Page 17 - NYLS Magazine • 2014 • Vol. 33, No. 2

Edward A. Purcell Jr. Examines a 1936 High
Court Case Used as Authority for Independent
Presidential Powers in Foreign Affairs.
By Ruth Singleton
the 7–1 vote, that the majority included both Justices Louis Brandeis and Benjamin N. Cardozo, and that Justice Harlan F. Stone—returning to the bench after a long illness—subsequently expressed his sharp disagreement with the Court’s opinion.
Professor Purcell noted that there were “rich sources available in this period,” particularly the private papers of several
of the Justices and the collection of the Supreme Court’s Office of the Curator, which holds docket books of several of
the Justices. By delving into these private letters and docket books, Professor
Purcell gained crucial insights into the deliberations in the case. Even though “you never find exactly what you’re looking for,” he said, “you’re able to find enough.”
Based on this extensive archival research, Professor Purcell makes a compelling argument that Chief Justice Charles Evans Hughes (a former NYLS special
lecturer), rather than the Curtiss-
Wright opinion’s author, Justice George Sutherland, was the driving force behind the ruling. He not only shows how the Court’s opinion in Curtiss-Wright departs from Sutherland’s earlier and extensive writings on foreign affairs, but he also explains why Sutherland altered his views substantially to embrace the language of “plenary and exclusive” executive foreign affairs powers. Professor Purcell similarly explains why Brandeis, a determined opponent of unnecessary constitutional language and a skeptic about unchecked executive power, acceded to Hughes’s leadership on the issue. Professor Purcell argues most basically that the Chief Justice was able to convince all but one
of his fellow Justices to sign on “for pragmatic reasons of foreign policy—to lend support to President Franklin Roosevelt’s efforts to limit congressional neutrality legislation and to pursue
an anti-Nazi foreign policy.” Justice Hughes had served as Secretary of State under President Warren G. Harding,
an experience that engendered a deep skepticism about the Senate’s role in foreign affairs and “confirmed his belief in strong and independent executive leadership in foreign affairs.”
As for Curtiss-Wright’s lasting legacy, Professor Purcell said, “Everyone who wants expanded executive power cites it, but it’s of exceptionally uncertain
worth—it’s utterly easy to distinguish.” He observes in the article that the
case “presented no issue of unilateral executive action and no claim that individual constitutional rights were infringed. Thus, on truly critical and open constitutional issues, it quite literally
has nothing to say.” But the case remains a noteworthy product of its time. And Professor Purcell offers a riveting glimpse into the dynamics and relationships among the Justices of nearly 80 years ago, a time when the Court was deeply polarized but still capable of forging
an overwhelming majority in a time of international crises. •
“Everyonewho wantsexpanded executivepower citesit,butit’s ofexceptionally uncertain worth—it’s utterlyeasyto distinguish.”
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