William Howard Taft

by Jeffrey Rosen

  On February 25, 1913, a week before Wilson took the presidential oath, Taft wrote a letter to the Yale Daily News. “I am coming back to Yale,” he declared, expressing anxiety that the senior undergraduates might test his “ignorance and forgetfulness” of the law. But “despite these dangers,” it gave him “great pleasure” to return because

  there is need that our young men should appreciate the Constitution of the United States, under which we have enjoyed so many blessings and under which we must work out our political and economic salvation. And this need is especially keen in a day when that instrument is regarded so lightly by a class of fanatical enthusiasts seeking short cuts to economic perfection, on the one hand, and by unscrupulous demagogues who to promote their own interests do not hesitate to promote disrespect and even contempt for the Constitution and the laws enacted under it on the other.51

  The assaults of Wilson and Roosevelt continued to sting.

  In the final days of his administration, Taft vetoed two federal laws on constitutional grounds. On February 28, he vetoed the Webb-Kenyon Act, regulating the interstate transport of alcohol, objecting that it unconstitutionally delegated to the states Congress’s exclusive power to regulate interstate commerce. (The Senate overrode his veto the same day, and the House quickly followed.) And on the morning of March 4, 1913, Woodrow Wilson’s inauguration day, Taft had one final constitutional duty he was determined to perform. He sent to the House a veto message refusing to approve an appropriations bill on the ground that a provision allocating $300,000 for the enforcement of the antitrust law stipulated that no part of the money should be spent to prosecute any business combination created for the purpose of “increasing of wages, shortening of hours or bettering the condition of labor.”52 Taft called the provision unconstitutional “class legislation of the most vicious sort,” as well as a covert attempt to legalize the secondary boycott, which he had questioned as a lower court judge fourteen years earlier. For the judicial president who had never stopped pining for the bench, Taft’s last official act had a poetic symmetry.

  Later that day, after Wilson was sworn in, Taft and Nellie set out by train to visit Augusta, Georgia, for a well-deserved vacation. Not long after, Taft returned to New Haven to take up his teaching duties at Yale. He was fifty-five years old. The Tafts lived, fittingly enough, in the Hotel Taft, constructed by his brother on the New Haven Green, and then settled into a comfortable house at 367 Prospect Street.53

  Relieved to be liberated from the stresses of the presidency, Taft returned to his Paleo diet. In a single year, he lost the 75 pounds he had gained during his presidency.54 On December 12, 1913, he told the New York Times that he had weighed exactly 340 pounds on March 4, but now “tipped the scale at exactly 270.8 pounds.” “I have lost exactly 69.2 pounds of flesh,” he proudly declared.55 Taft more or less maintained this weight for the rest of his life, and his sleep apnea disappeared. Now alert rather than somnolent in public, he enjoyed a remarkable burst of productivity and wrote a series of important lectures and books without a research assistant,56 beginning in 1913 with Popular Government: Its Essence, Its Permanence, and Its Perils. He was a popular and conscientious professor at Yale, speaking from notes rather than reading his lectures, and an exam from his constitutional law class included questions such as “What is the power, exactly stated, which the Judicial branch of the Government exercises in respect to acts of Congress?”

  Popular Government arose from a series of lectures that defended constitutionalism and representative government and criticized direct democracy.57 “Now popular government is not an end,” Taft wrote emphatically. “It is a means of enabling people to live together in communities, municipals, state and national, and under these conditions to secure to each individual and each class of individuals the greatest measure of happiness.”58 The Framers of the Constitution, he noted accurately, did not believe “that the majority could always be trusted certainly to accord to the individual just and equitable treatment in his pursuit of happiness.”59

  Popular Government is an extended explanation for why Taft refused, as president, to court popularity for its own sake. He believed that the president, Congress, and the judiciary should filter public opinion to promote thoughtful deliberation by the people. While Taft sympathized with the progressives’ goals of ending corruption, he argued that “the method they propose”—the initiative, referendum, and recall of judges—“and the bitter class spirit they encourage are dangerous in the extreme, and if carried to their logical result will undermine just and enduring popular government.”60

  Recalling the “disastrous results” of the “pure democracies in ancient times,” Taft argued that similar proposals now “to dispense with all the limitations upon legislation contained in the Constitution” and to “leave to the initiative and the referendum, without regard to the character of the law, or what it affects, and without limitation as to individual rights, the absolute power to legislate according to the will of the people”61 would lead to ruin in the United States, as it had in Rome. Taft endorsed James Madison’s definition of republicanism, which he described “as a popular representative government,”62 and he emphasized that law should reflect considered public opinion but not populist whim.

  6

  “I Love Judges and I Love Courts”: Chief Justice at Last

  William Howard Taft yearned so ardently to be chief justice that he prepared the groundwork during his own presidency. When Chief Justice Melville Fuller died a year after bungling the administration of Taft’s presidential oath, Taft agonized over the appointment of his successor. As the president observed wistfully to Justice William Moody days after Fuller’s death in July 1910, “It does seem strange that the one place in the government which I would have liked to fill myself I am forced to give to another.”1

  The obvious candidate was Charles Evans Hughes, the former governor of New York and potential rival to Taft in 1912, whom Taft had shrewdly removed from the political arena by nominating him as an associate justice three months earlier. Just before making that appointment, Taft told his aide Archie Butt, “I don’t know the man I admire more than Hughes. If I ever have the chance I shall offer to him the Chief Justiceship.”2 And yet when the opportunity presented itself later that year, Taft could not bring himself to appoint the forty-eight-year-old dynamo, whose youth and perfect health suggested that he would outlive Taft, denying the president any possible opportunity to succeed him. And so in December, after telephoning to cancel a White House interview with Hughes as the justice was dressing for the appointment, Taft instead elevated one of Hughes’s colleagues, Justice Edward Douglass White, a Catholic Southern Democrat who, at the reassuringly advanced age of sixty-five, was the oldest chief justice ever nominated. The only explanation for this unusual appointment was the president’s hope that White would expire in time for Taft to take his place.

  And yet, in the decade that followed, White inconveniently refused to perish. After Warren Harding’s election in 1920, Taft visited the president-elect in Marion, Ohio, where Harding astonished and delighted Taft by asking, “Would you accept a position on the Supreme Bench?”3 Taft replied, with what must have been scarcely concealed emotion, that “it was and always had been the ambition of my life,” but since he had twice declined the honor, “I could not accept any place but the chief justiceship.”4 After Harding reassured Taft of his intention to elevate him to the center chair, Taft hastened to Washington to pay a call on Chief Justice White. Appraising the seventy-five-year-old jurist’s declining health with a gimlet eye, he was disappointed to discover that White said nothing about retirement. Happily for Taft, the aging chief justice soon fulfilled his hopes by dying without warning on May 19, 1921.

  To Taft’s frustration, President Harding dithered over the appointment, and so the former president mobilized every lobbying resource at his disposal, dispatching surrogates to emphasize his extensive experience on the federal bench.5 His postpresidential service, however, p
roved to be especially compelling: Taft was enjoying a bipartisan surge of popularity owing to his service as co-chairman of the National War Labor Board, which redeemed the “father of injunctions” in the hearts of organized labor because he had supported a series of progressive reforms including collective bargaining, a minimum wage, and bans on “yellow dog” contracts, in which workers agreed not to join unions.6 At the same time, his work on behalf of international arbitration and the League of Nations had won over Wilsonian internationalists.7 A final push by Attorney General Harry Daugherty convinced Harding that Taft’s administrative skills would help clear the congestion in the federal courts resulting from the recent enactment of Prohibition and the many arrests justified in the name of the war on alcohol.8 And so, on June 30, 1921, Harding nominated the man he affectionately called “the Big Chief” to be the tenth chief justice of the United States. The Senate confirmed the nomination the same day, by an overwhelming vote of 60 to 4.9 Taft viewed his appointment not only as the fulfillment of his lifelong dream but also as vindication for his electoral defeat nearly a decade earlier. The praise for his nomination was evidence, he suggested, that “I have come back from the status in which the campaign of 1912 left me.”10

  On July 11, Taft was sworn in as chief justice. When Justice Joseph McKenna repeated the ceremony on October 3, the first day of the new term, he forgot to bring an official copy of the oath, and Taft was impressed that his new colleague recited it from memory.11 Taft threw himself into the job with passion and discipline, imposing on himself a schedule that dispelled any of the accusations of laziness that had followed him during his unwanted presidency. Freed from the burdens of the sleep apnea that had been caused by his presidential obesity, he would awaken at 5:15 a.m., repair to his study (the justices in those days worked from home), and toil until breakfast at 8. After more work until 10, he walked from his home to the Capitol, where the Court then sat, usually crossing the bridge that carries Connecticut Avenue across Rock Creek Park, known today as the Taft Bridge. After hearing cases at the Court from noon until 4:30, he was driven home, where he worked from 5 until 10, with an hour for dinner. “If I can maintain this,” he wrote to Horace Taft, “I think I shall have time enough to do the work. You see it gives me, in addition to my court work of four hours, eight hours for work outside the court, two hours for meals, and seven hours for sleep, one hour for exercise and one hour for dressing. This makes twenty-three hours. Just where the other hour goes you can figure out for yourself—I haven’t time.”12

  Out of the 1,596 opinions delivered by the Court during his nine years as chief justice, Taft wrote one-sixth of the total himself, averaging 30 opinions a term while his colleagues averaged 20.13 And having achieved his dream job, Taft found that it surpassed his expectations of happiness. “Next to my wife and children,” the Court “is the nearest thing to my heart in life,”14 he wrote. “The truth is,” he observed in 1925, “I don’t remember I ever was president.”15

  Taft began his chief justiceship with an ambitious vision of what he hoped to achieve for the judiciary, a vision he had clearly set out as president. Drawing on his executive experience, he aspired to nothing less than reform of the administrative structure of the entire federal judiciary, making it fully equal in independence, power, and dignity to the White House and Congress. “I love judges, and I love courts,” he once enthused. “They are my ideals on earth of what we shall meet afterward in heaven under a just God.”16 And Taft was able to achieve as chief justice the constitutional vision that had eluded him as president, exercising executive leadership that had been absent from the Court since the tenure of the greatest chief justice, John Marshall. The legal scholar Robert Post has written that “it was Taft who, as former chief magistrate of the Executive Branch, transformed the role of Chief Justice into something analogous to a chief executive for the judicial branch of government.”17 Taft was convinced that “the efficient administration of justice” would help the federal judiciary defend the Constitution against populist threats posed by state legislatures and juries and also keep the president and Congress within their constitutionally appointed bounds. And in so doing, he created the modern federal judiciary as a separate and cohesive branch of government.

  Days after he joined the Court, Taft plunged into the ambitious task of judicial reform for which he had been preparing his entire life. Taft had campaigned for president in 1908 on the need to improve the efficiency of court administration. “The greatest question now before the American public is the improvement of the administration of justice, civil and criminal, both in the matter of its prompt dispatch and the cheapening of its use,” he had declared forcefully during the campaign.18 As president, he had proved his mettle as an extraordinary administrator. The historian Paolo Coletta has observed that Taft was “the first president to have the federal administration studied in detail as one mechanism,” and Taft became known as the “efficiency engineer” for reorganizing the Departments of War, State, and Treasury, and the Customs Service, as well as creating the Commission on Economy and Efficiency and attempting to send Congress the first centralized executive budget.19 Charles Evans Hughes said that efficient administration of justice was “the dominant interest of [Taft’s] public life.”20

  As chief justice, Taft controversially lobbied Congress to achieve his visionary program of improving the efficient administration of the federal courts. (He had scorned similar lobbying as president but seems to have believed that his constitutional role had changed.) Taft had three ambitious goals, and he achieved all of them.21 First, he persuaded Congress in 1922 to establish a judicial conference of federal appellate judges, led by the chief justice. Second, he persuaded Congress to pass the Judiciary Act of 1925, which gave the Court discretion to focus on constitutional cases rather than being forced to hear mandatory appeals of less consequential disputes. And finally, he secured the necessary funds to build a magnificent Supreme Court building across the street from the Capitol, relieving the justices of the indignity of convening in the old Senate chamber in the basement of the Capitol building. Designed by Cass Gilbert, the Temple of Justice is the most tangible monument to Taft’s constitutional vision of the Supreme Court as head of a separate and fully equal branch of government, as inspiring as the Capitol and the White House themselves.

  The 1922 legislation accomplished nothing less than the unification of the federal judiciary in the same way that Taft had attempted to unify the administration of the executive branch. Taft advocated a “flying squadron” of roving judges who could be assigned to congested courts by the chief justice, in the hope that a more efficient judiciary would be less vulnerable to congressional attempts to restrict its jurisdiction and end life tenure. The act also created the Conference of Senior Circuit Judges, including twenty-four temporary judgeships, providing “the first formal mechanism by which members of the federal judiciary might develop national administrative policies, reassign judges temporarily, and recommend legislation,” in the words of the Federal Judicial Center.22 This expansion in the machinery of the federal judiciary allowed the chief justice, as Taft put it, “temporarily to mass the force of the judiciary where the arrears are greatest.”23 Taft praised the legislation for introducing into a previously disorganized and decentralized judicial system “an executive principle to secure effective teamwork.”24 Taft viewed his role as the head of the newly created judicial conference like that of a president leading his cabinet, and he offered assistance to individual district court judges who were behind on their caseload.25 District judges responded gratefully to these reforms. As Judge Learned Hand wrote to Taft, “It is a great comfort to know the interest that you take. To be frank, we have never felt it before your incumbency.”26

  As president, Taft had insisted on the need to strengthen the authority of the federal courts by reforming civil and criminal procedure. In December 1909, in his first message to Congress, he declared that “a change in judicial procedure, with a view to reducing its
expense to private litigants in civil cases and facilitating the dispatch of business and final decision in both civil and criminal cases, constitutes the greatest need in our American institutions.”27 (Imagine a president today making a similar claim in a State of the Union address.) And in 1926, the Senate Judiciary Committee endorsed Taft’s proposed reforms, which united dozens of confusing separate systems of procedural rules into a single, efficient whole. The Federal Rules of Civil Procedure at last became law in 1938, an enduring monument to Taft’s vision of strong federal courts that protected both labor and capital fairly and efficiently, clearing their dockets without delay.

  In addition to organizing lower federal judges to act as an efficient and coequal branch of government, Taft lobbied Congress to pass his second great reform, the Judiciary Act of 1925, which gave the Supreme Court control over its own docket. This reform represented the most important change in the Court’s procedures since the landmark Judiciary Act of 1789. Before it passed, the Supreme Court was required to hear all cases involving federal rights and laws, under a concept called “mandatory jurisdiction.” As early as 1908, in a speech called “Delays and Defects in the Enforcement of Law in This Country,” Taft had objected that the volume of cases that the Supreme Court was required to review left it unable to execute its “highest function”—namely, constitutional interpretation. The Court’s appellate jurisdiction, he concluded, should be limited accordingly.28 The 1925 reform achieved Taft’s goal, giving the Court the discretion to focus on those cases it believed raised important constitutional questions or questions of federal law about which lower appellate courts disagreed. Thanks to this reform, the backlog in the Court’s docket disappeared, and the number of cases decided by the justices plummeted from more than five hundred cases a year in 1924 to fewer than two hundred in 1926.29 The number of appellate cases decided by full opinion declined by more than half, averaging 30 percent in 1916 and falling to 16 percent in 1928.30 (Today, the Court writes opinions in about 1 percent of the cases on its docket, agreeing to decide fewer than eighty cases a year.)31 “The real work [of] the Supreme Court,” Taft declared, “is to lay down important principles of law and thus to help the public at large to a knowledge of their rights and duties and to make the law clearer.”32