Taft believed that democracy would perish if the people could express their preferences in initiatives and referenda, the precursors of today’s Twitter polls or Brexit votes, rather than having their views filtered through constitutional structures and enlightened representatives, checked by independent judges to ensure thoughtful deliberation. And today, as populist politicians attack judicial independence, progressives are joining conservatives and libertarians in rediscovering the dangers of demagogic leaders who rule by executive order or pander to popular whims. In anxious times, Taft offers an unexpected and appealing model of a chief executive who took seriously the constitutional constraints on all three branches of government and, as chief justice, enforced those boundaries with vigor.
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“A Judicial Temperament”: The Education of Judge Taft
William Howard Taft inherited his judicial temperament and constitutional vision from his father, Alphonso Taft. A mutual acquaintance who heard the young Judge Taft hand down a decision exclaimed: “That young man has the judicial temperament, and the power of analysis and clear presentation of his father to an extent that is amazing.”1 Alphonso Taft was born on November 5, 1810, on a farm in Townshend, Vermont. He was graduated from Yale College and Yale Law School and then settled in Cincinnati, Ohio, where in 1841 he married Fanny Phelps, the cultivated daughter of a county judge. Two of their five children survived infancy: Peter Rawson Taft II and Charles Phelps Taft, who became a U.S. congressman and owner of the Cincinnati Times-Star, the Philadelphia Phillies, and the Chicago Cubs. Fanny died eleven years later, in 1852, and the following year Alphonso married Louisa Maria Torrey, a graduate of Mount Holyoke College, who later became a champion of women suffrage and free education.
As a delegate to the first Republican Convention, held in Philadelphia in 1856, Alphonso Taft voted for the first Republican platform, in which the delegates declared themselves opposed “to the extension of Slavery into Free Territory.” Appalled that President Franklin Pierce had signed the Kansas-Nebraska Act of 1854, which allowed the extension of slavery into territories north of the line drawn by the Missouri Compromise, the delegates insisted that “the dearest Constitutional rights of the people of Kansas have been fraudulently and violently taken from them.” And they resolved: “That the maintenance of the principles promulgated in the Declaration of Independence, and embodied in the Federal Constitution are essential to the preservation of our Republican institutions, and that the Federal Constitution, the rights of the States, and the union of the States, must and shall be preserved.”2 This resolution would define the political philosophy of both Alphonso and William Howard Taft, who was born the following year, on September 15, 1857, two days before the seventieth anniversary of the signing of the Constitution.
Alphonso and Louisa Taft’s first son had died of whooping cough, steeling Louisa’s determination for the survival of her second son, known as Will, who delighted his doting mother with his sunny temperament and good humor. “He is very large of his age and grows fat every day,” his mother wrote of Taft as a baby. “He has such a large waist, that he cannot wear any of the dresses that are made with belts. He spreads his hands to anyone who will take him and his face is wreathed in smiles at the slightest provocation.”3 Three more children followed—Henry, Horace, and Fanny—and Will would consult them for political advice along his circuitous path to the White House and the Supreme Court.4
In 1851, Alphonso had bought a substantial Greek Revival house in Cincinnati with eight bedrooms and room for five Irish and German servants, where Will was born, grew up, and returned after college. The comfortable library in the Taft house still contains some of the law books that Alphonso and Will read together during Will’s youth, filling the house with conversation about law and the Constitution. They include a first printing of the infamous Dred Scott decision published in 1857, the year of Will’s birth, with a handwritten notation on the cover calling attention to Justice Benjamin R. Curtis’s dissent. Other books in the library include a Political History of Slavery in the United States and an early edition of the Lincoln-Douglas debates. Alphonso gave some of his law books to his protégé George Washington Williams, an African American politician, historian, and diplomat from Ohio, who later endorsed his nomination for governor in 1879 in these terms: “Judge Taft, the only white man in the Cabinet of any President during the last eighteen years who had the manhood, the temerity and humanity to exact … the powers of the Constitution of the United States to protect the black man in the exercise of his constitutional rights.”5
On the Ohio Superior Court, Judge Alphonso Taft’s most famous opinion was an 1870 dissent in a case about Bible reading in public schools. In the 1860s, the Cincinnati school board had banned the mandatory reading of the King James Bible in the classroom, after failing to resolve a conflict between Protestant and Catholic parents, who preferred the Douay version. A majority of the court struck down the ban, on the grounds that “revealed religion, as it is made known in the Holy Scriptures, is that alone that is recognized by our Constitution.”6 In his forceful dissent, Taft held that sectarian reading from the Protestant Bible was offensive to Catholics and Jews and represented an unconstitutional preference of one religion over another.7 The Framers of the U.S. and Ohio Constitutions, he emphasized, intended to prevent the “union of Church and State.” Following Alphonso Taft’s reasoning, the Ohio Supreme Court unanimously reversed the Superior Court’s decision in 1872, and nearly a century later the U.S. Supreme Court agreed that no sect may be preferred over another.8 Alphonso may have been influenced by his Unitarian faith, which he passed on to his son. Will Taft later declared as much, with the admirable candor that often bedeviled his political career. “I am a Unitarian. I believe in God. I do not believe in the Divinity of Christ,” he said, “and there are many others of the postulates of the orthodox creed to which I cannot subscribe.”9
Alphonso lost the Republican nomination for governor to Rutherford B. Hayes in 1875 and lost again four years later; he blamed his defense of the separation of church and state for both defeats.10 Both father and son viewed the political difficulties that resulted from unpopular constitutional rulings as a sign of their principled devotion to law rather than to politics.
His son was so sensitive to slights against his father’s honor that when a newspaper editor published an item criticizing Alphonso Taft, Will confronted the editor on the street, lifted him up, and bashed his head repeatedly against the ground.11 (These spasms of anger would recur throughout Taft’s career, as he lashed out self-righteously against those he considered disloyal.) And Alphonso reciprocated his son’s devotion. But Alphonso’s dauntingly high expectations, combined with a habit of withholding parental approval when his son failed to meet them, created a lifelong anxiety in Will that he expressed repeatedly in family letters. This pattern would continue when Will faced similarly conditional displays of approval from his demanding wife and from his political mentor Theodore Roosevelt. After Will ranked fifth in elementary school, for example, Alphonso declared: “Mediocrity will not do for Will.”12 Will did better at Woodward High School, graduating second in his class and earning admission to Yale, his father’s alma mater. While at Yale, Taft wrote anxiously to his father, “You expect great things of me, but you mustn’t be disappointed if I don’t come up to your expectations.”13
Taft’s anxieties were increased by his tendency to procrastinate, requiring intense bursts of work as deadlines approached. But despite his inconsistent self-discipline—a tutor once wrote to his father that Will had received sixteen marks for irregularities of attendance—he graduated second in his Yale class. (His half brother Peter had been first and their father, third.)14 Like George Washington, Abraham Lincoln, and Theodore Roosevelt before him, Will Taft was an accomplished wrestler, winning the Yale heavyweight championship at his best college weight of 225 pounds.15 He also joined Skull and Bones, the secret society his father had helped to found, and was considered the bes
t debater at Yale. One of his teachers later recalled, “He was highly popular with the faculty because he used all his influence to dissuade his fellow students to keep out of scrapes. He always wielded his influence on the ground of order, decency, and common sense.”16
In the fall of 1878, after graduating from Yale, Taft returned home to enroll in the Cincinnati Law School. While studying law, he worked as a court reporter for the Cincinnati Commercial Tribune, and his dispatches about the probate cases and domestic disputes in local courts were clear and well observed. During the summer of 1879, Taft worked in his father’s law office, where Alphonso continued to chastise him for frivolous procrastinations, such as leaving the office early to watch the traveling Yale boat races. “I do not think you have accomplished this past year as much as you ought with your opportunities,” his father wrote sternly. “Our anxiety for your success is very great and I know that there is but one way to attain it, & that is by self-denial and enthusiastic hard work in the profession.”17
After graduating from law school in 1880, Taft became assistant prosecutor of Hamilton County, an appointment he owed to his father’s political influence among Ohio Republicans. “What I really know of the law,” Taft liked to declare, “I learned at the expense of Hamilton County, Ohio, as assistant prosecuting attorney, and judge of the Superior Court.”18 He had no interest in running for office but dutifully canvassed for Republican candidates.19 As Taft’s reputation for honesty and integrity grew, Congressman Benjamin Butterworth recommended to President Chester Alan Arthur his appointment as collector of internal revenue for Cincinnati.20 And so in January 1882, at the age of twenty-four, Taft left his job as assistant prosecutor to become the youngest tax collector in the country.21 A contemporary profile described his appearance in admiring terms: “Personally, Mr. Taft is large, handsome and fair, with the build of a Hercules and the sunny disposition of an innocent child.”22
As tax collector, the young innocent got his first taste of partisan politics, and it repelled him. When Governor Tom Young ordered Taft to fire several Revenue Department workers whom he thought were allied with his political opponent, Taft refused, protesting to the governor that the marked men were “among the best men in this District.”23 In March 1883, because of his abhorrence of corruption, he resigned his post as collector, although he continued to dabble in the politics of reform. Serving as chief supervisor of elections for Cincinnati, he was praised for his work in fighting voter fraud. Despite these accolades, Taft continued to recoil from politics, writing to his mother: “This is my last election experience I hope for some years to come.”24
In 1884, enraged by a jury’s refusal to hang a notorious murderer, a mob burned the Cincinnati Courthouse. The riot created in Taft a lifelong horror of mob violence and a determination to insulate the courts—and the presidency—from popular passions. And in his new position as assistant solicitor for Hamilton County, he accused a veteran trial lawyer, Thomas Campbell, of attempting to bribe one of the jurors. In his four-and-a-half-hour closing argument, Taft moralistically denounced Campbell for his lack of integrity and declared that the legal “profession must be kept pure.”25 Although Taft lost the case, he impressed Campbell’s lawyer, Joseph Foraker, who would later be elected governor of Ohio and would support Taft’s judicial ambitions.
As Taft’s legal career thrived, he fell in love with a woman named Helen Herron, known as Nellie, who was four years younger and had contemplated forswearing marriage and becoming a teacher. Nellie’s father, John Williamson Herron, had founded the Literary Club of Cincinnati in 1849, along with the future president Rutherford B. Hayes, his college classmate and law partner. (Alphonso Taft became an honorary member.)26 John Herron served as a U.S. attorney and Ohio state senator but “twice declined appointments to the Bench,” as Nellie recalled, “because the salary attached to these positions was not enough to support his large family.”27
“The only incident of my girlhood which was in any way unusual,” Nellie wrote in her memoir, Recollections of Full Years, “was my first visit to the White House as a guest of President and Mrs. Hayes.”28 It was, Nellie recalled, “a very important event.… I was not ‘out,’ so I couldn’t spend my time in the White House as I would have liked, in going to brilliant parties and meeting all manner of charming people.”29 Still, the glamour of the experience made such an indelible impression, she told a journalist thirty years later, that she had returned from the White House and “confided to some of her girl friends that it was her purpose to marry only ‘a man destined to be President of the United States.’”30 And Nellie was not shy about sharing her purpose with others: when her family returned to the White House to celebrate the Hayeses’ silver wedding anniversary in 1878, Nellie told “Uncle Rutherford” that she wanted “to marry a man who will be president.” Hayes replied: “I hope you may, and be sure you marry an Ohio man.”31 That single-minded focus defined the seventeen-year-old Nellie’s ambitions and would in time redirect those of her husband, whom she met the following year.
Will Taft and Nellie Herron were introduced at a coasting party, where he immediately took her down the hill on a bobsled. “I just heard Nellie say that you didn’t sing so badly,” his brother Horace teased soon after they met. “She must be in love with you.”32 Nellie especially remembered Will in a burlesque of The Sleeping Beauty, where he played the title role. In addition to amateur theatricals, Will relished discussing books with the intelligent and well-read Nellie; in an early letter, he advised her to reread the novels of Anthony Trollope “because of the realistic everyday tone which one finds in every line he writes.”33
Their first lovers’ quarrel, remarkably, was on a constitutional question—Nellie pressed her policy views on abolitionism, and Will opposed her on constitutional grounds—and his early missives read less like billets-doux than judicial opinions. “I am prepared to submit a few questions of this tenor to the high court of friendship wherein let Mr. Justice Taft and Miss Justice Herron to determine such questions,”34 he wrote playfully. (Will was seeking Nellie’s advice about whether it was ethical of him to have voted for a friend’s father who sought a judgeship.) Still, his letters soon grew more ardent, and he proposed marriage at the end of April 1885. Nellie rejected him, following the custom of the day, but Will persevered, professing his love and unworthiness in a way that seems to reveal genuine insecurity rather than Victorian convention. When she demurred again two weeks later, he renewed his troth. “I know my faults, I know my weaknesses. I cannot justify or make light of what I confessed against myself,” he wrote. “Oh how I will work and strive to be better and do better, how I will labor for our joint advancement if you will only let me.”35
This last argument may have hit its mark. The next day, Nellie consented to an engagement “grudgingly rather than gratefully,” in the words of her biographer, “as if she had granted a favor she was still reluctant to relinquish,” and only on the condition that the engagement remain secret.36 Will and Nellie were married the following year, on June 19, 1886. During their nearly forty-four years of marriage, he doted on his wife and repeatedly pleaded that he was unworthy of her love, while she reciprocated, like his father, by withholding the unconditional approval and affection that he craved. After receiving a letter from Nellie, Taft lamented that “there was no word of endearment or affection from one end to the other, and the tone of it sounded to me so hard and complaining.”37 But despite her high standards, Nellie always made her devotion to Taft clear. “I know that I am very cross to you, but I love you just the same,” she once wrote him.38 And Taft tenderly reciprocated Nellie’s affection, kissing her in public with loud smacking noises that impressed his aide Archie Butt with their vigor.
Throughout their marriage, Nellie insisted that Taft pursue politics and forsake the bench. In March 1887, less than a year after their wedding, Taft excitedly told Nellie that Governor Foraker intended to appoint him to his father’s old seat on the Ohio Superior Court. His wife did not sh
are Taft’s elation. “I dreaded to see him settled for good in the judiciary and missing all the youthful enthusiasms and exhilarating difficulties which a more general contact with the world would have given him,” she wrote in her memoir, conceding that her husband “did not share this feeling in any way.”39 Taft accepted the appointment, and after a happy year of service, he was elected to a five-year term on the court, the only elected office he would hold until the presidency.
Taft took his seat on the Superior Court in 1887 at the age of twenty-nine, the youngest judge on the bench. Two years later, his first son, Robert Alphonso Taft, was born, and Taft handed down his most significant decision on the Superior Court, a case that would lead him to be denounced as “the Father of Injunctions” against organized labor. In Moores & Co. v. Bricklayer’s Union, Taft held that union members seeking better working conditions may lawfully boycott their own employers but may not call for “secondary boycotts” against companies who do business with their employers. Applying this reasoning in the Moores case, Taft distinguished between legal and illegal boycotts by focusing on the question of malicious intent: the economic injury inflicted by the boycott, he wrote, “is a legal injury, or not, according to the intent with which it has been caused, and the presence or absence of malice in the person causing it.”40
Reflecting his attempt to balance the interests of labor and capital, Taft would hold fast to this distinction between legal and illegal boycotts throughout his judicial and political career. In 1894, after he had been appointed as a federal circuit judge, Taft decided Thomas v. Cincinnati, N.O. & T.P. Railway Co.,41 a case concerning the notorious Pullman railway strike. George Pullman, the American industrialist who developed the eponymous sleeper car,42 had jacked up rents and slashed wages in his company town, causing his understandably aggrieved workers to strike.43 In sympathy, Eugene V. Debs, president of the American Railway Union, responded by calling for a secondary boycott, announcing that his union would not operate any train in the country attached to a Pullman car. The railroad networks soon descended into chaos and bloodshed, as President Cleveland promised to call in federal troops.44 (Debs would go on to run against Taft as the Socialist Party candidate for president in 1912; he was later imprisoned for his speeches denouncing World War I and ran again for president in 1920, this time from a jail cell.) Taft, who had a horror of mob rule, showed no sympathy for the strikers. In July 1894, he wrote to Nellie, “It will be necessary for the military to kill some of the mob before the trouble can be stayed.”45
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