Charles Evans Hughes - Supreme Court

Supreme Court

On April 25, 1910, Hughes was appointed by President William H. Taft to a seat as an Associate Justice of the United States Supreme Court vacated by David J. Brewer. Hughes was confirmed by the United States Senate on May 2, 1910, and received his commission the same day. As an associate justice of the Supreme Court from 1910 to 1916, Hughes remained an advocate of regulation and authored decisions that weakened the legal foundations of laissez-faire capitalism. He also mastered a new set of issues regarding the commerce clause and, in a deliberately restrained manner, wrote constitutional decisions that expanded the regulatory powers of both the state and federal governments.

The respective authority of federal and state governments under the Constitution's commerce clause had long been in dispute. In Cooley v. Board of Wardens (1852) the Court headed by Roger B. Taney had allowed the states, in the absence of federal legislation, to control those aspects of commerce that did not require a single national policy. However, more recent decisions, such as Weldon v. Missouri (1875), had curtailed the power of the states to tax or license out-of-state products or sales agents. Influenced perhaps by his experience as a state governor, Hughes authored a series of decisions that upheld state laws that affected—and, it might be argued, infringed on—congressional authority over interstate commerce. For example, invoking police power arguments, he upheld a Georgia statute requiring electric headlights on locomotives, including those engaged in interstate commerce.

The most important of these federalism-related decisions were the Minnesota Rate Cases of 1913. In these, Hughes enhanced state regulation of railroads by reviving the Cooley doctrine of "concurrent powers." To persuade his colleagues, Hughes composed a detailed and carefully argued opinion. He began with the generally accepted proposition that Minnesota and the other states had the authority, using their police powers, to regulate commerce within their bounds. He then extended this logic to include rate-regulation when such internal commerce was intermeshed with interstate traffic to towns in bordering states.

Even as Hughes expanded the regulatory power of the states, he took a nationalist stance with respect to the authority of Congress over commerce, including that within the various states. Thus, in the important Shreveport Cases of 1914, Hughes sustained a decision of the Interstate Commerce Commission voiding intrastate rates set by the Railroad Commission of Texas. The Texas rates encouraged the development of Dallas and Houston by blatantly discriminating against Texas shippers who marketed their goods via Shreveport, Louisiana. In striking down these rates as an interference with interstate commerce, Hughes recognized that the logic of his argument would permit federal regulation of any action that affected commerce. Thus, it might be used to challenge the sharp distinction made in United States v. E. C. Knight Co. (1895) between commerce, which was subject to federal regulation, and manufacturing, which was not. Reluctant to infringe upon precedent, he inserted language that sought to limit the decision's reach to railroad carriers: "the agencies of interstate commerce." By leaving Knight intact, the associate justice restricted the authority of the federal government over local businesses or factories whose raw materials or products were part of interstate commerce. Yet the logic of his argument pointed to the position he would espouse during the constitutional crisis of 1937.

In cases involving the controversial issue of anti-trust regulation, the Supreme Court was divided. The faction led by John Marshall Harlan and Rufus Peckham embraced a small-producer ethic and a fully competitive market; these justices used the Sherman Act's prohibition of "restraint of trade" to outlaw price fixing by businesses. A second group, headed by Chief Justice Edward D. White and Oliver Wendell Holmes, Jr., stood for "reasonable" market regulation, managed either by private agreements among producers (long permitted under common law) or by public administrative agencies. Preferring administrative regulation to the play of market forces, Hughes usually voted with White and Holmes in anti-trust cases.

In three other sets of cases, Hughes also authored opinions that bolstered the regulatory powers of state legislatures and administrative bodies. In the first line of decisions, he gave a narrow interpretation to the "contract clause" of the United States Constitution, which prohibits states from enacting any law "impairing the obligation of contracts." Refusing to give a literal reading to the state-granted charter of the Southern Pacific Railroad, which specified that the company could "collect and receive such tariffs ... as it may prescribe, Hughes contended that this clause "necessarily implies that the charges shall be reasonable and does not detract from the power of the State ... to prescribe reasonable rates."

In a second set of opinions, Hughes favored regulation over certain claims of individual rights. Thus, in Wilson v. U.S. (1911), he asserted that corporate officers could not resist a subpoena for company records by invoking the Fifth Amendment's privilege against self-incrimination. This decision made corporations more vulnerable to prosecution by limiting the rights of individuals as delineated in Boyd v. U.S. (1886). The Court's reasoning in Boyd had extended "the personal security of the citizen" guaranteed by the Fourth and Fifth Amendments to include an individual's personal papers. Sensing danger to Boyd's broad definition of individual rights, Justice McKenna dissented in Wilson, declaring that Hughes's distinction between personal and corporate papers was "a limitation by construction" on an important "constitutional security for personal liberty." For his part, Hughes was unwilling to construe individual rights so that they frustrated the government's efforts to achieve a legitimate regulatory goal.

In a third set of pre-1916 cases, Hughes addressed the laissez-faire doctrine of "liberty of contract." Using this legal principle, many judges in Britain and the United States had voided, as an infringement of an individual's property rights, legislation that regulated common law bargains made in the marketplace between employers and their workers. But in a seminal article of 1881, "Liberal Legislation and Freedom of Contract," the Oxford political philosopher Thomas Hill Green disputed this reasoning. Green pointed out that the British Factory Acts had already limited the liberty of industrial capitalists and that legislation requiring compulsory schooling had circumscribed the freedom of parents. Extending the logic of these measures, Green adumbrated a positive and collectivist definition of liberty, a concept of "public freedom" that justified legislative oversight of economic life, especially land ownership and use. He likewise proposed legislative intervention into the terms of private bargains, to "provide against contracts being made which, from the helplessness of one of the parties to them, instead of being a security for freedom, become an instrument of disguised repression." Picking up this line of argument and declaring "a great departure from the principles of free contract," Gladstone created an Irish Land Court with complete control over rents and other landlord-tenant issues. Two decades later, Churchill and other New Liberals regularly invoked Green's arguments in parliamentary debates over English legislation.

Similar arguments appeared in the United States. In an article in the Columbia Law Review in 1908, Roscoe Pound of the University of Chicago mounted a vigorous attack on "mechanical jurisprudence," the judicial practice of "rigorous logical deduction from predetermined conceptions in disregard of ... the actual facts." Citing Lochner v. New York, the controversial decision of 1905 upholding freedom of contract, Pound assailed the Supreme Court for giving "us rules which, when applied to the existing commercial and industrial situation, are wholly inadequate." In 1909 Pound continued his assault on conceptual thinking in an essay on "Liberty of Contract." Focusing upon Adair v. U.S. (1908), which invalidated another law regulating labor contracts, he berated the Court for not recognizing the "practical conditions of inequality."

The central problem, Pound argued, was that the legal system "exhibits too great a respect for the individual" and "too little respect for the needs of society." Pound came to this position partly through long debates with his former colleague at the University of Nebraska, the rising sociologist Edward A. Ross. "We have grown into an organic society," Ross argued, "in which the welfare of all is at the mercy of each." The two men continued their dialogue when Ross moved to the University of Wisconsin, where he became a colleague of Richard Ely. Influenced like Pound by German social and legal thinkers, Ely in 1903 had ascribed "the coercion of economic forces" in American society "to the unequal strength of those who make a contract."

Hughes undoubtedly was aware of these intellectual currents. There is no evidence that he was directly influenced by T. H. Green; however, he knew Ely through the AALL and had probably read Pound's essays. Whatever the precise links, the associate justice wrote opinions that mirrored the arguments of the Oxford philosopher of "positive liberty" and the sociologically inclined Midwestern professors. "Freedom of contract is a qualified and not an absolute right ...," Hughes declared in upholding an Iowa law that voided contracts limiting the legal rights of railroad workers: The state may "interfere where the parties do not stand upon an equality...." Using similar reasoning, the associate justice upheld a California law that mandated a forty-eight-hour work-week for women in various industries and allowed a federal statute to override a contract between an interstate railroad and its employees. Finally, Hughes joined Justice Day's dissent in Coppage v. Kansas (1915), a case in which a majority of the Court struck down a Kansas law forbidding "yellow dog contracts" that prevented workers from joining a union. Citing the police power, Day and Hughes argued that a state could legitimately ban such contracts.

He wrote for the court in Bailey v. Alabama 219 U.S. 219 (1911), which held that involuntary servitude encompassed more than just slavery, and Interstate Commerce Comm. v. Atchison T & SF R Co. 234 U.S. 294 (1914), holding that the Interstate Commerce Commission could regulate intrastate rates if they were significantly intertwined with interstate commerce.

On April 15, 1915, in the case of Frank v. Mangum, the Supreme Court decided (7-2) to deny an appeal made by Leo Frank's attorneys, and instead upheld the decision of lower courts to sustain the guilty verdict against Frank. Justice Hughes and Justice Oliver Wendell Holmes, Jr. were the two dissenting votes.