Wednesday, February 14, 2024

Why Was Taft a Better Chief Justice than President?

Guest Blogger

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

Laura Kalman

I’ve never thought him a great President, but I’ve always had a soft spot for William Howard Taft.  I once choked up in lecture while discussing his breakup with his great friend, Theodore Roosevelt, when both became candidates in 1912.[1]  So as I read Robert’s magisterial account of Taft’s chief justiceship extolling the “tact and delicacy”[2] of this “effective and aggressive political actor”[3] who “managed the Court with fluency and ease”;[4] who presided over the “energetic transformation of the role of chief justice”[5] with “genial persuasion”;[6] who possessed “the preternatural capacity to charm even his worst enemies”;[7]  who dispatched bills he disliked by lobbying, mobilizing bar associations, and circulating “ethically suspect” advisory opinions;[8] who so shrewdly navigated the halls of Congress to win passage of  legislation he favored that created the Conference of Senior Circuit Judges, drastically cut the Court’s mandatory jurisdiction, and provided funds for a new Supreme Court building designed by his chosen architect; and who arranged for the selection of the legendary Charles Evans Hughes as his successor, I repeatedly asked myself one question.  Why didn’t Taft better employ the considerable skills he showed as chief justice as chief executive?

Tact, delicacy, and managerial skill?  President Taft showed precious little of these traits when, for example, he failed to consult with Roosevelt, his predecessor and promoter, about Cabinet appointments and “‘Surrounded Himself With Corporation Attorneys’;”[9] permitted portrayal of Roosevelt as the dupe of big business in the U.S. Steel Merger; blurted out in Minnesota, “a State which is the hotbed of the insurgent [progressive] movement,” that the Payne-Aldrich Tariff, which raised rates to sky-high levels, was “the best tariff bill” the United States ever had;[10] inserted himself into the controversy about conservation policy by firing Chief Forrester Gifford Pinchot while retaining Secretary of Interior Richard Ballinger; and explained his dogged persistence in the face of certain defeat in 1912 when he shouted at an audience, “Even a rat in a corner will fight.”[11]                   

I could go on, but you get the point.  Robert maintains Taft lacked the “charisma” and “raw political talent” to be an effective president,[12] but I’m not sure that the former had yet become a desideratum for a chief executive’s successful tenure, and his chief justiceship proves he possessed plenty of the latter.  To be sure, Taft faced obstacles as President.  He didn’t want the job.[13]  His mother, who knew he belonged on the Court, not in the Oval Office, warned him that “the malice of politics will make you miserable,” reminded him that the public did “not want you as their leader,” and shocked a reporter when she said she preferred Elihu Root as President to her boy.[14]  The administrative state was young, and Taft faced a badly divided Republican Party.   He also “hate[d] to use patronage as a club unless I have to.”[15]  Nevertheless, he busted trusts, expanded administrative efficiency, called for a federal budget, established the Children’s Bureau, and named six individuals to the Court. Still, in my view, the overall record is only adequate.[16]

 Did Taft deliver a meh performance in one position and a spectacular one in the other just because he loved judges and considered the Court, “of course, next to my wife and children…the nearest thing to my heart in life”?[17] And/or did the experience of being president make him a better chief justice, as Holmes believed?[18]  And/or did he have more latitude in the judiciary because although the Court vexed some politicians, most did not yet care about it as much as they would later?  Whatever the answer, I follow Brandeis in finding it hard “to understand why a man who is so good as Chief Justice, in his function as presiding officer, could have been so bad as President.”[19] 

Without a doubt, though, Taft was a wonderful chief justice, as Robert so well demonstrates. He richly deserves the celebration he receives here.  (I think Robert admires Taft almost as much as I admire Dean Guido Calabresi).[20]  Yet, as Robert also observes, “Few now remember that Taft had forever altered the nature of the chief justiceship, the Supreme Court, or the federal judiciary[,]….his efforts at judicial reform or the construction of the contemporary Supreme Court building”[,] or “the judicial landmarks he thought he had established.”[21] Particularly when read alongside Jon Lurie’s outstanding The Chief Justiceship of William Howard Taft,[22] Robert’s splendid volumes will go a long way towards rescuing Taft from obscurity.

Among their many virtues is Robert’s enrichment of our understanding of how the institution of the Supreme Court worked then and his reflections on how differently it functions now.  The Taft Court may look almost modern in its routines, but it was a world apart from the Court of today, he makes clear.  The shift from mandatory to greater discretionary jurisdiction “transformed the Court from a tribunal of last resort into the manager of a system of federal law, responsible for supervising the development of national law.”[23]  As Taft said, that meant it now had to address its opinions to “the public at large as distinguished from the particular litigants before it.”[24]  But, Robert also demonstrates, the Taft Court didn’t. 

Instead, the justices retained the norms and practices of a final court of appeals.  There weren’t many dissents during the first half of the 1920s.  In part, that was because Taft “hated” dissents and worked “to ‘mass’” the Court.[25]  In part, that was because, guided by our hero, Harding and Coolidge named justices likely to agree with Taft.[26]  The ferocity of progressives’ attacks on the Court as a bastion of property rights through the campaign of 1924 may also have led its members to suppress dissents to project a reassuring impression of unanimity and uniformity.   If they could all agree, the answers must be obvious and could be declared.  But the external threat faded along with the progressive movement, and the chief justice’s declining health damaged his efficacy in corralling consensus.  Nevertheless, Robert continues, and though the Court became “riven with division and tension,” [27] nearly 80% of its decisions were unanimous during the 1928 term, “a degree of unanimity that would be quite unimaginable today.”[28]  Indeed.

The justices now more frequently changed their votes between the time they gathered in conference and when they handed down opinions so they could right on projecting the illusion of unanimity.  And although the Taft Court’s “level of disagreement in conference about certiorari cases was so great that it approximates the level of dissensus in the published cases of the contemporary Court,”[29]  they produced more unanimous opinions for the relatively controversial cases that reached them through the certiorari docket than through the appellate one.  So while the Taft Court made use of the Judges’ Bill to reduce its number of full opinions, those opinions “were otherwise virtually indistinguishable from those of the White Court in terms of their length, their time of composition, and their rates of unanimity,” Robert concludes.[30]  The dedication to “institutional solidarity”[31] and the  “norm of acquiescence”[32] stayed strong until both were “undermined from within” during the late 1930s by the justices’ awareness of the Court’s changed function, their increasing attentiveness to other branches of government and the larger public, and the growing tendency of  individual members to think that they could perform the same educative and persuasive function as the institution of the Court and to consider the impact of their dissents to speak to the future.[33]

  It wasn’t until later that the norm of acquiescence fully morphed into “a contemporary ‘ethic of individual expression,’” a shift accompanied by our contemporary “full-scale crisis about how to distinguish law from politics.” [34] There were still cases like Brown v. Board of Education,[35] where the Court found unanimity essential to create the sense it was “announcing the kind of impersonal law that ought to command respect and obedience.”[36]  But they were odd rarities.

While it all meant business as usual for the Taft Court, pesky progressive academics were flexing their muscles in the law reviews during the 1920s by yammering about legal indeterminacy and realism in law; doting on dissents; railing about the Court’s conservatism; becoming a claque for Holmes, Brandeis, and Stone; and, according to some, undercutting respect for the rule of law and the Court’s authority.  And, Robert demonstrates, although he was a former dean of  Cincinnati Law and Yale law professor, Taft didn’t at all like those developments and “these gentlemen [who] are so much torn by their anxiety about the Supreme Court that it is a wonder we are able to survive it.”[37]  Justice Stone, a former dean of Columbia Law who understood that the professors’ authority and expertise challenged that of the bench and bar, opened the floodgates when he began referring to the scholars and the law reviews in opinions for the Court.  (Brandeis generally reserved such allusions for dissents).[38]   Farewell, citations to treatises and encyclopedias!  Hello, opinions that came to resemble law review articles!  But for Taft and his fellow justices, law professors were gnats, not the blood-sucking mosquitoes they arguably became later when they produced articles like Henry Hart’s “The Time Chart of the Justices.”[39]  As Robert ends his provocative discussion of the Court as an institution, he emphasizes that “the 1920s may have been the last moment in the Court’s history when the Court could authentically imagine itself as speaking with the authority of a simple final appellate tribunal whose judgments were primarily addressed to litigants.”[40]

And as I end, Chief Justice Taft awes me.  He had warts.  Like Lurie, I don’t much admire him as a jurist.[41]  Taft’s opinions lacked “intellectual perspicuity,” Robert acknowledges, though he manages to make something of a silk purse out of a sow’s ear when he says they were “so suffused with common sense as to be utterly unremarkable” and salutes their clearly and forcefully expressed “conventional pieties.”[42]  Further, Taft’s extrajudicial meddling as adviser to Warren Harding, Calvin Coolidge, and Herbert Hoover rivaled that of Abe Fortas, who counseled only Lyndon Johnson. 

But Robert shows that Taft’s achievements as chief justice were unparalleled.  His brethren thought so too.  “We call you Chief Justice still, for we can not quickly give up the title by which we have known you for all these later years, and which you have made so dear to us,” Holmes wrote for them all when illness forced Taft’s departure.  “You came to us from achievements in other fields, and with the prestige of the illustrious place that you had lately held, and you showed in a new form your voluminous capacity for work and for getting work done, your humor that smoothed the rough places, your golden heart that has brought you love from every side, and, most of all, from your brethren whose tasks you have made happy and light.”[43]  Taft had been on the Sixth Circuit during the nineteenth century, but  those “other fields” included service as civil governor of the Philippines, secretary of war, and President of the United States.  If history teaches us anything, Taft’s brilliant tenure suggests what was lost when Presidents stopped reaching out to politicians to lead it.  To be sure, they’re not always the answer.  Think former Treasury Secretary Fred Vinson, though he came from the D.C. Circuit.  The expertise of the right ones, however, can enrich the Court.  Think Earl Warren. 

Laura Kalman is Distinguished Research Professor, University of California, Santa Barbara. You can reach her by e-mail at

*Distinguished Research Professor, University of California, Santa Barbara.  I thank Dan Ernst, W. Randall Garr, and Brad Snyder for their help with this post.

[1] I was reading this passage from Archie Butt’s letter of February 14, 1912, to his sister-in-law, Clara Butt, aloud to students at the time: “The clash which must follow between these two men is tragic.  It is moving now from day to day with the irresistible force of the Greek drama, and I see no way for anything save divine Providence to interpose to save the reputation of either should they hurl themselves at each other.  Their most intimate friends are all mutually intimate with both, and every one of us feels involved in the outcome.” Taft and Roosevelt: The Intimate Letters of Archie Butt Military Aide II: 843-44 (Garden City: Doubleday, Doran, 1930).

[2] Robert Post, The Oliver Wendell Homes Devise: History of the Supreme Court of the United States, Volume X, The Taft Court: Making Law for a Divided Nation, 1921-1930, ed. Maeva Marcus 389 (Cambridge: Cambridge University Press, 2024).

[3] Id. at 485.

[4] Id. at 477.

[5] Id. at 502.

[6] Id. at 584, n. 114.

[7] Id. at 1505.

[8] Id. at 512.

[9] Paolo Coletta, The Presidency of William Howard Taft 49, 51 (Lawrence: University Press of Kansas, 1973).

[10] “Taft Lauds Tariff as Nation’s Best,” N.Y. Times, Sept. 18, 1909.

[11] “Taft in Maryland Trails Roosevelt,” id., May 5, 1912.  “Sometimes I think I might as well give up so far as being a candidate is concerned,” Taft wrote his wife on July 22, 1912.  “There are so many people in the country who don’t like me.” My Dearest Nellie: The Letters of William Howard Taft to Helen Herron Taft, 1909-1912, ed. Lewis Gould 233 (Lawrence: University Press of Kansas, 2011).

[12] Id. at 5.

[13] Henry Pringle, The Life and Times of William Howard Taft: A Biography I: 312, 318.

[14] Id. at 319-20.

[15] Id. at 428.

[16]  Reasonable people may disagree about the success of Taft’s Presidency.  But as Lewis Gould observes, the “scholarly consensus” is that Taft was “a lackluster chief executive,” and he believes that “[t]he verdict that Taft was an average president seems correct.”  Gould, The William Howard Taft Presidency 213 (Lawrence: University Press of Kansas, 2009).

[17] Post, The Taft Court, at 507, n. 17.

[18] Id. at 477

[19] Quoted in Jeffrey Rosen, William Howard Taft 129 (New York: Times Books, 2018).

[20] Here comes the self-promotion: Laura Kalman, Yale Law School and the Sixties: Revolt and Reverberations 319-59 (Chapel Hill: University of North Carolina Press, 2005).

[21]Post, The Taft Court, at 1507.

[22] Jonathan Lurie, The Chief Justiceship of William Howard Taft, 1921-1930 (Columbia: University of South Carolina Press, 2019).

[23] Post, The Taft Court, at 603.

[24] Id.

[25] Id. at 610.

[26] In the case of Harlan Fiske Stone, who was originally more conservative, the appeal had faded for Taft by the late twenties. He wrote his brother in 1928, “Stone has become entirely subservient to Holmes and. Brandeis.  I am very much disappointed in him.  I urged Coolidge to appoint him but he hungers for the applause of the law professors and the admirers of Holmes.”  Id. at 132.

[27] Id. at 619

[28] Id.

[29] Id. at 623.

[30] Id. at 631.

[31] Id. at 619.

[32] Id. at 627.

[33] Id. at 631.

[34] Id. at 653.

[35] 347 U.S. 483 (1954).

[36] Post, The Taft Court, at 653.

[37] Id. at 657.

[38] Id. at 661.

[39] Henry Hart, “The Supreme Court 1958 Term Foreword: The Time Chart of the Justices,” 73 Harv. L. Rev. 84 (1959).  That article sparked so much controversy at the Court that William O. Douglas answered without mentioning Hart in “The Supreme Court and Its Case Load,” 45 Cornell L.Q. 401(1960).  Another defender of the Warren Court, Thurman Arnold, was more direct.  Arnold, “Professor Hart’s Theology.”  73 Harv. L. Rev. 1298 (1960).

[40] Id. at 666.

[41] Lurie, The Chief Justiceship of William Howard Taft, at 33: “If not a great jurist, he was a truly outstanding chief justice, and in his case this distinction is critical.”  Emphasis in the original.

[42] Post, The Taft Court, at 8.

[43] Quoted in David Danelski, “The Influence of the Chief Justice in the Decisional Process of the Supreme Court Revisited,” The Chief Justice: Appointment and Influence,” ed. David Danelski and Artemus Ward 64, 70 (Ann Arbor: University of Michigan Press, 2019),

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