Comments on Robert Post’s Supreme Court History of the Taft Court, Part IV, The Taft Court as an Institution

Guest Blogger

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

Stephen Breyer

    Robert Post has written a magisterial account of the Supreme Court during the near decade (1921 to 1930) when former President, William Howard Taft, served as Chief Justice. Here I shall focus upon one section, the chapters discussing institutional characteristics of that Court. I shall compare them to somewhat analogous characteristics of the recent Roberts Court (and the earlier Rehnquist Court) on which I have served.

     First, Members of both Courts differed strongly among themselves about the proper way to decide legal questions. Post finds the 1920’s Court divided into four camps. Justice James McReynolds believed that law was “not a body of commands imposed upon society” by a democratically-elected legislature.  Rather, law “exists at all times as one of the elements of society springing directly from habit and custom.” Robert Post, The Taft Court: Making Law for a Divided Nation, 1921–1930, at xxvii (forthcoming 2024).  To McReynolds, law represented the “spontaneous self-ordering of society itself.” Ibid. Hence judge-made law was viewed as typically more important than legislation, which judges should read accordingly.

    Justice Oliver Wendell Holmes Jr., by contrast, was a legal positivist.  He did not believe the law privileged custom, tradition, and “fundamental” rights to property and contract but, rather, reflected a legislative expression of the will of the people.  “Legislation, like law itself, was an alternative to war.” It was the productive channel through which social conflict is rendered peaceful and orderly. Id. at xxviii. “The function of law was to express the will of the group able to dominate society, and the function of the courts was to apply that will.” Ibid.

    Taft’s views were somewhere between those of McReynolds and Holmes.  Taft derived constitutional rights, not from custom alone, “but instead from a pragmatic calculation of economic incentives,” including rights to property and contract.  Law was an “instrument of policy” that enabled the accumulation of wealth.  And that to Taft was a hallmark of progress.  Id. at xxviii–xxix.

     Justice Louis Brandeis held yet another view of law. He saw “the purpose of the American Constitution” as creating “a successful democracy.” Id. at xxix. He agreed with Holmes that the judicial attitude towards legislative work should be deferential, for that work embodied the output of a democratic process.  But Brandeis hesitated less to find that the protection of constitutional rights counseled in favor of judicial intervention, at least where intervention was necessary to maintain a democratic system.

     Members of present Courts also divide into factions in respect to the proper way for judges to interpret the language of statutes and the Constitution.  A majority follows a theory of “textualism” or of “originalism.”  These approaches ask judges to look almost exclusively to language.  The words mean what a reasonable person would have taken them to mean at the time they were written.  Stephen Breyer, Reading the Constitution: Why I Chose Pragmatism, Not Textualism 16 (forthcoming 2024).  Justice Scalia some years ago defined “textualism” as emphasizing that words in a statutory phrase in “their full context” and with few exceptions “mean what they conveyed to reasonable people at the time they were written.” He added that the interpreting judge should “reject judicial speculation about both the drafters’ extratextually derived purposes and the desirability of the fair reading’s anticipated consequences.” Id. at 16–17.  Other contemporary Justices have written approximately the same thing. See id. at 16; see also, e.g., N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 36–37 (2022) (Thomas, J., for the majority of the Court); Bostock v. Clayton County, 140 S. Ct. 1731, 1755 (2020) (Alito, J., dissenting) (statutory words “mean what they conveyed to reasonable people at the time they were written” (citation omitted)); Kisor v. Wilkie, 139 S. Ct. 2400, 2442 (2019) (Gorsuch, J., concurring in the judgment) (the proper approach to legal interpretation is “elucidat[ing] the law’s original public meaning”). 

     A different group of Justices emphasize the language’s purposes.  The key question to ask of a statutory phrase is “why?”  What purpose does the language serve? And what are the consequences of a particular interpretation? These judges may also look to a statute’s history and its consistency with constitutional values. They find text relevant but not necessarily determinative.  The divisions among some of the Justices in respect to “textualism” or “purposivism” is not always absolute but rather a matter of degree or emphasis. Still, the present Court, like the Taft Court, is marked by divergent approaches to proper legal interpretation.

     Second, the Taft Court, like the present Court, found itself at the center of considerable, often politically based, criticism.  In the early 1920’s “progressive” political organizations, including many labor unions, believed that the Court was hostile to the development of labor unions and that the Court placed its thumb on the judicial scales in favor of big business.  Many of these groups favored Court reform.  The American Federation of Labor, for example, favored a constitutional amendment that would have allowed Congress to overturn a Court decision holding a statute unconstitutional.  Others would have required the votes of seven Justices in order to invalidate an act of Congress.  As Post points out, Taft himself recognized “agitation” against the Court, and he privately noted that the Court should not be “frightened because of threats against its existence.” Post, supra, at 614–16.

     As is well known, the present Court is also at the center of what Taft might have called “agitation.” Public favorability ratings of the Court have fallen to their lowest points since polling began in 1987. Katy Lin & Carroll Doherty, Favorable Views of Supreme Court Fall to Historic Low, Pew Rsch. Ctr. (July 21, 2023), https://www.pewresearch.org/short-reads/2023/07/21/favorable-views-of-supreme-court-fall-to-historic-low/. The Court has faced criticism, not only from those who disagree with its decisions,  but also from those who believe it has not properly used its emergency docket, or that it ought to have a written, enforceable code of ethics.

     Third, the Taft Court closed ranks against its opponents in a way that the present Court has not.  In particular, as Post points out, Taft and at least some other members of the Court believed that dissenting opinions provided potent political fodder for the Court’s opponents. He and Justice Van Devanter consequently urged their colleagues to reduce the number of dissents they wrote and embrace solidarity in an effort to maintain the Court’s institutional integrity. Post, supra, at 617.

     This view may well have helped prevent jurisprudential war from breaking out among Justices who held very different jurisprudential views.  Throughout Taft’s leadership, between 70% and 90% of the Court’s full opinions were unanimous. Dissents were rare.  And this lack of public disagreement remained largely true even after 1925, when Congress, by expanding certiorari jurisdiction, gave the Court more discretion to decide whether to hear a case, thereby increasing the percentage of cases likely to contain an important question of law. Id. at 612–13.

     Post, with statistics and quotations, makes clear that the Court’s unanimity reflected not so much agreement on substance but a culture of “acquiescence” among the Justices. For example, drawing on the newly uncovered docket books of Justice Butler and Justice Stone, spanning the years 1922–1924 and 1924–1929, respectively, Post points out that, during that period, of “the 1,028 conference cases that were ultimately decided by a published unanimous opinion of the Court, only 58% were also unanimous in conference.” Id. at xxxvi, 619–20.

     Explaining his own view of acquiescence, Taft wrote that “I don’t approve of dissents generally, for I think that 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 record my individual dissent where it is better to have the law certain than to have it settled either way.” Id. at 610. He added that most “dissents are a form of egotism.  They don’t do any good and only weaken the prestige of the Court.  It is much more important what the Court thinks than what any one thinks.” Ibid. Writing to Holmes, Taft remarked that, “While I make the sign of the scissors to you, I do not intend to do so to the public. I concur.” Ibid.

     This attitude was widespread among the Justices. Justice Stone, who tended to favor the writing of dissents, said that he would dissent only “with real reluctance” and would “often acquiesce in opinions” with which he did “not fully agree.” Id. at 626. Justice Butler called dissents “vanity.” Ibid. And Justice Mckenna wrote to the others that “I voted the other way but my effort is to please so I will accede.” Id. at 627.  Holmes too would often acquiesce in opinions with which he disagreed, writing that it is “useless and undesirable, as a rule, to express dissent.” Id. at 629. 

     In my experience, today’s Court makes considerably less effort to appear unanimous.  Has the culture of acquiescence disappeared? Not completely. Not everywhere. In France, for example, the judicial system favors the appearance of unanimity. “[A]s French judges often point out, a single opinion may lead the public to believe that a court’s statement of the law reflects not simply the views of a few individual judges but the law itself. The need for a single opinion can also bring about a more reasonable or acceptable result by forcing members of a court to understand and see one another’s points of view and ultimately to compromise.  It avoids the distinctly American ‘cult of the judge.’“ Stephen Breyer, The Court and the World: American Law and the New Global Realities 269 (2015).

    In contrast to that view, I wrote in The Court and the World that “the appearance of unanimity where it does not exist is not helpful either to the law or to the Court’s standing.  The public always suspects disagreement; it builds trust to acknowledge differences rather than to hide them.” Ibid. Moreover, a dissent, “by pointing out flaws in a majority draft opinion” can lead to revisions of that draft.  And it can “lead to a better-reasoned holding, which strengthens the Court’s standing, producing greater public acceptance of the Court’s work.”  Ibid. Ultimately that acceptance helps support the rule of law.  And, since the Court, lacking purse and sword, can neither directly reward nor punish the public, the public’s belief that it reasons through its legal problems, that its decisions rest upon reason, and that it seeks legal virtue can help produce an acceptance that furthers the rule of law itself. Compare James Hankins, Virtue Politics: Soulcraft and Statecraft in Renaissance Italy (2019).  

Was I right?  The Taft Court’s practices leave me with less certainty, at least as to degree. Post’s nuanced discussion of this period prevents the reader from viewing the writing of dissents as either highly desirable or highly undesirable.  He tells us that Brandeis once remarked to Justice Frankfurter that, “there is a limit to the frequency with which you can” dissent, “without exasperating men.”  You may have “a very important case of your own as to which you do not want to antagonize on a less important case.”  The “[g]reat difficulty of all group action . . . is when and what concessions to make. Can’t always dissent – may have dissented [too] much just then.” Post, supra, at 628.

    In this passage, Brandeis poses the question, which Taft (through Post) takes up: In respect to dissents, how much is too much? When should I write? And why? One cannot read the Post chapters without trying to answer these questions, both as applied to the Taft Court and the present Court.

     Fourth, Post’s chapters on the Taft Court’s qualities as an institution raise another question important both in the 1920’s and today—what is the role of politics in Supreme Court decisions?  On the one hand, in the Senate, where I worked as a staffer, politics typically took the form: Democrat or Republican?  Popular or unpopular?  Reflecting, or not reflecting, the views of constituents?  In my experience, politics in this form does not normally determine the outcome of Supreme Court decisions.  (I say “normally” because sometimes this kind of concern can lead the Court to decide, as was true of the first miscegenation case to reach the Court, that now is not the right time to decide the matter, as there is a risk that the public may ignore the decision.)  Nothing in Post’s book leads me to believe the Taft Court was different in this respect.

     On the other hand, politics can take different forms.  Certainly, politically oriented groups will urge a President to appoint to the Court an individual, normally a judge, whose jurisprudential outlook will lead to decisions that the group favors.  If so, the group may feel it has been politically successful when the judge favors a particular outcome. The judge, however, believes he or she has favored that outcome for jurisprudential, not for purely partisan political, reasons. 

     Moreover, a Justice, by the time that Justice reaches middle age, will have views about law that personal experience has helped shape.  I was born in San Francisco and grew up there in the 1950’s. I went to Lowell High School, a public school.  I attended university in the West and law school in the East. I worked as a staffer in the Senate. Do these circumstances matter? In my opinion they do matter, for law is not computer science, and jurisprudence is not a mathematical theorem. Experience, directly or indirectly, helps to shape the legal approaches that a judge will apply in a particular case.

      Further, the Supreme Court constitutes a unique and important part of the United States government. That government embodies democracy, protects human rights, and reflects other humane, democratic values.  Today, the Constitution and the institutions it creates allow some 320 million people, despite their differences, to live together as a single nation. And that context in which the Court, like the rest of the government, operates means that political matters can inform Supreme Court decisions. I do not mean “always” or even “often.”  But when, how, and to what degree are questions to which no treatise provides an answer.

     Taft expressed the matter well when he wrote to Justice Sutherland:

     I do not minimize at all the importance of having Judges of learning in the law on the Supreme Bench, but the functions performed by us are of such a peculiar character that something in addition is much needed to round out a man for service upon the Bench, and that is a sense of proportion derived from a knowledge of how Government is carried on, and how higher politics are conducted in the State.  A Supreme Judge must needs keep abreast of the actual situation in the country so as to understand all the phases of important issues which arise, with a view to the proper application of the Constitution, which is a political instrument in a way, to new conditions.

Post, supra, at 650.

      Sometimes, when asked about the role of politics, I like to quote the phrase that the comic writer P.G. Wodehouse used to describe how his hero Bertie Wooster felt one morning when he woke up:  “If not actually disgruntled, he was far from being gruntled.” Put another way, Professor Paul Freund expressed the political matter more concretely when he said that the Court “should never be influenced by the weather of the day but inevitably . . . will be influenced by the climate of the era.” Marcia Coyle, The Supreme Court and the “Climate of the Era,” Nat’l Const. Ctr. (June 29, 2020), https://constitutioncenter.org/blog/the-supreme-court-and-the-climate-of-the-era.

     The Taft Court helps to illustrate what Freund likely had in mind.  It made many decisions that have suffered severe criticism.  It struck down, for example, laws setting minimum wages for women and children (although Taft, himself, dissented). See Adkins v. Children’s Hospital of the District of Columbia, 261 U.S. 525 (1923). It followed the earlier case of Lochner v. New York, where the Court had prevented the government from setting the maximum number of daily and weekly hours that a baker could work.  It continued the Court’s trend of dealing blows to the functioning of labor unions. See, e.g., Truax v. Corrigan, 257 U.S. 312 (1921); United Mine Workers of Am. v. Coronado Coal Co., 259 U.S. 344 (1922).  It emphasized and broadened the Constitution’s protections of property and contract.  It protected laissez faire business principles.  See, e.g., Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922). And so forth.

     Before criticizing, however, it is worth asking what the “climate” was when the Taft Court made its decisions. The nation emerged from the nineteenth century with enormous economic strength. Before the Civil War, this nation was poor, with a few rich families but many so poor they could not easily find schooling, build churches, or rest assured of adequate food and housing. But in the wake of late-nineteenth and early-twentieth century inventions, such as motor cars and electricity, new methods of production, such as assembly lines, and new methods of finance, including the limited liability company, the United States had become the richest nation in the world. By 1914, Americans enjoyed a per capita income of $346 compared with $244 in Britain, $184 in Germany, and $153 in France. Alan Greenspan & Adrian Woolridge, Capitalism in America: A History 92 (2018). This extraordinary growth benefited working class Americans as well as business owners.  And many Americans, including many scholars, credited free markets for the economic success. In that context, it is not surprising that Supreme Court Justices might have thought that, in emphasizing freedom of contract and property and protecting laissez faire, they were in fact protecting the goose that had been laying golden eggs.

     The political climate between the Civil War and the First World War was shaped in significant part by those who held similar views.  After World War I, the country elected Warren G. Harding President, in part on the basis of his slogan, “Return to Normalcy.”  What was that “normalcy?”  Post, when writing about the Taft Court, describes its judges as seeking to “restor[e] economic liberty to the center of the American constitutional order” by protecting “a core realm of economic and moral freedom that it believed lay at the foundation of the American republic.”  Post, supra, at xxvi. There, they thought, we find the golden-egg-laying goose.

     By the 1930’s, however, few could hold these views. As of 1932, the Dow Jones stock market average had declined almost 90% from its historic peak. Gary Richardson et al., Stock Market Crash of 1929, Fed. Rsrv. Hist. (Nov. 22, 2013), https://www.federalreservehistory.org/essays/stock-market-crash-of-1929. That same year the unemployment rate exceeded 24%, and between 1929 and 1932 the gross national product fell by 30%.  Christina D. Romer, The Nation in Depression, J. Econ. Persp., Spring 1993, at 30. The Great Depression was in full swing. The political “climate” too had changed. Some of the Justices modified their jurisprudential approach accordingly. Some retired. And a new President began to make new appointments. Slowly but surely, the jurisprudential approaches of the New Deal Court began to replace those that the Taft Court had reflected.

     Are we today in the midst of a similar shift—what one might see as a shift in basic legal paradigms?  No one can know for certain.  But Robert Post’s book, by explaining and illustrating how the Taft Court worked, helps us approach this kind of question knowledgably.  Understanding how to do so is important.  In recognizing its importance and writing about it in detail, Robert Post has helped each of us better understand the functioning of the Supreme Court of the United States.    

Justice Stephen G. Breyer (retired) is Byrne Professor of Administrative Law and Process at Harvard Law School. You can reach him by e-mail at sbreyer@law.harvard.edu.