"How amazing it is that, in the midst of controversies on every conceivable subject, one should expect unanimity ofopinion upon difficult legal questions!.. The history of scholarship is a record of disagreements. And when we deal with questions related to principles of law and their applications, we do not suddenly rise into a stratosphere of icy certainty."
Chief justice Charles Evans Hughes, 1936
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Most people find the way courts work maddening. It is not something you want to put too much thought into. It is not the perfect system, just a marginally workable system. Consider the arguments before the Supreme Court on health care. The court is just deciding whether the bill, as it stands, is constitutional. This does not give a value judgment, supposedly, on whether it is a good idea or not. Yet these are human beings. Every judge is a person, with ideas and motives and feelings. They cannot cover those up when they put on their judge's robes. Yet, they must, if our system is to work at all, or we are to accept that they tried.
I certainly think that Hughes is valid in his argument that there is much in way of uncertainty in the principles and applications of the law. Yet, I think that his own background clearly suggests that while there is much in way of discussion and, perhaps, ambiguity, this does not prevent some level of certainty from being achieved. Hughes was quick to establish certainty when President Roosevelt wanted to increase the number of justices on the court from 9 to as many as 15. Certainly, in this disagreement, Hughes was quick to embrace "the icy certainty" that came with his position as Chief Justice. Such certainty, icy or not, can be seen in his decisions and tenure as Chief Justice. He was ahead of his time in decisions such asNorris v. AlabamaandPatterson v. Alabama, embracing language and ideas that would serve the Warren Court well in articulatingBrown v. Board of Education. InUnited States v. Darby Lumber, Chief Justice Hughes acted swiftly and decisively to strike down child labor. He did not find himself trapped "in disagreements" through these decisions, but rather spoke with lucidity and determination in voicing his opinions. I think that this helps to bring out that while Hughes understood the need and omnipotence of ambiguity and doubt, this should not be used as a crutch to prevent taking action in the name of the Constitution. In this, Hughes proved to be radical in being able to embrace insecurity and doubt, intellectual quagmires and discourse, and not become hostage to them as Chief Justice.
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