The Taft Court: Law, History, and the Jurisprudence of Federalism

Guest Blogger

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

Edward A. Purcell

Professor Robert C. Post’s new book, The Taft Court: Making Law for a Divided Nation, 1921-1930, is the latest installment of the Oliver Wendell Holmes Devise History of the Supreme Court of the United States.  It is an exceptional work of scholarship and most likely as nearly definitive as any one book could be.  It does honor to the distinguished and long running series of which it is now an integral part.

Rather than attempting to write a comprehensive “history of record,” Post seeks to produce a study that is “more thematic” and historically grounded.  His “primary aim” is to place “the jurisprudence of the Taft Court within the cultural context of its decade,” he tells us.  “If there is a single theme that threads its way throughout this volume, it is how the Court’s seemingly technical doctrines were fashioned in continuous dialogue with the popular preoccupations of its era” (xxv).  The Taft Court achieves its goal admirably, rejecting any idea that law can or should be “reduced to abstract theory or prescription” and demonstrating convincingly that it is instead “made in the rich complexity of historical time” (xxv).

Insofar as Post felt any need to comply with some Holmes Devise obligation to produce a “history of record,” he does so indirectly by supplementing his text with exceptionally voluminous footnotes that amplify and extend his thematic discussions.  Rich and detailed, the footnotes develop related topics and provide revealing summaries and quotes from a wealth of primary sources including popular and scholarly articles, Court documents, judicial notebooks, and private letters.  They also furnish extensive and highly useful citations to a wide range of secondary sources.  All of this material adds immeasurably to understanding the workings of the Taft Court, especially the ideas and motives of the individual justices and the personal and judicial relations that existed between and among them.  The footnotes evidence the amazing breadth and depth of the author’s more than three-decades-long research into the Taft Court, and every student of the Court’s history both before and after Taft will find them and the whole book an informational goldmine.

I.

In substance, The Taft Court is divided into four principal parts.  The first identifies the Court’s individual justices, describing when and how they were nominated and appointed and characterizing their central beliefs and particular judicial contributions.  The second part explores the mind, representative opinions, and remarkable non-judicial achievements of Chief Justice William Howard Taft from his ascension to the center chair in 1921 to his death in 1930.  It stresses not only Taft’s sophisticated views and conservative politics but also his methodical and often successful behind-the-scenes efforts to promote judicial nominees who seemed to him safe, conservative, and stanchly committed to protecting private property.  The third part examines certain general institutional characteristics of the Taft Court’s work, including both the extent to which its varied members recognized “shared norms” of proper judicial behavior and the extent to which, often reluctantly, they wrote opinions that revealed the lines of their most salient disagreements.  The last part provides detailed studies of the Court’s jurisprudence in four substantive areas:  social and economic legislation, the legal challenges that Prohibition caused, the jurisprudence of federalism, and the law involving labor, race relations, and equal protection.

Much of the book’s historical analysis centers around critical events that occurred in two seminal years, 1922 and 1925.  The former year marked the formation of the rock-hard conservative majority that would thereafter dominate the Taft Court. The latter was the year that Congress enacted the so-called Judges’ Bill, making the Taft Court the first Court to begin adapting to a jurisdictional change that would eventually spur a far-reaching transformation in the Court’s role in American government.

The truly classic Taft Court began in 1922.  When Taft assumed the chief justiceship the previous year, the Court was a relatively moderate right-of-center body, as only Justices James C. McReynolds and Willis Van Devanter aligned closely with the new chief’s social and political views.  In 1922, however, things changed drastically.  Then the solidly and increasingly conservative George Sutherland replaced the progressive John Clark, an event that proved to be “a significant turning point” (39) and “steered the Court sharply to the right” (45).  Sutherland’s acute intelligence and legal acumen together with his strict and narrowing views on the role of government soon made him the intellectual leader of the Court’s conservative wing.  Later the same year the even more conservative and inflexible Pierce Butler replaced the moderate William R. Day, and the Court’s political turn was ensured.  Butler “immediately formed an intimate coalition with Taft and Van Devanter,” Post recounts, and together they created “a firm conservative axis that decisively cemented the rightward tilt initiated by Sutherland’s appointment” (64).  The result was “the emergence of a reliable and increasingly unyielding conservative jurisprudence” (92).[1]

When Congress passed the Judges’ Bill in 1925, the act seemed to some merely an efficiency-based technical adjustment to the Court’s appellate jurisdiction, but it turned out to be a major factor in profoundly changing the Court’s institutional role.  Indeed, Post stresses, the act helped create what he refers to as “the modern Court.”[2] Essentially the act freed the Court from hearing the countless number of run-of-the-mill cases that had been clogging its docket and gave it virtually complete discretion to choose the cases it would hear.  Thus, the act allowed the justices to reject most appeals and to carefully select cases that involved particularly pressing national issues or that exerted a special temptation in terms of their own varied interests and values.  The Judges’ Bill “decisively reoriented the institutional function of the Court toward the management of the law and its reception by the general legal public,” Post explains, and as jurisprudential ideas, controversial issues, and the Court’s membership evolved over the coming decades they sparked ever sharper divisions among the justices.

In dealing with those developments in 1922 and 1925 the book widens its lens, as it does in expanding on other themes, to consider broadly the Taft Court’s place in the institution’s long history.  It  shows that changes in the Court’s personnel had a decisive impact on its jurisprudence and illustrates how the ideological consolidation of 1922 typifies the kinds of historical shifts that have marked the Court’s evolution over the years.  The new appointments reoriented the Court’s jurisprudence just as the replacements for Taft and his fellow conservatives in the next decade would do the same.  The Taft Court exemplifies the fact that in the Court’s long history, time, context, and personnel have been decisive.

Similarly, the book explains how the passage of the Judges’ Bill highlights the transitional role of the Taft Court in the fundamental institutional shift that created “the modern Court.” Previously, the habits and norms typical of an appellate tribunal had fostered a “norm of acquiesence” that pressed the justices to suppress dissent and rally behind unanimous opinions, but the luxurious discretion available to the justices after 1925 gradually undermined those institutional standards.  Although the Taft Court continued to reflect traditional norms and showed “high rates of uniformity” in its decisions,[3] after 1925 its unanimity rates began to “slide”(617), a slide that would quicken in the 1930s and 1940s and that later Courts would often accelerate but seldom reverse.[4]

The Taft Court’s legendary dissenters–Justices Oliver Wendell Holmes, Jr., Louis D. Brandeis, and Harlan F. Stone–continued to accept or at least acquiesce in most of the Court’s decisions, but after 1925 they also wrote many of their most trenchant and eventually influential dissents and concurrences.  Thus the Taft Court hesitantly began to nudge forward a process of judicial fragmentation that would eventually spur the proliferation of separate individual opinions and weaken the Court’s public and professional authority.[5] The Judges’ Bill and the changes it encouraged sharply distinguish an older Court--and to a large extent the Taft Court itself--from “the modern Court” of the New Deal and beyond.[6]

II.

Part VII of The Taft Court’s second volume addresses the jurisprudence of federalism.  It explores that enduring subject by focusing on issues involving intergovernmental tax immunity, congressional regulatory power, the dormant Commerce Clause, and the law-making authority of the federal judiciary.  Throughout, it highlights the fundamental theme of the jurisprudential confusions that resulted from the Taft Court’s seemingly fervent but nonetheless ambivalent commitment to rigid principles of “dual sovereignty” or, as Post sometimes calls it, “normative dualism.”

A.

The conditions and dynamics of American society in the 1920s compelled the Taft Court to react to the nationalizing drives that World War I and its disruptive offspring Prohibition had generated.  Those centralizing drives “carried enormous implications for the landscape of federalism,” Post explains, and the “question faced by the Court in the 1920s was how to render traditional understandings of federalism compatible with the ‘revolutionary changes’ in federal power spawned by the war” (1103, 1104).  Almost desperately the Taft Court sought to restore traditional norms by reviving clear doctrinal limits on national power, and it did so by invoking purportedly unbending principles of dual sovereignty designed to sharply divide federal and state powers into separate and independent “spheres.”  At the same time, however, the Court was committed to protecting private property, economic liberty, and the national prosperity they generated, and in the 1920s that meant accommodating the newly dominant national economy and its vibrant national market.  Consequently, it welcomed the unifying thrust of expanded national power when it facilitated the economy’s efficient operations and minimized the burdensome impact of diverse state regulatory laws.  Thus, caught between two often conflicting and sometimes irreconcilable goals, preserving traditional federal-state relations and adapting to centralizing economic realities, the Taft Court produced a federalism jurisprudence that turned frequently into a “muddle” (1101) and led to “a messy uncertainty about questions of national authority” (1104).

That pervasive doctrinal uncertainty was rooted not only in the Court itself, the book posits, but equally in American society as a whole.  Although it understandably spends relatively little time on detailed examinations of popular culture or social and political conditions, it nonetheless argues for an intimate connection between the Court and those extraneous forces. “The Taft Court was forced to construct a jurisprudence of federalism for a country afflicted with apprehension and self-doubt,” it declares, and “its decisions reflected the confusion of the national mind” (1105).

The Taft Court’s effort to restore a stringent separation between national and state spheres was most obvious in its treatment of intergovernmental tax immunities.  There it embarked “on an increasingly frantic struggle absolutely to immunize both state and federal instrumentalities from the effects of the other’s taxation,” an effort “that escalated as the decade progressed” (1111, 1112).  Rejecting the claim that the Taft Court was “formalist” in its reasoning, Post emphasizes that it was instead keenly sensitive to the practical effects of taxation.  Consequently, it was prepared to impose limits on federal and state power even when the taxes of one government impinged but faintly and indirectly on the other.  The Court’s strenuous efforts to consistently enforce a strict adherence to its dual sovereignty principles was doomed to fail because its conceptual approach “was hopelessly incompatible with the integrated economic reality of postwar America.”  Consequently its intergovernmental tax immunity decisions “were driven into intellectual incoherence” (1112).

In other areas involving federal-state relations, the Taft Court was less consistent in asserting its dual sovereignty principles, and its decisions reflected more ambivalence and produced less predictable results.  In dealing with congressional power the Court vigorously enforced ideas of normative dualism in cases such as Bailey v. Drexel Furniture Co. [259 U.S. 20 (1922)], which denied congressional power to enact the federal child labor tax act.  Conversely, it adopted a “highly nationalistic” (1125) approach in cases such as Stafford v. Wallace [258 U.S. 495 (1922)] which approved broad congressional power to regulate the business of stockyards. The rhetoric of normative dualism echoed through cases that restricted congressional power, while the rhetoric of economic centralization reverberated through those that approved it, a nationalistic approach that was particularly apparent in the Court’s treatment of federal railroad regulation.^[7]

The Court’s jurisprudential ambivalence was similarly apparent in cases involving the dormant Commerce Clause.  There the Court attempted to distinguish sharply between intrastate and interstate commerce and between “direct” and “indirect” burdens that state regulatory efforts imposed on interstate commerce.  But however much it tried to identify bright lines between its dichotomous opposites, it simply could not do so consistently given the economic realities of an integrated national economy.  Sometimes the Taft Court stressed the need for “a single integrated national market,” as it did in Pennsylvania v. West Virginia [262 U.S. 553 (1923); at other times it “imagined the boundary between intrastate and interstate commerce as a precise frontier,” (1164), as it did in Heisler v. Thomas Colliery Co. [260 U.S. 245 (1922)].  In the former the Court invalidated a state statute regulating the out-of-state shipment of natural gas, while in the latter it upheld a state tax on anthracite coal equally intended for out-of-state shipment.  The Court’s abstract normative dualism simply did not correspond to the realities of the national economy and the throughly intermixed nature of local and national economic activities.  The result was a dormant Commerce Clause jurisprudence that left a debilitating uncertainty as to when and where the Court would attempt to draw its proclaimed sharp line between state and national spheres.

Indeed, the Taft Court treated its dual sovereignty principles differently in congressional power cases than it did in dormant Commerce Clause cases.  In the former it deployed them less frequently and less consistently.  In addressing congressional power “the Taft Court could at times flatly deny the existence of distinct and exclusive spheres of interstate and intrastate commerce,” while in construing the dormant  Commerce Clause it repeatedly sought “to locate and enforce a metaphysical boundary separating these two incompatible spheres” (1167).

B.

Although Post gives careful attention to the Court’s doctrinal reasoning, far more importantly he digs methodically through the cases to uncover the vital sustaining roots of that reasoning and its many inconsistencies.  Reviewing dormant Commerce Clause cases, for example, he notes that, although the Court’s doctrinal lines were unclear, the practical results of their application were not.  When the Taft Court abandoned normative dualism and vigorously protected the national market, its “highly nationalistic tilt” had a “profoundly deregulatory” impact (1168).  As the economy grew ever more nationalized and centralized, the Court’s dormant Commerce Clause decisions steadily and substantially shrank the scope of allowable state police powers.  The result was the invalidation and discouragement of many state efforts to regulate and control local economic behavior. That deregulatory result, Post suggests, was one of the reasons the Court was so determined to insist on uniform laws in its efforts to protect the national market.

Probing more deeply into the Taft Court’s confused treatment of congressional power, Post asks the fundamental question.  Given the vague jurisprudential dichotomies the Court proclaimed and their inconsistent applications, what in actual fact was guiding the Court in reaching its various individual decisions?  Why did it choose to rest on normative dualism principles in some cases but not in others?  Initially, Post suggests, two possible explanations seem plausible, one resting on the form of congressional power involved and the other on the substantive issues at stake.

Examining the first possible explanation, he compares Hill v. Wallace [259 U.S. 44 (1922)] which struck down a federal statute regulating boards of trade under the federal taxing power with Board of Trade v. Olsen [262 U.S. 1 (1923)] which upheld the Grain Futures Act under the Commerce Clause.  Olsen, he points out, “upheld the very regulations that Hill had struck down as invading the regulatory domain of the states” (1129).  That comparison supports the conclusion that the Court’s decisions were based on the different powers Congress invoked, and it suggests that the Court was especially anxious to limit a highly elastic and potentially dangerous taxing power as opposed to an expansive but more limited commerce power that could help ensure regulatory uniformity in the national market.

That explanation has some merit as far as it goes, Post cautions, but as a general matter it is also obviously inadequate.  It does not explain other cases such as Nigro v. United States [276 U.S. 332 (1928)] which upheld congressional use of the taxing power to regulate narcotics.  Nigro was flatly contrary in reasoning and result to cases like Bailey and Hill that condemned use of the taxing power, and the Court’s attempt to square Nigro’s result with the dual sovereignty reasoning in those two earlier cases “verged on the credulous” (1130).  More was obviously involved in the Court’s decisions than the mere form of congressional power at issue, and other factors must have been influencing the Court’s actual decisionmaking.

Exploring what those other factors might have been, Post turns to the second possible explanation he mentioned, the substantive object of the legislation at issue.  He begins by citing Bailey’s reliance on Hammer v. Dagenhart [247 U.S. 251 (1918)] which had deployed normative dualism reasoning to invalidate the first federal child labor law under the Commerce Clause. Noting that “the Taft Court’s support for an expansive federal commerce power” was largely limited to property that it regarded as “affected with a public interest,” he comments that the Taft Court simply believed that child labor did not implicate such property but only “ordinary” property involving such things as employment contracts (1131).  But, he continues, that proposed property-based explanation for Bailey’s reliance on dual sovereignty reasoning only spotlights a further “puzzle.”  The Court had held almost a decade earlier that state prohibitions on child labor did not violate the Fourteenth Amendment^[8], so in Bailey there seemed no constitutional reason why the federal government should not be equally able to regulate or  prohibit such “ordinary” property under its taxing power.  That “puzzle” suggests the inadequacy of the second possible explanation.

Continuing to search for the other factors that must have animated the Taft Court, Post calls attention to the commonplace assumption in the 1920s that the ideal of democracy was tightly linked to the values of local government, and he suggests that congressional statutes were consequently seen as “intrinsically more dangerous to liberty than was state legislation,” an assumption that was “reinforced by the clumsy, overbearing federal enforcement of prohibition” (1132).  Such a view of federalism, he suggests, might well explain why the Taft Court would insist that the federal legislative power had to be restricted more sharply than state power when “ordinary” property alone was at stake.  That “pattern” was obvious, he observes, when the Court dealt with federal antitrust law, the Federal Employers Liability Act, and the Federal Trade Commission Act.  In those areas the Court set aside its nationalistic views and readily enforced its idea of normative dualism when it dealt with attempts to regulate or control “ordinary” property. “The Court’s structural decisions about the limits of federal power, in other words were intimately fused with its understanding of individual rights” to “ordinary” property (1132).

Post, however, is not satisfied that this explanation fully plumbs the depths of the Taft Court’s ambivalent congressional power jurisprudence.  Moving toward his most comprehensive and piercing claim, he introduces the Court’s treatment of federal legislation that was “unambiguously aimed at sustaining, rather than regulating, ordinary property” (1132).  Here, he cites Brooks v. United States [267 U.S. 432 (1925)] which upheld a federal statute that banned the interstate transportation of stolen automobiles.  As a matter of Commerce Clause doctrine, Brooks presented an issue that was “indistinguishable” (1132) from the issue of child labor that the Court had invalidated in Dagenhart.  In both Congress had dealt with “ordinary” property, but the Court condemned the statute in Dagenhart but upheld the one in Brooks.  Despite Taft’s most skilled effort, Post argues, the chief justice was unable to meaningfully distinguish the nationalistic result in Brooks from the restrictive normative dualism result in Dagenhart.

What explains the difference?  In Dagenhart, Post answers, the Court attempted to protect “ordinary” property from federal interference, but in Brooks it attempted to protect “ordinary” property not from federal or even state interference but from thieves engaging in immoral conduct.  That difference was critical.  Wholly inexplicable in terms of the Court’s formal doctrines, the two contrary results are reconcilable and ultimately understandable only in terms of an ideological assumption that underwrote the two decisions.  In Brooks the Taft Court viewed Congress as speaking for the “common values shared by both federal and state governments” (1134, italics in original), and hence it believed that the statute in Brooks, unlike the statute in Dagenhart, was valid because it was designed to achieve a shared federal-state goal that made the principles of normative dualism irrelevant.

Unearthing that buried ideological assumption, Post announces his profound insight into the Taft Court’s congressional power jurisprudence.  The Court harbored an “image of an overarching unity” in the shared moral values that united the American people, what Taft called the “crystallization of public sentiment” (1134); and it believed that it had the authority to apply those “crystallized” values to distinguish between congressional actions that served them and those that did not.  Equally important, the Taft Court believed that it was the “Court, not Congress, that had authority to discern when public sentiment was truly crystalized” (1134) in a way that justified it in setting aside the principles of normative dualism.  Consequently, when it reviewed congressional legislation, the Taft Court could either enforce or ignore its dual sovereignty principles on that basis, and it could equally justify its own intrinsic power whenever it “understood itself as articulating the fundamental values of the entire American people” (1134). The Court’s condemnation of congressional power in Bailey and Dagenhart–unlike its approval of that power in Brooks and Nigro[9]–was ultimately grounded in the Taft Court’s ideological assumption that the evils of child labor, unlike the evils of trafficking in narcotics and stolen cars, did not violate the shared moral values of the American people.

C.

In a masterful concluding chapter Post turns to the Taft Court’s jurisprudence involving the Due Process Clause, the “general” common law, the law-making powers of the federal judiciary, and the role of federal diversity jurisdiction.  In all those areas, he notes, the Court sought to advance the same policy goals that it served in its jurisprudence addressing congressional power and the dormant Commerce Clause.[10] Across the board it shaped the law to create a jurisprudence that protected private property, economic liberty, an open and uniform national market, and the right of foreign corporations to operate in that market freely and without significant state restrictions.[11] Following Taft’s intense convictions about the need to provide a fostering federal forum for national corporations, it promoted those same goals when it systematically ruled “to protect the access of foreign corporations to federal diversity jurisdiction” (1197).

Less obvious and far more deeply penetrating, Post’s chapter reveals that in enforcing those nationalizing economic policies in its due process and common law jurisprudence the Taft Court justified abandoning its dual sovereignty principles by assuming the same right to enforce the imagined moral unity of the American people that it assumed in distinguishing between different exercises of congressional power.  The general understanding of the common law that still prevailed in the 1920s--the view that it was rooted in the accumulated experience and shared values of a free people--helped underwrite the Court’s belief in its authority to recognize and enforce that moral unity.  In the “prepositivist 1920s,” Post explains, the Court could see itself as serving in many areas essentially as a common law court.  Thus, the Court “frequently imagined itself as speaking for a law that came neither from the federal government nor from a state government” (1198).  When the Taft Court “announced common-law rules, therefore, it imagined itself as speaking for the fundamental values of the entire American people, and not merely for distinct values associated specifically with the federal government” (1198).  Consequently, feeling free “to directly express the customs and beliefs of the American people,” it experienced no qualms about abandoning its principles of normative dualism even “when federal courts applied general common law to local and ordinary transactions” (1198).  The “entire conceptual apparatus of dual sovereignty simply dropped away in the context of common law adjudication” (1198).

As the Court acted on that assumption when it drew what otherwise seemed inconsistent lines to circumscribe congressional power,[12] so it resorted to the same implicit assumption in aggrandizing its own law-making power.  That assumption allowed it to freely shape the “general” federal common as well as its jurisprudence construing the Due Process Clause and the entire Fourteenth Amendment.  “When the Court construed the Fourteenth Amendment,” Post declares, “it conceived itself as speaking for the American people as a whole just as it did when establishing federal common law” (1199).  Announcing decisions in an “oracular voice,” the Taft Court “easily assumed the prerogative to speak in ways that altogether transcended the boundaries of any positive law” (1102).

Thus, Post’s comprehensive synthesizing analysis of the Taft Court’s federalism jurisprudence identifies a controlling if unarticulated and nearly invisible assumption that underwrote its decisionmaking and explains many of its apparent doctrinal confusions and inconsistencies.  Recognizing the existence and pervasive potency of that animating assumption brings the ideological foundation of the Taft Court’s federalism jurisprudence into unclouded view. The Court harbored an “image” of itself that allowed it to “imagine” that it was the authoritative moral voice of  the entire American people and that whenever necessary it could–notwithstanding its heralded strictures of dual sovereignty--enforce the people’s values on a nationwide basis. Repeatedly stressing the cognates of the Court’s self-“image” and its readiness to “imagine” its role and power, the book captures its conclusion that the Taft Court’s jurisprudence was inspired by that unspoken but compelling assumption.  The Court’s belief in the moral power of “public sentiment . .crystallized in general custom,” Post announces, is the “most important” theme in the Taft Court’s jurisprudence (xxvii).

Even that, however, is not the end of the analysis.  In reality it was not, in fact, “the Court” that embraced and enforced that underlying assumption. It was, instead, the Taft Court’s five, and to some extent six, conservative justices who commonly drove its distinctive actions.[13]

In addition to Taft, Post identifies in particular McReynolds, Sutherland, and Butler as the justices most thoroughly committed to the belief that the Court had the right to enforce the American people’s “crystalized” moral values (xxx). McReynolds, he adds, embodied that conviction “in its purest form” (xxviii).  In practical and institutional terms, then, the Court’s conservative justices were the ones who “imagined” what they regarded as the American people’s authentic shared moral values and consciously or unconsciously defined those values as the values they themselves found proper and desirable.  In logical and jurisprudential terms, those same conservative justices were the ones who–when offered the opportunity to champion values that they themselves cherished--were “unmoved by fears of over-centralization” and readily “imagined the federal judiciary as altogether beyond the logic of federalism” (1201).  Thus, in the last analysis Post shows that in dealing with federalism issues the Taft Court drew doctrinal lines and shaped constitutional principles to serve the political, social, and moral values of the individual justices who composed its conservative majority.

The Taft Court’s animating ideological assumption would soon succumb to the rising positivism of its classic dissenters, Holmes and Brandeis.  That coming jurisprudential shift, Post points out, was one of the principal reasons why the Taft Court’s federalism jurisprudence proved so short lived.  “The 1920s was probably the last moment when the Court could unself-consciously assume the imperial authority of that lost voice,” a voice that imagined itself authorized to make law sweepingly because it had the right to “speak for the diffuse mores of the people themselves” (1201).

D.

Although Holmes and Brandeis appear throughout The Taft Court and do so prominently in the chapter on common law, its federalism section spotlights Stone’s creative contributions in criticizing the Court’s conceptualistic jurisprudence.  Post expresses particular admiration for the way that Stone evolved over his tenure on the Taft Court, moving from a relatively traditional brand of conservatism to a more independent, innovative, and relatively progressive position marked by careful functional reasoning.  Although his positions were often similar to those of Holmes and Brandeis, some were distinctively his own.[14] “By the conclusion of the Taft Court, Stone was well on his way toward finding his own judicial voice,” Post declares.  “He was authoring opinions with incisive and original constitutional analysis” (134).

Stone’s critique of the Court’s intergovernmental tax immunity decisions, for example, stressed their dysfunctional quality and urged a more “practical construction” of the law.  The Court should strive to balance the needs of both national and state governments and allow them to use their taxing powers fully to achieve their different purposes so long as their taxes did not significantly interfere with the actions and policies of the other.  The Taft Court had no use for that reasoning because its majority justices were “too intent on prying apart the distinct spheres of federal and state power” (1115), Post comments, but Stone’s functional approach would find acceptance in the coming decades.

Similarly, in dealing with the dormant Commerce Clause, Stone offered a telling critique that paralleled the one he had proposed when addressing intergovernmental tax immunities. Interstate commerce involved local and national interests and practices that were so thoroughly intermingled that formalistic and dichotomous conceptions could never provide sensible lines properly demarcating respective federal and state powers.  The Taft Court tried to resolve the linedrawing problem by invoking a distinction between “direct” and “indirect” burdens on interstate commerce, but Stone would have none of it.  The distinction was “too mechanical, too uncertain in its application, and too remote from actualities” to be useful, Stone charged in his powerful dissent in Di Santo v. Pennsylvania [273 U.S. 34 at 44 {1927)].  In employing that ostensible dividing line the Court was “doing little more than using labels to describe a result rather than [applying] any trustworthy formula by which [the result] is reached” (1172).

In challenging the “direct-indirect” distinction, Stone urged the Court to “deploy constitutional law as an explicit and purposive instrument for the implementation of forwardlooking policies” (1172).  But in advancing that idea he stood alone as the only justice who would bluntly reject the distinction.  Once again, Post notes, Stone was speaking to the future.  The Court would soon abandon much of the Taft Court’s dormant Commerce Clause jurisprudence, and Stone’s dissents recognizing the Court’s role as a policymaker relying on expert practical judgments would prevail. His critiques would soon help usher in the adoption of more modern judicial techniques such as the explicit identification and careful balancing of counterpoised interests and values.

III.

Post’s deeply probing analysis of the Taft Court’s federalism jurisprudence is incisive, convincing, and brilliant.  Transcending both a  “realistic” political interpretation and a “formalistic” legal account, he gives close attention to both the logic of legal doctrines and constitutional  principles as well as to the myriad social factors that pressed on the justices and influenced their actions.  More specifically, he shows that despite the reasoning of the Taft Court’s opinions neither the Constitution itself nor the text of relevant statutes determined its distinctive federalism jurisprudence.  Rather, looming behind those formal legal sources and imperceptibly sculpting the reasoning used to support their particular applications, other factors shaped the Court’s jurisprudence: prevalent social and economic conditions, pressing practical issues and conflicts, the public temper and mood of the times, prevailing assumptions about American law and government, and ultimately the ideological assumptions and commitments of the various individual justices.  All of those factors contributed in various ways and at various times to the Taft Court’s process of molding and remolding legal materials, the judicial process that stamps abstract principles and legal formalities into the specific shapes that seem at any given time serviceable for chosen purposes.

Among its many virtues, The Taft Court also illustrates how federalism issues can never be truly understood in isolation from the institutional fact of separated national powers.  The Constitution’s two axial principles, albeit conceptually distinct and often treated as independent, are in their operations intrinsically and inextricably intertwined.  The working line between state and federal powers is not only ambiguous and shifting but also determined by which federal branch is asserting national power, the extent to which the federal branches agree or disagree on that assertion, and the ways in which the Court seeks to manage not just the exercise of the powers of the states but also the exercise of the powers of all three of the federal branches.

Most generally, The Taft Court suggests that constitutional law can only be fully understood as a vibrant historical product that is both limited by time and contoured by time’s passage.  Shaped by the particular context of post-World War I America and cut short by the transforming impact of the Great Depression and New Deal, the Taft Court’s jurisprudence was not only rooted in its time but also destined to become time’s victim.^[15]  Its history shows that constitutional law is both time-bound and time sensitive, evolving as it changes unevenly and gradually–and occasionally abruptly--within the often pliable framework established by the written sources of positive law.

Only the most perceptive and deeply informed historical analyses can fully identify the driving factors that produced the distinctive work of the United States Supreme Court in any particular historical period.  Professor Post has done as much or more than any of his predecessors in producing such an astute and deeply illuminating analysis of a particular Court.  No future work on the Taft Court–or for that matter on the Court in any historical period--should ever proceed without a thorough consideration and deeply informed appreciation of his superb study.

Edward A. Purcell, Jr. is Joseph Solomon Distinguished Professor Emeritus New York Law School. You can reach him by e-mail at epurcell@nyls.edu.