William Howard Taft

by Jeffrey Rosen

  In the second half of the 1920s, Taft became close to the conservative justices George Sutherland and Pierce Butler, and his votes to invalidate progressive legislation in the name of property rights helped contribute to the Court’s subsequent attempts to strike down Franklin Roosevelt’s New Deal. Nevertheless, Taft’s administrative reforms shoring up judicial independence prepared the ground for the vigorous enforcement of the Bill of Rights and the post–Civil War amendments that has defined the Court in the decades since it struck down school segregation in Brown v. Board of Education in 1954. Taft’s policies as president were less racist than Woodrow Wilson, who expanded segregation in the federal government, or even Theodore Roosevelt, who dishonorably discharged African American troops. In the tradition of his father, who was devoted to equal civil rights for all, Taft insisted in his inaugural address that he did not have “the slightest race prejudice or feeling,” and he pledged “sympathy for those who bear it or suffer from it.”75 At the same time, Taft refused to support the hiring of Republican African American officeholders in the South, in a futile effort to entice Southern Democrats to join the Republican Party. And although he spoke extensively as president on the need to expand education for African Americans, Taft wrote a unanimous opinion for the Supreme Court in 1927 upholding a Mississippi law requiring a Chinese American citizen to attend a local segregated school, open only to “colored children of the brown, yellow, or black races.” Citing the precedent of Plessy v. Ferguson, which upheld the constitutionality of racially segregated railroad cars, Taft concluded, “The decision is within the discretion of the state in regulating its public schools, and does not conflict with the Fourteenth Amendment.”76 In other words, although Taft was a public champion of civil rights for all races, he joined his eight fellow justices in applying what appeared at the time to be clear judicial precedent.

  As the 1920s drew to a close, Taft’s health declined. Although his weight remained under control—he weighed about 280 pounds during his final years, far less than his presidential weight of 340 pounds—he had suffered heart attacks in 1924 and 1926, and his blood pressure had risen due to arteriosclerosis.77 “I am really in an invalid state,” Taft wrote in 1928.78 Taft’s memory began to slip, and he stumbled slightly in administering the oath of office to President Herbert Hoover in March 1929, as the ceremony was broadcast for the first time by radio.79 (After a young girl from New York wrote to correct his mistake, Taft replied that she could “attribute the variation” in the words of the oath “to the defect of an old man’s memory.”)80 In January 1930, while visiting Cincinnati for his brother Charles’s funeral, Taft suffered hallucinations, and he set off with Nellie for rest in North Carolina. But he recognized that his powers were waning, and so, on February 3, the ailing chief justice wrote a letter to President Hoover resigning from the Court. “Lifted off the train at the Union Station” in Washington, Pringle writes, “he was wheeled to an automobile and all that came from his lips was an occasional ‘darling’ when Mrs. Taft was near.”81 He was put to bed in his house on Wyoming Avenue and never arose. On his deathbed, Taft read a tender letter by Justice Holmes and signed by all of the members of the Court.

  We call you Chief Justice still—for we cannot give up the title by which we have known you all these later years and which you have made dear to us. We cannot let you leave us without trying to tell you how dear you have made it. You came to us from achievement in other fields and with the prestige of the illustrious place that you lately had held and you showed us in new form your voluminous capacity for getting work done, your humor that smoothed the tough places, your golden heart that brought you love from every side and most of all from your brethren whose tasks you have made happy and light. We grieve at your illness, but your spirit has given life an impulse that will abide whether you are with us or away.82

  A month after his resignation, on the evening of Saturday, March 8, 1930, William Howard Taft died. He was seventy-two years old. In the rotunda of the Capitol, as his body lay in state, Gilbert’s model of the Supreme Court building was exhibited at his side. In October 1932, at the groundbreaking ceremony for the Temple of Justice, a photograph of Taft was placed in the cornerstone.83 (Today, Taft’s portrait hangs in the West Conference Room and his bust in the center hall.) During the ceremony, Chief Justice Charles Evans Hughes, who had finally achieved the center chair, paid a graceful tribute to his predecessor. “We are indebted to the late Chief Justice William Howard Taft more than anyone else,” he declared. “The building is the result of his intelligent persistence.”84

  Epilogue

  Our Constitutional President

  In April 1922, at his summer home on Cape Cod, Louis Brandeis asked his friend the Harvard law professor Felix Frankfurter, “Felix, do you still think Taft was as bad a president as we thought he was?” Brandeis then added, “It’s difficult for me to understand why a man who is so good as Chief Justice, in his function as presiding officer, could have been so bad as President. How do you explain that?” Frankfurter’s response: “The explanation is simple. He loathed being President and being Chief Justice [is] all happiness for him.”1

  Frankfurter’s explanation was accurate but incomplete. It is true that Taft chafed as a judicial president and thrived as a presidential chief justice because he worshipped the Constitution, had a judicial temperament, and deployed his presidential talent for administration to reform the judicial branch. And yet, viewing Taft’s record as president and chief justice in isolation fails to acknowledge the magnitude of his constitutional achievements.

  A balanced assessment of Taft’s presidency comes from the political scientist Peri Arnold.

  Historical judgment makes Taft a mediocrity. But that assessment assumes a new criterion for success. Taft failed to meet expectations for his presidency stimulated by Roosevelt’s performance in office as well as the period’s mood of political reform. However … he was not simply a throwback to an earlier constrained presidency. A wave of important progressive legislation continued during his term in office. But Taft failed very publicly to comprehend the presidency’s new responsibilities for popular leadership.2

  If Taft is judged on his own terms, and not by the twentieth-century standards for a popular presidency set by Roosevelt and Wilson, Arnold concludes, his presidency must be judged more charitably.

  Removed from the passions of the Progressive Era political struggles, and not sandwiched between Roosevelt and Wilson, Taft’s presidency would be seen as successful. Compared to the norms of the party period presidency, Taft’s initiatives were notably aggressive. He passed more reform legislation in his four years than Roosevelt had in his seven years.3

  Of course, Taft’s success as a reformer built on what Roosevelt began and reflected Taft’s skills as an administrator rather than an inspiring popular leader. Taft’s distinctive contribution was to work with Congress to create the “machinery of government,” as he put it, that allowed checks on the excesses of monopoly power—from environmental protection to antitrust enforcement—without interfering with the free market. As Taft wrote to Nellie at the end of his term, “I have strengthened the Supreme Bench, have given them a good deal of new and valuable legislation, have not interfered with business, have kept the peace, and on the whole have led people to pursue their various occupations without interruption. It is a very humdrum, uninteresting administration, and does not attract the attention or enthusiasm of anybody, but after I am out I think that you and I can look back to some pleasure in having done something for the benefit of the public weal.”4

  In calling his administration “humdrum” and “uninteresting,” Taft was being too modest. At his best, Taft shows what a constitutional, rather than a popular, conception of the office of the presidency can achieve. It was his refusal to compromise his principles for the sake of reelection that led Taft to denounce the northwestern farmers who threatened to oppose him unless he withdrew his support of Canadian free trade, or to buck the demands o
f his own party that he start a war with Mexico. And his refusal to circumvent Congress’s legislative authority by executive orders, in areas from foreign policy to the tariff, led to moderate policies with broad bipartisan support that were sustained by the next administration, even after the Democrats won the presidency and control of Congress. The Wilson administration completed the downward tariff revision that the Taft administration began, and Wilson’s League of Nations built on Taft’s vision of an international arbitration system ruled by law rather than force.

  Most significantly, Taft’s respect for the constitutional powers and limitations of the presidency, Congress, and the judiciary helped him promote the thoughtful deliberation that Madison and Hamilton considered necessary for the success of the American republic. Taft himself contrasted his judicial perspective to that of Roosevelt, perceptively comparing Roosevelt to the populist Andrew Jackson. “There is a decided similarity between Andrew Jackson and Roosevelt,” Taft told Archie Butt. “He had the same disrespect for law when he felt the law stood between him and what he thought was right to do.”5 By contrast, Taft’s overriding goal as president and as chief justice was to exercise the powers of each office as vigorously as possible within constitutional bounds while resisting populist pressures that threatened the rule of law. In this noble goal, he impressively succeeded. Butt gives a striking example of Taft’s readiness to send federal troops in June 1909 to subdue racist white strikers who were attempting to displace African American firemen on the Georgia Railroad. Taft expressed astonishment at a public official who had expressed sympathy with the strikers. “If the leaders of the people are going to pander to this prejudice,” Taft asked, “what can we hope from the lower classes?” (Taft was acting here as less a champion of civil rights than as a foe of organized labor.) As Butt concluded, “President Taft will do anything if he has the law on which to base his act. The law to President Taft is the same support as some zealots get from great religious faith. And the fact that the law is unpopular would not cause him to hesitate a minute.”6

  The question of whether the United States should be more of a direct democracy or a representative republic, with broad but limited executive power checked by an independent Congress and judiciary, each with broad but limited powers of their own, dates back to the Constitutional Convention itself. The Founding era’s debates between the constitutionalist James Madison and the populist James Wilson recurred throughout the nineteenth century, during the Jacksonian, Civil War, and Reconstruction eras. Taft’s presidency, therefore, marked an important phase in what has been a recurring and central tension in American history. Although Presidents Calvin Coolidge and Herbert Hoover adhered to Taft’s strict constructionist vision of the presidency, all presidents since Franklin D. Roosevelt have embraced what the historian Arthur M. Schlesinger Jr. called the imperial presidency, drawing on Theodore Roosevelt’s and Woodrow Wilson’s idea of the president as a steward of the people.

  Taft’s vigorous but constrained view of the presidency, however, should not be considered a constitutional anachronism. In Our Chief Magistrate and His Powers, published in 1916, Taft made clear that he saw the president’s powers—from executive privilege to control over the executive branch—as so broad that they were virtually unlimited, as long as they could be linked to specific provisions of the Constitution. Taft’s conception of the presidency as a constitutional rather than a popular office—expansive in content, limited in form, and both empowered and constrained by the Constitution7—reflected his Madisonian view that the Framers had created a representative republic rather than a direct democracy, headed by a president who would encourage “the sobering effect of deliberation and discussion” by the people over time rather than reflecting the passions of the moment.8 He maintained this view in the White House, vetoing the admission of New Mexico and Arizona into the Union as states because their constitutions provided for the recall of judicial decisions, and he defended this view extensively after his presidency. In Liberty Under Law, Taft anticipated the dangers of making fundamental constitutional changes by a single popular referendum, like Brexit in our own time.

  A popular constituency may be misled by vigorous misrepresentation and denunciation. The shorter the time the people have to think, the better for the demagogue. One of the great difficulties in carrying on popular government is in getting into the heads of the intelligent voters what the real facts are and what reasonable deductions should be made from them. Any reasonable suspension of popular action until calm public consideration of reliable evidence can be secured is in the interest of a wise decision. That at least was what our forefathers thought in making our Federal Government and the result has vindicated them.9

  Taft’s judicial conception of public office made him an effective leader in institutions such as the civil governorship of the Philippines or on the Supreme Court, where his authority did not depend on popular approval, and he could preside over thoughtful deliberation among a small, elite group. At the same time, Taft showed the limitations as well as the strengths of trying to translate the Founders’ eighteenth-century conception of the presidency into the twentieth century. Taft’s refusal to “play a part for popularity,” as he told Archie Butt, led Butt to lament the public’s failure to appreciate him. “In many ways he is the best man I have ever known, too honest for the Presidency, possibly, and possibly too good-natured or too trusting or too something on which it is hard just now for a contemporary to put his finger, but on which the finger of the historian of our politics will be placed with accuracy,” Butt wrote. “What really makes me almost ill with indignation, at times, is the fact that we have all our lives heard the American people say: ‘Oh, if we only had a President who could act with independence and not be hampered by the second-term fetish.’ And here they have one and they don’t even appreciate the fact; if they do, it gives only cause for criticism.”10

  Taft purported to be untroubled by the public’s indifference. “There are other and better things than being exceedingly popular,” Taft told Butt. “Roosevelt was exceedingly popular, and still is in many quarters for reasons that I should not like to have attributed to me.” But Taft’s refusal to “play a part for popularity” led to a series of political blunders that ultimately alienated Roosevelt and split the Republican Party. And because Taft had no political capital, he couldn’t achieve some of the reforms he sought, leading to Republican congressional losses in 1910 and the disintegration of the party in the presidential election of 1912.

  Taft’s refusal to engage in the art of politics was a product of his constitutional conception of the presidency. “The training of a Judge is something that leads you to depend upon the opinion published and the decree entered as speaking for themselves,” he acknowledged.11 But his political woes also stemmed from a thin-skinned sensitivity to criticism that sometimes clashed with his otherwise judicial temperament. “I have never known a man to dislike discord as much as the President. He wants every man’s approval, and a row of any kind is repugnant to him,” Archie Butt recalled.12 As a result, as the historian Doris Kearns Goodwin has described, he failed to court the newly empowered populist press. As Butt recorded in the summer of 1910, “He told the newspaper men the other day that he would not stand the repeated hammerings they were giving him, that he did not have to, and that sooner than stand them he would throw up the job. The worst mistake he ever made was to let them think they could get under his skin, for they are remorseless when they find out they can wound.”13

  Taft’s prickly demands for personal loyalty also served to undermine his political effectiveness. “If a public man can deduce any facts he will listen and act accordingly, but he is not swayed in the least against one merely because someone else is prejudiced,” Butt observed. “But when he takes a dislike to anyone it is for some reason known to himself, and he does not easily forgive. He is persistent in his antipathies. Mr. Roosevelt once said that Mr. Taft was one of the best haters he had ever known, and I have foun
d this to be true.”14 Taft’s instinct to lash out against those he considered disloyal led him to fire aides—including Louis Glavis and Gifford Pinchot—heedless of the political cost. “Whether his indifference to people in general comes from his experience on the bench or whether it comes from a high sense of what he owes to the state, or is in line with his sense of duty, I do not know,” Butt observed, “but I do know that he can remove people from office, that he can refuse to grant favors, with an indifference which is impossible to most men of his apparent type.”15

  Taft’s judicial presidency was less successful than his presidential chief justiceship because, in attempting to govern the United States in the early twentieth century along the lines that the Framers clearly preferred, Taft was unable to grapple with forces that the Framers would have abhorred—including the democratization of politics and the increasing power of political parties. By creating an executive with energy, to use Hamilton’s term, the Framers left the office open to alterations that ran against their basic conceptions of how the entire federal government should operate.

  Today, however, as new populist forces in America and around the world threaten principles of constitutionalism, limited government, democratic deliberation, checks and balances, and the rule of law, Taft’s conception of a vigorous but constrained presidency checked by similarly vigorous but constrained courts and Congress looks increasingly appealing. Taft would have been distressed by the spectacle of tweeting presidents and representatives: like Madison in Federalist 10, he believed that direct communication between representatives and their constituents was the democratic vice most to be avoided, since it promoted faction and discouraged reasoned deliberation. Taft predicted the congressional polarization and rule by minority factions that would result when the great parties lost their authority to be moderating forces of unity and compromise. His preference for extended deliberations by the people’s representatives rather than impulsive judgments by factions of the people themselves looks prescient as the growing transparency of the White House and Congress, fueled by the 24/7 news cycle, has made bipartisan compromise increasingly elusive. His Madisonian insistence on slow and thoughtful deliberation over time seems both imperative and elusive in an age of instant polling, Twitter mobs, and Facebook likes as substitutes for engaged political debate. His conviction that the republic would falter unless voters took the time calmly to educate themselves about what he called “real facts” and “reliable evidence” before making up their minds seems especially salient in an age of filter bubbles and fake news. Finally, there is the federal judiciary, whose cohesive strength as an arm of government is largely a tribute to Taft’s administrative and constitutional vision. As independent judges represent the last check on unconstitutional encroachments by the president, Congress, and the states, conservatives, classical liberals, and progressives alike are converging around a renewed appreciation for judicial independence. And Taft’s Madisonian appeals to the people to educate themselves to exercise “voluntary self-restraint” in order to resist demagogues and to promote public deliberation now seems not archaic but prophetic.