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Before lecture on war powers, Gorsuch laments public’s lack of knowledge of the judiciary

On Wednesday night, the Supreme Court Historical Society hosted a lecture by Professor Matthew Waxman on Charles Evans Hughes’ evolving thoughts on the flexibility of constitutional restrictions on government during wartime and peacetime. As is typical of these events, a sitting justice introduced the lecturer. This time it was Justice Neil Gorsuch, the first time he has spoken at a historical society event. Generally, the justices speak briefly. They usually thank the society for hosting the lecture, praise the speaker for her work and perhaps crack a memorable joke. But Gorsuch used his time to deliver an impassioned defense of the judiciary and civility, while criticizing the American public’s ignorance of the structure of our government.

Gorsuch said he has been astonished to learn that “a lot of people in America just don’t understand the role of an independent judge. They don’t know the difference between judges and politicians. They assume judges make campaign promises, and should… And that judges are just politicians in robes.” He ascribed these feelings to a general lack of civic knowledge among the general public. He cited an Annenberg study showing that one third of Americans cannot name any branch of government. Gorsuch pointed to another study and said, “Almost nobody knows that James Madison wrote the Constitution, they all think it was Thomas Jefferson … and he was in France!” The justice noted that even law clerks who come to his office fail to recognize a portrait of Madison hanging above a fireplace.

Gorsuch spoke passionately about the benefits and importance of an independent judiciary. He said, “as difficult as our times sometimes seem, we are very blessed.” He asked rhetorically, “how many places in the world can you go where you can rest assured that you can have an independent judge decide your case?” Gorsuch singled out North Korea for having an expansive bill of rights that promises its citizens a right to free education, free medical and relaxation. He joked that he would enjoy a right to relaxation, but he argued that those North Korean rights are “not worth the parchment they’re written on because you don’t have judges to enforce them.”

Gorsuch then moved on to the second concern he has noticed during his time as a judge. He listed civility, human decency and kindness as “under assault in our society right now, and in our profession.” He criticized civil litigation specifically for its lack of civility and expressed concerns about civility becoming a bad word or passé. He wrapped up his point by stressing to the audience that people they may disagree with “love this country as much as you do.”

Gorsuch’s remarks were not all negative. He began with praise for the historical society and reflected positively on his first year and a half on the court. He admitted that he was surprised by how little the court has changed since he clerked for Justices Byron White and Anthony Kennedy 25 years ago. He joked that he was excited to have recently received his first email from one of his colleagues. It was not even work related: “[H]e was asking for directions to my house for dinner.” He was also excited to introduce Waxman, whom he described as “one of my very favorite people in the world.”

Waxman’s lecture focused on Justice Charles Evans Hughes. Hughes served two stints on the court: as an an associate justice from 1910 to 1916 and as chief justice from 1930 to 1941. Waxman focused, not on any rulings Hughes made on the court, but rather on a 1917 speech in which Hughes, speaking as a private lawyer five months after the United States entered World War I, introduced what Waxman defined as Hughes’ war powers axiom: “that the power to wage war is the power to wage war successfully.” In other words, Hughes argued that to achieve success in an overseas, industrial-scale war, constitutional restrictions on the federal government should be loosened during wartime. Hughes was a private citizen when he made this speech, but it had a significant impact nonetheless. He had just run for president as a Republican against President Woodrow Wilson, but he presented an analysis of why Wilson and the Democratic Congress were justified in pursuing expanded powers during wartime. The New York Times covered the speech on its front page, while many other newspapers printed the speech in full. Waxman said that Hughes’ influence was enhanced by the fact that, as Justice Robert Jackson once said, “Hughes looked like God and talked like God.”

According to Waxman, Hughes was specifically arguing that Congress should be allowed to take two controversial actions during wartime. First, it should be allowed to institute a selective service draft. At the time, Waxman pointed out, it was not settled law that the federal government could conscript citizens to join the army. Second, Congress should be allowed to regulate the national economy to fit the needs of the war effort. This was the height of the Lochner era, and any restrictions on economic freedoms were looked upon with skepticism by the courts. Hughes argued that the “necessary and proper” clause in Article I of the Constitution required that congressional powers must expand during wartime. Waxman noted that this theory of elasticity in constitutional powers during wartime eventually won out and has since been accepted by all three branches of government.

Hughes’ theory requires that there be clear lines between wartime and peacetime and that the expanded constitutional powers granted to the government are retracted once the war ends. As it turned out, Hughes began to speak out against the expanded rights of the federal government just a few years after he had advocated for those expanded powers. A November 1918 armistice effectively ended the fighting in Europe; to Hughes, this meant that the war was over and that normal constitutional restrictions on the federal government must return. But for Wilson, who in his request for a declaration of war defined his goals as “[preventing] the recurrence of war and to make the world safe for democracy,” the war was not over just because fighting had stopped. Waxman noted that Hughes was anxious over the continued use of wartime powers, saying that the country risked “losing its soul” if wartime powers were exercised in peacetime. Hughes even litigated against the government for seizing undersea cables operated by private companies after the armistice, arguing that the war was over and so the government should not have been allowed to seize the cables. Not only did Hughes lose, but the judge in the case even used Hughes’ own axiom, that “the power to wage war was the power to wage war successfully,” against him.

Later in his career Hughes’ thoughts evolved yet again. He “curiously seems to have backed off these worries” about wartime powers extending into peacetime, Waxman said. As Chief Justice, Hughes even quoted his war powers axiom in a seemingly unrelated case about state mortgage regulation during the Great Depression. Waxman theorized that Hughes may have  reverted to his original position in part out of political expediency. Hughes served as secretary of state for President Warren Harding, who pledged a “return to normalcy,” and Hughes even negotiated the peace treaty that formally ended the war. To Waxman, it remains somewhat of a mystery how Hughes reconciled his theory of expansive wartime powers with his concerns about those powers extending into peacetime.

Waxman concluded by saying that World War I was the moment when “the differential between the federal government’s war powers and its peacetime powers reached its apex.” Although war powers provided the initial basis for Congress’ expanded power to regulate the economy, such regulation is justified now under a broader reading of the commerce clause. While war has grown more and more complex, “legislative war powers have not had to keep up, in part because other constitutional powers now do so much work,” Waxman said. Ultimately Waxman argued that there is no longer a large set of legislative powers for war to open up today, though a few do remain.

Recommended Citation: Jon Levitan, Before lecture on war powers, Gorsuch laments public’s lack of knowledge of the judiciary, SCOTUSblog (Oct. 19, 2018, 5:30 PM),