The Second Hughes Court
Precedent to presidential court-packing threats
What to do when there’s no Dan Quayle news for Jack Hughes to riff on? Knowing him, he could either draw a surprising pop culture parallel or burrow deep into a historical rabbit hole. Hughes clearly chose the latter in this deep dive into how the Supreme Court helmed by Charles Evan Hughes (no relation) responded to FDR’s court-expansion threat — and how that could play out today.
By Jack Hughes
It likely won’t surprise readers to learn I’m a lifelong fan of the American statesman and jurist Charles Evans Hughes. (While we aren’t related, we Hugheses do need to stick together.) A veritable giant of the twentieth century, considered the greatest president the United States never had, Hughes is criminally underappreciated today – or, at least, that’s what I’d assumed before I recently saw an encouraging augur.
By way of background, Hughes was a widely respected lawyer when he was tapped by Theodore Roosevelt to run for Governor of New York against newspaper baron William Randolph Hearst in 1906. He won. Hughes then declined William Howard Taft’s offer to be the vice-presidential nominee in 1908 to run for a second term in Albany. He won again. Two years later, Taft appointed Hughes to the Supreme Court.
Had Hughes’ career ended there it would’ve been impressive, but he was just getting started. Hughes would leave the Court in 1916 to become the Republican nominee for President and ended up just 3,773 votes shy of defeating the incumbent Woodrow Wilson. Hughes lost California by that small margin after purportedly ‘snubbing’ its governor, Hiram W. Johnson, who’d been Teddy Roosevelt’s running mate in 1912.
Out of office and off the Court, Hughes’ career might look to have been stalled – but in turned out he’d not yet reached the Everest in his career of Himalayas. Hughes was asked to run for president in 1920 but refused to let his name stand because his daughter had recently died of tuberculosis. Warren G. Harding got the nod instead and, after he was elected, appointed Hughes to be the U.S. Secretary of State in 1921.
If you think about the state of the world a century ago the U.S. had just emerged from the Great War as a new global power. Hughes had to deal with the aftermath of Wilson’s faltering League of Nations, the Treaty of Versailles, and an evolving world order that was further complicated by the founding of the Soviet Union. He excelled and successfully negotiated the world’s first multinational arms reduction treaty.
Hughes remained as Secretary of State for a full term, staying on under Calvin Coolidge after Harding died in office, but demurred when Coolidge asked him to stick around for a second term in 1925 and, later, refused an offer to take up the post again under Herbert Hoover in 1928. He campaigned for Hoover but was done with party politics, leading some of his peers to say: “He’d rather be Hughes than be president.”
In 1930, Hughes’ patron Taft – the former president and sitting Chief Justice of the Supreme Court – was nearing the end of his eventful life. Hoover appointed Hughes to fill Taft’s seat, which surprised many given Hughes hadn’t been on the Court in almost fifteen years. Still, it was to be during Hughes’ term as Chief Justice that his legacy was firmly cemented and, for the purposes of today’s column, our real story begins.
Given that Republicans had been in the White House for three terms, it makes sense that there was a conservative majority on the Hughes Court. It wasn’t a major issue when Hoover was in office, but it became a big problem when Franklin Roosevelt came to power in 1933. FDR would be increasingly frustrated with the Hughes Court after it repeatedly struck down successive New Deal ideas as being unconstitutional.
FDR’s mood didn’t improve when he felt ‘snubbed’ at the start of the 1936 Court term when Hughes didn’t call on him at the White House. (Hughes’ biographer, the amazingly named Merlo J. Pusey, rebutted this claim – but recalling the earlier ‘snub’ of Hiram Johnson in 1916 one might discern a pattern.) It’s not for nothing that the earlier President Roosevelt had famously nicknamed Hughes the “bearded iceberg.”
To counter his numeric disadvantage on the Court, Franklin Roosevelt had an idea that’s recently been revived and received lots of press during the 2020 campaign – increasing the number of judges. Even amid the flurry of bold initiatives FDR had introduced to combat the Great Depression it was a brazen idea, and it proved a heavy lift even for a strong president whose party controlled both halves of Congress.
Hughes publicly opposed the plan in as tactfully a non-partisan way as he could, and residual momentum for it ebbed when his Court suddenly and surprisingly reversed itself and upheld FDR’s minimum wage law. In his epic two-volume biography of Hughes, Pusey quotes the Chief Justice as writing “in defence of the Court’s integrity” that Roosevelt’s court-packing proposal “had not the slightest effect on our decision.”
In short succession the Hughes Court then issued a series of decisions upholding other Roosevelt Administration priorities including the National Firearms Act, the collective bargaining provisions of the Railway Labor Act, and the National Labor Relations Act. Without a foe to fight, FDR’s continued push to pass his proposal failed with Vice President Garner final verdict: “You are beat, you haven’t got the votes.”
Fast-forward 85 years to when Donald Trump replaced legendary liberal Ruth Bader Ginsburg with the conservative newcomer Amy Coney Barrett. As her confirmation hearings progressed in tandem with the presidential campaign, outraged opponents began to promote the idea that, if elected, Biden should revive FDR’s initiative and commit to increasing the size of the Court. They argued adding justices was justified.
For his part, Biden remained assiduously non-committal – angering both progressive proponents and Republican strict-constructionists. Once in the Oval Office, though, Biden created a Presidential Commission on the Supreme Court to look at, inter alia (pompous Latin for ‘among other things’), the size of the Court. The Commission was given 180 days, meaning that it has to report back to him no later than October 2021.
All this set the stage for a series of surprising decisions from the current Supreme Court – a Court which has more Republican-appointed conservative judges than the 1936 Hughes Court. In the past month or so, the Roberts Supreme Court has upheld Obamacare, revived an excessive force lawsuit filed against police in St. Louis, and also ruled in favor of a transgendered student barred from using a high school bathroom.
If asked, I’m sure Chief Justice John Roberts would echo his predecessor and say the president’s plan had not the slightest effect on the decisions. Still, Roberts has spoken about his admiration for Hughes and, on the court-packing issue in particular, noted how skillfully and successfully he led “a very unpopular Supreme Court through that high-noon showdown.” Court-packing is being sent packing by the Court once again.
Jack Hughes is a communications consultant based in Canada. His previous contributions to The Experiment include “Same of Thrones,” “Tippecanoe and Agnew Anew,” “Harris / Shuri 2020,” “Bidenfeld,” “Firth and Firthiness,” “The Ballot of Bill McKay,” and “The World Wants ‘The West Wing,’” among others. His inexplicably extensive writings on Dan Quayle are “The Unusual Suspect,” “The Unusual Suspect II,” “The GOPfather,” “Porqua, CoQau?” and “Quayle’s Hunting Season.” Connect with him on LinkedIn here.
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