In the end, the Republican Congress exonerated Ballinger, finding no clear evidence of illegality.39 But the hearings themselves produced a smoking gun that would indelibly define Taft’s presidency. In an effort to defend Pinchot and Glavis with zeal, Collier’s hired as counsel the crusading “People’s Attorney,” Louis D. Brandeis, who would go on to achieve distinction as a justice of the U.S. Supreme Court. The Pinchot-Ballinger hearings made Brandeis’s national reputation as a foe of corruption. The dramatic climax of the hearings occurred when Brandeis, in his cross-examination of Ballinger and others, revealed that Wickersham had backdated his report to give the impression that Taft had relied on all the evidence before making his decision to exonerate Ballinger. Wickersham and Taft made the injury worse by initially denying the backdating before coming clean. Brandeis’s smoking gun gave the impression that, instead of relying on Wickersham’s memo, Taft had exonerated Ballinger based on a one-sided memo written by Lawler, Ballinger’s own clerk, and then adopted Lawler’s words as his own.40
Taft, who was always defensive in the face of criticism, first insisted that he had written the exonerating letter himself but then confessed that he indeed had relied on part of Lawler’s memo,41 telling a reporter that “he had just plain forgotten all about the memorandum.”42 The press and the public were outraged by the president’s apparent deception, and although Congress ultimately exonerated him of wrongdoing, the political damage was indelible. Hampton’s Magazine melodramatically called the Pinchot-Ballinger affair “the gravest demonstration of moral dereliction.”43
Why did Taft tell Wickersham to backdate the memo? For such a scrupulously honest public servant, the decision seems out of character. And yet Taft’s decision becomes more intelligible when viewed from his own perspective. As Taft explained in a letter to Senator Knute Nelson, the head of the investigation, he felt that changing the date would more accurately reflect the deliberative process by which he had reached his verdict.44 Taft wrote that he had closely reviewed Glavis’s charges and Ballinger’s answer, as well as the attorney general’s notes on the evidence, before making up his mind. Because Taft was staying up late writing constitutional orations for his upcoming fall speaking tour, he asked Lawler to prepare a memo supporting his findings. As Taft wrote to Nelson: “During the days I examined the draft opinion of Mr. Lawler, but its thirty pages did not state the case in the way I wished it stated.” Taft considered the criticism of Pinchot and Glavis inappropriate and so “only used a few paragraphs from it containing merely general statements.”45
His conclusions, Taft said, “were based upon my reading of the record, and were fortified by the oral analysis of the evidence and the conclusions which the attorney general gave me, using the notes which he had made during his reading of the record.” Because he wasn’t able to incorporate all of Wickersham’s notes into his memo in time, he asked the attorney general to write a memo and backdate it to provide a more chronological account of the evidence on which Taft reached his conclusions. Taft further explained:
I was very sorry not to be able to embody this analysis in my opinion, but time did not permit. I therefore directed him to embody in a written statement such analysis and conclusions as he had given me, file it with the record and date it prior to the date of my opinion, so as to show that my decision was fortified by his summary of the evidence and his conclusions therefrom.46
By backdating the memo, in other words, Taft insisted he was being more precise rather than less in providing a chronologically accurate trial record, including a full account of the reasons, supported by the attorney general’s notes on the evidence, which he had reviewed before reaching what he viewed as a judicial decision.
Plausible or not, Taft’s explanation was good enough for Congress. After comparing Taft’s letter with Lawler’s memo, the committee concluded that Taft had indeed “studied the answers and record, formed his own conclusions, and wrote or dictated his own opinion, and, as a matter of fact, did not adopt the Lawler memorandum.”47 And at least some journalists accepted the explanation as well. The National Tribune observed that backdating documents was common government practice.48 The Chicago Record-Herald suggested there was “absolutely nothing wrong in in instructing a subordinate to prepare an opinion.”49 But progressive publications such as Collier’s, McClure’s, and Outlook excoriated Taft. Acting more like a vindictive politician than a judge, the president uncharacteristically—and unsuccessfully—tried to retaliate by asking Congress to raise the postal rates on national magazines; he argued that the government shouldn’t subsidize journalists who were failing in their duty to “occupy a disinterred position” as “controllers of public opinion.”50 These clumsy attempts to punish the press led, predictably and appropriately, to even more vigorous reproach.
Taft’s sin, then, was not obstruction of justice (beyond his initial denial, which was not under oath and which he eventually recanted) but a tendency to surround himself with loyalists and to lash out against those he viewed as disloyal. Taft could have avoided the scandal by admitting that he had backdated the memo and by accepting Ballinger’s repeatedly proffered resignation.51 Instead, he compounded his error by expressing unequivocal support for his secretary of the interior,52 perhaps because the judicially minded president always felt most comfortable resisting the approval of the crowd. In Taft’s mind, political unpopularity was a tribute to his devotion to principle, a measure of success rather than failure. It was in March 1910 that he memorably declared to Archie Butt, “I will not play a part for popularity.”53
Whether principled or blinkered, Taft’s decision to stand by Ballinger and to throw over Pinchot led to a serious breach with Theodore Roosevelt. In April, as the Ballinger hearings were boiling over, Pinchot took a steamship to the French Riviera to meet with Roosevelt, who had just returned from a long safari in Africa. The two men concluded that Taft had betrayed Roosevelt’s legacy by failing to protect the environment, enforce antitrust laws, and lower the tariffs—all charges that proved to be inaccurate. Roosevelt then wrote to Senator Henry Cabot Lodge of Massachusetts, his longtime ally, to complain that Taft had “completely twisted round the policies I advocated and acted upon.”54 As a result, the former president wrote, he could not support the administration in the upcoming congressional elections. After a year of silence, Taft wrote to Roosevelt in May, flagellating himself for his political failures. “It is now a year and three months since I assumed office and I have had a hard time,” Taft wrote dolefully. “I do not know that I have had harder luck than other Presidents, but I do know that thus far I have succeeded far less than have others. I have been conscientiously trying to carry out your policies, but my method for doing so has not worked smoothly.”55
Instead of explaining his decisions about Pinchot and Ballinger, he told Roosevelt—as he had earlier told Congress when proposing tariff reductions—that the former president should simply read his public statements and “look into that wholly for yourself.”56 Taft invited Roosevelt to the White House to heal the growing breach, but Roosevelt declined on the unconvincing grounds that, as Archie Butt reported, “he was opposed to the idea of ex-Presidents visiting Washington.”57 Taft later learned that Roosevelt had been offended by his assurances, in the letter of invitation, that he would never forget what his brother Charlie and Roosevelt had done for him in the 1908 campaign; Roosevelt thought he alone deserved the credit for Taft’s nomination.58
Tensions between the president and his predecessor escalated in the summer of 1910, when Roosevelt opposed Secretary Ballinger’s campaign for a U.S. Senate seat in Washington State. When Nellie Taft learned of Roosevelt’s decision, she observed presciently to the president, “Well, I suppose you will have to fight Mr. Roosevelt for the nomination [in 1912], and if you get it he will defeat you.”59 In August, during a party leadership contest in New York, a candidate supported by Vice President James Sherman defeated one supported by Roosevelt, who suspected Taft of conspiring to humiliate him. �
�What awful politics!” Butt confided to his diary, writing that Taft and Sherman were “like a lot of children at the game when compared to Mr. Roosevelt.”60 He also observed that Taft’s scheming secretary Charles Norton was goading Roosevelt into challenging Taft for the presidency.
Roosevelt took the bait. He set out west for a three-week speaking tour during which he attacked the Supreme Court as a barrier to progressive legislation and endorsed popular checks on the ability of judges to overturn laws. (Taft was so distressed at these attacks that he hurled a golf club in frustration.)61 On August 31, in Osawatomie, Kansas, Roosevelt delivered his radical “New Nationalism” speech. “This New Nationalism regards the executive power as the steward of the public welfare,” Roosevelt declared. “It demands of the judiciary that it shall be interested primarily in human welfare rather than in property, just as it demands that the representative body shall represent all the people rather than any one class or section of the people.”62
As many Republicans feared, the 1910 midterm elections were a stinging rebuke of Taft and conservatism, and the Democrats took control of the House of Representatives for the first time since 1894, although the Republicans retained their majority in the Senate. Stung by the defeat, which he viewed as a personal repudiation by Republican progressives, Taft turned for solace to an alliance with the standpat Republicans in Congress.
Although Roosevelt and his allies believed that Taft had betrayed Roosevelt’s record on tariff reform, conservation, and antitrust prosecutions, Taft’s achievements in all three areas arguably surpassed Roosevelt’s own. Taft’s dramatic ramping up of antitrust prosecutions was the most visible example of his success. Taft and Roosevelt had different approaches to antitrust, reflecting their different views of the Constitution. Roosevelt championed big government as well as big business: he wanted to create a federal bureau of corporations to regulate trusts, prosecuting the bad ones (whose predatory behavior harmed competition), while supporting the good ones (whose economies of scale helped consumers). The most significant example of this Jesuitical distinction between good and bad trusts had been Roosevelt’s decision as president to bring an antitrust suit against the Northern Securities railroad trust, controlled by J. P. Morgan, but not against U.S. Steel, which Morgan also controlled.
Taft, by contrast, believed in vigorous and consistent enforcement of the Sherman Antitrust Act, and his decision to prosecute U.S. Steel would deliver the coup de grâce to his fraying relationship with Roosevelt. Denouncing monopolies during the 1908 campaign in Sandusky, Ohio, Taft had promised even more vigorous enforcement of the antitrust law than Roosevelt, to prevent the formation of monopolies in the first place.63 The trusts stifled competition, he said, by allowing “the aggregation of wealth in plants so great the owners of it were able, by cunningly devised means, to stifle competition, to control prices of goods and shove them up above what the cost of production would justify.”64 To combat these economic wiles, Taft declared, “What we need is to increase the machinery of government, to increase the supervision of these combinations that have the temptation to violate the law … so that these prosecutions can be carried on with great rapidity.”65
As president, Taft made good on his promise. In an address to Congress on January 7, 1910, Taft made the case for the Mann-Elkins Act, drafted by Attorney General Wickersham, which increased the powers of the Interstate Commerce Commission to control the rates charged by railroads and telegraph and telephone companies.66 In his comprehensive and legalistic speech, Taft talked about the need for speedy and uniform review of challenges to railroad rates and also recommended establishing a five-member “United States Court of Commerce.”67 Congress responded enthusiastically to his recommendations and, five months later, passed the Mann-Elkins Act, which Taft promptly signed.
In his speech to Congress, Taft also gave an extended explanation of his view of antitrust law, emphasizing that the government should focus not on the size of the enterprise but rather on the “aggregation of capital and plants with the express or implied intent to restrain interstate or foreign commerce, or to monopolize it in whole or in part.”68 As he had done since his days on the bench, Taft insisted that the illegality of actions by trusts or unions turned on malicious intent, not simply on size.69
Taft criticized the Sugar Trust case, United States v. E.C. Knight Co. (1895),70 where the Court upheld the constitutionality of the Sherman antitrust law but ruled that it did not apply to manufacturing, since manufacturing could not be equated with interstate commerce.71 Taft also implicitly criticized Justice Holmes’s suggestion in the Northern Securities case that the Sherman Act should be read to forbid not all restraints of trade, but only those that the Court decided were unreasonable. The judicial effort to ban only unreasonable restraints of trade, Taft declared, would “put into the hands of the court a power impossible to exercise on any consistent principle … to give them a power approaching the arbitrary, the abuse of which might involve our whole judicial system in disaster.”72
After his speech, Taft anxiously awaited the Court’s pending decision in the Standard Oil case, originally brought by the Roosevelt administration. The suit alleged that Standard Oil of New Jersey, the parent company of John D. Rockefeller’s many-headed hydra, had monopolized the oil refining and shipping trades.73 The Supreme Court finally heard the case in March 1910 but didn’t issue its decision for more than a year. Taft fretted that the delay was postponing Congress’s consideration of his proposal to pass a national incorporation act.74 Finally, on May 15, 1911, the Court handed down its decision.75 Chief Justice Edward White adopted the very argument that Taft had repeatedly criticized—namely, that the Sherman Act should be construed in light of the “rule of reason,” prohibiting only unreasonable restraints of trade. Despite its weakening of the Sherman Act, which does not mention the word “reasonable,” the Court ruled against Rockefeller and ordered the Standard Oil Trust to divest about thirty of its subsidiaries. Although the Court’s reasoning contradicted his own, Taft was happy enough with the result to exclaim, when he heard it, “Bully for that!”76
Taft’s friend Justice John Marshall Harlan criticized the reasoning of the Standard Oil decision along lines similar to those that Taft himself had sketched out to Congress. Harlan cited a Senate report declining to amend the Sherman Act to include the rule of reason on the ground that the amendment would “entirely emasculate” the bill because “the injection of the rule of reasonableness or unreasonableness would lead to the greatest variableness and uncertainty in the enforcement of the law.”77
Two weeks later, on May 29, the Court handed down another important decision, in the case against the Tobacco Trust. The Court, with Chief Justice White once again applying the rule of reason, held that the trust was illegal because of the clear intentions of its corporate founders “to monopolize the trade by driving competitors out of business, which were ruthlessly carried out upon the assumption that to work upon the fears or play upon the cupidity of competitors would make success possible.”78 Justice Harlan again dissented in part, on the ground that the Court had rewritten the Sherman Act and refused to break up the trust, instead sending the hydra back to the lower court for its tender disposition.
President Taft’s devotion to defending the institutional legitimacy of the Court always overcame his devotion to his own constitutional interpretations. He praised the Standard Oil opinion as a “good opinion—the Standard Oil Company will have to dissolve,” even as he confessed that the reasoning of the Court “did not take exactly the line of distinction I have drawn, but it certainly approximates it.”79 And he praised the Tobacco Trust decision with similar casuistry, insisting that there was “no conflict between what I have said and what the court says,” instead detecting “a real resemblance between them that makes me proud.” Although he had previously suggested the opposite, the president now declared that the Court’s decision to read the “rule of reason” into the Sherman Act did not, in fact, permit it to distingui
sh between “good” and “bad” trusts.80 For the judicial president, defending the integrity of the Court was more important than pressing his own views.
Later that year, Taft’s judicial frame of mind led him to make the most legally principled and politically unwise decision of his presidency. On October 26, 1911, his administration filed an antitrust suit against U.S. Steel, the first billion-dollar corporation in the world.81 It had been created by the merger of nearly a dozen steel companies controlled by J. P. Morgan, Andrew Carnegie, and other titans, and it produced one-quarter of the world’s steel.82 The Justice Department charged that the monopolistic powers of the Steel Trust had been increased during the Panic of 1907, when it acquired the Tennessee Coal and Iron Company with President Roosevelt’s blessing. The suggestion was that the acquisition, at what turned out to be a bargain price, threatened competition rather than saving the economy, and that Roosevelt had been duped by J. P. Morgan.83 The headlines the next day proclaimed “Roosevelt Fooled.”84
Roosevelt, furious and defensive, insisted that he had not been misled in allowing the Steel Trust to buy the Tennessee Coal Company,85 stating forcefully that Morgan had told the truth about the need to buy the company to rescue the economy. He added that Taft, as a member of his cabinet, had reviewed the merger and “was enthusiastic in his praise of what was done.”86 But Roosevelt had indeed been duped in 1907, misunderstanding the complicated financial facts in a well-intentioned effort to stave off the panic.87 Taft insisted that he hadn’t known about the suit before the Justice Department filed it, but in Roosevelt’s eyes, Taft’s ignorance made his disloyalty all the worse. Roosevelt’s sister Corinne Roosevelt Robinson told Archie Butt in January 1912 that her brother “could never forgive” the president for filing the steel suit.88
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