Mark Drakeford finds contemporary resonance in the impact of two Welsh Justices on Franklin Roosevelt’s New Deal
Earlier this month, President Obama took the highly unusual step of commenting directly on a case before the American Supreme Court, saying that it would be an “unprecedented, extraordinary” step for the Justices to overturn the health-care law that stands as his key domestic policy achievement. The Court had just completed three days of oral hearings on the law, before retiring to consider a verdict, now expected in June. Whatever the outcome, it is likely to provide one of the shaping events of the 2012 Presidential campaign.
Yet, while Obama’s intervention was unusual, it was not unprecedented. Indeed, 2012 marks three quarters of a century since the greatest-ever tussle between a President and the Supreme Court. It is also the 150th anniversary of one of the most distinguished of all Welsh Americans, Charles Evans Hughes, born on 11th April 1862, and Chief Justice of the Supreme Court when it came into direct conflict with the greatest American President of the 20th Century, Franklin Delano Roosevelt.
1937 witnessed a titanic struggle between the two men. In an America still hurting from the Great Depression, Roosevelt’s ‘New Deal’ was sped through a heavily Democratic Congress in a welter of emergency legislation. It used the power of the Federal Government, as never before, to tackle the economic emergency. Industry was regulated and new agencies created in ways which broke new legislative ground. Challenge in the Courts quickly followed. By the second half of Roosevelt’s first term these cases were making their way to the Supreme Court.
Remarkably, Hughes had alongside him another Welsh Supreme Court Justice, Owen J. Roberts. For the whole of 1937 the Constitution of the United States was what these two Welsh men said it was. This article tells their story.
Charles Evans Hughes was a second generation Welsh-American. His father, Methodist Minister David Charles Hughes, a native of Tredegar, emigrated in 1855. After a career in law, Hughes was elected, as a liberal Republican, to be Governor of New York in 1906. Ten years later he was the Republican nominee for President, losing narrowly to incumbent Woodrow Wilson. Two terms as Secretary of State followed, the post held by Hilary Clinton today. In that capacity he met David Lloyd George when the former Prime Minister made his only US visit, in 1923. In 1930 he was appointed to the Supreme Court, as Chief Justice. He quickly secured a reputation as the most distinguished jurist of his generation with a mastery unparalleled in the history of the Court.
Owen Josephus Roberts was a third generation Welsh American. His grandfather, William Owen Roberts had emigrated to Pennsylvania in 1808 and Owen J. Roberts was born there in 1875. After a successful academic career he practised law before being called to head a national inquiry into the vast 1920s Teapot Dome oil scandal. There he became known as the ‘Fighting Welshman’, relentlessly investigating serious political and economic wrong-doing.
Roberts’ Welsh roots were always important to him. When he bought a new farm, in Pennsylvania, in 1929, he gave it the name Bryncoed, spending long periods there even after being nominated to the Supreme Court in 1930. Unanimously confirmed by the Senate, he became the youngest member of an already seriously polarised institution. He traumatised society hostesses by his refusal to join in the rituals of Washington life, preferring, for example, to travel in to work at the Court each day by public trolley bus, carrying its highly secret documents with him.
The judicial politics of the Supreme Court came to new prominence after Roosevelt’s election in 1932. He had always predicted opposition from conservative Justices, appointed in the 1920s. During his first four years, five Court members were implacably conservative whilst three were firm liberals. As the dispute between the two branches deepened, the less firmly aligned Chief Justice Hughes moved, more and more, to the President’s side. However, despite Hughes all but two of the 11 key pieces of New Deal legislation to reach the Court in the period between 1932 and 1936 were struck down.
In the immediate aftermath of Roosevelt’s landslide, second term, victory, the ground began to shift. The President was determined to make his mandate stick and, in February 1937 announced a plan to ‘pack’ the Court with new, younger Justices, to overcome its conservative majority. The controversy which followed was probably the single most bitter clash between the judiciary and the executive in American history and a genuine constitutional crisis. It pitted the democratically elected President against a Court which appeared increasingly anachronistic, as well as indifferent to the magnitude of the economic crisis engulfing the nation.
However, as Roosevelt’s proposal gathered momentum, Justice Roberts joined Hughes in switching from the conservative to the liberal wing of the Court. The impact was immense. Within a month, the court upheld, by a five to four majority, a Washington minimum wage law, reversing a position taken only two years earlier. From now on, confirmation of New Deal legislation by the Supreme Court was assured.
And it had all happened because of two Welshmen. Hughes and Roberts joined the Court together in 1930. They were always close. When the new Supreme Court building opened in 1936 they were the only two members of the Court to move in. The remaining members preferred the traditional method of working from home. As relationships between President and Court worsened in 1936, Hughes passed part of the summer vacation at Owen Roberts’ farm, Bryncoed. Commentators concluded that, after the President, they were the two most important people in the whole of the United States.
Roosevelt pressed ahead with his Court-packing plan, but political support for the move waned rapidly, as the turn-around amongst the Justices became clear. Hughes went on the offensive, appealing over the head of the President on Pathe newsreels and directly lobbying politicians. When the Senate rejected the legislation, the President suffered his first ever major defeat. He was fond, thereafter, of claiming that he had lost a battle, but won the war, as the Court came round to his point of view. Roosevelt’s latest biographer, however, disagrees, concluding that the victory belonged not to the President, but to Hughes.
Charles Evans Hughes retired in 1941 and died in 1948. His statue still dominates the entrance lobby of the Supreme Court, where the Obama health reforms are being determined today. His precedents are still cited in today’s Court judgements. Owen Roberts moved from being an opponent of the New Deal to one of Roosevelt’s strongest supporters. While still a Supreme Court Justice he toured the nation, advocating America’s entry into the Second World War. Roberts died in 1955 leaving, with Hughes, an indelible Welsh mark on the history of the most powerful nation on earth.
Whether today’s generation of Supreme Court justices (a majority of whom were appointed by Republican Presidents, stretching back as far as Ronald Reagan) will deal as skilfully with this year’s hottest political topic will, in many ways, help shape not only the future of American health care policy, and the outcome of the November election, but also reignite a debate which raged three quarters of a century ago.
