Lawyer, reformer, governor, secretary of state, presidential candidate, and twice a member of the U.S. Supreme Court—once as an associate justice and once as chief justice—Charles Evans Hughes played a major role in twentieth-century American jurisprudence. Remembered primarily as the man who led the Court through the constitutional crisis of 1937, Hughes was not a profound thinker, but he was extremely systematic in his thought. While economically conservative, Hughes nonetheless had a deep sympathy for the oppressed and for civil liberties.
Two main themes marked Hughes’s jurisprudence. First, he believed in enhancing the power of state and national governments to deal with the economy. Although in the 1930s he occasionally voted against this belief, over the course of his two different tenures on the Court it remained a consistent motif. Second, he wanted to give substance to the restraints imposed by the Constitution in order to protect the rights of individuals.
During his first term on the Court (1910–1916), he wrote the opinion in Bailey v. Alabama (1911) striking down the South’s peonage system, by which blacks could be condemned to a near slave-like bondage through manipulation of debt laws. His solicitude for personal rights also manifested it self in Truax v. Raich (1915), in which he spoke for the Court in voiding an Arizona statute limiting the number of aliens a single employer could hire. Although he normally deferred to the legislature in matters of economic regulation, in this case he found the law a blatant form of discrimination against aliens, depriving them of the constitutional ‘‘right to work for a living.’’
Hughes wrote one of the earliest decisions retreating from the Court’s endorsement of segregation in Plessy v. Ferguson (1896). He wrote for a bare majority of the Court in declaring unconstitutional an Oklahoma statute that provided for luxury cars for whites, but none for people of color. Even if only one Negro wanted such an accommodation, Hughes wrote, the railroad had to provide it; if the Plessy formula were to be kept, the accommodations, while separate, had to be equal (McCabe v. Atchison, Topeka & Santa Fe Railway Co. ).
Hughes left the Court to run unsuccessfully for president on the Republican ticket in 1916, and then returned to New York to open a private law practice. His concern for civil liberties remained, and in 1920, on his own initiative, he volunteered his services on behalf of five elected New York assemblymen who had been denied their seats because they were Socialists. Although unsuccessful in the atmosphere of the red scare hysteria, the gesture nonetheless would be counted an important step in helping to build a civil liberties consciousness in the country.
Named by Herbert Hoover to be chief justice in 1930, Hughes’s record on civil liberties is mixed, although for the most part the pro-liberties opinions contributed greatly to a new jurisprudence of rights that would emerge in the 1950s and 1960s. In fact, his appointment to replace Taft reversed a five-to-four majority in a pending case, and established an important doctrine in press clause jurisprudence.
The Minnesota legislature had authorized suppression of ‘‘malicious, scandalous and defamatory’’ newspapers, and Jay Near, the editor of the Saturday Press, had challenged the law as a violation of his press freedom. Taft had been willing to uphold the law, but when Hughes took over he voted with the four dissenters, and in his opinion in Near v. Minnesota (1931), established two basic principles. First, the press clause of the First Amendment applied to the states through incorporation by the Fourteenth Amendment, and second, there could be no prior restraint by the state on what newspapers published.
That same year, in Stromberg v. California (1931), Hughes wrote the Court’s opinion voiding a state law prohibiting the flying of so-called provocative flags or symbols. Harry Kalven, Jr. called the decision ‘‘the first case in the history of the Court in which there was an explicit victory for free speech.’’
A majority of the Court, however, continued to regard governmental power superior to individual rights in a number of areas. In 1934, with Hughes dissenting, the majority rejected the appeal of a religious conscientious objector who had been denied citizenship because his pacifism would not allow him to swear that he would take up arms for his new country (United States v. Macintosh ). A few years later a unanimous Court upheld the right of the state to require compulsory officers training among male students at state universities (Hamilton v. University of California Regents ).
In the mid-1930s, Hughes and the Court were embroiled in the conflict between Congress and the President on the one hand trying to enact reform legislation, and the five-man conservative majority on the Court voting to nullify such legislation, all leading up to the Court-packing plan and constitutional crisis of 1937. After that the battle had been won, and the Court no longer struck down economic regulation.
In his last years as chief justice, Hughes and the Court began to pay more attention to the questions of civil rights and liberties that would constitute the bulk of the Court’s agenda for the next three decades. In an otherwise obscure case, United States v. Carolene Products Co. (1938), Justice Stone, in an opinion joined by Hughes, put forward the notion that courts had to apply a stricter scrutiny to matters involving rights and/or minorities. In De Jonge v. Oregon (1937), the Court unanimously overturned the conviction of a man for doing no more than attending a Communist Party meeting. In Herndon v. Lowry (1938), the Court for the first time overturned a conviction for allegedly illicit speech, claiming that the nature of the speech did not constitute a clear and present danger.
In the 1930s, the National Association for the Advancement of Colored People (NAACP) began its campaign to eliminate segregation, and made a deliberate decision that the only way it could be successful would be by attacking racial prejudice through the courts. In the first major case to reach the Court, Chief Justice Hughes startled the South by insisting that if it wanted to keep segregated schools, then it would have to make them equal as well (Missouri ex rel. Gaines v. Canada )—an echo of what he had written nearly a quarter-century earlier in the McCabe case.
All told, for a man whose reputation is tied primarily to the constitutional crisis of 1937 and who is seen, properly, as a conservative, Charles Evans Hughes record on civil rights and liberties is important, not only for the decisions themselves, but also for the basis they laid in expanding civil liberties after his tenure.
MELVIN I. UROFSKY
References and Further Reading
Cases and Statutes Cited