 299 U.S. 353 (1937)

West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937)

National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937)


Document Citation
Hughes, Charles Evans, in Biographical Encyclopedia of the Supreme Court 266 (Melvin I. Urofsky ed., 2006),
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