Wall St J oped about Roberts

Sat Jul 26 14:00:11 PDT 2008

So it is an internal court success story that mde him "great"?  I hard to figure out how much harmony he was able to produce, given all those 5-4 cases and 6-3 cases (many of which he was on the wrong side of).  As last as 1940 (Apex Hosiery) he was voting with McReynolds to crush labor unions).  Mos of the harmony on that Court came when Congress passed a pension law and a few people left.  I wonder, can any C.J. achieve "greatness" in 11 years? 

It is true he presided over the Revolution of 1937, and if that is the measure of his "greatness" than I would concede the point.  His greatness may be that, unlike the Four Horsemen (who he rode with a good deal of the time in his first years on the Court) he was able to see that change was necessary and helped bring the Court to undertand the realities of economics, markets, and commerce in the 20th century.  If "greatness" was his ability to change, then I guess he was "great."  But, I would then ask, why wasn't it a "Revolution of 1933" or 1935?  Where was his "leadership" in the first seven years of the great depression? 

In a few cases -- Nebbia, Blaisdell, and the Gold Standard cases-- he showed that leadership and helped get a majority.  He   failed to get a majority in Railroad Retirement v. Alton RR; Carter Coal,  and Morehead v. NY, although he voted along with those who understood th issues.  But, he was surely on the wrong side of the constitution (and history) in U.S v. Butler and earlier in New State Ice.

I realize there are no batting averages for justices or On Base Percentages or Earned Run Averages, but nevertheless, it does seem to me that scholars should be able to make some judgments based on what a C.J. does or what the Court does under him.   Clearly, we cannot say he "brought the Justices together" if we look at all the close votes and disastrous results like Carter Coal.  

I would also be curious to know if he did this bringing together on a personal level. That is, did he get McReynolds to sit next to Brandeis?  It is plausible he is the third greatest Chief Justice, but that is only because the gap after Marshall and Warren is so huge.

I don't mean to be argumentative here (really!!!).  I am just trying to get a sense of what the standards are, other than that we think someone was great or that the justices in the 1970s looked fondly on him?

Paul Finkelman
President William McKinley Distinguished Professor of Law
     and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
pfink at albanylaw.edu
>>> "Bezanson, Randall P" <randy-bezanson at uiowa.edu> 07/26/08 4:20 PM >>>
During the late Warren Court and the early Burger Court Hughes was
widely believed within the Court to have been one of the truly great
Justices ... largely, as I recall from my time as a clerk, because he
brought the Justices together in a constructive way and led the Court
with a certain yet collegial touch.

Randy Bezanson

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Paul Finkelman
Sent: Saturday, July 26, 2008 1:33 PM
To: DavidEBernstein at aol.com; s-gerber at onu.edu
Cc: conlawprof at lists.ucla.edu
Subject: Re: Wall St J oped about Roberts

i am amused at the notion that Charles Evans Hughes is a "great Chief
Justice."  Is there any evidence for that?  Better than Taft or Vinson,
but that is not a hard standard to beat.  

Paul Finkelman
President William McKinley Distinguished Professor of Law
     and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
pfink at albanylaw.edu
>>> "Gerber, Scott" <s-gerber at onu.edu> 07/26/08 6:48 AM >>>
FYI:
http://online.wsj.com/article/SB121702827369686343.html?mod=opinion_main
_commentaries

*****************************
Scott Douglas Gerber
Professor of Law
Ohio Northern University
Ada, OH 45810
419-772-2219
http://www.law.onu.edu/faculty_staff/faculty_profiles/scottgerber.html
http://upress.kent.edu/books/Gerber_S.htm

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