HUGHES, CHARLES EVANS (1862–1948)

The only child of a Baptist minister and a strong-willed, doting mother who hoped their son would become a man of the cloth, Charles Evans Hughes compiled a record of public service unparalleled for its diversity and achievement by any other member of the Supreme Court with the exception of william howard taft. In addition to pursuing a lucrative career at the bar, Hughes taught law at Cornell, served as a two-term governor of New York, was secretary of state under two Presidents during the 1920s, and served as associate Justice and Chief Justice of the United States. By the narrowest of margins, he lost the electoral votes of California in 1916 and thus the presidency to the incumbent, woodrow wilson. Hughes was a man of imposing countenance and intellectual abilities, who left an indelible mark upon the nation's politics, diplomacy, and law.

First appointed to the Court as associate justice by President William Howard Taft, Hughes brought to the bench the social and intellectual outlook of many American progressives, those morally earnest men and women from the urban middle class who wished to purge the nation's politics of corruption, infuse the business world with greater efficiency and concern for the public welfare, and minister to the needs of the poor in the great cities. In an earlier era, such people had found an outlet for their moral energies in religion. By the turn of the twentieth century, they practiced a social gospel and undertook a "search for order" through secular careers in law, medicine, public administration, journalism, engineering, and social welfare.

"We are under a Constitution," Governor Hughes remarked shortly before his appointment to the bench, "but the Constitution is what the judges say it is, and the judiciary is the safeguard of our liberty and of our property under the Constitution." This statement reflected the ambivalence of many progressives about the nation's fundamental charter of government and its judicial expositers on the Supreme Court. On the one hand, Hughes and other progressives clearly recognized that constitutional decision-making was a subjective process, strongly influenced by the temper of the times and by the social biases and objectives of individual jurists. The Constitution, they believed, was flexible enough to accommodate the growing demands for reform that sprang from the manifold desires of businessmen, consumers, farmers, and industrial workers who wished to use government to promote economic security in an increasingly complex, interdependent capitalist economy. Like other progressives, Hughes saw government, both state and federal, as a positive instrument of human welfare that could discipline unruly economic forces, promote moral uplift, and guarantee domestic social peace by protecting the citizen from the worst vicissitudes of the marketplace.

At the same time, Hughes and other middle-class reformers had a morbid fear of socialism and resisted endowing government with excessive power over persons and property. They wanted social change under the rule of law, in conformity with American traditions of individualism, and directed by a disinterested elite of lawyers, administrators, and other experts of enlightened social progress.

By the time Hughes took his seat on the nation's highest court, the Justices had grappled inconclusively for almost five decades with the question of the reach of the constitutional power of the states and the national government to regulate economic activity. One group of Justices, influenced by the Jacksonian legacy of entrepreneurial individualism, equality, and states ' rights, had combined an expansive reading of the fourteenth amendment ' sdue process clause and a narrow interpretation of the commerce clause and the taxing and spending power in order to restrict both state and federal regulation of private economic decision making. Another group of Justices, heirs to the radical Republican tradition of moral reform and positive government, had been more receptive to governmental efforts at economic regulation and redistribution.

Hughes placed his considerable intellectual resources on the side of the economic nationalists and those who refused to read the due process clause as a mechanical limitation upon state regulation of economic affairs. In Miller v. Wilson (1915), for example, he wrote for a unanimous bench to sustain California's eight-hour law for women in selected occupations against a challenge that the law violated freedom of contract. The liberty protected by the due process clause, he noted, included freedom from arbitrary restraint, but not immunity from regulations designed to protect public health, morals, and welfare.

More significant, he joined the dissenters in coppage v. kansas (1915), where six members of the Court, speaking through Justice mahlon pitney, invalidated a Kansas law prohibiting yellow dog contracts on the ground that the regulation deprived employers of their contractual liberty. Hughes endorsed the dissent by Justice william r. day which argued that the law attempted only to protect the right of individual workers to join labor unions if they so pleased and represented a legitimate exercise of the state police power, ", not to require one man to employ another against his will, but to put limitations upon the sacrifice of rights which one may exact from another as a condition of employment."

Hughes's views on the federal commerce power were equally generous during this period. He wrote the two leading opinions of the era supporting the authority of Congress and the Interstate Commerce Commission (ICC) to regulate both interstate railroad rates and purely intrastate rates that undermined the efficiency of the nation's transportation network. In the Minnesota Rates Cases (1913) he upheld the particular exercise of rate-making by the state, although he and the majority affirmed that the power of Congress "could not be denied or thwarted by the commingling of interstate and intrastate operations" of the railroad. A year later, in the landmark Shreveport Case, Houston, East & West Texas Railway Company v. United States, (1914), he spoke for all but two Justices in sustaining an order of the ICC that effectively required an increase in intrastate rates in order to bring them into line with those fixed by the commission for interstate carriers over the same territory. The power of Congress to regulate interstate commerce, he wrote, was "complete and paramount"; Congress could "prevent the common instrumentality of interstate and intrastate commercial intercourse from being used in their intrastate operations to the injury of interstate commerce."

Most progressives displayed little sympathy for the plight of either American blacks or the foreign immigrants who entered the country in large numbers during the decades before world war i. Hughes was a striking exception to the usual pattern of collaboration with the forces of racial and ethnic intolerance. He began to speak out in these years against various forms of oppression and bigotry and to lay the foundation for many of his subsequent opinions on civil rights during the 1930s.

In McCabe v. Atchison, Topeka & Santa Fe Railroad (1914), Hughes led a five-Justice majority in striking down a state law that authorized intrastate railroads to provide dining and sleeping cars only for members of the white race. The state and the carriers argued that the statute was reasonable in light of the limited economic demand by black passengers for such services, a point of view that also appealed to Justice oliver wendell holmes. Hughes, however, flatly condemned the law as a violation of the Fourteenth Amendment's equal protection clause. With support from all but one of the Justices, he also overturned, in Truax v. Raich (1915), an Arizona law that had limited the employment of aliens in the state's principal industries to twenty percent of all workers in firms with five or more employees. Discrimination against such inhabitants "because of their race or nationality," he declared, "clearly falls under the condemnation of the fundamental law."

His most impressive effort in this regard came in the famous debt peonage case, bailey v. alabama (1911), where he both invalidated the state's draconian statute and gained a notable rhetorical victory over Justice Holmes. Under the Alabama law, as under similar ones in force throughout the South, a person's failure to perform a labor contract without just cause and without paying back money advanced was prima facie evidence of intent to defraud, punishable by fine or imprisonment. The accused, furthermore, could not rebut the presumption with testimony "as to his uncommunicated motives, purposes, or intention." Hughes condemned this "convenient instrument for … coercion" as a violation of both the thirteenth amendment and the Anti-Peonage Act of 1867.

With a few exceptions, the progressives also displayed more concern for the suppression of crime than for the rights of the accused. The due process clause had seldom been invoked successfully against questionable methods of law enforcement and criminal procedure on the state level. In this field, too, Hughes attempted to break new ground that anticipated the jurisprudence of a later era. One case in point is frank v. mangum (1915), arising out of the notorious Leo Frank trial in Georgia. A young Jewish defendant had been convicted of murder and sentenced to death with a mob shouting outside the courtroom, "Hang the Jew, or we'll hang you." Frank and his lawyers had not been present during the reading of the verdict, because the trial judge could not guarantee their safety in the event of an acquittal.

Despite this evidence of intimidation, the Georgia Supreme Court upheld the conviction and sentence; a federal district judge refused Frank's petition for habeas corpus, which raised a host of due process challenges; and a majority of the Supreme Court affirmed that decision. Hughes joined a powerful dissent written by Holmes, which chastised the majority for its reasoning and called upon the Justices to "declare lynch law as little valid when practiced by a regularly drawn jury as when administered by one elected by a mob intent on death."

Hughes's initial appointment to the Court, following in the wake of his progressive achievements as governor of New York, had been received with almost unanimous acclaim. However, his nomination as Chief Justice by President herbert hoover in 1930 sparked furious debate. Twenty-six senators, led by the redoubtable george norris of Nebraska, voted against his confirmation. Many of them believed, as Norris did, that the former Justice's profitable law practice during the 1920s had turned him into a pliant tool of the "powerful combinations in the political and financial world" and therefore rendered him incapable of fairly deciding the "contests between organized wealth and the ordinary citizen." Events proved Norris to be half right.

Beginning in 1930, Hughes was called upon to pilot the Court through the years of social and economic crisis spawned by the financial collapse of 1929 and the Great Depression. These were the most turbulent years in the Court's history since the decade before the civil war and the economic crisis of the 1890s—two earlier occasions when the Justices had attempted to hold back the tide of popular revolt against the status quo.

Under Hughes's leadership, the Court majority became aggressively liberal with respect to the protection of civil liberties and civil rights, often building upon the doctrinal structure erected by the Chief Justice himself during the Progressive Era. In stromberg v. california (1931), near v. minnesota (1931), and dejonge v. oregon (1937) Hughes's distinguished opinions significantly enlarged the scope of first amendment rights protected against state abridgment via the due process clause. He personally drove the first judicial nail into the coffin of the separate but equal doctrine with his opinion in missouri ex rel. gaines v. canada (1938), holding that a state university's refusal to admit a qualified black resident to its law school constituted a denial of equal protection. He endorsed Justice george h. sutherland's opinion in the initial Scottsboro case, powell v. alabama (1932), and wrote the second one, norris v. alabama (1935), himself. Both opinions tightened the Supreme Court's supervision over state criminal trials involving the poor and members of racial minorities.

Hughes contributed to Justice harlan f. stone's famous fourth footnote in united states v. carolene products company (1938), where the latter suggested that the Court had a special role to play in defending preferred freedoms, including freedom of the press, and voting rights, from legislative abridgment and also to protect discrete and insular minorities from the tyranny of the majority. Under Hughes, finally, the Court broadened the reach of habeas corpus to attack constitutionally defective state criminal convictions, and greatly expanded the in forma pauperis docket which permitted indigent defendants to seek Supreme Court review of their convictions. By any yardstick, Hughes as Chief Justice compiled a civil liberties record of impressive range and impact.

The Hughes who regularly cast his vote on the libertarian side in cases touching civil liberties and civil rights during the 1930s also voted in 1935 and 1936 against many of the social and economic reforms sponsored by the franklin d. roosevelt administration and state governments in their efforts to cope with the economic crisis of the decade. It is this side of his performance as Chief Justice that has fueled the most controversy—and puzzlement, too, considering Hughes's toleration for many of the early anti-Depression nostrums of both the new deal and the individual states. It was Hughes, after all, who wrote for the five-Justice majority in home building & loan association v. blaisdell (1934), upholding a far-reaching mortgage moratorium law that many observers found to be in flat violation of the Constitution's contract clause. He also wrote for the narrow majority in the gold clause cases, where the Justices sustained the New Deal's monetary experiments over the protests of Justice james c. mcreynolds who declared, "This is Nero at his worst. The Constitution is gone."

The Chief Justice sided as well with Justice owen j. roberts ' views in nebbia v. new york (1934), which expanded the sphere of business activities subject to state regulation, and he spoke out forcefully against the crabbed interpretation of the federal commerce power in railroad retirement board v. alton railroad company (1935), where five Justices voted to strike down a mandatory pension plan for railway workers. In 1935 and 1936, however, Hughes began to vote more consistently with Roberts and the Court's four conservatives—Justices McReynolds, pierce butler, willis van devanter, and Sutherland—against the New Deal and various state reform programs.

Six months later, in the aftermath of Roosevelt's crushing reelection victory and his threats to reorganize the federal judiciary, the Court reversed gears once again when a bare majority of the Justices—including Hughes and Roberts—sustained a minimum wage law in west coast hotel company v. parrish (1937) and the New Deal's major labor law in the wagner act cases (1937). Hughes wrote both landmark opinions, the first laying to rest "liberty of contract" and the second affording Congress ample latitude to regulate labor-management conflicts under the commerce clause.

Various explanations have been advanced since the 1930s to explain both Hughes's alignment with the conservatives and his eventual return to the progressive fold in 1937. Hughes justified his behavior during the first period by casting blame upon the New Deal's lawyers, who, he complained, wrote vague, unconstitutional statutes. This thesis has some credibility with respect to the controversial national industrial recovery act which the Court invalidated in schechter poultry corporation v. united states (1935), but none at all when one reflects upon the care with which very good lawyers wrote both the agricultural adjustment act and the Guffey Bituminous Coal Act. (See carter v. carter coal co.) Others have suggested that Hughes voted with Roberts and the four conservatives on several occasions in 1935 and 1936 in order to avoid narrow 5–4 decisions that might damage the Court's reputation for constitutional sagacity. But this hypothesis does not explain why he found 5–4 decisions in favor of the New Deal any less injurious to the Court in 1937.

A more plausible explanation may be that Hughes regarded many New Deal regulatory programs and some on the state level as dangerously radical, both to the inherited constitutional system and to the social order, because of their redistributive implications. Other old progressives also fought the New Deal for similar reasons after 1935. Those who resisted the leftward drift of the administration in 1935 hoped that the electorate would repudiate Roosevelt's course of action in the 1936 referendum, but Roosevelt's landslide victory left them with few alternatives but capitulation to the popular will. In bowing to the election returns, Hughes became the leader of the Court's progressive wing once again, salvaged the basic power of judicial review, and at the same time administered a fatal blow to the President's misconceived reorganization bill. It was a stunning triumph for the Chief Justice.

Hughes accomplished this feat without serious damage to his intellectual integrity. The Justice who wrote Miller v. Wilson in 1915 did not find it too difficult to sustain minimum wage legislation two decades later. And the ideas expressed in NLRB v. Jones & Laughlin (1937) had already been given initial shape in the Minnesota Rates Cases and the Shreveport Case. For a Justice as brilliant and as crafty as Hughes, leading the constitutional revolution in 1937 was as easy as resisting it a year before, but the latter course assured his place in history.

Michael E. Parrish
(1986)