HERBERT HOOVER AND THE SUPREME COURT

by Craig Wright

1930 cartoon drawing by Jay Ding Darling.
1930 cartoon drawing by Jay Ding Darling.

Construction began on a permanent home for the Supreme Court, and Herbert Hoover’s three appointees to the Court facilitated the transition of the Court from judicial activism to judicial restraint in economic issues.

The Hughes Era Begins

In early 1930, Chief Justice William Howard Taft resigned because of ill health. Herbert Hoover nominated Charles Evans Hughes to replace Taft. Hughes had served as Governor of New York, law professor at Cornell, and an Associate Justice of the Supreme Court. He ran for President in 1916 and was Secretary of State from 1921 to 1925.

Hughes’ nomination was opposed by progressives and southern Democrats, and also due to his age. At 67, Hughes was the oldest man ever nominated as Chief Justice. He survived the contentious confirmation process, accepted by a vote of 52 to 26.

For all of its eleven years, the Hughes Court had to wrestle with the economic problems of the Great Depression. Hughes was prolific, producing 283 opinions during his tenure. He was considered a judicial activist with regard to civil liberties. On economic issues he generally supported limits on the regulatory powers of the federal government and states (judicial activism) until 1937, and accepted federal legislation (judicial restraint) from then on. Hughes was noted for his intellectual flexibility, legal mind, and leadership.

The Public Speaks

Less than a month after Charles Evans Hughes was confirmed, Justice Edward Sanford passed away. Herbert Hoover nominated John J. Parker of North Carolina, who had served on Fourth Circuit Court of Appeals since 1925. Parker’s confirmation proved even more contentious than that of Hughes. His legal acumen had won him many endorsements. However, labor groups opposed him due to his opposition to unions. African American groups objected because of comments Parker had made during his unsuccessful campaign for Governor of North Carolina in 1920.

Parker’s rejection by the Senate 41 to 39 was the first unsuccessful nomination to the Supreme Court since 1894. It marked the first time that public opinion had an effect on the outcome on the nomination process. Despite the rejection, Parker had a distinguished legal career until his death in 1958.

A Swing Vote Joins the Court

After the Senate rejected John J. Parker, Herbert Hoover nominated Owen Roberts of Pennsylvania, one of the attorneys who had investigated the Teapot Dome scandal. Roberts was approved unanimously one minute after the Senate received the nomination. Roberts and Hughes were known as the Roving Judges since they often provided swing votes between the liberal and conservative factions on the Court. During the early Roosevelt years the two sometimes upheld New Deal programs; other times they struck them down. In 1937, their support of minimum wage laws in West Coast Hotel v. Parrish is considered by many legal historians as a revolutionary shift in the Supreme Court. Subsequent New Deal economic legislation was affirmed by the Hughes Court.

Roberts, who cast the deciding vote, had changed his position on the issue of minimum wage laws. Historians continue to debate if this was a reaction to Franklin Roosevelt’s effort to expand the influence of the executive branch over the judicial through the Judiciary Reorganization Bill of 1937. The Bill was often called the Court-packing plan since it would have allowed Roosevelt to appoint more judges to the Supreme Court. Those who believe that Roberts was influenced by Roosevelt’s efforts have labeled his position change, “The switch in time that saved nine.”

The Finest Act of Hoover’s Presidency?

In 1932, President Herbert Hoover made Benjamin Cardozo his third appointment to the Supreme Court, this time to succeed the retiring Oliver Wendell Holmes. Cardozo was a highly regarded judge on the New York Court of Appeals and was confirmed unanimously. He was also the second person of Jewish descent, after Louis Brandeis, to be appointed to the Supreme Court.

The main factor in each of Hoover’s nominations to the Court was the person’s legal expertise. Nowhere is this more evident than his nomination of the Democrat Cardozo; one of the few Supreme Court appointments based solely on the nominee’s contribution to law rather than politics or partisanship. Clarence Dill, Democratic Senator for Washington, called Hoover’s appointment of Cardozo: “the finest act of his career as President.”

Cardozo, along with Brandeis and Harlan Fiske Stone, was a member of the liberal faction of the Court which was nicknamed the Three Musketeers. The conservative faction was represented by Justices James Clark McReynolds, Pierce Butler, George Sutherland, and Willis Van Devanter. They were known as the Four Horsemen. None of Hoover’s appointees voted consistently with the conservative faction, thus enabling the transition of the Court from economic judicial activism, with its focus on contracts, private property, and unregulated markets; to a Court of judicial restraint that accepted a more active role by Congress and the President in managing the economy.

“The Republic endures and this is the symbol of its faith.”

Presdient Hoover applies mortar to the cornerstone of the new Supreme Court building. 10/13/1932
Presdient Hoover applies mortar to the cornerstone of the new Supreme Court building. 10/13/1932

When the capitol was transferred to Washington, D.C., in 1800, no provision had been made for housing for the Supreme Court. The Court used various spaces in the Capitol building until 1935. The Justices lunched in the robing room and often worked at home since there was no individual office space for them or their staffs.

William Howard Taft began lobbying for a separate Supreme Court building equal in stature to the Capital building and the White House in 1912 while he was President. He continued his lobbying after becoming Chief Justice in 1921, finally persuading Congress in 1929 to fund the building. The prominent architect Cass Gilbert designed “a building of dignity and importance suitable for its use as the permanent home of the Supreme Court of the United States.”

The building was constructed between 1931 and 1935 at a cost of nearly ten million dollars. When the cornerstone was laid in 1932, Chief Justice Charles Evans Hughes said: “The Republic endures and this is the symbol of its faith.”

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