Friday, February 16, 2024

The Taft Court and America’s Jurisprudence of Reaction

Guest Blogger

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

William J. Novak

                The Holmes Devise has had a very good year.  Its best since, well, 1971 – when Julius Goebel and Charles Fairman inaugurated publication with two incomparably large, dense, comprehensive, and authoritative volumes on Antecedents and Reconstruction respectively.  Since then, subsequent additions to the official History of the Supreme Court of the United States have been famously unpunctual, uneven, and mostly unheralded.  Until now.  With Robert Post’s magisterial volume on the Taft Court following closely on the heels of Mark Tushnet’s breakthrough contribution on the Hughes Court, the Holmes Devise 1921-1941 has now been safely returned (at long last) to its original ambition, purpose, scale, and scope as a legitimate history of record.

                 At two volumes and over 1600 finely wrought pages, there is only too much to discuss.  For present purposes, I’d like to divide my commentary into a few observations about form before getting to the all-important substance of Post’s chapters on socio-economic regulation.  But I start with form, because, over the past three decades, Post has obviously dedicated just as much time and thought to the crucial “how” questions – i.e., how to execute the gargantuan task of producing a lasting, useful, encyclopedic, and definitive account of the Court from 1921 to 1930 that is also highly readable, interpretively compelling, and academically conclusive.  Two matters of form are especially notable in this regard.  First, Post’s organizational choices in mapping out the presentation of inherently overlapping and inextricably intertwined thematic and doctrinal material are simply brilliant and a model for all further such enterprises.  He thematically separates out broad topics like judicial administration, federalism, labor and race, prohibition, and socio-economic regulation for systematic treatment, while interspersing, in a deftly braided narrative, individual in-depth chapters on canonical cases like Myers, Adkins, Olmstead, and Truax as well as particularly salient issues like World War I, Taft’s health, and the new Supreme Court building.  The precise judicial biographies that launch the volumes are worthy of a short book unto themselves.  Indeed, Post’s efficient portrait of Louis Brandeis’s constitutional commitment to substantive democracy is one of the best things I’ve read on the topic.

                But even more impressive than this organizational dexterity is Post’s handling of the division of labor between readable synthesis and professional academic apparatus.  For these volumes successfully combine, unlike any other work I’ve seen, a clear, unobstructed, and eminently accessible narrative “above the line” with meticulously detailed and expansive annotations and discursive endnotes.  The latter is extremely rare these days as both academic and trade presses discourage the practice.  But the notes for these two volumes are a scholarly accomplishment in themselves – wholly readable independently – allowing Post to preserve for posterity an extensive roadmap through his arduous, multi-decade work through the archives as well as a voluminous secondary bibliography.  Post’s discursive notes contain an embarrassment of riches in the form of further interpretations, additional apt and revealing quotations, and rather exacting guides to the archival record and future research possibilities that will be simply invaluable to future generations of scholars that might dare to follow his footsteps.

                But, of course, beyond these splendid mechanics of craft, Post’s history is most notable for its original substantive reinterpretation of the Taft Court in toto.  Carving his way through the “muddle” of a frequently “erratic” and “jumbled” jurisprudence, Post offers a nuanced and complex account highlighting ambiguity and Taft’s deep “personal ambivalence” concerning modern socio-economic regulation.  And yet, one leaves the vast substantive content of these volumes more convinced than ever that the Taft Court decade was nothing less than a formative era in the construction of a formidable and lasting American jurisprudence of reaction.

                In The Rhetoric of Reaction – one of his many short, brilliant books on important things – Albert Hirschman pushed beyond the many varieties and variegations of modern conservative reaction so as to illuminate the deeper structures and strategies that united and sustained disparate efforts to rollback “enlightened” democratic reform.  Hirshman identified three historic moments of reaction in pushback against democratic revolution in the 18th century, voting rights in the 19th century, and progressive social-welfare provision in the 20th century.  In arguments about perversity, futility, and jeopardy, Hirshman uncovered a remarkably coherent and effective shared discourse of discontent – an “invented tradition” that provided a powerful template for making arguments against historic attempts at change, inclusion, and improvement. 

                In American constitutionalism, it is not difficult to identify three similarly historic moments of reaction in the proslavery constitutionalism of the early 19th century, the so-called laissez-faire constitutionalism of the early 20th century, and, arguably, the new formalism, textualism, and originalism of our own time (wherein progressive jurisprudence seems again relegated to dissenting defense).  In his contribution to the Holmes Devise, Post has now placed the Taft Court front and center in that second formative era of jurisprudential reaction that stretched from the Lochner Court to the so-called “Four Horsemen” of New Deal judicial opposition.  Notably, George Sutherland, Pierce Butler, Willis Van Devanter, and James Clark McReynolds were all products of the Taft Court – appointments which Post notes “pushed the Court decisively to the right” and “for the remainder of the decade” rigorously policed “the constitutionality of social and economic legislation.”

Portents of reaction are certainly not hard to locate in the Taft Court decade.  Warren G. Harding, original architect of Supreme Court appointments that mattered, excoriated “radicals at home” making “the republic the realm of state socialism” and strove instead for the return of “normalcy” – the “normal ways of government and of men.”  But the 1920s were anything but “normal.”  To the contrary, by 1924, a ferocious American politics of reaction had begun to take on especially insidious forms.  Nationally, 1924 marked the debut of race-based national origins quotas as a technique of systematic immigration restriction as well as the return of the Ku Klux Klan to national political prominence.  At the state level, in Virginia, the same 1924 legislative session originated both the eugenical sterizilization act at issue in Buck v. Bell as well as the anti-miscegenation statute at issue in Loving v. Virginia.  In Tennessee, William Jennings Bryan and John Washington Butler were already hard at work on anti-evolution legislation that would ultimately animate the Scopes trial.

A jurisprudence of reaction soon followed.  And in Post’s chapters on social and economic legislation, we get a reliable guidebook to some of its core constituent components.  As Jeremy Waldron, Larry Kramer, and many others have argued, a key pillar of American judicial conservatism has long been judicial supremacy, which Kramer defined as the assertive “notion that judges have the last word when it comes to constitutional interpretation and that their decisions determine the meaning of the Constitution for everyone.”  In Chapter 23, Post introduces “Diminishing Judicial Deference” as a key element in the Taft Court’s arsenal of retrenchment.  As he puts it, “At the heart of the Taft Court’s strategy lay its determination to qualify, if not reverse, the deference with which the White Court had reviewed legislation addressing social and economic issues.”  In one of the best detailed discussions of modern bread and baking regulation that I have ever encountered, Post recounts Justice Butler’s aggressive exercise of judicial notice and ex cathedra reasoning in Jay Burns Baking Co. v. Bryan so as to trump empirical evidence of governmental administrative and regulatory expertise with a judicially-conjured fiction of “common experience” (at the time, Butler was vehemently opposed to what he termed “State socialism” and legislation “destructive of individual initiative and development.”)  Justice Brandeis (along with Holmes) dissented – as would become something of the new normal in the Taft years – accusing the majority of sitting as a “super-Legislature” rather than performing the “constitutional function of judicial review.”  Robert Cushman thought Jay Burns an atavisim reminiscent of Justice Peckham in Lochner;  Brandeis concurred, “worse even than Lochner.”  To the New Republic, the 1924 decision seemed to inaugurate a new “irresponsible period in the history” of constitutional law and judicial assertiveness.  And at its center stood what Post calls a narrative that “privileged judge-made law over legislation.”

Post dedicates Chapter 26 to “The Protected Realm of Economic Freedom” that “the Taft Court struggled so hard to shield from bureaucratic overreach.”  And here we get something like the second act in “the Court’s rightward turn” – the second arrow in the quiver of judicial reaction.  Over the dissents of Holmes, Brandeis, and Stone, in Fairmont Creamery Co. v. Minnesota, Justice McReynolds again leaned hard on the substantive protections of the Due Process Clause to defend an abstract freedom in the customary marketplace.  Foregoing the social-scientific inquiries and empirical Brandeis briefs that progressives used to beat back an earlier onslaught of Gilded Age conservative jurisprudence, the Taft Court returned to “judicial intuition,” common law rules, and fundamental rights (most importantly, liberty, property, and contract) to frustrate democratically enacted positive reform legislation and administration.  As Charles Evans Hughes deployed the rhetoric of reaction in 1924, “the spirit of the common law” was the law of a “free people” unalterably “opposed to those insidious encroachments upon liberty which take the form of an uncontrolled administrative authority – the modern guise of an ancient tyranny, not the more welcome to intelligent free men because it may bear the label of democracy.”  As Post concludes, “There is no doubt that the Taft Court succeeded in restoring economic liberty to the center of the American constitutional order.”

Diminishing judicial deference and protected economic liberty were just two of the Taft Court’s main weapons of the strong in a re-emergent American jurisprudence of reaction.  Coming on the heels of fifty years of progressive innovation in the fields of legislation, regulation, and administration as well as a World War, that as Post convincingly argues, vastly expanded the range of governmental activism and socio-economic intervention, the Taft Court beat a swift and fairly unrelenting judicial retreat.  Though Post is dazzling in charting along the way all the uncomfortable alliances, wrong turns, unintended consequences, and unexpected outcomes that embodied the Taft Court’s ambivalence and ambiguity, in the end, the reader comes away from these two marvelous volumes feeling a bit like Louis Brandeis in “The Living Law,” lamenting the dissatisfying failure of “legal justice . . . to conform to contemporary conceptions of social justice” and the unfortunate way judges imperiously deployed “18th century conceptions of the liberty of the individual and the sacredness of private property” to frustrate “statutes giving expression to the new social spirit.”  In the early 20th century, failure to heed such progressive warnings about the anti-democratic power of a jurisprudence of reaction would ultimately lead to what Post calls “the great constitutional crises of the New Deal.”  In our own time, amid yet another surge in American formalist and conservative jurisprudence, one can only imagine the contours of the great constitutional crises still to come.

William J. Novak is Charles F. and Edith J. Clyne Professor of Law at the University of Michigan. You can reach him by e-mail at

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