Wednesday, February 21, 2024

Building the Court

Guest Blogger

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

Thomas P. Schmidt

            Constitutional history often focuses on the development of judicial doctrine—say, tracing the career of the Fourteenth Amendment from Plessy and Lochner through Brown and Roe to SFFA and Dobbs. That focus of course yields important insights. But it can sometimes overlook the institutional dimension of constitutional history—that is, the way that constitutional law interacts with the evolving design of the bodies that articulate and implement it. When one reads a series of edited cases in uniform juxtaposition in a casebook, one can easily miss the variety of institutional arrangements that produced—and sometimes shaped—those cases. 

            The focus on doctrine at the expense of institutional history probably explains the relative obscurity of William Howard Taft’s work as Chief Justice. Indeed, Post himself confessed that when he was assigned volume on Taft in the Holmes Devise series, he felt he’d “drawn the short straw.” Today, Taft is “all but forgotten” (p. xxxv). Taft’s most memorable opinion—probably the only one of Taft’s opinions that a typical law student could name—was Myers v. United States, on the President’s removal power, which was “severely undercut[]” by a unanimous Court less than a decade later in Humphrey’s Executor (p. 416). 

            As an institutional reformer, though, what Taft accomplished in only nine years as Chief Justice nothing short of astonishing. Felix Frankfurter, who knew something about the business of the Supreme Court, said that Taft’s judicial reforms had earned him “a place in history . . . next to Oliver Ellsworth, who originally devised the judicial system.” (Ellsworth had authored the First Judiciary Act.) Post’s magisterial new volume on the Taft Court shows why Frankfurter’s encomium was so richly deserved. In several ways, Taft built the modern Court. Post’s restoration of Taft to his rightful “place” also illuminates a deeper point—that the details of institutional practice often reflect or instantiate evolving theories of the Court’s role and the grounds of its authority. (On that point, I can’t help but detect the palimpsestic residue of the two great thinkers about judicial institutions who were initially assigned the Taft volume of the Holmes Devise but prevented by their untimely deaths from completing it—Alexander Bickel and Robert Cover.) 

            What were Taft’s big reforms? First, Taft was the impetus for the passage of the so-called Judges Bill of 1925, which transformed for the Court’s jurisdiction by making it mostly discretionary. (It was called the “Judges Bill” because Taft lobbied for it and a committee of Justices, led by Van Devanter, drafted it.) The Judges Bill gave the Court the power in most instances to choose, through the “certiorari” process, whether it would hear a case at all. This was a radical change. As Post observes, the beginning of the “Taft Court was probably the last moment in the Court’s history when it could authentically inhabit decision-making practices appropriate for final appellate tribunal whose primary task was to settle disputes between litigants” (p. xxxvii). After the Judges Bill (and the Court’s articulation of the certiorari standard in its Rules), the Court would pick cases not primarily to resolve a dispute but instead to expound upon some broadly important legal issue. Indeed, the Court soon went even further than picking cases—it claimed the power to choose which questions within a “cert” petition it would address. The result, as Post explains, was that the Court increasingly came to resemble a “ministry of justice”—a body empowered to expound on a carefully curated selection of important legal questions (p. 484).

             Second, Taft transformed the role of Chief Justice. He conceived the office more along the lines of the British Lord Chancellor, who had administrative and advisory responsibilities beyond the standard judicial diet of deciding cases. From his perch, Taft energetically lobbied for legislative reform to the court system, and understood himself as a spokesman and advocate for the judicial branch. One of those reforms was the creation of the Conference of Senior Circuit Judges, presided over by the Chief Justice, which would supervise the operations of the whole federal judiciary. As Post observes, by “using the Conference of Senior Circuit Judges as a kind of cabinet, [Taft] became responsible for the management of the judicial branch in the same way that in Myers the president was deemed responsible for the management of the entire executive branch” (p. 452). The Conference—renamed the Judicial Conference in 1948—is now responsible for drafting and updating the federal rules of procedure, among other things. 

            Third, Taft “built the Court” in a literal (or perhaps marmoreal) sense. When Taft assumed the Chief Justiceship, the Court was still meeting in the old Senate Chamber in the Capitol and most of the Justices either had to work from home or rent their own office space. Taft persuaded Congress to appropriate money for a new building and maneuvered to have Cass Gilbert appointed as the architect. The result was the grand, neoclassical home at One First Street NE that is now so familiar. Taft did not live to see the project completed, but Gilbert wrote to Taft on his deathbed that the edifice would be a “monument to your honored name” (p. 563). It was also a monument to the deeper transformation Taft had effected in the role of the Court; as Post observes, the new building furnished “a physical infrastructure suitable to its enlarged role” (p. 551). 

            These were profound changes, and they had lasting implications for the Court’s legitimacy. A court with near-total discretion to pick what questions it will answer and when it will answer them can no longer ground its legitimacy in the obligation to decide an appeal. The Court sometimes still invokes the idea of obligation when its legitimacy is tested. Consider, for instance, the end of the Court’s per curiam opinion in Bush v. Gore: “When contending parties invoke the process of the courts, however, it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront” (emphasis added). After Chief Justice Taft and the Judges Bill, that sentence rings hollow, because the Court has very few “unsought responsibility[ies]” any more. It can virtually always decline to hear a case. And when the Court does choose to hear a case, that discretionary choice becomes a fair subject for inquiry and criticism. 

            Dobbs is a recent example. There was no law requiring the Court to hear an appeal about abortion rights when it did, or, for that matter, requiring the Court to transform Dobbs from a case about the application of the Casey framework to a case where the framework itself was under threat. The Court’s opinion presented itself as simply a formalist application of law, distinguishing itself from Roe, which it called several times an act of “raw judicial power.” But the fact that there was an opinion at all in Dobbs was a discretionary choice that was not meaningfully constrained by formal rules. 

            As it happens, reporting has shed some unusual light on what happened behind the scenes in Dobbs at the cert stage. The cert petition was filed before Justice Ginsburg’s death, and was scheduled for discussion and a vote during the Court’s conference on September 29, 2020. But Justice Ginsburg died on September 18. The petition was then repeatedly rescheduled until Justice Barrett had been appointed and had served for a few months. Apparently, the Court first voted to grant cert on January 8, 2021, which would ordinarily have meant that the case would be decided by that spring. But at Justice Kavanaugh’s urging, rather than announce the cert grant the Court repeatedly relisted the case for future conferences until May, which put off the ultimate decision for a year. When cert was ultimately granted, only four Justices—the bare minimum—were in favor of hearing the case. 

            Whether or not this account is true in all particulars, it is clear that Dobbs was the product of a series of discretionary choices that are not apparent on the face of the opinion. The Court did not have to grant cert; it did not have to transform the question presented; it did not have to reschedule the petition repeatedly to give Justice Barrett a chance to vote on it; it did not have to delay the announcement of cert to push the case off until the following Term. One could, of course, develop a defense of why the Court exercised its discretion the way it did at all these junctures. The point—a point that Post’s book has helped me to see—is that Dobbs was an act of institutional discretion, and not merely an act of ascertaining or applying the law. A comprehensive defense of Dobbs, then, cannot rest simply on the familiar “modalities” of constitutional argument. It must also include an account of why the Court exercised its discretion the way it did. And there are many unanswered questions about how a Justice should exercise that discretion in a way that is faithful to the role morality of judging. For instance, it seems to me that the Court can consider a broader range of institutional and moral factors when acting on a cert petition then when drafting a merits opinion. But just how far does that go? Can a Justice rely on fully “anti-modal” reasons to deny cert? 

            These questions are the legacy of Chief Justice Taft’s extraordinary record as a judicial reformer. For the most part, the Court’s decisions on the merits are now the small outcroppings of a buried bedrock of discretion. Post writes that the Judges Bill “diminish[ed] the Court’s ability to the Court’s ability to draw on its previous legitimacy as a simple dispute settlement mechanism.” Instead, “the Court would throughout the twentieth century be required to search for ways to justify its decisions despite the fact that it was selecting its own cases to serve ends extrinsic to the cases themselves.” That search has continued into the twenty-first century, and its present urgency is a testament to the profound mark that Chief Justice Taft left on the Court. 

            Thomas P. Schmidt is an Associate Professor of Law at Columbia Law School. You can reach him by email at

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