This article is excerpted from the 49th annual Charles Evans Hughes Lecture delivered April 26 at the New York County Lawyers’ Association by former chief judge Judith Kaye.
Could there be a more serendipitous moment for a lecture named for Charles Evans Hughes? I think not. I’ll start with some confluences and anniversaries that make this lecture so especially well timed.
Just 150 years ago—April 11, 1862, to be exact—Charles Evans Hughes was born in Glens Falls, N.Y., to parents of modest means and high ideals. I feel especially fortunate to be giving this prestigious lecture on the 150th anniversary of the birth of one of the towering figures of 20th century America—brilliant lawyer and law teacher, dedicated public servant, governor of New York, secretary of state, narrowly defeated presidential candidate, justice and later chief justice of the Supreme Court of the United States. How on earth, I wonder, did he miss service in the Legislature—he covered everything else! And as he moved from post to post, in the interstices he filled his spare time with presidency of the New York County Lawyers’ Association, the New York State Bar Association and the American Bar Association, as well as founding the distinguished Hughes Hubbard law firm.
About Hughes, Learned Hand wrote, “Sure-footed time will tread-out the lesser figures of our day; but, if our heritage does not perish, the work of this man and his example will remain a visible memorial of one who helped to keep alive and pass on that ordered freedom without which mankind must lapse into savagery.”
Staying with anniversaries for the moment, it was 75 years ago that Chief Justice Hughes led the Supreme Court through the most serious challenge ever mounted to its exercise of constitutional power. By that, of course, I have in mind President Franklin Roosevelt’s court-packing plan, proposed in response to the court’s nullification of significant portions of the president’s New Deal legislation. President Roosevelt, by the way—like Chief Justice Hughes—was also a former New York state governor. They greeted one another as “governor.” But 75 years ago our nation’s “ordered freedom” (to use Judge Hand’s words) was at risk, as the president, Congress and Judiciary all sought to define and maintain their power and our democracy in the wake of the Great Depression.
How could one not be struck by the coincidence of this 75th anniversary with today’s banner headline constitutional confrontation? As we all know, the Supreme Court in March heard an unprecedented three days of oral argument in the matters collectively known as the “Obamacare cases,” challenging President Obama’s signature health care reform.
Pundits and scholars alike characterize these cases as a supreme constitutional moment, supreme in every sense, including the quantity and quality of discourse. I am for the first time thankful that arguments are not televised.
Outside the Supreme Court last month were nonstop protests for and against, a small brass band, a presidential candidate, activists signing autographs and mugging cameras, nonstop press, nonstop hyperbole ever since. Even a new Supreme Court-picking, if not a Supreme Court-packing, plan has been floated.
Indeed, NPR’s Nina Totenberg called the Obamacare cases a “constitutional Woodstock.” Commentators such as Robert Barnes of The Washington Post, Adam Liptak of The New York Times and Erwin Chemerinsky of the University of California Irvine School of Law were not alone in noting that the Obamacare cases presented the first time since the New Deal that a monumental domestic program proposed by the president and passed by Congress faced review by the U.S. Supreme Court.
They refer back, of course, to 1936, when the Hughes court struck down legislative requirements for the coal industry’s wages and hours, ultimately laying the groundwork for FDR’s court-packing plan, announced Feb. 5, 1937. As Dean Chemerinsky commented concerning the Supreme Court’s pending review of the Patient Protection and Affordable Care Act: “The potential consequences socially, legally and politically are enormous. The outcome could very well shape how health care is provided in this country for decades to come. If the court invalidates this law—and one of the issues is whether the entire act should be struck down—it will be the first time since the New Deal that a major federal regulatory statute has been declared unconstitutional. And there is little doubt that whatever the court decides could have an impact on the outcome of the November presidential election.”
Speaking in The Washington Post, Jeff Shesol, author of Supreme Power: Franklin Roosevelt vs. the Supreme Court, also noted how the Obamacare litigation parallels the Supreme Court’s consideration of the progressive New Deal legislation 75 years ago. Both addressed the scope of federal authority and how our national government is empowered to deal with national problems. In Shesol’s view, however, the stakes were considerably higher in Roosevelt’s time, and public opinion shifted overwhelmingly to endorse the necessity of the New Deal programs. He observed that the string of Roosevelt’s programs reviewed by the justices actually gave that Court a way to adjust to that new reality gradually over time.
I felt a particular twinge of concentricity a month ago, on March 29 to be precise, as I was working on these remarks. That was the very day, 75 years ago, that the Supreme Court announced 17 decisions, the last of them West Coast Hotel v. Parrish, 300 U.S. 379, shifting course and upholding, against Fourteenth Amendment due process challenge, the constitutionality of Washington state’s minimum wage law for female workers. It was in fact Chief Justice Hughes, a dissenter in the court’s earlier five-four cases striking down minimum wage laws, who announced the decision. In Parrish, Justice Owen Roberts (who had previously joined the “Four Horsemen” in striking down the laws) this time voted to uphold the law and tipped the balance the other way, thus furnishing the proverbial “switch in time that saved nine” and defusing a court-packing showdown.
Reportedly, just before Chief Justice Hughes announced the Parrish decision, dissenting Justice James McReynolds picked up his papers and simply walked off the bench. As I reflected on that scenario, my heart went out to New York state’s own great former Chief Judge Benjamin Cardozo, who in 1932 left the warm collegiality of the New York Court of Appeals for this raging fire storm at the Supreme Court. Those years until his death in 1938 could not have been his happiest.
While there have of course been countless other inter-branch clashes in the Supreme Court, the scope and timing of the Obamacare cases provide a unique snapshot of constitutional power battles. Next month will come the end of the Supreme Court’s current term, and likely the announcement of its resolution of these cases. We will know then how each of the branches fared, although it may be a while before we see the full impact of the decision.
The subject of constitutional clashes of power encompasses at least three areas: first, the legitimacy or inherent power of each co-equal branch of government; second, the separation, or distribution, of powers among the branches; and third, the division of power between the national government and the states, known as federalism.
I do not intend to elaborate on the third category—federalism—which could extend these remarks beyond your patience. Just think of cases like Baker v. Carr, Bush v. Gore—indeed the court’s historic opinion in Brown v. Board of Education—principally involving issues of the balance between state and federal governments, each with separate court systems and constitutions.
Indeed, I didn’t intend to linger on the first area either. As we all know, Marbury v. Madison definitively established the legitimacy, or inherent power, of the Supreme Court to review actions of the executive and legislative branches of the federal government. Even the most notorious and unpopular Supreme Court decisions—like Dred Scott—have not altered this basic acceptance of the idea of judicial review.
Inherent power of course includes as well the judicial branch’s authority to govern aspects of its administration necessary to assure its proper functioning, most notably the determination of funds adequate to support the courts. You surely appreciate my decision to pass quickly by the court-funding issue.
As mentioned, I didn’t intend to linger at all on this first area of inherent power, but then came the ruckus kicked up by President Obama’s recent comment during a highly publicized news conference that it “would be an unprecedented, extraordinary step [for the Supreme Court to over-turn] a law that was passed by a strong majority of a democratically elected Congress.”
Among other things, that provoked a demand from the Fifth Circuit in an unrelated case for a three-page single-spaced memorandum addressing the executive branch’s view of the judiciary’s power to review legislative acts, which the attorney general dutifully furnished. In his letter Attorney General Holder reaffirmed that “Where a plaintiff properly invokes the jurisdiction of a court and presents a justiciable challenge, there is no dispute that courts properly review the constitutionality of acts of Congress”—adding, notably, that “acts of Congress are presumptively constitutional.” End of story.
Charles Evans Hughes wisely revealed little of his personal thoughts and emotions during the constitutional crisis that entangled his court with the Executive and Legislative branches.
He did, however, express the view in his later autobiography that “the controversy had the good effect of revealing the strength of public sentiment in support of the independence of the court. That independence is not a vague, collective attribute; it means the actual independence of the justices. They are supposed to have shown at the bar or on the bench the learning, integrity and stability which will assure the expert, independent, and conscientious discharge of the supreme duty of maintaining the provisions of the organic law against either executive or legislative departures.”
In other words, whatever their personal views and experiences, and no matter how they came to their position, judges must be sensitive to, and protective of, separation of powers principles in all their ramifications and complexities. Imagine: in just a few sentences Chief Justice Hughes used some form of the word “independent” four times. Having no power over the sword or the purse, clearly the strength of the Judiciary lies in its independence and integrity. May this ever be so.
Preparing this lecture, reflecting on my former treasured life on the bench, I affirm Chief Justice Hughes’ sentiments in full.
As in the past, it is essential to our “ordered freedom” that our banner headline conflicts be approached by all sides with dignity, respect, cool heads, and a profound admiration for the constitutional distribution of powers at the foundation of our democracy. Hopefully, the current controversy will in retrospect also have the good effect of revealing the strength of public sentiment in support of the independence of the court.
I take this moment of anxious respite—as the ashes of public frenzy still smolder after the Obamacare arguments, and we prepare for the inevitable conflagration that will erupt with the court’s decision, whatever it may be—to reassert those time-honored principles.
Judith S. Kaye is the former chief judge of the New York state Court of Appeals and currently of counsel to Skadden, Arps, Slate, Meagher & Flom. Marjorie McCoy, former deputy clerk of the Court of Appeals, assisted in the preparation of this lecture.