Taft Packed the Supreme Court – Twice

Guest Blogger

For the Balkinization symposium on Robert Post,  The Taft Court: Making Law for a Divided Nation, 1921–1930 (Cambridge University Press, 2024).

Brad Snyder

            As a result of the Judicial Reform Bill of 1937, Franklin Delano Roosevelt is the American president most often associated in our historical memory with court packing. But as Robert Post’s magisterial Holmes Devise volumes on the Taft Court reveal, William Howard Taft succeeded in packing the Supreme Court of the United States – twice – first as a one-term president from 1909 to 1913 and again as chief justice from 1921 to 1930.

            Taft’s jurisprudence, which Taft described as progressive conservativism and Post characterizes as “a fuzzy and genial conservatism,” prioritized the protection of property rights. (I:8) In what Post identifies as a “remarkably candid article,” Taft declared that “the greatest ‘domestic issue in the [1920] election was ‘the maintenance of the Supreme Court as the bulwark to enforce the guaranty that no man shall be deprived of his property without due process of law.’” (I:4) For the Court, this often meant invalidating pro-labor federal and state regulation such as maximum hour laws, minimum wage laws, workers’ compensation laws, child labor laws, laws banning yellow-dog contracts forbidding union membership as a condition of employment, laws outlawing labor injunctions, and other laws favoring workers and unions over big business. See, e.g., Lochner v. New York (1905), Coppage v. Kansas (1915), Hammer v. Dagenhart (1918), Truax v. Corrigan (1921), Adkins v. Children’s Hospital (1923) (over Taft’s dissent based on his desire to follow precedent).

            As president, Taft created a judicial supermajority bent on protecting property and contract rights by lucking into six Supreme Court nominations in four years: 1) his former Sixth Circuit colleague Horace H. Lurton on December 13, 1909; 2) Charles Evans Hughes on April 25, 1910; 3) Edward Douglass White as chief justice (elevated from associate justice) on December 12, 1910; 4) Willis Van Devanter on December 12, 1910; 5) Joseph R. Lamar on December 12, 1910; and 6) Mahlon Pitney on February 19, 1912. (I:2)

Taft’s first court packing did not work out entirely as planned. Three of Taft’s six nominees lasted only a few years. Lurton died in 1914, Lamar died in 1916, and Hughes resigned in 1916 to run for president. Of the other three, one was a home run: Willis Van Devanter.

 Of all the insightful biographical chapters in Post’s Holmes Devise volumes, the Van Devanter chapter is the most illuminating because it reveals how vital he was not only as then-Chief Justice Taft’s friend and “lord chancellor” but also as one of the Court’s intellectual leaders. (I:232) Though a painfully slow writer, Van Devanter was a force of nature at conference. Chief Justice Taft deemed him “the mainstay of the Court” and “the most indispensable we have in the Court”; Harlan Fiske Stone described him as a “tower of strength.” (I:230) From 1910 to 1937, Van Devanter led the Court’s effort to protect property and contract rights and during the last four years of his tenure invalidated Roosevelt’s New Deal programs. The “Four Horsemen” label – as Mark Tushnet, Ted White, Barry Cushman, Laura Kalman, and other historians have observed – tends to obscure Van Devanter, James C. McReynolds, Pierce Butler, and George Sutherland by incorrectly assuming they marched in lockstep and shared the same jurisprudential ideas. In his Holmes Devise volumes, Post succeeds in disaggregating the four justices through entertaining profiles of their careers on and off the bench and by unpacking their jurisprudential differences. Somehow, Van Devanter, without writing a single enduring majority opinion, was primus inter pares. (I:225–58)

Woodrow Wilson’s defeat of Hughes in the 1916 presidential election undermined Taft’s goal of making the Court the protector of property rights – especially after Wilson nominated Louis D. Brandeis and John Hessin Clarke to the Court. Wilson’s 1916 nomination of Brandeis outraged Taft. The former president had not forgotten how Brandeis had humiliated him and his attorney general, George W. Wickersham, for relying on a backdated memorandum to fire Louis Glavis for insubordination in exposing the Ballinger-Pinchot affair over the leasing of government-owned Alaskan coal fields. (I:302–4) Upon Wilson’s selection of Brandeis to replace Lamar, Taft joined six former American Bar Association presidents in publicly opposing Brandeis’s nomination. (I:309) As Post explains, Taft and Brandeis “differed in many ways in their perspectives on constitutional law, but the most fundamental point of disagreement is that Taft understood the Constitution to establish ‘the security of private property and free contract.’” (I:311)

Their differences were more than ideological. Post underplays Taft’s mean-spirited and deeply offensive language about Brandeis in letters to a Taft family friend and confidant, Cincinnati Times-Star Washington correspondent Gus Karger. Though Karger was Jewish, Taft falsely claimed that Brandeis, a secular Jew, became interested in Zionism only to make himself a more attractive candidate for Wilson’s cabinet. (I:342–44) In fact, Wilson’s deeply anti-Semitic outside adviser Colonel Edward M. House blocked attempts to name Brandeis attorney general or secretary of commerce and labor. Taft also mocked Brandeis to Karger and other influential, anti-Zionist German Jews by claiming that Brandeis had been “metaphorically . . . re-circumcised” by his interest in Zionism. (I:342–43) Taft may not have been an anti-Semite, as Post observes, but Taft employed anti-Semitic language and allied himself with other anti-Semites, including Harvard president A. Lawrence Lowell, in opposing Brandeis’s nomination. To their mutual credit, Taft and Brandeis developed a genial and cooperative relationship on and off the bench. (I:310–11) Brandeis, however, posed a threat to Taft’s belief that the Court should protect property rights.

In 1920, Taft enthusiastically supported fellow-Ohioan Warren Harding for president not only to “return to normalcy” but also to counteract the nominations of Clarke and Brandeis. Fortunately for Taft, as president he had nominated 65-year-old White as chief justice, some believed, so that Taft himself could succeed him. The chief justiceship was Taft’s dream job. Harding had promised the initial Supreme Court vacancy to former Utah senator George Sutherland, but, when White died on May 19, 1921, Harding decided to name Taft chief. (I:5–6, 20–25)

As chief justice, Taft played an instrumental role in selecting Harding’s next three Supreme Court nominees and effectively packed the Court a second time. Harding served as president for two and a half years before his death on August 2, 1923. In that brief time, he nominated four Supreme Court justices – Taft chose or blessed the next three Harding nominees. Though he downplayed Taft’s role, Post concedes that “Taft played an important (and some would even say outsized) role in influencing the selection of the Court’s new members. Within a short period of time, he was able to preside over a Court that largely reflected his outlook and values. . . . For the remainder of the decade, the Taft Court would with accelerating rigor police the constitutionality of social and economic legislation.” (I:33)

Harding/Taft nominated Sutherland to replace Clarke on September 5, 1922, an ideological switch that, according to Post, “steered the Court sharply to the right.” (I:45) Taft wrote: “Sutherland is a safe and good appointment and the exchange of him for Clarke makes greatly strengthening the Court in the direction in which I would have it strengthened.” (I:39)

Three months later, Harding/Taft selected Minneapolis railroad lawyer Pierce Butler to succeed William R. Day. Taft remarked to his ally Van Devanter that Butler was “our man” and wrote Harding endorsing Butler’s candidacy. (I:72–73 n.30) To Taft, it mattered that Butler was “not enough of a Democrat to hurt.” To Brandeis, the only thing that mattered was Butler’s “views as to property.” (I:61) As Post correctly observes, Brandeis was right: “Taft was determined to use his influence with Harding to repair the damage inflicted by Wilson in appointing justices like Brandeis. Taft could not have found a better candidate for this purpose than Pierce Butler.” (I:62)

For his fourth and final appointment, Harding nominated district judge Edward T. Sanford on January 24, 1923, to succeed Mahlon Pitney, an unsuccessful justice whom Taft had persuaded to retire. (I:84–85) According to Post, Taft, contrary to the press reports, had little to do with Sanford’s nomination. (I:87) Yet Taft succeeded in researching the White House’s more progressive candidates, including then-district judge Learned Hand, and in eliminating them from consideration. (I:89, 108–9) Though he may not have chosen Sanford, Taft declared Sanford’s appointment “on the whole a very satisfactory one.” (I:90) Sanford made little impact on the Court, dying seven years later.

Taft’s influence on the composition of the Court waned under Harding’s successor, Calvin Coolidge, but not completely. Indeed, Taft crowed that he had “forced the President” into nominating Attorney General Harlan Fiske Stone on January 5, 1925, to replace Joseph McKenna. (I:125) Much to Taft’s consternation, however, Stone gravitated to the positions of Holmes and Brandeis by the late 1920s. (I:132)

Taft’s two efforts to pack the Court with a majority of justices who privileged property and contract rights over economic regulation were not an unmitigated success. But in four years as president, he nominated six justices and as chief justice he played an instrumental role in naming or approving of another three or four. In nominating Van Devanter and in promoting the nominations of Sutherland and Butler, he ensured that one-third of the Supreme Court would be more than willing to strike down federal and state economic regulation. Taft’s influence on the Court’s work extended long after he retired – not simply because of his lobbying for the Judiciary Act of 1925 or for a Supreme Court building, but for three justices who served well into the 1930s. Van Devanter, Sutherland, and Butler voted to invalidate several key New Deal programs. Their votes and opinions in 1935 and 1936 prompted the Judicial Reform Bill of 1937, which forever associated Franklin Roosevelt with the idea of court packing. As Robert Post’s masterful Holmes Devises volumes demonstrate, William Howard Taft succeeded in packing the Court twice before FDR attempted the same thing by legislative means.

Brad Snyder is a Professor of Law at Georgetown University Law Center and author of Democratic Justice: Felix Frankfurter, the Supreme Court, and the Making of the Liberal Establishment. You can reach him at @bradsnyderprof on twitter.