has a separate presence. there were, of course, criticisms as there always are anytime there's a public building. as you can see, this is an ornate and building beautiful. i think my recollection is, though, it ultimately came in under budget, which is quite remarkable. nonetheless, there was some criticism of why do they need to build this marble temple. >> william howard taft, who was president and became chief justice argued the court needed its own building. he didn't live to see it, and charles evans husz was the first chief justice to move in here. do you know anything about whether -- i read it was very controversial at the time, and not all the justices wanted to come and work here? >> i think that's partially you're talking about judges some of who are traditionalists and it's the depression. it's an expensive -- the op picks of moving into this beautiful temple have its own kind of political dimension. i think part of it is just it was break with tradition. i think from the modern

perspective it seems like a terrific break and a break that was maybe long overdue. >> the pedment we're looking at, actually the architect included a depiction of charles evans hughes in the pediment. over the next call we might get a shot of that so you can see how the architects of this building depicted him. we'll listen to mount joy, pennsylvania. this is harry. >> caller: i used to study the supreme court, and in the the 1935 decisions in some of the new deal cases, i think three major laws were struck down by unanimous supreme court decisions. they were unanimous. that included the liberals. from what i understand, when roosevelt made his court packing speech, louis brandeis was deeply offended by it because he was one of the more elderly members of the court, over 80 years old. i did work on osroberts, and fr

what i understood the votes on the case in 1937 were taken before in the court's secret chambers. in 1936 the votes were taken for the cases decided in 1937. that's from memorandum from felix frankfurt from what i understand. thank you for letting me be on the show. thanks very much. >> that caller provided a nice segue to get into the court packing era. set the stage for us, please. >> what happened in the -- i want to get back to this caller's question, because the crux of the court-packing scheme. fdr became extremely frustrated with the fact that a lot of new deal measures were being struck down by this supreme court, and sometimes by a unanimous court. >> on what grounds? >> on the grounds, first of all, of exceeding congress's powers under the customer clause. the commerce clause is quite relevant today. it's the source for passage of

obama's health care plan or the tax power, and it's also the source of a lot of legislation that is passed right now. so under the new deal the court basically was not as expansive in its interpretation of what the customer power could do for congress, and thought that often the state's ataonomy was being infringed upon. under substance due process or contract, which was read into the 14th amendment or fifth amendment. the new deal court or hughes court had been striking down a lot of new deal legislation, and fdr in frustration after his re-election basically proposed this plan whereby the court's membership would be increased if justices didn't retire in a timely fashion. so under his plan there would

have been up to six new justices placed upon the court. now, this gets into the question that was asked by the caller about whether justice roberts, who was the chief person who supposedly changed his vote, had changed his vote before this court-packing scheme was promoted or not. one argument is that once roosevelt won the election, the court really felt that there would be a lot of pressure to uphold and sustain new deal legislation, and that it could no longer be striking down as many laws. so one argument is just that the court-packing scheme itself was almost irrelevant or wasn't the real catalyst that roberts felt that he had to change his vote simply because of roosevelt's re-election and this great democratic consensus behind him. >> paul, give us a sense of how engaged the country was in this. was this hugely controversial, or was this a washington story? >> this was definitely not a

wa washington story. it helps to understand the stage completely. think about fdr at this point. he's just been re-elected for the second term. he's dealing with the great depression. nobody is worried about whether it's the great recession. this is the great depression. he's trying to deal with it innovatively and passing the legislation getting struck down by the court. he's in his second term. by the time he's done with his term, he'll have appointed more supreme court justices than any other president than george washington. at in the point he's like jimmy carter. he's been a full-term president and hasn't put anybody on the court. he's very frustrated with the court. he's very frustrated with the fact that they're striking down his legislation. he's of the view that they are really out of touch with the whole country, and that's part of the reason the country as a whole really focuses on this. i think a lot of that frustration both with what the court's doing, with the age of

some of the justices, all that boils over into the court packing plan. i think it's very interesting to debate whether, as you say, the plan was really necessary, whether that was really what explains the court's change in approach in some of these important areas. it is, i think, fair to say it's a bit of a black eye to fdr's legacy he made this proposal. >> let's take a call from salem, oregon. this is kirk watching us out there. >> caller: good afternoon. it's still afternoon here. i appreciate you taking my call. this is, i presume, primarily a question for professor meilar. i'm curious to know what she might know regarding the personal relationship tie-in between justice hughes and the william seward family from auburn, new york? seward was lincoln's secretary of state, and also part of the

reason i'm calling is i've been puzzling for some time. back in that era, as the speech by justice hughes was indicating, the anti-racists of the communities were the republicans, and that seems to have switched around the time of woodrow wilson's presidency. when he embraced w.e.b., i was curious to know what you know about that. >> i'm not as familiar with the relationship to seward, so i have to defer to others on that. there is an interesting story about hughes and race. he invited booker t. washington to an event, and it was a somewhat controversial invitation. he personally escorted him it to a table. hughes pretty much retained a fairly uniform position on race throughout his career, where he was in favor of at least greater

equality. i'm not sure to what extent full e equality, but against the backdrop of this change you're pointing out where previously republicans had been much more in favor of racial equality, and then the democrats also sort of took on that mantle. >> returning to the court-packing plan, charles evans hughes was how involved in lobbying or setting the stage for it being defeated? >> i think it was integrally involved, and as chief justice roberts pointed out, there was a favorite missive from the court to congress itself. that was something that justice brandeis was very much in favor of and suggested. the chief justice was very direct. in the same kind of skill set he brought to bear in investigating the gas companies back in the day. he was good with numbers, and he used the numbers and look add the court's docket, caseload,

and he really as chief justice roberts indicated really took apart a neutral case for what fdr was proposing and laid bare the obvious motivation for the court-packing plan. >> how common between the court and legislature would it be for a missive to be sent from the court on to congress? >> it does happen. the chief justice, and i don't know whether this was the practice back in the day. it has become the practice that bafs basically every year there's a state of the judiciary letter that the chief justice sending over to congress. sometimes it can be pointed. for a number of years rehnquist and roberts made pay point of explaining that they were less than happy with the current state of judicial pay. so there continued to be these kind of issues between and among the branches, but i also think that probably the way the chief justice hughes handled the court

packing scheme probably took court-packing off the table as a realistic option going forward, and i think that's one of his great contributions. >> so i completely agree with paul clement, but i wanted to add two things. some did criticize hughes at the time for essential hily was signed by -- he had consulted with brandeis about, so there was unanimity among the court about it. one part of the letter said hearing cases in a panel system wouldn't be constitutional, and that seems like an advisory opinion. interestingly in the book that paul clement referred to before about the supreme court hughes condemned other justices for trying to issue advisory opinions. so there is some controversy about that letter, i think. >> next call is from st. joseph, missouri. daniel. >> caller: thank you for taking

my call. hi. this is kind of a follow-up to the cornell professor's comment that owen roberts prior to the court-packing plan allied himself more with the four horsemen who were the conservative wing of the court. after the court-packing plan, arguably, owen roberts was a part in the switch in time to save nine. from what i've read, owen roberts would never admit that. does either one of you know why he really did change his voting pattern? >> do you know if he changed his voting pattern after that? >> well, the only person that knows for sure is justice roberts, and he's no longer with us. this is one of the reasons from an academic standpoint that court-packing is so interesting as a historical episode. there are a lot of competing theories. they are supported at a detailed level, but we don't really know

for sure. it's fair if you look at justice roberts' votes patterns, there's a fork in the proceeded and there does seem to be a real change that corresponds with the court-packing scandal and really these three cases that emerge at a critical time that go in a different direction. >> any more to add? >> no. he definitely did protest he wasn't influenced by talltics at all, but it's hard to believe that, based on the record. >> we talked about the fact this court opened in 1935, this beautiful building, and i'm wondering, you've spent a lot of time in that courtroom as solicitor-general. is the courtroom that he operated in as chief justice essentially the same today? >> you know, there are a couple of minor differences. there have been changes in the size of the -- the shape of the bench from time to time over the time period, but it's remarkably similar to the courtroom over which he would have presided. >> we also have a historic photograph that's from the

supreme court historic society. it was somewhat illicitly taken. it's a photograph of inside the courtroom while the court is p in session with chief justice hughes presiding, and we're going to show that to you as well. look at that from the court in session. you don't see that very often. >> you sure don't. >> we didn't nenmention in ms. biography he was a private practice lawyer much sought after and argued 50 cases before the court. my question is, having had that experience, what was oral argument like in his court? >> it's really, i think, a very good point, and it's something that i think is very similar to the situation we have now with chief justice roberts. we have somebody in chief justice roberts who argued nearly 40 cases when he was -- before he came onto the bench. chief justice hughes had him beat, had 50 arguments in his private practice.

a very lucrative private practice, and that's part of, i think, the point made about the sacrifices that he made for public service. he comes to the court as somebody who not only has appreciation for the job of the court, because he's previously served as an associate justice, but he has some sympathy and some understanding of the role of counsel as well. i think he's somebody who would be certainly willing to ask questions of counsel but had a real appreciation that counsel had prepared for the argument and had points they wanted to make and was also ready and willing to listen to counsel in argument as well. >> pittsburgh, this is tim. welcome to the conversation, tim. >> caller: thank you. i have a question for your guests about the circumstances of justice hughes' ascending to the court as chief justice in 1930. i don't know p if this story is true, so i hope your guests can confirm it. that the conventional wisdom after taft had died was that

dhar charles evans hughes would not agree to serve as chief justice, because doing so would mean that his son would have to resign as solicitor-general and then to everyone's surprise charles evans hughes sr. decided to take the job. his son had to resign as solicitor-general. >> you probably know some of the history of your predecessors in the solicitor-general position. what can you tell us? >> i have heard the story, and i do not know whether it's true. i've heard different versions of this story, and you may have a perspective as to the truth of it. i will say this, though. which is to say i think if somebody, you know -- if the president really thought -- president hoover really thought charles evans hughes would not take the job and was not interested in being chief justice, that seems like a naive assumption. hughes had an interest in the

chief justice job going way back. when he was first put on the court as an associate justice, he was appointed with some understanding. there's a letter to this effect. that he may be elevated very early when there was an opening at that point, and he wasn't. he was passed over for chief justice white. of course, president taft was the one that passed him over, and there's some suspicion that president taft might have had an eye on the chief justice job that he ultimately got. so it was actually kind of for favorably disposed the older justice white to that position rather than the young robust then justice hughes. so i've definitely heard the story. it certainly had to be a difficult moment around the family dinner table, since there's no question that chief justice hughes accepting the job meant that his son had to give up the solicitor-general job, which is a very plum job. but it's naive to think he was really going to turn it down.

>> i think some people did think so at the time, but they were probably mislead in various ways. juns one addendum about the fact that he may have had had aspirations for the dheef justice job earlier. there was some possibility he would be appointed as chief justice rather than as an associate justice when he was first appointed to the court. in fact, his being passed over for chief justice might have been one of the reasons he was more lgs to take the presidential nomination than not, because he ultimately aspired to the chief justiceship. >> next telephone call from columbus, ohio. this is mark. hello, mark. >> caller: one thing i wanted to talk about is did he have a problem with the supreme court judges to stay until their 80 or 90 years old, because i think they're way out of touch with the american people. there's a whole lot of things that goes on where they have been in different types of

groups like the kkk and stuff like that, and they still had the same beliefs than what everybody else has in this country. they ought to be appointed by different presidents, we ought to be able to vote them in. i think it would be a little more fair than the way they are right now and it would be more a part of this country than just thinking they're gods or something, you know. >> mark, thanks for your question. he talks p about supreme court justices not knowing much about the rest of us in society, being out of touch. i'd like to hear from both of you about this. >> i think actually this is part of what motivated fdr's court-packing plan. part of what he was saying is some of the older justices had ant kuwaittoe kuwaiindicated no

society and they were out of touch, and that's why all of the justices took offense at his plan. >> i think that's right. those are ideas that maybe we need a retirement age and term limits and maybe we need some way of either making the justices more responsive or either limiting the length in which they serve. it's interesting. these are topics that then attorney hughes addresses in his book about the supreme court, and he talks about the various pros and cons and he's certainly cognizant that there can be difficulties, sometimes justices stay on longer than maybe they should. he concludes anyways at the end of the day the current system we have is the best system you could have when it comes to thinding like vindicating people's individual rights, that it's a virtue and not a vice that the justices are somewhat removed from everyday politics. >> inside this supreme court there are two very large conference rools, the east and west conference rooms used often for public events, and there are

portraits of each of the chief justices who have served. we're going to show you the portrait of charles evans hughes here inside the court. as we look at that, i would like bernie to talk meyler, to talk about the significant things he authored. >> he offered significant opinions. one opinion is significant and underdiscussed is against alabama. this was an opinion he issued early on when he was associate justice. and it involved striking down a law that even though slavery had been abolished under the 13th amendment, it wasn't clear whether labor required in response to debt, or in compensation of debt. so he struck down this law that had allowed for peanage, and

said it wasn't relative, that the party involved was african-american, but said anyone shouldn't be subjected to this requirement of labor for debt. that was one important decision. then, of course, he had a lot of important decisions that he authored during his time as chief justice. and the -- you know, among them were decisions on both sides of the spectrum in terms of striking down economic legislation or upholding it. one case that i think was especially crucial is it signaled his willingness to understand the flexibility that was required by economic legislation pretty early on in his term, was the case of home building and loan association against blazedal. this was a case involving a minnesota mortgage moratorium act. repayment of mortgages was extended. and basically the claim was that this violated the state's responsibility not to impair the obligations of contract.

and chief justice holmes -- not h holmes -- chief justice hughes said it was in the public interest. one of the themes he kept coming back to is the way in which individual rights had to be maintained. but that had to be within the context of a protection of the public interest more generally. >> do you have anything you'd like to add? >> i think those are great opinions to highlight. i think the great thing is, he was the chief justice for a number of years. he certainly wrote more than his fair share of the opinions. so they're definitely opinions we could point to. most obviously the west coast hotel and the laughlin steel cases are the ones that are essentially the pivot points for the switch in time. so those are certainly very important opinions. but i also think that there are some, what i would describe more as civil liberties opinions that

he wrote, near against minnesota, a very important case that is really one of the very first important first amendment cases as part of the courts. now it's hard to imagine the supreme court of the united states without the first amendment. it's an important part of their docket. but near against minnesota is one of the building blocks for the first amendment free speech jurisprudence. and the assembly, and problems with laws that try to target people for being members of unpopular groups, and the court has kind of waxed and waned in many respects. i think the dejong decision he wrote is ahead of its times. >> we have another call. lon is on the air. >> caller: i would like to ask your panelists, with both charles evans hughes and fdr being a part of the new york aristocratic elite, both were progressive governors. one took the path of the highest

elected office, the other went the judicial route. what kind of rapport was there between them, and i was just wondering, behind closed doors, if there's any evidence of any cordiality, or was fdr regarded by hughes as a traitor to his class? also, i was just thinking of this while i was listening to your discussion. was there a point at which hughes realized that even though he was an elected governor, that he realized from his aristocratic background, he couldn't aspire to running for president? even though perhaps he wanted to be president. and i'm thinking of george nathaniel kurzen, the last vice roy of india, who had the ability to be prime minister, but because he was from that aristocratic class, he didn't

have hope of holding that office. >> thanks. the relationship between fdr and charles evans hulghes. can you speak to it? >> hughes swore in fdr on several occasions. so there was an amity between them. but the various tensions over the relation between the court and president at that point in time, it didn't really lead to a very amicable friendship between the two men. and also, hughes himself was somewhat reserved in terms of social life, within d.c. he and his wife only would entertain, or agree to attend dinner parties on saturday night because he felt that it would cont contravene his judicial practice if he went out any other time. so he wasn't as much as a figure in the washington social scene as one might imagine. >> the only thing i would add,

too, he wasn't really from the same aristocratic roots as roosevelt. his upbringing was exceptional from an education standpoint. i think both his parents were really remarkable individuals, but i don't think it was a youth of great luxury, and great wealth. i think most of the wealth he accomplished over his career, was really through his own law practice and his own endeavors. i think there were differences in personalitywise and backgroundwise as well. >> from stockton, california, carol, go ahead, please. >> caller: hi, stockton. >> i thought so. go ahead. >> caller: supreme court justice hughes was he on the -- still the chief justice in 1948? or did he retire before his death in 1948? which would have made him around 85 years old at the time. >> that's right. thank you very much. you jumped into the last part of

his life, but when did he retire from the court? 1941. >> 1941, right. he stepped down when he still had a few years left. and i think that's something that was probably not unintentional. he had, in his time on the court, had seen some justices get to the end of their time and have difficult issues when they should leave. when he first came to the court with justice holmes, and then when he came back to the court as chief justice, even no he had been away for 20 years, the chief justice was on the bench. and he had to deliver the news to justice holmes that his colleagues decided it might be time for justice holmes to move on. i think that was one of the most difficult things he had to do as chief justice. especially because of the closeness between the two men, and i'm sure it was one of the most difficult things justice holmes had to deal with. >> what was his relationship

with with brandice? >> he had a close relationship with brandice initially. brandice was willing to sign on to this letter, or agree to support this letter that he wrote against the packing deal. i think brandice objected to a lot of hughes' judicial philosophies and was much more liberal than hughes. but at the same time respected him as an intellect. this goes back to a theme we comment on a lot, which is his formidable intellect and ability to question various litigants. he was admired by all the other justices. >> i need to ask, you described his formidable intellect. would you, if you could time travel, want to argue a case in front of his court? >> i think it would be fascinating. i think the other justices on the court were kind of difficult personalities from the bench.

so i'm not sure it would be all roses. but i do think it would be a remarkable experience. and obviously you're talking about not just the opportunity to argue in front of chief justice hughes, but also justice brandice, justice cardoza, there were lions in intellect across that court. >> a couple of mechanics questions about the court. today there are about 8,000 petitions for tertiary, have cases hear. they hear about 1 out of 100, 70, 80 cases a year. what was the work load then? >> there wasn't that many more cases they were hearing then, but the petitions for tert were much lower. i think when roosevelt proposed the packing scheme, there were 890 petitions in the prior year and only 100 and something had been granted. that was one of his grounds for complaint against the court, that they didn't have enough energy to hear more cases. we have a much greater