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The Hughes Court and Constitutional Consultation Barry Cushman* Our conventional image of the Supreme CourtunderCharlesEvans Hughes callsto mind the riddle ofthe Sphinx: What creature walks on four feet in the morning, on two at noon, and on three in the evening? The answer with which Oedipus rescued the city ofThebes from areignofterrorwas, ofcourse, “Man”: he crawls on all fours in infancy, stands erect on two legs in adulthood, and leans on a staff in old age. The established story ofthe Hughes Court in verts the chronology somewhat, but the char acters arethe same. Inthe mid-1930s, the crotch ety Nine Old Men impetuously flouted the popularwill, evisceratingthe New Deal. Chas tened by the disciplining hand ofa stem presi dential father figure in 1937, a repentant Court was “reborn,” then blossomed into beautiful but uncertain youth under Harlan Fiske Stone and Fred Vinson, and grew into mature adult hood under Earl Warren. The storyhas its charm, and a certain simple elegance. It has for many years captured the imaginationofa greatmany extremelyable and distinguished scholars. In my own impetuous youth I have come to conclusions that differ fromtheirs. ButI will notbelaborall ofmy rea sons forreaching those conclusions here, for it is not my immediate objective to convert you to my view of the matter. I ask only that you suspend disbelief. Forget for a moment, ifyou will, thatthe Justices invalidatedNew Deal ini tiatives because they thought them unwise social policy; forget that they laterupheld fed eral regulations only because the Court-pack ing plan put the fear of God into them; forget that they continued to do so only because they had seen the light. Forget that the Court’s role under Hughes was entirely reactive: first ob structing, then surrendering to, the political branches. This will, ofcourse, be disorienting. But ifall ofthis forgetting has not already ren dered you unconscious, it may enable us to see the Hughes Court and its role in the New Deal saga in a new light. 80 JOURNAL 1998, VOL. I Franklin Delano Roosevelt was the great est politician of his age. But he was not the greatest constitutional lawyer. For example, he had rather unorthodox views on questions of the separation ofpowers. Early in his first term, the President approached ChiefJustice Hughes and suggested that the two ofthem form a sort of consultative relationship. As one contem porary accounthas it, Roosevelt “intimated that he would like to talk over with the ChiefJustice all his important plans concerning the general welfare, to get the Court’s slant on them before acting.”1 Article III, Section 2 ofthe Constitu tion provides that the judicial power of the United States shall extend only to certain speci fied cases and controversies; and the Supreme Court had first declined a presidential request for an advisory opinion in George Washington’s second term, when the first Presi dent had sought counsel on specific questions ofinternational law.2 Hughes similarly demurred to Roosevelt’s overtures, informing the Presi dent that ‘“the Supreme Court is an indepen dent branch ofgovernment.’”3 As one account puts it, “he turned the President down flat.”4 Roosevelt related this story while defending his Court-packing plan to a doubtful Senator. “You see,” the President sighed, “he wouldn’t co-operate.”5 There is, I suggest, no little irony in this defense of the effort to pack the Court. For in ways that Roosevelt apparently did not fully appreciate, but which others did, the Court was in fact cooperating with the political branches in seeking to formulate constitutional solutions to the economic crisis of the 1930s. I hope to illuminate this phenomenon by sketching a se ries of vignettes involving the fate of several Depression-eraprograms. Through these I hope to show that within the channels prescribed by Article III, and occasionally outside them as well, the Hughes Court offered the Roosevelt administration a distinctive form of consulta tive relationship. Senator Lynn Joseph Frazier (above) was one of the authors of the Frazier-Lemke Farm Debt Relief Act of 1934. The Act provided extraordinary relief to financially distressed farmers, allowing them to stay foreclosure proceedings for five years by paying a reasonable rental on the mortgaged land...
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