Tuesday, February 20, 2024

Where the Ruling Class Went to Rule – Law’s Violence in the Era of William Howard Taft

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 Forbath 

    Robert Post’s two-volume Holmes Devise History of the Taft Court is a tour de force.    Told to adopt “a foreshortened, thematic approach to the material,” but unable to forgo the traditional mission of the Holmes Devise volumes as an authoritative “history of record,” Post has done both.  At least so it is with the chapters on labor law and race and equal protection that I’ve been assigned.   They clock in at 301 pages; 212 pages and four chapters on labor, and a more modest 89 pages and one chapter on race and equal protection.  The imbalance reflects Post’s judgment that equal protection in the Taft Court’s hands served as a minor, auxiliary tool for safeguarding corporations, while doing nothing to protect Black America from Jim Crow.   By contrast, court-minted labor law and “government by injunction” made the federal judiciary the nation’s key organ for governing industrial conflict, an aggressive, widely contested and deeply controversial position in national life that Taft and his Court defended against major political assaults.

     Brilliantly detailed about doctrinal development, these five chapters also succeed in situating these developments in their “cultural context” and in offering splendid distillations of the political currents and clashes that shaped the Court’s work.  The chapters brim with an historian’s rich sense of irony and a theorist’s eye for deep dialectal tensions, while the footnotes provide more layers of doctrinal detail as well as much revealing private correspondence along with coverage of the Court’s work by law reviews, mainstream papers,  conservative and progressive journals of opinion, and a sampling of the labor and a bit of the Black press (at least, the NAACP’s Crisis).   

    Post has graced readers with such a rich account of the Court’s work and its contexts that one can fashion an interpretation of the history quite different from his own, based largely on the evidence he has painstakingly assembled. 

     And so, I find myself thinking about Post’s Chief Justice Taft in the labor arena.  Post’s Taft has complex, many-sided, and evolving views about the Labor Question and the allowable bounds of union organizing and collective action.  All in all, Post reckons that Taft’s and the Taft Court’s important labor opinions were a mixed bag; some conservative, some downright reactionary, others partaking of a Progressive spirit.  There were, in Post’s view, enough of the latter to warrant the conclusion that the Court did much to help Americans adjust to the vital role of organized labor in industrial life, even though the Court’s imperious posture ended up bringing “government by [labor] injunction” to a crashing end with Norris-LaGuardia, two years after Taft departed. 

   That’s a generous and nuanced interpretation of the record, rich with insight.   It’s not my assessment and not the only way to read Post’s labor chapters. 

    Post’s account of equal protection and race is the last one of my assignment, but it’s where I’ll begin.  It is shorter and harsher.  There is more to say about the constitutional politics of race in this era, and others in this symposium, with greater knowledge, will no doubt add to it.  But what Post does say strikes me as right on the mark, and it’s a good foil for my views on the labor chapters.

   Post begins his race chapter with the Court’s ready use of equal protection to strike down state measures that discriminated against either foreign corporations or corporations writ large, over against other economic actors, and contrasts this with the Court’s refusal to wield equal protection to assail “deeply entrenched institutions of racial and ethnic segregation.” 

   Post underscores the crucial ideological and conceptual work that “separate but equal” and “social [versus civil and political] equality” did for the Court – work he roots in the tasks these notions performed for Northern Republicans at large.    Leading Republicans like Taft could never “endorse outright white supremacy” without abandoning the Party’s “ideals of political and economic equality.”   Yet, to appeal to Southern whites, they embraced the idea that the races were “separate and distinct” and their differences “eternal” and “inescapable.”   Plessy’s “separate but equal” formula and its repudiation of “social equality” supplied the solution to this “puzzle.”   The Court could strike down a few stark racial classifications and exclusions, while upholding segregation in schools and elsewhere, and rejecting challenges to Western states’ racist alien land laws, along with white primaries (as long as they weren’t codified in statutes), and much else.   The Party and the Court, as well, of course, as Northern Democrats, all took on board the assurances of Southern white Progressives like Woodrow Wilson that segregation and disenfranchisement were the enlightened alternatives to race war. 

   All this is familiar.  More interesting is how Post dramatizes the continuities between Taft’s judicial disposition and his personal involvements as a tirelessly conscientious member of the ruling class.  From 1914 until his death, Taft served as president of the board of trustees of Virginia’s famous, historically Black, Hampton Institute, originally Hampton Agricultural and Industrial School and later Hampton University.  Post nicely chronicles how Taft managed to safeguard Hampton’s practice of integrating audiences at its music concerts while managing to appease white Virginian lawmakers’ and opinion-makers’ (including, of course, the state’s leading white Progressives’) efforts to bring the Institute into line with all-encompassing segregation.  Taft’s solution: No longer would the concerts be open to the public. 

     It is a revealing and emblematic tale, and Post tells it without losing critical distance from his genial subject.   The upshot of the Court’s race jurisprudence was to continue shutting out most of Black America from the promises of civil and political equality.  Along with the Chief, the “entire…Court was willing to accept” the view that “social segregation was required by the irresistible ‘racial instincts’ of the American people” and “content to allow the nation’s ‘racial instincts’ to play themselves out in terrible and consequential ways.” 

    When it comes to labor, Post renders no such harsh final judgment on the Chief and his Court.  He gives their labor jurisprudence a decidedly more complicated, and somewhat elusive, mixed review.  I’ll suggest that this body of law may be more clearly seen in much the same way Post views the Court on race.  Just as “separate but equal” supplied a serviceable formula for validating Jim Crow while proclaiming fidelity to equal rights, so what Taft called “responsible unionism” provided a Progressive veneer for validating a decade of violent repression and outlawry for a vast swath of ordinary efforts at labor organizing and all of workers’ most effective forms of solidarity and peaceful collective action. 

      Through that simpler and more critical lens one might observe, the Court sanctioned a tidal wave of federal, state, and (deputized) private violence against hundreds of strikes and boycotts; it hammered out the terms on which that violence was sanctioned and led the federal judiciary in calling it forth.   Something like 25% of all recorded strikes and boycotts were enjoined by federal and state courts in the Taft era, and the Court’s harsh limits on allowable strikes and boycotts legitimated the repression of many more during this decade.

    The U.S. saw more state violence, deaths, casualties, and prison terms meted out against trade unionists and striking workers than any of the world’s other leading industrial nations in this era. To be sure, most of the nation’s elites and much of the rest of the country deplored strikes and the violence that attended them.  Nevertheless, the Court and the federal judiciary it directed played a big part in the U.S.’s grim record of state violence, in the demolition of scores of more or less radical, more or less moderate building blocks of “industrial democracy” on offer from the decade’s reformers in Congress, state legislatures, civil society, and the labor movement itself, and in the blockage of some more equitable class compromise in these years.   When it came to labor-capital relations and the fate of trade unionism, the Court was where the ruling class went to rule. 

    Post is right, I think, that in many crucial domains like antitrust, railroad regulation, and executive power, Chief Justice Taft’s jurisprudence reflected a modern, pragmatic, managerial- and business-minded reformer’s Progressive sensibility and outlook.  He is right that some of Taft’s opinions in those arenas are downright “majestic.”  And so too Taft’s outsized accomplishments in pushing through epoch-making reforms of the Supreme Court’s role in the federal judiciary as well as the construction of the Supreme Court’s monumental modern home.   But to my thinking, the Progressive strain in Taft’s labor jurisprudence was savvy window dressing; practically speaking, it didn’t amount to a hill of beans. 

   As Post chronicles, in the 1890s, during his stint as a Circuit Court Judge, Taft gained prominence as architect of the labor injunction’s legal framework.  Taft earned the sobriquet “father of the labor injunction” and as President, staunchly defended the legal and constitutional primacy of equity courts in managing industrial conflict and safeguarding the rights of “capital,” over against unions and against the gusty, unthinking passions of majorities of voters and lawmakers. 

     In his first Inaugural Address, President Taft declared: 

Take away from the courts, if it could be taken away, the power to issue injunctions in labor disputes, and it would create a privileged class among the laborers, and save the lawless among their number from a most needful remedy available to all men for the protection of their business against lawless invasion. The proposition that business is not a property or pecuniary right which can be protected by equitable injunction is utterly without foundation in precedent or reason.

    Taft, and Post, neglect to mention that what legal historians have called the “property-ization” of business goodwill and the uninterrupted flow of labor into capital’s factories and mills was itself a late 19th century artefact of the fashioning of an equitable remedy against labor boycotts and strikes.  More important, though, is what Post does highlight: Back on the bench as Chief Justice, Taft never wavered from the view that among the “lawless invasion[s],” which courts were obliged to condemn was any form of boycott against “unfair goods” produced by non-union labor along with almost any other kind of “secondary action,” no matter how peaceful, on the part of workers, against any employer not their own.   When it came to labor, the strong could not come to the aid of the weak. Unionized workers could not refuse to work on material even from non-union firms in their own communities, which their own unions were seeking to organize.  Nor could unions publish the names of “unfair” firms and urge communities not to patronize them.

   Post omits a famous (among labor law historians) bloodthirsty passage in Taft’s private correspondence about the need for troops to mow down more strikers.  But he retrieves many other revealing gems about the new Chief’s efforts to prevent any more judicial appointments in the Brandeis mold: jurists bent on tearing down the Constitution’s eternal safeguards for the rights of property – and about the aging Chief’s determination to remain on the bench “to prevent the Bolsheviki from getting control.”  

    Post’s “Progressive” Taft-on-labor flows from Taft’s important stint as a chair of the World War I era War Labor Board, rubbing shoulders and shaking hands with key labor leaders and speaking warmly of the necessity of “the group system” in managing modern industry.   As for jurisprudence, Post rightly notes:  Taft “was prominent among conservatives for standing staunchly for the right of labor unions to exist and for the right of union members to choose their own leaders.”   Moreover, Taft authored a few noteworthy decisions, upholding the requirement of juries in criminal proceedings against strikers and slightly (and ineffectually) hemming in the wild reach of federal injunctions against primary strikes that interrupted the flow of goods bound for interstate commerce.  Like I said, not much.   

   Finally, Post sternly observes how shaky the legal-analytic ground was for Taft’s remarkably reactionary opinions striking down legislative efforts to curb “government by injunction.”  And his footnotes detail how labor leaders and Progressive lawmakers in the Taft era responded with efforts to enact what we’d call “court reforms” – abolishing judicial review of federal legislation, requiring super-majorities for such decisions, or providing legislative or popular recall of them, along lines of what constitutional scholars now call dialogical constitutionalism, although Post leaves it to the reader to see the resemblance.

   Missing from Post’s account entirely, though, is the fact that these legislative efforts at Court-curbing were accompanied by a decades-long, high-profile campaign of official defiance of anti-strike and anti-boycott decrees on the part of stodgy conservative labor leaders and radicals alike, and countless workers, who served serious jail time – all in the name of a richly elaborated rival moral and constitutional order.  This movement constitutionalism, built around the first, thirteenth, and fourteenth amendments and the guarantee clause, flowed into Congressional hearings and testimony, and thence, into the discourse of lawmakers, legislation, and, of course, into Brandeis’s dissents.

    The Taft Court, in a word, was, or did its best to be, what Bob Cover - Post’s colleague and predecessor charged with writing the Taft Court volume(s) – called “jurispathic” vis a vis this rival constitutional order, just as lower courts, who put down boycotts aimed at enforcing union rules and standards, were jurispathic in their violent rage at trade unionists with their rival laws. 

   These rival legal and constitutional claims of right were vital to the workers who needed moral ground to stand on in the face of jail time and widely publicized judicial condemnation and vital to the political and legislative work of opposing the Court’s law.  They seem worth remembering today and in a possible future when labor law reforms – finally repealing the present Taft-ian bars on boycotts and secondary actions - may get enacted, and face formidable constitutional challenges in public debate and in our own reactionary Court.

   Or so it seems to me, after reading Post’s magisterial work.  Post won’t remember, I’m sure; but ages ago, he said to me, “You’re writing for some imagined social movement.”  And he had a point.  For his part, Post writes with a great historian’s gift for entering imaginatively into his subject’s world; and when he comments on that world, he does so in a more sympathetic and ironic voice.   Minerva’s owl has flown.  Thus, Post’s epigram, from Gramsci:  History teaches, but it has no pupils

   On the other hand, Post’s dedication strikes a different note: To Shiloh and Willa / May they inhabit a future that has learned from its past.   In the tension between the two, sit these magnificent volumes.   William Howard Taft and his Court could not have dreamed of a better, fairer chronicle. 

    William Forbath is Lloyd M. Bentsen Chair in Law at the University of Texas. You can reach him by e-mail at

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