The First Justice Roberts

Thursday, July 21, 2005

The First Justice Roberts

If I am correct, confirmation of John Roberts would mark the fifth time two Supreme Court justices have shared the same surname. Two of the previous four pairs consist of notable figures in the Court's history, one was pretty nondescript (though long-serving), and the other had one of the greats paired with one of the footnotes.

As for the Roberts pair? Justice Owen Roberts was far from the best of his time--he was on the Court with, among others, Oliver Wendell Holmes, Benjamin Cardozo, Felix Frankfurter, Charles Evans Hughes, Louis Brandeis, and Robert Jackson (damn, they had good judges in those days)--but he played a decisive role in perhaps the greatest crisis in the Court's history.

But first, the other four pairs.

Chief Justice John Marshall and Justice Thurgood Marshall. John Marshall would be on almost anyone's list of the greatest justices the Court has ever known, and I suspect that he would be the majority choice among constitutional scholars as the greatest chief justice. Even today, we lawyers know so many of his memorable phrases by heart. If you go to the Supreme Court building, you will find a large statue of John Marshall on the ground floor, and you will see many of those great phrases set into the wall. He personally wrote the decisions in the cases that definitively interpreted the basic constitutional framework governing the role of the different branches of government and the relationship between the states and the federal government. In terms of historical importance, they don't get any bigger than John Marshall. Thurgood Marshall was also of tremendous historical importance, though the question whether he was a "great" justice is not the matter of consensus it is with John Marshall. He was of course the first African-American justice, and he served on the Court for a quarter of a century, during a tumultuous period that included the Court's expansion of protection for criminal defendants, the Nixon tapes case, Roe v. Wade and most of the controversial cases on contraception leading up to it, the Bakke affirmative action case, and more. Of course, the Court was also grappling with school desegregation over that period, and Marshall deserves much of the credit for that--not so much as a justice, but as an outstanding and dogged advocate before the Court for several decades, with his victory in Brown v. Board of Education as the high point. It will be tough for any pair of namesakes to top the Marshalls.

Justice John Marshall Harlan and Justice John Marshall Harlan. A grandfather and his grandson whose names recalled the great chief justice. In a way, both had a connection to Thurgood Marshall as well. The second Justice Harlan served on the Court with T. Marshall; and his grandfather, the first Justice Harlan, is most well-known for his caustic and brilliant dissent in Plessy v. Ferguson, the case that said (simplifying) that segregation was constitutional--a dissent that was vindicated 60 years later when Brown v. Board of Education effectively (again simplifying) overruled Plessy. Though the Plessy dissent is his most famous opinion, Justice Harlan wrote many eloquent dissents in the post-Reconstruction period, notably in the Civil Rights Cases, as the Court's majority dismantled civil rights legislation and refused to use the new Equal Protection Clause to protect freed slaves from brutality and discrimination. His grandson was not as spectacular, but he was an excellent justice. At a time of considerable innovation and activism on the Court, he was the voice of moderation and restraint, dissenting from (for example) the contraception decisions. When he was on the Court, he was seen as a conservative, though on today's Court he'd be at most a swing voter and might even be regarded as on the "liberal" side of the Court's spectrum. His stock has risen since his death, as both conservatives and liberals have come to view his attempts to keep the judiciary out of politics as a valuable counterbalance to the Warren Court majority.

Chief Justice Edward Douglass White and Justice Byron White. Not nearly as illustrious as the previous two pairs. Edward Douglass White was a Confederate veteran and had been a staunch states'-rights, pro-business member of the U.S. Senate immediately before his appointment to the Court, but on the Court, he was a kind of mini-Harlan. During the infamous Lochner era, when the Court was striking down all kinds of state and federal regulation of business on constitutional grounds, White was with the dissenters; like the first Justice Harlan, he was eventually vindicated by history when the cases of his era were overruled, although the pendulum is swinging back in the other direction now. Bryon "Whizzer" White (he hated the nickname, which came from his days as an All-America football player) was a Kennedy appointee who became one of the Court's conservatives, especially on social issues and criminal justice, though he was not with them on the "federalism" (states' rights) agenda. He was not highly regarded, being a sort of O'Connor (their time on the Court overlapped) who seemed not to have a well-developed jurisprudence involving any part of his anatomy other than his gut.

Justice Howell E. Jackson and Justice Robert H. Jackson. Howell E. Jackson, another Confederate veteran, contracted tuberculosis soon after joining the Court and died before making much of a mark on the institution. Robert H. Jackson, on the other hand, was one of the great justices, though he wasn't on the Court for terribly long either. Like some of the other justices previously mentioned, Jackson took the right stand when it wasn't popular, dissenting in Korematsu, one of the Japanese internment cases, during World War II. After the war, he took a leave from the Court to serve as the Chief U.S. Prosecutor at the Nuremberg War Crimes Tribunal. I've previously rhapsodized about his beautiful craftsmanship as an author of judicial opinions.

Justice Owen Roberts and Justice (?) John Roberts. Where will this pair fit into history? The first Justice Roberts was no John Marshall, nor even a John Marshall Harlan. But he was important. President Hoover appointed him, and he must have been kicking himself seven years later during FDR's court-packing crisis, as Roberts made "the switch in time that saved the Nine"--and saved the New Deal. From a fascinating first-person account of the events--if you think today's judicial nomination politics are bitter, and that the split of the two blocs in Bush v. Gore was extraordinary, you really should read the whole thing:

Hostility between the two blocs was inevitable and open; they even held intra-bloc "skull practice" regularly. The four conservative Justices rode in the same automobile to and from the Supreme Court building for oral arguments and for the Saturday conferences of all nine Justices at which the Justices decided the cases (in those days the Justices' offices were in their homes).

To compete with these regular get-togethers of the conservatives, the liberals began to meet at Brandeis's home on Friday evenings to plan their strategies for the Saturday conferences....

The balance of power, of course, lay with the other two Justices, Chief Justice Charles Evans Hughes and Associate Justice Owen Roberts....

Justice Roberts quickly became a fellow-traveler of the conservative four, with the Chief Justice swinging back and forth sufficiently to earn the sobriquet: "the man on the flying trapeze." The Court, in the hectic years of 1935 and 1936, invalidated Roosevelt's National Recovery Act, his Agricultural Adjustment Act, Railroad Retirement Act, Bituminous Coal Conservation Act, as well as other New Deal legislation and administrative actions. These decisions, plus the Court's ruling at the end of the 1935-36 Term invalidating the New York minimum wage law, not only killed the laws already considered but threatened those enacted but untested such as the Wagner Labor Relations Act, the Social Security Act, the Holding Company Act and bills on the drawing board, including a federal wage-hour-child-labor law.

Something had to be done if the New Deal was to be saved and expanded. Talk was in the air about constitutional amendments, including expanding the Commerce Clause of the Constitution; prohibiting less than two thirds of the Court from invalidating federal or state legislation; permitting a majority of the two houses of Congress to reenact a law invalidated by the Court without further Court review of the law; and making laws passed by two thirds of each House unreviewable.

Roosevelt's landslide reelection in 1936 settled the matter. He would act on the Court, but the constitutional amendment route was too slow for him. Shortly after the election, he referred publicly to Congress's power to enlarge the Court and gave out hints that the time for action on the Supreme Court front was not far off. Nevertheless, Justice Cardozo seemed considerably shaken when, in early February 1937, just three months after the election, he came into the little room in his apartment where I worked to give me the news of the Court-packing plan that President Roosevelt had just submitted to Congress. He said Roosevelt wanted to add a Justice for every one who did not retire after the age of 70, up to a maximum of six. Cardozo at once spoke of his opposition to the Court-packing plan, saying rather plaintively, "No judge could do otherwise." But, at least to me, there was no sign that his devotion to Roosevelt lessened one bit....

Roosevelt began preaching the need "to save the Constitution from the Court and the Court from itself" and stressing the importance of the New Deal legislative program and the importance of having it now. Roosevelt began gaining ground....

In any case, big goings-on occurred down at the Court. Shortly after Roosevelt announced his Court-packing plan, Roberts publicly switched to the liberal side on the validity of state minimum wage laws, providing a 5-4 majority for the constitutionality of such a law from the State of Washington. Many thought that the switch came as a result of FDR's proposal, but this hardly could have been the case. Roberts had cast his vote for the Washington law in conference before Roosevelt made his proposal. If Roberts were affected by any extraneous influence, it must have been the landslide 1936 election. While humorist Finley Peter Dunne's popular creation, Mr. Dooley, put the proposition most inelegantly when he stated "th' Supreme Court follows th' iliction returns," Roberts could well have been affected by the realization that F.D.R was speaking for the hopes and aspirations of the vast majority of Americans.

Whatever the reason for Roberts' switch in the minimum wage law case, another switch soon occurred of such magnitude in so important a case that its only possible explanation was the Court-packing plan. In 1936, the Court had ruled by a 6-3 vote in Carter v. Carter Coal Co. that Congress's power over interstate commerce was not broad enough to support federal regulation of labor conditions in the mines. In February 1937, just days after Roosevelt made his proposal for restructuring the Court, advocates argued the constitutionality of the National Labor Relations Act of 1935 before the Court. At the ensuing conference of the Justices, the vote was 5-4 to uphold the law, both Hughes and Roberts switching from their positions in Carter Coal. When Cardozo reported on the conference action during our ride home from the courthouse, he was elated by the switches. But about all that this kindly gentleman could bring himself to say in criticism was that he "considered it quite an achievement to make the shift without even a mention of the burial of a recent case." He did smile some time later when I told him the gag going around about "a switch in time saves Nine," but he never said anything like that himself.

When the decision upholding the Labor Act came down in April 1937, the anti-New Deal conservative bloc knew that the jig was up. "Every consideration brought forward to uphold the Act before us," McReynolds literally shouted as he read from his dissenting opinion, "was applicable to support the Acts held unconstitutional in causes decided within two years." Shortly after the decision, in early May, there was a knock on Justice Cardozo's apartment door: there was Justice Van Devanter asking to see Justice Cardozo. Minutes later, Cardozo brought me the news that Van Devanter was retiring. The judicial struggle against the New Deal was over.

Like Justice Owen Roberts, John Roberts is an anti-regulatory, states-rights kind of guy. Who knows if history will put him in a position to change American constitutional law with a timely change of mind? I should note that I don't think John Roberts wants to go all the way back to the Carter Coal days--unlike judges like Clarence Thomas and Janice Rogers Brown, not to mention a handful of loonies whom Bush might plausibly have nominated. But he does want to cut back Congress's regulatory power and continue the conservative bloc's effort to put some teeth back into Commerce Clause jurisprudence.

The first and second Justices Roberts will not displace the Marshalls as the most important pair of Supreme Court namesakes. But John Roberts is young, and Owen Roberts has given him a platform from which the pair should easily surpass the Whites, and potentially (though not likely) challenge the Jacksons and the Harlans.

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