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.