Roosevelt, Hughes, and the Battle over the New Deal: Interview with James Simon





5-14-12

Robin Lindley is a Seattle lawyer and writer.  He contributes interviews of authors, scholars and other experts to the History News Network, Crosscut, Real Change and other publications.

This spring may see the issuance of one of the most significant U.S. Supreme Court decisions in decades as the Court weighs in on the constitutionality of the Affordable Care Act of 2010, President Obama’s major legislative achievement. A politically polarized Supreme Court, controlled by conservatives led by Chief Justice John Roberts, will determine the fate of the controversial new law by June. The decision may well go beyond the health care act itself and alter the course of the modern federal administrative state.

Seventy-five years ago, the nation witnessed another conflict that pitted the Court against the chief executive. Then Chief Justice Charles Evans Hughes, a Republican, faced off against a popular Democratic president, Franklin D. Roosevelt, who derided the Court for striking down several key New Deal laws including the National Industrial Recovery Act and the Agricultural Adjustment Act.

Arguing that the elderly justices of the Court were overworked, Roosevelt proposed expanding the Court from nine to fifteen members by adding a new member for every justice over age 70. Hughes responded that the Court was efficient and up to date with its work while critics blasted FDR’s thinly veiled effort to pack the Court with his political allies. The Court-packing plan fizzled in 1937. After that, however, the Court upheld every New Deal law that came before it as appropriate exercises of congressional authority on social and economic issues.

In his timely new dual biography, FDR and Chief Justice Hughes: The President, the Supreme Court and the Battle Over the New Deal (Simon & Schuster), law professor and historian James F. Simon tells the story of these two dynamic, visionary American leaders from opposing political parties.  

Prof. Simon places each man in the context of the time and sets the scene for their collision on the Court’s role. Before he became president, the deft politician FDR honed his skills as a lawyer, state legislator, assistant secretary of the Navy, and governor of New York. Hughes, a Republican progressive and brilliant legal thinker, had also served as governor of New York, as well as U.S. secretary of state and associate justice of the Supreme Court before his appointment as chief justice. He also was nearly elected president in 1916. As Prof. Simon writes, both FDR and Hughes continued to respect one another even at the height of the Court-packing controversy.

Prof. Simon is Martin Professor of Law Emeritus at New York Law School. He is the author of seven previous books on American history, law and politics, including two other books on American presidents and chief justices: Lincoln and Chief Justice Taney: Slavery, Secession, and the President’s War Powers and What Kind of Nation: Thomas Jefferson, John Marshall, and the Epic Struggle to Create a United States. He lives with his wife in West Nyack, New York.

Dean Simon recently talked by telephone from New York about his new book and its resonance for issues now faced by the president and the Court.

 


 

What inspired you to write a dual biography of Franklin Roosevelt and Charles Evans Hughes? Did it grow out of your past work?

It did. About fifteen years ago, I had decided to do books on American presidents and chief justices at critical times in American history.  I did the research, and I limited my studies to Jefferson and Chief Justice Marshall, Lincoln and Chief Justice Taney, and FDR and Chief Justice Hughes.  I wrote about Jefferson and Marshall in What Kind of Nation, which came out in 2002 and was very well received. That encouraged me to do the second book on Lincoln and Taney. And finally, I got around to FDR and Hughes, which is the most dramatic of the three. 

How did you decide to cast the book as a dual biography?

I did a previous dual biography, The Antagonists, about Justices Hugo Black and Felix Frankfurter, before my three books on the presidents and the chief justices. First, I think it’s dramatic to juxtapose the lives and conflicts of two American leaders. Second, with a dual biography, you’re more prone to be objective. You don’t tend to attach yourself to one life, to become enamored of your subject as biographers of a single subject tend to do. It is more difficult to do that with a dual biography.

You point out many similarities between FDR and Hughes. Hughes, a Republican, shared many of FDR’s progressive views.

They were both progressive politicians even though they were in different parties. And both were reform governors of New York. Hughes had a progressive agenda as governor. First, he was a very strong civil libertarian. Second, he did believe in government regulation of private utilities. He also was willing to challenge the entrenched bosses in the state legislature by promoting his reforms. And FDR essentially followed in Hughes footsteps when he was governor of New York.

They also had in common their personal background in the sense that they were both only children of doting parents and both were Ivy League-educated.

But the differences were also quite interesting. Roosevelt grew up in a gilded existence in Hyde Park on a beautiful estate, and he had tutors and servants. He went to Groton, a rich boy’s prep school. He and his family vacationed in Europe most summers. So it was a luxurious childhood, whereas Hughes was the son of an itinerant Baptist preacher in upstate New York and [his family] was of modest means. He was a prodigy and had a photographic memory. He was tutored by his parents and self-educated. He was elected to Phi Beta Kappa at Brown in his junior year, graduated at the top of his class at Columbia Law School, and recorded the highest grade on the New York bar exam. He then became a brilliant lawyer and investigator of corruption and mismanagement in the utilities and insurance industries.

In contrast, Roosevelt was an indifferent student at Harvard and Columbia Law School. After passing the New York bar, he was an uninspired young lawyer. He had not yet found his true calling, which was politics. He ran for the state legislature at the age of 28 and showed even then the talent of one of the greatest politicians in our history. Even though he came from a very wealthy background, he demonstrated an extraordinary ability to communicate with ordinary people. 

Roosevelt was sworn in as president in 1933, and immediately took bold steps to lift the country out of the Great Depression. That’s where the clash came. Hughes was by then chief justice, and he had to deal with a polarized Court, not unlike the Court today, and that Court struck down a number of New Deal statutes, which infuriated Roosevelt.

Some readers will be surprised by Hughes’ political accomplishments. He not only ran for president as a Republican in 1916, but he was almost elected over Woodrow Wilson.

Yes. With four thousand more votes in California, he would have been president. In that campaign, he showed that he was not a natural politician. He was very stiff on the stump, in contrast to Roosevelt who excelled in public speaking and was a natural campaigner.

And Hughes served as an effective secretary of state under President Harding with many accomplishments, including the Disarmament Conference of 1921.

Hughes convened the Disarmament Conference in 1921 with the great naval powers -- the United States, Great Britain and Japan -- and he was able to negotiate a treaty in which all three nations dramatically reduced the tonnage of their warships. That had never been done, and it was a great triumph for him. He was a excellent secretary of state.

Even in the most tense periods of their relationship—when the Court struck down New Deal laws and FDR was openly angry—it seems FDR and Hughes always respected one another.

It’s very clear that Roosevelt respected Hughes. When Roosevelt first ran for the New York legislature, he declared that Hughes’s progressive record as governor was outstanding. Before Hughes administered the presidential oath to Roosevelt in 1933, the two men exchanged letters expressing their respect for each other. Roosevelt told Hughes that he had long admired his public service. Hughes responded graciously and said he looked forward to their association “in the great American enterprise.”

Why did the Court strike down various New Deal statutes and what was Chief Justice Hughes role?

The first major anti-New Deal decision was in 1935 when the Hughes’ Court struck down the National Industrial Recovery Act, basically the foundational legislation to spur the industrial economy. Hughes wrote the opinion for a unanimous Court, which is often forgotten. He brought together the four ideological conservatives known as “The Four Horsemen,” as well as the liberal justices: Brandeis, Cardozo and Stone. He wrote that the Congress had delegated too much authority to the president, and that in promulgating this law, they had exceeded their power to regulate interstate commerce.

In a second major decision, the Court struck down the Agricultural Adjustment Act which, like the National Industrial Recovery Act, was a pillar of the New Deal. The AAA was passed to spur the agricultural economy. This time the Court was divided. In a 6-3 decision, The Court struck down the AAA, and [the majority] included Hughes and Justice Owen Roberts, who were considered non-ideological centrists. The majority ruled that the Congress had exceeded its power to spend for the general welfare, declaring that the regulation of agricultural production resided with the states. The liberal dissenters were very critical of this decision.

Can you talk about Roosevelt’s reaction to the anti-New Deal decisions and his thoughts on reforming the Supreme Court?

Roosevelt had been eyeing the Court warily since these anti-New Deal decisions in 1935 and 1936. He had been privately brooding and trying to find a way to persuade the Court not to thwart the popular will. He thought the American people were clearly in favor of this legislation. 

When he was re-elected by a landslide in 1936, he decided to act. He proposed what he called a “Judicial Reform Bill” that he said would give new energy to the Court. It would have allowed him to appoint a new justice for each sitting justice over seventy years old. It turned out that six justices, including Chief Justice Hughes, were over seventy. Had the bill passed, Roosevelt would have been able to add six justices, making a total of 15.

Hughes wrote a letter to the Senate Judiciary Committee and said that the Court was abreast of its calendar. The justices knew how to do their work, Hughes said, and were doing it very well. After that letter was made public before the Committee, the air came out of Roosevelt’s plan, and it was defeated. Most people gave the Hughes’ letter great credit for the rejection of what was then termed Roosevelt’s Court-packing plan.

It seems that Hughes’ letter was a watershed moment in American legal history.

Roosevelt said he lost the battle but won the war. Hughes, I think, not only won the battle over the Court-packing plan, but he also won the war by protecting the integrity of the Court from a powerful and popular president. It was true that within three years, Roosevelt was able to appoint five new members to the Court, which then rejected every challenge to New Deal legislation. But that would have been true even had he not proposed his Court-packing scheme.

After the Court-packing plan failed, the Court sustained the New Deal measures that came before it -- yet it didn’t overrule the earlier anti-New Deal decisions. How were the later acts found constitutional in the face of the earlier cases?

Beginning in 1937, the Court gave broader authority to Congress than the conservative majority was willing to do in the anti-New Deal decisions. Hughes wrote an extremely important decision in 1937 which gave broad authority to regulate interstate commerce as long as there was a close and substantial relation of the activity within a state to interstate commerce. Hughes led the Court into the modern constitutional era in which the Court was deferential to Congress on economic and social legislation but was much more careful in protecting individual civil rights and liberties. Those are the hallmarks of the modern Supreme Court since 1937.

Although not overruled, isn’t the precedential value of the anti-New Deal decisions very limited now?

Yes, and it’s particularly relevant today as the Court deliberates over the Affordable Care Act and is looking at Congress’s authority to regulate interstate commerce.

Even though the Court did not overrule those earlier decisions, they nonetheless from 1937 to 1995 were deferential to Congress in finding economic and social legislation constitutional. In a couple of cases, one in 1995 and one in 2000, the Court found that the Congress had exceeded its authority under the commerce clause. But both of those cases, as pointed out in Justice Kennedy’s concurring opinion, involved noneconomic activities and were within the prerogative of the locality or the state. One had to do with the possession of guns around a public school and the other dealt with the effect of the Violence Against Women Act. Both congressional actions were struck down.

But the Affordable Care Act is more in line with the precedents going back to 1937 with an activity which is clearly economic and clearly dealing with a national economic problem. I think the precedents are very much in favor of the Roberts Court sustaining this statute. That doesn’t mean the Court will do so. You could tell that the questioning [during oral argument] by the most conservative members of the Court was very hostile to the Solicitor General’s argument; they aggressively challenged him. Certainly, if they strike down the health care law and it’s five to four with the five Republican appointees voting to strike it down and the four Democratic appointees voting to uphold it, we won’t have seen anything like that since the New Deal days. 

We haven’t seen such a partisan division of the Court since 1937. There were truly four ideological conservatives on the Court in the early 1930s, as there are today, [but] the difference is that the chief justices are different. Chief Justice Hughes was a centrist who came from a progressive background, and, although a Republican, he came out of the progressive wing of the Republican Party, whereas Chief Justice Roberts is an ideological conservative fully embedded in the conservative wing of the Republican Party. And whereas Hughes tried to bring the two sides together and sometimes successfully, Roberts has consistently aligned himself with the most conservative members of the Court on the most polarizing issues of the day, such as campaign finance reform in Citizens United. He has not been shy about voting with the ideological conservatives.

Hughes looked to the Court to be above partisan politics, and he went out of his way to make it so. He discouraged decisions that would appear to be politically partisan. We’ll have to see what happens with the Roberts Court and the health care law.

President Obama recently said that, if the Court finds the Affordable Care Act unconstitutional, that would be the result of judicial activism. And then a federal judge in Texas has asked the Department of Justice to submit a memo to the president that states that the federal courts have the authority to declare congressional acts unconstitutional.

I suspect that judge was doing a bit of grandstanding. It’s not a major judicial development. He cannot demand a response from the Justice Department to the president of the United States. He might get one, but the president doesn’t have to respond to him. He’s just playing to the gallery.

It’s a very polarizing issue and the president invited it to some extent by calling out the Court before its decision by saying, if the justices strike down this law or even a part of it, they’re going to be categorized as an activist Court, and I think he’s right. Usually presidents, even FDR, wait for the decision to come down before they attack the Court, but President Obama anticipated a decision, and that’s very unusual. That’s probably what got that judge in Texas riled up.

The president has made statements publicly when he thinks the Court has been out of line. You will recall his State of the Union address in 2010 with the justices in front of him when he criticized the Citizens United decision for opening the floodgates to special interests, and it turns out he’s right. That doesn’t necessarily mean the decision was wrong, but it’s changed the political environment.

This may not be a fair question, but if you can speculate, where do you think Charles Evans Hughes would come down on Citizens United and the Affordable Care Act cases?

I can’t answer on Citizens United, because the Hughes Court did not deal with any issue like campaign finance reform.

On the health care law, I think Hughes would find the law constitutional based on his opinions and votes in challenges to Congress’s authority to regulate interstate commerce from 1937 until his retirement in 1941. Beginning with his opinion in the 1937 decision, NLRB v. Jones & Laughlin, he took a very broad of Congress’s authority to regulate interstate commerce and he consistently voted in favor of upholding congressional economic and social legislation from 1937 and until his retirement in 1941. I would say, to be consistent with his opinion and his votes, he would uphold the Affordable Care Act. 

And Hughes cared about projecting an image of the Court as being impartial and above politics. I think he would have hesitated before voting with the four most conservative members of the Court, which would project political partisanship. So I think Hughes would be in favor of upholding the Act.

What did you learn about the last meeting between Hughes and FDR in June 1941 upon Hughes’s retirement?

They were primarily talking about Hughes’s successor. Hughes told FDR that he should nominate Associate Justice Harlan Fiske Stone, a Republican, to be chief justice. Roosevelt agreed with him. This was just before [the American entry into] World War II, and the idea of bipartisanship was certainly on Roosevelt’s mind.

When Hughes retired, Roosevelt wrote him a heartfelt letter truly regretting that Hughes was retiring. He respected Hughes greatly, and their friendship endured after Hughes’ challenge to the Court-packing plan. I don’t think they saw each other again after Hughes retired.

Hughes was at Roosevelt’s funeral as shown in the last photograph in my book. It shows Hughes very distraught over the death of Roosevelt, which suggests both respect and affection for the man he had challenged in 1937.

Hughes should rank among the greatest chief justices in history, after John Marshall and Earl Warren. He was not only a great judicial craftsman and a great lawyer, but also an effective leader of a polarized Court. He survived the Court-packing battle and remained leader of the Court even after Roosevelt appointed five new justices to the Court who were loyal New Dealers. That’s quite a tribute to Hughes’ leadership.

You’re a renowned law professor and you’ve written narrative histories that have been praised for their storytelling and readability. How did you decide to write history in addition to your work as a law professor?

I was a writer before I became a law professor. I was a journalist and wrote the law section for Time Magazine. And I worked for the St. Louis Post-Dispatch before that. That may have helped me in writing about law for a general reader, all before I became a law professor.

And I’ve always been interested in history. I majored in history in college and I teach constitutional law and history. It was natural for me, after I became a constitutional law professor, to look to subjects for books that involved constitutional history and politics. I’m also interested in the human dynamics in how justices decide cases. This book on FDR and Chief Justice Hughes gave me a wonderful opportunity to delve into all three: law, politics and the human dynamic in making our constitutional law.

Do you have any other thoughts on what you hope readers will take away from this story of FDR and Charles Evans Hughes?

There are clearly lessons to be learned for today as we await the decision on the health care law, but I think the FDR-Hughes story is important in itself as a great story about two remarkable American leaders.


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