Is Mr Hughes a Federalist?
jr, William C Murphy
IS MR. HUGHES A FEDERALIST ? By WILLIAM C. MURPHY, jr. FOR generations the schoolbooks have inculcated the belief that the Federalist party passed from power when Thomas Jefferson succeeded John...
...It was in this case that the Court held that a rate fixed by the Maryland Public Utilities Commission which would allow a return of 6.26 percent on a valuation, including a $5,000,000 allowance for an "easement" in the city streets, was confiscatory...
...Dill predicted bluntly that when the people become convinced that the Supreme Court is their "oppressor" and realize that the Justices hold office for life, the people "will find means to change this situation...
...Senator Borah (Republican) of Idaho, in one of the most impressive speeches he has ever made in the Senate singled out this decision...
...Is there a schoolboy or a schoolgirl in America that does not know that is not true...
...Hughes was opposed because a considerable group in the Senate disagrees with decisions they expect him to hand down in the future on cases yet unborn...
...Save for one senator whose notorious eccentricities discount all of his actions, it is doubtful if any member of the Senate so much as thought of questioning the nominee's integrity, ability or absolute honesty...
...Hughes had been confirmed...
...A return of 6.26 percent even on a greatly exaggerated and fictitious valuation is confiscation, the Supreme Court said...
...Moreover the discussion of the Dred Scott decision related to the conduct of a Chief Justice already on the bench and to a specific decision already rendered...
...Hughes, instead of Chief Justice White, had sat as Chief Justice we would today be in this position, that the Congress of the United States would be wholly without power to protect against corruption on the part of those who were seeking a position in the United States Senate, if that corruption took place any time prior to the actual election...
...If the Supreme Court has been "dragged into politics" by the Hughes controversy, Dill and others said, it is up to the court to determine by its future decisions whether it will stay in politics by arrogating to itself powers which should be exercised by Congress...
...Hughes...
...To his opponents Mr...
...Nor was there any partizanship in the opposition...
...To many who witnessed it the most remarkable phase of the Hughes controversy was the aftermath, the almost unprecedented attack upon the Court itself which was launched in the Senate on the day after Mr...
...Hughes who defended the Michigan Senator had contended that the federal government was without power to legislate with respect to the conduct of senatorial primaries...
...Remarkable also is the fact that there was no personal bitterness in the fight against Mr...
...Hughes would have resulted in the rejection of his nomination...
...Such prominent Democrats as Harrison of Mississippi, Swanson of Virginia, Copeland and Wagner of New York and Walsh of Massachusetts, voted for the new Chief Justice...
...However, there is a well-founded impression in Washington that it was more than that...
...I cannot conceive that Mr...
...FOR generations the schoolbooks have inculcated the belief that the Federalist party passed from power when Thomas Jefferson succeeded John Adams in 1801...
...If the Supreme Court should say that black is white, we would all know that it is not...
...Incidentally, a solid Democratic vote against Mr...
...He said: It illustrates the wide division of views with reference to one of the most important questions from a legal and economic standpoint which in my judgment confronts the people of the United States today...
...Senator Norris of Nebraska, who is Chairman of the Senate Judiciary Committee and himself a former judge and a great constitutional lawyer, shattered precedents by heaping public ridicule upon the Court's decision in the Baltimore Street Railway case, mentioned above...
...Senator Dill (Democrat) of Washington joined in with the opinion that while the Dred Scott decision was designed to fasten the institution of chattel slavery upon the territories of the United States, the present tendency of the Court is to condemn the entire nation to economic slavery...
...It was a sudden realization of that fact which produced the three-day uproar in the Senate and was responsible for more than one-third of the Senate (twenty-six who actually voted and seven who were paired) registering their opposition to the confirmation of Mr...
...Digressing from economic issues to the famous New-berry case, Borah pointed out that Mr...
...Hughes was the protagonist of property rights as against human rights...
...If Mr...
...Hughes the controversy, with comparatively trivial exceptions such as the Shreveport decision handed down during his previous tenure on the Supreme bench, had nothing to do with specific judicial actions of his...
...that is to say, what shall be a reasonable rate and what shall constitute the rate base for the public utilities and for all those companies and organizations who have succeeded in securing hold of the great natural resources of the country for which the people must now pay them for their use...
...The opposition to his confirmation visualized him as a symbol, as the animated flag of that present-day federalism which, distrustful of popular control of government, seeks to enfold property rights and privileges in a protecting mantle of law expounded by a Court far removed from and impervious to popular sentiment...
...We must either establish a reasonable rule and a reasonable rate with reference to the use of these or we shall be driven to public ownership of all these resources and means of transportation...
...The famous Baltimore Street Railway case, in the determination of which Justices Holmes, Brandeis and Stone dissented, was one frequently adverted to in the Hughes debate as an illustration of the far-reaching effect of the economic convictions of Supreme Court Justices...
...In other words, Mr...
...When Senator Shortridge (Republican) of California interrupted Borah to ask "Does not the Senator differentiate between the advocate and the judge...
...Hughes would go before the Supreme Court of the United States to fasten upon this country a constitutional construction which would last for all time and affect the people so long as the government endures unless he actually believed in it...
...In the case of Mr...
...The time honored taboo- practically inviolate since the Dred Scott decision- which has held Supreme Court decisions to be above public criticism, was tossed aside...
...Perhaps the extraordinary outburst over the Hughes nomination is merely another illustration of the evergrowing frankness of the age...
...The issue was a clash of fundamental principles...
...Some see in it the dawn of a new order, a development as significant as that which took place when men first began to question the divine right of kings...
...To them his accession to the Chief Justiceship means merely the addition of another to that element on the Supreme bench whose final interpretations of the laws of the land are constantly rendered to the accompaniment of "Justices Holmes and Brandeis (and frequently Stone) dissenting...
...To find an approximation of it it is necessary to go back to the days of the Dred Scott decision, but in that instance the slavery issue had become so acute that the war spirit was already abroad in the land...
...Threats of constitutional amendments to strip the Court of its power to hold acts of Congress unconstitutional, and to provide for popular election of the Supreme Court Justices, were voiced...
...Borah got in one of his most telling arguments...
...Something in the nature of an earthquake, like the upheaval in the Senate over confirmation of Chief Justice Hughes, was needed to bring about a realization that federalism still controls one-third of the government of the United States...
...Senator Robinson, of Arkansas, the Democratic leader, cabled from London a request to be paired in favor of confirmation...
...With the Chief Justice himself no longer an issue, Republican and Democratic Progressives joined in a denunciation of "judge-made law," of government by injunctions, of federal judicial interference in the internal concerns of states...
...to wit, the Supreme Court...
...Hughes...
...It was the greatest peace-time controversy over the Supreme Court in history...
Vol. 11 • March 1930 • No. 18
