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At the WSJ Law Blog, Jess Bravin reports on comments Chief Justice Roberts made during a discussion at NYU with 2nd Circuit Judge Robert Katzmann.

And following Franklin Roosevelt’s election in 1932, “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 said.

The court repeatedly struck down New Deal programs, so frustrating Roosevelt that in 1937 he proposed in a fireside chat increasing the size of the court in a way that would give his appointees a majority.

“Hughes was pressured; people said, ‘You’ve got to respond to it’ ” with a radio address of your own, Chief Justice Roberts said. But that, Hughes realized, would be “fighting the battle on the enemy’s turf.” Instead, he sent the Senate “a very measured letter” rebutting FDR’s claims and helping shift public opinion.

“This is the most unpopular institution in the country that, as far as anyone knows, has been prolonging the Great Depression by standing up to FDR,” Chief Justice Roberts said. “But through Hughes’s approach, it got to the point where FDR said, ‘The people are with me.’ Well, it certainly wasn’t the case that the people were with the court. But I think they were with the Constitution and that had a lot to do with how he handled the crisis. So there are things to learn from it,” he said.

(FDR’s policies very likely prolonged the Great Depression).

I think what Roberts is saying in his usual cagey fashion, that even if the people did not support the Court, they still supported the Constitution, and as a result, that affected how Hughes “handled the crisis.”

For a discussion of Roberts’s admiration of Hughes, see Adam White’s recent article in the Weekly Standard, which I reviewed here.

It shows, in speeches replete with lessons he has learned from his predecessors. (He’ll offer another such speech in New York later this month, on Chief Justice Charles Evans Hughes.) Noting that portraits of four of the greatest chief justices​—​John Jay, John Marshall, William Howard Taft, and Charles Evans Hughes​—​occupy places of honor in the Court’s two ceremonial conference rooms, Roberts said in 2007, “they all seem to be looking down at me with surprise.” And “as they are looking down upon me,” he added, “I am looking up to them.”

He explained in 2007 the lessons he draws from them. From Jay, the need for the Court to maintain the public’s confidence and respect. From Marshall, the importance of forging the justices’ own disparate voices into a truly institutional voice. From Taft, who is responsible for giving the Court a building of its own, the importance of establishing the Court’s independence. And from Hughes, the importance of preserving that independence against FDR’s court-packing plan.

Update: Bob Barnes at the Washington Post has an additional post, that explicitly notes the context of Roberts’s comments–that it was Hughes’s leadership, and not Owen Roberts’s “switch in time,” that pushed back Roosevelt’s court-packing scheme:

Instead, Roberts explained, Hughes wrote a letter to the Senate documenting the court’s work and detailing how adding justices would only make it harder. He worked “under the radar,” Roberts said, to allow time for Congress to realize the harm that could come from the momentous change Roosevelt was proposing.

“How can that be?” Roberts wondered. The Supreme Court was “the most unpopular institution in the country, that, as far as anyone knows, has been prolonging the Great Depression.”

Roosevelt said that “the people are with me,” Roberts continued. “Well, it certainly wasn’t the case that the people were with the court. But, I think they were with the Constitution.”

Roberts believes it was Hughes’s actions, not Justice Owen Roberts’s change of heart on one case — the “switch in time that saved nine” — that led FDR ultimately to withdraw his plan.

 

One of the consequences of the Court’s decision in King v. Burwell is that there is no incentive for states to manage their own exchanges. I predicted over the summer that several of the thirteen-struggling exchanges would a drop their exchanges altogether and opt for the federal exchange. This is especially apt because millions in federal funding, currently keeping the failing exchange afloat gets cut off.

On Friday, buried amidst 300 pages of rules, HHS announced what they are calling a “state-based exchange on the federal platform.”

The Hill reports:

The Obama administration on Friday proposed a new type of partnership between state and federal health marketplaces in an attempt to address the mounting financial pressures on state-run exchanges.

Under the new model, states would be allowed to use federal resources like call centers or website platforms while maintaining their own decision-making power.

The model, called “state-based exchange on the federal platform,” would allow states to “leverage the economies of scale,” the Department of Health and Human Services (HHS) wrote in its proposed rules.

States would “retain responsibility for plan management functions,” HHS said.

As I discuss in a Federalist Society White Paper I published before King was decided, states performed plan management functions long before the ACA came around.

Expect more states to opt for this model, and effectively merge into the federal HealthCare.gov.

A Pew Research survey asked people of different age groups whether the government should be able to censor racially offensive speech. The results are striking. For respondents over the age of 70, only 12% favored censorship. For Baby Boomers between 51 and 69, 24% favored censorship. For Gen Xers between 35-50, 27% favored censorship. But, for the millenials (of which I am a member) between 18 and 34, 40% favored censorship. The younger you are, the less you appreciate the importance of free speech. This isn’t to say that people should make offensive statements about minorities, but it is an altogether different matter whether the government can censor so-called “hate speech.”

As I noted recently, today’s college students become tomorrow’s law students, lawyers, politicians, and judges. If this trend continues, we are in serious trouble.

In related news, please read Michael Krauss’s column on why institutions should be very hesitant to rename colleges.

The idea, I take it, is to preserve only the names of individuals whose nomination would not arouse substantial opposition if the same buildings or schools or universities were to be named for the first time today.

To this I say, if we’re going to go on a re-naming splurge, here (in alphabetical order) are a few other institutions whose names we might want to reconsider:

Among those that would have to change names are the College of William & Mary, George Mason University (my alma matter), Harvard’s Kennedy School of Government (JFK did not have the best relations with women), Howard University (Gen. Howard led attacks against the Apache), anything named after Abraham Lincoln (he favored sending slaves back to Africa),  Washington & Lee (double no-no), and Yale University itself (Elihu Yale oversaw a slave trade).

Ilya Shapiro and I have a Op-Ed coming out soon on the government’s petition in Texas v. United States. In the meantime, I wanted to highlight one point that has been hotly discussed: if the certiorari is not granted quickly enough to get on the Court’s normal argument calendar, will they schedule a special May, or even June sitting to hear the case?

The Washington Post reported today:

But experts on the court note that the justices could also make special accommodations for a case that carries such important questions about federalism and the balance of power between the political branches of government.

Cato Research Assistant Anthony Gruzdis (who helped on a previous issue) researched every instance in the past quarter-century where the Court scheduled a special May sitting. If we exclude cases that were re-argued, there were only three cases that were argued for the first time in May, and decided in June.

1. Raines v. Byrd (1996) involved the Line Item Veto Act. This bill had a direct appeal from D.D.C. D.D.C resolved the case on April 10, and the Court noted probably jurisdiction two weeks later on April 23. It was argued on May 27, and decided on June 26.

In my opinion, it is both unnecessary and profoundly unwise for the Court to order expedited briefing of the important questions raised by the petition for certiorari and application for a writ of habeas corpus. Even if the majority were right that this petition squarely presents substantial constitutional questions about the power of Congress to limit this Court’s jurisdiction, our consideration of them surely should be undertaken with the utmost deliberation, rather than unseemly haste. Accordingly, I respectfully dissent from the entry of the foregoing order.

The case was resolved on June 28–two days after Raines v. Byrd. (That was a busy June!).

3. Swidler & Berlin v. U.S. (1998) involved the Independent Counsel’s request for handwritten notes from Vince Foster’s attorney. The D.C. Circuit found that the privilege does not survive death. Certiorari was filed on December 31, 1997, and cert was granted on March 30, 1998. The case was set for expedited arguments on June 8 (by Brett Kavanaugh), and decided on June 25. The New York Times reported that “the High Court agreed to hear the case unusually quickly.”

I am not versed with the history of this case, but a footnote in the Petitioner’s reply brief states:

Independent Counsel contends that this Court should deny certiorari to speed the conclusion of his investigations. It appears, however, that his investigations will not end until long after this Court, if it determines to review this case, decides it. Petitioners would not object to expedited treatment for this case.

I think this uber-expedited argument may have something to do with the now-defunct Independent Counsel statute.

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As Ilya and I will discuss shortly, the posture of Texas v. United States does not even come close to these precedents. Most significantly, the Solicitor General could have sought a stay in May from the 5th Circuit’s decision, but opted not to. If this was so dire, as I argued at the time, it could have been brought to the Court. They didn’t.

On Thursday, November 19, the Nebraska Federalist Society Chapter hosted me for a discussion on the 1st Amendment, 2nd Amendment, and 3D-Printed Guns. I appreciated the chance to visit again with my friends in Lincoln. Here is video from the talk.