How Did this Get Past The New Yorker’s Fact-Checkers?

The current issue of The New Yorker has an article by Jill Lepore on the history of the Supreme Court’s struggle for independence. The article talks too much about the varying quality for the Court’s chambers over the years, but is otherwise a good introduction to the topic, albeit from an implicitly liberal perspective.

The article does contain at least one whopper dubious assertion. After discussing the controversy over Lochner v. New York (with shout out to Rehabilitating Lochner, thanks!), Lepore writes, “In 1910, Taft appointed Hughes to the Supreme Court, where, as a champion of civil liberties, he often joined with Holmes in dissent.”

This is not an especially well-constructed sentence, but the most natural meaning seems to be that because Hughes and Holmes were both champions of civil liberties, they often dissented together. Or perhaps Lepore meant that Holmes often voted in favor of civil liberties for whatever reason, and Hughes, as a champion of civil liberties, often joined him in dissent. Finally, given the context, Lepore may have meant that as a champion of civil liberties, Hughes naturally joined with Holmes in opposing liberty of contract.

None of these interpretations helps Lepore. For decades Holmes’s liberal acolytes and fans argued to the contrary, but it’s well-established at this point that he was no champion of civil liberties. Holmes did eventually become a defender of freedom of speech, but that didn’t occur until after Hughes quit the Court to run for president in 1916.

Between 1910 and 1916, the Supreme Court heard quite a few First Amendment cases, and unanimously ruled in favor of the government in all of them. Beyond that, using the term “civil liberties” broadly, the two most important such cases were Coppage v. Kansas, a yellow dog contract case which could be interpreted as involving the “right to join a labor union,” and McCabe v. Atchison, Topeka & Santa Fe Railway, raising the question of whether a train company under ICC jurisdiction that provided first class cars for whites must provide them for blacks as well.

The Holmes-Hughes record is mixed. Holmes and Hughes both dissented in Coppage, though Hughes refused to join Holmes’s dissent denying that a right to liberty of contract exists. He instead joined a more tempered dissent by Justice Day.

In McCabe, Hughes wrote the majority opinion holding that African Americans are entitled to the same quality of accommodations as whites, while Holmes dissented. Before the opinions were released, the Justices exchanged terse memos. Holmes explained that he thought that requiring train companies to supply first-class cars to African Americans only when it was economically profitable to do so constituted “logically exact” equality. Hughes responded that to the contrary it was “a bald, wholly unjustified discrimination against a passenger solely on account of race.”

Finally, supporting judicial protection of civil liberties in the early twentieth century did not imply that one opposed a constitutional right to liberty of contract. Indeed, as I’ve elaborated upon in detail, supporters of liberty of contract tended to support broader protection of other liberty rights, and opponents of liberty of contract tended to be majoritarians. Hughes himself endorsed the Court’s due process jurisprudence (while being vague on particulars) when the Court was under attack by Progressive Party candidate Robert LaFollette in 1924. Charles Evans Hughes, President Hughes Responds for the Association, 10 A.B.A. J. 567 (1924).

UPDATE: Hughes did join Holmes in dissent in three cases involving appeals from criminal defendants, including the infamous Leo Frank case (the only one that raised a constitutional as opposed to evidentiary issue). On the other hand, Hughes wrote the majority opinion in Bailey v. Alabama, protecting African Americans from involuntary servitude, and Holmes dissented. Holmes reluctantly concurred in Reynolds v. United States, involving similar issues. Generously, we’re up to four civil liberties cases in six years in which Holmes and Hughes joined in dissent, and two in which Holmes dissented from Hughes’s opinion defending civil liberties, with Holmes and Hughes disagreeing on (a) the existence of a right to liberty of contract and (b) whether the Supreme Court should protect the rights of African Americans to any significant extent.

“Whopper” was too strong a word, but the New Yorker’s vaunted fact-checkers should have flagged the sentence in question. Holmes and Hughes were hardly peas in a pod. Some quick fact-checking would have revealed that of the fifty-five or so Supreme Court opinions that attracted dissents during Hughes’s (first) time on the Court, Hughes and Holmes dissented together seven times, Hughes dissented without Holmes nine times, Holmes dissented without Hughes five times, and they endorsed separate dissents in Coppage.

FURTHER UPDATE: Also see this December piece from the distinguished legal historian Robert Gordon, in which he writes: “But as liberals they were also committed to free speech and civil liberties, which their heroes Holmes and Brandeis had believed that constitutional judges should protect.” The myth of Holmes as civil libertarian beyond his free speech dissents dies hard. Also, I should note the possibility that Lepore didn’t mean anything by the reference to Hughes’ support for civil liberties, but rather that this was just a garbled sentence.

Finally, I want to note again that overall Lepore’s piece is a good introduction to the topic, my objection to the sentence at issue notwithstanding.