Response to Commentators

Guest Blogger

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

Robert Post

            Oliver Wendell Holmes, Jr., who devised the funds (symbolically) supporting the volume discussed in this symposium, lived most of his life in the shadow of his rock star father, Oliver Wendell Holmes, Sr. Even as a Justice on the Supreme Court, Holmes would regularly be mistaken for the author of Old Ironsides or Elsie Vedder. Holmes chafed at his relative obscurity, struggling to resign himself to a career in which what mattered was only “what a few masters scattered here and there say.”

            Having spent 35 years laboring on a book that will market for $250 a copy, I fully identify with Holmes’s sentiment. For a long history that will never achieve popularity, what matters most are the opinions of those few who know. And in this sparkling symposium Jack Balkin has assembled masters who in fact know. Their views give me deep and true pleasure.

It is a reward beyond price that so many who are so expert would dwell, even for a moment, among the hundreds of pages that have cost me so many years of my life. It is profoundly gratifying to have the “mechanics of craft” by which these volumes sought to extract a convincing narrative from “inherently overlapping and inextricably intertwined thematic doctrinal material” recognized and appreciated by so exceptional an historian as William Novak. I am deeply grateful to Jack and to the many contributors who have so generously made this symposium possible.

            When he was filming Satyricon, Fellini remarked that he wanted to make the past seem like science fiction. His ambition was to strip away the invisible grammar of assumptions through which we continuously construct the present. Without that grammar, the past becomes suddenly strange and unfamiliar. I had a similar ambition in writing The Taft Court. I wanted to demonstrate the fallacy of imagining the Taft Court as simply the Roberts Court in top hats. Tom Schmidt, in his marvelous contribution explaining how the Judges’ Bill of 1925 changed the implicit nature of Supreme Court decisions and authority, illustrates the point well. He demonstrates that the past is not simply a backward extension of the present. It takes determined effort to appreciate the many ways that the Taft Court, which superficially seems so similar to the Roberts Court, was actually quite a different institution.

            Ed Purcell most fully (and movingly) captures this thought. He explains (better than I could myself) why the conception of judicial authority during the 1920s was fundamentally different than anything we can easily imagine today. We are all now more or less positivists. We all believe that law derives from authoritative sources and texts. That is the legacy of the brilliant Oliver Wendell Holmes, Jr. But the Taft Cort was pre-positivist. It believed that even in the context of constitutional law it spoke for the same “crystallization of public sentiment” that underwrites the mandates of common law courts. As Purcell recounts, the Taft Court understood itself as an unmediated channel for the values and mores of the American people. It takes a strenuous effort of historical imagination for modern lawyers to recapture this alien grammar of judicial authority.

Contemporary originalism and textualism are each grounded in positivism. Each holds that law inheres only in authoritative texts. Jeffrey Rosen therefore correctly notes in his contribution that no Justice on the Taft Court could “be described as originalist or textualist in the contemporary sense.” But Rosen then adds that “Modern originalists are leapfrogging over the Taft era to resurrect an older, anti-Federalist tradition of strict construction and textualism that dates back to Spencer Roane.” To truly grasp the lost land of the past, however, would be to see that no justice before the 1940s could ever be a modern originalist. Before Erie members of the Court inhabited a pre-positivist world saturated with the kind of common law authority that has now all but evaporated. To conscript such a past for present positivist purposes is to fundamentally alter it.

As an author of a volume in the quasi-official Holmes Devise, whose piquant story is memorably recounted by Jill Lepore’s pungent contribution to this symposium, I felt obligated to minimize overt lessons that I would draw for the present from the complex materials of the past. It may be true, as Lepore memorably asserts, that “Every book about the history of the Supreme Court is a verdict on the current Court.” But such verdicts can be more or less explicit. Having chosen to keep my judgments implicit, I was gratified to read Justice Breyer’s insightful contribution. As an author of contemporary history, Breyer usefully thematizes similarities and dissimilarities as between the Taft and Roberts Courts. I particularly appreciated Breyer’s sharp observation that a court “should never be influenced by the weather of the day but inevitably . . . will be influenced by the climate of the era.”

My object in writing The Taft Court was to describe both the weather and climate of the 1920s. I sought to thematize the decade in its own terms; to elaborate as best I could how Taft and his peers perceived and responded to the particular challenges they faced. My premise was that law is always a situated drama of human construction. It is a call and response. My hope was that the resulting narrative might be sufficiently rich that contemporary commentators could, as Jim Fleming put it in his careful contribution discussing the implications of the Taft Court’s substantive due process doctrine for the contemporary Roberts Court, harvest what has been “tee[d] up for” them.

I confess, however, that this posture of self-restraint was sometimes frustrating. Ariela Gross, for example, plainly would have liked to see “white supremacy, and the rejection of Reconstruction as . . .  a central narrative for the Taft Court.” But as much as I share Gross’s attraction to these themes, I could not find support for this narrative in the historical material. Apart from Taft (and of course apart from the perennially racist McReynolds), race was simply not a salient issue for the Justices who made up the Taft Court. Or, to put it more precisely, I saw no evidence to sustain any such conclusion in their correspondence, diaries, cases, memoranda, etc.

I instead came away with the impression that the historian George Brown Tindall was correct to conclude that during the 1920s southern apartheid “was settled.” It was taken for granted. No one on the Court was inclined to disturb it, despite the persistence of the racial outrages that Gross movingly describes. The battles over reconstruction were long finished. The South had triumphed and the battlefield had shifted. As Holmes was inclined to put it, “This world cares more for red than for black.”

It is not the case that the Court believed that the Fourteenth Amendment “deserved less deference than the 1787 Constitution,” but the Taft Court closely embraced a Fourteenth Amendment that enshrined free labor and property rights, which it used as clubs to batter the regulatory state and labor unions. Although when it crossed his mind Taft did indeed identify with Andrew Johnson and repudiate the radical Republicans who sought to limit executive power (which included his own father), he nevertheless possessed many reasons to support a strong executive apart from relitigating the racial battles of 1868. Roosevelt, Taft, and Wilson each responded to the demands of the 20^th Century by striving to create a powerful and managerially effective executive. Laura Kalman is undoubtedly correct to note in her contribution that Taft was a wretched president, but she understates the extent to which he was an innovative and powerful advocate for reforming essential presidential powers, like the system of executive budgeting which we today take for granted.

Race was of course a tragic and lively issue during the 1920s. But jurisprudentially it was invisible. The Fifteenth Amendment was a dead letter, and race barely scratched the surface of Equal Protection doctrine. That is the way it would remain until the NAACP flexed its political muscle to defeat Hoover’s nomination of John J. Parker to the Supreme Court. The Great Migration had produced important swing blocs of black voters in northern and border states who in 1930 shocked the nation with their demand that a nominee to the Supreme Court care about racial justice. African Americans began to be accorded political and civil rights only after they had entered the American scene as puissant political actors. That carries significant and disconcerting lessons for our understanding of how rights evolve.

Something similar can be said about women. In this regard, Jill Lepore’s fine discussion of Adkins should be compared to David Bernstein’s. Bernstein wishes to argue that Adkins reflects Sutherland’s “feminist background.” But Lepore demonstrates that feminists were deeply divided about Adkins and about “progressive labor legislation” generally. Adkins, she writes was “a fork in the road between Alice Paul and Florence Kelley.” I side with Lepore in this dispute.

While Adkins was important in the development of American feminisms, however, the case tells us very little about the Taft Court’s attitude toward women. Sutherland’s reference to the Nineteenth Amendment was merely a rhetorical flourish, irrelevant to the logic of the decision. Taft used the adjective “garish” to describe his friend Sutherland’s invocation of the Nineteenth Amendment. The Nineteenth Amendment did not prevent Sutherland from deciding the very next year in Radice v. New York to uphold a statute that barred women from nighttime employment in restaurants so as to protect their delicate physiology. From the Court’s perspective, Adkins was about preventing wage and price controls, a subject on which Sutherland had been vocal before ever becoming a Justice. As the Taft Court made clear two months after Adkins in Chas. Wolff Packing Co. v. Court of Industrial Relations, it was as hostile to wage controls for men as to those for women.

The Taft Court was in fact constructed to channel such hostility. Harding appointed four of its members precisely to restore economic liberty to its privileged place in the pantheon of constitutional values. The massive expansion of social and economic regulations associated with World War I had entirely upended the pre-existing universe of laissez faire. Harding wanted a Court that would return the nation to normalcy. Using a variety of techniques, ranging from diminished deference to sharply forbidding price controls for property not affected with a public interest (like ordinary wages), the Taft Court set about its business of restoring the antebellum order. By reading cases like Adkins or Jay Burns in terms of their particular records, Bernstein misses this over-arching narrative, which is well described in Novak’s illuminating analysis of an “American jurisprudence of reaction.”

Bernstein defends Jay Burns on the ground that its conclusion was supported by the record in the case, and that Justices should not go “off on their own evidentiary expeditions without an opportunity for the parties to weigh in.” Yet only one week after Jay Burns the Court was willing in Chastleton Corp. v. Sinclair to declare invalid a congressionally declared emergency in the housing market of the District of Columbia. It supported this far-reaching constitutional decision on the basis of facts entirely outside the record and available only by way of judicial notice. Bernstein misses the fact that constitutional adjudication frequently relies on legislative facts of this kind, as evidenced by the famous Brandeis brief in Muller v. Oregon. The real dispute in Jay Burns was actually about the White Court precedent of Purity Extract & Tonic Co. v. Lynch, in which the Court had declared in 1912 that it would defer to considerations of administrative convenience. The Taft Court took dead aim at Purity Extract, which by the end of the decade had been virtually overruled.

  Curiously, however, Purity Extract remained alive and well in the context of prohibition. In its zeal to enforce the Volstead Act, the Taft Court retained and even expanded the structures of deference forged by the White Court. The Taft Court even cited Purity Extract explicitly in the important case of James Everard’s Breweries v. Day, although Van Devanter would later edit out of Brandeis’s draft opinion in Lambert v. Yellowley a reference to Purity Extract. The Taft Court exhibited in the context of prohibition a rigorous positivism and a strict deference to national power. This stance helped pave the way, as Lisa McGirr notes in her incisive contribution, for “the tremendous growth of the administrative state during the New Deal.” The massive institutional experiment of prohibition forced Taft Court Justices to choose between a common law commitment to custom and tradition, on the one hand, and a fidelity to positive law on the other. Taft led his Court down the latter path.

Taft was able to do so because of the immense prestige he carried as a former president of the United States. In less than a decade Taft proved, as Laura Kalman remarks, an “unparalleled” chief justice. Almost single-handedly he changed the nature of the federal judiciary and of the Supreme Court itself. He gave the Court a new home. And, as Brad Snyder remarks, he packed the Court not once, but twice. Once as president, and again as a Chief Justice who aspired to the prerogatives of an English Lord Chancelor. Actually, one might say, Taft packed the Court for yet a third time when he reached virtually from the grave to force Hoover to appoint Charles Evans Hughes as his successor rather than Harlan Fiske Stone.

I confess that in writing this volume I was more enthralled by the challenges facing the Court than I was by the outsized figure of Taft. I struggled for decades to find a structure in which I could narrate these challenges. It was the Trump administration that finally solved my problem.

Harding, like Trump, appointed several justices (four) in an effort to push the Court to the right. The Taft Court’s successes and strategic mistakes in the pursuit of this goal immediately became a powerful narrative frame. The antics of the Trump administration sharply polarized the nation, so that the Roberts Court confronted the difficulty of convincingly articulating law in the midst of existential political conflicts. During the 1920s, the Taft faced an analogous challenge. Attempting to negotiate the violent controversies enveloping prohibition and labor, the Taft Court struggled to endow its opinions with the impersonal legitimacy of law. I was able to frame my history around efforts of Justices to construct opinions that could stand as convincingly law and not be dismissed as merely assertions of “personal economic predilections.”

All historians query the past in this way in light of questions prompted by the present. But the lovely contribution of Willy Forbath catches out the essential ambivalence with which I approached this task. The desperation of contemporary American politics has made me skeptical that history can actually instruct the present. Hence the book’s epigraph from Gramsci: “History teaches, but it has no pupils.” But when I think of my small grandchildren, six and three years old, I cannot bear to lose all hope that we might learn from our past mistakes. Hence the book’s dedication: “To Shiloh and Willa: May they inhabit a future that has learned from its past.” Willy detected this uncertainty, and I feel blessed to have readers so perceptive.

Perhaps my ambivalence was fruitful, however, for it prompted me to write a multi-layered history. The past is a rich soil from which many insights can grow. My hope is that these volumes, in which so much research has been composted into so many endnotes, will empower others, like Forbath, to “fashion an interpretation of history quite different” from my own.

Perhaps they will discover auspicious futures in the materials I was able to uncover. I certainly hope so. We can all use a bit of good news.

Robert Post is Sterling Professor of Law at Yale Law School. You can reach him by e-mail at robert.post@yale.edu.