Friday, February 23, 2024

The Taft and Roberts Courts’ Quests for Returns to Conservative “Normalcy”: A Comment on Robert Post’s The Taft 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).

James E. Fleming
I.          Introduction
            Congratulations to Robert Post for completing his monumental The Taft Court. It is a staggering, inspiring, and illuminating achievement! The careers of a number of prominent law professors have been weighed down by the heavy burden of expectations arising from the Oliver Wendell Holmes Devise History of the Supreme Court. Though Robert notes that he began working on the book 35 years ago (xxv), he has borne that burden well. The book has a fresh, energetic, and urgent feel to it. Indeed, his completion of the book at this moment is unexpectedly timely in ways I will sketch.
            I recently published Constructing Basic Liberties: A Defense of Substantive Due Process, a vigorous defense of substantive due process at a time when it is imperiled. Therefore, I will focus on Post’s analysis in Part V of the Taft Court’s protection of fundamental liberties through substantive due process. This was, after all, during the Lochner era. In these comments, I will be unabashedly and unapologetically presentist. After all, I am not an historian but a normative constitutional theorist, and so I will leave it to others to assess whether Post gets the history right. Instead, I shall focus on the implications of his analysis of the Taft Court for understanding and criticizing the Roberts Court. In terms of the subtitle of his book, both courts face the challenges of “making law for a divided nation.”
II.        Three General Parallels between the Taft and Roberts Courts
            I was struck by three general parallels between the Taft Court and the Roberts Court, especially since the election of Donald Trump as President in 2016. First, just as President Warren Harding between 1921 and 1923 had the opportunity to appoint four justices to the Court—an unusually large number for such a short period—President Donald Trump got to appoint three justices between 2017 and 2020. In both instances, their appointments of conservative justices produced notably more conservative Courts.
            Second, Post powerfully illuminates the ways in which World War I contributed to the building of the modern administrative state with a strong national government. These developments fueled progressive hopes of continuing to harness the federal government during peacetime to promote positive benefits for the good of the people. At the same time, they aroused conservative fears of “socialistic” government and longing for a “return to normalcy”—basically to “the older ideals of laissez-faire individualism” (683) thought to have obtained before World War I.
            Although we have not had a war of the scope of World War I in recent years, we have seen the continuing expansion of the administrative state and with it the backlash of conservatives’ never-ending assault on the administrative state. Similarly, in response to the extension of constitutional rights and antidiscrimination law to protect historically subordinate groups—what conservatives have seen as the Warren Court Revolution—we have lived through the conservatives’ longstanding war on the “Warren Court.” This is a broad concept that includes many of the developments actually occurring through later courts and federal and state legislation.
            Progressives have celebrated these developments as great achievements of our constitutional culture in securing the blessings of liberty and the status of equality for all. But conservatives have vilified them as illegitimate and sought a return to normalcy—whether through (1) restoring the “lost” libertarian Constitution that has been “in exile” since 1937; (2) overruling liberal precedents in order to return to a pre-Warren Court status quo; or (3) going back to the purported original meaning of the Constitution.
            (By the way, conservative “returns to normalcy” seem invariably to be returns to when conservatives ruled the country, the states of affairs liberals and progressives have sought to reform. This mindset reached its nadir in Senator Tim Scott’s recent call for a “return to normalcy” by electing Trump to a second term. Talk about “defining normalcy down,” as Charlie Sykes aptly put it in The Bulwark.)
            Three, the Taft Court, like the Roberts Court, had a chief justice who was deeply conservative yet who occasionally moderated the conservativism of his Court through majority opinions or dissents rejecting the views of his more radical conservative colleagues.
            To be clear, Post does not explicitly make these three comparisons—he is writing the history of the Taft Court, not a criticism of the Roberts Court. Still, he implicitly tees them up for readers like me to make.
III.       Similarities between the Taft and Roberts Courts’ Conceptions of Fundamental Liberties
            I also see uncanny resemblances between Post’s analysis of the Taft Court’s protection of liberty in the substantive due process decisions of Meyer v. Nebraska and Pierce v. Society of Sisters, on the one hand, and the Roberts Court’s protections of freedom of speech and religious liberty in 303 Creative v. Elenis, on the other. The Nebraska and Oregon legislatures in Meyer and Pierce, in the wake of World War I, clearly believed that government should promote American ideals through prohibiting the teaching of modern languages (including German) and requiring everyone to attend public schools. The Colorado legislature in 303 Creative, through its antidiscrimination law’s prohibition of discrimination on the basis of sexual orientation, clearly thought that it was promoting civic ideals of tolerance and respect for all in securing the status of equal citizenship for LGBTQ persons, including same-sex couples who planned to marry.
            Justice McReynolds for the majority in Meyer and Pierce rebuffed civic republican projects of fostering American ideals and cultivating a common civic culture on the basis of an antitotalitarian conception of liberty. In Meyer, McReynolds specifically analogized Nebraska’s forbiddance of teaching German to totalitarian measures that would submerge the individual in the government’s project of crafting ideal citizens. Similarly, in Pierce, he rejected Oregon’s requirement of attending public schools as treating children as “mere creatures of the state” to be “standardized” by the government in forming ideal citizens. The Taft Court officially grounded these decisions in substantive due process. Yet in Griswold v. Connecticut, decided in 1965, Justice Douglas for the majority eschews substantive due process and recasts Meyer and Pierce as First Amendment cases.
            The Roberts Court, though dubious about substantive due process in general (see Dobbs v. Jackson Women’s Health Organization), does not repudiate Meyer and Pierce so much as complete the recasting of their concerns (together with those of West Virginia v. Barnette in invalidating a compulsory flag salute in public schools) into First Amendment commitments protecting against governmental compulsion of an orthodoxy in 303 Creative. These First Amendment commitments stem from not only freedom of speech but also religious liberty. In 303 Creative, Justice Gorsuch for the 6-3 conservative majority condemned Colorado’s antidiscrimination law (in Orwellian terms) as imposing a governmental orthodoxy upon honorable dissenters. The Court’s invoking of Orwell and its framing of Colorado’s salutary project of protecting LGBTQ persons against discrimination as compelling a governmental orthodoxy echo Meyer and Pierce’s warnings against government engaging in totalitarian standardization of people.
            What is more, as suggested at the outset, just as the Taft Court viewed itself as restoring the normalcy of a pre-World War I order, the Roberts Court evidently aspires to restore the normalcy of a status quo that preceded the Warren Court Revolution. (We see this not only in Dobbs but also in a number of religious liberty cases.) (1) A status quo that is deeply rooted in history and tradition (conceived narrowly as concrete historical practices embodied in the common law and statute books rather than abstract aspirational principles). (2) One moreover that conceives the Constitution as codifying pre-existing common law rights instead of establishing abstract rights to be built out over time on the basis of experience, new insights, and moral progress. (3) And one that maintains fidelity to the original meaning of the Constitution (conceived as relatively specific expectations of the framers and ratifiers rather than abstract commitments embodied in the text to be built out over time).
            The only criticism I have of Post’s analysis of substantive due process is that he may make progressive assumptions about economic liberties today that blunt the similarities between today’s conservatives and the conservatives of the Taft Court. He rightly observes that the Taft Court conservatives did not distinguish economic liberty from personal liberty, but viewed both as required for “the maintenance of personal independence and adult moral agency” (828)—and therefore Meyer, Pierce, and Adkins v. Children’s Hospital were of a piece with one another. (Today, by contrast, many conservatives would protect economic liberties but not personal liberties.)
            Post writes, “[T]he normative aspect of property is almost invisible to modern readers. It is hard for us now to appreciate just how thoroughly members of the Taft Court conceptualized property as constitutive of personality, as prerequisite for the formation of adult independence and agency.” (827) He also says, “In our own time, in the wake of the constitutional revisions of the New Deal, property has largely been drained of this moral significance.” (835) Thus, Post seems to assume that people today do not view economic liberty as essential to individual moral independence, though personal liberty is. That certainly is the way many liberals and progressives view the matter. But here I believe he underestimates the degree to which conservatives today reject that view and continue to embody the Taft Court understanding that economic liberty is fundamental to and constitutive of personality and moral independence.
            Many contemporary conservatives, moreover, do not share the liberal and progressive view that it was a constitutional disaster for courts aggressively to enforce economic liberty during the Lochner era. They have rehabilitated Lochner or resurrected the Lochner era mindset that Post’s analysis elaborates so vividly. Even though many conservatives today avoid invoking Lochner by name, they champion many ideas critical of governmental regulation that are reminiscent of the Lochner era, e.g., through their doctrines concerning federalism, separation of powers, and First Amendment rather than through substantive due process.
            In short, Post’s analysis of the Taft Court’s approach to social and economic legislation illuminates what Paul Krugman would call libertarian “zombie” ideas that continue to stalk the earth, endangering constitutional progress and use of government to face modern challenges and pursue good things for the people.
            Furthermore, I believe that Post’s analysis of Adkins is spot on, and it sheds light on additional similarities between Taft Court conservatives and Roberts Court conservatives. He primarily views Adkins through the lens of Justice Sutherland’s moral conception of protecting fundamental liberties rather than as reflecting hostility to class legislation, which seems exactly right. When I read Post’s account of Sutherland I immediately thought of Randy Barnett’s libertarian arguments for a presumption of liberty and against governmental regulation. I also thought of Justice Thomas’s arguments in New York State Rifle & Pistol Association v. Bruen for a presumption in favor of gun rights and against governmental regulation. I am not saying that Post’s account is presentist. I am saying that today’s conservatives seem more like the Taft Court’s conservatives than he specifically acknowledges. As I put the matter in my book, Constructing Basic Liberties, today many conservatives’ worldviews embody “Lochner’s revenge” on West Coast Hotel (for overruling Adkins and therewith the Lochner era).
IV.       The Analogies between the Adkins and Dobbs
            Finally, Post’s analysis enables us to see similarities between the Taft Court’s decision in Adkins and the Roberts Court’s decision in Dobbs. To be sure, there are fundamental differences doctrinally—Adkins reinvigorated substantive due process (in particular, Lochner era protection of liberty of contract), whereas Dobbs takes a sledgehammer to it. Moreover, Dobbs purports to have learned the lessons of the errors of the Lochner era—indeed, it tars Roe v. Wade and Planned Parenthood v. Casey with the brush of Lochner (even as it resurrects the Lochner era mindset through other doctrines).
            Still, I want to bring out two similarities between Adkins and Dobbs. One, Post opens his analysis of Adkins by stating that it “was the ‘chef d’oeuvre of the Taft Court,’...the decision that decisively set the Taft Court on the path toward normalcy.” (755) Dobbs is precisely analogous for the Roberts Court, a defining case that purports to set the Court on the path toward the pre-Roe “normalcy” of protecting only basic liberties that are deeply rooted in history and tradition or in the original meaning of the Constitution. At the same time, both Adkins and Dobbs provoked critics to denounce the Supreme Court as illegitimate and to call for court reforms to curb the power of the Court. 
            Two, both Adkins and Dobbs concerned the status of women and rejected arguments for protecting them on the ground that doing so would be objectionably paternalistic, given that the 19th Amendment had secured the right of women to vote. In Adkins, in response to arguments in support of a minimum wage law protecting women, Sutherland retorted, “‘the revolutionary changes which have taken the contractual, political and civil status of women, culminating in the Nineteenth amendment,’ have diminished nonphysical differences between the sexes almost ‘to the vanishing point.’” (763) He inferred that, to guarantee women a minimum wage that would restrict their liberty of contract “would be to ignore all of the implications to be drawn from the present day trend of legislation, as well as that of common thought and usage, by which woman is accorded emancipation from the old doctrine that she must be given special protection or be subjected to special restraint in her contractual or civil relationships.” (763-64)
            Similarly, in Dobbs, in response to arguments in support of a right to decide whether to terminate a pregnancy on the ground of securing the status of equality for pregnant women, Justice Alito retorted, “Women are not without electoral or political power.” He continued, “It is noteworthy that the percentage of women who register to vote and cast ballots is consistently higher than the percentage of men who do so.” Since women have the right to vote, he reasons, if they want to protect their reproductive autonomy, they can do so through “influencing public opinion, lobbying legislators, voting, and running for office.” Thus, both cases invoked women’s right to vote in rejecting the idea, in Sutherland’s words, that women “must be given special protection” through constitutional law.
V.        Conclusion
            In these brief observations, I can hardly do justice to the rich insights and awesome erudition of Post’s The Taft Court. We are deeply indebted to him for shining a light on both the Taft Court and our own worrisomely similar Roberts Court. James E. Fleming is The Honorable Paul J. Liacos Professor of Law at Boston University School of Law.

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