William Howard Taft

by Jeffrey Rosen

  Within the increasingly efficient Court, Taft proved himself to be the surest builder of consensus since John Marshall. Deploying his amiable personality and preference for consensus over confrontation to “mass the court,” as he put it, Taft, like Marshall, encouraged unanimous opinions and discouraged dissent. He maintained that the Court should preserve its institutional legitimacy by speaking as often as possible in one voice. Two of the six justices whom Taft had appointed while president, Willis Van Devanter and Mahlon Pitney, served with him and welcomed his leadership, although they did not always fulfill his hopes. Even Louis Brandeis, whose nomination to the Court Taft had vigorously opposed in 1916, and who had coolly appraised Taft as a “first-rate second-rate mind,”33 praised Taft’s talent for building consensus and “considerable executive ability.”34 “We are very happy with the present Chief,” Oliver Wendell Holmes Jr. concurred. “He is good-humored, laughs readily, not quite rapidly enough, but keeps things moving pleasantly.” Holmes added that “never before … have we gotten along with so little jangling and dissension.”35

  Taft idolized John Marshall, whom he called “the greatest Judge that America or the World has produced.”36 Once, as he walked past a statue of Marshall on the west side of the Capitol, a companion asked if he would have rather been Marshall than president. “I would rather have been Marshall than any other American unless it had been Washington,” Taft replied, “and I am inclined to think I would rather have been Marshall than Washington. He made this country.” Continuing on the walk, Taft then stopped and added, “Taking it all in all, I think Washington was the greatest American, the greatest man, I almost believe, of his generation. Marshall is certainly the greatest jurist America has ever produced and Hamilton our greatest constructive statesman.”37

  The chief justice, like the associate justices, has a single vote on the Supreme Court. His only formal power is the authority to assign the writing of an opinion when he is in the majority, to himself or to another justice. Like Marshall, Taft encouraged unanimity by joining majority opinions with which he did not fully agree and encouraging his colleagues to be similarly accommodating.38 As a result, the Taft Court was remarkably cohesive: 84 percent of its opinions between 1921 and 1928 were unanimous,39 and only 7 percent were issued with a written dissent.40 (By way of comparison, about 30 percent of the Court’s decisions between 1946 and 2009 were unanimous, a rate that continues today.)41 As time went on, Taft promoted unanimity by revising his majority opinions to induce skeptical justices to join them. He participated in more than fifteen hundred decisions but dissented in only nineteen—writing or joining the Court’s majority opinion in 98.7 percent of cases.42

  “I don’t approve of dissents generally,” Taft explained, “for I think in many cases where I differ from the majority, it is more important to stand by the Court and give its judgment weight than merely to record my individual dissent where it is better to have the law certain than to have it settled either way.”43 During his tenure, Taft suppressed more than two hundred of his own dissents,44 which he deprecated as “a form of egotism” that “only weaken the prestige of the Court.”45 Taft persuaded other justices to do the same.46 Reflecting this norm, one justice wrote to another, “I do not agree but shall submit.”47

  During the second half of Taft’s tenure, however, the unanimity rate on the Court declined, falling to 70 percent in 1929. The reasons for this development included Taft’s declining health and the less urgent impulse for the Court to show a united face to defend itself against congressional attacks, which had lessened as time went on.48 But the most important reason for the decline of unanimity, in an irony that Taft may not have grasped, was Taft’s own great achievement: the passage of the Judiciary Act of 1925, which gave the Court the discretion to focus on a handful of hotly contested cases rather than a hodgepodge of uncontroversial ones.49

  Finally, the most tangible symbol of Taft’s belief in the need for the judiciary to be independent from the president and Congress was his determination to create a majestic building for the Court, separate from the Capitol. Since 1860, the Court had met in the chamber vacated when the U.S. Senate moved to its new wing. But the old Senate chamber, although grand in its way, was inadequate for the Court’s theatrical purposes—the justices had no backstage dressing area, for example, and had to put on their robes in full view of the gawking spectators. Soon after he became chief justice, Taft learned of legislation pending in Congress that would provide funds for the construction of new federal buildings, and in 1926 he convinced Congress to appropriate funds for the purchase of a new site for the Court, on First Street, across from the Capitol. In 1928, Taft told the House Judiciary Committee that the justices supported the new building by a 5–4 vote. Congress authorized $9,740,000 for construction on December 20, 1929, and Taft chose the architect Cass Gilbert to design it. The result was a marble palace that succeeded in combining “all the beauty, charm and dignity of the Lincoln Memorial,” as Gilbert wrote to Taft, with “the practical qualities of a first rate office building.”50 For Taft, who had also served as head of the Lincoln Memorial Commission during his presidency, Gilbert’s Roman temple was the architectural embodiment of his vision of the federal judiciary as fully equal in stature and dignity to the legislative and executive branches.51

  As for judicial philosophy, Taft’s constitutional vision on the Court was similar to the one he displayed in the White House. Like Marshall and Hamilton, he was generally a nationalist who broadly construed the powers of Congress and the president, as long as they were clearly defined in the text of the Constitution. At the same time, in the old Federalist spirit, Taft also viewed the Court as the last bulwark in the defense of the constitutional rights of liberty and property against threats posed by state legislatures and juries, whom Taft viewed as especially susceptible to the passions of the mob. For this reason, Taft generally deferred to the prerogatives of Congress and the president while striking down laws that he considered a threat to liberty and property in the states. Ever since his days ruling on labor disputes on the Sixth Circuit, Taft had feared the mob. And on the Supreme Court, Taft was most likely to strike down laws when he thought that mobs in control of state governments were threatening the rights of property and liberty protected by the Fourteenth Amendment. Overall, the Taft Court struck down 131 state laws, while its predecessor the White Court had struck down only 107. By contrast, the Hughes Court, which came after Taft and was less devoted to freedom of contract, struck down 78 state laws.52

  Taft’s first major opinion, handed down on December 21, 1921, allowed him to write into law the protections for the use of injunctions in labor disputes that had led his critics to denounce him as the “father of injunctions.” In Truax v. Corrigan, Taft wrote an opinion for a 5–4 majority striking down an Arizona law that forbade state courts from issuing injunctions in labor disputes, except when “necessary to prevent irreparable injury to property or to a property right.” Taft used the case to inscribe by judicial fiat the distinction between legal and illegal boycotts that, as president, he had unsuccessfully tried to persuade Congress to enact.53 Taft’s willingness to circumvent Congress as a judge but not as president shows that, although he generally deferred to the executive and legislative branches when they operated within broad but constrained constitutional limits, he was committed to enforcing his vision of the Constitution rather than an unwavering advocate of judicial restraint.

  But when Congress rather than the states passed economic regulations, Taft generally voted to uphold them. (The Taft Court as a whole struck down only twelve federal laws—the same number as the White Court—while the Hughes Court struck down fourteen.)54 And Taft, unlike some of his conservative colleagues, was not a Jeffersonian libertarian, consistently ruling for liberty of contract regardless of the source of the regulation. Instead, he was, above all, a Hamiltonian nationalist, who broadly construed Congress’s power to regulate the economy as well as to protect public safety. On May 1, 1922, h
e wrote the majority opinion for the Court in Stafford v. Wallace, recognizing Congress’s broad authority under the Commerce Clause to pass the Packers and Stockyards Act of 1921, which regulated the shipping of meat and livestock through interstate commerce.

  And yet two weeks later, Taft held that Congress’s regulatory efforts had gone too far. On May 15, 1922, he wrote the opinion for a unanimous Court in Bailey v. Drexel Furniture Co.,55 striking down the federal Child Labor Tax Law, which imposed a tax on businesses employing children under the age of fourteen. Taft was so successful in massing the Court that he persuaded the champions of judicial restraint, Brandeis and Holmes, to suppress what must have been their jurisprudential disagreement.56 Taft concluded that the federal child labor tax was not a permissible attempt to raise tax revenue but an impermissible attempt to intrude on the state’s authority to regulate the hours of labor.57 Taft worried that upholding the law as a tax would remove all limits on Congress’s power to regulate interstate commerce.58 (In 2012, Justice Antonin Scalia voiced the same concerns and cited Taft’s opinion at length in his dissent from the Court’s 5–4 decision to uphold the Affordable Care Act as a tax.)

  The child labor case, however, was an exception to Taft’s general determination to defer to Congress. In 1923, he filed a significant dissent (the act of dissenting itself must have pained his Marshallian spirit) in Adkins v. Children’s Hospital,59 in which the Court struck down a federal minimum wage law for women. Writing for a 5–3 majority, Justice George Sutherland held that freedom of contract could be abridged only in “exceptional circumstances.” Taft, like Marshall, was devoted to freedom of contract, but as co-chairman of the National War Labor Board during the Great War, he had wondered aloud about how munitions and textile workers could live on their low wages. Taft’s dissent in Adkins may have been informed by that experience, since it includes some of his most memorable language about the excesses of unregulated capitalism. The poorest employees, he wrote, “are peculiarly subject to the overreaching of the harsh and greedy employer. The evils of the sweating system and of the long hours and low wages which are characteristic of it are well known.”60 Taft’s dissent was vindicated in 1937 when his successor as chief justice, Charles Evans Hughes, wrote for a 5–4 majority of the Court overturning the Adkins decision and upholding a Washington State law that required a minimum wage for women.

  Much of the Taft Court’s caseload involved a backlog of criminal cases arising from Prohibition. Before joining the Court, Taft had opposed Prohibition on the ground that it would represent a dangerous expansion in the powers of Congress, threatening local self-government and states’ rights, and transferring the business of manufacturing alcohol to the criminal classes.61 As chief justice, however, Taft set aside his personal opposition to Prohibition and faithfully voted to uphold convictions under the Volstead Act, the draconian federal law passed to enforce the Eighteenth Amendment. (Taft’s insistence on maintaining a dry home during Prohibition out of respect for the Constitution provoked the only major disagreement between Taft and Nellie in their long marriage; eventually, Taft, never a heavy drinker, refused to discuss the issue with his wife.)62 For Taft, citizens and judges had an obligation to respect all provisions of the Constitution, regardless of their personal views.63

  Taft’s most famous opinions are those upholding criminal convictions in the war against alcohol. In Carroll v. United States (1925),64 Taft created the “automobile exception” to the Fourth Amendment to the Constitution. In passing the Volstead Act, Congress distinguished between searches of private residences, where warrants were required, and searches of cars, where they were not. Writing for a 7–2 majority, Taft upheld the law against a Fourth Amendment challenge, noting that ever since the Founding, courts had distinguished between homes and movable objects. Similarly, in Olmstead v. United States (1928), Taft wrote for a 5–4 majority upholding the warrantless wiretapping of one of America’s most successful bootleggers. In his opinion, a straightforward if wooden application of the original understanding of the Constitution, Taft held that the government had not violated the Fourth Amendment when it placed a wiretap on phone lines leading into the bootlegger’s office because the Framers defined “unreasonable searches and seizures” as those involving physical trespass against private property. (Here, the wiretaps had been placed under public sidewalks.) Brandeis’s visionary dissenting opinion, the greatest defense of electronic privacy in the twentieth century, was vindicated when the Supreme Court overturned Taft’s opinion in the Katz case in 1967.

  In the Hamiltonian spirit, Taft broadly construed presidential power as well as congressional power. On October 25, 1926, Taft delivered the most significant opinion of his entire tenure, Myers v. United States,65 in which he held that the president alone has the power to fire officers he appoints. Taft would later say of his opinion in Myers, “I never wrote an opinion that I felt to be so important in its effect.”66 The case involved the president’s power to fire executive branch officials without being constrained by Congress, and it remains a milestone for those who take a broad view of executive power today. In 1876, in the wake of the impeachment of President Andrew Johnson, Congress passed a law declaring that postmasters could be appointed and removed by the president only with the consent of the Senate. In 1920, President Woodrow Wilson had fired a postmaster named Myers without the Senate’s consent, and Myers insisted that his firing violated the 1876 law. In a seventy-one-page opinion for the Court, Taft reviewed the text and the original understanding of the Constitution, as well as subsequent interpretations of the scope of presidential power by courts, congresses, and presidents. Under Article II of the Constitution, Taft concluded, the president has the exclusive power to fire any executive officer whom he had appointed with the advice and consent of the Senate, and any attempt by Congress to restrict this power is unconstitutional. He seemed to draw on his own experience as president in insisting that the chief magistrate needed an unlimited power to fire executive officials in order to take care that the laws are faithfully executed. “The natural meaning of the term ‘executive power’ granted the President included the appointment and removal of executive subordinates,”67 Taft wrote.

  In all such cases, the discretion to be exercised is that of the President in determining the national public interest and in directing the action to be taken by his executive subordinates to protect it.… The moment that he loses confidence in the intelligence, ability, judgment or loyalty of anyone of them, he must have the power to remove him without delay. To require him to file charges and submit them to the consideration of the Senate might make impossible that unity and coordination in executive administration essential to effective action.68

  In a powerful dissent, Brandeis insisted that Taft had conflated “high political offices,” such as cabinet secretaries, whom the president should have sole discretion to fire, and “inferior offices,” such as postmasters, whose removal Congress should be able to restrict. “The doctrine of the separation of powers was adopted by the convention of 1787 not to promote efficiency, but to preclude the exercise of arbitrary power,” Brandeis memorably declared.69 Brandeis’s history, as well as his prose, was arguably more persuasive than Taft’s—and the Supreme Court recognized as much in a later case, Humphrey’s Executor v. United States (1935),70 in which it unanimously held that Congress could restrict the president from firing an officer on the Federal Trade Commission because Congress had the power to create “quasi-legislative or quasi-judicial agencies” and “to require them to act in discharge of their duties independently of executive control.”71 Nevertheless, Taft’s opinion has been praised as a “masterpiece of judicial craftsmanship” by judges and scholars today who believe that the Constitution gives the president broad, “unitary” executive power to supervise foreign affairs and the executive branch without being constrained by Congress.72

  “Chief Justice Taft was the mirror image of Professor Taft!” the historian Francis Graham Lee has observed. “Taft’
s opinion in Myers seemed totally to contradict the view he earlier expressed in Our Chief Magistrate and His Powers.”73 In fact, however, there is no contradiction. “Once power was delegated to the Chief Executive,” observe three leading proponents of the “unitary executive theory,” Taft believed that “the president should be given broad and plenary control over those powers.”74 After all, they note, Taft fired Gifford Pinchot in part because of his belief in the importance of unifying presidential control over the executive branch. In other words, Taft believed that the president’s power, like that of Congress, was broad but constrained within the boundaries explicitly set out in the Constitution.