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Who's Hughes? Roberts Discusses Former Chief Justice, FDR Foil

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By Casey C. Sullivan, Esq. on November 23, 2015 2:59 PM

A conservative Chief Justice who repeatedly stands in the way of a progressive, Democratic president, while leading a divided, unpopular Supreme Court. No, it's not Chief Justice Roberts, though the parallels are clear. It's Charles Evans Hughes, Roberts's counterpart from 1930 to 1941, who repeatedly held back President Franklin Delano Roosevelt's New Deal initiatives.

In a relatively rare presentation last Friday, the current Chief Justice discussed his predecessor, Court leadership, and the legacy of Hughes. Here are the highlights.

Some Hughes History

Unlike many of his colleagues, Chief Justice Roberts gives relatively few public talks. So, his talk on former-Chief Justice Hughes with Second Circuit Chief Judge Robert Katzmann was a bit of a treat. And it involved a slideshow. In what The Washington Post describes as "a crisp, 16-minute presentation that evoked frequent laughter," Chief Justice Roberts reviewed Hughes' signature beard, relationship with F.D.R., and his approach to leading the court.

Hughes was not your typical Chief Justice. After a successful career in private practice, he became Governor of New York, beating out William Randolph Hearst for the spot, a loss that made its way into Citizen Kane. He sat on the Court as an Associate Justice for six years before stepping down to run for President. (He lost.) He went back to the Court after serving as Secretary of State, this time as Chief Justice.

The Supreme Court Takes on FDR

But despite his political career, Hughes is much better known for leading the Court during one of its most oppositional periods -- F.D.R.'s New Deal. "It fell to Hughes to guide a very unpopular Supreme Court through that high noon showdown against America's most popular president since George Washington," Chief Justice Roberts explained.

In case after case after case, the Hughes Court invalidated Roosevelt's progressive political reforms, helping the Supreme Court become one of the least liked government institutions of the time. Yes, less liked than even Congress.

A Role Model or Cautionary Tale?

That obstructionism led to Roosevelt's famous court-packing plan. If he couldn't convince a majority of the Hughes Court to rule in his favor, he would install six new ones. That didn't change Hughes' mind, but it did lead to "the switch in time that saved nine" -- Justice Owen Roberts's well-timed ideological shift leftward which allowed the New Deal to move forward and ended the need to renumber the Court.

What did Chief Justice Roberts take from this historical period? He didn't give a single lesson, but noted that the Hughes Court was "with the Constitution and that had a lot to do with how he handled the crisis." Chief Justice Roberts is perhaps more pragmatic than his predecessor, however. He has twice refused to knock down President Obama's most aggressive, New Deal-y program, the Affordable Care Act.

Leading a Fractured Court

As The Wall Street Journal notes, "it was a lecture less about law -- not a single one of Hughes's opinions was discussed -- than about leadership." And Chief Justice Roberts spoke freely about leadership. The Court needs to maintain collegiality and cooperation, even in the face of bitter disagreement, he explained. "Somebody does have to do what they can to maintain order and decorum during arguments," CNN reports him saying.

But there are, of course, limits. "I have the same vote as" the other Justices Chief Justice Roberts explained. "I can't fire them if I disagree with them and I can't even dock their pay."

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