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 20th
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.