Wall St J oped about Roberts

Sun Jul 27 08:31:46 PDT 2008

I am impressed with Richard arguments; and, as I said earlier; after Marshall there is pretty big gap in quality in the center chair until you get to Warren; so maybe Hughes is No. 3.  We have not discussed Taney of course.

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
>>> "Richard D. Friedman" <rdfrdman at umich.edu> 07/27/08 4:02 AM >>>
Well, sure there is a basis for calling Hughes a great Chief Justice 
-- though of course any label like that is bound to be 
controversial.  (There are presumably some who think Warren was a 
terrible Chief who led the Court into large usurpations of 
power.)  Several points:

1.  During Hughes' tenure as Chief, constitutional law transformed 
dramatically, and took on much of the basic shape it has held ever 
since.  In some respects, Hughes was at the forefront of the change, 
and he concurred in its key elements.  Important changes occurred not 
only in the areas then of greatest concern, state and federal powers, 
but also with respect to free speech and race.  Hughes, a person of 
great intelligence, was a powerful writer, and some of his best 
opinions are classics (I think Near v. Minnesota, Blaisdell, West 
Coast Hotel, and Jones & Laughlin fit that bill.)

2.  The Court operated in a highly charged setting during most of 
Hughes' tenure, and the Court-packing plan threw it into one of the 
greatest crises in its history, one that threatened its continuance 
as a viable independent institution.  Some people believe that the 
liberal decisions of 1937 reflected a strategic retreat by Hughes 
from his prior positions, one that effectively defeated the plan.  I 
don't subscribe to this view -- I don't think that he changed his 
positions because of political pressure (most of them had been 
established before 1936), and it's not clear that those decisions 
were essential in defeating the plan.  But the efficiency with which 
he ran the Court cut the legs out from under the basis on which FDR 
presented the plan, as did the one public statement he made 
explicitly addressing the plan, a letter to Sen. Wheeler convincingly 
showing that the addition of extra judges would be counterproductive 
from an efficiency standpoint.  Another factor, difficult to assess 
but nevertheless real in my view, is the gravitas Hughes brought to 
the job.  He commanded such respect, and presided with such 
authority, that it made the Court seem more like a great court that 
should not be tampered with by politicians.

3.  Though of course the Court was often sharply divided, it 
maintained a high level of cohesiveness.  That is, there was almost 
always an opinion for the Court.  Splintered Courts had not yet 
become the norm, but given the pressures of the time there may well 
have been a good deal more splintering without strong leadership.  A 
public brawl like the one that erupted between Black and Jackson 
after Stone's death would have been pretty much unthinkable with 
Hughes as Chief.  Or compare the rather ineffectual leadership 
displayed by Stone when Roberts retired -- after much debate, the 
Court failed to produce a letter to him because Black would not join 
in saying that Roberts had adhered to principle -- with Hughes' 
handling of the letter to Brandeis; the anti-Semitic McReynolds would 
not sign (Hughes didn't let him off the hook easily; McReynolds was 
out of town when the letter was first circulated, but Hughes held it 
up to give him a chance to sign), so the letter simply went out over 
seven signatures.

4.  As Mark Tushnet says, there are pluses and minuses to Hughes' 
management style.  Remembering the effect of weak leadership 
displayed by CJ White, Hughes moved the conference along very 
briskly, too much so for some.  But he couldn't, and didn't, bully 
the Court.  (Frankfurter said approvingly that things were "taut" 
with Hughes as Chief, and that one just didn't "drool" in conference 
because of his presence.)  Most of the justices, including the New 
Dealers, had enormous respect and even affection for him, and were 
sorry when he left.  Stone always chafed, but everything Stone says 
must be taken with a grain of salt.  Stone was a great back-biter 
(about virtually all of his colleagues), and he was very resentful 
about Hughes from the start, perhaps because Stone had hoped to be 
appointed Chief by Hoover.  And Stone, who did in fact adopt a more 
discursive style as Chief, turned out, I believe, not to be so good at the job.

Rich Friedman

At 02:33 PM 7/26/2008, Paul Finkelman wrote:
>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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