of cases that are -- petitions than the number granted. >> oral arguments generally an hour today. what were they at that time? >> i think they were still typically more constrained. in the early days of the court, cases would go on for days. but in front of chief justice hughes, they were for limited. but just to follow up on a good point that was made, i think one of the stories of the supreme court as it's developed over history is more and more of its docket has become discretionary. so at the time that justice hughes was on the court, one thing he did is he moved the court more in the direction of having greater discretion over which cases to take. and initially that was a source of at least potential controversy that they were exercising their discretion not to hear some cases. of course, by today's numbers, it seems quaint. now the court literally only hears 1 in 100 cases that someone would like them to hear. >> we have a half an hour left to go.

we're featuring charles evans hughes, who was the nominee for president in 1916. it was a close election against wood row wilson who was vying for his second term. hughes went on to serve as chief justice, a second term on the supreme court. and was very much at the center of things during fdr's court packing scheme. from mississippi, anita. anita, hello, you're on the air. >> caller: to the professor, i hope you have a healthy and happy baby. i try to catch you every friday night. my question is, hughes, justice hughes sounded like a man who was for progression, and i hear you wax and wane about how he wanted the blacks for it. i wonder what you all would think about women stepping forward and them being on the court now, and what he would think about the wrong doings that are going on in the court today. >> i think that that's a really

interesting question about his attitude towards women. we heard a little bit earlier that he was in favor of penal suffrage than a lot of other people. i think his attitude about women was somewhat ambiguous. as governor of new york, he was an advocate for more progressive legislation than later. some people argued he turned more to the right later in his career. but among the kinds of

legislation that he was interested in, at that point, was to protect women and children laborers. but some opposed those kinds of measures, because they thought that they were paternalistic. even in his later time on the court, and as chief justice in a -- in another case, he in a sense used a somewhat paternalistic logic about protecting women in unfair labor practices. not just protecting any laborer, but that women might need special protection. so on the one hand he was in favor of allowing women more autonomy, but on the other hand he also had a paternalistic

viewpoint. >> columbia, tennessee. this is bud. as we discuss charles evans hughes. >> caller: hello, and thank you for a wonderful program. i would like to know the opinion from your panelists as to what you believe charles evans hughes might make both politically and judicially on what's going on in wall street right now. >> well, can you project? >> well, you know, everybody's got their own perspective on what's going on at wall street right now. but i think charles evans hughes was in some respects one of the great early reformers. and if you think about the trajectory of his career, he didn't seek out public service, you know, for sort of its own sake, or as something of an elective office. he sort of came to public service through his law practice and through an opportunity to kind of investigate industries where there was a lot of corruption, and i think this is something that was a hallmark of his career. i think even in his presidential run, it's probably consistent with the idea that he wasn't necessarily the world's best back-slapper, or knew how to build alliances with people. i think he was really focused on getting rid of corruption and not caring if that meant a few sacred cows got slaughtered in the process. >> you mentioned that his was one of the first controversial appointments as the chief justice. and i read that one of the -- both sides were concerned he would be too pro-business. >> yes. this is a very interesting and somewhat paradoxical concern. given both his earlier term on the court and also his time as governor. so as governor, and i think that's quite right is combining teddy roosevelt's mind-set, that people were very concerned that his time as a private attorney,

and his time in private practice had led him into pro-business alliances that would make him indisposed to regulate companies anymore. so i think that the main issue was the time he had spent in private practice, although i think that that concern was not really warranted given his earlier career. >> i'm going to take a call from toledo, and then we have a clip about charles evans hughes and race. toledo, tony, you're on the air. >> caller: hello. thanks for taking my call. this particular question may be directed toward professor clement of the georgetown university law school professor. sir, how do you feel mr. hughes would have responded to electing officials on an international organizational scale such as the rockefeller funded united nations, being able to dictate international law as opposed to an elected official who would use the congress to pass

particular laws? >> thank you. >> well, that's a great question. and it's one where i think that the chief justice hughes would have, i think, very kind of nuanced views and not something where you would say, oh, boy, he would really be hostile to the international organizations. because, of course, this is somebody who came to the chief justiceship after serving on the international court in the hague. so he's been sort of an internationalist, if you will. and in his writings, he has been less critical of the idea that international law is our law. in fact, in his book he specifically says, international law is our law. on the other hand, i think he would ultimately say, though, that our own elected officials have the ultimate say over what the scope of our laws are.

and i think he would have a view that congress had quite a wide scope to embrace international law principles. but that if congress wanted to say that certain principles of international law did apply to the united states, then that would be the last word. >> i think that's exactly right. he says that congress has the last word. but international law can fill in the gaps in certain respects. but i also think he was kind of ahead of his time in promoting u.s. involvement in the court of international justice. he was not only a judge on that court but advocated the u.s. as adopting jurisdiction, or be under the jurisdiction of the criminal court. >> we had a few callers who asked about charles evans hughes and race. we're going to return to charles evans hughes' law firm still existing in new york city for a story that hughes tells in his autobiography. >> in the charles evans hughes conference center, we've tried to select things that reflect important periods or stages in justice hughes' life. we've collected a number of different things, including original books that justice hughes authored. most notably the autobiography, which we find to be especially interesting. my favorite story in here is one

that justice hughes tells of a visit that he scheduled when he was the president of the baptist society in new york city. he asked booker t. washington, the notable civil rights activist at that time, and religious person himself, to come and speak to the assembly. and when booker t. washington and his wife arrived, justice hughes escorted mr. washington and his wife to his own table and sat him there. which at that time unfortunately was a very controversial thing to do. justice hughes took advantage of that to speak to the assembly about the importance of diversity, and tolerance. he was disappointed that a group of religious people themselves would be intolerant to having booker t. washington at his table. >> we have about 22 minutes left

to go in our two-hour look at the life and legacy of charles evans hughes, the contender, a man who sought the presidency and lost but changed american history. we've brought back one of our first guests, david pietrusza, who is joining us still on the plaza of the supreme court. and david, one aspect of his life we have not spent any time on as we should, is secretary of state in the pivotal post-world war i years. can you talk about the contributions he made in that role? >> absolutely. he regarded not only as one of the great chief justices, he's regarded as one of the great secretary of states. when he leaves, he's regarded as the top three.

john quincy adams, secretary seward as has been mentioned before and himself. what he does is he inherits really a great mess, because of the failure of the league of nations and talking about him in international affairs and international law, he was for the league of nations, for the american -- the united states of america to enter the league. the but he was not about to seek sovereignty to the league of nations. he was opposed to article 10 of the league of nations. talking about the boundaries, such as ireland or mess created in europe. so he was opposed to that. he thought the league could be fixed. he planned to submit a clean bill, sort of treaty which could get through the senate when he became secretary of state. unfortunately that was impossible. warren harding saw this maybe a little quicker than he did. but hughes recognized the truth of that, that it was really a fool's error to go back there. the senate was not going to approve that. but he moves on from that. he stays. he thought about resigning. he stays. he has -- really, he pioneers an international disarmament, and a groundbreaking navy treaty caps the ratio of 10-10-6, the unite

states, the united kingdom and japan. this is a good deal for the united states, because with our congress we were not about to spend the money on the military. we would have lost ground to japan in that decade. also, he moves on to other treaties in the far east. he gets japan to give the province of shantung back to china, which was a major accomplishment. and it's a thing which people really wouldn't believe. but going into that decade, the united kingdom, britain, was united in treaty, that is, if they were attacked or the other party was attacked, they would go to war, and the other party was with japan. and there was a fear of the united states if we got embroiled in a controversy with japan, we are might have to go to war with britain on that. he broke that treaty very smoothly, a four-power pact. one thing he was not successful in is the immigration treaty with japan, which was in 1924, and was the japanese exclusion act. he tried quite hard to get that ameliorated. he was not able to do that. the senate was a great problem to him in foreign affairs. it would be a tossup between that and france. >> next telephone call with our three guests, greensboro, north carolina, this is charlie.

you're on the air. >> caller: wonderful series and i'm thankful for c-span. who was on the republican side that ran against hughes? i had heard that had the other person been the nominee, this woe have beaten wilson. >> well, am i supposed to take that one? if i am, really, the contenders that year were senator fairbanks

who had been vice president under roosevelt. there was a senator berken of ohio i would hesitate to say that any number of -- any one of those would have run a better race than hughes. i think that, really, the deck was kind of stacked -- it being so close, if you change any one thing, if maybe you don't have the railroad strike, which impacted the voting in ohio, as much as high ram johnson did in california, you just don't know. but i don't know if you could say it was any one stronger candidate, if he had been the candidate -- if he had been so strong, he would have won the nomination. >> for all three of our guests, we're going to go one at a time in between calls, it's time for us to wrap this conversation up

and to think about charles evans hughes' legacy. how the world might have been different if he hadn't been here. what our country might have been like if he hadn't served. i'm going to take a call and then i'm going to start with you. so that will give you a chance to think about that. puerto rico, this is gerald. >> caller: yes, good evening. i would like the panelists to explain why the hughes court decided to disregard the judicial precedence, specifically the ruling in schechter and carter, in order to recognize for the first time a fundamental right to organize unions, in the case of national labor relations board versus jones. could you please speak on the judicial reasoning? >> i'll give it a try. and i do think that there is a way to reconcile those opinions. another caller pointed this out earlier, but it's easy to think about these decisions on both sides of the famous switch in time as being 5-4 one way and all of a sudden they're 5-4 the other. but the story is much more complicated that.

and schechter poultry was a unanimous decision. every member of the court said that there was something wrong with the statute at issue there. the schechter poultry is still on the books as a precedent. i mean, it leaves lawyers kind of scratching their head. it's the birth of what's called the nondelegation doctrine. and from time to time lawyers try to fit cases into the nondelegation doctrine. but that was really a different doctrine that was at issue when the wagner act, the nlra comes before the court. what i think is really precedent-setting and comes prior to that decision is really the court in the previous decisions had distinguished commerce from production, or other forms of economic activity. and it's something that i think had -- there are distinctions to

draw. if you look at the pre-1937 clause jurisprudence, it's this categorical approach really did require some very thin, very difficult distinctions. so i do think in that sense, those decisions were not so satisfying that they were decisions that were not that easy. i mean, i think the court essentially ultimately became persuaded of that way looking at the commerce laws just wouldn't work. >> a first shot at the legacy question goes to bernadette meyler. >> i think it relates to what paul clement was just talking about, which is that basically the hughes court wound up creating the modern commerce power. or allowing for the commerce power to be construed broadly. and so much of the regulatory system that we're under right now, or that we can enjoy really

derives from congress' power under the commerce clause. and so i think that that's one of the things that hughes shepherded the court through a difficult time and allowed for this outcome to emerge where the commerce power could sort of be much more expansive than previously. >> back to calls. this time, philadelphia. hello, charles. >> caller: hi. professor clement, i want to thank you for your record of public service. but the question i wanted to ask about was chief justice hughes' attitude toward oral arguments. did he believe oral arguments should be like they are today, which are largely focused on questions, or did he have another attitude towards that? >> thanks very much. paul clement. >> thank you. he had a more balanced view of oral argument, i think, in the sense that i think he understood both the virtues of asking questions and also the virtues of having lawyers have an ample opportunity to explain their positions.

and i think in a sense, we've moved to a different place historically, where now supreme court argument anyway is really dominated by the questions. it's funny, at that time justices, and it is booked almost like they felt the need to explain why it was appropriate for them to ask questions at all. i think some lawyers had the idea that oral argument was their time and they got to give this nice prose to share with the justices. i think he thought it was important for the justices to have an opportunity to ask questions, and to have an understanding of what was bothering the justices about their side of the case. >> from washington, d.c., welcome to our discussion. fred, you there? >> caller: yes. >> your question? >> caller: my question is, i would like to know if any of the members of the panel can make a comment about justices' views of separation of church and state.

or at that time any of their colleagues, what was their view. >> thanks very much. >> caller: if any of the members of the panel can answer that. >> do you want to take that? >> sure. this was a moment in time when the notion of a wall of separation was actually coming into common parlance, or becoming much more prevalent. and also, the hughes court was quite important in terms of religious liberty more generally. so under the hughes court, both the pre-exercise clause and establishment clause of the first amendment were incorporated against the states through the due process clause of the 14th amendment. so they were held to apply to the state-to-state actions. as to that allowed for a lot more suits based on violation of religious liberty that had previously occurred.

>> how about you take your crack at the question of charles evans hughes' legacy? >> i think it's important that he -- of how he stopped the court packing scheme. how the regulatory nature of the decisions changed. how he put the health of the republican party back together again. i think his legacy is one of service, of a man who time after time leaves his normal stage of life to serve his country and does it with remarkable intelligence and integrity. and at a time of so much fractiousness in our nation, i think it's good to look back on positive examples, and to take hope from them. >> i read in one biographer he felt the constant tug between the legal and political spheres. did you have that same sense of him? >> yes. but i think -- one of the -- i think after he left the secretary of stateship, somebody said of him that he was our first citizen. and i think that is such a wonderful thing to say. and certainly such a true thing to say about him. but again, he made amazing

sacrifices, amazing sacrifices. when he left the state department, he was able to earn $400,000 a year. some of the jobs he had prior to that were in the range of $12,000. so part of the fact of leaving he knew he had to take care of his family. but in between all those times, and even when he was off the court, if you take a look at all the organizations he was involved in, including the foundation of the national conference of christians and jews to advocate tolerance in the mid-1920s, at a time when often it was in short supply, the man was a powerhouse, tireless, whether he was in public service officially or

not, he was always doing the public's work. >> and we have ten minutes left in our program. we have time for just a couple more calls. but let me ask the same question of you, legacy. >> i would say there's really two aspects of it obviously i'm approaching this from the legal aspect. i think what makes the legacy is so interesting is we're still dealing with this issue. chief justice hughes rejected what i would call the categorical approach to the commerce laws. but even he was very quick to add that the commerce clause was not unlimited. that it was a limited power. and the framers had enumerated the various powers in the constitution, including the commerce clause, and none of them gave the federal government

an absolute plenary power. and so he laid out the basic framework that we're still wrestling with, and we still have this idea that the commerce clause is broad, but it's not unlimited. and where those limits are is something we continue to struggle with. but that's a part of his legacy. the other thing i would really

emphasize is the legacy of independence. because i do think the court packing idea was probably the single greatest challenge to judicial independence. at least, you know, in the 20th century. and i think the way that he sort of fought that off, i think is something that's -- like i said, i don't think we'll see another court packing effort. i think that's a great legacy. i would just add to that that in his book about the supreme court, he addressed what he thought were the three worst supreme court decisions that the court had made up to that point, what he called self-inflicted wounds. and one of them was a decision in the 1870s, called the legal tender decision, and what is interesting about it is it's a case where the court first

struck down a statute, and then after a change in its membership, ended up upholding the statute. in commenting on that, he said it was really the court's fault in handling it. and that it wasn't president grant's fault, and uses the word court packing. he said nobody would accuse president grant of packing the court. this is something that was in the back of his mind, even before he was a chief justice. he seized this threat to the court, a real threat and fends it off. that is a real worthy legacy. >> from massachusetts, this is greg. >> caller: hello? >> hi, greg, you're on. >> caller: i'm curious, when does chief justice hughes get done being on the court? >> 1941, greg. what's your follow-up? >> caller: so was he the chief justice when komatsu versus komatsu was written? >> no, he's off the court by that point. >> david pietrusza, let's have, have you explain about his final years. he re signs from the court, as we just said, in 1941, and lives until the next five or six years, dies at the age of 86. what were his final years like? >> well, he's very old when he goes on the court and he's very old when he gets off the court. two years before he gets off the court he gets a real scare. it was almost like a stroke. in fact, it's a duodenal ulcer. but he recovers.

in 1941 he's actually fairly vigorous. what does happen, however, he remains -- he doesn't return to new york. his children are up there. but he remains in washington, d.c. he had been -- you know, his marriage was really a very close one, very wonderful. but at this point he decided, i'm going to make up for lost time, a time which i had been away from my wife all this time. but she takes ill fairly quickly. i think by the end of the war, she has passed away. and it's a very tragic time for him. it's one of the few times which is ever recorded him of losing control of his emotions when she has passed. and then it is so painful for him. but his health continues fairly strongly, until 1948. he goes up, i believe to cape cod, and there he takes a sudden turn for the worse, passes away. he had a fear, i think it was to be like -- not to be like justice cardozo, who had been helpless at the end of his life. and in this -- his wish was granted. his time of infirmity was really a matter of just days, if not hours. so he passed away with all the dignity with which he had lived. >> we have just about four minutes left. we talked about the fact that he swore in fdr three times, even though they had this epic battle

over court packing. we have this clip of him swearing in franklin delano roosevelt. >> do you, franklin delano roosevelt, swear you will faithfully execute the office of the president of the united states, to preserve, protect and defend the constitution of the united states, so help you god? >> i, franklin delano roosevelt, do solemnly swear, that i will faithfully execute the office of the president of the united states, and will to the best of my ability preserve, protect, and defend the constitution of the united states, so help me god. >> charles evans hughes, swearing in franklin delano roosevelt. and his legacy, as chief justice, especially during the court packing era, something we've discussed during this edition of the contenders. we have just a couple of minutes left. i'd like to go back where i

started, paul, and that is to talk about the 1916 election. if he had won that, and woodrow wilson had not won a second term, specifically there, how would the world have been different? >> well, i think, you know, that's a very consequential question in the sense that it's always hard to try to reconstruct what would have been so different if some critical factor had not taken place. i mean, wilson obviously was a president who led us through the entry into world war i. and moved us forward. so i think he's somebody that history regards very well. i have to say personally, though, understanding the character of person, that charles evans hughes was, it's hard for me to think that we would be poorly served even during that critical time by somebody who had done so exceptionally well in so many different ways. and certainly as his later service of secretary of state shows, he is somebody who i think would have been very, very comfortable in leading us in our foreign affairs. >> david pietrusza, what are your thoughts on that in regard

to entering into world war i? >> i think in world war i a change would have been made. because what we're talking about is the peace process. woodrow wilson botches that spectacularly. we see how hughes handles the treaty-making process when he's secretary of state. he gets the treaty in and submits it to the senate, passed almost overwhelmingly. also what i neglected to mention in his post-chief justiceship years is, he's called in to consult on the structure for the new united nations. at this advanced age. and he strikes some things regarding the structure of the security council, puts some things in. and makes it far more workable. he's a very practical guy. the and h