The Jurisprudence of the Hughes Court: The Recent Literature

By Cushman, Barry | Notre Dame Law Review, May 2014 | Go to article overview

The Jurisprudence of the Hughes Court: The Recent Literature


Cushman, Barry, Notre Dame Law Review


C. Ross

Professor Ross's account of the development of constitutional doctrine under Hughes is for the most part well informed, careful, and judicious. He recognizes that "[r]ather than an instinctive bias in opposition to business regulation, the Court's willingness to second-guess legislatures and administrative agencies may have been a natural response to the constitutional uncertainties created by unprecedented governmental intervention in economic affairs." (312) He appreciates the fact that the Court's decision in Blaisdell did not, as many contemporary liberals hoped and conservatives feared, remove the Contract Clause as a constitutional restraint on state legislative authority. (313) Indeed, the often-overlooked fact that in three decisions rendered in 1935 and 1936 the Court unanimously invalidated statutes under that Clause made its continuing vitality abundantly clear. (314) Moreover, Professor Ross emphasizes that it is important to recognize, as some recent commentators have failed to do, that much of the New Deal presented " 'totally different constitutional problems'" (315) from those presented in Nebbia and Blaisdell, and that decisions invalidating subsequent federal legislation did not involve a retreat from the positions the majority had staked out in those cases.

Indeed, Professor Ross insists that

   [t]he actual holdings of the Court's 1935-1936 decisions ... did
   not wreak as much devastation upon the New Deal as is often
   supposed. The Court invalidated only 11 of the 2,669 statutes
   signed by Roosevelt during his first term, albeit all of the
   statutes that the Court nullified were high-profile laws. (316)

Title I of the NIRA, invalidated in A.L.A. Schechter Poultry Corp. v. United States, (317) "already had become a political embarrassment to the administration and ... was facing congressional termination even before the Court invalidated it." (318) The Frazier-Lemke Farm Debt Relief Act "was not actually part of the New Deal, and the Municipal Bankruptcy Act had little practical significance." (319) "Moreover," Professor Ross points out, "several of the statutes, particularly NIRA, suffered from such serious constitutional infirmities that even those justices who were ordinarily the most receptive toward regulatory legislation joined in opinions striking them down." (320) It was "[o]nly invalidation of the statutes regulating agriculture and coal mining and providing pensions to railroad workers [that] seriously impeded recovery and reform efforts, and even these decisions were rendered moot after 1937, when the Court upheld similar statutes that remedied the constitutional infirmities about which the Court had complained." (321) As Professor Ross understands, the Court's decisions in 1935 and 1936 did not erect insuperable obstacles to reform in these areas, but instead channeled congressional efforts into achieving those desired ends through means that were consistent with prevailing constitutional doctrine. (322)

The earliest example of this came with the Court's first decision invalidating a New Deal measure--Panama Refining Co. v. Ryan, (323) which invalidated the NIRA's petroleum code on nondelegation grounds. (324) As Professor Ross reports,

   [T]he case humiliated the administration because it graphically
   illustrated the chaotic administrative methods about which the New
   Deal's critics had so bitterly complained. During oral argument,
   Assistant Attorney General Harold M. Stephens revealed that the
   government had indicted and jailed violators of the ... code for a
   year before discovering that the code inadvertently lacked a penal
   section. Under questioning from astonished justices, Stephens also
   admitted that there was no general publication of executive
   orders prohibiting the transportation of "hot oil" and that they
   would be "rather difficult" to obtain. (325)

Even Justice Cardozo, who filed a lone dissent from the majority's opinion, "rebuked the administration for its slipshod practices. …

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