The Chief Justiceship of William Howard Taft, 1921-1930 9781611179873, 9781611179880

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CHIEF JUSTICESHIPS OF THE UNITED STATES SUPREME COURT Herbert A. Johnson, Series Editor

The Chief Justiceship of William Howard Taft, 1921–1930

Jonathan Lurie

© 2019 University of South Carolina Published by the University of South Carolina Press Columbia, South Carolina 29208 www.sc.edu/uscpress 28 27 26 25 24 23 22 21 20 19 10 9 8 7 6 5 4 3 2 1 Library of Congress Cataloging-in-Publication Data can be found at http://catalog.loc.gov/ ISBN 978-1-61117-987-3 cloth ISBN 978-1-61117-988-0 ebook Front cover photograph courtesy of the Library of Congress and Wikimedia Commons

For Mac Fifty years and going strong

“The past is never dead. It’s not even past.” William Faulkner, Requiem for a Nun

Contents

List of Illustrations

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Series Editor’s Preface ix Preface xiii 1 Taft and His Court in 1921: The Cast of Players 1 2 Arrival and Beginnings, 1921–1922

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3 New Arrivals, Ongoing Litigation, and New Statutes 42 4 The Judges’ Bill, 1922–1925 67 5 1924–1925: A Final Appointment amid Emerging Judicial Trends 6 1926: Lengthening Shadows, and Litigation of Significance

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7 1927–1928, Part I: Civil Rights, Civil Wrongs, and Some Apparent Cracks in Classical Legal Thought

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8 1927–1928, Part II: Battle Lines Harden, and Planning for the Future 164 9 1928–1929, Part I: The Fissures Deepen 185 10 1928–1929, Part II: The Taft Court in Decline 208 Epilogue

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Bibliography 237 Index of Cases Subject Index

243 247

Illustrations

following page 66 The Taft court in 1921 The Taft court in 1925 Chief Justice William Howard Taft Justice Oliver Wendell Holmes Justice Louis Brandeis Two sketches of the proposed new U.S. Supreme Court building, drawn by Cass Gilbert (1931) The completed building

Series Editor’s Preface

This is a unique and long-awaited addition to our knowledge of U.S. Supreme Court history. The subject matter is distinguished by the fact that this volume covers a singular situation: Chief Justice Taft was, and continues to be, the only individual privileged to serve as president of the United States before he was appointed to become the presiding officer of the Court during what proved to be one of the most formative decades of its existence. Indeed, institutionally the Taft chief justiceship is at least as remarkable for its administrative innovations as it is for its contributions to constitutional jurisprudence and political thought. Arguably it represents the first step toward the emergence of the Supreme Court as we know it today. Readers will enjoy the benefit of an exhaustively researched monograph that is artfully written and perceptively presented. Drawing on his skills as a biographer, Professor Lurie provides a blow-by-blow description of how Chief Justice Taft was either responsible as president for appointing some of his future colleagues on the Court or, in the alternative, was influential in recommending the appointment of newer justices by Presidents Harding or Coolidge. Equally fascinating is the description of Taft’s political acumen as he deftly guided the “Judges Bill” through Congress primarily through the testimony of his associate justices. By so identifying this procedural reform as a matter desired by the entire Court, he adroitly avoided the appearance of being either personally overbearing or improper in his lobbying approaches to Congress. To that major achievement we may add his successful efforts to gain congressional approvals for annual administrative meetings of senor circuit-court justices, to secure legislative authority enabling a chief justice to temporarily reassign federal judges to meet emergency judicial demands, and to secure appropriations to fund planning for the current free-standing Supreme Court building, as well as financing for its construction. We are also given a unique insight into the psychological cost of serving as a chief justice of the U.S. Supreme Court. Along with his judicial predecessors and successors, Taft was burdened with the task of gaining the approval of a majority of his colleagues before an opinion of the Court might be written and

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announced. As Professor Lurie amply demonstrates, the Supreme Court under Taft’s leadership was dominated by a dedicated group of conservative justices devoted to the classical legal tradition. They clashed with a dynamic and vocal trio of progressives who were sensitive to modern social and economic conditions. Included within the frequently dissenting progressive minority were the formidable Louis Brandeis and the legendary Oliver Wendell Holmes. In his attempts to secure majority opinions, the chief justice found himself continually challenged and frequently frustrated, and he poured out his troubles in revealing private letters to his family. Regardless of political or jurisprudential preferences, the reader will be moved to sympathy for this troubled Prometheus tied to the hard rock of judicial duty and leadership. In his epilogue Professor Lurie admits that his studies of the Taft Court have left him with a “lingering sense of admiration, although tempered by ambivalence,” in regard to its constitutional contributions. Clearly the conservative inclinations of the Court majority resulted in a limited capacity to deal with some serious economic and social problems. But simultaneously the Court launched the initial efforts to use the Fourteenth Amendment as the vehicle by which certain personal liberty provisions of the federal Bill of Rights might be applied to the states through what subsequently has been termed “incorporation.” Notably many of those efforts were by Justice James McReynolds, one of the Court’s most determined “conservative” members. The Taft Court was also careful to respect the dynamics of federal-level checks and balances in its jurisprudence. Reviewing factual holdings made by the Interstate Commerce Court, the Taft Court deferred to the rate-fixing expertise of that tribunal, established by Congress to perform a quasi-legislative duty. On the other hand, in declaring legislation unconstitutional, the Taft Court was far more active in nullifying state statutes rather than those enacted by Congress, tacitly endorsing federal preeminence and the need for nationwide uniformity. As I read Lurie’s conclusions, he finds that while the Court under Taft was dominated by classical legal concepts, at the same time it was sensitive to, and at times was responsive to, the demands of modernization in economic life and society. In light of this perspective, this monograph urges us to take a new look not only at the legacy of the Taft Court, but also to reconsider the multifarious forms of continuity that characterize early twentieth-century constitutional history. In following Lurie’s narrative, I found striking parallels between the intellectual struggles of the Taft Court factions and the 1935–37 tensions between the Supreme Court majority and the political branches of the state and federal governments. And Lurie is careful to point out that classical legal thought remains with us in the vestiges of legal formalism and originalism in contemporary constitutional theory, even though it seems to have been eclipsed as a dominating force in Supreme Court decision-making.

Series Editor’s Preface

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One powerful basis for a classical legal tradition is the legal profession’s preference for a predictable system of precedent, which provides certainty to the law, particularly in the area of constitutional decisions. Yet such certainty can carry with it the danger of legal obsolescence. It also can hinder the necessary adjustments that a democratic government must make to protect the interests of a sovereign people. In essence these are the ambiguities that Professor Lurie invites us to contemplate.

Preface

The following chapters describe the United States Supreme Court and some of the cases it considered between 1921 and 1930. This was the era of the Taft court, named for the former president who served as chief justice from June 1921 through February 1930. William Howard Taft presided over his court for eight full terms. He brought several specific conceptions to his role, all of which are reflected in these chapters. A lifelong Republican, Taft subscribed to a judicial philosophy that may be labeled as classical legal thought. It is fully described herein, but some specific characteristics may be cited here, though they are detailed in the following chapters. They included a strong emphasis on the rights of property, a deep attachment to liberty of contract, a distrust of regulatory legislation, and repeated emphasis on the limited power of the judiciary even as the decisions of his court augmented it. Moreover, as chief justice, Taft deprecated dissent among his brethren. With few exceptions he believed them to be simply ego tripping on the part of dissenting jurists. He rarely dissented in his eight full terms and on numerous occasions withheld his proposed disagreements in the interests of producing judicial unanimity among his colleagues. In his early years in the center seat, Taft repeatedly demonstrated his success in shaping such consensus. But it did not last. Long dominant in conservative legal circles, by the 1920s classical legal thought was in decline. Buffeted by lingering currents of progressivism, it was repeatedly attacked by legal scholars and by two of the most distinguished justices on Taft’s court, Oliver Wendell Holmes and Louis Brandeis. Especially in the last three years of Taft’s tenure, these two dissenters were often joined by a third justice, Harlan Stone. As his health worsened and his negotiating and compromising abilities declined Taft found himself denouncing the “Bolsheviki” among his brethren. When he resigned from his court in February 1930 with barely a month to live, he feared that constitutional jurisprudence as he had known it would become a thing of the past. As these chapters attempt to illustrate, Taft’s fears were justified in large measure. Yet classical legal thought has demonstrated an intriguing resilience in the decades after his death. Finally it should be acknowledged that for

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better or worse, my chapters may well reflect a hostility toward this philosophy. This is not accidental. I was invited by Herbert Johnson to write this book on the Taft court more than a decade ago. During the intervening years he has demonstrated remarkable patience and forbearance, even as he encouraged me to persevere. Further Herb arranged to have all the volumes of the Taft court’s decisions delivered to me, thus greatly facilitating my research and writing. In a similar vein my old friend Melvin Urofsky has read and critiqued every chapter in my manuscript, and it is a better book for his efforts. My debt to both these friends and scholars is profound. A good portion of the research reflected here was conducted at the Library of Congress Manuscript Division for my earlier biography of William Howard Taft, and again my grateful thanks are extended to Jeff Flannery and his staff. Linda Haines Fogel of the University of South Carolina Press has been waiting for this manuscript much longer than she should have. I hope that it was worth the wait. Although I do not know who the reviewer was, the insightful comments from the anonymous reviewer for the press in recommending publication of my book were of inestimable value in making my final revisions, and I am grateful for them. Special thanks are extended to Fred Schilling of the Supreme Court Historical Society and to Rob Delap of the New York Historical Society for their kind assistance in gathering the illustrations for this book. Finally I owe more to Mac than can be said here. Whenever I got distracted from this book by some other project, she firmly redirected my focus back to it. For fifty years she has been my colleague and partner, and truly this book belongs to her.

1 Taft and His Court in 1921 The Cast of Players

1 In its entire history no member of the United States Supreme Court has brought to the bench the unique perspective and experience of William Howard Taft. To be sure, before and since his appointment, no man has ever served as both president and Supreme Court justice—let alone chief justice. Indeed only two former presidents have ever returned to federal office: John Quincy Adams to the House of Representatives, and Andrew Johnson to the U.S. Senate. When compared with Chief Justices John Marshall and Roger Taney, who between them served for about sixty years, William Howard Taft’s tenure as chief justice was relatively brief—barely eight years.1 But for that period of time, Taft brought an incredible resume to this office.2 His life (1857 to 1930) began on the eve of the Civil War. He matured at the height of the Gilded Age, and he was one of the youngest solicitor generals in the history of the Justice Department. He witnessed the transformation and travails of urban America, the violence between labor and capital, the triumph of American industrialism, the new concepts of law as a science, the emergence of the United States as a world power, the rise and fall of populism, the Progressive Era, the Spanish-American War and America’s introduction to imperialism, World War I and its tragic denouement concerning the ill-fated League of Nations, and finally the Roaring Twenties. Taft did more than just observe these developments. They formed the background for a career in which he held an unusual variety of positions, virtually 1. Appointed in mid-1921, Taft did not resign from the court until February 1930. By that time, however, he was so ill that he conducted virtually no business as chief justice in 1930. Thus the dates of his tenure have been chosen to reflect his period of actual service, his complete eight terms, 1921–29. 2. The following paragraphs about Taft draw heavily on this author’s volume William Howard Taft: The Travails of a Progressive Conservative (New York: Cambridge University Press, 2012).

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The Chief Justiceship of William Howard Taft, 1921–1930

all of them appointed. As a young superior court judge in Cincinnati, he rendered decisions on a variety of legal issues. As the U.S. solicitor general, he regularly appeared before the Supreme Court between 1889 and 1892 and won the great majority (sixteen out of eighteen) of the cases in which he argued. As a judge in the newly created U.S. Circuit Court of Appeals, Taft left his mark on the law especially in the fields of labor relations and industrial regulation, and as the president of the commission to govern the Philippines, he saw for himself what American adventures on the imperialistic stage might ultimately cost. His seemingly firm friendship with Theodore Roosevelt began in the 1880s and ripened to a point where as president TR not only offered Taft an appointment to the high court on at least two different occasions but also made him his secretary of war. In 1908 at TR’s urging Taft sought and won the Republican presidential nomination and succeeded TR as president. Their friendship shattered during his term, and in 1912 TR insisted on running against the man he had selected as his successor, ensuring defeat for them both by Woodrow Wilson. Upon leaving office Taft became a professor of law at Yale, his old alma mater (he declined to be a candidate for its presidency). In 1921 he was appointed chief justice of the United States by President Warren Harding. Such is a very short summary of Taft’s early career, one remarkable for its variety and for the high level of attainment matched by the humiliation of galling defeat. With the exception of his ill-fated run for reelection, when it came to opportunities for advancement Taft had always seemed to be in the right place at the right time with the right friends. Looking back on his various legal careers, Taft affirmed that “I love judges and I love courts. They are my ideals, that typify on earth what we shall meet hereafter in heaven under a just God.” 3 But Taft also possessed certain ideals and values to which he appears to have adhered with marked consistency. As he prepared to teach at Yale University, he looked forward to taking “little excursions into various new fields of knowledge,” resulting in “the increased humility one has in regard to his own ignorance.” He saw “a very large sphere for change and reform and experiment. I wish to avoid as far as I can dogmatism and rigid conservatism, but history teaches so certainly some truths that a man who does not accept them is blind.” 4

2 In the fall of 1889 President Benjamin Harrison offered Taft appointment as the solicitor general of the United States. One of two significant moves by 3. Judith Anderson, William Howard Taft: An Intimate History (New York: W. W. Norton, 1981), 259. 4. Lurie, William Howard Taft, 175.

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Congress to improve the federal judicial system during the late nineteenth century (the other being creation of the circuit appellate courts in 1891), the post of solicitor general had been established in 1870. Although a prime function of the solicitor general has always been to represent the United States in cases before the Supreme Court, the solicitor general also was on call to advise the attorney general, as well as the president himself. The solicitor general had to be familiar not only with federal statute law but also with current rules of federal practice, as well as decisions of the high court, all areas in which Taft previously had not needed nor acquired any expertise. It is not surprising then that his first instinct was to decline Harrison’s offer, even though his wife, Helen—invariably referred to as Nellie—strongly encouraged him to accept it. So too did Will’s father, Alphonso. Both father and wife may well have realized that Taft’s new position placed him very close to the entire executive branch of the federal government, to say nothing of the high court. In fact however no solicitor general had ever been or would be appointed to the high court in Taft’s lifetime except himself. Misgivings aside, in a scenario that would be repeated more than once later in his career, Taft allowed himself to be persuaded to accept a position he did not really desire. Indeed Taft tended to doubt the quality of his oral arguments as solicitor general. Reporting to Alphonso early in his tenure that “I do not find myself at all easy or fluent on my feet,” he alluded to his apparent inability to attract the sustained attention of “a lot of mummies.” The justices, he added, “seem to think when I begin to talk that that is a good chance to read all the letters that have been waiting for some time, to eat lunch, and devote their attention to . . . other matters.” But he would gain “experience in not being overcome by circumstances.” And so he did. After he had left the presidency, in 1913 Taft recalled with nostalgia and humor his two years as solicitor general.5 He observed that the Supreme Court “is a great court. They hear you state the case, and after that when you go on to make your argument, if they are with you they don’t pay much attention to you. For the first six months, I had good causes for the Government, and I would present the cases and then attempt to make an argument—and really it was just like talking to nine tombstones! In fact, it was a little worse than that, because they would be affirmative in their disregard of your argument. . . . Well in about six months after that, I got a lot of cases in which I didn’t have a good cause, and then I found that their attention was altogether too minute.” 6 Eight years after these comments, Taft became chief justice among the “tombstones.” Unlike some other chief justices—Marshall, Taney, and Warren immediately come to mind—Taft had limited exposure to the practicality of politics, 5. Lurie, William Howard Taft, 26. 6. Ibid., 27.

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The Chief Justiceship of William Howard Taft, 1921–1930

and this in spite of his single term as president. On the other hand, as will be seen, Taft possessed impressive administrative skills, which he retained beyond the presidency. With one exception he never ran for statewide office, never competed in any national election until 1908, and never enjoyed the political environment.7 The happiest years in his varied career were those when he sat on the bench. As other books in this series have demonstrated, each chief justice leaves his mark on the court, some more distinct than others. But with the possible exception of John Jay, no chief justice has started with a clean slate. In the guise of precedent, decisions of earlier tribunals inevitably affect the court that the justice joins. Before considering the significance of key rulings handed down by the Taft court, some familiarity with the justices who constituted it, as well as with the existing state of federal jurisprudence as he took the center seat in 1921, is necessary. During his presidency Taft appointed more jurists to the Supreme Court in four years than any other single-term chief executive in our history. He selected five new associate justices and elevated one already on the court, Edward White, to the center seat, the first time in our history that this had occurred.8 (It would not be the last.) Behind Taft’s elevation of White lies an intriguing set of circumstances. Had Theodore Roosevelt been able to offer his erstwhile friend Will Taft the chief justiceship of the Supreme Court, both Taft’s later career as well as court history would have been very different. But TR never had this opportunity, and when Chief Justice Melville Fuller passed away on July 4, 1910, it was President Taft who had to select his replacement. Taft had made no secret of his yearning for the center seat. Yet for the time being such an event was an impossibility. On the other hand Taft was prepared to anticipate future possibilities as he decided on Fuller’s replacement. His second selection to the court had been New York governor Charles Evans Hughes, a truly distinguished lawyer and public servant and an obvious candidate for the center seat. On the other hand Hughes was relatively young, a mere forty-eight, while Taft himself was five years older. If he selected Hughes as chief justice, there was a good chance that the former New York governor would outlive Taft, as indeed he did. On the other hand White was now sixty-five and was supported by former president Theodore Roosevelt, who already was acting like a presidential aspirant. One can sympathize with Taft as he suffered through his actuarial agonies and ultimately selected White. If he 7. The exception came in 1888, when Taft successfully ran for reelection as a Ohio Superior Court judge. 8. They were Horace Lurton (1910–14), Charles Evans Hughes (1910–16, 1930–41), Willis Van Devanter (1910–37), Joseph Rucker Lamar (1910–16), and Mahlon Pitney (1912–22).

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was to have any chance at all of gaining the center seat, it would probably be as a replacement for White and not Hughes. So Taft made his decision and started a period of waiting that would ultimately last a decade. Two major developments took place in 1921. Warren G. Harding was inaugurated president, returning a Republican to the White House, and in mid-May Chief Justice White died. Now, with a new president who had already been informed by the former president that he could accept only the chief justiceship, Taft continued his wait, not without some anxiety replete with a synthesis of fatalism and hope. Finally on June 30 Harding sent Taft’s nomination to the Senate, which did not even bother to refer it to the Judiciary Committee, but confirmed him, albeit not unanimously, on the same day. Meanwhile eight members of the Supreme Court had awaited word from President Warren Harding concerning his replacement for Chief Justice Edward White, who had passed away on May 19, 1921. In order of seniority they included Joseph McKenna, Oliver Wendell Holmes, William R. Day, Willis Van Devanter, Mahlon Pitney, James C. McReynolds, Louis D. Brandeis, and John H. Clarke.9

3 Alone among his brethren Joseph McKenna brought limited experience as a trial lawyer to the court. Although he had been admitted to the California bar in 1865, McKenna focused his attentions on a political career.10 After serving both as a local district attorney and a state legislator, from 1885 to 1892 held a seat in the U.S. House of Representatives. A staunch Republican McKenna got to know William McKinley, who supported his appointment to the Ninth Circuit Court of Appeals in 1892. He might also have become acquainted with William Howard Taft, happily ensconced at the time on the Sixth Circuit Court of Appeals. When McKinley won the presidential election in 1896, he selected McKenna as his attorney general. But McKenna served for barely six months as a cabinet member, and with the long-awaited retirement of Stephen Field from the high court, McKinley promptly selected the young Californian to replace him.11 Although he may well have possessed legal instincts, McKenna felt that 9. These brief biographical summaries intentionally avoid any description and analysis of the cases they participated in or decided as members of the Taft court. Such matters are extensively dealt with in the following chapters. Here, however, I have attempted to present some material on the justices’ careers on the bench prior to Taft’s arrival. In 1921, only two of Taft’s original selections were still on the bench—Van Devanter and Pitney. 10. Although McKenna took some law courses, he did not graduate from a law school but, as was the custom, “read law” in preparation for the bar exam. See below. 11. McKenna turned out to be McKinley’s only appointment to the court. Although in persuading Taft to go to the Philippines as chief commissioner and later governor, when meeting with Taft, McKinley had virtually promised him that “if I live,” and if the opportunity arose, he would name Taft. It is ironic that while McKinley did not live (he

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The Chief Justiceship of William Howard Taft, 1921–1930

he lacked legal learning. For several months he attended “courses at Columbia Law School, prior to taking his seat on the court.”12 Similar to many conservative Republican jurists at the turn of the twentieth century, McKenna had a healthy respect—if not veneration—for property rights in the context of what William Wiecek has well described as “classical legal thought.”13 Thus he voted with the majority in Lochner v. New York (1905), a case that expanded liberty of contract, and Muller v. Oregon (1908), a case that restricted it. Yet McKenna wrote the majority opinion in Bunting v. Oregon (1917). Possibly unaware of any inconsistency in his voting, in 1923 he was with the majority in Adkins v. Children’s Hospital, a decision that apparently resurrected Lochner.14 While McKenna, again in concert with other jurists, supported the Sherman Anti-Trust Act (1890), Richard Hamm observed that during his twenty-six-year tenure, this jurist was most effective through his middle period, from 1911 to 1915. In these years he handed down two opinions that expanded national regulatory authority. In so doing he authored “lucid and forceful statements” of the federal power to use the commerce clause in the Constitution “to promote the general welfare.”15 In Hipolite Egg Co. v. United States (1911) McKenna upheld the Pure Food and Drug Act even though the case involved eggs, which, when they were declared contaminated, had not yet entered the stream of interstate commerce. Thus according to counsel they were exempt from federal supervision. The justice easily dismissed the claim. “We are dealing, it must be remembered, with illicit articles, which the law seeks to keep out of commerce because they are debased by adulteration.” Of course there was a long established distinction “between the exercise of federal power and state power over articles of legitimate commerce.” But it had no application here, with adulterated goods. The issue “is whether articles which are outlaws of commerce may be seized wherever found.” was assassinated in 1901) his successor Theodore Roosevelt offered not one but two Supreme Court appointments to Taft, who promptly but regretfully declined each of them. See Lurie, William Howard Taft. 12. Peter Renstrom, The Taft Court: Justices, Rulings and Legacy (Santa Barbara, Calif.: ABC-Clio, 2003), 42. 13. See William Wiecek, The Lost World of Classical Legal Thought: Law and Ideology in America, 1886–1937 (New York: Oxford University Press, 1998). 14. Lochner v. New York, 198 U.S. 45 (1905); Muller v. Oregon, 208 U.S. 412 (1908); Bunting v. Oregon, 243 U.S. 426 (1917); Adkins v. Children’s Hospital, 261 U.S. 525 (1923). All these cases concerned state statutes that limited the hours of work for employees in certain occupations. These laws were upheld in Muller and Bunting, but rejected in Lochner and Adkins. 15. The Supreme Court Justices: A Biographical Dictionary, edited by Melvin Urofsky (New York: Garland, 1994), entry on Justice McKenna, by Richard Hamm, 289–90.

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McKenna found it easy to answer this question. “[I]t certainly will not be contended that they are outside the jurisdiction of the national authority when they are within the borders of a state.” The right to bar adulterated goods from interstate commerce “is not to prevent merely the physical movement of [such] articles,” but rather “the use of them, . . . denying to them the facilities of interstate commerce.” Such authority was surely within the discretion that “Congress possesses in the execution of the powers conferred upon it by the Constitution.”16 Two years later the high court considered the Mann Act, enacted in 1910. Passed during William Howard Taft’s presidency, the statute reflected a concern with apparently widespread national prostitution. The purpose of this legislation was aptly summarized by its title: “An Act to further regulate interstate commerce and foreign commerce by prohibiting the transportation therein for immoral purposes of women and girls.”17 The law forbade using interstate commerce “for the purpose of prostitution or debauchery, or for any other immoral purpose,” and upon conviction thereof levied a fine of $5,000 or imprisonment for not more than five years or both. The statute was to be known and referred to as the “White-Slave Traffic Act.” Speaking for a unanimous court McKenna easily upheld the statute (as if any U.S. Supreme Court justice at the dawn of the Progressive Era wanted to appear eager to facilitate prostitution). McKenna noted of the commerce power that it “is direct; there is no word of limitation in it, and its broad and universal scope has been so often declared as to make repetition unnecessary.” He added that commerce included transportation of persons as well as property. Thus “a person may move or be moved in interstate commerce,” and if the object of such movement was for immoral or illicit purposes, it came within congressional purview. Defendants in this case argued to the contrary, that “it is the right and privilege of a person to move between states, and that, such being the right, another cannot be made guilty of the crime of inducing or assisting or aiding in the exercise of it.”18 McKenna was far from persuaded. Counsel urges “a right exercised in morality to sustain a right to be exercised in immorality.” He pointed to the numerous examples where previous congressional regulation had been upheld. The attempt to subvert it here “constitutes the supreme fallacy of plaintiff’s error. It pervades and vitiates their contentions.” In two sentences McKenna managed to summarize the uneasy relationship between state and federal regulatory authority.

16. Hipolite Egg Co. v. United States, 220 U.S. 45 (1911). 17. 18 U.S.C.A. Section 2421 et seq. 18. Hoke v. United States, 227 U.S. 308 (1913).

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The Chief Justiceship of William Howard Taft, 1921–1930

“Our dual form of government,” he admitted, “has its perplexities, State and Nation having different spheres of jurisdiction, . . . but it must be kept in mind that we are one people; and the powers reserved to the States and those conferred on the Nation are adapted to be exercised, whether independently or concurrently, to promote the general welfare, material and moral. This is the effect of the decisions, and surely if the facility of interstate transportation can be taken away from the demoralization of lotteries, the debasement of obscene literature, the contagion of diseased cattle or persons, the impurity of food and drugs, the like facility can be taken away from the systematic enticement to and the enslavement in prostitution and debauchery of women, and more insistently, of girls.”19 Although McKenna remained on the bench for another ten years, his judicial output became increasing inconsistent, and by the time Taft arrived at the court, the justice’s “mental acuity [had started] to deteriorate.” 20 As will be seen it fell to Taft to persuade McKenna—and not without some difficulty—to retire in 1925. His tenure on the high court lasted for almost twenty-seven years. Today Oliver Wendell Holmes is such an iconic figure in American law, with a number of his opinions and dissents now considered classics of their kind, that it becomes very difficult to believe that prior to the era of Woodrow Wilson, 1912–20, he felt himself so underappreciated both as a scholar and a jurist that he seriously considered retiring from the Supreme Court. A genuine Boston Brahmin, Holmes had been born into a patrician family where for a number of years he lived and functioned in the shadow of his famous father, the professor, pundit, and sometime poet Oliver W. Holmes Sr. One cannot know how long Holmes felt constrained by his father’s lasting reputation (Holmes Sr. died in 1894), but it may well have extended throughout his Civil War military experience—which included being severely wounded, twice—and even throughout the publication of his landmark treatise The Com­ mon Law, published in 1881. From 1882 to 1902 Holmes sat on the Massachusetts Supreme Judicial Court, and from 1899 to 1902 he served as its chief justice. In August 1902, a year after the death of Justice Horace Gray, also from Massachusetts, and at the urging of one of the president’s closest friends— Massachusetts senator Henry Cabot Lodge—Theodore Roosevelt appointed Holmes to the high court.21 Holmes would serve for almost thirty years on the Supreme Court. By the time Taft arrived in 1921, he was well on his way to attaining status as one of the greatest justices in the court’s history. His 1905 dissent in the hours of work case—Lochner v. New York—may well be one of his two most famous 19. Ibid. 20. See Renstrom, 44. 21. Roosevelt, Lodge, and Holmes had all been members in one of the more exclusive “final” clubs that dominated Harvard’s social life for many years.

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dissents.22 Here, in short almost epigrammatic prose, Holmes accused the majority of blind adherence to an “economic theory that was plainly not a fundamental principle of right.” 23 In that same year Holmes also spoke for a unanimous court in a case that helped to restore the potency of the Sherman Act (1890) as a vehicle for federal antitrust regulation, limited since the eightto-one decision in U.S. v. E. C. Knight Co. (1895). In Swift and Co. v. United States the justices sustained the efforts by the Roosevelt administration concerning application of the Sherman Act to a combination of meat packers.24 Holmes observed that the point of the combination between the various meat packers “is to restrain and monopolize commerce among the states.” In response to the argument that a potential for monopoly was not the same thing as its actual establishment, he commented that the Sherman Act “directs itself against that dangerous probability as well as against the completed result.” The government sought to prevent “a course of conduct intended to be continued,” and while the defendants “cannot be ordered to compete, they can properly be forbidden to give directions or to make arrangements not to compete.” 25 Finally brief mention might be made of Holmes’s evolving opinions involving free speech in the context of World War I. In 1919, on behalf of a unanimous court in Schenck v. United States, he articulated the “clear and present danger” doctrine, affirming the federal Espionage Act of 1917.26 It should be noted that after Schenck Holmes appears never to have used the clear and present danger doctrine again except in dissent. But several of his famous dissents concerning free speech came after Taft had joined the court. Already Holmes had gained national and international stature as an icon of progressive jurisprudence.27 In spite of his earlier ruminations about possible retirement after his tenth year on the bench, he remained on it until 1932. Thus he is one of the justices who awaited Taft in 1921 and were still there when he resigned in February 1930. 22. The other, Abrams v. United States, 250 U.S. 616 (1919), is discussed briefly later in this chapter. 23. Lochner v. New York. See Sheldon Novick, entry “Oliver Wendell Holmes,” in The Oxford Companion to the Supreme Court of the United States, edited by Kermit Hall (New York: Oxford University Press, 1992), 405–10. 24. 196 U.S. 375 (1905). 25. Ibid. Holmes cited the famous case of Addyston Pipe and Steel Co. v. United States, 175 U.S. 211 (1899), in which the court had affirmed a sweeping endorsement of the Sherman Act written by then circuit judge William Howard Taft. See Lurie, William Howard Taft, 34–36. 26. Schenck v. United States, 249 U.S. 47 (1919). 27. The best account of the transformation, or the creation of Holmes as a judicial and legal icon after 1912 is Brad Snyder’s article “The House That Built Holmes,” Law and History Review 30 (2012): 661–721. See also his extensive citations to other sources that illustrate the variety of views concerning the quality of Holmes’s jurisprudence.

10

The Chief Justiceship of William Howard Taft, 1921–1930

A native of Ohio, the son and grandson of lawyers, William R. Day graduated from the University of Michigan, spent a year in study at its law school, and began a twenty-five-year law practice in Canton, Ohio. He became a close friend and confidante of William McKinley, who maintained a law office in the same locale. One of McKinley’s first acts as president was to name William Day as an assistant secretary of state aiding John Sherman, who by 1897 had become virtually senile. With Day regarded as a lawyer of complete discretion, it was supposedly said of the State Department leadership in 1897 that the secretary knew nothing, his hearing-impaired associate (Alvey Adee) heard nothing, and his assistant (Day) said nothing. Within a year Day became secretary of state and represented the United States at the Paris Peace Conference, which ended the Spanish-American War. In 1899 McKinley named him to the Sixth Circuit Court of Appeals, where he joined William Howard Taft. Although Day served for four years, most of them were without Taft, whom McKinley persuaded to become the chief administrator in the Philippines. When Justice George Shiras retired from the high court in 1903 President Roosevelt tried to persuade Taft to return to the United States and take his place. But Taft declined, and TR turned to William Day. Taft described Day to the president as “not a great lawyer but he is a good lawyer. He is very levelheaded, [a] common sense man of courage, loyalty and convictions.” 28 Day was still on the bench when Taft arrived in 1921, but he resigned the next year. Although Day served on the high court for nineteen years, like Justice McKenna—and unlike two of his more famous colleagues, Holmes and Brandeis—he failed to develop a consistent judicial philosophy. During his tenure the court confronted issues such as federal authority and the commerce clause, including antitrust policy, and at the same time the extent of the state police power. While Day in fact was sympathetic to the exercise of the state police power, his most well-known opinion came in Hammer v. Dagenhart (1918), in which Day rejected a statute enacted in 1916 during the Wilson Progressive Era. The Keating-Owen Act sought to impose federal regulation on child labor practices. Speaking for a bare majority of the court Day found the measure unconstitutional.29 Building on the twenty-three-year precedent of United States v. E. C. Knight, an 1895 decision in which the court, at least to the majority’s satisfaction, sought to distinguish between manufacturing and commerce, Day argued that if Congress could regulate “matters entrusted to local authority,” as it attempted to do here—“all freedom of commerce will be at an end, and the power of the states over local matters may be eliminated, and thus our system of government be practically destroyed.” Not only had Congress overreached 28. See Lurie, William Howard Taft, 59–61. 29. 247 U.S. 251 (1918). See the entry on William R. Day by Alice Fleetwood Bartee in Hall, The Oxford Companion to the Supreme Court of the United States (1992), 220–21.

Taft and His Court in 1921

11

its exercise of regulating commerce; it was also interfering in “a purely local matter to which the federal authority does not extend.”30 Joined by the recently appointed justices Louis Brandeis, John Clarke, and (inexplicably) Joseph McKenna, Oliver Wendell Holmes dissented. His opinion remains one the best examples of Holmes’s judicial values and contributed to his growing “canonization” as an outstanding jurist.31 “I should have thought,” Holmes noted sardonically, that “if we were to introduce our own moral conceptions where in my opinion they do not belong,” the issue of child labor was “preeminently a case for upholding the exercise of all its powers by the United States.” The act under consideration “does not meddle with anything belonging to the States.” Indeed they “may regulate their internal affairs and . . . domestic commerce as they like.” But when, as in this case, “they seek to send their products across the State line,” they have crossed another point of legal demarcation. Now “such commerce belongs not to the States but to Congress to regulate.” Noting previous high court decisions such as Champion v. Ames (1903), which had reaffirmed congressional authority over interstate commerce, Holmes concluded that the “national welfare as understood by Congress may require a different attitude within its sphere from that of some self-seeking state.32 It seems to me entirely constitutional for Congress to enforce its understanding by all the means at its command.”33 Day’s insistence on a traditional interpretation of the commerce power meant just that: commerce, not manufacturing. If Hammer had concerned the merchandising rather than the manufacturing of furniture, the outcome of the case might have been different. While he had no trouble supporting the holdings reached in Hoke or Hipolite (see above), Day saw nothing immoral or unhealthy in a piece of furniture. Of course the state was free to deal with child labor if it so desired, but not the federal government. Thus far all the justices awaiting Taft—with the exception of McKenna— had had previous judicial experience before taking their seats on the high court. This trend continued with the only two Taft appointees still on the bench when Taft arrived. As has been discussed Taft had named six justices during his single term, including promoting one sitting justice to the center seat as chief justice. He succeeded his own appointee as chief justice in 1921, and his second appointment in 1910, Charles Evans Hughes, would later succeed Taft in 1930.34 30. United States v. E. C. Knight, 156 U.S. 1 (1895). 31. See Snyder. 32. 188 U.S. 321 (1903). This well-known lottery case was one of the first on which Justice Holmes sat. 33. Hammer v. Dagenhart, 247 U.S. 251 (1918). 34. Hughes resigned his seat on the court in 1916 to run (unsuccessfully) against Woodrow Wilson, seeking reelection. When Herbert Hoover named him chief justice

12

The Chief Justiceship of William Howard Taft, 1921–1930

Born in Indiana Willis Van Devanter spent his early legal career in Wyoming, where he served as the chief justice of the territorial court. Theodore Roosevelt appointed Van Devanter to the Eighth Circuit Court in 1903, and Taft selected him to replace a previous Roosevelt appointment who had retired. “Van” served from 1910 to 1937. While he is generally regarded as one of the most conservative and unproductive members of the court during his tenure, Van Devanter appears to have been highly respected by his colleagues. Moreover, along with Day and McKenna, he had an occasional twinge of progressive thinking. In 1912 for example he upheld the 1908 Federal Employers Liability Act under the assumption that “congressional power was limited to interstate commerce itself and to actions that directly affected that commerce.” More than a decade into his term, for a unanimous court Van Devanter gave virtually unrestricted range to congressional power concerning investigations. Indeed he held that Congress possessed “the power to investigate and issue subpoenas even without an explicitly stated legislative purpose.” 35 The second of the two Taft-appointed justices still on the court when he arrived was Mahlon Pitney, apparently one of only three members of the modern Supreme Court who “read law” and passed the bar examination but never graduated from a law school.36 A 1879 graduate of Princeton along with Woodrow Wilson, Pitney passed the New Jersey bar in 1882. From 1894 to 1899 he served in Congress but resigned before the end of his second term to run for a seat in the New Jersey State Senate. As senate president in 1901, he hoped to move into the governorship. Instead he was appointed to the New Jersey Supreme Court and in 1908 became chancellor of New Jersey. Four years later President Taft appointed him to the high court.37 Pitney had matured and gained marked success as a lawyer at a time in New Jersey when issues over trusts, monopoly, corporate abuse, and nascent progressivism were common.38 As a staunch Republican, he had watched Woodrow Wilson become governor in 1910 and successfully gain legislative approval for a number of progressive reforms. Like many urban Republicans, Pitney objected to concentrated power. “Unions, like corporations, were aggregations of power that threatened the opportunities of enterprising members of the

shortly after Taft’s resignation in February 1930, Hughes became the only man in American history to serve on the Supreme Court twice. 35. See the entry on Van Devanter by William Crawford Green in Hall, Oxford Compan­ ion to the Supreme Court of the United States, 894–95. 36. The other two were John Hessin Clarke, appointed by Woodrow Wilson in 1916, and Robert H. Jackson, appointed by Franklin D. Roosevelt. 37. See Michal Belknap, “Mr. Justice Pitney and Progressivism,” Seton Hall Law Review 16 (1986): 381–417. 38. This paragraph draws heavily on Belknap.

Taft and His Court in 1921

13

middle class.” 39 He rejected a union’s quest for a monopolization of the labor market, even as he affirmed the right of a worker “to seek and gain employment.” Further “a union had no right to interfere with him in his employment merely because he was not a member.” 40 Thus Pitney can be described as a jurist who may have been anti-union, but prolabor, with no sense of any possible inconsistency in his viewpoint. Indeed, when it came to industrial accidents and the rights of labor, Pitney was in the vanguard of progressive reform. In 1916 for example he wrote for the high court and sustained a New York “worker’s compensation law.” He noted that loss suffered by an employee’s death or injury “had to fall some where and these damages were, after all, the result of an operation” expected to bring profit to the employer.41 No less a progressive than Pitney’s colleague on the high court, Louis Brandeis, commented that without Pitney “we would have had no workmen’s compensation laws.” And the well-known progressive Harvard law professor Thomas Reed Powell concluded in 1917 that Pitney’s “opinion on the constitutionality of workmen’s compensation legislation sets an example of judicial reasoning for judges everywhere to emulate.” 42 With the sole exception of Charles Evans Hughes, all of Taft’s appointments to the Supreme Court including those still on the bench when he arrived in 1921 had possessed previous judicial experience—Lurton and Van Devanter on the circuit court; Harmon and Pitney on their state supreme courts.43 This is not surprising given Taft’s judicial background. He could and probably did examine previous judicial decisions handed down by his nominees. By contrast Taft’s successor in the presidency Woodrow Wilson appointed three justices to the high court, and only one of them ( John Hessin Clarke) possessed prior judicial experience. All however were highly experienced attorneys, and his second nominee—Louis Brandeis—was perhaps the most outstanding lawyer of his time. Along with John Adams, who nominated John Marshall, Woodrow

39. Belknap, 383. Progressives as famous as Jane Addams or Louis Brandeis feared labor despotism, aka the closed shop, as much a corporate abuse. Belknap observed that “for many a progressive the rise of the labor union was as frightening as the rise of trusts.” Ibid., 398. 40. Ibid., 396. 41. Ibid., 414. 42. Ibid., 415. Pitney served less than eleven years on the Supreme Court. A few months after Taft arrived, his colleague from New Jersey suffered a blood clot on the brain, followed by a major stroke in August 1922. 43. Personally acquainted with Hughes, Taft was well aware of his outstanding academic credentials. A graduate of Brown University, he was first in his class at Columbia Law School, received one of the highest scores on the New York bar exam, and was admitted to practice when he was twenty-two. Taft did not think previous judicial experience was a necessary prerequisite for him.

14

The Chief Justiceship of William Howard Taft, 1921–1930

Wilson shares the distinction of selecting one of the greatest figures in our legal history to grace the high court. The highly successful “People’s Attorney” became acquainted with Woodrow Wilson during the 1912 presidential campaign. Upon his election apparently Wilson was eager to select Brandeis as his attorney general but was discouraged from such a progressive step by the opposition of his closest advisers. Instead Wilson appointed James McReynolds, a fellow southerner and graduate of the University of Virginia law school, to the post. But Wilson was not yet finished with Brandeis. Nor, for that matter, was McReynolds. Our legal history is replete with presidents naming cabinet members to the Supreme Court, a not uncommon path. So it was with John Adams, who selected his secretary of state John Marshall in 1801. Andrew Jackson appointed two cabinet members to the high court, although one was in fact a former cabinet member who had held two different posts prior to his nomination. Shortly after his election in 1828, Jackson selected the postmaster general John McLean to serve on the court. Roger B. Taney had been both attorney general and secretary of the treasury before winning senate confirmation as chief justice in 1836. In 1864 President Lincoln selected his former secretary of the treasury and perennial presidential campaigner Salmon Chase as chief justice. Thus at first glance there was nothing unusual in President Wilson naming his attorney general James McReynolds to the high court in 1914. In fact, however, the background of the selection was unusual, and the appointment itself was unfortunate. James McReynolds has the dubious distinction of being the most obnoxious member in the history of the Supreme Court. Argumentative, aloof, bigoted, and abrasive, he was well described by William Howard Taft as “selfish to the last degree . . . fuller of prejudice than any man I have known, and one who seems to delight in making others uncomfortable. . . . He has a continual grouch, and . . . really seems to have less of a loyal spirit to the Court than anybody.” 44 Replete with a virulent anti-Semitic tinge, McReynolds remains an unpleasant enigma to the court on which he sat for almost twenty-seven years. He was, well noted Alexander Bickel, “an American primitive, resisting all or nearly all that was not as he had known it.”45 A native of Kentucky McReynolds graduated from Vanderbilt University as valedictorian of his class in 1882 and received his law degree from the University of Virginia two years later. He began to practice law at the age of twenty-two. Although a card-carrying Democrat, in fact McReynolds was a hidebound conservative more attuned to the Republican Party. Theodore Roosevelt 44. See Jonathan Lurie, “Chief Justice Taft and Dissents: Down with the Brandeis Briefs,” Journal of Supreme Court History 37 (2007): 179. 45. Alexander Bickel, The Unpublished Opinions of Mr. Justice Brandeis: The Supreme Court at Work (Chicago: University of Chicago Press, 1967), 244, hereafter cited as Bickel.

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appointed him assistant attorney general in 1903, where he specialized in antitrust litigation, a stance fully compatible with his conservative values. He resigned in 1907 claiming that the Roosevelt administration was not vigorous enough in its antitrust enforcement. In 1910 he returned to Washington under the Taft administration as special prosecutor assisting Taft’s attorney general George Wickersham in the tobacco antitrust litigation.46 A year later again he resigned, insisting that the proposed settlement of this case was too favorable to the tobacco interests. There could be no doubt of his opposition to monopolies, and when incoming president Woodrow Wilson was persuaded to drop consideration of Louis Brandeis as his attorney general, he turned to McReynolds.47 McReynolds stood out in cabinet meetings for all the wrong reasons. He was such a disruptive figure that less than a year and a half into his term, Wilson seized the opportunity to remove him from the administration by placing him on the Supreme Court. In all fairness to the president, it must be conceded that in 1914 McReynolds had yet to demonstrate his reactionary values apart from antitrust, opposition that Wilson had applauded. However, the president could scarcely have been unaware of his grating and unpleasant personality.48 Probably he was relieved to have another southerner, Chief Justice Edward White, undertake to cope with McReynolds. McReynolds strongly opposed large-scale corporate enterprise, hence his consistent support for antitrust litigation. Monopolies were “essentially wicked,” and enforcing the Sherman Act was “a moral obligation.” 49 This appears to have been the only area where he supported strong federal action. To a much greater extent, he opposed the growth of both state and federal authority. As will be seen, however, he sometimes demonstrated a streak of liberalism—albeit one invariably colored with a conservative tinge. By January 1916 the image of Wilson’s “New Freedom” seemed a bit tarnished. Indeed the Democratic majority in the House had been substantially

46. See American Tobacco Co. v. United States, 221 U.S. 106 (1911). 47. See Arthur Link, Woodrow Wilson: The New Freedom (Princeton, N.J.: Princeton University Press, 1956), 116–19. Had Wilson insisted on naming Brandeis with the same stubbornness and inflexibility that he later demonstrated during the crisis concerning American membership in the League of Nations in 1918–19, the legal history of the Wilson era might have been very different. 48. See the description by John Knox, McReynolds’s secretary-clerk in 1936–37. “He is, all in all the most contemptible and mediocre old man I ever came in contact with. His selfishness and vindictiveness are unbelievable.” John Knox, The Forgotten Memoir of John Knox, edited by Dennis Hutchinson and David Garrow (Chicago: University of Chicago Press, 2002), 246. 49. Renstrom, 59.

16

The Chief Justiceship of William Howard Taft, 1921–1930

reduced by almost two-thirds as a result of the midterm elections in 1914. Seeking a way to rally progressives across the country, Wilson found his opportunity when Justice Lamar passed away on January 2. A few weeks later Wilson nominated Louis Brandeis to fill the vacancy. Although debate over his selection lasted for almost five months, on June 1 the Senate confirmed Brandeis by a vote of forty-seven to twenty-two.50 Like McReynolds, Louis Brandeis was also born in Kentucky. Growing up in the midst of a loving Jewish family, he demonstrated his intellectual brilliance at an early age. Brandeis did not graduate from, let alone attend, college. Instead he spent three years in Europe engaged in travel and study—and was considered bright enough to be accepted to Harvard law school, from which he graduated in 1877, setting a record for academic distinction not equaled in his lifetime nor possibly thereafter.51 As an excited participant in the new case method introduced by Dean Christopher Columbus Langdell, Brandeis gained an appreciation for the significance of facts in litigation. Indeed his obsession with facts continued throughout his legal career. “Knowledge of the decided cases and the rules of logic,” he noted, “cannot alone make a great lawyer.” Rather “he must know, must feel in his bones the facts to which they apply.”52 Brandeis exemplified this approach in one of the great cases he took up as an attorney, a controversy that brought him national attention—Muller v. Ore­ gon.53 In this litigation Brandeis successfully defended an Oregon statute that limited employment of women to ten hours a day in certain occupations. But his brief contained only two pages of precedents and included more than one hundred pages of facts and statistics “to show that the legislature had a [rational] basis for enacting the law.” He recalled that “in the past the courts have reached their conclusions largely deductively from preconceived notions and precedents. The method I have tried to employ in arguing cases before them has been inductive, reasoning from the facts.” 54 Besides being a very effective attorney (by the time of his nomination in 1916 he was a multimillionaire), Brandeis frequently took cases in the public interest for which he accepted no

50. Walter F. Pratt Jr., The Supreme Court under Edward Douglass White, 1910–1921 (Columbia: University of South Carolina Press, 1999), 139. Pratt notes that Wilson’s choice of Brandeis “was in many ways the first act in his campaign for reelection.” Ibid., 137. 51. The scholarship on Brandeis is vast, but the best single volume on the man is Melvin Urofsky’s Louis D. Brandeis: A Life (New York: Pantheon Books, 2009). See especially 767. 52. Ibid., 62–63. 53. 208 U.S. 412 (1908). 54. Pratt, 139.

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fee.55 Alert to the need for social change in all facets of the industrial age, he was for Wilson a true progressive.56 Brandeis was sworn in on June 5, 1916. Five days later Wilson had his third (and ultimately final) vacancy to fill on the high court. Justice Hughes resigned effective immediately to accept the Republican presidential nomination. It might be observed that Hughes appears to have been the only member of the high court to resign to run for the presidency, although others such as Samuel F. Miller or Salmon Chase no doubt considered the possibility. Chief Justice Edward White, himself no stranger to politics as he had been a senator from Louisiana for three years preceding his selection as associate justice in 1894, was troubled by the resignation. Hughes “is a very able man. He has made a fine record as a member of the Court, and doubtless if elected to the presidency will grace that position. . . . Yet I look upon his nomination as a very great blunder, and one from which we will be years in recovering.” 57 Compared to the Brandeis imbroglio, Wilson’s final nomination to the high court, John Hessin Clarke, went smoothly and promptly. There was minimal debate, and he was confirmed by voice vote about ten days after he was nominated. John H. Clarke graduated from Western Reserve College as a member of Phi Beta Kappa and—as had been the case with Mahlon Pitney—by dint of study in his father’s law office passed the bar with distinction at the age of twenty-one. First in Youngstown and later in Cleveland, Clarke built up a very successful practice. He also attempted to dabble in politics, running (unsuccessfully) in 1903 for the U.S. Senate as a Democrat against Mark Hanna, the Republican politician who had orchestrated William McKinley’s presidential victory in 1896. In 1914, and now known as a progressive Democrat, Clarke again sought to run for the U.S. Senate but was probably not disappointed to be taken out of the campaign by Wilson, who appointed him to the federal district court for Ohio. His term was short however, for in 1916 Wilson elevated him to the high court, expressing the hope that Clarke would join with Brandeis in serving as a counterpoise to McReynolds. In this he was not disappointed. Clarke dissented in the child labor cases, joined with Brandeis in upholding the eight-hour day for railroad workers, and generally supported both federal and state regulatory statutes. As for

55. Urofsky, Louis D. Brandeis, 73–74. Indeed, Brandeis was popularly known as “the people’s attorney.” 56. Even the staunch conservative jurist George Sutherland, who served with Brandeis from 1922 to 1938, while deploring Brandeis’s progressive preferences acknowledged his legal excellence. “My, how I detest that man’s ideas, but he is one of the greatest technical lawyers I have ever seen.” Lurie, William Howard Taft, 182. 57. Pratt, 142.

18

The Chief Justiceship of William Howard Taft, 1921–1930

substantive due process, Clarke dismissed the doctrine as “Fourteenth Amendment nonsense.” 58 But his hostility to the trusts and other corporate excesses did not extend to First Amendment freedoms. In 1919 his majority opinion in the famous Abrams case produced one of Holmes’s most celebrated dissents.

4 These then were the eight justices who awaited Taft when the court reconvened in October 1921. All of them had matured during the second half of the nineteenth century, and all of them witnessed the transformation of the United States from a rural heartland to an urban industrial society. The way the polity responded to these fundamental alterations in turn affected the approach the justices took in litigation dealing with them. Indeed the famous maxim that law is a response—albeit not necessarily positive—to change applies with special force to the White court. From 1910 to 1921 the justices tried—and for the most part failed—to place “rubrics such as police power and commerce,” protection of speech, indeed liberty itself in an appropriate context, “as [they] followed the rest of the nation into a modern world.” 59 Like the United States as a whole, they sought to “come to grips with what it meant, and would mean, to live in the twentieth century.” The editor of this series, Herbert Johnson, put it very well when he wrote that “in small matters, as in the larger cases, the White Court moved slowly and hesitatingly into the new legal and constitutional world that would be twentieth century America.” 60 This was the legacy that awaited Chief Justice William Howard Taft as the high court convened for its new term in October 1921.61

58. See the entry on Clarke by Barry Cushman in The Supreme Court Justices: A Biographi­ cal Dictionary, ed. Melvin Urofsky (New York: Garland, 1994), 121–22. 59. Pratt, 263–64. The court “tested old doctrine for suitability in new circumstances.” 60. Ibid., xv. 61. An excellent introduction to Taft’s career in the years between his presidency and his appointment to the Supreme Court may be found in Lewis Gould, Chief Executive to Chief Justice: Taft betwixt the White House and Supreme Court (Lawrence: University Press of Kansas, 2014). See in particular 195–97.

2 Arrival and Beginnings, 1921–1922

1 On May 13, 1921, Justice Willis Van Devanter received a note from Chief Justice Edward White stating that he would miss the last two court conferences, “due to an indisposition which I am sure is of no moment, but which may keep me in for the time stated.” He enclosed a list of the pending decisions for which he was supposed to write an opinion and suggested that perhaps “they should be [re]allotted” among the other justices. “Pardon all the trouble I give you,” he added. “I cannot tell you how sorry I am for any increased burden I put on my brethren. If I do not get out before the Court rises [adjourns for the summer], as I certainly expect to do, I hope you will have a happy vacation and that we may all meet in the fall sound and well.”1 Such was not to be, for the “indisposition of no moment” was in fact a bladder infection and resulted in surgery from which White did not recover. He died on May 19. “Poor man, he suffered long and bore up against it heroically,” noted Holmes. “I cannot judge whether his delaying any operation was due to determination not to give the appointment to Wilson or love of the office or to [a] mistaken sense of duty—possibly all combined.” 2 Now “people speculate as to who will take White’s place—Taft is much mentioned,” but “I would rather have Hughes.” Taft “is said to be indolent,” and “I never saw anything that struck me as more than first rate second rate [sic],” even though he “did well as a Circuit Judge.” 3 Holmes did not offer any justification for this 1. Willis Van Devanter Papers, Library of Congress, May 13, 1921. Hereafter cited as Van Devanter Papers. 2. Holmes­Laski Letters: The Correspondence of Mr. Justice Holmes and Harold J. Laski, 1916–1935, 2 vols., ed. Mark DeWolfe Howe (New York: Atheneun, 1963), May 27, 1921, 1: 264. “For I think he loved the office as an end in itself.” 3. Ibid., 1: 265. As to “pulling wires” to obtain the appointment, Holmes added that “I wonder how many men are pulling wires now. I give you my word of honor that I am not. I don’t even know what, if any, wires I could pull.” Holmes probably had no direct

20

The Chief Justiceship of William Howard Taft, 1921–1930

description of Taft, and as these chapters will indicate, the label of “indolent” is not accurate. Meanwhile the subject of these comments from Holmes ruminated, hoping as Harding hesitated. Two days after White’s death, he wrote a confidential letter to Mabel Boardman, an old family friend, and described where matters had stood, or so he thought, before Chief Justice White’s passing. According to Senator Frank Brandegee, Taft’s pending nomination was “all right, but there are some complications about someone else which the P wishes to iron out before acting and this may delay matters. . . . I suspect the trouble is with [former senator George] Sutherland. The P told me that he would like to appoint Sutherland . . . when he appointed me Ch. J, and hoped to have two retirements. I should doubt his ability to induce either Holmes or McKenna to retire.” 4 Indeed “the older they get, the more fluid they are to the proprieties, the more sensitive they are to suggestions, and the more eagerly convinced they are of the truth of those who advise them of their wonderful and perpetual youth. I hope I will not be such a fool as this, but I am not foolish enough now to say that I will not be a fool later.” 5 Moreover Taft’s eagerness to occupy the center seat had been long standing for many years prior to 1921. As has been noted it colored his nomination of Edward White more than a decade before. Early in 1921 he had mixed his eagerness with some realistic candor. “I would be glad to be Chief Justice,” he wrote to Mabel Boardman, “if events were to shape themselves to make it possible. But I am not dependent for my happiness on it. I am now so situated that I can find many things of much interest and still be very independent. The Ch. J. has to work very hard, and although I have had much judicial experience, I would have a good deal of trouble adjusting myself to the duties of the place.” 6 Of course Taft could not “accept an associate justiceship as I would gladly have done earlier in my life, when I could have worked up toward the head of the Court even if I never became its head.” 7 Now a sense of realism impelled Taft to concede that “I have only ten years of hard work in me, if that.” 8 experience with Taft as a circuit judge. Massachusetts was not in Taft’s circuit, and by the time Holmes reached the high court, Taft had left the bench and was ensconced in the Philippines. 4. Mabel Boardman Papers, Library of Congress, box 10, May 21, 1921, hereafter cited as Boardman Papers. 5. Ibid. 6. Ibid., January 9, 1921. 7. Ibid. Here Taft’s recollections colored reality. In fact Theodore Roosevelt offered Taft not one but two separate appointments to the high court, only to be turned down each time by his putative nominee in part because Taft had unfinished work to do in the Philippines, and in part because his wife and brothers pointed him toward the possibilities of the presidency. See Lurie, William Howard Taft, 55–63. 8. In reality he had barely eight.

Arrival and Beginnings, 1921–1922

21

Having appointed three of the justices still on the court, and having strongly opposed the nomination of Louis Brandeis, “I would not like to join the court as junior to them.” For Taft it was either the center seat or nothing. To be sure, Taft recalled that the chief justice “used to say that he was holding the place for me and would retire when I could be appointed, but I have found that when the time comes to carry out such a resolution, the disposition of most humans is to put it off and forget it.” Moreover “the chief [justice]ship is a shining prize, and [Harding] may well be advised to award it to a younger man.” But “the Court is going to have some very important questions to decide growing out of the war and the social unrest and I would like to do all I could to create solidarity in the court on the right side. I would hope that the learning from [being] President would give me insight in bringing the judges together except Brandeis and Clarke.”9 On May 31 Taft wrote of President Harding that “I don’t know what he is going to do.” Apparently the president had toyed with the idea of selecting Justice Day as the new chief justice on the understanding that he would “hold this office for only three or four months and then retire.” Not filling Day’s slot on the bench would give Harding two vacancies, to which he could appoint Taft as chief justice and Harding’s close friend George Sutherland as an associate justice. To his credit Taft denounced the entire proposal. “This is trifling with a great office,” he wrote, “and I don’t favor any such arrangement. I don’t want to be a party to it.” Indeed when Harding considered this scheme “more carefully, he will see that it has the aspects of a dicker [sic] which is unworthy [of ] so exalted a position.” But at the present time “I am a good deal discouraged over the matter, because I had supposed it was clearly understood that there would not be any hesitation. However, I have had so much that I have no right to become resentful at disappointments.”10 By June 15 resignation had merged with resentment. Taft concluded that “the chief justiceship seems to be postponed til September with the hope that there may be two vacancies by that time. I am told that approaches to Day and Holmes resulted in [an] announcement that neither had any intention of retiring. I don’t know about McKenna, but I can guess a similar response by him.” Meanwhile “Harry Dougherty [Harding’s attorney general] has sent word to me not to worry.”11

9. Boardman Papers, January 9, 1921. 10. Boardman Papers, May 31, 1921. Taft’s frustration over finding himself in a sort of limbo concerning a replacement for the late chief justice is understandable. However, as president he had put Justice Charles Evans Hughes through the same sort of uncertainty as he mulled over his choice for a new chief justice, replacing Melville Fuller, who, incidentally, had died on July 4, 1910. See Lurie, William Howard Taft, 122–26. 11. Boardman Papers, June 15, 1921.

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The Chief Justiceship of William Howard Taft, 1921–1930

Although he kept Taft waiting for some forty days, perhaps Harding finally realized that he would not have two court vacancies to fill at the same time. On June 30 Harding sent the nomination to the Senate, which confirmed the appointment later that same day, albeit not unanimously, without even bothering to refer it to the Judiciary Committee. Harding would go on to make three more appointments to the Supreme Court, and in none of them—with the possible exception of Edward Sanford—did he delay as he had with Taft. With the formal recording of his commission in open court on October 3, the Taft court became a reality.

2 Taft must have realized that his appointment was unique in American history. Never before (or since) has a former president been named to the court, let alone the center seat. He might well have recalled his four years presiding over his cabinet, and possibly more than other presidents he had given his cabinet officers great discretion in the way they ran their departments. But no one could forget that the president ultimately decided issues at hand. Not so on the Supreme Court. Taft was well aware that a number of his new colleagues possessed brilliant legal intellects, while he had not sat as a judge since 1900. Now although in theory the chief justice is primus inter pares (first among equals), he understood that certain of his brethren such as Holmes, Brandeis, or even Van Devanter were far superior to him in hornbook law. Thus Taft was only being candid when he thanked Willis Van Devanter (one of the two Taft appointees still on the bench) for his telegram of congratulations.12 “You and your colleagues must be patient and forbearing with a neophyte. You must be kind to my rusty shortcomings. I know I am entering a field of incessant labor and great responsibility. But you will help me with your long training and experience in the mine field.”13 The years of the Taft court encompassed at least half a dozen areas: issues of jurisdiction, federalism, liberty of contract, labor, commerce, and civil liberties. These of course were not unique to the 1920s but had characterized if not bedeviled high court litigation since the late nineteenth century. His court made significant (and sometimes controversial) contributions in all of them. A number of such cases were pending as Taft began his first term in October 1921. One lawsuit, American Steel Foundries v. Tri­City Central Trades Council, had first been litigated before the court in 1919, was reargued on October 1920, and remained pending when Chief Justice White died. The court ordered reargument for yet a third time in June 1921, and the case was one of the first 12. Mahlon Pitney was the other, but, as will be seen, not for long. 13. Van Devanter Papers, July 6, 1921. Throughout his tenure, Taft relied on Van Devanter to a greater degree than on any other justice.

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over which Taft presided as chief justice. His opinion for the court, announced on December 5, 1921, is an excellent example of Taft’s ability—especially evident during the first three years of his tenure—to find a common ground in an extremely contentious area: labor picketing, strikes, and injunctive relief.14 Finding such common ground on which the court as a whole could agree was very important to Taft. As a jurist he did not favor dissents, and his tenure as chief justice reflects this position. Consider the fact that in his eight full terms, from 1921 to 1929, he wrote some 249 opinions for the court and filed only three written dissents.15 Taft disliked dissents in general, and elaborate dissents such as those of Louis Brandeis tended to irritate him even more. He held that essentially all they represented was simply “a form of egotism. They don’t do any good and only weaken the prestige of the Court. It is much more important what the Court thinks than what any one thinks.”16 Of course Taft failed to consider the role of dissent in an ongoing judicial dialogue. Nor did he understand the underlying purposes behind them. When jurists such as Holmes or Brandeis submitted dissents, it was because they believed that views other than those contained in the majority decision warranted public consideration.17 A dissent in many ways staked out the possibility of future change in the law. Further Holmes observed that his pleasure, if such be the word, in writing dissents was “that you can say just what you think, and don’t have to cut out phrases to suit the squeams [sic] of your brethren.”18 But Taft did more than express his opposition to dissents. Alpheus T. Mason noted that during his eight full terms, Taft suppressed “at least two hundred dissenting votes,” which he cast earlier, so eager was he “to stand by the Court.”19 As chief justice he sometimes would reassign an opinion to a different justice to gain greater support among the brethren, or—as will be seen shortly—he would take the insights in a threatened dissent and somehow incorporate them into a finished opinion that ultimately received the votes of the entire court. This brings us back to the American Steel Foundries case. As a prime example of Taft’s tactics at building consensus early in his tenure, it warrants some discussion. But before turning to it, some background on an earlier and similar litigation is appropriate. In January 1921 the justices had decided another picketing case, by a vote of six to three, with Justices Holmes and Clarke concurring in a dissent written 14. American Steel Foundries v. Tri­City Central Trades Council, 257 U.S. 184 (1921). 15. See Lurie, “Chief Justice Taft and Dissents,” 187. Including the three just noted, he recorded a total of only seventeen dissents. 16. Ibid. 17. One of the favorite and often expressed beliefs held by Brandeis was that “my faith in time is great.” Urofsky, Louis D. Brandeis, 756. 18. Lurie, William Howard Taft, 182. 19. Ibid., 181.

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The Chief Justiceship of William Howard Taft, 1921–1930

by Brandeis. Although Taft had not yet joined the court, one can be quite sure that the opinion by Justice Pitney probably reflected Taft’s views as well. The case featured the usual incidents of picketing: some violence on the picket line, accusations of intimidation and threats, and so on. But what made Duplex Printing Co. v. Deering unusual was that in his opinion Pitney confronted two sections of the recently enacted Clayton Act (1914), a “progressive” statute intended to protect labor from involvement by federal judges. Section 6 stipulated that “anti trust laws should not be interpreted to forbid unions from seeking their legitimate objectives.” 20 Section 20 listed a number of practices that were not to be subject “to injunction or treated as a violation of the laws of the United States.” These included persuading workers “by lawful means” to quit their jobs, “recommending, advising, or persuading others by peaceful and lawful means,” or “doing any act or thing which might lawfully be done . . . by any party thereto.” 21 But Pitney had no difficulty finding in favor of the corporation, in spite of the Clayton Act. He pointed to the use of such words as “lawful,” “lawfully,” and “peacefully.” These modifiers indicated no legislative intent “to confer a general immunity for conduct violative of the anti trust laws.” Indeed “there is nothing here to justify defendants . . . in using either threats or persuasion to bring about strikes or a cessation of work.” On the contrary “to instigate a sympathetic strike in aid of a secondary boycott cannot be deemed peaceful and lawful persuasion. In essence it is a threat to inflict damage upon the immediate employer, between whom and his employees no dispute exists, in order to bring him against his will into a concerted plan to inflict damage upon another employer who is in dispute with his employees.” 22 Justice Brandeis dissented, observing that the Clayton Act had substituted the opinion of Congress “for that of differing judges; and thereby it declared that the relations between employers and workingmen were competitive relations,” that “organized competition was not harmful and that it justified injuries necessarily inflicted in its course.” Reflecting on the course of organized labor and industry as they had developed in the United States, he conceded that conditions “in industry may be such that those engaged in it cannot continue their struggle without danger to the community.” But Brandeis had emphasized—as he did throughout his tenure on the court—that “it is not for judges to determine whether such conditions exist, nor is it their function to set the limits of permissible contest. . . . This is the function of the legislature.” 23 20. Urofsky, Louis D. Brandeis, 603. 21. Duplex Printing Co. v. Deering, 254 U.S. 443, 473–74 (1921). 22. Duplex, 474. Pitney added that the congressman in charge of the bill when it came to the House floor had emphatically denied that the proposed legislation legalized the secondary boycott. Ibid., 477. 23. Ibid., 487–88.

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Barely a year later the court revisited American Steel Foundries for the third time. While counsel for the corporation had set forth the usual justifications for judicial intervention, counsel for the union incorporated parts of the Clayton Act in his brief. For wage earners joining together to secure better working conditions and wages for workingmen “is not an unlawful combination.” Further “to order a strike is not unlawful. Labor unions have this right.” To “picket a plant, and for the workers to try to persuade men from taking the place of strikers is not unlawful.” And an “injunction against strikers should not prohibit either persuasion or picketing.” Finally to deny strikers the right to attempt to persuade others concerning the rightness of their cause would deprive them “of the right of free speech guaranteed by the Constitution.”24 As had Pitney so Taft invoked the Clayton Act, but with far greater sympathy for the intentions of the legislature. It is clear, he wrote, that “Congress wished to forbid the use by the Federal courts . . . to prevent peaceable persuasion by employees . . . in promotion of their side of the dispute, and to secure them against judicial restraint in obtaining or communicating information in any place where they might lawfully be.” 25 The problem faced by the legislators, however, was “to reconcile the rights of the employer” and employees to free and unrestricted access to his place of business on the one hand, and the “right of the employees . . . to use peaceable and lawful means to induce present employees and would be employees to join their ranks, on the other.” 26 This was the same problem confronted by the court, and even at the outset of his opinion Taft seemed more aware of this duality of rights than Pitney had demonstrated in the Duplex case. “How far,” asked Taft, “may men go in persuasion and communication and still not violate the rights of those whom they would influence?” In fact “we are a social people, and the accosting by one of another in an inoffensive way, and an offer by one to communicate and discuss information with a view to influencing the other’s actions are not regarded as aggression or a violation of that other’s rights.” The difficulty arises, however, when persuasion and importunity “become unjustifiable annoyance and obstruction which is likely soon to savor of intimidation.” From this the person being persuaded “has a right to be free and his employer has a right to have him free.” 27 Such is what had happened in this case. There were three of four groups of picketers, with up to a dozen in each group, replete with periodic episodes of assault and violence. For Taft this scenario went beyond the line. In such a context “all information tendered, all 24. 25. 26. 27.

American Steel Foundries, 184–93. Ibid., 203. Ibid. Ibid., 204.

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The Chief Justiceship of William Howard Taft, 1921–1930

arguments advanced and all persuasion used under such circumstances were intimidation. . . . This type of picketing thus instituted is unlawful . . . and may be properly enjoined.” 28 But again, unlike for Pitney, there was more to the issue for Taft.29 “We must have every regard,” he wrote, “to the congressional intention manifested in the act . . . that ex employees and others properly acting with them shall have an opportunity, so far as is consistent with peace and law, to observe who are still working for the employer, to communicate with them and to persuade them to join the ranks of his opponents in a lawful economic struggle.” Accepting as fundamental the “rights of the employees to work for whom they will . . . undisturbed by annoying importunity or intimidation . . . and keeping in mind the right of the employer . . . to his property . . . to free access of such employees, what can be done to reconcile the[se] conflicting interests?”30 For this case Taft limited the strikers and their sympathizers to “one representative for each point of ingress and egress” from the plant, who should “have the right of observation, communication and persuasion,” while at the same time being warned that such communication “shall not be abusive, libelous or threatening.”31 Within these perimeters the new chief justice asked, “is interference of a labor organization by persuasion and appeal to induce a strike against low wages . . . without lawful excuse and malicious”? We think not. Labor unions are recognized by the Clayton Act as legal when instituted for mutual help and lawfully carrying out their legitimate objects. They have long been thus recognized by the courts. They were organized out of the necessities of the situation. A single employee was helpless in dealing with an employer. He was dependent ordinarily on his daily wage for the maintenance of himself and family. If the employer refused to pay him the wages that he thought fair, he was nevertheless unable to leave the employ and to resist arbitrary and unfair treatment. Union was essential to give laborers opportunity to deal on equality with their employer. They united to exert influence upon him and to leave him in a body in order by this inconvenience to induce him to make better terms with them. They were withholding their labor of economic value to make him pay what they thought it was worth. The right to combine for such a lawful purpose has in many years not been 28. Ibid., 204–5. Workers seeking to work should not be subject to “a severe test of their nerve and physical strength and courage.” 29. “Pitney,” according to Brandeis, had been “much influenced by his experience and he had mighty little.” Phillip Cooper, Battles on the Bench: Conflict inside the Supreme Court (Lawrence: University Press of Kansas, 1995), 107. 30. American Steel Foundries, 206. 31. Ibid., 206–7.

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denied by any court. The strike became a lawful instrument in a lawful economic struggle or competition between employer and employees as to the share or division between them of the joint product of labor and capital. To render this combination at all effective, employees must make their combination extend beyond one shop. It is helpful to have as many as may be in the same trade in the same community united, because in the competition between employers they are bound to be affected by the standard of wages of their trade in the neighborhood. Therefore, they may use all lawful propaganda to enlarge their membership and especially among those whose labor at lower wages will injure their whole guild. It is impossible to hold such persuasion and propaganda without more, to be without excuse and malicious.32 The American Steel case can be cited as a prime example of what Taft might have described as his “progressive conservatism.” 33 Here it demonstrated his efforts to establish some sort of balance between the prerogatives of capital and the rights of organized labor. To be sure, portions of the holding bristled with negative comments about the excesses of strikers and picketing. Yet Taft demonstrated an understanding about the needs of organized labor that was not superficial. While Justice Brandeis probably would have gone much further than Taft in sustaining the practices of the union, it is interesting that he not only voted with the chief justice but appended a statement to the decision that he “concurs in substance in the opinion and the judgment of the court.” 34

3 In 1911 then president Taft had vetoed a congressional resolution admitting Arizona to the Union as a state. He did this largely because among other things the new Arizona constitution provided for the recall of judges. Congressional proponents of statehood promptly deleted the offending provision, and the next year saw Taft quietly sign the revised resolution into law. As soon as Arizona became a state, however, its legislature responded by reinstating judicial recall. Whether or not the incident lingered in Taft’s memory cannot be ascertained, but ten years later and just two weeks after American Steel Foundries was decided, he spoke for the court in another picketing case. In tone, outcome, and analysis, the case of Truax v. Corrigan differed markedly from the earlier case, and in it Taft peremptorily reversed the Arizona Supreme Court.35 32. Ibid., 209–10. 33. See Lurie, William Howard Taft, pp. 196–98, where this self-characterization is discussed in some detail. 34. The decision in this case was by a vote of eight to one. Justice Clarke dissented without opinion. 35. Truax v. Corrigan, 257 U.S. 312 (1921).

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The Chief Justiceship of William Howard Taft, 1921–1930

Coming early in his first term, the holding appears to have been the first fiveto-four decision in the history of the Taft court. As had been true with American Steel Foundries, this case was a holdover from the final months of the White court and was reargued shortly after Taft became chief justice. It involved an anti-injunction statute enacted by the Arizona legislature in 1913 that forbade the issuing of injunctions or restraining orders arising out of labor disputes “unless necessary to prevent irreparable injury to property or a property right.” The case centered on the alleged conduct of the picketers against plaintiff’s restaurant, and Taft described what it meant for would-be patrons. They were forced “to run the gauntlet of most uncomfortable publicity, aggressive and annoying importunity, libelous attacks, and fear of injurious consequences illegally inflicted.” Small wonder that Truax had seen his business worth $50,000 reduced to “only one fourth of its former extent.” To be sure, such was not physical violence. Nevertheless he emphasized that “violence could not have been more effective. It was . . . coercion by illegal annoyance and obstruction,” and thus “it was plainly a conspiracy.” 36 Although only two weeks had passed since the American Steel Foundries case was announced, when one compares the tone of Taft’s Truax opinion with the earlier holding, the difference is striking. In Truax he bent the Fourteenth Amendment to cover the complaints raised by the plaintiff, showing no awareness for the needs of labor as he done before. “I think,” observed Holmes, that “the Chief’s performance in [Truax] is rather spongy—copious citation of generalities become platitudes that don’t bring you any nearer to the concrete case.” 37 Indeed Holmes added that Taft “had disappointed us after a happy success in uniting the Court in an earlier one” (American Steel Foundries ). The case resulted in a five-to-four decision, with the dissenters led by Holmes shredding Taft’s analysis. Holmes observed that “if, as many intelligent people believe, there is more danger that the injunction shall be abused in labor cases than elsewhere, I can feel no doubt of the power of the legislature to deny it in such cases.” Legislation, he had noted, “may begin when an evil begins,” as was true in this case. And if the Arizona legislature had barred courts from issuing such injunctions, how then could the tribunal be compelled by the Fourteenth Amendment to undertake something it “never has been empowered to” do by the authority which established the court in the first place?38 Holmes found such a distortion of the Fourteenth Amendment unacceptable. “ There is nothing that I more deprecate,” he wrote, “than the use of the 14th Amendment . . . to prevent the 36. Ibid., 327–28. As a young trial judge more than then thirty years earlier, Taft had emphasized what he considered the fundamental immorality and the conspiratorial character of the labor boycott to represent. See Lurie, William Howard Taft, chapter 2. 37. Holmes­Laski Letters, 1: 302. 38. Truax, 343–44.

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making of social experiments that an important part of the community desires, in the insulated chambers afforded by the several states.” The dissent filed by Justice Brandeis is so representative of his approach to jurisprudence that it warrants only brief discussion here. By 1921, his fifth year on the bench, he had evolved a series of standards or rules applicable in cases such as this one. In the first place, he emphasized that the question whether or not a police power statute is unreasonable or arbitrary can be determined “only by a consideration of the contemporary conditions—social, industrial, and political—of the community” involved. One has to understand these facts “in order to appreciate the evils sought to be remedied and its possible effects.” 39 Thus “in passing upon the validity of a law . . . aid may be derived from the experience of other countries and of the several states . . . in which the common law and its conceptions of liberty and of property prevail.” Further Brandeis proceeded to an in-depth examination of other countries and states, replete with an exhaustive number of lengthy footnotes, which pointed to the conclusion that the court should not “declare a rule arbitrary and unreasonable merely because we are convinced that it is fraught with danger to the public weal, and thus to close the door to experiment within the law.” 40 Shortly after Truax was announced, Harvard law professor Felix Frankfurter observed that Chief Justice Taft “deals with abstractions and not with the worka-day world, its men, and its struggles.” Indeed, “for all the regard that [Taft] pays to the facts of industrial life, he might as well have written this opinion as Chief Justice of the Fiji Islands.” 41 But of greater concern to this scholar, who himself one day would sit on the Supreme Court, was the power lurking behind the prose of Taft’s opinion. “ The simple fact of the matter is that in a decision like Truax, the Court, under the guise of a legal form, exercises political control.” The justices who wield this power and observers of the court should “face the fact that five justices . . . are conscious molders of policy instead of the impersonal vehicles of revealed truth.” 42 Reality means that “Truax . . . becomes forever a strait jacket for a free people until and unless the Supreme Court someday sees fit to change its mind.” In reality, however, “forever” lasted barely fifteen years. The sequel to Truax came in 1937, only two years before Frankfurter donned his judicial robe. By a vote of five to four the justices upheld a Wisconsin anti-injunction statute very similar to that declared unconstitutional 39. Ibid., 356–57. 40. Ibid., 357. 41. See two unsigned editorials that appeared in the New Republic on January 18 and 25, 1922, and are reprinted in Felix Frankfurter on the Supreme Court: Extrajudicial Essays on the Court and the Constitution, ed. Philip B. Kurland (Cambridge, Mass.: Belknap Press of Harvard University Press, 1970), 58, 65– 66. 42. Ibid.

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in Truax. While the majority did not specifically overrule the earlier holding, speaking through Justice Brandeis, it narrowed the scope of Taft’s opinion, thus lessening its reach to a great extent. In Senn v. Tile Layers Protective Union Brandeis sustained a law that permitted “speaking, patrolling any public street or any place where any persons may lawfully be without intimidation or coercion,” as well as “peaceful picketing or patrolling whether engaged in singly or in numbers.” 43 Further Brandeis stated that Truax “is not applicable.” Taft’s decision had concerned conduct that “was not simply peaceful picketing, not persuasion or inducing, not a mere appeal.” To the contrary “it consisted of libelous attacks and abusive epithets . . . , libelous and disparaging statements,” as well as “threats and intimidation, all of which represented unlawful conduct.” In this case, however, “there was no violence, no force was applied, no molestation or interference, no coercion . . . only the persuasion incident to publicity.” 44 Yet Brandeis broke new constitutional ground in Senn, albeit without specific acknowledgment of this fact. “There is nothing in the Federal Constitution,” he wrote, “which forbids unions from competing with non union concerns for customers by means of picketing as freely as one merchant competes with another.” Of course some of the resulting publicity may be annoying. “But such annoyance . . . is not an invasion of the liberty guaranteed by the Constitution. . . . [A] hoped for job is not property” with a constitutional guarantee, and the “diversion of it to a competitor is not an invasion of a constitutional right.” Indeed “one has no constitutional right to a remedy against the lawful conduct of another.” 45 The last of the three labor cases in the early years of the Taft court to be discussed is similar to American Steel Foundries and Truax in one aspect. It was another holdover from the White court. United Mine Workers of America v. Coronado Coal Co. was first argued in October 1920, and it had not been finally decided when the chief justice died. The justices had voted to hold that the conduct of the union violated the interstate commerce clause. Although no majority opinion circulated, Brandeis had drafted a dissent. In the meantime the case was reargued before the Taft court in March 1922, resulting in a tentative vote similar to the earlier litigation. This time Brandeis, who had already prepared and revised a dissent from the first go around, waited for Taft to circulate his majority opinion. Although he had shown it to the chief justice, it is not clear if Brandeis had discussed his dissent with any other members of the court.

43. Senn v. Tile Layers Protective Union, 301 U.S. 468, 472 (1937). 44. Ibid., 480–81. 45. Ibid., 483. In 1937 only Brandeis and McReynolds remained of the original Truax court. Brandeis’s majority included Justices Cardozo, Stone, and Roberts and Chief Justice Hughes.

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The Coronado case involved months of labor violence that culminated in the destruction of two mines owned by the Coronado Coal Company. The company sued both the United Mine Workers national leadership and its local unions for treble damages, alleging a conspiracy to restrain interstate commerce. In his dissent Brandeis acknowledged that the violence so much a part of this strike had been caused by the union and characterized their conduct as that of “lawless aggressors, violating grievously the laws of Arkansas,” as well as upheld an injunction issued by the federal court.46 Further no matter how much wages had been cut, working conditions made more burdensome, and hours of labor extended—none of this would afford any excuse in law for the “malicious destruction of plaintiffs’ business and mining properties.” At first glance one is struck by the almost reactionary tone emanating from this great progressive legal figure, whose comments here resemble those of the reactionary advocates of “classical legal thought.”47 In fact, however, Brandeis feared that the majority would use the antitrust statutes to impose treble damages, as well as to set an unfortunate precedent for future labor dispute litigation. By emphasizing the illegality of the union’s conduct, he convinced Taft that instead of the antitrust approach, one could rely on common law damages for trespass and property destruction.48 “To destroy a business is illegal,” according to Brandeis. “A business is property; the law protects it; and a statute which denies to its owner the right to protection by injunction against striking employees violates the Fourteenth Amendment.” Moreover “a man’s standard of living is not property; and the law does not protect [it] by injunction or otherwise.” 49 It might be noted that in support of this position, Brandeis cited a number of recent decisions with which he strongly disagreed.50 But in 1922 they were indeed the law of the land. Had counsel for Coronado argued along such lines, perhaps Brandeis might have been able to support its position, if only on the basis of stare decisis. Instead, however, counsel for the coal mine brought suit in federal court under the Sherman Act, “claiming that the injury suffered was inflicted in pursuance of a conspiracy to restrain interstate commerce.” To support such a claim, “there is, in my opinion, not a shred of legal evidence.” 51 Again Brandeis cited decisions with which he disagreed. In the first child labor case, Hammer v. Dagenhart, Justice Day had stated that “the making of goods and the mining of coal are not commerce, nor does the fact that these thing are to be 46. Bickel, 86. 47. See Wiecek, Lost World of Classical Legal Thought. 48. Brandeis had long argued that while unions had the right to organize and bargain collectively, they were accountable for their actions. Such should be the situation here. 49. Bickel, 87. 50. See for example Truax; Coppage v. Kansas, 236 U.S. 1 (1915); and Duplex. 51. Bickel, 85.

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afterward shipped or used in Interstate commerce, make their production a part thereof.” 52 This position was endorsed by a unanimous court in Bailey v. Drexel Furniture, decided less than a month before Coronado was resolved.53 True, conduct by the union “was not permissible interference with plaintiff’s business,” but there is “no tendency to show that it was a restraint of interstate trade.” 54 Such was the essence of Brandeis’s intended dissent, which, presumably, he discussed with the chief justice, even as Taft struggled to compose his majority opinion. Taft had concluded that the union could be sued, that it had conspired to restrain interstate commerce, and that it “was liable for damages imposed” at an earlier trial.55 Brandeis agreed that a union could indeed be sued, as was true of corporations, but in discussions with Taft, he insisted that there was no evidence of conspiracy, no liability under any federal statute, no violation of interstate commerce. True, the union may well have violated Arkansas law, but in reality there was no federal jurisdiction on which to base Supreme Court intervention. Eventually the chief justice handed down a unanimous opinion that built so heavily on Brandeis’s arguments that he never filed his proposed dissent. Taft’s decision bristled with criticism of the union’s conduct toward the Coronado Coal Company. “But there is nothing to show that the International [leadership] ever authorized it, [or] took any part in preparation for it or in its maintenance.” 56 Further Taft accepted Brandeis’s insistence that coal mining was not interstate commerce, even quoting the same lines from Hammer, and that there was no evidence showing any intention by the union leadership to interfere with it. And Taft especially endorsed the Brandeisian respect for federal jurisdiction—in this case the lack of it—as key to his holding. Given the excessive conduct of the local unions, “the circumstances are such as to awaken regret that, in our view of the federal jurisdiction, we cannot affirm the judgment. But it is of far higher importance that we should preserve inviolate the fundamental limitations in respect to the Federal jurisdiction.” 57

4 It will be recalled that in Hammer v. Dagenhart (1918), the Supreme Court declared the child labor statute, based on the commerce clause, unconstitutional. 52. Hammer v. Dagenhart, 251, 272. 53. Bailey v. Drexel Furniture, 259 U.S. 20 (1922). Again, the court’s unanimity resulted not from doctrinal agreement with the 1918 five-to-four decision, as much as from respect for stare decisis. 54. Bickel, 88–91. 55. Urofsky, Louis D. Brandeis, 606. 56. United Mine Workers v. Coronado Coal Co., 259 U.S. 344, 393 (1922). 57. Urofsky, Louis D. Brandeis, 413. “The most important thing we do,” observed Brandeis, “is not doing.” Ibid., 489.

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Congress responded promptly with a similar piece of legislation, using the federal taxing power as its source of authority. The Child Labor Tax Act of February 24, 1919, was immediately challenged, and counsel argued the first case in December. Apparently at first the justices were unable to decide it, and late in January 1920, Brandeis submitted a “memorandum,” urging his brethren to dismiss the case “for want of jurisdiction.” 58 This litigation, Ath­ erton Mills v. Johnston, was not a real case, according to the justice. Rather it was an instance wherein “by means of a friendly lawsuit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.” 59 Brandeis concluded that as “there is no legal or equitable cause of action to protect, and no legal or equitable wrong threatened, the bill should have been dismissed below for want of jurisdiction.” In 1920, “when the fundamental principles upon which our institutions rest are being seriously questioned, those who have faith in their wisdom and desire to preserve them unimpaired, can best uphold the Constitution by careful observance of the limitations which it imposes.” 60 Brandeis’s strictures notwithstanding, his memorandum lay pending along with the case during the 1921 term. On the last day of court, Atherton Mills was finally set down for reargument on March 7–8, 1922, at which time another case dealing with the constitutionality of the child labor tax statute was also argued, Bailey v. Drexel Furniture.61 As it turned out Chief Justice Taft found another way to dispose of Atherton Mills without even getting to the merits of the case or responding to Brandeis’s concerns. By the time of the reargument, the younger plaintiff, who had been a minor in 1919, was now beyond “the ages affected by the act.” Thus the statute “even if valid, [an assumption Taft was careful not to make, as will be seen] cannot affect him further. The case . . . has therefore become moot and we cannot consider it.” 62 The companion case, argued the same day and raising the same issues, was however a very different matter. Meanwhile Brandeis relegated his memorandum to his files, and apparently it did not appear until 1957, when his former law clerk Alexander Bickel included it in his volume The Unpublished Opinions of Mr. Justice Brandeis, cited above. In announcing the all but unanimous opinion in Bailey, the sequel to Ham­ mer decided in 1918, Chief Justice Taft focused on congressional effort to eliminate child labor by taxation rather than regulation. Such an attempt had resulted in a statute whose “prohibitory and regulatory effect and purpose are palpable. All others can see and understand this. How can we properly shut 58. 59. 60. 61. 62.

Bickel, 5. Ibid., 7. Ibid., 14. 259 U.S. 20 (1922). 259 U.S. 13, 15–16 (1922).

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our minds to it?” 63 In Hammer, Taft recalled, Congress had sought “to regulate the hours of children in factories and mines . . . a purely state authority.” Here Congress “in the name of a tax which, on the face of the act, is a penalty, seeks to do the same thing, and the effect must be equally futile.” 64 In Hammer three other justices had joined Holmes in a dissent that remains among his more memorable pronouncements. All four of these dissenters were still on the bench when Bailey was decided. Yet of the four only Clarke dissented, but he did not bother to submit objections in written form. While by 1922 McKenna had begun to demonstrate marked mental instability, the same most assuredly cannot be said of Holmes and Brandeis, both of whom had already established reputations as great dissenters. How can their silence be explained? Holmes made no secret of his preference for not confronting an issue again, all the more as here where he already delivered such a strong dissent in Hammer. Moreover both jurists subscribed to the belief that it was better for legal growth and stability that an issue be settled with an eye on finality. In this context the rightness or wrongness of a decision was secondary. Stare decisis meant something to them, and Hammer’s precedent was only four years old. Brandeis had joined Holmes’s dissent in Hammer and—possibly more than his dear friend—considered the nature and timing of his dissents with some care. Finally Alexander Bickel has observed that Brandeis had made a major and ultimately successful effort to convince Taft of his views concerning the Coro­ nado Coal case, which was pending when Bailey was decided and indeed was announced only a few weeks later.65 On the same day that Bailey was decided, Taft ruled on yet another case involving congressional use of its taxing power, but one with a markedly different tone. Again he rejected the statute but drew a very important distinction between Bailey and this litigation, the case of Hill v. Wallace.66 In Bailey the court had found no alternatives and had suggested nothing to mitigate or correct the unconstitutionality of the offending statute. Such was not the case with Hill. Like Bailey it involved a regulation with progressive overtones enacted into law in August 1921. The statute placed a tax of twenty cents a bushel on all grain contracts for future delivery, except those made on boards of trade “designated as contract markets by the Secretary of Agriculture.” Henry Robbins, the Chicago Board of Trade’s attorney representing a group of traders, argued that “the provisions of the act which aim to regulate boards of trade are 63. Ibid., 37. 64. Ibid., 39. 65. “It might have seemed to Brandeis churlish, and a disservice in the long run to his effectiveness in the cause of jurisdictional observance and to his future relations with the new Chief Justice . . . to turn around at this juncture and register a dissent.” Bickel, 19. 66. 259 U.S. 44 (1922).

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not within the commerce power of Congress.” 67 For a unanimous court Chief Justice Taft appeared to agree. At first he ruled out the possibility that there were any grounds on which the statute “can be sustained as a valid exercise of the taxing power.” But Robbins had questioned the legitimacy of applying the commerce clause in his case, and it seemed that Taft supported this contention as well. “The words ‘interstate commerce’ are not to be found in any part of the act.” Further a reading of the statute “makes it quite clear that Congress sought to use the taxing power to give validity to the act.” 68 Here however Taft added a significant observation about futures trading. “Sales for future delivery on the Board of Trade are not, in and of themselves, interstate commerce. They cannot come within the regulatory power of Congress, as such, unless they are regarded by Congress, from the evidence before it, as directly interfering with interstate commerce so as to be an obstruction or a burden thereon.” One could see from these words that the chief justice was not unsympathetic to congressional regulation of futures trading. Far from it. But with Bailey as a very recent precedent, the legislators needed to avoid taxation as a means of regulation. With the words just quoted Taft gave the legislators such an opportunity. He virtually invited Congress to adopt a replacement statute emphasizing the negative effects on interstate commerce of unregulated futures trading, and hinting that such a law would withstand constitutional scrutiny. Indeed it did.69 In Hammer, Bailey, and Hill, the Supreme Court had found that three congressional statutes dealing with interstate commerce exceeded congressional boundaries. While the child labor cases focused on a legal issue that the court ultimately would not resolve until 1941, congressional power under the commerce clause had been vindicated almost a century before Taft joined the court. Child labor regulation might remain a matter for the states, but even as he affirmed this conclusion, Taft had endorsed anew—and in sweeping language—the fundamental potency of congressional regulatory authority. The case involved the meatpacking industry, a subject that Justice Holmes had visited for a unanimous court in 1905.70 In Swift and Co. v. United States he had articulated “the stream of commerce doctrine.”71 67. Ibid., 48–60. 68. Ibid., 68. 69. Ibid., 69. Congress followed Taft’s suggestion, and, as will be noted below, by a vote of seven to two his court sustained the Grain Futures Act of 1922. 70. See Swift and Co. v. United States, 196 U.S. 375 (1905). In 1922, with Justice Holmes sitting next to him, Taft noted that Holmes’s “judgment in that case gives a clear and comprehensive exposition which leaves to us in this case little but the obvious application of the principles there declared.” Stafford v. Wallace, 258 U.S. 495, 517 (1922). 71. See James W. Ely Jr., The Chief Justiceship of Melville W. Fuller, 1888–1910 (Columbia: University of South Carolina Press, 1995), 134.

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The Chief Justiceship of William Howard Taft, 1921–1930

Speaking for seven members of his court (Day did not sit, and McReynolds dissented without opinion), in Stafford v. Wallace Taft held that “the various stockyards of the country [are] great national public utilities to promote the flow of commerce from the ranges and farms of the West to the consumers in the East.” They “are not a place of rest or final destination.” On the contrary “the stockyards are but a throat through which the current flows, and the transactions which occur therein are only incident to this current from the West to the East, and from one state to another.” That this “current of commerce . . . is a business within the power of regulation by legislative action needs no discussion.” The chief justice observed that this holding had been announced almost half a century before, in 1876.72 Holmes commented to Harold Laski that “ Taft continues to give me great satisfaction as C. J. He delivered a decision last Monday on the power of Congress to deal with commission merchants and dealers in the Stock Yards that had a kind of big movement in it parallel to the interstate trade he sought to portray.” 73 A final example of an early Taft court decision dealing with national commercial operations and the Sherman Act can be cited. The case of United States v. Southern Pacific Co. was first litigated over a three-day period in January 1921. It had not yet been settled when Chief Justice White died in May. The case was set down for reargument, and Taft’s court devoted three more days to it in April 1922. The justices finally resolved the case barely a month after Stafford had been decided.74 In 1914 the United States sought application of the Sherman Act to prevent the acquisition of the Central Pacific Railway Company by the Southern Pacific Company. On behalf of the federal government, none other than Louis Brandeis’s former law partner Edward F. McClennen had first argued the case. He insisted that forming a combination to prevent competition—“non existent but immediately threatened”—is nevertheless a restraint of trade. Further bringing two competitive agencies—in this case two railroad companies—under one corporate control “in commerce of a particular kind monopolizes that commerce.” Finally the fact that the railroad companies had engaged in restraint of trade prior to enactment of the Sherman Act (1890) does not make such conduct lawful thereafter.” Rebuffed by the federal district court in Utah, the United States filed this appeal in 1921. By a vote of six to one (McReynolds and Brandeis not sitting), the Taft court reversed and remanded. Justice Day aptly described the broad extent of the railroad merger at issue in this case. “The Central Pacific . . . forms one great system of transportation 72. Stafford, 516. 73. Holmes­Laski Letters, 1: 324. The justice also noted of a case soon to be argued that “the briefs are as long as the Bible—and the record susceptible only of cubic measures. I wish they were to Hell.” 74. United States v. Southern Pacific Co., 259 U.S. 214 (1922).

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between the East and West,” while “the Southern Pacific . . . forms another great transcontinental system for transportation from coast to coast.” Linking these two railroads together “constituted a combination in restraint of trade because such a grouping fetters the free and normal flow of competition in interstate traffic and tends to monopolization.” Counsel for the railroads insisted that “construction and control of these systems had substantially united them” before the Sherman Act was enacted. But echoing McClennen, Day held that “we cannot accept the theory of prior practical consolidation as a justification of the Sherman Act.” 75

5 Probably well aware of this fact long before he took his center seat, Taft soon confirmed his earlier impression that whatever may have been his strengths, his predecessor as chief justice Edward White had been unskilled in judicial administration. When Taft opened the October 1921 term, he found a backlog of almost 350 undecided cases. Even worse “the average time for an appeal to be heard after filing ran more than eighteen months.” 76 This was not, of course, a new development. The backlog kept expanding, exacerbated by cases arising from the onset of Prohibition, among other issues. There was, however, a more fundamental explanation for this condition: the high court had virtually no control over its docket. Melvin Urofsky did not exaggerate when he noted that “all sorts of minor matters could be [and were] appealed to the high court.”77 Two such examples out of many from Taft’s first term may be cited here. In this day and age it seems difficult to believe that one could seriously argue as a matter of constitutional law that an amendment to the constitution was in itself unconstitutional, but in at least two instances such litigation occurred. Both cases were argued early in 1922 and, not surprisingly, were unanimously resolved in barely a month. They involved ratification of the Nineteenth Amendment, the women’s suffrage amendment. In the first case, Fairchild v. Hughes, counsel claimed that the Nineteenth Amendment was unconstitutional and asked that the Supreme Court enjoin the current secretary of state Charles Evans Hughes from giving it effect.78 Seen in the perspective of some eighty years, arguments of counsel make interesting reading. Counsel for Charles S. Fairchild argued that the Nineteenth Amendment was in “conflict with the fundamental guaranty of a republican form of government.” The solicitor general responded to this claim with the point that such 75. Ibid., 222–23. 76. Urofsky, Louis D. Brandeis, 578. 77. Ibid., 584. Of course the litigants involved would not admit that their particular case was minor. 78. Fairchild v. Hughes, 258 U.S. 126 (1922).

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The Chief Justiceship of William Howard Taft, 1921–1930

a contention “does not present a judicial question.” Moreover the contention “is clearly frivolous.”79 Justice Brandeis observed that the plaintiff was neither a resident of New York nor an elections officer. Moreover his state of residence had already ratified the amendment in question. Plaintiff’s standing was dubious at best. Indeed he “has only the right, possessed by every citizen, to require that the government be administered according to law, and that the public moneys be not wasted. Obviously this general right does not entitle a private citizen to institute in the Federal courts a suit to secure by indirection a determination whether a statute if passed, or a constitutional Amendment about to be adopted, will be valid.” 80 The companion case, Leser v. Garnett, at first glance appeared to raise a more serious question. It arose when two women became registered voters in Baltimore on October 18, 1920. The Nineteenth Amendment had been declared officially ratified by the requisite number of states on August 26. This fact notwithstanding plaintiffs claimed that the constitution of Maryland restricted suffrage to men. Moreover the state legislature had specifically declined to ratify the new amendment. Indeed counsel questioned whether—in the first place—it was competent to ratify such an enactment, “which radically changes, and in fact nullifies so vital a part of their State Constitution as that which limits the right of suffrage to men, by conferring it upon women.” 81 In rejecting these views Brandeis made three points. In the first place he noted that the new women’s suffrage amendment was “precisely similar to the 15th Amendment . . . in character and phraseology.” To be sure, this provision was rejected by six states, including Maryland. But it has been “recognized and acted on for half a century.” If one is valid the other must be equally lawful. “ The suggestion that the 15th was incorporated in the Constitution. . . . as a war measure, which has been validated by acquiescence, cannot be entertained.” 82 Further plaintiffs added that some of the states ratifying the new amendment had included provisions “which render inoperative the alleged ratifications.” But as one lawyer put it, “this court is bound by, and cannot go behind such state resolutions of ratification.” In fact the process of a state ratifying a proposed constitutional amendment “is a federal function, derived from the Federal Constitution; and it transcends any limitations sought to be imposed by the people of a state.” Finally, once the secretary of state had certified that the Nineteenth Amendment had been ratified by the requisite number of states (thirty-six), such an amendment “has become valid to all intents and 79. Ibid. See 258 U.S. Lawyer’s Edition (66 L. ed.) 127. 80. Fairchild, 129–30. 81. Leser v. Garnett, 258 U.S. 130 (1922). Maryland had also failed to ratify the Fifteenth Amendment, a fact not lost on Brandeis. See ibid., 136. 82. Ibid., 136–37.

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purposes as part of the Constitution” and being so certified “is conclusive upon the courts.”83

6 There were no changes in membership of the Taft court during his first year on the bench. Between July 1922 and January 1923, however, President Harding appointed three new justices to replace John Clarke, William Day, and Mahlon Pitney—all of whom resigned. The retirements of Day and Pitney, the latter in failing health, were not unexpected. But the resignation of John Clarke after barely six years on the court, and to take effect on his sixty-fifth birthday, came as a surprise to his brethren, with the exception of Willis Van Devanter and William Day. In reality Clarke’s years on the court were unpleasant, unhappy, and unfulfilling. By the summer of 1922 he had determined to resign. In the first place Clarke found life on the court confining, especially when contrasted with his earlier experiences as a district judge. He wrote to Brandeis that “I became convinced that I should die happier if I could do all that is possible for me to do to promote our entrance into the League of Nations, than if I continued to study applications for writs of certiorari and to devote my time and strength to determining whether a drunken Indian had been deprived of his lands before he died or whether the digging of a ditch in Iowa was constitutional or not. The triviality of more than half of the work I was doing became insupportable to me.” 84 Further and more important was the fact that in 1922 Clarke had to confront the deaths of his two sisters, to whom he was devoted. In July he wrote to Van Devanter that “no difference how much death may be anticipated there [is] a shock and the world is different when those we love and have had with us all through our lives leave us.” Such had happened to Clarke with the deaths of Alice and Ida. “ The truth is, my dear friend, my situation is quite paralyzing me. I find myself without initiative or desire to go anywhere or to do anything,—all interest in life has gone out of me. I am here in my sisters’ old house, quite alone. . . . I find my chief satisfaction in thinking of them and being surrounded by things they selected and enjoyed.” 85 Clarke found little respite in the anodyne of time, and late in August he informed Van Devanter of his determination to resign from the court on his sixty-fifth birthday. “ The death of my sisters has taken all interest out of life for me and I see no reason for going forward doing work which for the most 83. Ibid., 137. Brandeis was still on the court when the Prohibition amendment was declared repealed in December 1933. The repeal amendment was the first in constitutional history and was accomplished by ratifying state conventions, rather than by state legislatures. 84. Bickel, 240. 85. Clarke to Van Devanter, July 13, 1922, Van Devanter Papers.

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The Chief Justiceship of William Howard Taft, 1921–1930

part has become irksome in the extreme to me.” 86 Van Devanter tried to persuade Clarke to reconsider, but to no avail. “I cannot bring myself to think of returning to Washington and the court work. . . . I think I realize the gravity of the action I am taking and that it may be [the] end of my usefulness . . . but it seems to be necessary if I am to have time to get aquited [sic ] with my own soul before it leaves my body and to render some service . . . to some public causes which I cannot render while holding public office.” 87 Clarke also wrote to his friend and colleague William Day, himself facing imminent retirement. Day in turn informed Van Devanter that he had received “a letter from Judge Clarke stating his purpose to resign. . . . It was very despondent in tone, and I fear he means to quit.” 88 Meanwhile Van Devanter had hastened to alert Taft, who replied that “I am greatly surprised to hear of Clarke’s determination to retire, for while I knew that he was saying things that indicated his impatience with the burden of his duties on the Court, I did not suspect that it was really serious.” 89 But Clarke was very serious, and even former president Wilson remonstrated in vain. “You little realize, “replied Clarke, “the amount of grinding, uninteresting, bone labor there is in writing more than half the cases decided by the court.” Wilson’s unfortunate first high court appointment (McReynolds) “is the most reactionary judge on the Court. There are many other things which had better not be set down in black and white which made the situation to me deplorable and harassing to such a degree that I thought myself not called on to sacrifice what . . . health and strength I may have left in a futile struggle against constantly increasing odds. . . . It was in some respects as disillusioning a chapter as Washington could afford.” 90 Clarke submitted his resignation to President Harding on September 4, to take effect on his birthday two weeks later. In due time his brethren—with the exception of McReynolds—all signed a letter wishing him well. Aware that both the letter and his response would appear in the published records of the court, Clarke could not resist a final reference to one of the reasons for his resignation. “I cannot withhold . . . the hope,” he wrote, “that the bill . . . to modify the imperative statutory jurisdiction of the court may soon become a law, so that you may not be so burdened with unimportant cases as you now are, 86. Ibid., August 23, 1922. “I owe it to the country as well as to myself not to work on with my enthusiasms quite dead.” 87. Ibid., August 31, 1922. 88. Ibid., September 2, 1922. Day added that Clarke’s “best resource is the constant work of the Court,” precisely what Clarke considered so confining. 89. Ibid., August 31, 1922. Taft noted further that “Clarke was so contemptuous of McReynolds’ statements that he was going to retire that he would hardly make them himself without intending to carry them through.” 90. See Cooper, Battles on the Bench, 126.

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and so may have more time and strength for the consideration of the many causes of great public concern constantly coming before you, the decision of which is so fateful to our country.” 91 If, as will be recalled, Harding had let his first choice wait and wonder for almost a month, in 1922 the chief executive demonstrated no such doubt for his next selection. Harding did not even wait for Clarke’s resignation to take effect. Instead, upon receipt of Clarke’s letter, he sent his nomination to the Senate on the same day. That body did not even bother to refer it to a committee but unanimously confirmed his choice by voice vote only a matter of hours after it had been received. Who was this individual, and how can his incredibly favorable treatment both by the president and by the Senate be explained?

91. United States Supreme Court Reports, 67 Law. ed. (1922), 1224–25. See the following chapter.

3 New Arrivals, Ongoing Litigation, and New Statutes

1 Shortly after William Howard Taft was nominated to the center seat on the high court, he received a cordial telegram of congratulations sent by George Sutherland, a former two-term senator from Utah, a close friend of President Harding, and an old acquaintance of the new chief justice. Sutherland served in the Senate during Taft’s presidency, had supported much of his domestic legislative proposals, and had declined to join Theodore Roosevelt in the 1912 party split. Always a Republican, Senator Sutherland endorsed measures that suggest that the usual description of him as a rigid conservative may not be accurate. He favored the Postal Savings Bank bill, strongly endorsed the Nineteenth Amendment, and applauded workmen’s compensation for railroad workers, arguing that “the Due Process Clause did not stand in the way of what the enlightened minds of mankind now regard as just.”1 Nor, as will be seen, is a description of his jurisprudence as that of a hopeless conservative completely correct. Moreover he was well aware of the difficulties facing the high court in gaining better control over its docket. In the spring of 1921, shortly before the death of Chief Justice White, and more than a year before he was named to the Supreme Court, Sutherland wrote to the editor of the Central Law Journal, which had published an editorial noting the danger confronting the court “from its continually expanding docket.” The writer, observed Sutherland, “does not exaggerate the situation. While the Supreme Court has gained on the docket during the last few years, it has done so by decreasing the time for oral arguments, and perhaps in other 1. See the entry on Sutherland by Ellen Frankel Paul in Oxford Companion to the Su­ preme Court of the United States, edited by Hall, 848–49; also Joel Paschal, Mr. Justice Suther­ land: A Man against the State (New York: Greenwood, 1969).

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ways that curtail the time for discussion and consideration. This must result in lessening, to some degree, the quality of the work. It is a difficult situation.” Indeed Sutherland “saw no way to avoid it except by decreasing the number of cases which can go that Court.” This might be accomplished by “still further strengthening the circuit courts . . . and devolving upon them a larger measure of final jurisdiction.” 2 As will be seen Sutherland was prescient in his observations. On July 2, 1921, Taft had written a “Personal” response to Sutherland, thanking him for his “kind and generous telegram of congratulations.” He observed that “I look forward to having you on the bench with me. I know as you do that the President intends to put you there, and I know as you do that your coming on will strengthen the bench. Our views are much alike and it is important that they prevail.”3 All that Harding needed was another vacancy on the court, something John Clarke provided on September 5, 1922. The president did not even contact Sutherland, who was in Europe at the time. On September 13, however, he informed his friend that “since your departure for Europe you have been nominated and confirmed as a Justice of the United States Supreme Court.”4 For his part Taft had already sent Sutherland a warm letter of welcome. “Your capacity and qualification as a lawyer of course go without saying.” But the newest justice also had “that wealth of experience which two terms in the . . . Senate have given you, and the familiarity that you have acquired with the methods of business in the executive branch.” 5 Of course Taft did not “minimize at all the importance of having judges of learning in the law on the Supreme [Court],” nor could he, with colleagues such as Holmes and Brandeis. But “the functions performed by us are of such a peculiar character that something in addition is much needed to round out a man for service” on the court. He required “a sense of proportion derived from a knowledge of how Government is carried on, and how higher politics are conducted in the State. A Supreme [Court justice] must needs keep abreast of the actual situation in the country so as to understand all the phases of important issues which arise, with a view to the proper application of the Constitution, which is a political instrument in a way, to new conditions.” 6 2. George Sutherland Papers, Library of Congress, May 14, 1921. Hereafter cited as Sutherland Papers. 3. Ibid., July 2, 1921. 4. Ibid., September 13, 1922. “I suppose you know all about this without me having taken the time to communicate with you.” 5. Ibid., September 10, 1922. Here Taft could well have recalled his own varied background as appellate jurist, governor-general of the Philippines, and secretary of war, and of course his term as president of the United States. 6. Ibid. To what extent Taft actually practiced what he preached to Sutherland may be open to question. In one dissent draft (1922), Brandeis had written, “Our Constitution

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The Chief Justiceship of William Howard Taft, 1921–1930

The nomination, confirmation, and swearing-in of George Sutherland may well have set a record for efficiency. He was nominated in September 1922; in barely a month his commission was read in open court; and on October 2, having taken the required oath, he was seated on the bench. He settled into an amicable association with fellow conservative jurists Van Devanter and McReynolds, although he was not quite in the reactionary mode of the latter. Nevertheless Brandeis was “much disappointed in Sutherland. He is a mediocre Taft.” Holmes contented himself by predicting only that Sutherland “would be up to the average of the Court.”7 Taft had played no part in Sutherland’s selection or confirmation, which had been assured as soon as an opening on the court became available. Indeed he had assumed that Sutherland would replace Justice Day, whose retirement in the fall of 1922 was imminent. But Clarke’s sudden and unexpected— except to Justice Van Devanter—resignation in September altered Harding’s anticipated timetable. He would have two more positions to fill on the court within three months, and the former president intended to be involved in the selection process to an extent unprecedented in court history. It bears repeating that never before Taft’s appointment had a former president, and one with extensive administrative and judicial experience, sat on the Supreme Court. Even as Clarke resigned, Taft was well aware that besides Justice Day, Justice Pitney confronted retirement. Taft informed Elihu Root that Pitney “is so ill that he can never return to the Bench. He has Arter[ial] Sclerosis to such a degree that the retina in his eyes is affected. He has had one or two slight strokes, his heart is enlarged and he is suffering, too, from Bright’s disease.” He had not sat since the court adjourned for the summer of 1922, and “were he to come back and try to work, his physicians are confident that he would die.” 8

is not a strait-jacket. It is a living organism. As such it is capable of growth. . . . Because . . . [it] possesses the capacity of adaptation, it has endured as the fundamental law of an ever developing people.” Such sentiments were similar in tone to Taft’s comments to Sutherland, but he refused to join the dissent unless Brandeis deleted these three sentences, which Brandeis did. Yet he never ceased believing in what he had written, while Taft—especially in the second half of his tenure as chief justice—became more strident in his defense of the status quo. See Urofsky, Louis D. Brandeis, 580. 7. Urofsky, Louis D. Brandeis, 574; Holmes­Laski Letters, September 22, 1922, 3: 336. 8. Elihu Root Papers, Library of Congress, November 16, 1922. Hereafter cited as Root Papers. Taft added that he was going to approach the Senate Judiciary Committee to enable Pitney “to retire on his pension. He has served ten hard years on the bench, and all Congress has to do is to lift the requirement that he attain the age of seventy.” Taft’s assessment of the diligence Pitney applied to his work was echoed by other justices including Holmes and Brandeis. Apparently, Taft succeeded in his quest, and Pitney ultimately resigned in December 1922.

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Taft did not intend to wait and react to a proposed nominee. Rather he sought to ensure that Harding put forward only nominees who fit Taft’s criteria. He believed that a member of the Supreme Court should be committed to constitutional government, as understood by the legal classicists of his time: strong support for property rights, proper respect for the Fourteenth Amendment, and impressive credentials either as an attorney or legislator, or previous experience on the bench.9 Party affiliation was a secondary matter to Taft. Several of the appointments to the Supreme Court during his presidency came from the Democratic Party, although none of them were still alive when he became chief justice.10 Unique in his experiences before joining the court, Taft also benefited from his relationships with newly elected president Warren Harding and his attorney general, Harry Daugherty—a mediocre lawyer and a notorious Ohio Republican Party hack. Well aware of his own substantial limitations, Daugherty “needed reliable help and advice, particularly in such matters as judicial nominations.”11 And he quickly concluded that Taft, a former president and newly confirmed as Harding’s first high court nominee, was well qualified to provide such counsel. After all Taft had all but said so himself. Shortly after Harding’s inauguration, Taft wrote to Daugherty that “if you don’t mind it, my interest in the Federal Judiciary, where I know something of the situation, makes me anxious to give you benefit of what I have learned from considerable experience.” Of course, he hastened to add, “I am not butting in, but I am only testifying, without any personal slant, and only with a view of helping if I can.” Daugherty, who had encountered severe senatorial turbulence before he was confirmed as Harding’s attorney general, responded a few days later that “I want you at all times to feel free to make suggestions.”12 But Taft was not content with Daugherty’s assurance that his suggestions were always welcome. He was eager for Daugherty to realize the necessity for outstanding jurists. As the partisan attacks on the attorney general showed little sign of abatement, a bill providing for additional federal judges among other things was headed for passage by Congress. To be discussed shortly, the 9. “Holmes,” observed Taft, “would have made a good deal better judge, profound as his knowledge of the law is, and accurate and happy as his power of judicial expression is, if he had had some dealing with affairs in a legislative or executive capacity.” Charles Taft Papers, March 7, 1926. See also Robert Taft Papers, March 7, 1926. 10. Joseph Lamar, Horace Lurton, and Edward White were all Democrats, but all were named to the high court by Taft. 11. David Danelski, A Supreme Court Justice Is Appointed (New York: Random House, 1964), 27. 12. Ibid., 33–34. Taft was being more than a tad disingenuous here. So concerned was he to ensure that the “right” type of nominee was selected, the former president was fully prepared to go around Daugherty and to communicate directly with Harding as he did in several instances.

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pending statute authorized the appointment of two dozen additional district judges, albeit on a temporary basis. Barely a year into Harding’s presidency, Taft warned that both the president and Daugherty “will be on trial in respect to the men who are selected,” and he was “greatly concerned” over the ultimate choices. He advised Daugherty that “it will cost a great deal of effort to resist the rapacious demands of Senators and Congressmen for particular favorites who are not fitted, many of them, to be judges.”13 “I urge,” added Taft, “that . . . judges shall be selected not by agreement between political quantities but on their merits.” In regard to investigating the quality of a suggested nominee, “Judge Van Devanter . . . will be at your service where you desire it. He could make investigations that possibly you could not through sources peculiarly open to him.” An excellent way in which Daugherty could confound his critics “is through the selection of the highest standard of men for these . . . additional judges.” Taft concluded by emphasizing that “I am deeply concerned in your welfare and in your success, and in that of the Administration, and what I have written is out of a full heart and with a fairly competent knowledge and experience in the particular field to which I am referring.”14

2 With Taft and Sutherland safely ensconced on the bench, the chief justice considered that a Democrat would be appropriate for Harding’s third nomination (counting himself ). Time was short as Justice Day was to retire in November 1922. With only two Democrats out of nine on the current court (McReynolds and Brandeis), Taft looked around for a Democrat “of sound views.”15 This automatically excluded candidates similar to McReynolds, too reactionary, or Brandeis, too liberal.16 Thus a judge such as Learned Hand was unacceptable,

13. Taft to Daugherty, June 5, 1922, letter in Van Devanter Papers, 1922. 14. Taft relied on Van Devanter more than any other member of the court for making unofficial inquiries about certain possible nominees to the bench. Apparently neither he nor Van Devanter saw anything inappropriate in such extrajudicial activities. Indeed, Taft went much further, and William Ross did not exaggerate when he wrote that especially in the first half of Taft’s tenure, “the chambers of the Supreme Court were no cloister but the center of the former president’s active political network.” See William Ross, A Muted Fury: Populists, Progressives, and Labor Unions Confront the Courts, 1890–1937 (Princeton, N.J.: Princeton University Press, 1994), 242. 15. Danelski, 43. 16. In addition to McReynolds’s constitutional views, which even Taft considered too reactionary, the new chief justice considered his colleague “selfish to the last degree . . . fuller of prejudice than any man I have known, and one who seems to delight in making others uncomfortable. He has no high sense of duty. He has a continual grouch . . . and really seems to have less of a loyal spirit to the Court than anybody.” Helen Taft Manning Papers, Library of Congress, June 11, 1922. Hereafter cited as Manning Papers.

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even though Taft had placed him on the U.S. district court. “[H]e turned out to be a wild Roosevelt man and a progressive, and though on the Bench, he went into the campaign.” If Harding appointed Hand, “he would most certainly ride herd with Brandeis and be a dissenter. I think it would be risking too much to appoint him.”17 Taft’s former attorney general George Wickersham, now in practice with Taft’s brother, floated the name of Judge Benjamin Cardozo but promptly questioned the feasibility of such a choice. “It would not do to have two Jews on the Supreme Court.”18 But Taft had two other candidates whom he considered viable. Both were conservative Democrats with extensive legal experience. Indeed one of them—John W. Davis—had followed Taft into a term as U.S. solicitor general, albeit many years later. Davis also had served in Congress and had been U.S. ambassador to Great Britain. Yet in 1922 Davis had just returned to private life after a decade in public service. Nevertheless he was both Taft’s and Van Devanter’s first choice for a recommendation to Harding, and on October 28 Van Devanter wrote to Davis urging him to accept such an appointment were it offered and implying that Davis could probably count on it if he so desired. “If I were making the appointment,” observed Chief Justice Taft, “I would appoint John Davis.”19 Three days later the former ambassador turned Van Devanter down. Davis sought not wealth but economic independence, something that “seems to be measurably within my grasp. My surroundings are pleasant, my partners are both able and loyal and our clientele of a very satisfactory character.” Moreover “my associates, who invited me into their company on generous terms, seem to think my continuance with them a matter of consequence.” Were it his choice, Davis “would prefer not to receive a tender of a place on the bench.” If the appointment were made “at this particular moment, I feel that I could not do otherwise than decline.” 20 Unlike Sutherland, whose close friendship with Harding had virtually assured him of a nomination once one became available, there were a number of possible candidates—all replete with their supporters and detractors—scrambling to take Justice Day’s seat when he retired. Taft was particularly concerned 17. Danelski, 46. 18. Ibid. Presumably in 1922 Wickersham considered the single Jewish justice, Brandeis, bad enough. One wonders how he would react to the Supreme Court of 2018, replete with an African American, three women, and three Jewish justices. Later, with both Taft and Harding deceased, another Republican president appointed Cardozo to replace Justice Holmes in 1932, to universal acclaim. As for Holmes, Taft preferred a judge with extensive political experience, something lacking in his old colleague, who “proceeds as if the American Constitution were as malleable as the British Constitution.” Ibid., 42. 19. Ibid., 43. 20. Van Devanter Papers, October 31, 1922. Two years later Davis reluctantly accepted the Democratic presidential nomination, only to be defeated by Calvin Coolidge.

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with the candidacy of Martin Manton, a young circuit court judge from New York. A Roman Catholic staunchly allied with Tammany Hall and the Brooklyn Democratic machine, according to Taft, Manton had benefited from an intensive campaign orchestrated by the hierarchy of the Catholic Church in New York City.21 Archbishop Patrick Hayes “should be ashamed of himself for pressing Manton . . . a shrewd, cunning, political judge.” In a candid letter to Elihu Root, he described Manton as “an ambulance chaser . . . an owner of nine laundries, and runs a little trust by himself, in that he is a politician down to the ground, and a most undesirable and undignified appointment for our Court.” 22 Taft candidly explained to Root that “in order to get a good man, and to present such influence from being formidable, we had to start up a barrage in favor of Pierce Butler, who is in every way worthy of our Court.” 23 Potential support for Manton from the eastern Catholic Church establishment might be neutralized by galvanizing western Catholic enthusiasm for Butler. Two days later Root responded and confirmed Taft’s negative impressions of Manton. He represented, according to the former secretary of war, “one of Wilson’s worst appointments.” Moreover he possessed “neither the respect of the bar nor the confidence of the public.” Indeed “he is purely a product of intrigue and if people get that idea of the Supreme Court they will smash the whole outfit.” 24 Taft had expressed the hope to Root that “we have got the thing into a situation where Butler will be appointed,” and four days later Harding did just that. Although Butler’s nomination met with some Senate resistance—more strident than persuasive—he was confirmed in mid-December 1922.

21. Wilson had appointed Manton first to the United States district court in 1916, elevating him to the circuit court two years later. 22. Danelski, 45; Root Papers, November 19, 1922. 23. Ibid. The unusual career of Pierce Butler, a native of Minnesota, a devout Catholic, self-taught attorney, and conservative Democrat, is well described by Danelski. This book also presents the best analysis of the very complex but ultimately successful tactics employed by Taft to bring about his nomination. Essentially he looked for a Catholic alternative to Manton. The fact that another Catholic lawyer—well known to both Taft and Van Devanter—was available resulted in Butler being the right man with the right credentials affiliated with the right party at the right time. With probable understatement Taft wrote his daughter, “Butler is a Democrat and a Catholic, and both circumstances seem to fit in at present. I recommended him as well as I could to the President, and I think perhaps that had some influence.” Manning Papers, November 26, 1922. See also David Stras, “Pierce Butler: A Superb Technician,” Vanderbilt Law Review 62 (2009): 695–756. 24. Danelski, 63. It remains only to observe that in 1939 Manton was forced to resign from the circuit court and stood trial for multiple counts of bribery. He was convicted, and his conviction was upheld by a special panel of his old court, including Justice Sutherland, now retired. Apparently the first federal judge ever convicted of accepting bribes, he served some seventeen months in a federal prison.

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In great measure Taft’s well-coordinated machinations on Butler’s behalf succeeded because of Harding’s notorious insecurity when dealing with judicial appointments. Not a lawyer himself, he relied to an excessive degree on Taft, who described his efforts in vetting possible judicial appointments for Harding’s administration as “a labor of love.” 25 As a nonlawyer Harding could only respect Taft’s background and credentials. Further, while Taft “cleaved in theory to a creed of legal formalism, in practice he was the consummate legal realist.” 26 Thus for the most part Harding relied on his advice in judicial nominations. Indeed Professor David Danelski, who has closely studied the Butler nomination, was correct when he wrote that while Taft by no means controlled the nominating process, “it did mean that if he objected to a particular candidate, that candidate had practically no chance of nomination.” 27 But Taft remained concerned about Harding’s need to find yet a fourth nominee to his court, this one to replace Pitney, whose retirement was scheduled for December 31, 1922. Early in December Taft wrote to Root that “we ought to be able to get a strong man and a Republican . . . with youth and vigor. Who is there?” Taft had also expressed his ongoing fear that “it would be too bad to have Harding put on our bench a man who would side with Brandeis in criminal questions.” 28 Less than three weeks later, Taft informed Root that Harding would probably nominate a respected Tennessee district court judge Edward Sanford to fill Pitney’s seat. Sanford had graduated from the University of Tennessee at the age of eighteen with two degrees and had gone on to receive a third degree at Harvard and two more from Harvard law school. Lucid and literate, as well as one of the first editors of the Harvard Law Review, from 1908 to 1923 he sat on the federal bench but also supported the League of Nations and the Versailles Treaty, two causes also dear to Taft.29 Yet as late as December 21 apparently Taft was not totally convinced about Harding’s ultimate choice. He commented to Root about Henry Stimson, his former secretary of war, as a possibility for appointment. “There are a great many reasons why Stimson would make a good judge.” Indeed “the only thing I know against [him] is his good opinion of [Felix] Frankfurter.”30 Yet “I suppose it does not indicate an unsoundness of view as to the Constitution on 25. Ibid., 177–78. 26. W. Ross, Muted Fury, 242. 27. Danelski, 177. 28. Root Papers, December 2, 1922. 29. See The Supreme Court Justices: Illustrated Biographies, 1789–1993, ed. Clare Cushman (Washington, D.C.: Congressional Quarterly Press, 1991), 357–59; Root Papers, December 21, 1922. “Sanford’s appointment would be entirely satisfactory. He is a charming man.” Manning Papers, January 21, 1923. 30. Ibid., December 21, 1922. “I never liked Frankfurter, and have continued to dislike him the more I have known him.” One suspects that such sentiment was widely reciprocated by the Harvard law professor.

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Stimson’s part. . . . I know you can give me assurance . . . that he is not in favor of breaking down the Constitution, or making it a mere scrap of paper. . . . On the other hand, I feel we ought not to have too many men on the Court who are as reactionary on the subject of the Constitution as McReynolds, and that we need men who are liberal but who still believe that the cornerstone of our civilization is in the proper maintenance of the guaranties of the 14th Amendment.” 31 A few weeks later Harding nominated Sanford to the high court, his final appointment. Certainly Taft had reason to be satisfied with Harding’s choices overall, of course including himself. But in retrospect his gratification was due to an unusual confluence of circumstances: Taft’s background, different from any past or current high court member; Harding’s need for subtle guidance concerning his judicial nominations; and finally the presence of Harry Daugherty as attorney general. In barely a year, however, this confluence would be shattered. Harding died in August 1923, and early in 1924 Daugherty was forced to resign his office by President Calvin Coolidge. Although both chief executives who followed Harding treated Taft with the respect due his office, the relationship that had existed between Harding and Taft was never replicated. Though not trained in law school, Coolidge had been a successful attorney before politics intervened, while Hoover, a self-made millionaire as a mining engineer, felt no need to rely on Taft as had Harding.

3 Even as these new appointments took their seats on Taft’s court, the process of hearing and deciding cases was ongoing. The 1922–23 term saw the justices tackle yet another in the series of cases spawned by American involvement in WWI. Early in 1923 they heard arguments concerning the validity of a statute passed by Nebraska that forbade the teaching in any language other than English. The statute applied to teachers in any “private, denominational, parochial or public school.” Robert Meyer had been convicted of using a German Bible as a source for teaching reading in a parochial school. In an intriguing split the archconservative Justice McReynolds spoke for seven of his brethren and declared the statute in violation of the Fourteenth Amendment, while Justice Holmes, by now a hero to the progressives, dissented—joined by newly appointed Justice Sutherland.32 Impressive though McReynolds’s conclusion might be, in fact his decision reflected his rigid conservative viewpoint. He simply reiterated the long31. Taft’s comments represent an excellent example of what William Wiecek has well described as “classical legal thought.” See Wiecek, Lost World of Classical Legal Thought. 32. Meyer v. Nebraska, 262 U.S. 390 (1923). “We are engaged,” observed Taft to his daughter, “in correcting the constitutional errors of some of the State Legislatures.” Manning Papers, June 11, 1923.

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established doctrine vital to classical legal thought. He insisted that the liberty mentioned in the Fourteenth Amendment could not be interfered with “under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the state to effect.”33 In support of his assertion that Meyer’s teaching was a property right, McReynolds cited a number of earlier decisions such as Lochner v. New York, or Truax v. Corrigan, that serve as excellent examples of that conservative viewpoint previously mentioned. But intentionally or not he had broadened the reach of the amendment beyond business to include some aspect of freedom of speech. Progressive court observers were less than impressed with McReynolds’s decision. After all, the previous examples of judicial conservatism were still in place, still represented valid law, and were unaffected by the Meyer holding. Felix Frankfurter put it very well when he observed that the hysteria that led to a statute such as the one invalidated in Nebraska could well subside, leading to repeal by a future legislature. “But when the Supreme Court strikes down legislation [protecting] trade unions, or enshrines the labor injunction into the Constitution . . . we are faced with action more far reaching, [and] ever so much more durable and authoritative than even the most mischievous of repealable state legislation.”34 The source for McReynolds’s holding may have come from none other than his colleague Justice Brandeis. Three years earlier the court had affirmed the constitutionality of a 1917 Minnesota statute that Brandeis claimed in dissent was actually a statute “to prevent teaching that abolition of war is possible.”35 Brandeis had concluded his dissent by emphasizing, “I cannot believe that the liberty guaranteed by the Fourteenth Amendment includes only liberty to acquire and to enjoy property.” In his Meyer opinion and without any mention either of Brandeis or his dissent, McReynolds apparently agreed and expanded the reach of the amendment beyond business-related issues. Both Brandeis and Taft silently concurred with McReynolds, but not Justice Holmes. Holmes, already well known for his tendency to tolerate state legislative action to the greatest extent possible, saw nothing unreasonable in the desire that all American citizens “should speak [in] a common tongue.” Thus he could not bring himself to believe that the Nebraska “statute might not be regarded as a reasonable or even necessary method of reaching the desired result.” Of course he could appreciate the opposition to the statute, “but it appears to me to present a question upon which men reasonably might differ; and therefore I am unable to say that that the Constitution . . . prevents the 33. Meyer, 400. 34. See Felix Frankfurter on the Supreme Court, ed. Kurland, 176. “We must not forget that a heavy price has to be paid for these occasional services to liberalism.” 35. Gilbert v. Minnesota, 254 U.S. 325, 343 (1920).

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experiment [from] being tried.”36 On the other hand Holmes was inconsistent in this dissent. Earlier in his famous Abrams dissent (1919), he had denied that “Congress could punish criticism of the war that did not demonstrably harm the government.” How could he now “conclude that the state legislatures could ban the teaching of foreign languages in the absence of any real evidence that such instruction” represented a clear and present danger that he had required but not found in Abrams? 37 Shortly after Meyer was announced, Taft spoke for a unanimous court in a case that not only typified legal classicalism, but included Holmes and Brandeis in silent acquiescence. The case of Charles Wolff Packing Co. v. Court of Industrial Relations also serves as a good example concerning the fate of progressivism in the 1920s.38 The case involved a statute enacted by Kansas in 1920 establishing a court of industrial relations. The law had been promoted by Governor Henry Allen, a former Bull Moose supporter in 1912. Like Theodore Roosevelt, Allen invoked the public interest while dealing with a coal strike in the middle of winter and assembled a sort of volunteer army to mine coal during the work stoppage.39 Believing that the public interest was ill served if not ignored in conflict between labor and management, he urged compulsory arbitration in future labor disputes. In cases involving food, clothing, and fuel, the resulting statute barred the right to strike, while management forfeited the right to lock out employees. Further this new tribunal could also “fix wages and oversee working conditions.” 40 The statute was objectionable to both owners and their workers, but for different reasons, and Taft had no difficulty holding the statute unconstitutional. Counsel for Kansas called attention to the earlier case of Wilson v. New (1917). In it a divided court had concluded that “in a nation-wide dispute over wages between railroad companies and their operatives, with a general strike, commercial paralysis, and grave loss and suffering overhanging the country, Congress had power to prescribe wages,” and further that railroading was “a public business because of the interest of society in its continued operation and rightful conduct,” resulting in a “public right of regulation to the fullest

36. While Holmes dissented without opinion in Meyer, in a similar case decided the same day, he filed a dissent, the reasoning of which applied equally to Meyer. See Bartels v. Iowa, 262 U.S. 404, 412 (1923). Although Holmes’s friend and close correspondent Harold Laski had written that he “wait[s] eagerly to see your dissent in the Nebraska language case,” Holmes replied, “I didn’t think the dissent on teaching languages worth sending.” Holmes­Laski Letters, 1: 365. 37. See William Ross, Forging New Freedoms: Nativism, Education and the Constitution, 1917–1927 (Lincoln: University of Nebraska Press, 1994), 132–33. 38. 262 U.S. 522 (1923). 39. Urofsky, Louis D. Brandeis, 691. 40. Oxford Companion to the Supreme Court of the United States, ed. Hall, 916.

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extent necessary.” 41 But this case had been decided in 1917, whereas the Kansas litigation arose in 1923. Fully familiar with the justification for the earlier decision (he had served as cochair of the National War Labor Board in 1918), Taft was no longer as sympathetic to the exigencies of war as he had been five years earlier.42 Wilson concerned “an interstate common carrier in the presence of a nation wide emergency and the possibility of great disaster. Certainly there is nothing to justify extending the drastic regulation sustained in that exceptional case to the one before us.” Indeed “it is enough to say that the great temporary public exigencies recognized and declared by Congress were very different from that upon which the control under this act is asserted.” 43 One intriguing aspect of the Wolff case is that both Brandeis and Holmes silently concurred in Taft’s decision. A possible explanation for their action may be found in an editorial in the New Republic drafted by Felix Frankfurter. In a perverse sort of way he endorsed the holding even as he objected to Taft’s decision. He believed that “compulsory arbitration is not the way to solution of our industrial difficulties.” Moreover, while Frankfurter welcomed the “death of the Kansas Industrial Court, it was for the legislature of Kansas, and not for the Supreme Court to kill it.” The Wolff decision affirmed labor’s right to strike, but given other high court holdings hostile to unions, “it is largely a paper right.” The Taft court essentially affirmed the right of unions to exist, “while in practice fighting their existence.” Of course they “must wholeheartedly be admitted into our social scheme,” but at the same time “be subject to social and legal responsibility.” 44 In another civil rights case, Holmes and McReynolds had reversed their roles, with Holmes writing for the court, and McReynolds submitting a dissent reflecting both irritation and indignation.45 Arising in Arkansas Moore v. Dempsey involved the all-too-familiar scenario of blacks attacked by a white mob with not unexpected violence and bloodshed. At least five Negroes were indicted and tried in an atmosphere more akin to mob dominance than due process. While a lawyer was “appointed” to represent the five accused, no witnesses were called on their behalf, nor did they have the chance to testify. The trial lasted for about forty-five minutes with predictable results, five death sentences. Numerous appeals followed, and the one before Taft’s court was based on the dismissal by a federal district court of a petition for a writ of habeas corpus.

41. 42. 43. 44. 45.

Wilson v. New, 243 U.S. 332, 347 (1917). Lurie, William Howard Taft, 184. Wilson, 542, 544. See Felix Frankfurter on the Supreme Court, ed. Kurland, 141–42. Moore v. Dempsey, 261 U.S. 86 (1923).

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Holmes conceded that in normal criminal trials, assuming that corrective processes supplied by the state are adequate, “interference by habeas corpus ought not to be allowed.” Indeed “it certainly is true that mere mistakes of law in the course of a trial are not to be corrected in that way.” But if a judicial proceeding is “a mask,” where all parties involved “were swept to the fatal end by an irresistible wave of public passion,” such cannot “prevent this court from securing to the petitioners their constitutional rights.” 46 Careful to confine his comments to this narrow question, he added “it does not seem to us sufficient to allow a [federal district judge] to escape the duty of examining the facts for himself,” when if true, they might “make the trial absolutely void.” Without mentioning, of course, that such could conceivably be the case here, Holmes concluded by observing that it was “unavoidable that the district judge should find whether the facts alleged are true, and whether they can be explained so far as to leave the state proceedings undisturbed.” 47 In dissent McReynolds, joined by Justice Sutherland, synthesized his innate racism with objection to Holmes’s application of a more searching judicial scrutiny concerning state criminal procedures as well as a concern with and for effective federalism. “ The fact,” he wrote, “that petitioners are poor and ignorant and black naturally arouses sympathy; but that does not release us from enforcing principles which are essential to the orderly operation of our Federal system.” He added that certainly these defendants “have not been rushed towards the death chair.” 48 The Moore decision certainly represented progress beyond the 1915 Frank holding. In this case Holmes had dissented when his colleagues rejected a writ of habeas corpus in the notorious circumstances at the heart of Frank v. Magnum.49 Sentenced to death Leo Frank saw his sentence commuted by the state governor to life in prison, only to be lynched by a mob. One suspects that Holmes was more than willing to distinguish the earlier holding, to which he devoted only two sentences. The Moore case, however, may well have been more an exception to the Taft court’s attitude toward civil rights in general, rather than a harbinger of change especially during the first few terms. More typical and consistent, for example, had been the unanimous opinion concerning Japanese citizenship handed down in Ozawa v. United States some months earlier.50 Justice Sutherland observed that the plaintiff had been a resident of the United States for more than twenty years, had been educated at the University of California, had educated his children in American schools, had attended American churches, and had maintained English as the language of choice in 46. 47. 48. 49. 50.

Ibid., 90. Ibid., 92. Ibid., 101–2. 237 U.S. 309 (1915). Ozawa v. United State, 260 U.S. 178 (1922).

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his home. “That he was well qualified by character and education for citizenship is conceded.” 51 A nationalization statute in effect since 1790, however, stated that “the provisions of this title shall apply to aliens [being free white persons] and to aliens [of African nativity] and to persons of African descent.” Ozawa argued that this section (2169) did not carry over into a new statute adopted in 1906 establishing a uniform rule of naturalization. No less an advocate than George Wickersham, Taft’s former attorney general and recipient of an offer from that president to join the very court before which he now argued, represented Ozawa. Wickersham insisted that the term “free white persons” simply means one not black, not a Negro, which does not exclude Japanese. Further he argued that there was no evidence prior to 1906 that “the Japanese were intended to be excluded.” But Wickersham failed to cite any evidence of congressional intent, let alone action, to alter 2169, and the 1906 statute had left it undisturbed. “It is inconceivable,” opined Justice Sutherland for a unanimous court, “that a rule in force from the beginning of the government . . . welded into the structure of our national policy by a century of legislative and administrative acts and judicial decisions would have been deprived of its force in such dubious and casual fashion.” 52 Moreover the issue was not that “Negroes and Indians shall be excluded, but rather in effect, that only free white persons shall be included.” It is less important to note whom the statute excluded, and much more important to recognize whom its framers “intended to include; and having ascertained that, it follows as a necessary corollary, that all others are to be excluded.” 53 Finally Sutherland insisted that “there is not implied—either in the legislation or in our interpretation of it—any suggestion of individual unworthiness or racial inferiority. These considerations are in no way involved.” 54

51. But, as will be seen, less than helpful, Ozawa, 189. 52. Ibid., 193–94. 53. Ibid., 195–96. Here, Sutherland simply followed a well-known canon of statutory construction: where specific groups are mentioned in the statute, by implication other groups not mentioned are excluded. 54. Ibid., 198. Nicholas Murray Butler, Columbia University president and director of the Carnegie Endowment for International Peace, forwarded a letter to Sutherland from Ti Miyacka. He had written that “there was a disappointment and the pride of the Japanese people, sensitive as it always is, was deeply wounded.” On the other hand, “we may say that the consensus of intelligent public opinion of Japan is not in any way to blame the United States Supreme Court for not adopting a more liberal interpretation of the Fourteenth Amendment . . . , but to expect that Congress will at the appropriate moment take legislative action in the right direction. For that purpose the sentiment of the people of the United States must be trained and prepared for decades.” Sutherland Papers, January 10, 1923.

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A similar respect for congressional policy was exercised again by Sutherland in the twin cases of Massachusetts v. Mellon and Frothingham v. Mellon.55 They involved an effort by Massachusetts and a resident of the same state seeking to enjoin enforcement of a federal statute. It provided federal funds to states on condition that they comply with the Maternity Act, a 1921 enactment intended to reduce maternal and infant mortality. For a unanimous court Sutherland dismissed the cases “for want of jurisdiction, without considering the merits of the constitutional questions.” The commonwealth claimed that in adopting this statute, Congress had “usurped the reserved powers of” the states, even though the law offered assistance only if the states chose to accept it. In fact “nothing has been done and nothing is to be done without their consent.” 56 Under such conditions no rights of the state have been violated, and “abstract questions of political power, of sovereignty” do not fall within the scope of judicial authority. Massachusetts could point to no damage, injury, or legal wrong caused by this statute. Nor could it show how the law challenged state sovereignty. The complaint of Harriet Frothingham rested on equally flimsy premises. She claimed that federal appropriations to fund the act for “an illegal purpose” would “increase her burden of future taxation, thus taking her property without due process of law.” Sutherland confessed that such a claim “has never been passed upon by this Court,” and for good reason. Frothingham’s “interest in [federal] moneys . . . is shared with millions of others; is comparatively minute and indeterminable; and the effect upon future taxation of any payment out of the funds so remote, fluctuating, and uncertain that no basis is afforded for an appeal to the preventative powers of a court of equity.” 57 Moreover “if one taxpayer may champion and litigate such a cause, then every other taxpayer may do the same . . . not only in respect to the statute here . . . but also in respect of every other appropriation act . . . whose administration requires the outlay of public money. . . . The bare suggestion of such a result, with its attendant inconveniences” was more than sufficient to indicate that her suit “cannot be maintained.” Nor could Frothingham point to any high court precedent sustaining her contention. She lacked sufficient standing to prosecute her case. Although Sutherland had said that no consideration on the merits was warranted, he could not resist pointing to what would be required for Frothingham to prevail in such a case. She “must be able to show not only that the statute is invalid, but that [s]he has sustained or is immediately in danger of sustaining some direct injury as a result of its enforcement, and not merely 55. 262 U.S. 447 (1923). 56. Ibid., 483. 57. Ibid., 487.

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that [s]he suffers in some indefinite way in common with people generally.” Looking to the substance of her complaint, “it is merely that officials of the executive department . . . are executing and will execute an act of Congress asserted to be unconstitutional; and this we are asked to prevent.” 58

4 It will be recalled that in the previous term Taft had spoken for a unanimous court holding the Futures Trading Act unconstitutional. He had stated that in and of themselves grain futures contracts are beyond congressional regulation “unless they are regarded by Congress, from the evidence before it, as directly interfering with interstate commerce as to be an obstruction or a burden thereon.” 59 Congress duly noted this obvious “escape clause” and promptly enacted the Grain Futures Act—basing it on congressional authority to regulate interstate commerce. With understandable confidence, the Chicago Board of Trade filed suit to block the statute on the basis of the earlier decision. But Taft declined to do so and had no difficulty in quoting himself. The new statute, he noted, differed from the earlier version “in having the very features the absence of which we held, in the somewhat carefully framed language of the foregoing, prevented our sustaining the earlier statute.” The enactment at issue here concluded that futures contracts “have become a constantly recurring burden and obstruction” to interstate commerce. Such a conclusion was the basis for the new law, and what had been “an authority against the earlier enactment” was now an “authority in its favor.” 60 Liberally quoting from his own earlier opinion in Stafford v. Wallace, Taft again paid tribute to the Holmes decision in Swift and Co. v. United States, calling it “a milestone in the interpretation of the commerce clause.” 61 These earlier holdings controlled this case. Indeed the sales on the Board of Trade “are just as indispensable to the continuity of the flow of wheat from the West to the mills . . . of the east . . . as are the Chicago sales of cattle to the flow of stock towards the feeding places and slaughter and packing houses of the East.” He even equated his holding in Stafford with the landmark decision of Munn v. Illinois (1876). “We find no difficulty in concluding that the . . . Board of Trade is engaged in a business affected with a public national interest, and is subject to national regulation as such.” 62 58. Ibid., 488. “To do so would be . . . but to assume a position of authority over the governmental acts of another and co-equal department—an authority which plainly we do not possess.” For ongoing relevance of the Frothingham case, see Kathleen Sullivan and Gerald Gunther, eds., Constitutional Law, 15th ed. (New York: Foundation, 2004), 64. 59. Hill v. Wallace, 259 U.S. 44 (1922). 60. Board of Trade v. Olsen, 262 U.S. 1, 32–33 (1923). 61. See Swift and Co. v. United States and Stafford v. Wallace. 62. Board of Trade v. Olsen, 41. McReynolds and Sutherland dissented without opinion. Neither Board of Trade v. Olsen nor Munn has been overruled to this day. “I think,” wrote

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5 It might be recalled that between 1901 and 1904 while Taft was still serving in the Philippines as governor-general, the Supreme Court had handed down decisions in several instances that together are known as the Insular Cases. Collectively they made the point that regardless of the specific wording in a particular statute that might point toward a contrary conclusion, Congress had never intended to apply full constitutional standards to “territory belonging to the United States [but] which has not been incorporated into the Union.” 63 Thus neither the Philippines nor Puerto Rico “had been incorporated in[to] the Union or become a part of the United States, as distinguished from merely belonging to it.” Further the original acts of Congress establishing temporary governments in both territories “had no such effect.” 64 In 1917, however, Congress enacted a statute “to provide a Civil Government for Puerto Rico,” and in 1922 the Taft court had occasion to reconsider the holding originally announced in the Insular Cases some twenty years earlier. The case of Balzac v. Puerto Rico arose when a defendant in a criminal libel case demanded a jury trial in accordance with the Sixth Amendment to the Constitution, and further claimed that his supposed libels were in fact speech that was “protected by the First Amendment.” 65 Counsel for Balzac further argued that the 1917 statute had enacted legislation “incorporating Puerto Rico into the Union.” For a unanimous court Taft disagreed. He noted that this enactment “does not contain any such clause which declares such purpose or effect.” 66 Taft declined to infer “an intention to incorporate in[to] the Union these distant ocean communities of a different origin and language from those of our continental people.” If and when Congress decided to take such a step, it would be done “deliberately and with a clear declaration of purpose, and not left a matter of mere inference or construction.” 67 Taft to his son Robert, “I have carved out a view of interstate commerce which is useful for the purpose of bringing within Congressional control the real centers of our interstate and foreign commerce. How valuable in results that control by Congress may be we cannot guarantee—that is not our business—but we shall have put the power where in substance and real effect under the Constitution it ought to be.” Robert A. Taft Papers, April 16, 1923. 63. See Downs v. Bidwell, 182 U.S. 244 (1901), Hawaii v. Mankichi, 190 U.S. 197 (1903), and Dorr v. United States, 195 U.S. 138 (1904). 64. Ibid. 65. Balzac v. Puerto Rico, 258 U.S. 298 (1922). 66. Ibid., 306. “Had Congress intended to take the important step of changing the treaty status of Puerto Rico . . . it is reasonable to suppose that it would have done so by the plain declaration, and would not have left it to mere inference.” 67. Ibid., 311. To be sure, “the Constitution . . . is in force in Puerto Rico. . . . The Constitution, however, contains grants of powers, and limitation which, in the nature of things, are not always and everywhere applicable.” Ibid., 312.

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The justices did not spend a great deal of time deliberating on Balzac. Argued on March 22, 1922, the case was decided barely three weeks later, on April 10. It has not yet been overruled. Thus although Puerto Ricans are indeed U.S. citizens, their territory remains outside of our federal Union, according to the former secretary of state for Puerto Rico, “because a court of segregationist judges could not conceive of a faraway island inhabited by Hispanics, rather than Anglo-Saxons, to be part of this Nation even if they were American citizens.” The legacy of Balzac, added Kenneth McClintock, “is an anomaly of the U.S. Constitutional system. America should not accept a lesser class of American citizenship for Puerto Ricans as it was once acceptable to have a lesser class of American citizenship for African Americans and women.” 68 Before turning to Taft’s role in nurturing reform in judicial administration, mention must be made of another example that illustrates the Taft court’s not infrequent narrowness of perspective; the well-known case that Melvin Urofsky has described as the “clearest expression” of classical legal thought.” Such a case reflected, he wrote, (a) “a complete disregard for the real world in which a minimum wage has been deemed necessary,” (b) an assumption that courts “were better equipped to judge the wisdom of policy” rather than the legislature that had adopted it, (c) an emphasis on legal formalism “which elevated rules, especially those relating to freedom of contract, to a sacrosanct position,” and (d) “an unrelenting opposition to government intervention in the market.” 69 For a bare majority of the court Sutherland struck down a minimum wage statute applicable to Washington, D.C.70 Freedom of contract was “the general rule and restraint the exception,” one certainly not warranted here. Sutherland’s opinion was simply a rehash of numerous prior court decisions affirming liberty of contract. Noteworthy however are the two dissents, one written—not unexpectedly—by Holmes. It was preceded however by a rare dissent from Taft, whose attitude toward dissent has already been mentioned. Given Taft’s expressed sympathy with Sutherland’s jurisprudential values, the question why he would publicly disagree in this case is of interest. Taft sounded very much like Holmes and Brandeis when he warned against “suggesting a distinction that is formal rather than real.” Moreover “it is not the function of this court to hold congressional acts invalid simply because they are passed to 68. Cited on Facebook, November 29, 2012, https://www.facebook.com/notes/ Kenneth-d-mcclintock/tear-down-that wall. 69. Adkins v. Children’s Hospital, 261 U.S. 525 (1923); Urofsky, Louis D. Brandeis, 594, 596. 70. Had Brandeis not recused himself because his younger daughter worked for the D.C. Minimum Wage Board, there is no doubt that the decision would have been five to four, instead of five to three.

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carry out economic views which the court believes to be unwise or unsound.”71 Yet Taft added that “but for my inability to agree with some general observations in the forcible opinion of . . . Justice Holmes . . . I would be silent, and merely record my concurrence in what he says.” His unwillingness to do so raises the intriguing question of what Holmes wrote that his chief found unacceptable? Several possible points from the Holmes dissent may be cited. In the first place Holmes asserted that the power of Congress in this minimum wage case “seems absolutely free from doubt.” Reflecting his long-held hostility to liberty of contract, he added that “pretty much all law consists in forbidding men to do some things that they want to do, and contract is no more exempt from law than other acts.” Taft also may have objected to Holmes’s certainty that “it seems to me impossible to deny that the belief in [the legitimacy of minimum wage legislation] “reasonably may be held by reasonable men.” Further Holmes insisted that “the criterion of constitutionality is not whether we believe the law to be for the public good.” 72 Finally Holmes vindicated restrictive legislation such as minimum wage laws, even as he added that “I should have my doubts, as I have them about this statute; but they would be whether the bill that has to be paid for every gain, although hidden as interstitial detriments, was not greater than the gain was worth—a matter that it is not for me to decide.” 73 One suspects that Taft objected less to Sutherland’s judicial values than to the fact that in his decision he roiled the waters of stare decisis. In the generation since Lochner (1905), lawyers could assume that this case had effectively been overruled, albeit sub silentio, by later holdings, as had Taft.74 Now, however, Sutherland appeared to have revived Lochner. Taft found it impossible to reconcile Bunting with Lochner, as did Holmes, who thought that Lochner “would be allowed a deserved repose.” The fact that the chief justice felt so strongly about the resulting judicial uncertainty, matched by his belief that certain of Holmes’s judicial values were beyond the pale as far as Taft was concerned, resulted in his recorded dissent.75

6 It will be recalled that when president-elect Harding offered to appoint Taft to the high court, the former president had responded that it would have to 71. Adkins, 562. 72. Ibid., 567–70. Holmes even cited a Harvard Law Review article. Taft objected to citing law reviews in general, and—one suspects—the Harvard Law Review in particular. 73. Ibid., 571. 74. See for example Muller v. Oregon, and Bunting v. Oregon, 243 U.S. 426 (1917). 75. Holmes observed to Harold Laski that Taft “seemed to think that I said something dangerous or too broad. . . . I think what I said was just plain common sense. It was intended . . . to dethrone Liberty of Contract from its ascendancy in the Liberty business.”

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be either as chief justice or nothing. Van Devanter, Pitney, and White were still on the bench in early 1921, to say nothing of Brandeis, whose nomination he had bitterly opposed. Taft could not see himself on a bench with these four justices senior to him in terms of longevity. There was however an additional reason why Taft sought the center seat with such eagerness. He was all too well aware of not only the extended backlog of cases on the court’s docket but also the inefficiency of the federal court system in general. Long before he became chief justice following from White’s death in May 1921, as chief executive Taft had called for reforms in judicial administration early in his presidency. Now he had several administrative changes in mind. Three of them would require congressional sanction, and of these the final change—construction of a new home for his court—would not happen in his lifetime. An additional step, the founding of the American Law Institute, warrants minimal attention here, as it involved only the prestige of Taft’s office, along with his enthusiastic endorsement for the project. The American Law Institute was established by a federal charter in 1923, and the founders of the ALI included such legal luminaries as Taft (whose signature came first on the founding document), Charles Evans Hughes, and Elihu Root, who at the age of seventy-eight undertook to serve as chair of the fledgling institute. Writing to his daughter Taft explained that it aimed “to improve the law by a restatement of it by bodies of experts. It is not to be a codification, but it is to be a means of helping courts and lawyers to reach the right conclusion.” 76 Holmes however questioned the necessity for such an organization. “I looked in at a meeting of illustrious lawyers the other day,” he recalled. “They are bent on a restatement of the law. . . . I don’t care much for the business. As Brandeis said: ‘I am restating the law every day. It is my job. . . .’ I should not expect [much] from committees.” Their general function “is to take the personality out of discourse.”77 Taft was well aware of the traditional functions for his office: to chair the weekly conferences, assign the resulting decisions, and preside in open court. As a jurist he was only one of nine, typically referred to as primus inter pares

Holmes was curious “to see what the enthusiasts for liberty of contract will say with regard to liberty of speech under a state law punishing advocating the overthrow of government by violence.” Here Holmes was referring to what would become the landmark case of Gitlow v. New York. It was argued in April 1923, reargued again in November, and would not be decided until June 8, 1925 (Gitlow v. New York, 268 U.S. 652 [1925]; see below). Holmes­Laski Letters, April 14, 1923, 1: 356. 76. Manning Papers, February 19, 1923. 77. Holmes­Laski Letters, March 1, 1923, 1: 354. Holmes’s negativism to the contrary, over time the ALI restatements have become very important. They are studied in law schools, used by state legislatures in drafting legislation, and cited by courts as to the meaning of some parts of the common law.

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(first among equals), one whose vote theoretically counted as much or as little as that of any of his brethren. In these capacities Taft functioned easily and efficiently, gaining the marked appreciation of his brethren. Louis Brandeis, who awaited Taft’s arrival and who remained on the bench after Taft resigned in 1930, noted Taft’s “admirable qualities,” which represented “a great improvement over the late C. J. [White].” Yet “it’s astonishing he should have been such a horribly bad president, for he has considerable executive ability.” Indeed “he has an excellent memory, [and] makes quick decisions on questions of administration that arise.” Moreover the way Taft turned to reducing the court’s backlog of cases was impressive. But Brandeis could not resist adding that if “a large output was the chief desideratum, he would be very good.”78 Again it must be noted that Taft was truly unique among all his predecessors both in the experiences he brought to the chief justice’s office and what he aspired for it. As president Taft had been an able administrator of the executive department. As chief justice he sought to be the same for the federal judicial branch, which was in critical need of such oversight. It required, Taft believed, the same sound management as did departments within the executive. Until 1922 the federal court system represented a number of mini judicial fiefdoms, with most state district lines as their boundaries. Of course it was intended to be separate from the executive and legislative branches, but in a real sense the courts were “independent of each other.” Congress created a hierarchy of courts but not of judges.79 As a rule a district judge was confined to his district, with the result that some federal district courts such as those in New York might be terribly overburdened in terms of their dockets, while district courts in Idaho or Montana might have many fewer demands on their time. But there was no way to transfer federal judges to where they might be needed, and it was this inflexibility as well as the unfortunate effects of an excessive localism that Taft sought to remedy. He found the federal judicial system seriously lacking in effective administration. “The types and volume of litigation, the character of issues, the duration of trials, the speed of disposition, the delay of appeals—these and kindred data must be known in order to determine competence or laxity” in judicial management.80 While president, Taft had called for judicial administration reform, but to no avail. Now as chief justice, during 1921–22 he sought specific 78. But it was not, however, and for Brandeis, the quality of the Taft court’s jurisprudence was quite another matter. See Robert Post, “Judicial Management and Judicial Disinterest: The Achievements and Perils of Chief Justice Taft,” undated draft in possession of the author, kindness of Professor Post. 79. See Felix Frankfurter and James Landis, “The Business of the Supreme Court of the United States—a Study in the Federal Judicial System,” Harvard Law Review 40 (1927): 432. 80. Ibid., 434.

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reforms for the federal judiciary. In the first place more district judges were needed, replete, of course, with the usual accoutrements of local patronage and political considerations. But Taft went further. He wanted what he had once described as a “flying squadron” of district court judges who could be dispatched to various locales where the need for additional jurists was manifest. These judges might be considered as jurists at large as it were; and unlike their contemporaries they would be without “local responsibilities and attachments” and would be so assigned by the chief justice. Taft had no doubt concerning his capacity for such decisions. But this confidence was not shared by others. His proposal made good sense but in terms of political realities was totally impractical. Further it collided with well-established congressional localism and was “decisively rejected.” As one senator from North Carolina put it, why should the chief justice—whom the speaker compared to an army general—be permitted to “send a man from Maine to California, or from North Carolina to Wisconsin to hold court[?] What does he know about the law in Wisconsin? What does he know about your people . . . about the conditions existing there?”81 Mississippi senator John Williams objected to what he called a “perambulatory judiciary.” He opposed “carpet bagging Nebraska with a Louisianian, certainly to carpet bagging Mississippi or Louisiana with somebody north of Mason’s and Dixon’s line, which almost certainly will happen if this bill passes.” 82 The same type of parochial localism was reflected in congressional objection to Taft’s proposal for an annual judicial conference. Nebraska senator George Norris, who should have known better, fulminated against judges who would arrive in Washington “at the expense of the taxpayers,” and “what will they do? They will . . . be dined every evening somewhere,” and “run to death with social activities. . . . I do not believe there is any man who can stick his legs under the tables of the idle rich every night and be fit the next day to sit in judgment upon those who toil.” Indeed, Norris added, “honest though he may be, he cannot get away from the atmosphere that will surround him, and ninetynine times out of one hundred it will affect him and get him in the end.” 83 But Taft did more than propose additional judges, greater flexibility in moving them around, and an annual conference of senior circuit court of appeals 81. Ibid., 450. The speaker is Senator Lee Overman. “I do not think that any man in the Senate would stand for such a bill as that . . . to have . . . roving judges to be sent around at the will of the Chief Justice. . . . It is fundamentally wrong.” Jurists such as Taft who pushed for such a measure were “good men, able men, but impractical.” 82. Ibid., 453. 83. Ibid., 454. Judges, according to other congressmen, were supposed “to judge, not to watch the workings of the judicial system, to explore its defects and devise remedies.” Such was the work of Congress, not the courts. Judges “should never be authorized to exercise powers not judicial. They should be wholly judges, always judges, and nothing but judges.”

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jurists. For the first time in American history, in 1921 the chief justice of the Supreme Court appeared before the Senate Judiciary Committee to endorse and explain his perception of the federal judiciary. This in itself was dramatic enough, but the fact that Taft was at the same time a former president made his testimony before the senators even more noteworthy. One cannot measure the effect that Taft’s in-person testimony had on Congress. Yet it should be observed that everything he specifically sought was enacted, albeit not without some changes that reflected the political context in which Congress continually operates. Federal judicial appointments require senate confirmation, and thus the political opportunities for logrolling and other accoutrements of accommodation are always present. Indeed Taft had supported an additional sixteen new federal judges, but by the time Congress enacted the bill, that number had increased to twenty-four—eight more than the attorney general’s commission had recommended. As Frankfurter and Landis reminded us, “more new judgeships were established by this act than by the first Judiciary Act which created the federal court system.” 84 After some in Congress had rejected the idea for an annual judicial conference (see above), nevertheless Congress approved the bill in the House by voice vote, and in the Senate by a small majority, thirty-six to twenty-nine. Taft even obtained his “flying squadron,” but not as he had sought it. Before a judge could be moved, both he and the senior circuit judge had to “consent” to the new assignment, and the senior circuit judge had to certify to the chief justice that there was indeed a “need for judicial assistance.” 85 Only thereafter could Taft move to redistribute judicial personnel. Further Congress mandated that each newly appointed judge must reside in the district or circuit to which he shall be appointed. Finally, in a little noticed section of the new statute, the lawmakers included wording that could make a number of the twenty-four new judges temporary. Tucked into the first section of the enactment is the following: “A vacancy occurring more than two years after the passage of this Act, [in other words after 1924] in the office of any district judge appointed pursuant to [it] shall not be filled unless Congress shall so provide, and if an appointment is made to fill such a vacancy occurring within two years a vacancy thereafter occurring in said office shall not be filled unless Congress shall so provide.” Presumably this sentence was intended to ensure that the authority of Congress—not just the Senate—could be kept in some sort of equilibrium with the executive power of federal judicial appointment.

84. Ibid., 455. Post noted that such a figure represented “an increase of about 25% in the number of authorized district court judgeships.” Post, “Judicial Management,” 19. 85. Post, “Judicial Management,” 18.

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Be that as it may, effective on September 14, 1922, there now existed “the first formal mechanism by which [federal judges] might develop national administrative policies, reassign judges temporarily, and recommend legislation.” 86 After barely one year as chief justice, Taft had pushed, prodded, and persuaded Congress to act. He had involved himself in the political process as no chief justice had ever done before, and his actions were based on a distinct conception of his office, one mentioned earlier, but which should be reiterated here. Just as President Taft had believed himself to be “ultimately responsible for administrative control of the executive branch,” so Chief Justice Taft, using the recently created Conference of Senior Circuit Justices “as a kind of cabinet, considered himself responsible for the management of the judicial branch in a similar manner.” 87 But Taft’s concern with the federal judiciary extended to all levels, again an interest unique in our judicial history. Thus Learned Hand, already a distinguished district court judge, wrote to Taft early in 1923 that “it is a great comfort to know the interest you take. To be frank, we never have felt it before your incumbency.” Indeed, he added in another letter to Taft, “you are the first Chief Justice that ever recognized such things as District Courts except when they were officially brought to their attention to reverse.” 88 As Doris Kearns Goodwin has implied, President Taft was less than effective in his use of the “bully pulpit.” 89 In his capacity as chief justice, however, he fully appreciated the need “to suggest needed reforms, and to become rather active in pressing them before Congress.” Besides encouraging public support from state bar associations throughout the country, Taft willingly testified before congressional committees. True, he had “violated precedent” in doing this, “but I am determined to exercise such influence as I have to help the judicial system in the country. Precedents that keep judges away from [congressional] committees who are to help are not precedents that appeal to me.” Further “I hate to be in the attitude of a continual beggar from Congress, but I seem to have arrived at the court just when it was necessary.” 90 Taft had initiated his campaign of calling public attention to the needs of the federal judiciary as soon as joined the court. Of course his strong commitment to judicial reform was a noteworthy change from past Supreme Court history, and some conservative southern senators found it troublesome. One observed, correctly, that Taft’s speeches “were different from those made by 86. Federal Judicial Court, https://www.fjc.gov/history/home.nsf/page/landmark_ 14_txt.html. 87. Post, “Judicial Management,” 24. 88. Ibid., 28–29. 89. See Doris Kearns Goodwin, The Bully Pulpit: Theodore Roosevelt, William Howard Taft, and the Golden Age of Journalism (New York: Simon and Schuster, 2013). 90. Post, “Judicial Management,” 33–34.

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The Chief Justiceship of William Howard Taft, 1921–1930

any other Chief Justice.” Senator William Harris from Georgia claimed that “the judiciary is going to be injured, and people will not have the same high respect for it,” if the chief justice and his brethren continued to make speeches “in public [and] not in their line of duty as has been done recently.” Harris added that “I think the Justices . . . should keep out of any matters that are political. . . . I do not think it is the part of wisdom for a Supreme Court Justice to publicly discuss matters to be decided by Congress.” 91 But secure in his office, Taft saw no need to retreat from his efforts. They “involved no parties to litigation, no competing briefs of counsel, and no reason for a judge to choose between them.” Post was correct when he observed that “as a good child of the Progressive era, Taft seemingly regarded judicial reform as purely technical and apolitical.” 92 But in fact, while reform itself might be apolitical, reality indicated that its actual progress from conception to enactment was indeed a political process. Legislators had to be convinced or persuaded to pass the appropriate statutes. This is what Taft set out to do, and while he had enjoyed marked success in the act of December 14, 1922, this new law was only one of several that he had in mind. A second proposal was not nearly as easy to bring to fruition, a fact that the chief justice would soon discover.

91. Ibid. 92. Ibid., 44. Post added, however, that in the United States, there was no clear line distinguishing judicial reform from partisan politics.

The court in 1921, when Taft joined it. From left to right: Day, Brandeis, McKenna, Pitney, Taft, McReynolds, Holmes, Clarke, and Van Devanter. Courtesy of the Library of Congress, Prints and Photographs Division.

The court from 1925 to 1930. From left to right: McReynolds, Sanford, Holmes, Sutherland, Taft, Butler, Van Devanter, Stone, and Brandeis. Courtesy of the Library of Congress, Prints and Photographs Division.

Chief Justice William Howard Taft in 1921. Courtesy of the Library of Congress, Prints and Photographs Division, from the Harris and Ewing Collection.

Justice Louis Brandeis. Courtesy of the Library of Congress, Prints and Photographs Division.

Justice Oliver Wendell Holmes. Courtesy of the Library of Congress, Prints and Photographs Division.

Two sketches of the proposed Supreme Court Building, drawn by Cass Gilbert. Courtesy of the Collection of the New-York Historical Society.

The completed Supreme Court Building. Courtesy of the Library of Congress, Prints and Photographs Division.

4 The Judges’ Bill, 1922–1925

I Chief Justice Taft was well aware that in itself the increase in the number of federal judges as a result of the 1922 statute would not solve the problem of his court’s backlog of cases. Further he recognized that this ongoing difficulty was merely a symptom of a much more serious condition. Nor was it a new development. As early as 1910, more than a decade before the 1922 law was enacted, then president Taft had called the attention of Congress to the need somehow to limit or narrow the court’s jurisdiction and at the same time expand the scope of its “discretionary review.”1 He stated that “no man ought to have, as a matter of right, a review of his case by the Supreme Court.”2 In most instances a trial court followed by appellate review would suffice. The function of the Supreme Court, however, was different.3 This tribunal’s chief usefulness should be found in the selected cases that the justices considered. The justices were “to expound the law, and especially the fundamental law . . . as to furnish precedents,” application of which would assist “the inferior courts in future litigation . . . and . . . the executive officers in the construction of statutes and the performance of their legal duties.” The difficulty arose when a number of lawsuits came before the justices that involved “passing on questions of evidence and the construction of . . . instruments like indictments, or wills, or contracts, decisions not of general 1. See Frankfurter and Landis: “The Judiciary Act of 1925,” part VI, of “Business of the Supreme Court of the United States—a Study in the Federal Judicial System,” Harvard Law Review 40 (1927): 838. Hereafter cited as Frankfurter and Landis. 2. Ibid. 3. William Ross did not overstate his point when he observed that “the most prominent and persistent of the more conservative critics of the courts during the progressive period” was Taft. As president and later as a Yale law school professor, ABA president, and chief justice, “Taft assailed the shortcomings of the judicial system with a vigor unsurpassed by any radical or progressive.” W. Ross, Muted Fury, 78.

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The Chief Justiceship of William Howard Taft, 1921–1930

application of importance.” These cases “merely clog and burden the Court and render more difficult its higher function.” 4 If such was the situation in 1910, by 1922—with the expansion of litigation due to the legacy of WWI, plus ongoing cases arising from Prohibition—the justices confronted an ever increasing caseload. This in turn contributed to a backlog of lawsuits that might take several years even to be placed on the court’s docket let alone decided.5 Thus Taft had understood the challenges facing his court as it tried to gain better control of its docket at least a decade before he took the center seat. Suggestions from the justices to Congress concerning improvement of the federal judiciary had been infrequent, perhaps—as Pringle noted—because of Chief Justice White’s belief “that his colleagues should take no part in advocating judicial reform legislation.” 6 Apparently White’s inhibitions here did not include internal discussions among the brethren concerning what possible changes might involve, and during the first few months of 1921 they may have been ongoing. In 1922 Taft recalled that “before I came on the court a committee had been appointed . . . consisting of Justice[s] Day, McReynolds, and, I suppose, ex officio, the Chief Justice.”7 When Day retired Taft named Van Devanter as the new chair of the committee, joined also by Sutherland.8 The preparation of the Judges’ Bill thus took place within the chambers of the high court, and later it fell to McReynolds, Sutherland, and Van Devanter to appear before congressional committees, especially the Senate Judiciary Committee, to explain and justify their proposed measure. 4. Ibid. In an article published three years after the Judges’ Bill became law, Frankfurter and Landis observed that it “is not for the Supreme Court to disentangle confused testimony, nor . . . to pass upon disputation over evidence, the credibility of witnesses, the reconciliation of conflicting testimony, the proof of economic data, and the reliability of experts are problems with which, as a rule, the Supreme Court ought not to be inflicted.” Instead the court should seek “the ascertainment of principles governing authenticated facts, the accommodation between conflicting principles, and the adaptation of old principles to new situations.” Felix Frankfurter on the Supreme Court, ed. Kurland, 199. Frankfurter and Taft had little regard for each other, but Taft could have written this himself. 5. At the end of Taft’s first term as chief justice, the number of cases that remained unresolved on the court’s appellate docket stood at 417 cases. By June 1925, the year that the so-called Judges’ Bill went into effect, the number had risen to 533. Frankfurter and Landis, 835. 6. Henry Pringle, The Life and Times of William Howard Taft, 2 vols. (New York: Holt, Rinehart, and Winston, 1939), 2: 998. 7. Whether any such committee had been actually established, contrasted with informal discussion among the justices, remains a matter of debate, despite Taft’s assertion. In an important article published in 2000, Edward Hartnett claimed that “it seems unlikely that Chief Justice White had actually appointed such a committee.” See Edward Hartnett, “Questioning Certiorari: Some Reflections Seventy-Five Years after the Judges’ Bill,” Co­ lumbia Law Review 100 (2000): 1663–64. 8. Frankfurter and Landis, 839. According to Urofsky, Brandeis had declined to serve on this committee. Urofsky, Louis D. Brandeis, 584.

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Noticeably absent from this list of justices is Taft, whose presence had been so much in evidence during the push for enactment of the 1922 legislation. He had quietly been informed by Iowa senator Albert Cummins—the chair of the Senate Judiciary Subcommittee—that, as Taft put it in a letter to his son, “some of my old enemies on the senate committee rather resent my being prominent in pressing legislation.” 9 In a chamber where tradition and ritual live on, having a former (albeit defeated) chief executive suddenly restored to national prominence as it were, now appearing on behalf of the Supreme Court and pushing for new legislation, probably was an unpleasant source of irritation for some former Roosevelt supporters to confront. Taft understood this very well and made sure to confine his congressional visits mostly to the lower chamber. But he placed the future of the Judges’ Bill in very able judicial hands—those of Van Devanter, McReynolds, and Sutherland. Van Devanter was highly regarded as an expert on matters of federal judicial jurisdiction, a subject at the heart of the new bill under consideration. Indeed the final version of the Judges’ Bill as debated in Congress from 1922 to 1925 was largely his work. Moreover his congressional contacts were numerous. In a similar manner McReynolds had held the post of attorney general in Wilson’s administration prior to his court appointment, while George Sutherland not only had been a two-term senator but also was a former member of the very committee before which he now appeared.10 Of course Taft had been busy offering advice to Harding’s administration concerning new appointments to the high court even as Congress considered the legislative measures he supported.11 In 1922 he conceded that “I suppose I weigh down . . . reform by my advocacy of it, in arousing the opposition of certain elements, especially in the Senate, but I don’t see why that should prevent my initiating matters when nobody is likely to do so.”12 On the other hand the more other federal judges supported his proposed changes, the less significant his pivotal role might appear. A year after the Judges’ Bill was introduced into Congress, Taft informed his daughter that “I am trying to get more solidarity of action among the Federal Judges, so that they shall feel that we are all working towards the same end.” They seemed to respond with “alacrity.”13 Thus while Taft had appointed Learned Hand to the federal bench in 1909, he was offended by Hand’s open support of Theodore Roosevelt and progressivism three years later. Recollection of Hand’s flirtation with progressivism stayed with Taft, and although he lauded Hand’s judicial abilities, he advised Harding against serious consideration of him for elevation either to the circuit 9. 10. 11. 12. 13.

Post, “Judicial Management,” 35. The Senate, it might be noted, rarely forgets its own. Post, “Judicial Management,” 35. Ibid. Manning Papers, March 25, 1923.

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court of appeals or even the Supreme Court. In 1923, however, Taft informed his daughter that “I am just now getting to be on very good terms with Learned Hand, at whose Rooseveltism and Progressivism in respect to the Courts I was at one time very much disgusted.” But Taft rarely displayed lasting rancor, and now he wrote of Hand that “he is an able man, and he is doing good work and is struggling to help in the cause which I have so much at heart—that of a better administration of justice and dispatch of business.”14 Thus the Judges’ Bill was intended to resolve an issue that a number of jurists believed to be the primary stumbling block to meaningful docket reform: the matter of high court jurisdiction. There was minimal controversy concerning the belief that the Supreme Court’s primary function was to resolve what Frankfurter and Landis called “legal issues of national significance.”15 The difficulty arose in determining when a case reached such a level. Further there existed a long-held assumption that it was also the court’s obligation to ensure and protect all federal rights. Selecting only those cases that rose to national significance on the one hand, and yet serving as the ultimate “guarantor of all federal rights” on the other, represented two incompatible functions. The Judges’ Bill sought to reconcile them, albeit to a limited extent. This measure was first introduced into both houses on February 17, 1922, but it did not become law for three additional years. During the interval the chief justice worked intensively to build support, less from the general public than the organized bar associations. Congressional interest appears to have been desultory, with an equal lack of concern in the popular press over an arcane issue—apparently of significance to only a small group of appellate attorneys. The House held a hearing in 1922 and another in 1924, and the Senate convened a lengthy hearing on Saturday, February 2, 1924. At all these sessions several members of the Supreme Court attended, claiming less to urge passage than to explain the bill’s provisions. As has been observed, Taft was careful to appear only before the House Judiciary Committee. The hearings deserve some attention, for they illustrate the members of the court seeking to educate and persuade Congress concerning their proposal.

14. Ibid. Indeed Taft willingly acquiesced when Coolidge named Hand to the Second Circuit Court of Appeals in 1924. Along with his cousin, Augustus Hand, with whom he sat for many years, Hand contributed toward making the second circuit one of the most distinguished federal appellate courts in the United States. Like Holmes, Hand also had a flair for writing, and—again as with Holmes—critics noted that such an emphasis sometimes came at the expense of sound jurisprudence—giving rise to the maxim—well known in legal circles—that “one should quote Learned but follow Gus.” See the outstanding biography of Hand by Gerald Gunther, Learned Hand: The Man and the Judge (New York: Alfred A. Knopf, 1994). 15. Frankfurter and Landis, 839.

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About six weeks after the bill’s introduction into Congress, the House Judiciary Committee held a three-day hearing on it. Both Taft and the current solicitor general James Beck appeared before that body to explain the desired enactment. Drafted by members of the court apparently in response to a suggestion from Senator Cummins, the bill had been authored by several justices who had spent three months in its preparation. As the first witness, early in his prepared statement the chief justice summed up the need for the legislation in one sentence. “ The business of the court is rapidly increasing, and unless the cases that are not important enough to occupy [its] time . . . are summarily disposed of it is impossible for the court to dispatch promptly as it should, the important questions which it is organized to settle.”16 Of course in referring to a need for summary disposition, Taft meant the problem of his court’s jurisdiction. He pointed to the long-established writ of error as one path to judicial review, one that he described as “almost obligatory jurisdiction.” More important for his immediate purposes was the court’s discretionary review, also known as the writ of certiorari. This process required his fellow justices to study the briefs and records for each petition submitted, and such a practice “is one of the heaviest of our duties,” as we “give every certiorari full consideration.” The problem “is whether the questions as presented are sufficiently important . . . to justify and require the court to let the case in . . . for a full hearing on the merits.” Taking issue with an old but still prevalent popular conception (as will be seen), Taft insisted that “no litigant is entitled to more than two chances,” these being the original trial and some intermediate court of review or appellate tribunal. In order to gain yet another review, “there must be significant legal issues lurking within the litigation.”17 When the court agreed to consider such a case, “it is not primarily to preserve the rights of the litigants.” Rather the justices seek to expound and stabilize “principles of law . . . for the public benefit” and “to preserve uniformity of decision among the intermediate courts of appeal.” Nor, he added, is the financial stake in dispute of great moment. “It may involve millions of dollars, but may turn upon a question of fact or principle of law, the exposition of which is not important because it is well settled.”18 Indeed a case is not accepted “because it is financially important . . . or because it is important to the parties at all.” From the perspective of the litigants, of course every case is important. But from Taft’s perspective, when his tribunal agreed to hear a case it was “because the principle involved is such that is important to have a general 16. Hearing, “Jurisdiction of Circuit Courts of Appeals and United States Supreme Court,” U.S. Congress, House, Committee on the Judiciary, 67th Cong., 2nd Sess., 1922, 1. Hereafter referred to as 1922 Hearing. 17. Ibid., 2. 18. Ibid. “In such cases we reject the petition.”

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exposition of it for the benefit of the lawyers . . . the inferior courts . . . and for the public at large, especially with respect to any constitutional issues.”19 Although Taft had strongly supported expanding the number of federal district judges, apparently neither he nor any of his brethren favored such a course for his court. He could only have been aware that the size of the Supreme Court had changed several times since its establishment in 1789. Originally set at six justices, the court was reduced to five in 1801, only to be restored to six a year later. In 1807 a seventh seat was created, followed by two more in 1837. While Congress authorized a tenth justice in 1863, three years later it ordered the tribunal reduced by attrition to seven. In 1869 Congress reestablished the size of the court at nine, where it has been ever since.20 As far as Taft was concerned, the number of justices was not the issue, as much as the way in which they utilized their time. While Taft did not seek to increase the size of the bench, neither did he support the “desire to give every man a chance to go to the Supreme Court.” This conception was “fundamentally erroneous in its practical operation.” What his tribunal needed was the ability to pick and choose its cases, being careful not to reduce “in any respect the [potential] review which the Supreme Court may have of every case that may come before it.” The operative word here was “may.” The essence of the Judges’ Bill was to transfer “from the obligatory jurisdiction [those cases that the court was required to hear] to the certiorari or discretionary jurisdiction [those cases that the court might or might not choose to consider] a great number of classes of cases that will increase largely the work of the court in passing promptly on certiorari cases and reduce the number of cases that the court is obliged to take under full and complete consideration.” 21 How would the proposed statute accomplish such a goal?

2 Although it fell to Justice Van Devanter to present a more lucid analysis of the bill’s provisions in 1924, two years earlier Taft noted its key essentials in his appearance before the House committee. With four specific exceptions, all cases appealed in the federal district courts would go to the circuit courts of appeals, and not the high court.22 Further no review would be allowed as a 19. Ibid., 3. 20. See Peter G. Fish, “Number of Justices,” in The Oxford Companion to the Supreme Court of the United States, ed. Hall, 477–78. Only a few years after Taft’s death in 1930, President Roosevelt would discover that while Congress has always possessed the right to alter the high court’s size, the public has remained content with nine. 21. 1922 Hearing, 3. 22. The four exceptions where direct appeal to the Supreme Court remained possible were (1) cases arising under federal antitrust laws, (2) cases arising under interstate commerce statutes, (3) cases arising in certain specific criminal appeals, and (4) cases where

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matter of right from the judgments of the circuit court. Only by a presumably selective use of the certiorari grant could such judgments reach the Supreme Court. The same conclusion would apply to most cases appealed from state supreme courts. Finally cases from courts in Hawaii, Alaska, Puerto Rico, and the Philippines that formerly had gone to the Supreme Court were now shifted to various circuit courts of appeal. As Taft concluded his statement, Massachusetts congressman Joseph Walsh asked, “[Is it] the view of view of the court that unless some relief is given . . . that at the rate which the court’s business is increasing it will be but a short time before the docket will be very badly congested and you will be very far behind in your work?” 23 The chief justice not only affirmed this view but added that “it now takes from 18 months to two years to reach a case on the docket.” This condition was exacerbated because “there are a lot of cases on it that are rotten in the sense that . . . they can be easily disposed of, cases that were possibly brought with the idea of delay.” Compared to a year before (1921) when 406 cases were docketed but not decided, now this figure stood at 454.24 Besides Taft the United States solicitor general also appeared before the House committee. Especially when compared to the chief justice, who had preceded him a few weeks before, James Beck offered a broader perspective to its members concerning why the Judges’ Bill was so important.25 It may well be that in so doing, he sought to portray the court’s need for docket control in terms that would make the proposal’s significance more meaningful to members of Congress, not initially familiar with matters of high court docket control. At the outset he posed a question to the committee. “How,” he asked, “can we adapt our governmental machinery to the enormous strain that our growth . . . has put upon on it?”26 For Beck one answer was simple: the justices should look a claim is made that enforcement of a state statute or authority violated the federal Constitution. 23. 1922 Hearing, 9. 24. Ibid., 10. 25. Appointed solicitor general almost at the same time as Taft was named to the court, the chief justice does not appear to have had excessive regard for Beck as the solicitor general, even though he eagerly encouraged if not requested his appearance before the House committee. In 1922, as Harding considered a replacement for Justice Day, Taft believed that Beck probably aspired to take his place, and the president, according to Taft, “could hardly make a weaker appointment.” Pringle, Life and Times, 2: 1057–58. Three years later Taft observed to his son that “Beck is a very poor organizer and is so much taken up with the manner of his own argument that he is not at all thorough in . . . seeing to it that the cases of which he has charge (and he has charge of all of them), are properly presented.” Robert A. Taft Papers, March 22, 1925. Beck remained in office until 1925, when he reentered private practice and politics in Pennsylvania. He later returned to Washington as a Republican member of Congress for several terms. 26. 1922 Hearing, 17. “I sometimes wonder,” added Beck, “whether our Government has not grown too great to be workable under present governmental methods.”

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to the House. That chamber had long since limited debate. Indeed in so doing the House had made “adequate debate [virtually] impossible, because you can not say very much in five minute speech.” What it had done concerning unlimited debate, so too the high court should do concerning a right of unlimited appeal.27 As a theory of course “it would be admirable if in every case an appeal could be taken as a matter of right” to the Supreme Court. Such an option would be an advantage both to the litigants and to the general body of constitutional law, if the court “could pass upon all the many decisions” that are submitted to it. Reality indicated, however, that if such were to occur, the court docket “would become so congested and clogged that the wheels of justice would stick in the mud, and instead of a case being reached in two years, it would not be reached in five,” and Beck was “not at all sure that it would be reached in ten.” Practicality required acceptance of the premise that “there must be a limitation on the right of appeal to the Supreme Court.” Once the committee moved beyond the “should” concerning such limitation and focused on the “how,” the rationale behind Taft’s bill would become much clearer. In a similar vein Beck urged the committee to consider the type of materials that sometimes accompanied an appeal to the court. He paraphrased Taft’s predecessor who had noted barely halfway through a term of court that “if we did not hear the argument of another case this term I could not between now and next summer read the records already submitted.” The solicitor general offered some specifics to make his point. In the United Shoe Machinery case, one in which the United States had prevailed, “the record consisted of 27 volumes of printed matter, plus 4 volumes of exhibits.” So bulky was the record that in fact it could not fit in front of the justices during oral argument. A more recent case record included some twenty-one volumes, plus twenty thousand printed pages, while the famous Williams v. Standard Oil case presented thirty volumes. The cases were numerous in which “the records were bulky beyond words and I even think beyond excuse.” Why should the justices have to countenance such attempts “to obscure their judgment by piling up great masses of testimony, so the real substance is ‘as two grains of wheat hidden in two bushels of chaff: you search all day ere you find them, and when you have found them they are not worth the search.’” 28 Beck strongly endorsed, as had Taft, the proposal to expand the court’s discretionary use of the certiorari grant. Neither man envisaged any dramatic 27. Paraphrasing President Cleveland’s famous comment to Congress concerning the tariff, Beck urged the committee to recognize that “it is a condition and not a theory that confronts us.” Ibid., 18. 28. Ibid., 19. Beck even claimed that Taft’s court “is the most overburdened court in the world,” especially “if you take into consideration the magnitude of the questions that are submitted to it.”

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increase in the number of grants awarded, as much as an expansion of the court’s authority to select what it would decide. Beck noted the power “to determine what cases shall be selected as of such importance as to be entitled to an oral argument and which shall be given the time and energy which is humanly possible.” 29 Such authority should be invested in the court itself. He observed further that the luxurious days of extended oral argument before the high court were long gone and offered the famous Marshall era cases as examples. The solicitor general recalled that oral arguments in Gibbons v. Ogden took nine days, while the Dartmouth College case occupied the court for seven. Unfortunately, Beck added, “today . . . there is generally insufficient time to argue [such cases] with the care and learning that was bestowed upon similar arguments in bygone generations. We go through these cases like an express train and the wonder is how admirably, upon the whole, the court has done its work, when the time for deliberation and oral argument is so limited.”30 With the exception of the four categories of appeals already noted, Beck endorsed the proposal that “in every other case, the court shall determine what are the cases of public importance that require them to be heard to the exclusion of other cases.” Again he argued that “somebody must determine that question, and who can determine it more properly” than the court itself? Surely the justices were better qualified to decide than the legislature, which was ill equipped to mandate by a specific statute which cases were to be selected for consideration. In truth “the court cannot keep up the high standard of its work if the docket keeps increasing unless they are contented to decide things in a hasty, perfunctory way and sacrifice to speed in justice, soundness of decision.”31 The solicitor general urged yet another point on the committee. He claimed, incorrectly as will be seen, that the organized bar would not support Taft’s bill “because the bar is more attached to the theory than the [actual] conditions that confront us.” In fact “nothing is more appealing to all of us . . . than the idea that whenever a case presents a constitutional question it should, as of right, go to the Supreme Court.” Such a view might be persuasive “were it not for the fatal ingenuity of the bar, because it is obvious, and the record of the court will show it, that it is a very strange and unusual case that you cannot somewhere tuck in a constitutional question. If there is nothing else, you can always stick in our old and reliable friend ‘due process of law.’” Thus, if an

29. Ibid., 21. Under the bill, Taft had stated, “the Supreme Court will remain the supreme revisory tribunal, but it will be given sufficient control of the number and character of the cases which come before it . . . to remain the one Supreme Court and to keep up with its work.” Pringle, Life and Times, 2: 999. 30. 1922 Hearing, 22. 31. Ibid., 26–27.

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appeal could be taken to the high court “whenever a constitutional question is suggested, there would be no relief at all.”32 Beck concluded his comments with two observations. He emphasized that the Judges’ Bill was “an admirably drawn bill. . . . compact and lucid,” and claimed, “I can say that because I had nothing to do with its draftsmanship.” He also reiterated the essential simplicity of the certiorari process. Indeed it raised only two questions. First, “is it a case of public gravity that ought to be” one of the cases “that the court can by any possibility hear in a term,” and second, “is it a question of public gravity, is it a debatable question?” All the justices required would be a short three—or four-page statement from counsel. “And from that the court can determine as to its sufficiency.” Oral argument concerning certiorari was unnecessary, and in such a context “I do not believe an oral argument could do anything except to lessen the power of the court to attend to its other duties.”33 One other “witness” had appeared before the House committee, and he was less than enthusiastic about the bill under consideration. Benjamin Salinger, an emigrant from Germany, had recently completed a five-year term on the Iowa Supreme Court. His key objection to the Judges’ Bill was precisely that which Taft so eagerly sought—that it gave the justices too much discretion concerning a grant of certiorari, a concern that—as will be seen—would be reiterated even as Congress moved toward final approval of the measure in February 1925. If a state court, claimed Salinger, “has in fact sustained an impairment of rights guaranteed by the Constitution, the doors to the Supreme Court should remain open to correct the wrong. . . . I cannot help thinking that every case of violating federal rights is important in . . . that injury inflicted by the violation should entitle the sufferer, as [a] matter of right to have redress,” and “on such he should not be compelled to exhaust himself [in an] effort merely to get into court.” 34 True, the Supreme Court faced serious difficulties concerning control of its docket, but was an almost unfettered discretion concerning a certiorari grant necessarily the only—let alone the best—method to resolve them? Salinger claimed that especially from the perspective of the parties frozen out of access to the Supreme Court, the benefits from such a step would be outweighed by its costs. He urged the committee to consider other avenues toward the legitimate goal of docket accommodation.

3 It is impossible to state how significant were the observations presented by Taft, Beck, and Salinger in 1922. There is no doubt that in the short run, 32. Ibid., 28–29. 33. Ibid., 30. 34. Ibid., 16.

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however, the Judges’ Bill was stalled. It languished in Congress during the next two years. Late in 1923, as he tried to get congressional approval, Taft sought the intervention of President Coolidge. Indeed in his first annual message to Congress, the new chief executive stated that Taft’s court “needs legislation revising and simplifying the laws governing review . . . and enlarging the classes of cases of too little public importance to be subject to review.”35 In spite of Taft’s eagerness for quick legislative approval, as well as this endorsement from the president, his bill failed to emerge from the House committee. Other concerns occupied the lawmakers, including a war veterans’ bonus bill, railroad legislation, and of course a perennial interest in politics—especially the scandals revealed in the aftermath of the late president Harding’s administration.36 It was not until February 1924 that a subcommittee of the Senate Judiciary Committee turned to the measure. Well aware of the court’s crowded docket, Iowa senator and subcommittee chair Albert Cummins had been among the first to suggest to Taft that he and his fellow justices take the lead in drafting a statute for Congress to consider. Cummins had introduced the Judges’ Bill into the Senate in February 1922, and ultimately he would be the key spokesman in that chamber as it moved toward final passage. Now he invited Justices Van Devanter, McReynolds, and Sutherland to appear before his subcommittee— along with a representative of the American Bar Association—not only to justify the bill’s necessity, but also (and more importantly) to explain its provisions. Even before Van Devanter began his presentation, Cummins inserted into the record both the proposed legislation, and also Taft’s lengthy analysis of his bill, plus an additional general review of its scope. Van Devanter did not get very far into his analysis of the bill before a senator asked if it had been “prepared under the direction of the Supreme Court, or by its suggestion?” The justice responded that all members of the court had considered the measure on multiple occasions, until “it came to represent the

35. Calvin Coolidge, First Annual Message, December 6, 1923, http://www.presidency .ucsb.edu/ws?pid=29564. 36. See Alpheus Thomas Mason, William Howard Taft: Chief Justice (New York: Simon and Schuster, 1964), 110. Although Taft was under no illusions concerning Attorney General Harry Daugherty and the controversies swirling around his office, he wrote to his son Robert, “what would have happened if Daugherty had not stood up against Senators and secured good candidates for the recent vacancies in the federal judiciary, I don’t know. We ought to be ever grateful to him for that, and a great deal of this Senate feeling against him is due to his courage in refusing to yield to poor candidates.” Robert A. Taft Papers, February 24, 1924. Barely one month later President Coolidge dismissed Daugherty and replaced him with his close friend and college classmate Harlan Stone. As will be seen, another career awaited the new attorney general, one of special interest to William Howard Taft.

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composite judgment” of the tribunal.37 Even as he expounded on the provisions and purposes contained in the statute, he insisted that “we want the committee to feel that we merely wish to help, if we can, and that we have no disposition to press any legislation or any particular form of legislation.” Such a statement is less than accurate. Van Devanter immediately added that “it is of no concern to us except as the institution of which we are members can, of course, function better under jurisdictional statutes that are plain and well adapted to the situations in which they are to be applied.” 38 For his part Senator Cummins wanted to make it clear that the three justices “were here at the request of the committee,” and not the other way around. Van Devanter appreciated the distinction. “I observed that you made that statement, Mr. Chairman. You made it very plain.” Thereupon Cummins went even further. “You were asked to come here,” he observed, “for the purpose of giving us information that we must have if we are to pass intelligently upon this legislation, and I think that every member of the committee will feel under obligation to you.”39 Such encomiums did not prevent Cummins from raising a concern about the great extension of discretionary certiorari jurisdiction to be granted in the proposed statute. Cummins was aware that under established court practice, only four and sometimes three votes out of nine were required to bring a case to the Supreme Court. Thus, four or five justices might well oppose the grant, even if the litigant succeeded in gaining the requisite number. He pointed to the fear “that the litigant will not have the opportunity of presenting his case to a court unbiased by any previous declaration made upon application for a writ of certiorari.” 40 37. Hearing, “Procedure in Federal Courts.” U.S. Congress, Senate, Judiciary Commit­ tee, 68th Cong., 1st Sess., 1924, 27, hereafter referred to as Senate, Hearing, 1924. In this response, Van Devanter had to hedge a little. In fact, Louis Brandeis did not support the bill, although he informed Taft that as a clear majority of his colleagues did, Taft—and by implication Van Devanter—legitimately could state that the court as a whole supported the measure. Choosing his words with some care, Brandeis wrote to Taft that “in relation to proposed legislation directly affecting the Court, the Chief Justice, when supported by a clear majority, should be permitted to speak for it as a unit; and differences of view among its members should not be made a matter of public discussion.” Ultimately Brandeis did endorse the bill, but not until the legislation had been in effect long enough to vindicate Taft’s faith in what it would accomplish. Van Devanter Papers, November 30, 1924; Urofsky, Louis D. Brandeis, 585. To Van Devanter, Taft observed of Brandeis that “because he always wishes to appear on the off side and a champion of the offsiders, he declines to help us.” 38. In fact Van Devanter had labored long and hard on the specifics of the Judges’ Bill, and both he as well as Taft were eager for it to become law, hopefully just as it had been drafted and endorsed by the court. 39. Senate, Hearing, 1924, 42. Senator Lee Overman, Democrat from North Carolina, added that “we are very much obliged to you for coming here and enlightening us.” 40. Ibid., 30.

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Van Devanter responded that there “is no basis for such an objection.” Granting a writ “means, and only means, that the court finds probable cause for a full consideration of the case in ordinary course.” 41 The point must have troubled Cummins because he repeated his concern almost immediately. “Are you able to say, Mr. Justice Van Devanter, from your long experience and your observation of other members of the court, that the granting of a writ . . . does not prevent the justices from approaching the final decision with a free mind and entirely unprejudiced?” Again the justice responded that his colleagues “do approach the case when it comes up on final hearing with entirely unprejudiced minds, that the fact that the petition has been granted counts for nothing one way or the other.” Justice Sutherland, a former senator and member of the Judiciary Committee, strongly concurred. “I do not think it makes the slightest difference. . . . The fact that the court has considered the case sufficiently to determine whether the petition should be granted or not makes absolutely no difference. I can say that very positively.”42 The Senate Judiciary Subcommittee held no further hearings on the Judges’ Bill and submitted a report recommending that it pass. Indeed the full Judiciary Committee adopted this report, submitted by Senator Cummins, as its own.43 It warrants some attention. Cummins stated that three justices had been invited to appear before his panel “for the purpose of explaining orally the bill,” as well as to answer “any questions that it might seem desirable to propound.” They “gave so clear an exposition of the bill . . . that we sincerely hope that every member of the Judiciary Committee and, indeed every member of the Senate will read and study these statements.” Cummins’s panel could not improve on “these discussions of a most important subject, and we would content ourselves with the reference” to them were it not that “a brief comment may induce some members of the full committee to read the hearings who might otherwise fail to do so.”44 He started with a description of the truly complex federal judicial system: We have one Supreme Court with nine justices. We have 9 circuit courts of appeal with 33 circuit judges, [and] 81 district courts . . . with 41. Ibid. “Granting of the writ means only that the court and all of its members understand that, in the entire environment of the case, it is one that should be argued at length before them, be considered by them in the light of that presentation and then deliberately decided.” Van Devanter used, but did not further explain, the term “a sound judicial discretion.” Hartnett, 1678. 42. Ibid., 31–32. A few minutes later, Justice Sutherland added that “from my observation thus far, . . . a very large proportion of the cases that come to [the Supreme] court ought never to be there at all.” Ibid., 1680. 43. See 68th Cong., 1st Sess., Senate Report No. 362, “Appellate Jurisdiction of Federal Courts,” April 8, 1924. 44. Ibid., 1–2.

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. . . 122 active district judges. We have one district in Alaska which is divided into four judicial districts with one federal judge in each division. We have one district court in Hawaii with two district judges. We have a supreme court for the Territory of Hawaii with three judges. We have one circuit court in Hawaii with five circuits and eight circuit judges. We have a court of claims consisting of five judges, . . . a customs court of appeals consisting of five judges . . . , a supreme court for the District of Columbia with six judges . . . , a court of appeals for the District of Columbia with three judges, one district judge for the Virgin Islands, one for the Canal Zone, and a . . . district court in China with one judge. In Puerto Rico we have the supreme court . . . with five judges and one district judge. In the Philippines we have the supreme court . . . with nine judges.45 Somehow, observed Cummins, “by many and devious routes . . . cases from all these tribunals” do reach the high court. But “it is beyond the power of the human intellect to determine” what routes must be selected to arrive there. Confusing in itself, to this “chaos must be added the appeals, writs of error, and . . . certiorari from 48 state tribunals.” Indeed “there is no civilized country in the world where the path to justice is so hard to find, so long from its beginning to its end, and so expensive to travel as in the United States.” While the Judges’ Bill “is not intended to reform the entire judicial procedure of the country,” it surely would transform the appellate jurisdiction of Taft’s court. The key change was the removal “of all obligatory jurisdiction” over actions taken by the circuit courts of appeals. Of course litigants might yet be able to gain Supreme Court review, but only through the certiorari route. Most federal litigants already had, observed Cummins, a primary trial in the district court to be followed by an appeal to a circuit court of appeals—a tribunal “that ranks as high or higher than the supreme tribunals of the states.” This duality should suffice for the great majority of cases. There would be no need for Supreme Court action unless “the questions involved are of grave public concern or unless serious uncertainty attends the decision of the [lower courts] by reason of conflict in the rulings of these courts or the courts of the states.” Cummins then signaled committee acceptance of the cause pushed by Van Devanter, McReynolds, and Sutherland. “It is believed,” he wrote, that the ability of the circuit courts “to certify questions to the Supreme Court” together with the right to “file a petition for certiorari will furnish ample opportunity for all cases to go from the circuit court . . . to the Supreme Court which ought to be heard by the latter tribunal.”46 45. Ibid. 46. Ibid., 3. The key words here are “all cases,” and “ought to be heard.”

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Possibly with an eye toward congressional approval of his bill, Cummins added that the changes sought were not for “the convenience of the courts.” Rather they were “intended to make the administration of justice more certain, more uniform, more speedy, and less expensive.” Such a “reform ought to be accomplished.” With a presidential election coming up and with Senator Robert La Follette calling for some limitation of high court authority, the legislators could surely be aware that “every failure to pursue the right path which results in a refusal to consider the real point or points in controversy tends to destroy the confidence of the people in their judicial tribunals. There never was a time when directness of expression was more important than at the present moment.” 47 But before the House could take up the Judges’ Bill, putting aside the issue of Senate action, Congress adjourned in June 1924, not to reconvene until after the November election. Although it would be a short lameduck session, Taft wrote to his son that “we are going to make an effort . . . to try and get our Supreme Court bill through. I don’t know whether we can do it, but the only way is to keep trying and after a while we may induce some action.”48

4 The 1924 presidential campaign season came and went. While there was no doubt among the Republicans of Coolidge’s renomination, the Democrats were badly split with internal and ongoing controversy concerning Prohibition, anti-Catholicism, and the KKK. Ultimately after an unprecedented period of deadlock, the delegates turned to an outstanding appellate attorney well known to Taft, John W. Davis.49 It will be recalled that Taft had sought unsuccessfully to persuade Davis to accept appointment to his court. Now he described Davis as “a very self-contained man and a brilliant lawyer and a very good fellow.” But “I don’t think he is going to be elected.” The chief justice predicted, correctly, that La Follette running as a third-party candidate, “is going to find, as I think the Democrats are going to find, that he will draw more from the Democratic party on the labor end than he will from the Republican party.”50 47. Ibid., 4. 48. Robert A. Taft Papers, November 30, 1924. To his daughter Taft added that “the way to get legislation through is to continue to fight [for] it each session and ultimately to wear Congress out.” Manning Papers, December 1, 1924. 49. The convention lasted for more than two weeks, while the balloting itself went on for nine days. The standard biography of Davis remains William Harbaugh, Lawyer’s Lawyer: The Life of John W. Davis (New York: Oxford University Press, 1973). See 194–250. 50. Robert A. Taft Papers, July 14, 1924. Although La Follette wanted Justice Brandeis as his running mate, Brandeis rejected such a proposal. For his part Davis hoped that Senator Thomas Walsh, Democrat from Montana, would join the ticket as vice presidential candidate, but Walsh also declined. As will be seen, Walsh would have much more to do

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During the fall of 1924 Taft had to confront the fact that though support for his bill from the Senate Judiciary Committee was strong, it was not unanimous. Montana Democratic senator Thomas Walsh, a well-known attorney with heavily progressive leanings, opposed the expansion of certiorari. Shortly after the bill had been first introduced in 1922, Walsh described it as “exemplifying ‘that truism, half legal and half political, that a good court always seeks to extend its jurisdiction, and that other maxim, wholly political, so often asserted by Jefferson, that the appetite for power grows as it is gratified.’” 51 Walsh’s apparent intransigence on any expansion of certiorari troubled Taft, who watched hopefully for Walsh’s defeat in his 1924 reelection effort, but to no avail. Reelected yet again to a fourth term, Walsh remained in the Senate until shortly before his sudden death in 1933; he had resigned in preparation to accept Franklin Roosevelt’s nomination as his attorney general. In the meantime the chief justice voiced frustration to his daughter Helen, describing Walsh as one who has “no patriotic purpose” in what he does. “Objections always weigh much more with” him than “reasons for helping.” Walsh “is opposed to the Federal Judiciary . . . and therefore he does not wish to facilitate the dispatch of justice with them.” Reflecting a tone of petulance, which unfortunately increased as Taft’s health slowly deteriorated from 1924 until his death in 1930, he labeled Walsh as “a narrow, vindictive, small minded man, he has attained more reputation than he deserves. . . . However, we have to get along with him. The good Lord keeps him in the Senate for the purpose of trying the patience of men wishing to progress, and yet he is called a Progressive.”52

with the Judges’ Bill. Davis ended up with none other than Charles Bryan, the brother of William Jennings Bryan, as his running mate. See Hartnett, 1681. While Taft respected and admired Davis, the same cannot be said concerning his opinion of William McAdoo, President Wilson’s son-in-law as well as his first secretary of the treasury, who unlike Davis eagerly sought the 1924 Democratic presidential nomination. McAdoo was “nothing but a demagogue . . . willing to sacrifice the country if only it means his advancement. I think his election would have been more dangerous to the maintenance of our court and the federal Judiciary than that of any other man.” Robert A. Taft Papers, February 3, 1924. 51. Hartnett, 1645. In a real sense the Judges’ Bill gave the court more elasticity concerning certiorari. Walsh claimed that the bill gave the judges “unrestrained discretion.” Hartnett, 1671. Actually it can be argued that the legislation did not propose to expand or extend judicial authority as much as to increase the flexibility by which it could be exercised. 52. Manning Papers, November 30, 1924. Walsh did not represent the only irritant concerning the Senate. Taft referred to the “moth eaten crowd of Republicans in the upper chamber” and observed further that “the vicious disposition of Senators to use appointments to the Bench for their own political purposes is a thing that the President needs the utmost courage to resist.” Ibid., April 27 and November 30, 1924.

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Again Taft sought the aid of President Coolidge to support the Judges’ Bill in his second annual message to Congress, submitted on December 3. “He told me to write him something, which I did. I’m afraid he won’t put in all I have written, but if I can get him started, it will perhaps attract the support of the party members.” 53 However much he “borrowed” from the chief justice, Coolidge included a full paragraph on the court’s congested docket, noting that the opening term had 687 cases, an increase of almost one hundred in one year. “Justice long delayed is justice refused.” Further “unless the court be given power by preliminary and summary consideration to determine the importance of cases, and by disposing of those which are not of public moment reserve its time for the more extended consideration of the remainder, the congestion of the docket is likely to increase.” Finally he noted that the Senate Judiciary Committee had reported favorably on the measure, and Taft’s bill “should have the immediate favorable consideration of the Congress.” 54 Barely two weeks later the House Judiciary Committee took up the Judges’ Bill, and once again Justice Van Devanter appeared as the first representative for the court. Although he reiterated the point that the justices “are loath to appear in the attitude of advocating any particular form of legislation,” this time Van Devanter undercut his own contention. The bill under consideration concerned a subject “which affects, and affects seriously, the ability of . . . the court to function as we think the Constitution and Congress intend that it should. “We appear,” he stated, “for the purpose of making such suggestions as are born from our experience and of aiding you in understanding the situation which the bill is intended to correct.” In short it was this Judges’ Bill that Van Devanter extolled, explained, and endorsed.55 Possibly with Senator Walsh in mind, Van Devanter made two initial points. As is not unusual for proponents of a measure that in fact makes a significant change in existing practices, he downplayed its innovative character. Essentially the bill simply “relieves the present crowded docket of the . . . Court by diminishing the obligatory jurisdiction . . . and enlarging its discretionary jurisdiction.” In so doing, however, “it does not take any case out of the [court’s] appellate jurisdiction that is now within” it, but “merely transfers certain classes of cases” from one jurisdiction to the other.” 56 Further the justice wanted to 53. Robert A. Taft Papers, November 30, 1924. 54. Calvin Coolidge, Second Annual Message to Congress, December 3, 1924, http:// millercenter.org/president/speeches/speech-3807. 55. Hearing, “Jurisdiction of Circuit Courts of Appeals and of the Supreme Court of the United States.” U.S. Congress, House, Committee on the Judiciary, 68th Cong., 2nd Sess., 1924, 6; hereafter referred to as House Hearing, 1924. Van Devanter did not contradict the observation by Congressman Ira Hersey that “Taft’s court had fashioned the bill at the urging of the ABA. In fact, however, Taft had prodded the ABA to support the Judges’ Bill, not the other way around.” Hartnett, 1687. 56. House Hearing, 1924, 7.

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clarify the term “discretionary jurisdiction” when applied to granting certiorari. “This does not mean,” he emphasized, “that the court is authorized merely to exercise a will in the matter, [as had been implied by Senator Walsh] but rather that the petition is to be granted or denied according to a sound judicial discretion.”57 This issue of discretionary power concerned one member of the committee, Andrew Montague, Democrat from Virginia. He asked Van Devanter if his court still proposed “to exercise very careful scrutiny under the discretionary power you have heretofore indicated.” The justice replied “of course, we could not maintain the institution and make it accomplish its purpose unless we did, and there is no purpose to do anything else.” Obviously Montague demonstrated interest in this point. He not only repeated the question again but added that “I wanted the record to show that.” 58 Less concerned with power than with purpose, Justice McReynolds reiterated Van Devanter’s comments, noting that “it is utterly impossible for us to pass upon all litigation that involves a federal question, and if we undertake to do it the delay will be intolerable, our strength will be frittered away and the things that ought to have attention will not receive the attention that they should have.” 59 Taft returned to the House committee as the final witness for a brief followup. He emphasized once again what he thought were two misconceptions if not mistaken views widely held by some congressmen. “Often in the legislature,” he complained, “there is resounding eloquence on the subject that every poor man should have the opportunity to carry his case to the last court.” Actually “there is no statement that is so unfounded as that. The truth is that it is in the interest of the poor litigant that litigation should be ended.” The second error is the “supposition that the mere suggestion of a constitutional question is something that should require the case going right through.” Any able lawyer could “cite the fourteenth amendment and the fifth amendment and you can get up a good deal of fog, which it is the business of the court . . . to clear away.” 60 57. Ibid., 8. Earlier Taft had suggested to Van Devanter that “emphasis might be put upon the . . . absence of any sound reason why we should not be given power to select all the cases that are to come to us from the Circuit Courts of Appeal.” Van Devanter Papers, January 29, 1924. In his testimony Van Devanter apparently backed away from such a position. 58. House Hearing, 1924, 18. 59. Ibid., 42. McReynolds’s comment may be compared with that of Taft, who had observed that McReynolds “takes less responsibility, and is not a demon for work.” He is, added the chief justice, “most inconsiderate of his colleagues and others and contemptuous of everybody.” Robert A. Taft Papers, April 30, 1924, February 1, 1925. Former justice John H. Clarke concurred. McReynolds “is too much of a grouch to have a good opinion even of himself.” Van Devanter Papers, November 9, 1924. 60. House Hearing, 1924, 28–29. “This case, although it purports to involve a constitutional question, really does not, and we cut it off.”

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Early in the lame-duck session, preceding the inauguration of Coolidge for his own full term, the House committee unanimously recommended that the Judges’ Bill pass and drew heavily on Van Devanter’s analysis and explanations. In particular, and in a manner similar to the Senate report, the House version labeled the Judges’ Bill as “one prepared by the justices . . . not as volunteers, but in answer to a proper request to do so.” The resulting proposal in turn “was submitted to all the justices and approved by them.” 61 The emphasis by both branches of Congress on the unusual origins of the bill can be explained by their sensitivity to the possibility of a claim that a group of justices on their own cobbled together a bill, volunteered to speak on its behalf, and lobbied Congress to do their bidding. As has been seen, while such a scenario had minimal basis in reality, all parties to this legislation were anxious to avoid any apparent linkage to it. Considering that the Judges’ Bill proposed the most far-ranging changes in Supreme Court jurisdiction in more than thirty years, the lack of interest by the House is striking. There were no significant questions asked concerning its content, and the few raised were “slight and singularly unenlightened.”62 Only five congressmen spoke, and the most strident, Texas Democrat Thomas Blanton, objected not to the bill but to the speed with which it was being enacted. “How on earth may we expect to frame sane legislation under the present surroundings? This is a most important bill . . . and yet I dare say that there are not five men here who have heard the bill read.” 63 Without debate the House quickly agreed to nine minor committee amendments, including corrections, and passed the legislation without even a recorded vote.64 Again Frankfurter and Landis were justified in observing that the House “behaved like an uninformed and indifferent ratifying body, manifesting no awareness that it was passing a bill involving really great changes in the disposition of federal litigation.” 65 The Senate took up the Judges’ Bill on January 31, and Senator Cummins quickly discovered that several of his colleagues remained concerned about the extent of certiorari authority given to the Supreme Court. One senator asked if the justices declined to hear the great bulk of cases referred to them from the circuit courts, what was to prevent these intermediate tribunals from “becoming courts of last resort on constitutional questions?” 66 Cummins 61. Hartnett, 1691. 62. Frankfurter and Landis, 852. 63. Congressional Record, vol. 66, part 3, 68th Cong., 2nd Sess., 2879. 64. Congress rejected out of hand one other amendment, which would have given Native Americans holding land the right to seek a high court writ of error if their claims had been rejected by their highest state court. Frankfurter and Landis, 853. 65. Ibid., 854. 66. Congressional Record, vol. 66, part 3, 68th Cong., 2nd Sess., 2753. The speaker was Royal Samuel Copeland, Democrat from New York. Cummins observed that earlier his

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responded that not every case that is alleged to involve a constitutional question is permitted to reach the Supreme Court as a matter of right under this “proposal.” He further reminded his colleagues that Copeland had touched on “the only point about which there can be fair controversy respecting the bill, . . . whether there should be any obligatory appellate jurisdiction” by the Supreme Court over the circuit courts of appeal.67 Of greater concern to Cummins, however, were the comments from Thomas Walsh, his colleague on the Judiciary Committee, who had unaccountably missed both the open hearing and the unanimous committee votes to report the bill favorably to the Senate. Walsh emphasized that “I am not at all unsympathetic with the measure.” He further agreed that for the most part after two separate judicial proceedings, “a trial on the merits of the case in the Supreme Court . . . is quite unjustifiable.” But the exception might prove the rule, and Walsh found “it difficult to yield to the idea that the Supreme Court . . . ought to have the right in every case to say whether their jurisdiction shall be appealed to or not.” On the contrary, where a federal question is legitimately presented either on appeal from a federal circuit court or a state court, “I believe that jurisdiction ought to be made imperative.” Moreover, in seeking to argue before the high court, a lawyer needed to know “what cases he may take there as of right and what cases he must go and ask permission to take there.” 68 When the Senate returned to the bill on February 3, Cummins informed his colleagues that in the interim the House had passed the Judge’s Bill. At his request the Senate with minimal discussion and no roll calls adopted some thirteen amendments, including corrections, all of which Cummins described as “certain formal matters which are really formal,” [sic] presumably intended to reconcile his pending statute with the House version.69 The last two proposed changes, however, confronted the concerns raised earlier by Copeland and Walsh.70 One mandated that the final judgment in a state’s highest court affirming the unconstitutionality of a state statute on federal grounds “may be reviewed by the Supreme Court . . . as a matter of right.” He noted Walsh’s

subcommittee had prepared “a brief but comprehensive . . . analysis of the bill. That analysis . . . has been in print for nearly a year and open to the examination of every Senator who is interested in the subject.” Ibid., 2755. 67. Ibid., 2755. 68. Ibid., 2757. Walsh further suggested that the bill be returned to committee in order to resolve this uncertainty, but Cummins refused to accept such a step. Ultimately the Senate agreed to take up the legislation once again on February 3, 1925. All parties were aware that this lame-duck session of Congress would conclude on or before March 4. 69. Ibid., 2918. 70. Well aware that in the waning days of a Senate session, if so inclined, one individual could easily block passage of a measure, Cummins took the doubts raised by Walsh and Copeland seriously and moved to assuage them before such action could occur.

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point that “there was a possibility that the certiorari section might be construed to override the section which gives the review as a matter of right.” After “consultation with my friend [Walsh] and with the justices of the court” (here presumably Cummins meant Taft, Van Devanter, McReynolds, and Sutherland), the amendment had been proposed. It was promptly accepted. The final amendment undertook to preserve the same review of a federal circuit court decision by the Supreme court, again as a matter of right.71 This change also received approval, even as Cummins reiterated once again his insistence that “we are expressing no want of confidence in the Supreme Court.” Rather the bill sought to enable the tribunal “to do with reasonable promptitude the business which comes before it.” His emphasis prompted Senator James Reed to observe that as Cummins voiced repeated confidence in the jurists, he had accepted amendments that provide an “absolute right of appeal in certain cases. This means that you do not trust entirely to the discretion of the Supreme Court in issuance of writs.” 72 But Reed joined Walsh in declining to derail the Judge’s Bill as it moved toward final Senate approval. Yet Walsh could not resist the opportunity to remind his colleagues that in 1915, and now again in 1925, Congress had restricted the right of appeal to the high court. To be sure, there had been and would be numerous instances of claims, “often shadowy,” of constitutional violations. “But the prevalence of the evil, if it be such . . . is a very poor reason for denying to the meritorious classes of cases . . . a right to be heard in the tribunal whose appropriate function is to give an authoritative interpretation to the Federal law.” On the other hand Cummins had acquiesced in presenting two amendments that preserved appeal to the Supreme Court as a matter of right. Further Walsh could find few—if any—colleagues to support him, “and I do not feel like standing alone in the matter.” 73 When the final vote on passage was taken a few minutes later, only one senator voted against the Judges’ Bill. More candid and specific than either Copeland or Walsh had been, Alabama Democrat James Heflin reflected something of a populist tone, as he spoke in opposition. For the high court “to say to any citizen, I care not how humble he may be, simply that he can not appeal a case involving his rights, that he can not and will not be heard, it seems to me to be wrong.” Heflin did not want the court to be overworked. “But I . . . think more of the rights of the citizen . . . than I do of any effort to lessen their work and provide for the comfort and convenience of the Supreme Court ju[stices].” He wanted to “enter my protest against legislation that will vitally affect the citizen’s right to appeal.” Indeed “if we are not careful and watchful the day will 71. Ibid., 2919–20. 72. Ibid., 2924. 73. Ibid., 2926.

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come when the highest court in this land will be open to nobody but the immensely rich and the great corporate concerns of the country.” 74 By a lopsided margin of seventy-six to one, with nineteen senators not voting, the Senate passed the bill. For all his concerns Walsh ultimately voted in favor, while Copeland did not vote at all. Neither did George Norris and Robert La Follette. Nevertheless Taft observed to one correspondent that these two senators, among others, “are against everything I like, partly I suppose because we do not agree on anything, and partly because they like to defeat a measure of which I am a sponsor.” 75 All that remained of the legislative process was House action on the Senate version of the Judges’ Bill, which took place the next day, February 4. Again the House demonstrated a surprising—or not— lack of interest in the specifics of the measure. Congressman Graham could not even specify the Senate amendments because “I have not the bill before me.” He added that the amendments do “not involve any organic change or even an important change[but were] inserted to satisfy the objections of Senator Walsh.” 76 By voice vote the House quickly accepted the Senate changes. Of course hovering over the entire legislative process had been the zeal and involvement of Taft and his fellow justices. In the end Congress deferred to the court, and although Taft “had to spend considerable time in bringing it about, it is worth all it costs.” 77 One “has to see things done up there, if you expect to get them done.” 78 The truly remarkable conditions under which the Judges’ Bill had been prepared, presented, and passed remain worthy of note. Never before had several justices been so involved in parts of this legislative process. On the other hand never before (or since) has a former president sat on the high court, let alone as chief justice. Taft’s tactics as a spokesman, lobbyist, and political persuader were significant and effective, even if they went to the cusp of appropriate judicial conduct. In the end Congress as a whole, as well as the ABA, 74. Ibid., 2928. “The humble citizen will not be able to reach the high court if we are going to permit ju[stices] who may be looking for the least work possible and for longer periods of leisure to lay down rules and regulations by which a citizen is to lose his right to carry certain cases . . . to the highest court.” 75. Hartnett, 1702. As for Walsh and Heflin, Taft described one as “the narrow partisan without the slightest sense of fairness” and the other as “the loud-mouthed libeler” and “always a windbag.” Charles Taft Papers, Library of Congress, February 1, 1925; Robert A. Taft Papers, February 1 and 8, 1925. 76. Hartnett, 1703. 77. Manning Papers, February 22, 1925. “Brandeis was not a bit helpful but he most always has some other method of reform that never helps.” Ibid., February 8, 1925. “We have been three years at work on this and it represents really a great effort. Robert A. Taft Papers, February 8, 1925. 78. Hartnett, 1704. From 1925 to the present, the Judges’ Bill has shaped the judicial discretion of the court. It is beyond the scope of this chapter to assess contemporary

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were content to let the justices carry the bill.79 To this day the bill remains the bedrock for the court’s virtually complete control over its docket.80 In sum the Judges’ Bill is a unique statute. Authored by the court, and nurtured by several of its members, passage of this law resulted from an intriguing lack of interest in Congress, matched by effective presentations from the justices, especially Van Devanter. To be sure, the proposed legislation was enacted during a brief lame-duck session early in 1925, shortly before President Coolidge’s inauguration, and politics invariably played a role in its outcome. With few exceptions the circuit courts of appeal became and remain the last stop for many litigants, while the Supreme Court was given and retains almost complete discretion to pick and choose what cases would be placed on its docket. But this discretion is not total, owing largely to the desire of the bill’s sponsors to placate Senator Walsh, and the fact that in two instances appeal to the Supreme Court “as a matter of right” was retained. These concessions apparently resulted in Walsh’s somewhat grudging support for passage in spite of his concerns.

5 On October 31, 1924, as he persisted in his efforts to have his Judges’ Bill enacted into law, Chief Justice Taft wrote to his close friend, aide, and confidant Gus Karger, for many years the Washington correspondent for the Cincinnati Times­Star, long owned by Taft’s older brother, Charles.81 “The truth is,” he observed, “that you are getting to a time in life when you ought to observe precaution. You have a better chance than I because you are not as old as I.” Recalling his years of traveling, lecturing, and teaching between 1913 and 1921, Taft wondered “that I lasted long enough to be where I am, and that I survived, without marked evidence of deterioration, three very hard years

concern with its long-term results. But Hartnett observed that “at the very least . . . the Judges’ Bill gave a new baseline from which to expand such discretionary control. Moreover, by making the discretionary jurisdiction the order of the day, I believe that [it] accustomed the court to such discretion and encouraged its expansion.” Ibid., 1705. 79. As the ABA spokesman, Thomas Shelton aptly paraphrased Taft’s comments, “neither the [Congress] nor the Bar Association knew enough about it to discuss it intelligently and they simply would have made a bunch of donkeys of themselves in trying to do it.” Hartnett, 1696. 80. See Hartnett. 81. See the second half of Lurie, William Howard Taft, for more information concerning the relationship between Taft and Karger, whom Taft believed would be best qualified to write his biography. “I would have been very glad to have Gus act as my biographer, hoped that he would outlive me, and knew that he was so familiar with everything connected with me and was such a good writer that he could make a presentable volume.” I have “no purpose of writing any memoirs. Indeed, I don’t expect to do that at all unless I live a great deal longer than I think I shall.” Manning Papers, November 15, 1925.

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in this court. Be warned by my example.” 82 In less than a month Karger was dead. But Taft’s letter to his old friend, if prescient, was at the same time less than accurate concerning Taft’s own health. In fact six months before he wrote he informed his daughter that he had suffered from rapid heart palpitations and “have stayed in bed until it was time to go to Court and have come back to bed after court. . . . I did not want to give it publicity and have people make a fuss over my staying away.” More troublesome, the physician “does not give any good explanation of what brings these attacks on . . . except that the heart is out of whack in some way.”83 A few weeks later he conceded to his son that some eight days of rest and digitalis “helped me,[but] did not rid me of the irregularity.” Another medical opinion advised Taft that “I had reached the turn in the road, that I would now have to live with much more care . . . and with a due regard to the necessity for rest and quiet.”84 Taft’s tenure can be divided into three periods. The first and most productive was from 1921 to early 1925. The second marked the beginning of what would become serious medical issues, while the third from 1927 to 1929 showed him in increasingly precarious health. Beginning with his heart problems, the chief justice never recovered the pace concerning output of his opinions and active administration of his court that had characterized his first three years on the bench, culminating in passage of his Judges’ Bill. “I am conscious,” he wrote, “that I am not doing the thorough work I used to do in the first three years.” With “my curtailed hours I have a good deal of difficulty keeping up.” 85 Indeed earlier in May he had noted that “I could take over the cases of some of the brethren who are much further behind than I am, but I have concluded that it is my business not to increase my work this year.” Well aware of his heart condition—indeed he had barely five years to live—Taft realized “that many of my friends are gone, and I have reached a time of life when I must expect it.” After Karger’s death he wrote that “I am doing the work of the Court, but not doing it so hard.” 86 One aspect of the work was his participation in President Coolidge’s appointment of a new justice, the last to be named during Taft’s tenure.

82. William H. Taft–Gustave Karger Correspondence, Cincinnati Historical Society, folder 80, October 31, 1924. 83. Manning Papers, April 27, 1924. “It isn’t,” Taft added, “the most desirable part of one’s body to be out of whack.” 84. Robert A. Taft Papers, June 3, 1924. 85. Ibid., January 25, 1925. 86. Ibid., May 4, November 30, 1924.

5 1924–1925 A Final Appointment amid Emerging Judicial Trends

1 By 1924 Justice McKenna was senior justice in terms of years on the court. Although three years younger than Holmes, who was eighty-three, McKenna’s mental ability and stability had declined steadily. In March Taft wrote of his colleague that he “shows most conclusive signs of inability to master any question. Never,” he added, had McKenna “been a strong judge, but his present lack of grasp is the result of failure of age. As his lack of grasp makes him sensitive, it makes him obstinate. I don’t know exactly what we are going to do.”1 Taft’s concern was legitimate, for if McKenna cast a deciding vote on a case, “it would be too bad to have a man like that decide when he is not able to grasp the point, or give a wise and deliberate consideration of it.” 2 The chief justice tried to persuade some of his colleagues to pressure McKenna into retirement, but Holmes declined even though “he agrees that it ought to be done.” On the other hand Taft consistently emphasized that age was not the issue and pointed to Holmes to prove his point. Holmes “was keen and active and does his work with vim.” Moreover he “has a genius for giving a certain degree of piquancy and character to his opinion by sententious phrases.”3 Throughout his tenure in the center seat, Taft maintained that

1. Manning Papers, March 2, 1924. McKenna “does not know what he means himself. Certainly no one else does. I try to give him the easiest cases, but nothing is too easy for him.” Mason, William Howard Taft, 214. 2. Mason, William Howard Taft, 214. 3. Charles Taft Papers, November 1, 1925, March 7, 1926. At the same time, however, Taft believed Holmes to be a poor constitutional lawyer, as “he lacks the experience of affairs in government that would keep him straight on constitutional questions.”

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Holmes was “a most learned lawyer, especially in the common law, and he is brilliant.” 4 In November the justices informally decided to postpone decisions in any case wherein McKenna’s vote would be decisive, but he insisted that “when a man retires, he disappears and nobody cares for him.” Finally McKenna agreed to retire on January 5, 1925, owing not so much to Taft’s insistence as to the fact that he spoke for a strong majority of the court in urging such a step. Less than one week later Taft informed his son that “the Attorney General [Harlan Fiske Stone] has been nominated for the court. We are greatly rejoiced in this.” Indeed “his appointment was one eminently fit to be made.” 5 Taft was even more enthusiastic about Stone in writing to his daughter, Helen. “He is just about the right age, he is a hard worker and a learned lawyer, not only as a Professor and Dean in the [Columbia University] Law School, but is a man of very considerable active practice. I like him. He is a straight-forward, honest, kindly, judicially tempered man.” 6 In January Taft mentioned to Stone that “we are all most anxious to have you as a colleague.” 7 Chief Justice Taft’s tenure fell within the terms of three presidents—Warren Harding (1921–23), Calvin Coolidge (1923–29), and Herbert Hoover (1929– 30). As each succeeded the other, so too did Taft’s effectiveness and success as a presidential “adviser” diminish. Of course the fact that Harding made three additional high court appointments, while both Coolidge and Hoover each had only one such vacancy before Taft’s death on March 8, 1930, invariably narrowed Taft’s opportunities for effective communication with them.8 Yet the chief persisted, even though he became well aware that his influence had waned during Coolidge’s full term in office. Apparently it was sufficient for Stone’s selection, although one suspects that Coolidge did not need a great deal of persuasion concerning his current attorney general. In fact Coolidge and Stone had known each other for many years. They had been classmates at Amherst College, and the new president called on Stone to clean up the 4. On the other hand Taft found the speed with which Holmes turned out his opinions daunting, a tendency that Holmes could understand. After he drafted a major decision in four days, he feared “that my brethren or some of them will think I should have taken a month. But I always say that it is impact not dead pull that drives a pile and I think I have seen and stated the points.” Holmes­Laski Letters, 1: 459, December 18, 1924. 5. Robert A. Taft Papers, January 11, 1925. 6. Manning Papers, January 11, 1925. 7. Harlan Fiske Stone Papers, Library of Congress, January 27, 1925. Hereafter cited as Stone Papers. 8. Although Hoover made four nominations to the high court, he submitted only one before Taft died, this being Charles Evans Hughes as the new chief justice. Taft endorsed Hughes just before his resignation, which preceded his death by barely a month. Hughes remains the only Supreme Court justice in American history to serve on the court twice, 1910–16 and 1930–41. Appointed by Taft in 1910, he succeeded Taft in 1930.

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scandal in the attorney general’s office following the forced resignation of Harry Daugherty. According to Taft, who visited with Coolidge shortly after the announcement of McKenna’s retirement, Stone lacked only previous judicial experience—not a serious matter considering his other positive attributes mentioned above by the chief justice.9 Taft later claimed that “it is a great pleasure for me to know that I rather forced the President into [Stone’s] appointment.” Coolidge “was loath to let him go, because he knew his worth as attorney general, but I told him . . . that he was the strongest man that he could secure in New York.”10 On the other hand Taft had written an earlier letter to his son in which he observed of Stone that “I am not so confident of his . . . hewing to the line, and I warned the President about it.”11 The accuracy of these recollections aside, ultimately Taft may have convinced both himself and Coolidge that the appointment was warranted. Later, as will be seen, he would come to regret Stone’s selection. Although he was an able legal scholar as well as a successful advocate and academic administrator, Stone’s nomination ran into some difficulty with certain insurgent senators concerning his role as President Coolidge’s point man in cleaning up the post-Harding scandals. Undaunted Stone volunteered to appear and answer questions before the Senate Judiciary Committee, the first high court nominee ever to do so. He must have indeed been persuasive, for the Senate confirmed Stone by a vote of seventy-one to six.12 But the newest justice found his functions a bit unsettling in the beginning and determined that at least in his first term he would not file numerous dissents. He submitted only four such opinions during it. Further Brandeis and Stone, while frequently agreeing with each other concerning interpretation of the law, experienced a few matters of friction coming between them. Ever the academic Stone apparently spent much more time on a case than Brandeis considered necessary. “I think it’s wrong, . . . but I think it’s right, but. . . . Doesn’t know and doesn’t take the trouble to find out.” For his part Stone also found Holmes’s epigrammatic phrases fun to read, “but the old man leaves out all the troublesome facts and ignores all the tough points.”13 At first Stone found Brandeis’s addiction to footnotes especially in dissent unnecessary. In his second term however he had grown used to the practice and 9. So too for that matter did Brandeis and Hughes, among others, lack previous judicial experience. 10. Robert A. Taft Papers, July 2, 1925. 11. Mason, William Howard Taft, 172. 12. While pleased Taft remained unimpressed with the Senate as an institution, “where there is less appreciation of what the people really think than anywhere else that I know of. . . . Like the Bourbons, they never learn anything and never forget anything.” Stone Papers, January 27, 1925. 13. Urofsky, Louis D. Brandeis, 577.

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adopted it himself, not just in dissent.14 By 1926 the notation “Holmes, Brandeis, and Stone dissenting” became much more evident as later decisions were handed down. Taft recalled that while under Harding he enjoyed marked success as he had “tried . . . to influence the President with reference to judicial appointments,” but now [Coolidge] thinks I am too insistent on having good men . . . and [I] am going to keep out of judicial selections hereafter. It takes a great deal of time to run around.” Further Taft again acknowledged the fact that now senators insisted on playing a much greater role in presidential judicial selections, as President Coolidge was learning. Taft observed how much his preferences and policies could be affected “by the vote of a two penny smallminded United States Senator.” He did not think “there are many who don’t come within that description.”15 After Stone’s arrival on the court, no further changes in its composition took place during the remainder of Taft’s tenure, barely four years. Until his resignation in February 1930, when he was already desperately ill, court membership had not altered. But the dynamics in the relationships between the jurists shifted, largely owing to Taft’s declining ability to keep them functioning in an atmosphere of harmony. In 1925, the year Stone joined the court, Taft wrote that “we haven’t had many dissents, and we have been pretty nearly solid in all cases.”16 By mid-March 1925 Taft could write to his son that “Stone is an admirable addition to the Court.” Indeed, he added, “it is a pleasure to work with the Court as it is now.” Holmes, the senior justice, “assures me that never before in the Court [Holmes probably meant since his time on the bench, which began in December 1902] have they gotten along with so little jangling and dissension.”17 This is the atmosphere that awaited Stone. An examination the 1923 and 1924 terms appears to demonstrate the accuracy of Taft’s perception at the midpoint of his tenure. Dissents were few and written dissents even fewer. These years represent the high point—as well as the midpoint of Taft’s tenure. 14. In Stone’s papers is an undated note from “V” (Justice Van Devanter) asking Stone to consider whether in a decision he was preparing for the court (it appears in 272 U.S. 451 [1926]) “the long note (possibly more than one) ought to be omitted—whether it encourages inadmissible use of notes. I thought of it when reading the opinion, but preferred to make no suggestion. Since then two of your brothers who were speaking of opinions in a general way referred to the use of quotes and mentioned that opinion as going beyond what they though proper in that regard. I merely suggest that you consider it and then do as you think best.” Van Devanter could not resist a final kick. “As I recall the opinion[,] the long note adds nothing to it.” In spite of Van Devanter’s concerns, examination of the printed decision indicates that the two notes he mentioned remained in Stone’s opinion. 15. Robert A. Taft Papers, March 15, 1925. 16. Mason, William Howard Taft, 203. 17. Robert A. Taft Papers, May 3, 1925.

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2 Stone had been appointed and confirmed in the aftermath of Senator Robert La Follette’s attempt to gain congressional enactment of a new constitutional amendment restricting federal judicial authority. It would have authorized “Congress to reenact any federal statute that the Court had declared unconstitutional” and further to bar any lower federal judges from “nullifying an act of Congress.”18 From 1922 to 1925 La Follette devoted a great deal of time to his proposal, but it never reached the House floor. His efforts generated a good deal of public debate, commentary, and criticism concerning Taft’s court, as the 1924 presidential campaign came and went.19 As has been previously noted, Taft brought a well-honed political perspective to his role as chief justice. While he suspected, correctly, that La Follette’s efforts both to curb his court’s authority and to defeat incumbent president Coolidge as well as his Democratic opponent John W. Davis would end in failure, Taft remained concerned. Professor William Ross well observed that the chief justice and his colleagues “must have been aware that the movement to curb the Court’s jurisdiction . . . would gather momentum if the Court continued to render decisions that were unpopular with a large segment of the population.” Further “a continuation of highly unpopular decisions could significantly erode the Court’s institutional prestige.” 20 From Taft’s perspective unpopular decisions, especially when accompanied by one or more dissents that illustrated internal disagreement among the justices, “should be kept to an absolute minimum.” 21 Taft went to great lengths to ensure unanimity from his brethren. He served as chief justice for eight full terms, during which time the justices “handed down 1,554 full opinions, of which 84 percent were unanimous.” Such a statistic stands in sharp contrast to more recent holdings. Melvin Urofsky wrote that during the 1990s “only 27 percent of the opinions were unanimous.” 22 The highpoint for unanimity in Taft’s court appears to have been during the 1923– 25 terms. Indeed it appears that only two formal dissents can be found in volume 263, among the several volumes devoted to the October 1923 term. Such a high level of unanimity among Taft’s brethren is unusual in that the mid-1920s 18. W. Ross, Muted Fury, 194. 19. Ibid., 193–217. See my earlier comments in chapter 3 on such cases as Truax, Bai­ ley, and Coronado Coal. One of the best summaries of La Follette’s proposal and the context in which it played out is the study by W. Ross, Muted Fury. 20. W. Ross, Muted Fury, 201. 21. Mention has been made in an earlier chapter of Taft’s negative attitude toward dissents in general. 22. Urofsky, Louis D. Brandeis, 579.

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also represented the highpoint of what Urofsky described as “classical legal thought,” discussed in an earlier chapter. It will be recalled that the term refers to jurisprudence that reflects (a) abstract reasoning; (b) deliberate ignorance of the facts (or conditions) of industrial society; (c) a limited role for the state; and (d) a belief in immutable law combined with an emphasis on individualism.”23 Sprinkled throughout the Taft court volumes could be found many such cases, and one is not surprised that justices such as McReynolds, Butler, Sutherland, Taft, and Van Devanter consistently expressed classical legal thought in their opinions. However, the high level of unanimity in this period could only mean that other justices not usually sympathetic to it, including Holmes and Brandeis, joined in many such decisions. In other words classical legal thought could sometimes be employed to produce a decision with progressive overtones. One example can be found in a little-known case decided in 1924 after the Adkins decision, which has already been discussed. In 1917 New York had enacted a statute prohibiting the employment of women in restaurants between 10:00 p.m. and 6:00 a.m. in large cities. A Buffalo restaurant owner convicted of violating the law appealed in federal court, on the grounds that the statute violated his liberty of contract as well as the constitutional guarantee of equal protection. None other than the author of Adkins, Justice Sutherland, spoke for a unanimous court and rejected Radice’s arguments. Sounding much like his colleague Justice Brandeis, Sutherland observed that the state legislature “had before it a mass of information from which it concluded that “night work is substantially and especially detrimental to the health of women. We cannot say that the conclusion is without warrant.” Less than a year after Sutherland had proclaimed in Adkins that “liberty is the rule and restraint the exception,” now he insisted that this decision had concerned “a wage fixing law pure and simple.” Unlike this case “it had nothing to do with the hours or conditions of labor.” 24 Where, he added, “the constitutional validity of a statute depends upon the meaning of facts, courts must be cautious about reaching a conclusion respecting them contrary to that reached by the legislature.” Further “if the question of what the facts establish be a fairly debatable one, it is not permissible for a judge to set up his opinion . . . against the opinion of the lawmaker.” 25 In fact there is more to this unanimous decision than appears in the printed versions. Brandeis informed Felix Frankfurter that at first the unanimous outcome in Radice was anything but certain. It was “one of those 5 to 4 that was 23. Ibid., 593. 24. Radice v. New York, 264 U.S. 293 (1924). 25. Ibid. Concerning the New York legislature’s finding, Sutherland added, “since we are unable to say that the finding is clearly unfounded, we are precluded from reviewing the legislative determination.”

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teetering back & forth for some time. . . . Sutherland was the fifth man & he had doubts & after a good deal of study (for whatever you may say of him he has character & conscience) came out for the [statute].” His draft “swung the others around to silence. It was deemed inadvisable to express dissent and add another 5–4.” Indeed “the whole policy is to suppress dissent so as not to make it 7–2. . . . You may look for fewer dissents, that is the one positive result of [the] Borah 7–2 business.”26

3 More often than not classical legal thought was reflected in cases involving state authority and enactment of a statute that might be claimed not “to be affected with a public interest.” However, the law could also be challenged as an invasion of the private sphere and thus a violation of the due process clause.27 Yet at the same time classical legal thought has been reflected in a number of Taft court decisions that favored federal authority. This mode of legal thinking, in other words, did not necessarily limit governmental action, as will be seen in the following instances between 1923 and 1925. One example may be found in the Prohibition cases. The Eighteenth Amendment, establishing national Prohibition, had been declared ratified in January 1919. The legislation to implement it was passed over President Wilson’s veto in October 1919. By 1920, the year before Taft became chief justice, the Volstead Act had been upheld by the high court, in spite of the eloquence of Taft’s dear friend Elihu Root, former secretary of war and of state and senator from New York. He warned the justices that if they affirmed the legitimacy of the Volstead Act, “Your Honors will have found a legislative authority hitherto unknown to the Constitution and untrammeled by any of its limitations.” 28 The court was not persuaded, and by the time Taft joined it there was no doubt about the constitutionality of the statute. Numerous questions, however, continued to trouble the justices concerning the dimensions of Prohibition, and in 1924 Taft wrote to his youngest son that “it would seem as if more feeling could be engendered over the Prohibition Act than almost any other subject that we have in the Court.” 29 At first two cases decided a few months before Taft wrote appeared to belie his observation. The case of Hester v. United States was argued on April 24 and was decided less than two weeks later by a unanimous court.30 It involved two 26. Melvin Urofsky, “The Brandeis-Frankfurter Conversations,” Supreme Court Review, 1985 (1986): 330. 27. Urofsky, Louis D. Brandeis, 599. Urofsky notes that between 1920 and 1930, some 140 state laws were rejected by the Supreme Court. 28. Pringle, Life and Times, 981. 29. Charles Taft Papers, December 28, 1924. 30. 265 U.S. 57 (1924).

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revenue officers who apprehended Hester and another associate after Hester had emerged from his house and given the other individual a quart bottle. He took a gallon jug from a car and ran as the revenue officers gave chase. One of them apparently fired a warning short, whereupon Hester dropped the jug, “which broke but kept about a quart of its contents.” The jug had contained “moonshine whiskey.” Outside the Hester home another officer located a jar “that had been thrown out and broken and that also contained whiskey.”31 Justice Holmes spoke for the court, and besides his customary brevity (his opinion extended to slightly more than two pages), the justice did not bother to cite a single state or federal case. Counsel for plaintiff claimed that the revenue officers’ actions violated Hester’s rights afforded by the Fourth and Fifth Amendments to the Constitution. Holmes disposed of this contention in a few sentences. In the first place the plaintiff’s jug and bottle became available to the officers only after his own actions to abandon them. “The suggestion that [Hester] was compelled to give evidence against himself does not require an answer.”32 True, Hester was arrested on his father’s property, but Fourth Amendment protection for people in their “persons, houses, papers, and effects” “is not extended to the open fields. The distinction between fields and the home “is as old as the common law.”33 Two months later, in what may have been the final decision handed down for the 1923 term, the Taft court confronted a different dimension of the Prohibition amendment. This one concerned what it had been intended to permit and prevent. In November 1921 Congress had enacted a “supplemental bill, which included a provision that “only spirituous and vinous liquors may be prescribed for medicinal purposes.” 34 Two breweries with large amounts of intoxicating malt liquors on hand brought suit to bar implementation of the provision. Speaking for a unanimous court Justice Sanford held that Congress may “adopt any eligible and appropriate means” to make Prohibition effective. Further “the possible abuse of a power is not an argument against its existence.”35 In upholding the statute Sanford cited one of the most famous instances of classical legal thought, Adkins v. Children’s Hospital, in which Justice Sutherland had affirmed—in spite of his negative decision—that the court had “steadily adhered to the rule that every possible presumption is in favor of the validity of an act of Congress unless overcome beyond rational doubt.”36 Sanford added that “we cannot say that prohibiting traffic in intoxicating malt liquors 31. 32. 33. 34. 35. 36.

Ibid., 58. Ibid. Ibid., 59. James Everard’s Breweries v. Day, 265 U.S. 545, 554 (1924). Ibid., 560. Ibid. It will be recalled that Taft, Holmes, and Sanford had all dissented in Adkins.

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for medicinal purposes has no real or substantial relation to the enforcement of the 18th Amendment, and is not adapted to accomplish that end and make the constitutional prohibition effective.” Thus all the participants in the Adkins case still on the court for Everard joined Sanford in affirming federal power, regardless of what their position in the earlier litigation had been. One other example of the Taft court treatment of Prohibition in this period may be offered, and, unlike the two instances cited above, it was difficult to resolve. The case of Carroll v. United States was first argued in December 1923, but the justices could not agree.37 In January 1924 it was restored to the docket for reargument, which took place in March. The case lay pending for almost a year, and the justices did not decide it until March 1925. Carroll appears to have been one of the earliest cases to explore the relationship between the automobile and the Fourth Amendment in the context of Prohibition Plaintiff was convicted of transporting some sixty-eight quarts of bonded whiskey and gin. The trial court admitted into evidence one bottle of each, found by searching an automobile owned by Carroll. Plaintiff argued that this search and seizure without a warrant violated the Fourth Amendment and sought to have his supply of liquor returned.38 Upon denial of this request, followed by conviction, he appealed to the Supreme Court. In March 1925, speaking for a nearly unanimous court, Chief Justice Taft handed down a thirtypage opinion resolving the issue at hand. He cited a rich history of previous cases, all of which had applied the Fourth Amendment in a manner to protect the various plaintiffs.39 None of the decisions, however, concerned the validity under this amendment “of a seizure without a warrant of contraband goods in the course of transportation, and subject to forfeiture and destruction.” 40 Further there was an important distinction “between the necessity for a search warrant” concerning private dwellings and that concerning automobiles involved in the enforcement of the Prohibition Act. Taft observed that “the 4th Amendment does not denounce all searches and seizures, but only such as are unreasonable.” 41 Awareness of this distinction leads to “the true rule that if the search and seizure without a warrant are made upon probable cause, that is, upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction,

37. Carroll v. United States, 267. U.S. 132 (1925). 38. Ibid., 134–35. 39. Boyd v. United States, 116 U.S. 616 (1886); Weeks v. United States, 232 U.S. 383 (1914); Silver­Thorne Lumber Co. v. United States, 251 U.S. 385 (1920); Amos v. United States, 255 U.S. 313 (1921). 40. Carroll, 149. 41. Ibid., 147. Emphasis added.

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the search and seizure are valid.”42 With this distinction established, Taft next sought to apply it to this case. He observed as a “matter of general notoriety” that the area between Grand Rapids and Detroit along the Detroit river “is one of the most active centers for introducing illegally into this country spirituous liquors.” Prohibition agents “were engaged in regular patrol” along the highways between Detroit and Grand Rapids “to stop and seize liquor carried in automobiles.” Agents had observed two so-called bootleggers including the plaintiffs driving from Grand Rapids to Detroit, but they lost sight of the car. Earlier they had met the Carroll brothers who—not knowing the agents’ identity—had agreed to obtain liquor for them. Two months later the same agents still on duty in the same location identified the same men in the same vehicle. This time, however, they were heading toward Grand Rapids, “where they plied their trade.”43 Although not specifically searching for these bootleggers, upon seeing the familiar vehicle the agents stopped, searched, and without a warrant found the sixty-eight bottles of whiskey. Upon conviction by a federal district court in Michigan, the “bootleggers” had appealed to the high court, where Taft found their complaints unpersuasive. “That the officers when they saw the defendants, believed that they were carrying liquor, we can have no doubt.” More important, “they had reasonable cause for thinking so.” Thus “the officers here had justification for the search and seizure.”44 Although six justices joined their chief, including conservatives such as Van Devanter and Butler, Taft failed to convince McReynolds and Sutherland. Indeed McReynolds, who Taft considered to be one of the laziest members of his court, was so irritated by the Carroll decision that he wrote a ten-page dissent, unusual for him. He claimed that “the damnable character of the “bootlegger’s” business should not close our eyes to the mischief which will surely follow any attempt to destroy it by unwarranted methods.”45 This is precisely what happened in this case, according to McReynolds. “The Volstead Act does

42. Ibid., 149. Taft insisted, as do many jurists who seek to minimize the “newness” of their findings, that in fact courts had made such a distinction concerning the Fourth Amendment for well over a century, long before the automobile was invented. Ibid., 151– 53. 43. Ibid., 160. 44. Ibid., 160, 162. Before the decision in Carroll was released, Taft had written to his youngest son of the case and mentioned a forthcoming opinion from him concerning “a very important phase of the National Prohibition Act.” Although the brethren were going to be divided, “I am quite hopeful that I may command six.” The “important phase” Taft mentioned was probably obviating the need for a search warrant when stopping an automobile, as happened in Carroll. Further Taft did carry six other justices with him in the case, Charles Taft Papers, December 23, 1925. 45. Carroll, 163.

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not . . . authorize arrest or seizure upon mere suspicion.” 46 Moreover required proof to justify this search was utterly lacking. “Has it come about that merely because a man once agreed to deliver whiskey, but did not, he may be arrested whenever thereafter he ventures to drive an automobile on the road to Detroit?” 47 Few areas of law were as contentious for the Taft court as the general area of Prohibition. It was not only the federal cases arising after the Prohibition amendment. A number of states had enacted Prohibition statutes as well, and one of them reached Taft’s court in 1925. Litigation coming from Georgia raised the intriguing question concerning what was to become of liquor privately and lawfully obtained years before passage of a state law forbidding its purchase. The plaintiff in this case had emigrated from Europe, where he had been “long accustomed to use alcoholic liquor as a beverage.” His supply had been “for the use of himself, his family and friends in his own home, and not for any unlawful purpose.” Further he “never sold or in any way illegally dealt with intoxicating liquors, and has never been accused of doing so.” 48 What right did a county sheriff possess, whereby he seized this supply of liquor and proposed to destroy it. Taft had no difficulty with this question. In a typical extended sentence, the chief justice insisted that the states have the “power to subject those members of society who [like the plaintiff] might indulge in the use of . . . liquor without injury to themselves to a deprivation of access to liquor in order to remove temptation from those whom its use would demoralize, and to avoid the abuses which [would] follow.” It might indeed be that plaintiff kept careful watch over those who consumed his liquor including, of course, himself. “It is obvious,” however, “that if men are permitted to maintain liquor in their possession, though only for their own consumption, there is danger of its becoming accessible to others.” 49 The state had every right to deny such an opportunity, regardless of the innocence of those to whom the ban might apply. Taft carried seven of his colleagues with him in this case, including such rigid conservatives as McReynolds, Sutherland, and Van Devanter; but not Pierce Butler. Butler disagreed with the logic implicit in Taft’s opinion, which he believed resulted in a violation of a most basic tenet in constitutional law, the right to 46. Ibid. 47. Carroll, 174. According to Taft, McReynolds “delivered himself without reference to his written opinion,” prompting Holmes to comment to Stone (now on the bench) that there were some people who could be most unmannerly in their dissenting opinions.” Mason, William Howard Taft, 216. As will be seen, the difficulties for the Taft court in reconciling modern technology with enforcing Prohibition were far from over. 48. Samuels v. McCurdy, 267 U.S. 188 (1925), 200–201. These quotes are from the lone dissenting opinion of Justice Butler. 49. Ibid., 197–98.

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own and benefit from private property. Such were the liquors taken from plaintiff in this case. They “were valuable for such private use as was intended” by him. As far Taft’s conclusions, “any suggestion that the destruction of such private supply lawfully acquired and held for the use of the owner in his own home is necessary for . . . the suppression of sales or to the regulation of the liquor traffic . . . would be fanciful and without foundation.” To Butler “it seems very clear that as applied, the law is oppressive and arbitrary, and that the seizure deprived plaintiff of his property in violation of . . . the 14th Amendment.” 50

3 In this period the Taft court supported federal authority on a broad level, not just in the Prohibition cases. In 1924 Justice Sutherland spoke for a unanimous court upholding federal over state authority. The case is interesting because in the matter at issue, transmission of natural gas as interstate commerce, Congress had been silent. In one of the three cases decided, a state court conceded that transmission of natural gas through pipelines from one state to another was indeed interstate commerce. But Congress “had not acted in the matter, and . . . in the absence of such action, it was within the regulating power of the state.” 51 Sutherland rejected this claim. Although clearly such transmissions could be regulated by Congress, that body “has not seen fit to regulate it, and its silence . . . is equivalent to a declaration that that particular commerce shall be free from regulation.”52 Distribution of gas to local retail consumers was a legitimate subject for state oversight. These cases, however, concerned wholesale quantities not to the public “but to distributing companies for resale.” Here the interest involved required uniformity of regulation. “Such uniformity, even though it be the uniformity of governmental nonaction, may be highly necessary to preserve equality of opportunity and treatment among the various . . . states concerned.”53 In 1911 the Taft administration had negotiated a treaty with Japan, which, among its numerous provisions, stated that citizens or subjects of the two countries “shall have liberty . . . to carry on trade, wholesale or retail, . . . and to do anything incident or necessary for trade . . . upon the same terms as native 50. Ibid., 202–3. Alexander Bickel observed of this jurist that “there was truth about his physical presence, about the quality of his mind, and about his temperament in the appellation ‘Fierce Butler.” Bickel, 239. Butler’s negative attitude toward dissent was well known to his brethren, and when he filed a dissent, as here, it was because he felt so strongly about the issue. 51. Missouri ex rel. Barrett v. Kansas Natural Gas Co., 265 U.S. 298, 307 (1924). 52. Ibid., 308. 53. Ibid., 309–10.

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citizens or subjects.” 54 The City of Seattle enacted a statute in effect in 1921 requiring that pawnbrokers have a license and restricting such licenses only to U.S. citizens. One R. Asakura, a local pawnbroker, brought suit against the city on the grounds—among others—that this statute made it impossible for him to carry on his occupation, and in due course his case reached the Taft court. Justice Butler handed down the decision for a unanimous court, and his opinion is an excellent example of conservative doctrine, even though it was disguised as progressive in tone. Butler cited the rule of equality embedded in the treaty. It “cannot be rendered nugatory in any part of the United States by municipal ordinances or state laws.” Further it “stands on the same level of supremacy as do the provisions of the Constitution” and will so be applied by the courts.55 Having affirmed the supremacy of the treaty, Butler had to resolve whether or not a pawnbroker’s occupation could be considered as “trade” within its meaning. He wrote that “treaties are to be construed in a broad and liberal spirit, and, when two constructions are possible, one restrictive of rights that may be claimed under it and the other favorable to them, the latter is to be preferred.”56 It was one thing to regulate pawnbrokers in the public interest. But it was a very different matter to use regulation as a means of exclusion from a trade. Hence the Seattle statute violated the treaty, and a state court decision to the contrary must be reversed. Asakura won his lawsuit. Yet Butler found it necessary to add an important caveat. The issue in Asakura’s case “relates solely to Japanese subjects who have been admitted to this country. We do not pass upon the right of admission or the construction of the treaty in this respect.” Nor did Butler make any mention concerning the difficult question of Japanese citizenship.57 Further plaintiff had argued that the Seattle statute also violated his rights under the Fourteenth Amendment. But Butler avoided any consideration of this point.58 If the Taft court was sympathetic to federal power, labor issues were also favorably decided but with less than unanimity. Two labor cases decided in this period were affirmed by a divided court. The case of Cudahy Packing Co. v. Parramore involved compensation ordered under a provision of the Utah 54. Asakura v. City of Seattle, 265 U.S. 332, 340 (1924). 55. Ibid., 341. 56. Ibid., 342. 57. One year later, in the case of Toyota v. United States, Butler held that a member of the Japanese race was not eligible for American citizenship in spite of his naturalization certificate. See 268 U.S. 402 (1925). Chief Justice Taft dissented without explanation. 58. For yet another example of Butler’s sympathy for federal regulation, see New York Central Railroad v. United States, 265 U.S. 41 (1924), where he spoke for a unanimous court. He stated that congressional legislation and orders of the ICC “should be liberally construed to relieve trainmen of the labor and danger involved in . . . handbrakes . . . and to promote the safety of trains and of persons.” Ibid., 44–45.

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Workmen’s Compensation Act.59 An employee was struck and killed by a train engine as he crossed the tracks on his way to work. The accident occurred off the company property, and about seven minutes or so before the work day started. According to counsel for the Cudahy Company, under these conditions the accident had nothing to do with it but resulted from a “common peril, to which the public was generally exposed.” 60 For the state to impose liability under these circumstances was arbitrary and capricious, in violation of the Fourteenth Amendment. Justice Sutherland rejected this argument. In the first place the only customary and practicable way of entering the plant was “one of hazard,” over the railroad tracks. Further Parramore “had no other choice than to go over them in order to get to his work.” In effect “he was invited by his employer to do so.” Indeed he was obliged to do this “regularly and continuously as a necessary concomitant of his employment, resulting in a degree of exposure to the common risk beyond that to which the general public was subjected.” 61 Moreover the fact that accident happened before Parramore was due to begin work was irrelevant. Workers who come and go must be given “a reasonable amount time for that purpose.” Sutherland concluded by stating that “the facts and circumstances peculiar to this case illustrated the causal relation between the employment and the accident” to a sufficient extent “to save it from constitutional objection.” 62 It will be recalled that in the Coronado Coal case (1922), the Taft court held that although a labor union as a legal entity could be sued, coal mining was not in and of itself interstate commerce. The chief justice had spoken for a unanimous court and fashioned an opinion that drew heavily on an unpublished and ultimately abandoned dissent by Brandeis. Now in 1924 another labor case arose, bringing before the court questions very similar to those raised in Coronado. It involved a strike by the United Leather Workers against the Herkert and Meisel Trunk Company. The company had alleged that the union—through illegal picketing and intimidation—had prevented it from manufacturing and assembling their goods for purchasers in a variety of states.63 59. 263 U.S. 418 (1923). 60. Ibid., 422–23. 61. Ibid., 426. 62. Ibid. Sutherland made it clear that while “no exact formula can be laid down which will automatically solve every case,” old conditions between fellow and servant were no longer applicable. That Parramore had been an employee was not in doubt, nor were the unusual conditions under which he had to get to work. It is noteworthy that Van Devanter agreed with Sutherland, while Butler, McReynolds, and McKenna all dissented without opinion. 63. United Leather Workers International Union v. Herkert and Meisel Trunk Co., 265 U.S. 457 (1924), 463.

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There was no evidence whatsoever, according to Taft, “to show that complainants were obstructed by the . . . strikers in shipping their products to other states . . . and no evidence whatsoever that any attempt was made to boycott the sale of [such] products in other states or anywhere.” 64 There was, in other words, nothing to indicate any conspiracy to restrain interstate commerce. Not surprisingly Taft drew heavily on his own opinion in Coronado, as well as his earlier decision in Stafford v. Wallace (1922). He reiterated the holding in the coal case that “the mere reduction in the supply of an article to be shipped in interstate commerce by an illegal . . . prevention of its manufacture is ordinarily [only] an indirect and remote obstruction of that commerce.” In order to come within the antitrust statutes, there must be conduct that is directly burdensome to and actually restrains or directly interferes with it. To be sure, the strikers in this case hoped that the “loss of business in selling goods” would result in a favorable adjustment to their contract. “[B]ut they did nothing which in any way directly interfered with interstate transportation or sale of the complainant’s product.” Taft concluded by citing the dissent in the circuit court of appeals, which had enjoined the strikers. “The natural, logical, and inevitable result will be that every strike in any industry, or even in a single factory, will be within the Sherman Act, and subject to Federal jurisdiction.” Neither the intentions of Congress nor “the decisions of this court warrant such construction.” 65 Mention has just been made of the Coronado Coal case, in which Brandeis had persuaded Taft to accept his contention that in itself coal mining was not a part of interstate commerce. The result was a unanimous holding that although—as with other corporate bodies—a labor union could be sued, in this case there was not sufficient evidence to show an intentional restraint of interstate trade. Now the Coronado Coal controversy returned to the federal courts, with the mine owners presenting new evidence that the United Mine Workers were doing just that. The lower federal courts found for the mine workers, on the basis of the high court’s earlier opinion. The owners appealed, and in 1925 the Taft court took up the case again.66 Taft reaffirmed his earlier opinion that evidence concerning the UMW International Executive Board participation in the strikes and disturbances was lacking. The same could not be said for the conduct of Local District 21, about which new evidence was presented. It indicated that the “purpose of the destruction of the mines was to stop the production of non union coal and prevent its shipment to markets . . . where it would by competition tend to 64. Ibid. 65. Ibid., 472, Unlike Coronado, in which Taft spoke for his entire court, here only five other justices joined him. McKenna, Van Devanter, and Butler dissented, but without opinion. 66. Coronado Coal Co. v. United Mine Workers of America, 268 U.S. 295 (1925).

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reduce the price of the commodity.”67 By a unanimous vote the court reversed the favorable ruling for District 21 and ordered a new trial. But rather than confronting the mine owners in court for yet a third time, the UMW chose to settle for $27,500. When this amount is compared with the earlier trial verdict in the first Coronado case, which had resulted in a $625,000 sanction, the willingness of the union to avoid the risks inherent in a third trial becomes understandable.68 The Taft court had yet another opportunity to reconsider a key labor decision in 1924 when it took up Charles Wolff Packing Co. v. Court of Industrial Relations for a second time. In 1923 Taft had spoken for a unanimous court in rejecting the authority of this Kansas governmental agency to impose a compulsory settlement of hours, wages, and working conditions. Two years later Justice Van Devanter on behalf of a unanimous court again rejected the asserted authority of the Court of Industrial Relations to regulate them. He held that such power was in fact intended to establish a form of compulsory arbitration. As for Taft’s original opinion, “we regard the principles so stated and applied as entirely sound. They are as applicable now as they were then. The business is the same and the parties are the same. So, we reach the same conclusion now that we reached then.” 69 While the Taft court was generally sympathetic to federal regulation, the same cannot always be said for state statutes, as has been demonstrated. One of the most famous examples of this fact can be seen in a case decided only a few months before Taft had delivered his labor union opinions previously discussed. The case concerned the weight of a loaf of bread and its perceived relevance to a statute adopted by Nebraska in 1921. The state sought to establish a uniform weight for loaves, and to penalize, if not eliminate, the practice of baking “short weights.” Professor Melvin Urofsky noted that the term described a loaf that weighed less than it should due to air in the dough.70 All weights were to be “determined on the premises where bread is manufactured or baked,” and the penalties for repeated violation of the statute could be a fine of not more than $100 or imprisonment “for not more than ninety days.71

67. Ibid., 310. 68. Bickel, 99. The union did not have to pay this large assessment because the Taft court had unanimously ruled in its favor during the first Coronado case. 69. Charles Wolff Packing Co. v. Court of Industrial Relations, 267 U.S. 552 (1925). “Compulsory arbitration, if sustained, will compel the owner and employees to continue the business on terms which are not of their making.” Such a practice “infringes the liberty of contract and rights of property guaranteed” by the Fourteenth Amendment. Ibid., 569. 70. Urofsky, Louis D. Brandeis, 596. Presumably the short-weight loaf was sold at full price, with the consumer unaware of the discrepancy. 71. Jay Burns Baking Co. v. Bryan, 264 U.S. 504 (1924). The statute is reprinted at the beginning of Justice Butler’s majority opinion.

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Counsel for the bakery argued that “there must be some logical connection between the object sought to be accomplished by the law and the means prescribed to accomplish the end.” Also “[l]aws enacted under . . . police regulation must have some relation to the public health, welfare, or safety.” This point was important because no party to the case questioned the healthful quality of the bread, nor the power of the state to intervene in a matter of public health. Here, to the contrary, “a law palpably unreasonable and arbitrary, and exceeding all reasonable classification, is not within the police power of a state.” Finally, and for the Taft court majority a major consideration, “the business of baking is not clothed with a public interest.” 72 Justice Butler spoke for the seven-member majority, and probably from his perspective this case was easily decided. Bread making was a private matter, with customers free to buy the finished product on the open market or look elsewhere. There was no legitimate state interest involved. After all, the choice of what kind of bread to buy and what size of loaf it came in was not a subject for state regulation.73 In 1924, with many types of wartime regulations now a thing of the past, Butler held that “a state may not, under the guise of protecting the public, arbitrarily interfere with private business, or prohibit lawful occupations, or impose unreasonable and unnecessary restrictions upon them.” 74 Such was the case here. Butler ruled that the statute’s key provision “is not necessary for the protection of purchasers” and indeed “is not calculated to effectuate that purpose.” In short the statute imposed restrictions “which are essentially unreasonable and arbitrary” and thus unconstitutional. One is tempted to speculate that had counsel for the state been more detailed and thorough in his brief, perhaps he might have persuaded several additional justices of the statute’s necessity and validity, bringing about a different result. Examination of the brief summaries indicates that counsel for the complainant appears to have been more expansive than his counterpart’s effort, which seems somewhat superficial. Apparently Justice Brandeis felt that his brethren had not received sufficient information on which to base a decision. Hence in dissent Brandeis constructed another “Brandeis Brief,” in which, as Urofsky aptly pointed out, he told his fellow justices “more than they ever wanted to know about bread making.” 75 His dissent extended to more than fifteen pages, replete with some thirty-six detailed footnotes, many containing numerous citations. Although apparently he quoted from Butler’s 72. Here counsel did not deem it necessary to cite the most famous baking case in high court history, that of Lochner v. New York (1905), but rather mentioned a recent case decided by the Taft court and noted in an earlier chapter, that of Charles Wolff Packing Co. v. Court of Industrial Relations (1923). 73. Urofsky, Louis D. Brandeis, 598. 74. Burns, 513. 75. Urofsky, Louis D. Brandeis, 597.

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majority opinion only once, there was little left of it when Brandeis had finished. He agreed with Butler that the court needed to consider whether the legislation at issue can reasonably be deemed necessary . . . [and] an appropriate means of preventing short weights.” Further can the statute “reasonably be deemed practicable[?]” The answer to these questions “involves an inquiry into facts. Unless we know the facts on which the legislators may have acted, we cannot properly decide whether they were . . . unreasonable, arbitrary, or capricious. Knowledge is essential to understanding; and understanding should precede judging. If we would guide by the light of reason, we must let our minds be bold.” 76 In this case all his colleagues had to do was “merely to acquaint ourselves with the art of bread making and the usages of the trade; with the devices by which buyers of bread are imposed upon . . . ; with the problems which have confronted public officials charged with the enforcement of the laws . . . and with their experience in administrating those laws.” Brandeis did just that, presenting a detailed analysis drawn from a rich variety of sources—legal, political, public, and scholarly. Toward its conclusion he conceded that much of the evidence therein “is not in the record. Nor could it have been included. It is the history of the experience gained under similar legislation . . . since the entry of the judgment below.” Concerning such events, whether they occurred before or after the instant case was filed, “the court should acquire knowledge, and must . . . take judicial notice, whenever required to perform the delicate judicial task here involved.”77 While he did not say so directly, he implied that the court should have gained such knowledge before reaching its decision. Instead the majority made findings of fact that represented, “in my opinion, an exercise of the powers of a super legislature— not the performance of the constitutional function of judicial review.”78

4 Of course issues of federalism represented an ongoing challenge for the Taft court. One such case in this period reflects the difficulty in determining the reach of federal authority especially when, as in this case, it was implied and not specified. The case involved what appeared to be a simple question: can a 76. Burns, 519–20. Brandeis later received much attention for repeating this last sentence again in a later dissent. See New State Ice Co. v. Liebmann, 258 U.S. 262 (1932). See also Urofsky, Louis D. Brandeis, who noted the repetition. 77. Burns, 533. Brandeis may be pardoned for citing the first of his own “Brandeis briefs,” filed in Muller v. Oregon, as an example of what he meant. The brief probably contributed to the unanimous decision in his favor. Too able a lawyer to ask that the high court overrule Lochner, decided only three years before, instead Brandeis successfully sought to carve out an exception for state statutes concerning the health and welfare of female workers. 78. Burns, 534.

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national bank, one chartered under federal auspices, establish a branch office? The case arose in Missouri, which in 1919 had enacted a statute stating that “no bank shall maintain in this state a branch bank.”79 The First National Bank in St. Louis operated a branch bank, and the state sought “to oust defendant from the operation of branch banks.” It prevailed in the state courts, whereupon the bank took the matter to the federal level. The case inspired some controversy, as about twenty state attorneys general filed a brief supporting the action of Missouri. In addition a number of amicus briefs were submitted, including one from the United States. The solicitor general argued that only the United States could inquire whether a national bank “has acted in excess of its corporate powers.” Counsel representing the bank in St. Louis claimed first that “national banks are instrumentalities of the national government.” Moreover state regulation that applies to a national bank “necessarily conflicts with the regulations, express or implied [as] prescribed by Congress.” Therefore state statutes defining or limiting the manner in which national banks can operate are unconstitutional. Counsel for the State of Missouri insisted that “[a] national bank is subject to the judicial power of a state.” Establishment of branch offices “is conduct in excess of any authority from the nation.” Finally states “by virtue of their sovereign power, can and should suppress . . . conduct by national banks, committed without authority of Federal law, which is destructive of their welfare, institutions, and laws.”80 Justice Sutherland wrote for a divided court, with five other justices joining his opinion. There was no doubt that national banks are a product of federal legislation. They “are instrumentalities of the Federal government, and are necessarily subject to the paramount authority of the United States.” Here Sutherland added an important caveat. “Nevertheless,” he stated, “national banks are subject to the laws of a state in respect of their affairs.” 81 He went on to discuss the various federal statutes dealing with national banks and could find no specific reference to branch banks or authority to establish them. One such statute mandated, for example, that the business of a national bank “shall be transacted at an office or banking house.” He noted that use of the word “an” indicates an intent to confine the bank to one location.82 Moreover the Missouri statute at issue here in no way frustrated the purpose for which the bank was established, nor interfered with the exercise of its 79. First National Bank v. Missouri, 263 U.S. 640, 655 (1924). The case was first argued in May 1923, and the justices ordered the case reargued. This was done in November, and late in January 1924 it was decided. 80. These summaries from the briefs are taken from vol. 68 L. ed., USSC Reports, 487–91. 81. First National Bank, 656. 82. Ibid., 657.

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responsibilities, nor “impairs its efficiency as a Federal Agency.” Most important for Sutherland was the fact that national banks have been in operation for more than half a century, “without branches, and upon the theory of an absence of authority to establish them.” If this condition “has operated . . . to the detriment of the government” or has interfered “with the efficiency of such associations as Federal agencies,” or frustrated their purposes, “it is inconceivable that [this] fact would not long since have been discovered and steps taken by Congress to remedy the omission.” Not only, therefore, is the Missouri statute valid, but authority to enforce it rests with the state and not with the federal government.83 Although ultimately the Taft court failed to establish effective perimeters concerning civil liberties, it at least made a start.84 Mention has already been made of the 1923 decision in Meyer v. Nebraska, a ruling that declared the banning of teaching German as a foreign language unconstitutional. To be sure, Justice McReynolds had built his decision on solid, conservative principles. Yet William Ross was correct in observing that it was the first holding that “the federal Constitution protects civil liberties against infringements by states involving matters other than racial discrimination and the enactment of economic regulations.” 85 Ross further concluded that Meyer “presaged the process by which the Court later incorporated into state law most of the specific liberties guaranteed by the Bill of Rights.” 86 The sequel to Meyer came only two years later. In 1922, perhaps as its contribution toward what Warren Harding euphemistically had called a return to “normalcy,” and influenced by a strong KKK presence, the state of Oregon approved a referendum making attendance at local public schools compulsory. Parochial and private schools promptly filed suit, claiming that as students could no longer attend their schools, the new law would render their property, including buildings, books, and school furniture, useless—in effect an act of illegal confiscation. Further the new school law interfered with the legitimate business of conducting schools and providing instruction—both protected by the Fourteenth Amendment. It appears that neither Justice McReynolds nor any of the counsel involved in this case 83. Ibid., 659–61. Justice Van Devanter, joined by Taft and Butler, dissented and urged “with great deference” that the judgment below should be reversed. His dissent represented one of the very few to be found in volume 263 of the U.S. Reports. 84. See Melvin Urofsky’s perceptive analysis, aptly entitled “The Taft Court, 1921– 1930: Groping for Modernity,” in Christopher Tomlins, ed., The United States Supreme Court (Boston: Houghton Mifflin, 2005), 199–202. 85. William Ross, Forging New Freedoms: Nativism, Education, and the Constitution, 1917– 1927 (Lincoln: University of Nebraska Press, 1994), 5. It is ironic that a rigorous, narrow-minded, conservative, bigoted jurist like McReynolds would author such an opinion, and as will be seen shortly, his holding in Meyer was not a fluke. 86. Ibid., 5–6.

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made mention of the First Amendment, although one of the lawyers for Oregon insisted that “the statute does not interfere with the religious liberty of anyone.” 87 McReynolds essentially simply reiterated what he had written in Meyer. He emphasized anew the property rights of the plaintiffs. “[T]hey have business and property [parochial and private schools] for which they claim protection. These are threatened with destruction through the unwarranted compulsion which” the defendants “are exercising over present and prospective patrons of their schools.” And this court, he added, “has gone very far to protect against loss threatened by such action.” 88 Further “the fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction for public teachers only.” 89 The case of Gitlow v. New York, the last case decided in the October 1924 term, is so well known that only minimal discussion of its background is necessary.90 It was first argued in April 1923. But the justices ordered the case reargued in May, and they did not reach it until November. Gitlow lingered for over a year and a half, with the final decision not being decided until June 1925. The case represents a classic example of the court articulating a major new legal doctrine even while declining to apply it to the case at hand. It involved the prosecution of Benjamin Gitlow for alleged violation of a New York statute dealing with “criminal anarchy.” Gitlow had published a “left Wing Manifesto” and had ordered the printing of some sixteen thousand copies. Convicted on several counts, he appealed to the Supreme Court, where his counsel argued in unequivocal terms that “the liberty protected by the 14th Amendment includes the liberty of speech and of the press.” Speaking for the court, and offering what Marc Lendler has aptly described as “a somewhat casual declaration, made with little fanfare,” Justice Sanford 87. See the summary of briefs in Pierce v. Society of Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510. Those defending the Oregon statute had hoped to hire John W. Davis, the famous New York attorney whom, it will be recalled, Taft had hoped to see seated on his court. They did not do so, apparently after Davis advised them that the new law was unconstitutional. See W. Ross, Forging New Freedoms, 164–65. Although this case was decided on June 1, 1925, one week later, on June 8, the court held in Gitlow v. New York, almost as an aside, that the First Amendment was applicable to the states. See below. 88. Pierce, 535. Here McReynolds listed a number of prior decisions, many cited above in earlier chapters. 89. Ibid. “As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the state.” 90. 268 U.S. 652 (1925). One of the best histories of the case may be found in Marc Lendler, Gitlow v. New York: Every Idea an Incitement (Lawrence: University Press of Kansas), 2012.

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agreed.91 For present purposes, he wrote, “we may and do assume that freedom of speech and of the press . . . are among the fundamental personal rights and ‘liberties’ protected by the . . . 14th Amendment from impairment by the states.” 92 In such an offhand manner did a most important doctrine—that of incorporation, making at least one part of the Bill of Rights applicable to the states—become part of constitutional law. But Sanford immediately rejected its application to Gitlow. In the first place it was not open to question that the Constitution while protecting free speech did not “confer an absolute right to speak or publish.” Nor could it be doubted that the state through its police power “may punish those who abuse this freedom by utterances inimical to the public welfare.” This is precisely what New York had done. By enacting the present statute, it had determined “that utterances advocating the overthrow of organized government by force, violence and unlawful means . . . may be penalized. . . . That determination must be given great weight,” because “every presumption is to be indulged in favor of the validity of the statute.” Therefore “we cannot hold that the present statute is an arbitrary or unreasonable exercise of the police power of the state, unwarrantably infringing the freedom of speech and press.” 93 As is well known, Holmes—joined by Brandeis—filed a dissent of only two paragraphs. But he said nothing about the unconstitutionality of the New York statute. Rather he insisted that it had been misapplied in Gitlow’s case, and thus his conviction should be reversed. The correct criterion, not surprisingly, was his own, articulated for a unanimous bench in 1919. In Schenck v. United States Holmes had set forth the “clear and present danger” rule, “whether the words used are used in such circumstances and are of such a nature to create a clear and present danger that they will bring about the substantive evils that the state has a right to prevent.” 94 Had this, “what I think the correct test,” been applied to Gitlow, “it is manifest that there was no present danger of an attempt to overthrow the government . . . on the part of the admittedly small minority” who agreed with Gitlow’s views.95 Of course some words could be considered incendiary, and indeed “eloquence may set fire to reason. But whatever may 91. Ibid., 113. 92. Gitlow, 666. 93. Ibid., 668–70. Thus Sanford concluded that although freedom of speech and press were now protected by the First Amendment, of necessity a line had to be drawn, and by publication of his pamphlet, Gitlow had crossed it; in spite of the fact that “there was no evidence of any effect resulting from the publication and circulation of [his] ‘Manifesto.’” Ibid., 656. 94. See Schenck, 47, 52, 63 (1919). 95. Gitlow, 672–73. Gitlow remained in prison for only six more months and in December received a pardon from Governor Al Smith. See Lendler.

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be thought of the redundant discourse before us, it had no chance of starting a present conflagration.” 96 Melvin Urofsky has written that “Asians fared poorly at the hands of the Taft Court.” 97 There were, however, some exceptions to this trend. One of them has been noted above, and in 1924 Brandeis spoke for a unanimous court and clarified the nature of a “voluntary confession.” The case involved a young Chinese student who had been in the United States since 1916. Indirectly accused of involvement in the murder of three Chinese men in a Washington, D.C. residence, Ziang Sung Wan had been located in New York City and brought to Washington by municipal detectives on February 1, 1919. For more than eight days he was confined incommunicado and continuously interrogated, even though he suffered from major intestinal disorders. Sometimes subtle, sometimes severe, the persistent, prolonged, and on occasion brutal examination had only one purpose, to entrap Wan into an admission of his own guilt. He was arrested on February 9, and still the interrogation continued— sometimes with Wan so feeble that he could not respond. “To Wan, not a moment of sleep was allowed.” Finally, twelve days after he had been seized by the police, Wan signed an interrogation report and a confession. Not until then was he visited by a physician, who found him “very weak, very much exhausted, very much emaciated,” and in intense abdominal pain.98 Although it seems incredible today, Wan was convicted of murder and sentenced to death, essentially because the lower courts found his statements to be “voluntarily submitted.” Brandeis observed that none of the statements submitted by the government had been made until after Wan had been subjected to interrogation for at least a week. Further a confession shown not to have been “induced by a promise or a threat” does not meet the federal standards. “A confession is voluntary in law if, and only if, it was, in fact, voluntarily made.” The chronology of this case “left no room for the contention” that Wan’s statements “were voluntarily made.” Compulsion was, in fact, applied, and Wan’s “alleged oral statements and the written confession should have been excluded.” 99 Indirectly related to the Wan case was an issue concerning the right against self-incrimination, and whether such a right was applicable when “applied to the financial papers of a petitioner in bankruptcy.”100 Originally the Taft court had voted to reverse the lower federal court that had so held, and the opinion was assigned to Brandeis. Upon reflection, however, he concluded “that the

96. 97. 98. 99. 100.

Gitlow, 673 Urofsky, Louis D. Brandeis, 639. Ziang Sung Wan v. United States, 266 U.S. 1 (1924). Ibid., 15–17. Urofsky, Louis D. Brandeis, 580.

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lower court had been correct” and “drafted an opinion to this effect.”101 Ultimately the entire court concurred, with Brandeis delivering a unanimous opinion. He rejected the government contention that the privilege against self-incrimination “does not extend to the examination of a bankrupt in a bankruptcy proceeding.”102 On the contrary “it applies alike to civil and criminal proceedings, wherever the answer might tend to subject to criminal responsibility him who gives it.” Indeed the privilege “protects a mere witness as fully as it does one who is also a party defendant.” It even protects “the owner of goods which may be forfeited in a penal proceeding.”103 Thus the Taft court expanded the constitutionally protected right against self-incrimination far beyond that urged by the Coolidge administration. Although in this period Taft liked to say that he found his role as chief justice so fulfilling that he had forgotten his presidency, in at least two instances one can doubt this recollection. The first involves the power of a presidential pardon, while the other concerns presidential authority to remove federal officeholders—both of major concern to the chief executive. These two cases offer yet another indication of the way the Taft court expanded federal authority, and both arose during the period under discussion here. As other cases discussed above have demonstrated, the Taft court’s tendency with Prohibition litigation was generally to affirm federal power. The case of Ex Parte Grossman raises an intriguing variant concerning the possible tension between federal judicial power and presidential authority. It began in late 1920 as a typical Prohibition issue, with federal authorities seeking an injunction against one Philip Grossman, who was selling liquor from his place of business in Chicago. The injunction granted, apparently Mr. Grossman resumed his wayward practices, whereupon he was rearrested, tried, and found guilty of contempt. This time Grossman was sentenced to a year in prison and ordered to pay a fine of one thousand dollars to the United States, plus court costs—a verdict affirmed by the U.S. Court of Appeals. In December 1923 President Coolidge issued a pardon in which he commuted Grossman’s sentence to just the fine. The fine was paid, and Grossman was released. Responding to Coolidge’s action, however, in May 1924 the federal district court in Chicago ordered Grossman returned to prison to serve the balance of his sentence. Thereupon Grossman sought a writ of habeas corpus from the high court.104 In Grossman the Justice Department found itself split. It furnished counsel to the district court and argued, “Contempt of court may not be pardoned 101. Ibid. 102. McCarthy v. Arndstein, 266 U.S. 34, 40 (1924). 103. Ibid., 40–41. 104. This paragraph is based on statements made by Taft in the course of his decision for a unanimous court. See Ex Parte Grossman, 267 U.S. 87, 107–8 (1925).

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without impairing the powers and functions of the court, and lessening its authority.” On the other hand in one of the last cases he argued as attorney general, and shortly before he joined the very court in front of which he spoke, Harlan Stone pointed to the constitutional provision “which gives to the President power to grant pardons for offenses against the United States.” There appeared to be no exemptions or qualifications contained in this provision. Moreover Stone insisted that such authority “to pardon criminal contempts of court has been repeatedly exercised, and has never been challenged heretofore.” In speaking for a unanimous court, Taft could only have recalled his days as president and the occasions when he had issued a presidential pardon. Now he had to weigh that prerogative against the plenary authority of a federal court, on one of which he sat as chief justice. Taft pointed, correctly, to the fact that nowhere in the Constitution is there any requirement or mandate that “the three branches of the government shall be kept separate and independent.” Indeed “complete independence and separation” between them has never been possible or desirable. He noted the veto power of the chief executive, or the ability of the House to withhold appropriations if it saw fit, or the Senate’s authority to reject executive appointments or treaties, or—and most appropriate here—the presidential pardon power.105 The chief justice further observed that “executive clemency exists” to offer relief from “undue harshness or evident mistake in the operation or enforcement of the criminal law.” Perhaps writing with some of his earlier decisions as a jurist in mind, Taft conceded that “the administration of justice by the court is not necessarily always wise or certainly considerate of circumstances which may properly mitigate guilt.” It has long been the custom “to vest in some other authority than the courts power to ameliorate or avoid particular criminal judgments.” The American legal order vests such responsibility in the president, assuming that “he will not abuse it.” It is an important responsibility. Reflecting his lifelong love of courts, judges, and judging, Taft conceded that “the power of a court to protect itself and its usefulness by punishing contemners is of course necessary, but it is one exercised without the restraining influence of a jury and without many of the guaranties which the Bill of Rights offers.” Under such conditions is it unreasonable, he asked, “to provide for the possibility that the personal element may sometimes enter into a summary judgment pronounced by a judge who thinks his authority is flouted or denied? May it not be fairly said that in order to avoid possible mistake, undue prejudice or needless severity, the chance of pardon” is provided for? Even more important is the fact that presidential pardon of criminal contempts had been in practice for three-quarters of a century, and no abuses had ever 105. Ibid., 119–20.

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“developed sufficiently to invoke a test in federal court of its validity.”106 Certainly in this case President Coolidge’s pardon of Grossman did not qualify Taft ended his opinion with two sentences that were among the most heartfelt he wrote during his tenure as chief justice. “It goes without saying,” he observed, “that nowhere is there a more earnest will to maintain the independence of Federal courts and the preservation of every legitimate safeguard of their effectiveness . . . than in this court. But the qualified independence which they fortunately enjoy is not likely to be permanently strengthened by ignoring precedent and practice and minimizing the importance of the coordinating checks and balances of the Constitution.”107

5 One month after the court had decided Grossman, Taft wrote to his youngest son that the brethren had listened to arguments on “the very important constitutional question that never has been decided by our Court.” It involved “whether the President has the power of removal such that Congress may not limit him.”108 In other words is presidential authority to remove previously appointed officeholders completely independent, or may Congress require prior approval before such action is taken? The chief justice looked forward to resolving this question and may have assumed that he would speak for a unanimous court in affirming yet another instance of an executive prerogative. But Taft was mistaken. The court first heard arguments in Myers v. United States late in 1924 but “unable to reach agreement . . . had the case reargued” in April 1925. For more than a year the justices held the case. It would not be finally decided until October 1926 and resulted in a split court, with Taft writing perhaps the longest opinion in his judicial career, some seventy-one pages in length.109 In retrospect it seems clear that the period 1921–25 represented the best of Taft’s eight-plus years on the Supreme Court. He had reached the midpoint of his tenure as chief justice. With one exception, heart difficulties in 1924, his health was stable. Especially from 1923 to 1925 his push for unanimity had succeeded to a great extent, resulting in a harmonious atmosphere among the justices. Further the four new appointments to the court, especially Sutherland, Butler, and Sanford (Stone did not take his seat until March 1925) 106. Ibid., 122–23. 107. Ibid., 122. Grossman was thereupon discharged. For another example of the Taft court’s treatment of a federal civil contempt matter, see Cook v. United States, 267 U.S. 517 (1925). 108. Charles Taft Papers, April 19, 1925. 109. Myers v. United States, 272 U.S. 52 (1926); Urofsky, Louis D. Brandeis, 587. Holmes, McReynolds, and Brandeis all dissented. Between them McReynolds and Brandeis took up more than 110 pages in dissent.

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reflected his constitutional values. Also during these years Taft’s skill as a judicial administrator was at its peak. Melvin Urofsky did not exaggerate when he wrote that Taft “proved to be an exceptionally fine administrator of the nation’s judiciary.”110 His major role in bringing about congressional enactment of two significant judicial reform measures has already been discussed. The Judge’s Bill did not go into effect until mid-1925, and its real significance would not be seen until the late 1920s. This enactment remains among the most significant adopted in the court’s history. Meanwhile, among other developments, the Taft court had clarified the matter of federal judicial jurisdiction, expanded federal regulatory authority, and introduced—albeit indirectly—the doctrine of incorporation concerning the First Amendment, all within the confines of classical legal thought. Taft had high hopes that the future would bring more accomplishments of a similar character. But it was not to be.

110. Urofsky, Louis D. Brandeis, 571.

6 1926 Lengthening Shadows, and Litigation of Significance

1 By 1926 Chief Justice Taft was in failing health. Already he had experienced two heart attacks, and while he remained on the bench until early 1930, neither his output of decisions nor his effectiveness as “the first among equals” matched his earlier years, as has been seen. After yet another episode of irregular heartbeat, he informed his oldest son that according to his doctor “recurrences of this kind are to be expected,” a reminder—if one was needed—“of the care I must exercise in reference to sudden calls on my heart.”1 Meanwhile the chief justice determined to continue on with the work of his court. Of special importance to him was a case that concerned presidential authority, one that had remained on the court’s docket since 1924. Myers v. United States centered around a “very important constitutional question that has never been decided by our Court.” It involved “whether the President has the power of removal such that Congress may not limit him.” 2 In other words is presidential authority to remove current federal officeholders completely independent, or may Congress require prior approval before such action could be taken? At various intervals in American history, the question had been debated but never definitively resolved. It might be recalled, for example, that at issue in the 1867–68 impeachment trial of President Andrew Johnson had been his alleged violation of the Tenure of Office Act. This statute required Senate approval before Johnson could remove a federal officeholder—in this instance Edwin Stanton, the secretary of war.3 The impeachment effort had failed by one vote, the challenge to this federal statute 1. Robert A. Taft Papers, January 31, 1926. 2. Charles Taft Papers, August 19, 1925. 3. See Michael Les Benedict, A Compromise of Principle: Congressional Republicans and Reconstruction (New York: W. W. Norton, 1974), and Gerard Magliocca, American Founding

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dissipated, and in due course (1876) the Tenure of Office Act was repealed. Thus the Supreme Court had chosen not to adjudicate this question until 1924, when it first considered this case. The litigation had its origins in 1920, when President Wilson decided to remove Frank Myers as a postmaster in Oregon.4 Although Myers died shortly thereafter, his wife sued for lost wages and damages and cited a 1876 statute that stipulated that “[p]ostmasters . . . shall be appointed and may be removed by the President by and with the advice and consent of the Senate.” She claimed that such Senate approval had been required before Wilson could act. All parties conceded that at no time during his term had the Senate approved his removal. A lower federal tribunal rejected her argument, and Myers’s widow took the case to the Supreme Court.5 The Taft court took up the Myers case on December 5, 1924. As he was a former president, it is not surprising that Taft retained strong opinions about an expansive executive authority. One suspects that he looked forward to speaking for a unanimous court in affirming an important presidential prerogative, all the more as his brethren had recently (and unanimously) concurred with him in affirming the power of the executive pardon (see the previous chapter). But his colleagues could not agree on this case and ordered it reargued in April 1925.6 Further as a federal statute was involved, they invited a representative from Congress, a one-term Pennsylvania Republican senator, George Wharton Pepper, to brief and argue the cause as amicus curiae. For two days the justices listened as counsel and amici debated the powers of the legislative and executive branches. On behalf of Lois Myers, her attorney pointed to the statute that had been in effect for almost half a century. All that was necessary was that the chief executive obey the law. Every possible presumption is attached to the validity of a statute, and such presumption continues until the contrary is shown beyond a reasonable doubt. It would seem late in the day to argue that this law, duly enacted by Congress and signed into law by the president, was beyond “the purview of the Federal Constitution.”7 But such, in essence, is what the solicitor general argued on behalf of the United States. James Beck urged the justices to consider the implication of Son: John Bingham and the Invention of the Fourteenth Amendment (New York: New York University Press, 2013), 128–53. 4. Until the mid-twentieth-century political patronage, party politics and appointments as postmasters were virtually synonymous. As presidents came and went, so did local postmasters. There appears to be nothing of significance in Wilson’s removal of Myers except that he (and later his widow) refused to accept such action and fought back. 5. Urofsky, Louis D. Brandeis, 587. 6. The Myers case might have been one that the court informally decided to postpone until after Justice McKenna retired and his successor, Harlan F. Stone, had taken his seat. 7. Myers v. United States.

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denying the power of removal to the president alone. The question that up to the present the court had never decided was a simple one: “whether Congress, under its limited grant of legislative power, may restrict, limit, or modify the executive power of removal. If so, and the contention is carried to its logical conclusion, then it can destroy the executive function of removal altogether. . . . If this court is prepared to sustain this law, then the door is opened, and an unlimited opportunity is given to Congress to strip the President of nearly every essential power.” Indeed if Congress can transfer executive authority by modifying presidential power of removal, “then the Constitution will sooner or later become by congressional usurpation, a mere house of cards.” 8 Yet another issue troubled the solicitor general. He noted that Congress was in session for barely six months of the year. Beck described a scenario where if the president “found any executive officer . . . guilty of gross negligence or positive misfeasance,” he would be unable to remove such an individual until the “Senate next convened.” Unless “some provision is made for such removal” during a recess or adjournment, “it would follow that each year for a space of some months, and, in many instances, many months, the President would be powerless to protect the interests of the Government.” Beck insisted that “such a condition would be intolerable.” 9 It is surprising, Beck concluded, that “such a question . . . should have so long remained undecided by this Court.” It is in the “cause of sound constitutionalism . . . that it be now decided finally and authoritatively.”10 As an amici presenting the view of Congress in defending the statute at issue in this litigation, Senator Pepper’s argument had two key points. In the first place “the power to prescribe the conditions of removal from an office created by law is incident[al] to the power to create the office.” Thus “it is legislative in character, and under the Constitution is vested in Congress.” Further the function of the chief executive to see that “the laws are faithfully executed,” includes “the obligation to conform to the conditions of removal prescribed

8. Landmark Briefs and Arguments of the Supreme Court of the United States, ed., Philip Kurland and Gerhard Casper (Arlington, Va.: University Publications of America, 1975), 24: 394, 395, 402. “Therefore, if the Government is to prevail in this case, it must be on the grounds that the statute, in so far as it required the consent and approval of the Senate to [Myers’s] removal is unconstitutional.” Ibid., 371–72. 9. Ibid., 74–75. “Congress could not have intended such a crippling of the Executive office.” 10. Ibid. Myers was one of the last cases Beck argued as solicitor general. A few weeks later, according to Holmes, he had resigned “and gone to Italy,” apparently disappointed at being passed over for several positions, including “Secretary of State, Ambassador, and a Justice of our Court—of no one of which do I believe there was ever the least chance. . . . He has put much energy into blowing his own horn.” Holmes­Laski Letters, May 8, 1925, 2: 27.

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in the law creating the office.”11 To be sure, if the law said nothing about any restrictions on removal, one could assume that Congress intended such power to vest in the chief executive. In this case, however, the statute specifically mandated concurrence of the Senate in any removal process relevant to it. The fact, Pepper insisted, that presidents had routinely removed federal officeholders over the span of many years was irrelevant, despite the solicitor general’s claim that “some weight must be given to the almost unbroken usage in this matter.”12 Moreover the dispute in Myers did not center around a dispute between the president and the Senate, as had been the case with President Johnson and the Tenure of Office Act. That was indeed “a controversy between President and Senate,” and one could correctly note that it represented “a case of senatorial usurpation.” The same could not be said for the instant case, which “seems to me a case of executive usurpation.” Pepper asked the Taft court to find that the removal power “is neither in the President nor in the Senate.” In fact “it resides in the Congress of the United States, where the Constitution has placed it.” By April 1925 the Myers case had been argued and reargued. Two sets of briefs had been submitted, and oral arguments were completed.13 On April 14 it was formally submitted. More than one and a half years were to pass before the opinions were released, on October 25, 1926. Several reasons can be cited to explain the delay.

2 For the former president and current chief justice, Myers represented what he considered to be the most important case of his judicial tenure. Not without reason did he refer to it as a “monument.” Later, after the case had come down, he would add that “I never wrote an opinion that I felt to be so important in its effect.”14 He had no hesitation in assigning it to himself. After all who better than a former chief executive could be more familiar with the unfortunate results of congressional tampering with the independent power of executive removal? That he concluded presidential authority in this area was sacrosanct came as no surprise. But more than Taft’s current opinion led him to support untrammeled presidential authority of removal. Probably he well recalled the bitter dispute in 1909–10 between his secretary of the interior Richard Ballinger and the chief forester in the Department of Agriculture Gifford Pinchot. Not by choice had Taft become embroiled in this controversy in which Taft, always a devotee 11. 12. 13. 14.

Ibid., 24: 368. Ibid., 24: 394. The briefs and transcripts of oral argument extend to over four hundred pages. Mason, William Howard Taft, 225, 253.

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of proper procedure, confronted his chief forester, “who was no respecter of procedure.”15 Details of the resulting clash, which led to Pinchot’s dismissal by Taft, have been widely researched and need not be recalled here.16 The incident cast a pall over the rest of his presidency, and now—in the twilight of his life—he welcomed the opportunity to validate and vindicate presidential authority to remove subordinates from his administration without constraint. On the other hand after the initial court conference on the case, Taft knew that at least three of his colleagues—Holmes, Brandeis, and McReynolds— were going to dissent, while Justice Stone at this time was doubtful as to his position, although ultimately he voted with Taft. Thus the chief faced a possibility that instead of a unanimous decision sustaining presidential authority, at best he would speak for a six-member majority, with Sutherland, Van Devanter, Butler, Sanford, and Stone certain to join his opinion. From his perspective Taft found such a split both disconcerting and disagreeable—all the more so as it presaged a major characteristic of his remaining years on the bench—more frequent dissents, some contentious. As has been noted Taft did not respect McReynolds either as a distinguished jurist or as a cooperative colleague. Brandeis and Holmes, however, represented a much greater cause for concern. Taft was well acquainted with the Holmes gift for epigrammatic phrases, while on multiple occasions he had confronted the impressive—and exhaustive—scholarship that Brandeis brought to his dissents. The chief determined that his opinion would have to be as thorough as he could make it. But by 1925–26 Taft could no longer sustain the pace of decision writing so characteristic of his early years in the center seat. He took all summer to work on the case. In December, eight months after oral arguments, he wrote that “I have heard nothing as yet from the dissenters in my big case. I have been trying to make some changes . . . and I shall have to take time.”17 Almost nine more months passed before Myers was announced. Two weeks after his letter to his son Robert, on January 5, 1926, Taft wrote to his younger brother, Horace, that “the reason I have not announced the opinion in that big case of mine . . . is because Brandeis has been holding off, and this morning I get [sic ] his dissenting opinion. I thought mine was pretty long, but his is 41 pages, with an enormous number of fine print notes, and with citations from statutes without number. . . . [I]t may turn out to be a stronger opinion than I indicate . . . and I shall have to take time.”18 The real difficulty was with McReynolds, who “expects to dissent, and he wishes to have

15. Lurie, William Howard Taft, 109. 16. See James Pennick Jr., Progressive Politics and Conservation: The Ballinger­Pinchot Af­ fair (Chicago: University of Chicago Press, 1968). 17. Robert A. Taft Papers, December 20, 1925. 18. William H. Taft Papers, Cincinnati Historical Society Library, January 5, 1926.

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full time to prepare what he is to say.” In fact “McReynolds is always inconsiderate. There is no reason why he should not have written his opinion before,” all the more as “he knew that Brandeis took the last recess to prepare his.”19 Taft reconciled himself to postponing Myers until March. “I don’t suppose it will hurt my opinion to be put in a refrigerator and brought out for refurbishing when the others have shot off their guns, but it keeps me in a state of something like suspended animation.”20 March came and went. In July Taft wrote to Robert that “I am a good deal troubled, because I am very anxious to revamp my opinion in the Myers case before I go down to Washington, but I can do nothing about it until I feel more at liberty to use my brain in a way that really calls for the proper circulation of the blood.” 21 Finally Taft informed Robert that he would deliver his opinion on October 25. It came to more than fifty pages and “is made long because the discussion is a historical one, and in view of the character of the objections made in the dissents, I found it necessary . . . to extend the opinion in answering arguments that were advanced by the dissenting Judges. . . . Holmes’ dissent is about five lines and hardly seems to indicate that he rises to the question.” 22 Taft observed that in finding against Myers, the court of claims did so on the grounds that claimant had delayed too long in bringing this action. The solicitor general conceded, however, the this argument was unpersuasive. As has been seen, Beck further claimed that the presidential powers of removal “is full and complete without consent of the Senate.” If this view was correct, and it took Taft some fifty additional pages to so hold, the removal of Myers by the president was legal, and thus the lower court’s denial of relief was valid, although for a very different reason. At last the high court was “confronted by the constitutional question, and cannot avoid it.”23

19. Robert A. Taft Papers, January 10, 1926. 20. Manning Papers, January 10, 1926. At some point Taft asked Stone to examine his initial draft, stating, correctly, “that it rambled far too much.” As will be seen shortly, apparently Stone was unable to cure this defect. Urofsky, Louis D. Brandeis, 862. 21. Robert A. Taft Papers, July 16, 1926. 22. Ibid., October 24, 1926. “It will be a great relief to have the matter off my hands. The opinion is so long that I doubt if many [will] read it, but it concerns a very important question.” Indeed, it is “one of the most important opinions I have ever written.” Manning Papers, October 24, 1926. Taft sent copies of the opinions to his youngest son with the sardonic comment that “when you are sleepless some night you may use [them] for perusal and as a soporific.” Charles Taft Papers, October 31, 1926. Although Taft was dismissive of Holmes’s opinion, as will be seen the three dissenters—especially Brandeis and McReynolds—found little to support in Taft’s analysis. All four writers focused on what they claimed that the framers had intended but came to opposite conclusions—demonstrating “how history can ‘prove’ arguments on both sides of a dispute.” Urofsky, Louis D. Brandeis, 588. 23. Myers v. United States.

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Taft built his analysis on the assumption that the constitutional vesting of power in the president “was essentially a grant of the power to execute the laws.” But this could be accomplished only through his appointment of subordinates to do so. Since “his selection of administrative officers is essential to the execution of the laws by him, so must be his power of removing those for whom he cannot be responsible.” Taft had no argument with the constitutional requirement of Senate confirmation concerning the majority of presidential appointments. But he insisted that Senate approval of the presidential removal authority was a very different matter. “A veto by the Senate—a part of the legislative branch of the government—upon removals is a much greater limitation upon the executive branch, and a much more serious blending of the legislative with the executive than a rejection of a proposed appointment. It is not to be implied.”24 Nor, according to the former president, had it been implied—let alone applied—from 1789 to 1867, when tension between Andrew Johnson and Congress came to a head with the Tenure of Office Act. This statute, replete with its “extreme provisions,” exhibited “in a clear degree the paralysis to which a partisan Senate and Congress could subject the executive arm and destroy the principle of executive responsibility . . . if the President had no power of removal save by consent of the Senate. It was an attempt to re-distribute the [congressional] powers, and minimize those of the President.” 25 In due time (1887) the statute was repealed. But in the meantime, in 1876 Congress had enacted a law dealing with the appointment and removal of postmasters, as described above. Taft pointed to the interpretation of the presidential removal authority as it had been followed “continuously for seventy three years and thereafter, in spite of the interruption caused by the Reconstruction crisis in 1867.26 The court “has repeatedly laid down the principle that a contemporaneous legislative exposition of the Constitution, when the founders . . . and framers . . . were actively participating in public affairs acquiesced in for a long term of years fixes the construction to be given its provisions.” It followed, therefore, that the Tenure of Office Act had been unconstitutional, as was the 1876 statute dealing with removal of postmasters. Finally, after affirming the earlier decision of the court of claims, Taft made mention of Senator Pepper, to whom on 24. Ibid., 121. See also M. J. C. Vile, Constitutionalism and the Separation of Powers (Oxford: Oxford University Press, 1967). 25. Myers, 167. 26. To be sure, Taft conceded, presidents since Johnson had accepted the principle of Senate veto concerning presidential removal, “not by acquiescence therein, but by reason of the otherwise valuable effect of the legislation approved.” Thus, for example, the Act of 1876, at issue in this case, “was an appropriation act on which the section here in question was imposed as a rider.” Ibid., 170.

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behalf of the court he expressed gratitude for his brief and argument as amici. “Our obligation is none the less if we find ourselves obliged to take a view adverse to his.” 27 As Taft had earlier observed to his children, in fact Holmes’s dissent was very short, but it went further than “about five lines.” The dissent came to only three short paragraphs, which were more than sufficient for Holmes to destroy Taft’s lengthy arguments, which “seem to me [to be] spiders’ webs inadequate to control the dominant facts.” 28 Similarly McReynolds dispensed with Taft’s strictures concerning broad federal executive authority in one sentence: “I think there is no such power.” Certainly, he added, “it is not given by any plain words of the Constitution,” and Taft’s arguments “advanced to establish it seem to me forced and unsubstantial.” 29 So too was the premise put forth by the former solicitor general, whose efforts to produce a “discourse proceeding from that premise helps only because it indicates the inability of diligent counsel to discover a solid basis for his contention.” Indeed “the supposed necessity and theory of government,” as constructed by the chief justice, “are only vapors.”30 For his part Brandeis was content to let the massive evidence accumulated in his eighty-six footnotes make his case. It indicated to him that the historical picture was much more complicated than Taft had described. Neither house, he observed, “has at any time receded from the claim that Congress has power both to control by legislation removal from inferior offices and to require the President to report to it the reasons for removals made therefrom.” Further “no instances ha[ve] been found in which a President refused to comply with an Act of Congress requiring that the reasons for removal . . . be given.” Indeed “a construction given to the Constitution by the concurrent action of Congress and the President continued throughout a long period without interruption should be followed.”31 Finally Brandeis can only have been troubled by the vast reach concerning Taft’s expansion of executive authority. How could the commissioners of the various federal regulatory agencies, for example, have real independence of viewpoint if they could be removed at will by the president? Indeed the doctrine of the separation of powers was adopted by the framers “not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but by means of the inevitable friction incident to the distribution of governmental powers among three departments, to 27. Indeed “the strong presentation of the arguments against the conclusion of the court is of the utmost value in enabling [the justices] to satisfy [themselves] that [they have] fully considered all that can be said.” Ibid., 175–76. 28. Ibid., 177. 29. Ibid., 179. 30. Ibid., 192–93. 31. Ibid., 289–90.

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save the people from autocracy.” For “the outstanding fact remains that every specific proposal to confer such uncontrollable power upon the President was rejected.” Then (and now) “protection of the individual . . . from the arbitrary or capricious exercise of power was . . . believed to be an essential of free government.”32 Taft could not effectively rebut the Brandeis dissent in public, but privately he fumed to his brother that Brandeis was opposed to a strong executive. “He loves the veto of the group upon effective legislation or effective administration. He loves the kicker, and is therefore in sympathy with the power of the Senate to prevent the Executive from removing obnoxious persons because he always sympathizes with the obnoxious person.”33 By 1926 increasingly Taft was unable to distinguish between loyalty to his court as an institution and legitimate disagreement concerning legal interpretation of a statute. Thus he described McReynolds and Brandeis as jurists who “belong to a class of people that have no loyalty to the court and sacrifice almost everything to the gratification of their own publicity and wish to stir up dissatisfaction with the decision of the court, if they don’t happen to agree with it.”34 Taft never receded from his belief that the Myers holding was the most important decision he had authored during his tenure as chief justice. Ultimately neither history nor his brethren have agreed with this assessment, and five years after his death a unanimous court restricted the 1926 holding to “all purely executive officers. It goes no further: much less does it include an office [in this case a federal trade commissioner] who occupies no place in the executive department and who exercises no part of the executive power vested by the Constitution in the President.”35 The opinion was written by Justice Sutherland, who had silently concurred with his chief in 1926.

3 Even as Myers had awaited it final outcome, in January 1926 the court took up another case that remains among the most important to be heard during the Taft tribunal’s history. Indeed among several possible choices it ranks as a truly “landmark” case. Of even greater significance is the fact that to this day the 32. Ibid., 204–5. 33. Urofsky, Louis D. Brandeis, 89. 34. Mason, William Howard Taft, 226. See also Taft’s comment to his youngest son concerning McReynolds that the more agitation against the court, “growing out of any opinion of his, the better he likes it, because it exalts in a way that tickles [in] him the spirit of opposition.” Charles Taft Papers, October 31, 1926. Urofsky observed that the Myers decision received “a barrage of criticism ranging over the political spectrum.” A typical example came from Senator Hiram Johnson, whose dislike of Taft had been consistent and lasting. According to Johnson “the only people who supported the Taft opinion were those who believed the country needed a Mussolini.” Urofsky, Louis D. Brandeis, 590. 35. See Humphrey’s Executor v. United States, 295 U.S. 602, 628 (1935).

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resulting decision can accurately be described as a “revolutionary holding.”36 While subsequent litigation based on its outcome has reshaped the urban environment of the United States with mixed results, the impact of Euclid v. Am­ bler continues to be felt.37 How a conservative tribunal, wedded to the narrow confines of classical legal thought, could have handed down such a significant decision deserves some discussion. The case of Euclid v. Ambler originated with a zoning ordinance enacted by a Cleveland suburb in 1922. That such a statute could be adopted during the 1920s ought to remind us of the peril in labeling periods of our legal history as essentially progressive, or conservative, or reactionary.38 The introduction of zoning, for example, must be seen as a response to the expansion of urbanization. Starting in the late nineteenth century, the American urban population “multiplied almost seven times,” especially in the Midwest.39 The urgent need for a response to conditions involving matters of urban growth, health, sanitation, and safety formed the background for two important changes in the legal response to these pressures. First was a reaffirmation and expansion of the legitimacy and scope of the police power. Second was emergence of the professional associations, together with burgeoning expertise in such fields as medicine, law, economics, higher education, and urban planning. Nine years before the high court decided Euclid v. Ambler, one of the lawyers who later filed an amicus brief in it made an intriguing prediction. “A comprehensive city plan, based on a thorough, expert study . . . will surely sooner or later—and probably sooner—be upheld by the [Supreme Court] as a modern form of the regulation of the use of private property for the promotion of general public safety, health, comfort, and welfare.” 40 Such a comprehensive zoning ordinance was unanimously adopted by the village council of Euclid, an

36. Michael Alan Wolf, The Zoning of America: Euclid v. Ambler (Lawrence: University Press of Kansas, 2008), 6. Much of this section draws on Professor Wolf’s scholarship. It is interesting that when Euclid v. Ambler was decided, although three of the most conservative jurists on the Taft court, Butler, McReynolds, and Van Devanter dissented, none of them even troubled to file a written explanation as contrasted with their recorded votes in dissent. As will be seen, this may be due to the skill with which the fourth member of the conservative block, Justice Sutherland, had crafted the opinion for the court. 37. Euclid, Village of, v. Ambler Realty Co., 272 U.S. 365 (1926). 38. In a similar vein Professor Wolf noted that “simplistic labels” such as conservative, reactionary, progressive, and liberal “mask the complexity of the judicial decision-making process” and also lessen the understanding of the values of the individual justices, as several of Justice Sutherland’s opinions discussed in this chapter indicate. 39. Wolf, 22, citing the still relevant study by Richard Hofstadter, The Age of Reform: From Bryan to F.D.R. (New York: Alfred A. Knopf, 1955). 40. Especially, added Alfred Bettman, “if the ordinance is based upon a thorough study of the situation, that the effect of a city planning ordinance will tend to be toward the stabilizing of values, rather than of destroying or diminishing” them. Ibid., 26.

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incorporated Cleveland suburb, in November 1922. The statute was promptly challenged by property owners within the areas to be rezoned. They hired as their lead counsel the former secretary of war during President Wilson’s second term, Newton Baker. A two-term mayor of Cleveland, Baker had progressive credentials that were not open to question. But they did not prevent him from undertaking to bar Euclid’s new ordinance from taking effect.41 Unlike other pending lawsuits involving zoning ordinances, Baker chose to file suit in federal court, and the Euclid v. Ambler case represents the “first [complete] federal court challenge” to “a comprehensive zoning statute.” 42 In due course it was assigned to district court judge David C. Westenhaver. Westenhaver was an old friend and former law partner of Baker. Indeed Baker had strongly recommended him to President Wilson in 1916 as a candidate to succeed district judge John H. Clarke, whom Wilson had just named to the Supreme Court. Although today it might seem inappropriate for a judge to sit on a case involving his former law partner, such appears not to have been the case in 1916. Neither Baker (not surprisingly) nor counsel representing the village of Euclid raised any objection to any alleged impropriety, and, after considering testimony from more than a dozen witnesses, early in 1924 Westenhaver declared the zoning ordinance unconstitutional as applied to land owned by the Ambler Realty Company. The statute “takes plaintiff’s property, if not for private, at least for public use, without just compensation.” Thus “it is in no just sense a reasonable or legitimate exercise of police power.” 43 On January 27, 1926, Taft along with seven of his colleagues heard the Euclid v. Ambler appeal. Counsel for the village of Euclid argued that before its zoning statute could be declared unconstitutional, “it must be found that it has no relationship to either health, or safety, or public convenience.” Indeed “it must be made plainly and palpably to appear that the legislation has no such possible relationship, and it must be found to be clearly and plainly and manifestly unreasonable and arbitrary.” Meeting these criteria, he claimed, would be impossible. The rule, added James Metzenbaum, is that “unconstitutionality

41. Like numerous Progressives of Wilson’s era, in later years Baker found the Depression Era emphasis on government involvement unacceptable. Even in 1926, three years before the market crash, he revealed how far he had traveled from his days as a Wilson Progressive. He wrote that “if the right of private property is subject to the unrestrained caprice of village councils . . . [then] obviously we have . . . surrendered private ownership of property into a sort of communistic ownership and control upon which an entirely new order of both economic and social organizations will be based.” Wolf, 83. In 1932 his supporters made an abortive attempt to procure the Democratic nomination for him, and by the mid-1930s Baker had become an avid anti–New Dealer. 42. Ibid., 43. 43. Ibid., 54. Westenhaver assumed, correctly, that “this case is obviously destined to go higher.”

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is not to be presumed, but must be clearly established and proved.” 44 If in the light of community conditions, the statute “cannot be said to have no relationship to health, safety . . . and the like, then the legislation must be sustained and held valid.” Countering a point raised by Baker in the district court, Metzenbaum held that the “validity of a police regulation is not to be . . . determined by the question of whether some one piece of property or some one use might not injure the health or safety or general welfare, but rather that the constitutionality is to be adjudged upon the general purpose” of the ordinance. Finally counsel pointed to the numerous examples of state courts upholding comprehensive zoning ordinances. For his part Baker insisted that “a belief, no matter how fervently or widely entertained, that municipal authorities can assert some sort of communal control over privately owned land, is at variance with the fundamental nature of private ownership and in derogation of the protection of private ownership.” Possibly hearkening back to his progressive credentials, he urged the court to focus on the specific damage the ordinance would cause for his clients. Baker declined to “assume the burden of declaring generally and completely the invalidity of all controlling ordinances.” Nor did he intend “to indulge in abstract philosophy on the subject.” Rather he sought to show that as far as his clients were concerned, the zoning ordinance “is arbitrary, unreasonable and not in good faith.” 45 Baker also indulged in one of the favorite tactics of an attorney, that of the slippery slope argument. Euclid was just one of a number of incorporated “villages” that surrounded Cleveland. If Euclid’s statute was upheld, what would be the results “if each one of these villages shall pass restrictions solely without regard to the whole.” The court should permit “the operation of natural and economic laws,” and the justices “should not allow ‘every village and council and local influence’ to interfere” with such enactments.46 Finally Baker accused small suburban enclaves of seeking to wrap constitutional protection about their efforts as if it were “an oversized coat.” Metzenbaum responded that such protection “automatically fits and equally applies to large and small.” Indeed he reminded Baker that the constitutional police power came in only “one size that fit all municipalities.”47 In his excellent history of Euclid v. Ambler, Professor Michael Wolf observed that Justice Sutherland was absent from the argument on January 27 and 44. See summary of arguments in Euclid v. Ambler. In support of his position, Metzenbaum cited two classic decisions affirming the presumption of constitutionality doctrine. See Sinking Fund Cases, 99 U.S. 700, 718 (1878), and Powell v. Pennsylvania, 127 U.S. 678, 684 (1888). 45. Wolf, 68. 46. Ibid. 47. Ibid., 71.

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indeed missed a number of court sessions between January and February. “The reasons for his absence are unclear.” 48 To the contrary it would seem that Sutherland was suffering from severe mental exhaustion and had been advised by his doctors to take a complete break from his work for at least several weeks. He was strongly encouraged to do this by his brethren, in particular Chief Justice Taft. On January 16 Taft sent a handwritten note to his ailing colleague reporting that in the weekly conference “we got rid of a good many cases, mostly chicken feed.” 49 Taft added that “we miss you, but rejoice [that] you are where you ought to be.” Although he forwarded both the allocation of cases and the conference list to Sutherland, Taft added in large letters, “Don’t bother. It is worry that hurts.” 50 Apparently rejuvenated by this respite from his labors, after a court recess of about a month Sutherland returned to the bench on March 1, when Taft unexpectedly announced that the Euclid v. Ambler case had been restored to the docket for reargument, to take place in October. While requests for a reargument are not uncommon, granting such a step is infrequent. The court rarely explains why it takes such a course. Nor did it do so in this instance. Sutherland’s earlier absence, however, may be of some significance here. It may well be that the justices were aware of the major impact that the zoning case would have. It is also possible that informal discussions among themselves might have indicated a closely divided court. Knowledgeable court observers assumed that Holmes, Brandeis, and Stone would probably sustain the law, while McReynolds, Butler, and Van Devanter would surely oppose it.51 That left Taft and Sanford, whose positions were unknown.52 Mention has already been made, however, of Taft’s strong dislike for five-to-four opinions, as well as his evident regard and respect for Sutherland. It is not surprising therefore that his court agreed to have the zoning case reargued before the full bench.

48. Ibid., 66. 49. When Taft wrote these words, the Judiciary Act of 1925, also known as the Judges’ Bill, had been in effect for less than a year. By 1927–28, as will be noted, court statistics would indicate a very different story. 50. Sutherland Papers, January 16, 1926. Wolf mentions a news report that Sutherland and his wife were in Charleston, South Carolina, where the justice “has declined invitations to address local clubs on the ground that he is enjoying a respite from all work.” Wolf, 66. 51. As will be seen, this is exactly what happened. 52. In 1925 for a unanimous court, Sanford had dismissed an earlier challenge to the New York zoning statute without consideration of the merits, on the grounds that counsel had failed to raise arguments based on the federal Constitution, thereby leaving the court without a federal question to decide. Wolf, 77–78. See Rosevale Realty Co. v. Kleinert, 268 U.S. 646 (1925).

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With all the justices present, Euclid v. Ambler was heard again on October 12, argued by the same attorneys as before, supplemented by several new amici briefs. Between then and November 22 the justices considered and deliberated on their first zoning case to be decided on the merits. On November 22 Justice Sutherland delivered one of his most significant and (thus far) enduring opinions. Joining him besides the expected trio of Brandeis, Holmes, and Stone were Taft and Sanford. Euclid v. Ambler turned out to be the first of four zoning cases decided by the Taft court from 1926 to 1928. As will be seen Sutherland wrote for the court in every one. Knowing that he was taking a stand that separated him from three colleagues in whose viewpoint he usually concurred, early in his opinion Sutherland sought to place zoning in as broad a context as possible. He located it in the context of twentieth-century urban America. The practice, he noted, was “of modern origin” and became necessary “with the great increase and concentration of population.” Similarly traffic regulations became essential with the advent of the automobile and rapid transit. Half a century ago they “would have been condemned as fatally arbitrary and unreasonable.” But now “they are sustained under the complex conditions of our day.” Such a development was neither inconsistent nor inappropriate, “[f]or while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world, it is impossible that it should be otherwise.” 53 Possibly with the dissenting votes of his three brethren in mind, Sutherland added an important caveat: that “although a degree of elasticity is thus imparted, not to the meaning, but to the application of constitutional principles, [those] statutes and ordinances, which, after giving due weight to the new conditions, are found clearly not to conform to the Constitution, of course must fall.” 54 Sutherland next turned to the Euclid zoning statute and immediately made it clear that the new enactment would not fit in this category. He accepted Metzenbaum’s contention that consideration of the well-established law of nuisances shed light on the scope of the zoning power. Thus the ordinance had to be considered “in connection with the circumstances and the locality.” It followed then that “if the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control.” Although he had indicated here that the statute was constitutional, Sutherland went much further.

53. Euclid v. Ambler, 387. Although known as a conservative jurist, here Sutherland’s statement reflected the tone of a fervent progressive. 54. Ibid. Italics in original.

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He discussed the specifics of the ordinance as applied to Euclid and noted that state litigation concerning the zoning authority was ongoing. “The decisions of the state courts are numerous and conflicting; but those which broadly sustain the power greatly outnumber those which deny it altogether or narrowly limit it,” and it becomes “very apparent that there is a constantly increasing tendency in the direction of the broader view.” 55 After citing a number of such cases, Sutherland again linked his opinion to typical progressive methods. “The matter of zoning has received much attention at the hands of commissions and experts, and the results of their investigations have been set forth in comprehensive reports . . . which bear every evidence of painstaking consideration.” 56 If all these points “do not demonstrate the wisdom or sound policy in all respects of those restrictions [found in the Euclid statute] . . . at least, the reasons are sufficiently cogent to preclude us from saying, as it must be said before the ordinance can be declared unconstitutional, that such provisions are clearly arbitrary and unreasonable, having no substantial relation to the public health . . . or general welfare.”57 Yet even as Sutherland endorsed the law, he coupled his acceptance of the Euclid statute with a significant warning. The jurist added that “it is enough for us to determine, as we do, that the ordinance in its general scope and dominant features, so far as its provisions are here involved, is a valid exercise of authority, leaving other provisions to be dealt with as cases arise directly involving them.” 58 Finally Sutherland justified this incremental policy as one followed by the Taft court. “In the realm of constitutional law, especially, this court has perceived the embarrassment which is likely to result from an attempt to formulate rules or decide questions beyond the necessities of the immediate issue.” Rather the justices preferred a “method of a gradual approach to the general by a systematically guarded application . . . to particular cases as they arise.” This method “applies with peculiar force to the . . . exercise of the flexible powers of police, with which we are here concerned.” 59 As noted above three of Sutherland’s closest colleagues silently dissented from his opinion. That none of them felt strongly enough about this case to submit a detailed dissent may be explained by the fact that he appeared to have chosen his words with some care. More than once he had made it clear 55. Euclid v. Ambler, 388, 390. 56. Unlike his colleague Justice Brandeis, who especially in his dissents would cite such materials in great detail, Sutherland contented himself with the statement just quoted. 57. Euclid v. Ambler, 395. 58. Ibid., 397. Baker had sought to have the court bar the entire statute from taking effect. Had he pointed to a specific injury suffered by the Ambler Reality Company, a different issue might have been presented. 59. Ibid.

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that while this statute passed constitutional muster, another zoning ordinance adopted under different conditions with different provisions might well not. Four additional zoning cases between 1927 and 1928, three decided by Sutherland for a unanimous court, and the other per curiam but also based on Euclid v. Ambler, well illustrate this point. In the case of Beery v. Houghton, in March 1927 the court resolved the issue with a one sentence per curiam opinion which in turn cited Euclid v. Ambler as the sole justification for its holding the zoning ordinance in question constitutional. Two months later Justice Sutherland again spoke for a unanimous court in two additional zoning cases. His first opinion was a scant two paragraphs and relied heavily on Euclid v. Ambler.60 In the second instance, although the court unanimously sustained the zoning statute in question, Sutherland made it clear that specific applications of a zoning ordinance could be attacked, even though he rejected the claim of plaintiff that the Roanoke city council’s ordinance enabled it “unfairly to discriminate between lot owners.” Sutherland held that “we cannot, of course, construe the ordinance as meaning that the power may be thus exerted; nor may we assume in advance that it will be exercised by the council capriciously, arbitrarily, or with inequality. It will be time enough to complain when, if ever, the power shall be thus abused.” 61 That time apparently arrived in 1928, with Justice Sutherland speaking for a unanimous court. Another zoning ordinance was challenged, and again Sutherland wrote that “in its general scope, it is conceded to be constitutional” in the light of Euclid v. Ambler. 62 However, he noted that the trial court had assigned the case to a master, who had found that “redistricting of the plaintiff’s land in a residence district would not promote the health, safety, convenience, and general welfare of the inhabitants.” Sutherland added that examination of a city plat map “shows with reasonable certainty that the inclusion of the [site] in question is not indispensable to the general plan.” 63 These findings distinguished this case from Euclid v. Ambler. Sutherland reiterated his earlier point that the power “to interfere by zoning regulations with the general rights of the land owner by restricting the character of his use, is not unlimited, and . . . cannot be imposed if it does not bear a substantial relation” to those goals just cited. Here such a nexus was 60. Beery v. Houghton, 273 U.S. 671 (1927); Zahn v. Los Angeles, 274 U.S. 325 (1927). 61. Gorieb v. Fox, 274 U.S. 603 (1927). Moreover, “the highest court of the state, with greater familiarity with the local conditions and facts . . . than we possess, has sustained its constitutionality; and that decision is entitled to the greatest respect and, in a case of this kind, should be interfered with only if in our judgment it is plainly wrong, a conclusion which, upon the record before us, it is impossible for us to reach.” Ibid., 609. 62. Nectow v. City of Cambridge, 277 U.S. 183, 185 (1928). 63. Ibid., 187. See the excellent bibliographical essay, 175–80, in Wolf, for numerous examples and references.

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lacking, all the more as the “invasion of the property of plaintiff . . . was serious and highly injurious.” Since “a necessary basis for the support of that invasion is wanting,” this particular zoning ordinance cannot be sustained.” 64 Even as he held for plaintiff, Sutherland repeatedly reaffirmed his Euclid v. Ambler decision, as would future courts. Professor Wolf was correct to note—in both positive and negative terms—the importance of “a long standing decision such as Euclid v. Ambler on the books.” 65 While it is beyond the scope of this study to explore ongoing applications of Euclid v. Ambler, one should be aware that Sutherland’s legitimization of land use planning carried a great deal of excess baggage with it.66 Exclusionary practices go hand in hand with zoning policies. Even before Euclid v. Ambler was decided, the “less than holy alliance between zoning as a particular land use planning tool and anti-immigrant sentiment,” one out of numerous contemporary prejudices, had already been put into practice. Indeed the legacy as well has the impact of zoning has been decidedly mixed. “Buried beneath the constitutional catchwords and sociological shibboleths [in the Euclid v. Ambler holding] were the leaded words and phrases, and a tradition, of segregation and exclusion.” 67 Another of the thirteen cases handed down on November 22 offers an additional example of the Taft court’s comfort with the norms of progressive practice, even as it remained wedded to classical legal thought. The case of Graves v. Minnesota involved a would-be dentist who had been prosecuted for practicing dentistry without a diploma “from an accredited dental college,” as required by a Minnesota statute. He had been rejected by the state board of dental examiners because he lacked such a diploma, whereupon Graves filed suit, arguing that in effect the statute limited the granting of a license only to graduates of an approved dental college. In so doing the law violated the due process clause “and other provisions of the 14th Amendment” as it “is unreasonable, arbitrary, and discriminatory.” 68 Possibly because the justices did not deem this claim worthy of serious constitutional consideration, they declined even to hear the argument from the Minnesota attorney general. For a unanimous court Justice Sanford needed only a few short paragraphs to reject Graves’s position. Through the statute under consideration, Minnesota had determined that no one could practice dentistry unless in possession of a diploma from an appropriate dental college of good standing, as certified by a state board of dental examiners presumably expert in their field. “That determination must be given great weight,” as 64. 65. 66. 67. 68.

Nectow, 188–89. Wolf, 164. Ibid., 140. Ibid., 140, 143. Graves v. Minnesota, 272 U.S. 425, 426–27 (1926).

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“every presumption is to be indulged in favor of the validity of the statute.” Further “the state is primarily the judge” concerning the necessity of such statutes, which “may only be declared unconstitutional where they are arbitrary or unreasonable,” surely not applicable to this case.69 An additional case carried overtones of the Euclid v. Ambler decision and is of interest in that the justices used a tenet of classical legal thought against the United States on behalf of Native Americans. It involved western lands in Minnesota amounting to some four hundred thousand acres that, with one important exception, the Yankton Sioux Tribe had agreed to cede to the federal government by treaty in 1858. The exception—also included in the treaty— was a small tract known as the Pipestone Reservation. The Yankton Tribe was promised “the free and unrestricted use of the red pipestone quarry,” and “to procure stone for pipes so long as they shall desire.” In 1891 in return for an additional cession of 150,000 acres the United States further agreed that if it ever questioned Yankton possession of the Pipestone Reservation tract as well as the right to use the quarry, the matter was to be referred by the secretary of the interior to the Supreme Court “as speedily as possible.” Finally, if within one year this official had not so referred the issue, such failure was to render the reservation solely as the property of the tribe. Although this provision was part of a statute enacted by Congress, the secretary had declined to act on the grounds that it represented an unconstitutional attempt by Congress to expand the original jurisdiction of the court. In due course and in response to an attempt by the tribe to gain unrestricted title to the tract in accord with the agreement, as well as any money “legally and equitably” due to plaintiff, the court of claims found against the Indians. It held that because of its unconstitutionality, “the provision on its face was impossible of performance, and [was] therefore void.” 70 Now, without clear title to what they believed they had long been promised, nor any compensation, the Indians appealed. This was the case decided by the justices in 1926. Justice Sutherland spoke for a unanimous court. Before dealing with the complicated legal issues in the case, Sutherland noted that the “pipestone quarries are of great antiquity.” From time immemorial tribes had gathered there, “to quarry the stone which is of a quality and texture not found elsewhere, and mold it into pipes—the Indian symbols of peace.” This site has “always been regarded . . . with sentiment bordering upon religious reverence.” Although the Yankton Sioux had transferred their 69. Ibid., 428–29. The fact that this case appeared not to involve a property right per se as much as an issue of health and public safety may explain why all the conservative justices concurred in Sanford’s opinion. If Graves wanted to practice dentistry, all he had needed to do was to obtain the required credentials, and nothing in the case indicated that he was incapable of doing so. 70. See Yankton Sioux Tribe v. United States, 272 U.S. 351, 353–56 (1926).

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possessory title of other lands to the United States, they “had steadfastly refused to surrender what they conceived to be their peculiar rights to this tract.” Moreover they had accepted in good faith and “relied with the utmost confidence” on the promise of Congress, that if the dispute over ownership of the quarry had not been referred to this court within the stipulated time, government claims to the sites would cease, “and the Indian title . . . be conclusively established.” 71 Conceding that Congress had attempted to assign an unconstitutional function to the court, Sutherland insisted that the tribe in good faith had agreed to the cession of the lands, and to hold them to it “would be most inequitable and utterly indefensible upon any moral ground.” Yet the cession could not be rescinded, and the original rights restored to the tribe, because by government action, “the lands have been opened to settlement and large portions of them are now in the possession of innumerable innocent purchasers.” 72 The court had two choices, according to Sutherland. It could “sanction a great injustice, or enforce the alternative agreement. Since, indirectly, however, by selling land to purchasers, the United States had made it impossible for title to vest in the tribe, as it had so agreed, therefore, it must “suffer the stipulated consequence.” Because the United States did not deny that it had taken possession of the entire 648-acre tract, the Yankton Sioux “are entitled to just compensation as for a taking under the power of eminent domain.”73 Even though Sutherland had conceded that the “general rule undoubtedly is that where there is a legal impossibility of performance . . . there is no contract in respect of it,” he declined to apply it in this case. The government had agreed that if the court could not take jurisdiction, title would automatically vest in the tribe. Allocation of some of the tract to innocent purchasers rendered it impossible for the government to fulfill this obligation. Hence the United States was liable for a taking, and two years later the tribe ceded their rights to the federal government for a sum of more than $330,000. The final conclusion to the case came in 1937, with the creation of the Pipestone National Monument “reserving to Native Americans the right to quarry.”74 The Yankton Sioux case should not be considered as a typical example of the Taft court. Locked into patterns of classical legal thought, on occasion the justices were able to break free of its confines. Classical contract law would have left the tribe without a remedy. Instead Sutherland built on and enlarged 71. Ibid., 356–57. 72. Ibid. 73. Ibid., 358–59. 74. Wolf, 97. By federal law only Native Americans possess this right, and their use of the quarry continues unabated to this day. Sutherland’s opinion brings to mind the comment of Brandeis about his colleague that “whatever you may say of him he has character and conscience.” Urofsky, “Brandeis-Frankfurter Conversations,” 330.

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the scope of a legal “taking,” as was seen in the Euclid v. Ambler case, decided on the same day as Yankton Sioux. These cases remain an excellent example, to paraphrase Melvin Urofsky, of the Taft court, as—albeit with halting and occasionally inconsistent steps—it approached the cusp of modernity. A few other instances can be cited, as 1926 drew to a close.

4 In the case of Hudson v. United States another unanimous decision enlarged the discretionary authority of the federal courts when considering a plea of nolo contendere. “I will not contend it,” refers to the practice of a defendant who in effect pleads guilty without admitting it. In this case plaintiff (a defendant in a criminal proceeding) claimed that a plea of nolo when accepted by the presiding judge required a lighter sentence such as a fine instead of imprisonment.75 Justice Stone rejected this position. He held that a court could indeed mitigate punishment following such a plea, and “do so whenever the plea is accepted with the understanding that only a fine is to be imposed.” But to make such a restriction “mandatory upon the court by positive rule of law would only hamper its discretion” and thus “curtail the utility of the plea” in the first place.76 For a unanimous court Stone once again revisited the enduring issue of modern technology and Prohibition. As was noted in an earlier chapter, the growing popularity of the automobile in the 1920s raised difficult legal issues when it came to enforcement. The case of Van Oster v. Kansas concerned a plaintiff who in purchasing a car had agreed to permit the dealers to “make frequent use” of the vehicle. In due course one of them was arrested and charged with its unlawful use for the “illegal transportation of intoxicating beverages.” Under applicable Kansas law the state sought to have plaintiff forfeit her automobile, and not surprisingly she strongly objected—insisting that alleged illegal use of her vehicle “was without her knowledge or authority.” Her counsel claimed that the state statute authorizing such forfeiture violated the Fourteenth Amendment and further that it had been preempted by federal legislation enforcing Prohibition.77 Stone rejected every contention out of hand. In the first place it was not uncommon “for the law to visit upon the owner of property unpleasant consequences of the unauthorized action of one to whom [s]he has entrusted it.”78 Similarly forfeiture of property by an innocent owner, used by another for illegal purposes, had already been found not to violate the Fifth Amendment

75. Hudson v. United States, 272 U.S. 451, 452 (1926). 76. Ibid., 457. 77. Van Oster v. Kansas, 272 U.S. 465, 466 (1926). Counsel further noted that the accused employee of the dealership had been acquitted in a separate trial. 78. Ibid., 467.

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to the Constitution. Plaintiff’s attorney, however, had argued that forfeiture in her case violated the Fourteenth Amendment as well. For Stone this was a distinction without a difference. He found “no valid distinction” between both applications and cited a recent opinion from Justice Van Devanter that “the same transaction may constitute separate offenses against both state and federal sovereignties.” 79 As to the acquittal of the employee who had driven her car, Stone found that such was a matter of state law and state procedure “in which the decision of the state court is controlling.” But Stone was not always sympathetic to the state in Prohibition cases, as has previously been noted. In the last example of such litigation to be considered here, he silently concurred with McReynolds and Butler as he joined in a vigorous dissent authored by Sutherland. The case concerned a decision by Brandeis and supported by the remaining justices who included, Taft, Holmes, Van Devanter, and Sanford. It brings to mind Taft’s observation, cited earlier, that issues related to Prohibition caused the greatest discord among his brethren. In the unanimous James Everard’s Breweries decision handed down two years prior to this litigation, the justices had confronted the issue of prohibiting the prescription of malt beverages by physicians for medical purposes and had sustained federal authority to do so. The case under consideration involved Dr. Samuel Lambert, a “distinguished physician” who objected to the current limitation on all “vinous or spirituous liquors,” rather than just malt beverages. He “does not intend to prescribe the use of liquor for beverage purposes.” But he rejected federal authority to limit in any way the amount of liquor he could prescribe. Further Lambert insisted that to advise his patients concerning the “use of such medicines and medical treatment as in his opinion are best calculated to effect their cure . . . is an essential part of his constitutional rights as a physician.” 80 Rebuffed by a lower federal tribunal, he appealed to the high court. For a bare majority Brandeis rejected his arguments. He observed that if adhered to, the Everard holding “disposes of the present case.” If Congress could prohibit the manufacture and sale of malt beverages for medicinal purposes, as it had done, so “it equally . . . may restrict the prescription of other intoxicating liquor” for the same purpose. “In point of power there is no difference.” Moreover Lambert’s insistence on “the medicinal value of such liquor is not of controlling significance.” Besides “there is no right to practice medicine which is not subordinate to the police power of the

79. Ibid., 468, 469. 80. Lambert v. Yellowley, 272 U.S. 581, 588 (1926). Among other facts cited by Brandeis was the resolution adopted by the AMA that the use of alcoholic liquor “as a therapeutic agent was without scientific basis and should be discouraged.” Ibid., 591.

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states . . . and also to the power of Congress to make laws . . . for carrying into execution the 18th Amendment.” 81 In a sharply worded dissent Sutherland accepted Brandeis’s premises but came to the opposite conclusions. “If Congress cannot altogether prohibit the prescription for medicinal use, it cannot limit the prescription to an inadequate quantity, for, obviously, in that case, to the extent of the inadequacy, the prohibition is as complete and the usurpation of power as clear, as though the prohibition were unqualified.” 82 He also indulged in the familiar slippery slope argument. If “Congress can prohibit the prescription of liquor for necessary medical purposes . . . , [it] by a parity of reasoning, may prohibit . . . such manufacture and sale altogether with the result that under the pretense of adopting appropriate means, a carefully and definitely limited power will have been expanded into a general and unlimited power.” Congress “cannot prohibit the legitimate prescription of . . . liquors for medicine as this statute attempts to do.” In an effort to enforce the Eighteenth Amendment, it “exceeds the powers of Congress, invades those exclusively reserved to the states and is not appropriate legislation.” 83 A case decided late in 1926 concerned narrowing the jurisdiction of the Federal Trade Commission. In a five-to-four decision, Justice McReynolds, whose hostility to this commission was prolonged and consistent, spoke for himself plus Justices Van Devanter, Sutherland, Butler, and Sanford. The case is of interest because while Taft’s dislike of five-to-four decisions was well known, he joined with Stone and Holmes in a dissent by Brandeis to create yet another such holding.84 Federal Trade Commission v. Western Meat Co. actually involved three separate appeals from attempts by the FTC to force three corporations to divest themselves of various stocks obtained from their competitors.85 One of the plaintiffs was the meatpacking house of Swift and Company, no stranger to federal courts. For a bare majority Justice McReynolds held that the Clayton Act (1914) “has no application to ownership of a competitor’s property . . . obtained prior to any action by the Commission, even though this was brought about through 81. Ibid., 596. “It merely places him in what was shown in Congress to be the minor fraction of his profession.” 82. Ibid., 602. Emphasis in the original. 83. Ibid., 604–5. Emphasis in the original. 84. It might be noted that in his eight full terms as chief justice, Taft handed down almost 250 opinions for the court and dissented in seventeen, with only three written dissents filed. See Lurie, “Chief Justice Taft and Dissents,” 181. Indeed he suppressed at least two hundred additional dissenting votes. For him to join the three justices already coalescing into a bloc opposed to classical legal thought might indicate Taft’s basic disagreement with McReynolds concerning the scope of federal regulatory authority—especially when it involved commerce. 85. See Federal Trade Commission v. Western Meat Co., 272 U.S. 554 (1926).

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stock unlawfully held.” Indeed “the purpose of the act was to prevent continued holding of stock and the peculiar evils incident thereto.” If the purchase of such property had produced an unlawful status, a remedy was provided through the courts.86 In dissent Brandeis could not resist the observation that the purpose of the Clayton Act—in spite of McReynolds—was not merely “to prevent continued holding of the stock and the peculiar evils incident thereto.” In fact “it was also to prevent the peculiar evils resulting therefrom.” 87 Late in 1926 “Taft was already beginning to fear that he would not fill out the decade” to which he had aspired as chief justice.88 In addition to his uncertain health, the ailing chief increasingly observed that his desire for judicial restraint by his brethren especially in terms of dissents engendered greater resistance than support. Finally Taft began to have doubts about Stone as a reliable member of the “right” group of justices. The “right” group included Van Devanter, Butler, Sutherland, and McReynolds, frequently joined by Taft and Sanford. All too often, Taft observed, Stone seemed to be casting his lot with Holmes and Brandeis. The chief looked forward to 1927 with concern, a fear that from his perspective would turn out to be entirely justified.

86. Ibid., 561. McReynolds consistently glorified the power of the federal courts over the regulatory commissions, although he seems to have been more tolerant of the ICC, especially in antitrust matters. 87. Federal Trade Commission, 563. 88. Alpheus Thomas Mason, Harlan Fiske Stone: Pillar of the Law (New York: Viking, 1956), 254–55. Taft was prescient in his fear, as he resigned and died in the midst of his ninth year on the court.

7 1927–1928, Part I Civil Rights, Civil Wrongs, and Some Apparent Cracks in Classical Legal Thought

1 As he entered what would be the final third of his term as chief justice, Taft wrote to his younger brother that “apparently I am not suffering from the work in the Court.” This might be because “I am making myself as light a job as I can consistently.” Such was not the case with Willis Van Devanter, he added. Van “has nearly broken down. . . . The trouble with him is that he insists on writing opinions which involve too great individual investigation and he is not content therefore to get through an opinion within a reasonable time, so that now he has carried opinions for one or two years, and he is way behind.” This “has become a nerve straining situation.”1 Taft was referring to a case that indirectly involved the former attorney general Harry Daugherty, who had been forced to resign in 1924, as a result of numerous complaints concerning misfeasance, malfeasance, and scandal arising from his administration of that office. It concerned Daugherty’s brother, who had been issued multiple subpoenas to appear before a select committee of the Senate investigating the Justice Department. The repeated refusal of Mally Daugherty to comply led the Senate to issue a warrant to the Senate sergeant at arms, ordering that he arrest Daugherty and bring him before the bar of the Senate. That officer of the Senate, in actuality his deputy, did apprehend

1. Taft to Horace Taft, William Howard Taft Papers, Cincinnati Historical Society, January 17, 1927. Mention has already been made of Taft’s high regard for Van Devanter, “who is of the utmost value in the Court, even if he writes no opinions. Indeed, if would better if he did not write any opinions, because then the others could keep up with the work.” Ibid.

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Daugherty, but before he could transport him to Washington, lawyers procured a writ of habeas corpus from the federal district court in Cincinnati. A judge of that court convened a hearing and ordered Daugherty released from custody on the grounds that the Senate had exceeded its constitutional authority. On its behalf the deputy sergeant at arms appealed directly to the Taft court, which heard arguments on December 5, 1924. The Senate’s position was presented by both George Wickersham—Taft’s former attorney general and continued good friend—and by Harlan Stone, newly appointed attorney general by President Calvin Coolidge and himself shortly to be named to the high court. Such was the case that lay pending for more than two years, while Van Devanter struggled to craft the decision for a unanimous court. It was indeed, as Taft put it, “a very important opinion,” one that was finally announced on January 17, 1927. Indirectly Van Devanter acknowledged the long delay between argument and decision by stating that “we have given the case earnest and prolonged consideration because the principal questions involved are of unusual importance and delicacy.” The first question concerned “whether the Senate . . . has power through its own process, to compel a private individual to appear before it or one of its committees and give testimony needed to enable it efficiently to exercise a legislative function belonging to it under the Constitution.” 2 The question was important because counsel for Daugherty insisted that in fact the Senate’s investigation was nothing more or less than an “attempt to prosecute, try, and determine the guilt or innocence” not so much of Mally Daugherty as that of his brother, the former attorney general. As to that Congress has no such power.3 The second issue for the court also involved the Senate committee, and whether or not the procedures it followed were sufficiently related to the legislative function just mentioned. It took Van Devanter almost fifty pages to resolve these questions. He conceded at the outset that the Constitution contains no specific provision “expressly investing either house with power to make investigations and exact testimony to the end that it may exercise its legislative function advisedly and effectively.” Thus it became necessary to consider “whether this power is so far incidental to the legislative function as to be implied.” 4 Van Devanter cited legislative practice, congressional enactments, and court decisions—all of which led to the conclusion that the “power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative function.” Well aware of how a legislature functions, he observed that it “cannot legislate 2. See McGrain v. Daugherty, 273 U.S. 135, 154 (1927). 3. According to Wickersham and Stone “each House of Congress has power to conduct investigation in aid of its legislative functions, and to compel attendance before it of witnesses and the production of books and papers which may throw light upon the subject of inquiry.”

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wisely or effectively in the absence of information respecting the conditions which the legislation is intended to effect or change.” Moreover where the legislature does not have the “requisite information—which not infrequently is true—recourse must be had to those who do possess it,” and “some means of compulsion are essential to obtain what is needed.” 5 To be sure, such investigatory power can be abused, but “if this be so, it affords no ground for denying the power,” in the first place. On the other hand, although Daugherty could be compelled to appear before the Senate committee, “a witness rightfully may refuse to answer where the bounds of the power are exceeded or the questions are not pertinent to the matter under inquiry.” 6 Protection against selfincrimination remained sacrosanct. A more difficult matter for Van Devanter to resolve was the defendant’s claim that the Senate investigation was unrelated to legislation. It was true that the resolution adopted by that body did not “avow that it is intended to be in aid of legislation.”7 But what else could it be? Investigation concerning administration of the Department of Justice—“whether its functions were being neglected or misdirected, and particularly whether the Attorney General and his assistants were performing or neglecting their duties”—represented a subject “on which legislation could be had and would be materially aided by the information which the investigation was calculated to elicit.” All functions undertaken by the Department of Justice, including the powers and duties of the attorney general, are “subject to regulation by congressional legislation . . . under such appropriations as in the judgment of Congress are needed from year to year.” 8 Investigation to aid in such legislation was surely appropriate, “and we think . . . that the subject-matter was such that this presumption should be indulged that this was the real object.9 Further the justice found no reason “for thinking [that] the Senate was attempting . . . to try the Attorney General at its bar.” Nor was it a valid argument that the investigation should be halted because “it might possibly disclose crime or wrong doing on his part.”10 Daugherty had a final argument, one that met the same fate as all his prior contentions. He insisted that because the Sixty-Eighth Congress had expired on March 4, 1925, the enabling resolutions setting up the investigatory committee had expired with it, resulting in a controversy that was moot. Van 4. McGrain, 161. 5. Ibid., 175. 6. Ibid., 175–76. 7. Such “an express avowal of the object would have been better.” Ibid., 176–77. 8. McGrain, 178. 9. Van Devanter cited a very similar case from New York, where the court of appeals ruled that “we are bound to presume that the action of the legislative body was with a legitimate object if it is capable of being so construed, and we have no right to assume that the contrary was intended.” Ibid., 178–79. 10. McGrain, 180.

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Devanter conceded the first but not the second premise. He noted that unlike the House, the Senate “is a continuing body,” in which two thirds of its members always continue into the next Congress. Further he observed that the committee had suspended its activities pending the outcome of Daugherty’s case. “It is certain,” Van Devanter wrote, “that the committee may be continued or revived . . . and if [so], will have all its original powers.” He concluded that “our judgment may yet be carried into effect and the investigation proceeded from the point at which it apparently was interrupted by reason of” Daugherty’s habeas corpus efforts. Van Devanter spoke for a unanimous court, although Stone had recused himself for obvious reasons.11

2 Mention has already been made, and will be made again, of the Taft court’s consistent embrace of classical legal thought frequently at the expense of state regulation. On the other hand the justices were more sympathetic to the support of federal civil rights. Although a staunch conservative Justice Sutherland—for example—saw no inconsistency in affirming and expanding constitutional protections. Two weeks prior to the McGrain v. Daugherty decision, he spoke for a unanimous court concerning the reach of the Fourth Amendment and its ongoing clash with Prohibition. The case of Byars v. United States involved a conviction in federal court for possession of counterfeit revenue stamps.12 The case arose when local police in Des Moines obtained a search warrant based on a vaguely worded affirmation to the effect that affiant “has good reason to believe and does believe the defendant has in his possession” various accoutrements involved in the packaging and bottling of liquor. A federal agent was invited to assist in the resulting search, which produced a number of the counterfeit stamps. Sutherland summarily dismissed the warrant, “since in no event could it constitute the basis for a federal search and seizure.”13 Nor did it make any difference that the search had turned up evidence of federal wrongdoing. An unconstitutional search “is not made lawful by what it brings to light; and the doctrine has never been recognized by this Court, nor can it be tolerated under our constitutional system that evidence of crime . . . may be used against the victim of the unlawful search.”14 To be sure, in this case the federal agent was assisting in a search conducted by state authorities, and in a sense his role could not be labeled as federal 11. Ibid., 182. 12. Byars v. United States, 273 U.S. 28 (1927). 13. Ibid., 29. 14. Ibid., 30. Here Sutherland cited the well-known case of Weeks v. United States (1914), in which a unanimous court had held that an illegal search rendered resulting evidence inadmissible in federal courts.

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conduct. In point of fact until the Fourth Amendment became applicable to the states this was not a very unusual arrangement. Although federal authorities had a fairly high threshold required to obtain a warrant, it was a much easier procedure in the states. It was relatively simple in most states for a local law enforcement figure to tell a magistrate that “I suspect . . .” and a warrant would be issued forthwith. In many instances the resulting evidence would promptly be turned over to the federal agents, where it was widely used in federal court, a practice in legal parlance usually described as “the silver platter” doctrine, and not finally discarded until 1960.15 Nevertheless it was the court’s function to prevent violations of the Constitution “by circuitous and indirect methods.” Indeed “it is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.”16 “We do not question,” Sutherland concluded, “the right of the federal government to avail itself of evidence improperly seized by state officers operating entirely upon their own account.” But a different standard is required when, as was the case here, the federal authorities “participated in the wrongful search and seizure. To hold the contrary would be to disregard the plain spirit and purpose of the constitutional prohibitions.”17 Although as in the Byars case the Taft court reaffirmed constitutional rights, it remained locked in the embrace of classical legal thought especially when it involved state regulatory authority, as a number of cases decided in 1927 indicate. Even as the justices announced Byars, a six-member majority rejected a Pennsylvania statute that required licenses to sell steamship tickets for “transportation to or from foreign countries.”18 According to Butler the law represented a direct interference with foreign commerce. Brandeis, Holmes, and Stone dissented, giving yet another instance of a divided court, which Taft deplored even as such dissents became more prevalent. The Brandeis dissent is significant not only for its disagreement with Butler’s opinion, but also for the way in which he sought to undermine the stifling rigidity of classical legal thought. Brandeis insisted that the purchase of a steamship ticket “is wholly intrastate,” as much as were the purchase of local theater tickets. In no way did the statute obstruct or discriminate against foreign commerce, nor place any direct burden on it. Of course Congress remains free to deal with the subject 15. See Elkins v. United States, 364 U.S. 206 (1960). 16. Sutherland quoted from Justice Joseph Bradley’s opinion in Boyd v. United States, 616, 635. He added that according to well-established constitutional doctrine, “Constitutional provisions for the security of person and property are to be liberally construed.” In general Sutherland appears to have reflected Bradley’s conservative values. See Jonathan Lurie, “Mr. Justice Bradley: A Reassessment,” Seton Hall Law Review 16 (1986): 342–75. 17. Byars, 33–34. 18. Di Santo v. Pennsylvania, 273 U.S. 34 (1927).

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because it “is connected with” such commerce. But it has not done so. Nor has it legislated on any allied subject. Thus there can be no contention that Congress has entered the field.”19 Further Brandeis reiterated a key point in his jurisprudence. While it usually followed that the question whether a certain statute has the effect of burdening interstate commerce presents a question of law, “the determination upon which the validity or invalidity of the statute depends is largely or wholly one of fact.” Based on an earlier case, the findings that the majority had determined to be applicable here were in fact distinguishable. Thus the rule of stare decisis was of dubious value in this instance. To be sure, Brandeis observed, “it is usually more important that a rule of law be settled, than that it be settled right.” However, “the doctrine of stare de­ cisis does not command that we err again when we have occasion to pass upon a different statute.” Moreover “it behooves us to reject as guides, the decisions upon such questions which prove to have been mistaken.” Such should be the proper course of action here, where instead the majority justified some sort of potential for state interference in interstate commerce, even though none existed in this instance. In this case “the logic of words should yield to the logic of realities.”20 A second example of the Taft court’s failure to follow Brandeis’s advice came in the case of Tyson and Brother v. Banton, where the justices again reasserted their hostility to state regulation, no matter how obvious the need or justification for it. The case involved the constitutionality of two sections in a New York statute. It concerned the amount that resellers of tickets to theaters “and other places of entertainment in New York City” could lawfully charge. One section declared that such charges represented “a matter affected with a public interest” and thus were subject to state regulation, while the other forbade a resale price in excess of fifty cents above the price printed on the ticket. Speaking for a bare majority of the court Sutherland declared both provisions unconstitutional.21 No doubt aware that only four justices agreed with him, and that three of the dissenters, including Holmes, Stone, and Sanford, would offer written statements in opposition—Sutherland sought to be thorough if not exhaustive in his opinion.22 In the first place he observed that “the right of the owner to

19. Ibid., 39. 20. Ibid., 42–43. Agreeing with Brandeis, Stone was not “persuaded that the regulation here is more than local in character,” and “it would seem that there is no adequate ground for holding that the regulation here is a prohibited interference with commerce.” 21. See Tyson and Brother v. Banton, 273 U.S. 418 (1927). 22. Long before he announced the decision, Sutherland had already indicated what it would be by referring, among other things, to a “serious invasion of the rights of property and freedom of contract.” Ibid., 431.

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fix a price at which his property shall be sold or used is an inherent attribute of the property itself.” Further, while he conceded the power to regulate prices, he insisted that such authority “can be invoked only under special circumstances,” and it does not follow that “because the power may exist to regulate in some particulars it exists to regulate in others or at all.” Nor finally did a legislative declaration that a particular business or occupation “is affected with a public interest” carry major significance. “The matter is one which is always open to judicial inquiry.” Sutherland tracked a number of prior decisions including those relating to businesses that “though not public at their inception may be fairly said to have risen to be such” and thus were subject to government regulation. The best example of this remained the landmark case of the grain elevators, Munn v. Illinois, decided in 1876. Sutherland summarized this case along with several others that had sustained the concept of regulation in the public interest. But in these more recent decisions, he added, “the statutes involved were of a temporary character, to tide over grave emergencies.” They would not ordinarily be affected with a public interest “unless some great emergency exists.” 23 His examination led Sutherland to conclude that whenever governmental price fixing had been sustained by the court, it turned on the existence of conditions, “peculiar to the business . . . which bore such a substantial and definite relation to the public interest as to justify an indulgence of the legal fiction of a grant by the owner to the public of an interest in the use.”24 But such a grant was the exception not the rule, as Sutherland had noted four years before in Adkins v. Children’s Hospital, discussed in an earlier chapter. Having established what he considered the narrow perimeters of the public interest doctrine, he turned to the case at hand and easily found the New York statute beyond the pale of constitutional legitimacy. “A theatre is a private enterprise, which, in its relation to the public, differs obviously and widely, both in character and degree, from a grain elevator . . . or stockyards . . . or an insurance company.” Moreover “sales of theatre tickets bear no relation to the commerce of the country; and they are not interdependent transactions.” Perhaps reflecting his irritation at what he conceived to be yet another example of inappropriate governmental interference or meddling in private matters, Sutherland emphasized that “certainly a place of entertainment is in no sense a public utility and quite as certainly its activities are not such that their enjoyment can be regarded under any conditions . . . [as] an emergency.”25 On the other hand a theater was not immune from government regulation. “A theatre, of course, maybe regulated so as to preserve the public peace, insure 23. Ibid., 437. 24. Ibid., 438. 25. Ibid., 439–40.

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good order, protect public morals, and the like.” But fixing ticket prices represented a very different matter. The last part of Sutherland’s decision drew on a favorite and familiar tactic in legal writing, that of the slippery slope. “If it be within the legitimate authority of government to fix maximum charges for admission to theatres,” the same logic must apply to “baseball, football . . . circuses, shows (big and little), and every possible form of amusement, including the lowly merry-goround with its adjunct the hurdy-gurdy—it is hard to see where the limit of power in respect to price fixing is to be drawn.” It may indeed be that there are some evils associated with the resale of theater tickets, but they “are to be suppressed . . . by legislation which comports with the Constitution, and not by such as strikes down those essential rights of private property protected by that instrument against undue governmental interference.” Subversions typified by the New York statute “are not only illegitimate but are fraught with the danger that having begun on the ground of necessity, they will continue on the score of expediency, and finally, as a matter of course.”26 In dissent Holmes stated bluntly that “we fear to grant power and are unwilling to recognize it when it exists.” He reiterated an objection to classical legal thought that he had first raised more than twenty years before in his famous Lochner v. New York dissent in 1905. The issue was not so much the legitimacy of the legislature as much as the judicial rigidity of his fellow jurists. “I think the proper course,” he wrote, “is to recognize that a state legislature can do whatever it sees fit to do,” unless barred by “some express [constitutional] prohibition.” Courts, in particular his own, “should be careful not to extend such prohibitions beyond their obvious meaning by reading into them conceptions of public policy that the particular court may happen to entertain—precisely what Sutherland had appeared to do.” 27 Again as he had stated earlier, Holmes insisted that “I am far from saying that I think this particular law a wise and rational provision. That is not my affair. But if the people of New York speaking by their authorized voice say that they want it, I see nothing in the Constitution . . . to prevent their having their will.” 28 Brandeis silently concurred with Holmes, while Stone, who declined to join in the Holmes dissent, added several additional comments. First he found “nothing written in the Constitution” nor in the “case or common law 26. Ibid., 443–45. Sutherland went even further, adding that “constitutional principles, applied as they are written . . . operate justly and wisely as a general thing, and they may not be remolded by lawmakers or judges to save exceptional cases of inconvenience, hardship, or injustice.” 27. Ibid., 445–46. 28. Ibid., 447. Earlier Holmes had written to Laski concerning his dissent in Tyson that he hoped “to fire off a few sardonic remarks . . . on the Constitutional powers of the States.” Holmes­Laski Letters, 2: 138, February 25, 1927.

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development of the 14th Amendment which would lead me to conclude that the type of regulation” at issue here was “unconstitutional.” Going far beyond Holmes in exploring the facts in this case, Stone noted that there are “about sixty first-class theatres in New York City,” with the appellant selling approximately three hundred thousand tickets a year. According to the record the resale of tickets results in a “virtual monopoly of the best seats . . . [with] the brokers [able] to demand extortionate prices of theatre goers.” 29 Contrary to Sutherland, who seemed obsessed by the need to protect the self-interests of the brokers, Stone wrote that the essential issue was “not one of reasonable prices,” but rather of the alleged constitutional right they claimed “to exact exorbitant profits beyond reasonable prices.” 30 Long-established case law, Stone wrote, inevitably lead to a basic conclusion. “Self interest is not permitted to invoke constitutional protection at the expense of the public interest, and reasonable regulation of price is upheld. That should be the result here.” Thus “the judicial function ends when it is determined that there is basis for legislative action in a field not withheld from legislative power by the Constitution as interpreted by the decisions of this court.”31 Although Stone did not endorse Holmes’s dissent, both Holmes and Brandeis joined his. The fourth dissent came from Justice Sanford, more closely aligned with the conservative bloc on the Taft court, rather than with Holmes, Brandeis, and Stone. Perhaps to indicate this fact Sanford declined to join in Stone’s opinion, even though he stated that “my own view is more nearly that expressed by Justice Stone,” as his dissent of barely three pages reveals. Examining key decisions from the Taft court in the light of more than eighty years, one remains intrigued by the justices’ apparent addiction to classical legal thought, even as they sometimes manipulated the doctrine for decisions with major implications for future growth in the law. Two such examples arose in the midst of the 1927 term. The first expanded the reach of Pierce v. Society of Sisters and Meyer v. Nebraska, discussed above in an earlier chapter. The second case concerned the authority of Texas to impose an all-white restriction on voting in primary elections. Both resulted in unanimous decisions from the Taft court. The case of Farrington v. Tokushige involved the legality of an Hawaii statute adopted in 1925, mandating and regulating the teaching of English throughout the schools in the territory. As with the earlier plaintiffs in Myers and Pierce, so here the lawyer for Tokushige claimed that the statute “unreasonably interferes with the fundamental right of parents and guardians to direct the 29. Tyson, 447, 450. 30. Ibid., 452. 31. Ibid., 454.

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upbringing and education” of their children. He cited a string of cases, all well known to the Taft court. Besides the two cases just mentioned, he included Lochner v. New York and Adkins v. Children’s Hospital. (The 1923 Adkins opinion is usually put forward as either the most outstanding or unfortunate example of classical legal thought in its time, depending on one’s perspective.) Because the case involved Hawaii law, it was based on the Fifth Amendment to the Constitution rather than the Fourteenth, which applied only to the states. Justice McReynolds spoke for the court. As in the earlier cases, so here McReynolds made no mention of the First Amendment. He might have, as the Gitlow case—which established that the free speech clause of the First Amendment had become applicable to the states—was now good law. Instead he immediately turned to the issue of property rights in the foreign language schools, of which there were at least 163 in the territory. He emphasized that the private property represented in these schools was worth $250,000, with twenty thousand students plus at least three hundred teachers employed. No territorial funds were involved, and the great majority of the foreign students were Japanese. McReynolds concluded that the regulations at issue, dealing with curriculum, textbooks, hours of instruction, and so on, were all part “of a deliberate plan to bring foreign language schools under a strict governmental control for which the record discloses no adequate reason.”32 Freely citing his own earlier decisions, he extended their reach in two important instances. While the Fourteenth Amendment clearly specified its applicability to the states, the similar inhibitions of the Fifth Amendment “are guaranteed against action by the territorial legislature or officers.” 33 McReynolds further added that “the Japanese parent has the right to direct the education of his own child without unreasonable restrictions; the Constitution protects him as well as those who speak another tongue.” Argued a few weeks after Farrington and decided by mid-March, Nixon v. Herndon is of interest because it represents an exception to the commonly held view that the Taft court “did not overturn Jim Crow legislation nor interfere when it was enforced by state courts.” 34 The case involved a black Texas doctor, Lawrence Herndon, who was denied the right to vote in a Texas primary election, because of a state statute stipulating that “in no event shall a negro be eligible to participate in a Democratic primary election held in the state of Texas.” Herndon sued the two judges of elections for $5,000 for violating his rights under the Fourteenth and Fifteenth Amendments. He was represented 32. Farrington v. Tokushige, 273, U.S. 284, 291, 298–99 (1927). 33. Ibid., 299. Indeed, the Farrington listed as appellant in this case was the governor of the Hawaii Territory. 34. Peter Hoffer, Williamjames Hull Hoffer, and N. E. H. Hull, The Federal Courts: An Essential History (New York: Oxford University Press, 2016), 270.

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by the NAACP, two of whose attorneys, Moorfield Storey and Louis Marshall, submitted briefs on his behalf. Apparently Texas did not bother to present an oral argument on January 4, but the state submitted a printed brief with essentially two points: (1) that the issue of participating in elections represented “a political question” not “within the province of the judiciary,” and (2) that there could be no doubt according to Texas law that a Democratic nominating primary “was not an election in which the plaintiff had a constitutional right to vote.” 35 Speaking for a unanimous court Justice Holmes dismissed defendants’ claim that the gravamen of the suit was political as “little more than a play upon words.” Indeed “that private damage may be caused by such political action, and may be recovered for in a suit at law, hardly has been doubted for over two hundred years . . . and has been recognized by this court.” The real question was the constitutionality of the Texas statute, and “the answer does not seem to us open to a doubt.” Indeed “it seems to us hard to imagine a more direct and obvious infringement of the 14th [Amendment].” “In the teeth” of all the case law cited by Holmes about intentions of its framers, Texas “assumes to forbid negroes to take part in a primary election . . . discriminating against them by distinction of color alone.” Holmes had often upheld state statutes “that it is difficult to believe rational, but there are limits.” They had been exceeded here, and “color cannot be made the basis of a statutory classification,” as Texas had attempted in this case.36 Shortly after Nixon was decided, Holmes handed down another opinion dealing with equal protection. Again a state statute was involved, but this time he sustained the law. In so doing he authored one of his most controversial decisions. By 1927 Holmes had been on the Supreme Court for twenty-five years and had developed a style in his opinions all his own. With few exceptions they tended to be short in length as well as in attention to facts.37 Further they were usually written in the absolute minimum of days between assignment from the chief justice and submission of the draft to the brethren. Moreover they often contained memorable epigrammatic phrases, many of which have long outlived the actual case wherein they appeared. In late April Taft assigned Holmes the case of Buck v. Bell, which involved a Virginia statute authorizing sterilization of “mentally defective” individuals. His resulting decision for an 35. Nixon v. Herndon, 273 U.S. 536, 538–39 (1927). 36. Ibid., 540–41. 37. “Holmes was the first to say that facts did not interest him, unlike his close associate Justice Brandeis. He did not read newspapers, which he considered to be ‘wasting time.’” Further he “boasted of not caring about details,” while his “intellectual furniture” contained “an assortment of general propositions which grow fewer and more general as I grow older.” See Adam Cohen, Imbeciles: The Supreme Court, American Eugenics, and the Sterilization of Carrie Buck (New York: Penguin, 2016), 267.

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eight-member majority not only reflected all the above characteristics but also demonstrated a disdain if not “a mean-spirited ethos [that] permeated the whole opinion.”38 In terms of judicial quality, Buck v. Bell was probably the worst decision that Holmes ever penned, and the fact that he took pride in it, as will be seen, renders his work even more unfortunate. American interest in eugenics, or the employment of selective breeding to propagate a healthier race, was widespread during the 1920s. Born into a patrician Boston family that believed in racial superiority, Holmes had been supportive of it for more than half a century. As a jurist, while he had been dismissive of many practices such as “minimum wages or maximum hours, child labor, anti trust” statutes, still he had voted to sustain them—demonstrating a lack of concern as well as a consistent and cynical disinterest in their value. For Holmes majority rule, especially by a state, was for the most part to be respected. “We accept the judgment of the legislature . . . unless it makes us puke.”39 No such inconsistency attached itself to Holmes’s attitude toward eugenics. It represented one of the very few causes that he supported with marked enthusiasm. Consider the time frame of the Buck case. It was argued on April 22 and was assigned to Holmes on Saturday the twenty-third. Overnight he drafted his opinion, and on Monday the twenty-fifth, he wrote to Laski of “that which was given to me Saturday evening and was written yesterday,” and “I have just sent what I think to the printer.” From oral argument to final decision took ten days. Moreover Holmes enjoyed preparing this opinion, replete with what he described as “short and rather brutal words.”40 Writing the opinion for the court in this case “gave me pleasure.”41 In retrospect Buck v. Bell reflects a lack of careful and factual analysis that is difficult to explain, let alone justify.42 Holmes did not take the time to examine the record of trial with any care. Nor could he, as the case was argued on a Friday, he received the opinion assignment from Taft on a Saturday, and he had finished his draft twenty-four hours later. Having long held views on the validity of eugenics, he saw no need for any extended deliberation, as he had already made up his mind. The most recent and thorough scholarship on Buck posits that “on some key points, he simply made things up, or rounded out the actual facts with his own assortment of general propositions.” 43 Holmes began his statement of facts with the claim that “Carrie Buck is a feeble minded white 38. Ibid., 271. 39. Ibid., 249. “If my fellow citizens want to go to Hell, I will help them. It’s my job.” 40. Holmes­Laski Letters, 2: 146, April 29, 1927. 41. G. Edward White, Justice Oliver Wendell Holmes: Law and the Inner Self (New York: Oxford University Press, 1993), 408. 42. Buck v. Bell, 274 U.S. 200 (1927). 43. Cohen, 267.

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woman,” born to “a feeble minded mother . . . and the mother of an illegitimate feeble minded child.” 44 His reference at the beginning of the opinion to the three instances in one family would be matched at its conclusion with what is probably the meanest epigram Holmes ever composed: “Three generations of imbeciles are enough.” Taft had advised Holmes to emphasize the point, as “the strength of the facts in three generations of course is the strongest argument for the necessity for such state action and its reasonableness.” 45 In fact Holmes’s brutal dismissal was wrong on its face. Testimony on the record made it clear that Buck’s daughter had never been classified as being feebleminded, except by Holmes, who distorted the facts to justify his claim across three generations.46 A second distortion in Holmes’s opinion can be cited. He prefaced his epigram with the statement that “the principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes” and cited the well-known vaccination case, Jacobson v. Massachusetts.47 It sustained a statute that mandated vaccination for small pox, but the case had no relevance for Buck. In the first place compulsory vaccination is not to be compared with compulsory sterilization. In one the subject suffers a quick stab with the needle and usually no after effects. In the other the subject is “permanently prevented from having children.” 48 Further a person could refuse to be vaccinated, with the penalty for violating the Massachusetts statute a paltry five-dollar fine. No such option was available to Carrie Buck. While Holmes “had a lot to say about why the state should have the power to engage in a program of eugenic sterilization,” he had nothing at all to say about what rights and liberties belonged to her. Finally mention should be made of the seven other justices who silently joined with Holmes. They included Justices Stone and Brandeis. Indeed the acquiescence of Brandeis is perplexing. It has not been explained as much as ignored by Brandeis scholars.49 None who concurred seemed to have questioned Holmes’s distortion of the record, his rejection of any sort of constitutional protection for Buck, and the brutal callousness of his prose.50 One tends

44. Ibid., 205. 45. Ibid., 266. 46. Ibid., 268. G. Edward White aptly described the key paragraph in Buck as “a singular combination of familiar Holmesian arguments and non sequit[u]rs.” White, Justice Oliver Wendell Holmes, 405. 47. 197 U.S. 11 (1905). 48. Cohen, 275. 49. Mason and Strum do not cite the case at all, and Urofsky mentions the “notorious opinion” in a single sentence tucked into a footnote. See Urofsky, Louis D. Brandeis, 864. 50. Holmes wrote of his opinion that “sooner or later one gets a chance to say what one thinks.” Holmes­Laski Letters, April 29, 1927, 2: 147.

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to agree with Cohen, who notes that in Buck “the court as a whole did not acquit itself well.”51 The question can be raised as to the continued relevance for Buck and constitutional law in our own time. In his biography of Holmes, G. Edward White wrote that the Supreme Court had “distinguished the case out of existence.” 52 He cited the 1942 decision of Skinner v. Oklahoma, wherein a unanimous court struck down an Oklahoma statute that provided for “sterilization of people convicted of at least two felonies involving moral turpitude.” 53 However, although this statute was declared unconstitutional, the court did not overrule Buck. Indeed William O. Douglas, who wrote the majority opinion, later acknowledged that “I thought this kind of legislation was permissible and constitutional, but that it had to be surrounded by very careful procedural safeguards,” unlike in the Oklahoma statute. Cohen has claimed that Buck has never been overruled, “and courts have continued to cite it” into “the current century.” 54 Be that as it may, legally ordered sterilization was a thing of the past by 1983. Yet the number of those who had been involuntarily sterilized by the state between 1907 and 1983 remains shocking, between sixty and seventy thousand.55 Whether or not the Taft court—including Justice Butler, who dissented in silence—were aware of the significance of Holmes’s decision for the future cannot be ascertained. Yet Buck v. Bell did not distinguish its author. It “provides a strong argument for careful scrutiny, especially at the local level, of ideas grounded upon popular notions of science.”56 A final example of the Taft court’s treatment of civil rights issues during the 1927 term represents an interesting variant on school racial segregation, by this time solidly entrenched in the southern states. It involved the efforts—in Taft’s words—of a young “pure Chinese girl” to attend the local high school in Rosedale, Mississippi. She was refused admission “solely on the ground that that she was of Chinese descent and not a member of the white race.” Plaintiff further demonstrated that there was no school maintained in her district for “the education of children of Chinese descent,” nor within the Mississippi county where she lived. The state supreme court had held that the 51. Coleman, 278. 52. White, Justice Oliver Wendell Holmes, 407. 53. Skinner v. Oklahoma, 316 U.S. 535 (1942); Paul Lombardo, Three Generations, No Imbeciles: Eugenics, the Supreme Court, and Buck v. Bell (Baltimore: Johns Hopkins University Press, 2008); Victoria F. Nourse, In Reckless Hands: Skinner v. Oklahoma and the Near Triumph of American Eugenics (New York: W. W. Norton, 2008). 54. Cohen, 319. 55. Ibid. 56. Fred Ragan, “Buck v. Bell,” in Hall, ed., Oxford Companion to the Supreme Court of the United States, 97–98. Of course, Holmes had given the case superficial scrutiny at best.

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constitutionally mandated division of schools fell into “those of the pure white . . . race on the one hand, and the brown, yellow, and black races on the other.” Further, since the daughters of Gong Lum could have attended a black high school but had chosen not to do so, the state of Mississippi had no further obligations concerning her public school instruction.57 Writing for a unanimous court chief justice Taft rejected plaintiff’s plea that Mississippi’s actions violated the equal protection clause of the Fourteenth Amendment. He might have remembered Holmes’s recent comment in Buck that a claim involving equal protection was “the usual last resort of constitutional arguments.” 58 Like Holmes, Taft found the claim unpersuasive. The lawyers for Gong Lum had argued that if it was a denial of equal protection for the whites to segregate themselves from blacks, it was also a denial to label the Chinese children as equivalent to black students, and to compel attendance in black schools. G. Edward White observes that in effect what the attorneys for Gong Lum argued was that while he welcomed an opportunity for his daughters to attend a white school, he “did not want them exposed to the ‘dangers’ of having to go to school with black children.”59 Having seen the great majority of the Taft court join in the Buck v. Bell dismissal of any equal protection application, it comes as no surprise to see that a unanimous bench joined Taft’s opinion in a refusal to find such grounds in Gong Lum. Indeed the issue “is the same question which has been many times decided to be within the constitutional power of the state legislature to settle without intervention of the federal courts.” True, these earlier cases had involved separate schools for white and black students. But “we cannot think that the question is any different or that any different result can be reached . . . where the issue is as between white pupils and the pupils of the yellow races.” 60 White observed that the Taft court “treated classifications based on race as presumptively reasonable rather than presumptively suspect,” unlike later cases after 1954. Further “they believed that race and skin color were proxies for a host of salient differences among humans.” And finally “they understood the ‘reasonableness’ of segregating white and non whites because they thought racial differences were meaningful.” 61 57. Gong Lum v. Rice, 275 U.S. 78, 80 (1927). 58. Buck, 207. 59. G. Edward White, “The Lost Episode of Gong Lum v. Rice,” Greenbag 18 (2015) 191–205. In addition to his insights concerning Taft’s opinion, White explores the experience of the Chinese living in the Mississippi delta. See also Jeannie Rhee, “In Black and White: Chinese in the Mississippi Delta,” Journal of Supreme Court History 19 (1994): 117–32. 60. Gong Lum v. Rice, 86–87. 61. White, Justice Oliver Wendell Holmes, 203. A week or so before Taft handed down his decision, Justice Stone wrote to the chief justice concerning a point “which your opinion

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3 As has already been observed, in every term of the Taft court the justices had to consider cases arising from Prohibition. The chief justice’s position may be said to represent his court as a whole. Taft had no doubt that the Volstead Act was constitutional, and that the Constitution—the Prohibition Amendment included—remained the law of the land. Further as a jurist he believed that statutes enforcing the act were presumptively constitutional. Thus as the decade of the 1920s lengthened, Taft became more aggressive in his support for enforcement of Prohibition. He considered himself to be very much in the “dry” camp. Yet he was troubled by the extensive graft, corruption, and wrongdoing that accompanied both enforcement as well as the many attempts to evade the law. Thus on March 6 he confided to his daughter his views concerning a decision he would announce the next day. The case arose in Taft’s home state, Ohio, and in the county where he had been born.62 It was one “that I am afraid will rejoice the hearts of the anti-prohibitionists. The fact is that the prohibitionists controlling the Legislature of Ohio have been so fierce that they have transgressed the Constitution . . . and we have to say so.” Writing about the Prohibition jurisprudence of his court, the chief added that “we have to distribute our favors equally and justly.” 63 Taft had in mind the case of Tumey v. Ohio, decided on March 7.64 The case involved the conviction of one Ed Tumey for “the unlawful possession of intoxicating liquor,” and a resulting fine of $100 levied in accordance with the Ohio statute. The statute further empowered the local mayor to preside over what Taft called the “mayor’s court” and stipulated that he “shall receive or retain the amount of his costs in each case, in addition to his regular salary, as compensation for hearing such cases.” However no fees could be paid either to the mayor or to the marshals, detectives, and inspectors enforcing the Ohio Prohibition statute “except by the defendant if convicted. There is, therefore, no way by which the mayor may be paid for his service as a judge, if he does not convict those who are bought before him.”65 It appeared that between May and December 1923, the mayor received almost seven hundred does not quite meet.” He referred to Lum’s insistence that in not “being given a school separate from the colored school, [such] is in itself a denial of equal protection.” Indeed “to protect the white race from the dangers of race mixture and not to protect children of the Chinese race is to deny the latter the equal protection of the laws.” Stone Papers, November 11, 1927. 62. Pringle, Life and Times, 989. 63. Manning Papers, March 6, 1927. 64. 273 U.S. 510 (1927). 65. Ibid., 519–20.

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dollars from liquor cases “as his fees and costs in addition to his regular salary.” Staunch supporter of Prohibition and its enforcement that he was, nevertheless Taft found this Ohio statutory scheme offensive. “It certainly violates the 14th Amendment and deprives a defendant in a criminal case of due process . . . to subject his liberty or property to the judgment of a court, the judge of which has a direct, personal, substantial pecuniary interest in reaching a conclusion against him.” Although his prose was ponderous, Taft’s outrage was palpable—all the more, perhaps, as his court had regularly affirmed numerous state Prohibition statutes and enforcement practices. Nor did it matter that the mayor received only $12 per guilty verdict. “We cannot regard the prospect of receipt or loss . . . in each case as a minute, remote, trifling or insignificant interest.” 66 Further Taft insisted that the village of North College Hill, within Hamilton County, “is not to be treated as a mere village tribunal for village peccadilloes.” Finally Taft turned to Ohio’s insistence that in this case, the defendant was “clearly” guilty, and received the minimum fine as penalty. He had entered a plea of “not guilty” and was convicted. Wherein could he complain about a lack of due process? Taft, who himself had been a trial judge in Ohio, found it necessary to belabor the obvious. “No matter what the evidence was against him,” due process required “the right to have an impartial judge.” This particular judge should have been disqualified “both because of his direct pecuniary interest in the outcome, and because of his official motive to convict and to graduate the fine to help the financial needs of the village.” 67

4 Although the Judges’ Bill of 1925 had greatly enhanced the court’s discretion over its docket, it was still obligated to consider a writ of error allowed by the chief justice of a state supreme court. In one such case Taft observed that the questions raised “are frivolous.” 68 This litigation is of interest in that it demonstrates the extent lawyers would go to bring their cause within the concept of due process. According to the Oregon indictment, the defendant had been an inmate of the Oregon State Penitentiary, where he was part of a group attempting to escape. During the attempt a guard was killed, and in due course Ellsworth Kelley was tried, convicted, and sentenced to death. Throughout his trial Kelley had remained in the custody of the prison warden both inside and outside the courtroom. His attorney later argued that “he was entitled to be free from any custody in order that he might fully make his defense.” Taft 66. Ibid., 532. “It is certainly not fair to each defendant brought before the mayor for the careful and judicial consideration of his guilt or innocence that the prospect of such a prospective loss by the mayor should weigh against his acquittal.” 67. Ibid., 535. 68. Kelley v. Oregon, 273 U.S. 589, 590 (1927).

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may have had this claim in mind when he dismissed the arguments made on Kelley’s behalf as “frivolous.” The chief justice described Kelley’s position as giving “a new meaning” to due process, that one who is serving a sentence in jail “for a felony, and while there commits a capital offense must, in order to secure a fair trial, be entirely freed from custody.” 69 But Kelley’s counsel added a second contention to his case. His client had been serving a twenty-year sentence when he attempted to escape. Since this sentence had not expired “when he committed this murder, he could not be executed until he had served his full term.” Taft found this assertion equally without merit. “A prisoner may certainly be tried, convicted, and sentenced for another crime committed either prior to or during his imprisonment.” Indeed “he may suffer capital punishment and be executed during the term. The penitentiary is no sanctuary, and life in it does not confer immunity from capital punishment. . . . He has no vested constitutional right to serve out his unexpired sentence.”70 It will be recalled that in the first Coronado case, decided in 1922, Chief Justice Taft had written for a unanimous court that the national coal miners’ union could not be held liable either for violation of federal law or for efforts to create “a conspiracy in restraint of trade.” It will further be recalled that by 1927 doctrinal fault lines within the court had become more obvious— increasing in almost direct proportion to Taft’s growing inability to ensure accommodation and unanimity among the brethren. By 1927 the ailing chief justice was more determined simply to gain a majority for the “correct” view of a case, rather than attempt to attain unanimity. On the other hand even with a solid majority of five, a seven-to-two margin was certainly more preferable to a five-to-four split. It is in this context that the Bedford Cut Stone Co. v. Journeymen Stone Cutters’ Ass’n case should be considered. In the years after WWI the Bedford Cut Stone Company in concert with twenty-three additional stone companies unilaterally abrogated its contract with the Journeymen’s Union and hired nonunion workers, “with the effect of closing their shops and quarries against” the Journeymen’s membership. The Bedford Company was not a small corporation. Its combined capital investment was more than $6,000,000 with a sales aggregate of about $15,000,000. A strike and lockout followed, with Journeymen taking the position that “if 69. Ibid., 591. “There is no evidence, Taft added, that Kelley, “had not full opportunity to consult with counsel or that he was in any way prevented from securing needed witnesses.” 70. Although Taft denied the existence of any federal questions in this case, presumably he was aware that since 1884 the Supreme Court had affirmed a constitutional right for criminal defendants to be present during judicial proceedings against them. See Hopt v. Utah, 110 U.S. 574 (1884).

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employers will not employ our members in one place, we will decline to work for them in another.”71 And so they did. Seeking injunctive relief Bedford turned to the lower federal courts. Rebuffed there they appealed to the Taft court, with more favorable results. Sutherland, who like Taft had joined in the Coronado case, now five years later had little use for Taft’s earlier insistence that there had been no violation of federal law, nor any evidence of a national conspiracy. Instead he “practically obliterated any distinction between local and national commerce” as irrelevant.72 Sutherland even conceded—as indeed Brandeis would emphasize in his dissent—that the strikers “in general purpose and in and of themselves, were lawful and that the ultimate result aimed at may not have been illegal.” But such concessions, he added, were beside the point. “If the means adopted are unlawful, the innocent general character of the organization adopting them or the lawfulness of the ultimate end sought to be attained, cannot serve as a justification.”73 Bedford was argued on Monday, January 17, and the justices presumably took up the case at their weekly conference on the twenty-second. Stone recalled “the sharp difference of opinion” concerning it “which developed at our conference.”74 Indeed the initial vote revealed a five-to-four split, with Taft joining the other members of the conservative quartet, and Stone and Sanford tentatively supporting Brandeis and Holmes. Such a close division, in itself always objectionable to the chief, was more offensive in 1927 as Taft was eager to have the full bench in support of his position against organized labor.75 He knew better than to argue with Holmes and Brandeis, but he hoped that the remaining two of the four tentative dissenters, Sanford and Stone, might be more amenable to “persuasion.” Within three days of the conference, Taft dispatched letters first to Sanford, and then to Stone. To Stone, the most recent appointment to the bench, Taft wrote that he was “quite anxious, as I am sure we all are, that the continuity and weight of our opinions on important questions of law should not be broken any more than we can help by dissents.” Concerning Holmes and Brandeis, “it is to be expected that that in their attitude of protest in the past, they should find distinctions enabling them to continue their attitude in cases representing what are substantially the same issues.”76 Referring to justices such as Stone who had

71. Bedford Cut Stone Co. v. Journeymen Stone Cutters Ass’n, 274 U.S. 37, 41, 57 (1927). 72. Urofsky, Louis D. Brandeis, 608. 73. Bedford, 55. 74. Stone Papers, January 26, 1927. 75. Mason, Harlan Fiske Stone, 255. 76. Taft here referred to the 1921 decision Duplex Printing Co. v. Deering, 254 U.S. 443 (1921), in which a six-member majority held that the Clayton Act did not protect

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joined the court since 1921, he added that “I am sure it is not their purpose to depart from what has been declared to be the accepted law.” Insisting that the Duplex holding covered Bedford, Taft “hope[d] that you will look into this matter with care, because 5 to 4 decisions of the court while they must sometimes occur, don’t help the weight of its judgment.”77 On the day before writing Stone, Taft had sent a seven-page missive to Justice Sanford summarizing much of what he pointed out to Stone. Not until the last paragraph did the chief truly reveal his underlying hostility to organized labor. “If we were to hold that 5,000 men constituting the great bulk of all the stone cutters of the United States, may by refusing to work material shipped to the great centers of building throughout the country, compel the shipper either to give up his sales, or to subject himself to the control of the union, we should be imposing on interstate trade a burden that would be intolerable, and every National labor union could at once adopt it as a means of establishing a closed shop instead of an open shop in every center of business activity in the country. I beg of you to think this over.”78 No reply from Sanford could be located. But Stone responded to Taft promptly assuring him that “my vote should not be taken to have the finality which perhaps it appears to have. It was dictated by the fear that our decision . . . if followed, would preclude all strikes against non-union material under all circumstances.”79 Meanwhile Taft, who now tended more and more to see conspiracy behind dissents, wrote that “he had never seen Brandeis in such a state of rejoicing after getting Sanford and Stone apparently into his army, and into his plan of weakening the Court by boring from within.” 80 By now an old

organized labor from injunctions forbidding a secondary boycott. Further Justice Pitney found that federal law also barred “another union from supporting the strikers.” Urofsky, Louis D. Brandeis, 603. 77. Stone Papers, January 26, 1927. Implied but not stated was Taft’s conviction that a five-to-four vote in Bedford was totally inappropriate. Taft was now much more dismissive of Stone than when he was appointed two years before. “I am not always sure how experience as the head of a law school and supervising a Law Journal helps in making a first class judge. Stone is a good judge, but he will need longer experience before he is well fitted to his task.” Robert A. Taft Papers, April 10, 1927. 78. Stone Papers, January 25, 1927. 79. Ibid., January 26. This is essentially what the Bedford holding did. 80. Mason, William Howard Taft, 228. Of course Taft’s distorted description is more accurate concerning his own state of mind than it is that of Brandeis. But he was not alone in his negativism toward his colleague. In an undated note to Stone (but presumably written on April 2, 1930, as Stone replied the next day and quoted a word from it), McReynolds stated that “in my view, we have one member who is consciously boring from within. Of course you have no such purpose, but you may unconsciously aid his purpose. At least do think twice on the subject—three times indeed. If the court is broken down, then there will be rejoicing in certain quarters.” Stone Papers, April 2, 3, 1930. Stone’s four-page

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hand at “massing the court” in a certain direction, Taft saw no need to rush a final vote. “I am inclined,” he wrote to Sutherland, “to think that it is better not to have the case rushed through but to give time enough to let us discuss with these people carefully what the issues are—in other words to let the matter grow cold and take it up again.” Almost two months after oral argument, Taft added that “I am anxious to meet what will trouble Stone, and I think, too, will trouble Sanford.” 81 To what extent Sutherland reworked his opinion is uncertain, but it was not until the middle of April that Taft could inform his daughter that an “important labor opinion” would be announced on April 11. Although he had been able to gain the concurrence of Stone and Sanford, Taft was not satisfied. “While Sanford and Stone concur in our opinion, they do it grudgingly, Stone with a kind of kickback that will make nobody happy.” Even worse “Brandeis has written one of his meanest” dissents.82 Examination of the published opinions indicates that the chief had good reason to be concerned. Both Stone and Sanford concurred solely on the authority of the Duplex case. Stone “should not have thought that such action as now complained of was to be regarded as an unreasonable and therefore prohibited restraint of trade.” But in Duplex, and again in Bedford, these views “have now been rejected.” 83 An unmistakable tone of outrage if not anger characterized Brandeis’s dissent. It was premised by his statement that “the propriety of the union’s conduct can hardly be doubted by anyone who believes in the organization of labor.”84 Further all the union members had done in this case was simply to exercise their asserted right “not to finish stone” cut by men working in opposition to it. “They were innocent alike of trespass and of breach of contract. They did not picket. They refrained from violence, intimidation, fraud and threats. They refrained from obstructing otherwise either the plaintiffs or their customers. They did not plan a boycott.” 85 To be sure, some of the cases cited by Sutherland “may support the claim that by, such local abstention from work, interstate commerce is restrained. But examination of the facts in those cases makes clear that they have no tendency whatsoever to establish that the restraint imposed by the unions in [this] case is unreasonable.” A comparison of Duplex to the Bedford case established this very point.

“confidential” response may be cited as an apt explanation of the underlying tensions between the conservative bloc of justices and Holmes, Brandeis, and ultimately Stone. 81. Mason, William Howard Taft, 230. 82. Manning Papers, April 10, 1927. 83. Bedford, 56. Only a commitment to stare decisis appears to have led Stone to concur. 84. Ibid., 58. 85. Ibid., 59.

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In Duplex the combination there condemned “was not, as here, the cooperation for self-protection only of men in a single craft. . . .” The conduct there condemned “was not, as here, a mere refusal to finish particular work. . . . The conduct there condemned was not, as here, action against an opposing union installed by employers to destroy the regular union with which they long had had contracts.” Finally in Duplex “the combination of defendants was aggressive action directed against an isolated employer. Here it is defensive action of working-men directed against a combination of employers.” 86 Further the labor conduct condemned in another case cited by Sutherland “was not, as here, a refusal to finish a product partly made by members of an opposing union.” Rather “it was invoking the power of the consumer as a weapon of offensive warfare.” 87 According to Brandeis the cases cited by Sutherland were not relevant to the facts as found in Bedford. Finally Brandeis insisted that “if, on the undisputed facts of this case, refusal to work can be enjoined, Congress created by the Sherman Law and the Clayton Act an instrument for imposing restraints which reminds [sic] of involuntary servitude.” He reminded his brethren that previously they had permitted the U.S. Steel Corporation to “combine in a single corporation 50 percent of the steel industry,” thus “dominating the trade through its vast resources,” and further enabled “capitalists to combine in another corporation practically the whole shoe machinery industry of the country.” It “would, indeed, be strange if Congress had by the same act willed to deny to members of a small craft of workingmen the right to cooperate in simply refraining from work, when that course was the only means of self-protection against a combination of militant and powerful employers. I cannot believe that Congress did so.” 88 Why did Taft describe this Brandeis dissent as one of “his meanest?” In the first place among all the jurists on Taft’s court he least trusted the political and judicial values of Brandeis. Moreover, as he entered the final three years of his life, Taft suffered not only from a medical hardening of the arteries, but also a judicial hardening of the categories as well. By 1927 he had lost that flexibility that once had enabled him to write such a “progressive” dissent as he filed in Adkins only four years before. Now he clung more and more to values of “certainty, stability, and predictability.” 89 In Taft’s mindset Brandeis epitomized the active judicial advocate, “instrumentalist in outlook, deferential to legislative policy judgment, committed to the idea that law must adopt to modern needs,

86. Ibid., 62–63. 87. Ibid., 63. 88. Ibid., 65. By implication Brandeis here accused his conservative brethren of distorting and denying the intent of Congress, of misapplying its own enactment, the Sherman Act. 89. See Wiecek, Lost World of Classical Legal Thought, 11.

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sensitive to the factual circumstances [and contexts] in which rules and precedents were to be applied, and above all, determined that just results should not be sacrificed to consistency in a mindless obeisance to precedent.” 90 For Taft such views were not only inappropriate to sound appellate jurisprudence— they were dangerous. Increasingly the ailing chief justice feared for the future. As will be seen, from his perspective he had good reason to do so.

90. Ibid., 205.

8 1927–1928, Part II Battle Lines Harden, and Planning for the Future

1 By 1927–28 Taft had begun to fear for the future of federal constitutionalism as he knew it. In part such fear was due to an awareness—shared by many conservatives—that American society would soon confront what turned out to be cataclysmic economic upheaval. In part it was due to a sense that the inclination of his court to follow the “correct” jurisprudential path was not as certain as he desired. And in part it was due to a realistic assessment of his failing health. Thus he wrote to his only daughter that “we are thinking of you whether you are thinking of us or not.” Of course the obligations of the younger generation to keep in touch “are always felt more strongly” by his generation, because “it has not so long to live, and wants to keep up as closely as possible in touch with those whom they must look forward to in the near future to leaving.”1 Later that year Taft added that “I am not sure that I don’t see that my mental faculities [sic ] are dulling a bit, and that it takes more work for me to get hold of questions and to dispose of them.” With some prescience he observed that “I have to stay on the bench until 1931 in order to earn my pension, and that I must struggle to do, unless I am so weakened that I cannot do the work.”2 But the chief justice was as much—if not more so—concerned with the health of his two closest friends and colleagues on the court, George Sutherland and Willis Van Devanter. Suffering from what today might be described as ulcerative colitis, Sutherland had reached the point by September that his 1. Manning Papers, February 6, 1927. 2. Ibid., October 25, 1927. In fact Taft could not attain this goal. Ultimately illness forced his resignation early in February 1930, His death followed on March 8.

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discomfort became obvious to the rest of the court, and on October 3 Taft intervened. He wrote to Sutherland and urged him to take some time away from the court, “and not to worry about his absence. “We are all ready and can do the work.” Indeed “all of us are most anxious to have you give up your work for the time being and let the court run as it will, until by reason of your separation from this environment you can devote yourself to getting well.” 3 One suspects that more than fraternal regard for his ailing colleague troubled Taft. Sutherland was a key member of that conservative bloc that the chief believed absolutely essential for keeping the “Bolsheviki” (Holmes, Brandeis, and Stone) at bay. By 1927 this was an ongoing battle, and two years later he insisted that “insofar as maintaining the proper conservative jurisprudence, Brandeis is of course hopeless, as Holmes is, and as Stone is.” 4 Thus Taft was completely serious when he emphasized that “we all love you, George, and we would all regard it as the greatest loss to the country to have you become discouraged over your work, and we realize of what great importance it is to the country that you should be restored to your working capacity.” 5 A month later Taft wrote again to Sutherland, now ensconced at the Johns Hopkins Hospital, reminding him that “what you need is an enforced rest.” It will not do, he added, for you to “come back and slump again into a condition that will require another retirement.” “Now be a good boy,” the chief admonished, “and don’t think you are through until you are really beyond the probability of a retrograde movement.” 6 For his part Sutherland insisted on returning to the court for the January session, in spite of his chief’s objections: “I deprecate your fixing the first of January as the time for your return. I think you ought to postpone it until after the February recess at least. The delay will not do you any harm, and I think it is certain to do you good.”7 Sutherland returned to the court early in 1928. Even with Van Devanter’s and Sutherland’s irregular attendance, the court had continued to follow the confines of classical legal thought.8 Thus the justices considered the case of Fairmont Creamery v. Minnesota, in which a dairy company challenged a state statute forbidding price discrimination from one 3. Sutherland Papers, October 3, 1927. 4. Urofsky, Louis D. Brandeis, 578. 5. Ibid. 6. Ibid., November 3, 1927. In passing Taft informed Sutherland that the Judges’ Bill of 1925 was showing good results. While there were ninety-three more certioraris than the previous year, even “if we allow twenty percent of them, it will reduce the total number of cases on the docket by over seventy.” 7. Ibid., November 7, 1917. 8. With either Van Devanter or Sutherland available, Taft knew he could—for the most part—count on a core of four, i.e. himself, Butler, McReynolds, and Sanford, to gain a majority.

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section of the state to another in the purchase of “milk, cream, or butterfat.” Counsel for the creamery attacked the law as “an arbitrary and unreasonable infringement of personal and property rights and an unwarranted and oppressive interference with liberty of contract.” 9 By a vote of six to three Taft’s court agreed with him. Justice McReynolds spoke for the majority and again authored one of his “terse opinions that were less about scholarship than showing an unwavering faith in his own conclusions.”10 McReynolds described the Minnesota statute as “an obvious attempt to destroy plaintiff’[s] liberty to enter into normal contracts long regarded as essential to the freedom of trade and commerce.” Citing cases such as Tyson and Brother v. Banton and Adkins v. Children’s Hospital, previously discussed in earlier chapters, he stated that this law “has no reasonable relation to the anticipated evil—high bidding by some with purpose to monopolize or destroy competition. Looking through form to substance,” McReynolds added, “it clearly and unmistakably infringes private rights whose exercise does not ordinarily produce evil consequences, but the reverse.”11 By this time Holmes, Brandeis, and Stone recognized the futility of opposition to the bloc of classical legalists and simply dissented without explanation. Prohibition remained an ongoing source of litigation for the Taft court, but in 1927 the justices confronted an unusual variant on this topic. The issue in United States v. Sullivan concerned a defendant who had been convicted for failure to file a federal income tax return as required by the Revenue Act of 1921.12 An implicit assumption of the district court appeared to have been that much of defendant’s revenue came “from business in violation” of the Prohibition statute. On appeal the Fourth Circuit ruled first that such gains were indeed subject to the income tax. According to the statute gross income included “gains or profits and income derived from any source whatever.” At the same time, however, it further held that the Fifth Amendment “protected the defendant from the requirement of a return.”13 Speaking for a unanimous court Holmes reversed the lower tribunal, accepting the first contention but rejecting the second. He saw no reason “why the fact that a business is unlawful should exempt it from paying the taxes that if lawful it would have to pay. “Since defendant’s income was subject to taxation, it obviously “required a return.” In this case, Holmes added, “we are 9. Fairmont Creamery Co. v. Minnesota, 274 U.S. 1 (1927). 10. Clare Cushman, “Beyond Knox: James C. McReynolds’s Other Law Clerks, 1914– 1941,” Journal of Supreme Court History 41 (2016): 147, 148. Cushman observes further that while McReynolds “often behaved decently as an employer, his personality was repellant.” Ibid., 164. 11. Fairmont Creamery, 9. 12. United States v. Sullivan, 274 U.S. 259 (1927). 13. Ibid., 263.

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of opinion that the protection of the 5th Amendment was pushed too far.” It was one thing to decline either to answer various questions or to fill in specific amounts. It was quite another thing to “refuse to make any return at all,” which defendant had done here.14 Indeed “it would be an extreme if not an extravagant application of the 5th Amendment to say that it authorized a man to refuse to state the amount of his income because it had been made in crime.” Violation of the Prohibition statute was irrelevant in this case. But if the defendant wanted to challenge what the government required from him in his return, he should have so stated. In typical Holmes prose the jurist observed that defendant “could not draw a conjurer’s circle around the whole matter by his declaration that to write any word upon the government blank would bring him into danger of the law.”15 Finally Holmes could not resist a comment on counsel’s insistence that if a return was required, his client “would be entitled to deduct illegal expenses such as bribery. This by no means follows, but it will be time enough to consider the question when a taxpayer has the temerity to raise it.”16

2 It will be recalled that in 1925 the Taft court had held that the First Amendment now applied to the states via the Fourteenth Amendment, even though a majority of its justices declined to apply it to the specific fact structure in the case, involving Benjamin Gitlow, “a leading figure in the American Communist Party.”17 It will further be recalled that Holmes had submitted what became one of his most famous dissents. He observed that “I gave an expiring kick (Brandeis was with me) in favor of the right to drool on the part of believers in the proletarian dictatorship.”18 Even as the court had grappled with Gitlow, a somewhat similar case confronted the justices, involving none other than the niece of Justice Stephen Field. Indeed Anita Whitney appears to have been such a favorite of the childless, elderly justice that he “left one third of his estate to her.”19 14. Ibid. 15. Ibid., 263–64. 16. In a case that immediately follows Sullivan, again for a unanimous court Holmes reversed a district court decision. While in general “criminal statutes are to be construed strictly, they also are to be construed with common sense.” See United States v. Alford, 274 U.S. 264, 267 (1927). 17. Urofsky, Louis D. Brandeis, 632. 18. Ibid., 633. 19. Philippa Strum, Speaking Freely: Whitney v. California and American Free Speech (Lawrence: University of Kansas Press, 2015), 3. One can only wonder whether Field would have been so generous had he lived to see his favorite niece become a staunch supporter of the Industrial Workers of the World (the Wobblies) and a leading member of the California Communist Labor Party in 1919.

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Reacting to labor unrest as well as the reaction to the “Red Scare,” and in concert with a number of states, California enacted the California Criminal Syndicalism Act in 1919. On a national level the spring and summer of 1919 represented a time of fear, anger, and suspicion. A number of bombs exploded in front of homes belonging to national officials. In such an atmosphere state after state turned to legislation intended to restrain and repress various labor organizations, in particular the Industrial Workers of the World. The late historian Paul Murphy did not exaggerate when he observed that “the story of civil liberties during World War I is a dreary, disturbing, and in some respects shocking chapter out of the nation’s past,” and represented a time when Americans “saw liberty and justice prostituted in ways more extreme and extensive than at any other time in American history.” 20 Although the armistice ending the fighting had been signed in 1918, especially in California tension between organized labor and government officials was exacerbated in 1919, resulting in passage of this syndicalism bill by a unanimous vote in the state senate, and an overwhelming margin, fifty-nine to nine, in the assembly.21 With the new statute going into effect on April 30, it was only a matter of months before Whitney ran afoul of it. This comes as no surprise upon examination of the new statute. It “criminalized any spoken, written, or printed words, including any personal conduct that advocates, teaches, or aids or abets criminal syndicalism.” It thus became illegal in California even “to advocate strikes,” or as Philippa Strum observed, “merely to sing one of the numerous wobbly labor songs.” 22 Born into wealth and privilege, Whitney, who had become well known in California as a socialist activist and a supporter—but not a member—of the IWW, was arrested on November 28. She had just delivered an address not about labor radicalism, but about the plight of the American Negroes. In particular Whitney focused on the national plague of lynching. She called for a federal antilynching statute and concluded her lecture with a plea that “this terrible blot on our national escutcheon may be wiped away.” 23 Her arrest represented merely the beginning of an eight-year travail that included trial, the death of her lead attorney, multiple appeals, imprisonment, two arguments before the Taft court, and finally an unconditional pardon from the governor of California on June 20, 1927. A great deal of scholarship has focused on the Whitney case, and thus there is no need here to detail its origins and early stages.24 Her attorney brought 20. Ibid., 31. 21. Ibid., 33. 22. Ibid., 34. See for example the chorus from the song “Workingmen Unite,” set to the well-known western song “Red Wing”: “Shall we still be slaves and work for wages? It is outrageous—has been for ages / This earth by right belongs to toilers, and not to spoilers of liberty.” Songs of the Workers (Chicago: Industrial Workers of the World, 1956), 32. 23. Ibid., 43–44. 24. See Strum’s Speaking Freely, and in particular her essay on sources, 163–77.

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her cause to the Taft court on October 6, 1925, a few months after it had decided the case of Gitlow v. New York, discussed above. Whitney’s counsel could only have been aware that, with few exceptions, the high court normally declined to review a state criminal case unless counsel could cite some alleged violation either of a federal statute, or of the federal Constitution. In its rejection of her appeal, however, the California appellate district court made no mention of either Whitney’s constitutional rights or indeed of the document itself. Counsel argued that the court should have explored Whitney’s Fourteenth Amendment rights. It took the Supreme Court less than two weeks to reject this assertion. The justices held that they “lacked jurisdiction because there had been no reference to the Constitution or federal statutes.” 25 Such an evasion satisfied neither side in the Whitney imbroglio, and on December 14, 1925, the Taft court agreed to consider her case again.26 By 1926 the justices were quite familiar with the issues lurking in the Whit­ ney litigation. Not only had the court declined jurisdiction in her case, but even as it had reversed course and decided to rehear her argument, the tribunal had heard oral presentations on a very similar case involving a plaintiff who might well be described as an eastern male counterpart to Anita Whitney. By the spring of 1926 Charles Ruthenberg had gained a reputation as the “most arrested Red in the country.” 27 An avid antiwar socialist he had been jailed in New York for violation of the same law that had resulted in Benjamin Gitlow’s conviction. An arrest for violation of a similar statute followed in Michigan. He was found guilty in 1924, and the Michigan Supreme Court affirmed his conviction. His lawyers appealed to the Supreme Court on the grounds that the Michigan antisyndicalist statute violated both the First and Fourteenth Amendments to the federal Constitution. Essentially the facts in the Ruthenberg case replicated those in Gitlow, and after hearing arguments the justices voted seven to two to affirm Ruthenberg’s conviction. Again Taft assigned the opinion to Justice Sanford, who reiterated the same rationale for affirmance that he had written in Gitlow, and again Brandeis and Holmes dissented. In Ruthenberg, however, Brandeis was prepared to go much further in defense of free speech than had Holmes in Gitlow.

25. Ibid., 80–81. 26. In addition to the widespread public debate, well described by Strum, another factor may have been instrumental in bringing the justices to rethink their refusal. Whitney’s lawyers obtained an affirmation from the California appellate court that it had indeed considered “whether the criminal syndicalism law as applied to Whitney violated the Fourteenth Amendment.” Now there could be no doubt of the Taft court’s jurisdiction to rehear the case. Ibid., 81–82, 109. 27. Ibid., 106–7. Strum cites the Chicago Tribune’s assertion that there were some sixty indictments pending against him.

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Presumably the decision in Ruthenberg would have been announced early in March, but on March 2, 1927, Ruthenberg suddenly died from acute peritonitis. The writ of error was dismissed, and the two opinions in the case (Sanford’s and Brandeis’s) were never published. But they both would reappear in another guise, as the Taft court had already reheard arguments concerning Anita Whitney. Two months later Whitney was announced. Speaking for a unanimous court Justice Sanford affirmed her conviction. What had happened to Brandeis and Holmes?

3 Turning first to Sanford’s reaffirmation of Gitlow, again Brandeis insisted that mere freedom of speech was not the real issue. California had declared that “to knowingly be or become a member of or assist in organizing an association to advocate, teach or aid . . . the commission of crimes or unlawful acts of force, violence of terrorism as a means of accomplishing industrial or political changes, involves such danger to the public peace . . . that these acts should be penalized.”28 Such conduct “involves even greater danger to the public peace and security than the isolated utterances and acts of individuals.”29 Although for controversial reasons, as will be seen, Brandeis concurred with the actual outcome of the case, in fact he rejected every facet of Sanford’s opinion, which he appears to have mentioned only once. He observed that the “novelty” in the California law “is that the statute aims, not at the practice of criminal syndicalism, nor even directly at the preaching of it, but at association with those who propose to preach it.” 30 He conceded that “prohibitory legislation has repeatedly been held invalid because unnecessary, where the denial of liberty involved was that of engaging in a particular business.” Indeed Brandeis could have cited numerous such cases wherein he had dissented, well beyond the five he mentioned. However, “the power of the courts to strike down an offending law are [sic] no less when the interests involved are not property rights, but the fundamental personal rights of free speech and assembly.” How did the clear and present danger doctrine intersect with these rights?

28. Whitney v. California, 274 U.S. 357, 371 (1927). Not surprisingly Sanford added that “every presumption is to be indulged in favor of the validity of the statute.” 29. Ibid., 372. As applied to Whitney, the California statute was neither “an unreasonable or arbitrary exercise of the police power.” 30. Ibid., 373. Much of the relatively short (not even nine pages) Brandeis concurrence explored the nature of liberty as envisioned by the Founding Fathers. A wide variety of scholars have expanded on and explicated his words. See Strum, Speaking Freely, and Urofsky, Louis D. Brandeis. This author, however, is more concerned with how Brandeis redefined and expanded the clear and present danger doctrine. One need only compare its initial articulation by Holmes in Schenck (1919, Brandeis silently concurring) with this Brandeis concurrence (silently joined by Holmes) eight years later. See below.

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“To justify suppression of free speech, Brandeis wrote, “there must be reasonable ground to fear that serious evil will result if free speech is practiced.” Further “there must be reasonable ground to believe that the danger apprehended is imminent . . . that the evil to be prevented is a serious one.”31 To be sure, advocacy of law breaking “heightens [such conduct] still further. But even advocacy of violation, however reprehensive morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted upon.” He used adjectives “serious” and “imminent,” to describe the danger. Thus he came to his own expansion of clear and present danger. To find such “it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was contemplated.” Further no danger flowing from free speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is an opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom.”32 But Brandeis went even further and in so doing revealed a major distinction between his thinking and that of his conservative brethren. It might well be that some speech could cause some violence or damage. So what? “The fact that speech is likely to result in some violence or in destruction of property is not enough justify its suppression. There must be the probability of serious injury to the state.” Normally, in a society of free men, our legal order applies two deterrents to prevent crime: education, and punishment for violations of the law. It is neither appropriate nor necessary for “abridgement of the rights of free speech and assembly.”33 Brandeis had no difficulty applying these standards to Whitney, regardless of the fact that the California syndicalism statute had been affirmed by the state’s highest court. The law could still be challenged as one that is contrary to the federal Constitution. Indeed “whenever the fundamental rights of free speech and assembly are alleged to have been invaded,” a defendant must be able “to present the issue whether there actually did exist at the time a clear danger; whether the danger, if any, was imminent; and whether the evil apprehended was one so substantial as to justify the stringent restrictions interposed by the 31. Ibid., 376. 32. Ibid., 376–77. “Prohibition of free speech and assembly is a measure so stringent that it would be inappropriate as the means for averting a relatively trivial harm to society.” 33. Ibid., 378.

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[California] legislature.” The action of the state supreme court in affirming the statute “creates merely a rebuttable presumption that these conditions have been satisfied.” 34 Further, in what appears to be his only direct reference to Sanford’s majority opinion, he added that “I am unable to assent to the suggestion in the opinion of the Court that assembling with a political party, formed to advocate the desirability of a proletarian revolution by mass action at some date necessarily far in the future, is not a right within the protection of the 14th Amendment.” Yet Brandeis concurred in the affirmation of Whitney’s guilty verdict, even though he disagreed with virtually every premise of Sanford’s decision. How can this fact be explained? Perhaps the answer lies not so much in what Whitney did as in what she—or more accurately her attorneys—had failed to do. She could have made the alleged relationship of the state statute to the clear and present danger doctrine “the important issue in the case.” Further “she might have required that the issue be determined either by the court or the jury.” Whitney had not claimed that the statute was void “because there was no clear and present danger of serious evil nor did she request that the existence of these conditions of a valid measure thus restricting the rights of free speech and assembly be passed upon by the court or a jury.” 35 All this Whitney could have argued. But she had failed to do so. Being a staunch and consistent advocate of limited jurisdiction for his court, Brandeis was not about to raise these points for her. Thus he entered what might well be described as grudging concurrence, and in it this jurist managed to have his cake and eat it too, as it were. He expanded the meaning of the clear and present danger doctrine, even as he emphasized its relationship to a democratic society. Indirectly he criticized his conservative brethren for reaching out to sustain the California statute. By concurring in the outcome, however, Brandeis was free to attack the court’s reasoning, which he did in powerful and eloquent language. “For all practical purposes,” as Melvin Urofsky well observed, “the Whitney opinion is a dissent.”36 One cannot state with certainty how persuasive the Brandeis “concurrence” was to his brethren. A possible clue may be found in the fact that the case immediately following Whitney in the reports appeared to be virtually identical to 34. Ibid., 378–79. 35. Ibid., 379. 36. Urofsky to author, August 23, 2016. See Strum, Speaking Freely, 130–35, for insights into the continuing relevance of Brandeis’s concurrence in Whitney, which in fact was overruled by the court in 1969. See Brandenburg v. Ohio, 395 U.S. 444 (1969). For an interesting, but to this author unpersuasive, argument that Brandeis could have and should have dissented in Whitney, consider Ronald Collins and David Skover, “Curious Concurrence: Justice Brandeis’s Vote in Whitney v. California,” in Supreme Court Review, 2005, ed. Dennis Hutchinson, David Strauss, and Geoffrey Stone (Chicago: University of Chicago Press, 2006): 333–87.

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its predecessor. Again a state syndicalism statute was involved, with a member of the IWW accused of its violation. Although his conviction was affirmed by the state supreme court, the Taft court unanimously reversed it. Again Justice Sanford spoke for his brethren.37 “There is no suggestion,” he wrote, “that the industrial organization of workers as a class for the purpose of getting possession of the machinery of production and abolishing the wage system, was to be accomplished by any other than lawful methods; nothing advocating the overthrow of the existing industrial or political conditions by force, violence or unlawful means.” 38 Indeed the language of the IWW preamble “is essentially different from that of the manifesto involved in” the Gitlow case (discussed above). Thus the Kansas syndicalism statute has been applied in this case “without any charge or evidence that the organization in which [the defendant] secured members advocated any crime, violence or other unlawful acts or methods as a means of effecting industrial or political changes or revolution.”39

4 As the well-known case of Stafford v. Wallace (see above) demonstrated, early in its tenure the Taft court had moved to support and expand federal authority in the area of antitrust. Some states, however, had also enacted their own antitrust statutes, and in 1927 a unanimous court considered such a measure enacted by Colorado in 1913. Speaking for his brethren Taft found the law “so vague and uncertain in its description of what shall constitute its criminal violations that it is invalid under the 14th Amendment.” 40 The chief justice quoted at some length from one of his favorite sources, himself.41 He added that both the Sherman Act and “its resulting progeny have been properly construed as not to penalize such partial restraints of trade as at common law were not only permitted but were promoted in the interest of the trade itself.” In this case Taft concluded that “when to a decision whether a certain amount of profit in a complicated business is reasonable is added that of determining whether detailed restriction of particular anti-trust legislation will prevent a reasonable profit in the case of a given commodity, we have an utterly impracticable standard for a jury’s decision. A legislature must fix the standard 37. See Fiske v. Kansas, 274 U.S. 380 (1927). 38. Ibid., 386. 39. Ibid., 387. It is significant that nowhere in his opinion did Sanford focus on the unconstitutionality of the statute per se, but rather on its inappropriate application in this case. 40. Cline v. Frink Dairy Co., 274 U.S. 445, 453 (1927). 41. Ibid., 461–62. See U.S. v. Addyston Pipe and Steel Co., 54 U.S. App. 723, discussed in some detail in my earlier work on W. H. Taft: William Howard Taft: The Travails of a Progres­ sive Conservative.

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more simply and more definitely before a person must conform or a jury can act.”42 In short this enactment in dealing with the dairy industry in Colorado was “too complicated and unwieldy for an ordinary jury of reasonably prudent persons to comprehend.” The intent of an antitrust statute in itself was laudable, but the Colorado statute fell short concerning what was practical as well as practicable. Although Justice Holmes was approaching eighty-seven years of age, he continued to turn out his assigned decisions at a faster pace than any of his brethren.43 While Taft continually believed him to be a “delightful colleague,” his encomiums did not extend to Holmes’s jurisprudence. “I don’t think he has been helpful in keeping the court straight,” he wrote to his oldest son, Robert. Had his brethren followed Holmes, Taft added, “I don’t think we would have had much of a Constitution to deal with.” 44 In 1927 the Taft court again took up the matter of the presidential power to pardon, and the case has an intriguing history, culminating in a unanimous decision handed down by Holmes. One Vuco Perovich was found guilty of murder and sentenced to death in 1905. The sentence was not carried out, and in 1909 then President Taft commuted it to life imprisonment in a federal penitentiary. Nine years later Perovich applied for a pardon and did the same thing again in 1921. Four years passed, and in 1925, twenty years after his original conviction, he sought a writ in federal court on the ground that the action of President Taft had been “without his consent and without legal authority.” A federal judge agreed, but Holmes observed that “we pass over the difficulties in the way of this conclusion.” Only one of several questions raised by the Court of Appeals for the Eighth Circuit interested Holmes: “Did the President have authority to commute the sentence . . . from death to life imprisonment?”45 Counsel for Perovich insisted that “pardon is an exercise of grace and not of power; delivery and acceptance are required to make it effective. . . . The President may pardon from a death sentence, on condition that the prisoner accepts life imprisonment.”46 With his usual brevity Holmes dismissed this argument out of hand. He cited “a very persuasive argument” from the solicitor general that “in no case is such consent necessary to an unconditional 42. Cline, 465. “We conclude that the Anti Trust Statute of Colorado is void, and that those who are prosecuted and convicted under it will be denied due process of law.” Ibid., 466. 43. In 1928 Taft observed that Holmes had been away from the court for nearly ten days. Yet “he has kept up with his judicial duties and has handed me a statement of his votes in all cases, certioraris and argued cases, and he hit it right as nearly as anyone of us, though we heard the cases argued.” Robert A. Taft Papers, March 10, 1928. Indeed “he will die in harness, if he ever dies.” Ibid. Holmes outlived his chief by five years. 44. Ibid., March 4, 1928. 45. Biddle v. Perovich, 274 U.S. 480, 485–86 (1927). 46. Ibid., 480–85.

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pardon.” Further, in American law a pardon “is not a private act of grace from an individual happening to possess power.” Rather “it is part of the constitutional scheme,” and regardless of whether an original sentence is imposed or a penalty is reduced, whatever the outcome, it is effected “without regard to the prisoner’s consent.” 47 The only relevant question, according to Holmes, was whether the change by Taft fell within the constitutional authority of the president “to grant reprieves and pardon for offenses against the United States.” The justices “cannot doubt that the power extends to this case.” Holmes made the briefest mention of another high court decision, Burdick v. United States (1915) stating flatly that its reasoning “is not to be extended to the present case.” A brief examination reveals why. Burdick involved a city editor of the New York Tribune who had been called before a federal grand jury. He refused to provide a number of individual names on the grounds of self-incrimination, whereupon he was temporarily excused. When summoned again he was presented with a complete and unconditional pardon signed by President Wilson. Expected thereupon to cooperate, still Burdick refused to give any names on the same ground. In due course he was tried, convicted, and jailed for contempt of court. The Supreme Court unanimously reversed the conviction and ordered Burdick’s release. Justice McKenna noted the constitutional legitimacy of both the presidential power to pardon, as well as the right against self-incrimination. One should not interfere with the other.48 The facts in Burdick had no relevance for the Biddle v. Perovich litigation. Indeed Holmes considered it unnecessary either to explore, let alone discuss, this case. Faced with a sentence of death, Perovich had ultimately received a commutation of his punishment by President Taft, the only president in history who at an earlier stage in his career had been both a state judge and a judge of the U.S. Court of Appeals for the Sixth Circuit. Perovich had no legal right of any sort to interfere. Presidential conduct in this matter could not be held up “by one who on no sound principle ought to have any voice in what the law should do for the welfare of the whole.” 49 Although he was very happy to speak for his brethren with some frequency, Holmes saw no reason to deviate from his long-held cynicism concerning human nature. “After all,” he wrote to Harold Laski, “liberals can talk twaddle as well as the old fogeys.”50 Perhaps he was thinking of a recent case in which he and Brandeis had dissented, one decided on the same day as Biddle v. Perovich. 47. 48. 49. 50.

Ibid., 486–87. Burdick v. United States, 236 U.S. 79 (1915). Biddle v. Perovich, 487–88. Holmes­Laski Letters, November 16, 1927, 2: 177.

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It involved an injured employee of a corporation domiciled in Ohio but doing some business in Arkansas. He filed suit in Saline County, some distance from another county wherein the designated agent of the corporation had his office. Although such a suit was legal under current Arkansas statutes, Power Manufacturing Company challenged their validity because “they permit a foreign corporation to be sued in a county where it does no business and has no office, officer, or agent” and thus “are unreasonably discriminatory and arbitrary,” and therefore in conflict with the Fourteenth Amendment. Rebuffed by the state judiciary, they sought relief from the Taft court, where the hardcore conservative bloc joined by Taft and (somewhat surprisingly) Stone “found it “very plain that the statutes discriminate against foreign corporations and in favor of domestic corporations and individuals, and that the discrimination is not theoretical merely, but real and substantial.”51 Holmes, joined by Brandeis, dissented, and if there is a tone of impatience in it, perhaps he can be pardoned, if only because he had been making the same point for more than twenty years. “In order to enter into most of the relationships of life,” he observed, “people have to give up some of their constitutional rights. If a man makes a contract, he gives up the constitutional right that previously he had to be free from the hamper that he puts upon himself. Some rights, no doubt, a person is not allowed to renounce, but very many he may. So we must go further than merely to point to the 14th Amendment. I see nothing in it,” he added, “to prevent a foreign corporation [from] agreeing with the state that it will be subject to the general law of torts and will submit to a transitory action wherever it may be sued.”52 Such was what Power Manufacturing had done in this case.

5 As previous chapters in this study have sought to demonstrate, it would be a mistake to describe the Taft court as a monolithic structure of conservative classical legal thought. Examination of the cases indicates that in the years between 1921 and 1929, especially in the area of interstate commerce and federal antitrust, some cracks were beginning to appear in it. An excellent example can be found in the 1927 case of United States v. Berwind­White Coal Mining Co. In it Justice Brandeis spoke for eight members of the court, the exception being McReynolds, whose somewhat inconsistent spasms of irritation with federal administrative regulation was well known. By 1927 Brandeis had been on the bench for eleven years and had developed an approach toward such cases that deserves brief comment before turning to his opinion.

51. Power Manufacturing Co. v. Saunders, 274 U.S. 490, 492–93 (1927). 52. Ibid., 497.

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When Brandeis took his seat (1916), federal administrative law had moved into its developmental phase. Indeed in 1927 the Interstate Commerce Commission, with which the case is concerned, was forty years old. At first the Supreme Court had not been very supportive of regulatory commissions, if only because they appeared to violate a tenet of legal classicalism, that of separation of powers. The ICC, for example, exercised a peculiar hybrid of functions— administrative, legislative, and judicial—all within one agency. In 1898 the justices arrogated to themselves the power to review rates set by public service commissions.53 By the time of the Taft court, as the Progressive Era waned, the justices had demonstrated greater tolerance for administrative regulation. This field, however, had become more complex. Thus the gap between expertise and necessary judicial understanding became ever more extensive. Brandeis well understood this situation, as he had brought to the bench his many years of successful litigation as the “People’s Attorney,” in addition to his marked expertise concerning administrative regulation in general. The United States v. Berwind­White litigation actually consisted of multiple lawsuits, all challenging an ICC regulation that concerned uniform allocation of coal cars to some 3,073 railroads.54 In this day and age one does not see much, if any, Supreme Court litigation on this topic. It might be remembered that in 1927, however, close to one-third of all bituminous coal mined in the United States was consumed by the railroads. Moreover coal remained the dominant fuel for heating multiple establishments throughout the country. A shortage of coal could have national repercussions, as could the ability of some mine owners, railroads, and shippers to discriminate concerning the number of coal cars available for shipping or transport, especially when a shortage of available cars existed. The number of cars available on a national level was somewhere between 900,000 and 950,000. Such discrimination was not a small matter and indeed “has occupied much of the time of the [ICC] ever since its establishment” in 1887.55 The ICC regulation prescribed an “assigned car rule” “governing the distribution of cars among bituminous coal mines in times of car shortage.”56 Counsel for the various plaintiffs raised a variety of arguments against the constitutionality of the regulation with which, by 1927, the Taft court was very 53. Urofsky, Louis D. Brandeis, 612–14. Professor Urofsky added that few justices in 1898 had any expertise in this field. 54. United States v. Berwind­White Coal Mining Co., 274 U.S. 564, 569 (1927). 55. Ibid., 569–70. Brandeis noted that between 1908 and the current cases “alleged discrimination in the distribution of coal cars was passed upon” in no less than thirty-three opinions written in twenty-eight cases.” 56. “The sole question requiring consideration is the validity of the requirement that, unless permission is given by the [ICC], carriers shall in placing assigned cars, be limited to the mine’s quota, although the number of cars assigned to it exceeds the quota.” Ibid., 575.

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familiar. In the first place its adoption exceeded the powers given the ICC by Congress. Further it was deemed “inherently unreasonable” and involved a “taking of property without due process of law.” Moreover the regulation was “an arbitrary interference with the use of their own property.” Finally counsel for the several railroads urged “especially that the [regulation] [was] an illegal interference with their right to manage their own affairs.” 57 These contentions represented basic components of classical legal thought. Before turning to these arguments, Brandeis mentioned two concerns characteristic of his jurisprudence—the matter of expertise, and the importance of facts. The ICC investigation had extended over four years, with recorded evidence taking up nearly six thousand pages. Hearings occupy 117 printed pages of the ICC records. Indeed “there was ample evidence to support the Commission’s findings.” It had “acted in the light of a rich experience that the existing practices resulted in discrimination and unsatisfactory service.” Acceptance of these “facts” inevitably led Brandeis to his decision. “It is not for courts to weigh the evidence introduced before the Commission,” nor “to enquire into the soundness of the reasoning by which its conclusions are reached. . . . We cannot say that it was arbitrary and unreasonable for the Commission to conclude that good service could be secured by a uniform rule which might be departed from with its consent and that unjust discrimination could not be prevented without such a uniform rule.” 58 Nor could the court conclude that in empowering the ICC to act, Congress sought to regulate the coal mining industry. Indeed according to Brandeis “the regulation prescribed does not invade the private business affairs of the carrier. It merely limits the use of certain interstate transportation facilities.”59 To be sure, in this case the function exercised by the ICC “is wholly legislative.” Also its authority herein “is limited to establishing a reasonable rule.” But Brandeis insisted that “in establishing a rule of general application, it is not a condition of its validity that there be adduced evidence of its appropriateness . . . to every railroad to which it will be applicable.” Like most legislatures the ICC “may reason from the particular to the general,” precisely what it had undertaken here. Finally Brandeis concluded that the object of the ICC rule “was not to equalize fortunes” but rather “to prevent an unjust discrimination in the use of transportation facilities and to improve the service.” With the sole exception of McReynolds, the entire conservative core of the Taft court, joined by Holmes and Stone, concurred with Brandeis. As he often did McReynolds refused to label his comment to the contrary as a dissent. Instead he referred to it as “a separate opinion.” He insisted, although Brandeis 57. Ibid. 58. Ibid., 581. 59. Ibid., 575.

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had not claimed otherwise, that railroads “are private property.” True, they are under the supervision of the ICC, “but that body is not entrusted with their management and ought not to be permitted to assume it under any guise,” as Brandeis had apparently done in this case.60 A case decided on June 6, and thus one of the last of that term, involved an intriguing question concerning the right of citizenship. At issue was a federal statute that stated that all children born outside the United States, “whose fathers were . . . at the time of their birth citizens thereof, are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States.” 61 A ten-year-old native of China, Chin Bow, had sought admission to the United States, only to be denied by the immigration bureau on the grounds that his father while now a U.S. resident had not been in this country at the time of Chin Bow’s birth in 1914 and did not arrive in it until 1922. Bow appealed and was sustained in the lower federal tribunals. When his case reached the Taft court, he was represented by none other than Charles Evans Hughes, who in less than three years time would succeed Taft in the center seat. Hughes insisted that Chin Bow was born “into the national status of his father” and though living abroad had become vested with the rights of citizenship “as the result of the father’s residence in the United States, beginning in 1922.” The father’s residence “at any time in the United States before his death entitles his son whenever born to citizenship.” 62 The United States responded that according to the statute just quoted, “only the children whose fathers have resided in the United States before their birth” can become citizens.63 For a unanimous court Taft noted the two constructions just described and observed that “we must adopt one or the other.” He held that the limiting words in the statute “are equivalent to saying that fathers may not have the power of transmitting by descent the right of citizenship until they shall become residents in the United States.” The alternative viewpoint urged on the justices by Hughes, however, raised the possibility that foreign-born children could become American citizens if their father was born abroad and had lived abroad until just before his death when he emigrated. Construed in this manner, citizenship, Taft observed, might be extended “to a generation whose birth, minority and majority, whose education and . . . 60. Ibid., 584–87. For reasons that remain unclear, McReynolds tended to avoid calling his dissents just that. 61. Weedin v. Chin Bow, 274 U.S. 657 (1927). 62. Ibid. Early in 1928 Taft observed to his son Robert that “the two leading counsel we have here are Hughes and John Davis. . . . Hughes is thorough and seems to think it is his duty to his client not to omit anything, which not infrequently weakens the effect of his argument on his strong points.” Robert A. Taft Papers, January 8, 1928. 63. Weedin v. Chin Bow, 660.

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family life have all been out of the United States, and naturally within the civilization and environment of an alien country. The beneficiaries would have evaded the duties and responsibilities of American citizenship. They might be persons likely to become public charges or afflicted with disease, yet they would be entitled to enter as citizens.” Such a scenario “does not accord with the probable attitude of Congress at the time of the adoption of this proviso.” 64 Finally Taft clarified the meaning of the phrase “the rights of citizen shall descend.” One cannot bequeath citizenship to an heir. It cannot be part of a legacy. In fact “the transmission of right of citizenship is not at the death of the ancestor but at the birth of the child, and it seems to us more natural to infer that the conditions of the descent contained in the limiting proviso, so far as the father is concerned, must be perfected and have been performed at that time.” 65 This decision for a unanimous bench is one of Taft’s most successful opinions in his last years on the court. While it may not be considered a landmark case, it resolved an important issue of statutory construction, with a thorough exploration of prior judicial history and findings. By 1927, while Taft had been forced by ill health to reduce his output, he still carried more than his share. Between 1921 and 1928 “he wrote an average of 30.25 opinions per term, while his colleagues averaged only 20.25.” 66 Even as his court prepared to take up the Weedin v. Chin Bow case, he wrote to his daughter Helen, “I don’t know whether I am right about it, but I occasionally think I find greater difficulty than I used to in arranging the expression of my thoughts in an opinion. . . . and it seems to me that it takes longer than it used to.” 67

6 It will be recalled that when he became chief justice in 1921, Taft brought to the position past experiences that were unique in the history of the Supreme Court. Aside from his presidential term, he had worked in administration, appellate law (his term as solicitor general), and legal education, to say nothing of his tenure as a judge of the U.S. Court of Appeals for the Sixth Circuit. By 1921 he had gained a perspective on what he saw as essential needs of the Supreme Court, and he arrived at the center seat with three major goals in mind. As earlier chapters have indicated, two of these goals had been attained— the establishment of the judicial conference, and enactment in 1925 of the “Judges’ Bill,” a measure whose importance continues to the present day. But Taft had a third goal, and indeed by 1927 to 1929—his last two full terms on 64. Ibid., 666–67. 65. Ibid., 675. Thus Chin Bow could not prevail in his claim to automatic citizenship because his father had arrived in the United States eight years after he was born. 66. Mason, William Howard Taft, 231. 67. Manning Papers, February 20, 1927.

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the court—it became something of an obsession for him. The ailing chief was determined to bring all his powers of persuasion, all his personal Washington contacts (and they were numerous) as well as a sense of urgency to the planning and construction of a new building for his Supreme Court. It was badly needed. For most of his life, the court sat in what had been the old Senate chamber in the newly expanded Capitol. Although impressive aesthetically, this facility had a number of deficiencies that by 1925 had become serious. There were no chambers for the justices, and their robing room was across the hall from the courtroom. The justices had to go to and from it by walking through a public corridor that was often crowded. The court library in the basement was very overcrowded, while the court conference room was so short of space that its books were piled high on shelves so as to virtually be out of reach. The court was by its nature an ever expanding institution in terms of its records and decisions, and the situation became acute in 1925 when Harlan Stone joined the court. He wrote with some anguish to Taft about “the difficulties under which I am laboring for want of adequate office facilities.”68 Stone’s complaint came at a good time, as Congress was about to pass a measure “authorizing expenditures of fifty million dollars for new public buildings.” 69 Fully aware of Stone’s travails, Taft was not unsympathetic. Indeed he had long believed that as a coequal component of the federal structure, the judiciary and in particular his court deserved an appropriate home. He had been thinking along such lines even before he became chief justice in 1921. His solution was not more shelves for the library, nor a few more rooms in the Capitol at the uncertain sufferance of the Senate. “The truth is,” he replied to his new colleague, “that if we could have a separate building for the Court and for the law library, we could probably get money enough to make our library very much more comprehensive and useful than it is now. I mean at the next Conference to bring up the question whether we can get a majority of our Court to favor the construction of a new building. I am very much in favor of it, and I would like to have the authority of the Court to invite the attention of those who frame legislation on the subject to our needs.”70 Taft’s note, which raises the possibility that a majority of his brethren might not favor a new building, invites some consideration. 68. Stone Papers, May 25, 1925. He further observed, with an understandable touch of envy, that somehow Justice Sutherland had procured space on the Senate side of the Capitol. Given the fact that Sutherland had been a two-term senator, his success in this matter may be due to the well-known truism that the Senate never forgets its own. In further correspondence with Stone, Taft wrote that “it is s good deal easier to keep one Senator out than to put out one or more.” Ibid., October 22, 1925. 69. Mason, William Howard Taft, 133. 70. Stone Papers, May 28, 1925.

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By 1925 justices such as Holmes, Brandeis, Sutherland, and McReynolds were all well accustomed to the cramped quarters of their court. They all had procured comfortable residences in downtown Washington, all possessing ample space for their libraries and study areas. Why then was a new building necessary? In particular Brandeis, whose hostility to “bigness” in all its governmental forms was well known, liked to emphasize the fact that nine jurists, aided by one clerk, managed so well in meeting the responsibilities of their office. Even without knowing any specifics of what might be envisioned, Brandeis could be expected to presume that a large, ornate, and elegant facility would be irrelevant and undesirable.71 As will be seen, however, none of the four naysayers interfered with Taft’s efforts to gain a new building, and with the exception of Holmes, who retired in 1932, the remaining three would actually hold court in it, beginning in 1935. Taft later recalled that he “had to fight this thing through against the opposition” of these justices, “but I beat them five to four. My predecessors had always been against it but I think the present opponents are beginning to see how short sighted their policy has been.”72 They did not, he noted, “look forward or beyond their own service in the court or to its needs.”73 By 1927 Taft, to the contrary, had not only picked out a possible site for the proposed building but also had selected his architect and indeed had already instructed him— albeit on an informal basis—to undertake preliminary sketches. The fact that no specific congressional authorization for it had yet been voted made no difference to the chief justice. Who was the architect in whom Taft placed such confidence? Born in 1859 Cass Gilbert by 1927 ranked among the most distinguished American architects of his time. He had designed the tallest building in the world—in 1927—the Woolworth building, as well as a number of civic structures such as the Minnesota state capitol, the New York Federal Customs building, and the Detroit Public Library. Although he worked in the same time period as other architects such as Louis Sullivan and Frank Lloyd Wright, Gilbert had no use whatsoever for modernism. He did not “question the order of the world” but believed that his mission was to preserve it through his architecture. He emphasized “monumentality and continuity,” and his civic structures were intended to reflect the heritage and aspirations of the those who had commissioned him in the first place.74

71. “Brandeis, who thought the old courtroom not only adequate but symbolic of small government, opposed the new Court building.” Urofsky, Louis D. Brandeis, 587. 72. Manning Papers, February 19, 1928. 73. Mason, William Howard Taft, 136. 74. This paragraph draws heavily on the essay by Paul Goldberger, “Cass Gilbert: Remembering the Turn-of-the-Century Visionary,” Architectural Digest 58 (2001): 106–12.

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Gilbert has been aptly described by Paul Goldberger as “formal, stuffy, ambitious, loyal, conservative in the extreme and more than a little prissy.”75 A staunch Republican, he had consistently supported Taft throughout his presidency. By this time Taft considered Gilbert a close personal friend. Further he was very familiar with the Gilbert zeitgeist, as it were, having appointed him to the national Arts Council in 1911 and worked closely with him during Taft’s tenure as chair of the Lincoln Memorial Commission.76 The former president shared not only Gilbert’s devotion to the Republican Party, but also his love of majestic grandeur as a characteristic of his civic structures. He would have enthusiastically agreed with him when the architect wrote to a friend that the high court building would be one of “white marble and is as pure in style as I can make it. I hope it will cause some reaction against the silly modernistic movement that has had such a hold here for the last few years.”77 It is not surprising therefore that Taft had Gilbert in mind as his chosen architect, although in fact much remained to be done before Gilbert was formally offered his commission on a project for which he had already prepared major drawings for Taft and his colleagues.78 In July 1927 Taft informed his daughter Helen that “we hope Cass Gilbert who has already drawn plans which seem adequate will be selected as architect. What I am hoping for is that I can live and be on the court until we can move in. But that is a good deal to hope for.”79 But the chief persevered. Three problems had to be resolved: selection and purchase of the lot (across from the Capitol and adjacent to the Library of Congress), creation of a federal building commission, and a congressional appropriation of funding. The entire project “works slowly, and I shall have to do a good deal of quiet lobbying with Congress and with the building commission. [Treasury] Secretary Mellon is

75. Ibid. 76. Ishbel Ross, The Tafts, 1678–1964: An American Family (Cleveland: World, 1964), 245. 77. Thomas Yarborough, “Cass Gilbert’s Marble of Justice: Designing the Supreme Court’s Building and Image,” Supreme Court Historical Society Quarterly 35 (2013): 4, 5–8. 78. “We are very anxious to have Cass Gilbert as the architect. He is an outstanding figure among the architects of the country and the world, and we want the best man we can get.” Robert A. Taft Papers, May 6, 1928. Gilbert did not sign the contract until 1929. In the meantime “he has been doing a good deal without authority.” Manning Papers, December 16, 1928. Neither he nor Taft would live to see the new home of the Supreme Court completed. Taft died in March 1930, even before ground was broken for it, while Gilbert succumbed to a heart attack in 1934, about a year before the conclusion of what he called “the most important and notable work of my life.” See Yarborough. 79. Manning Papers, July 27, 1927. “My prayer is that I may stay long enough on the Court to see that building constructed. If I do, then I shall have the right to claim that it was my work, for without me it certainly would not have been taken up at this time. It is really very necessary.” Charles Taft Papers, February 27, 1927.

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very anxious to help us and he is in a good position to do so, and I am counting on him.” 80 Condemnation of the lot moved slowly but steadily. “Although the assessed value was only about $900,000, I am afraid we shall have to pay upwards of $2,000,000 for it. There is a woman’s political club there [Mrs. Eleanor Belmont’s Woman’s Party] that owns a house,” and “these women insist that the government ought to pay them for the value of the historical association, and they are prepared with a great deal of evidence on the subject.”81 The chief was more vocal on this subject to his son Robert. He described the structure as “just a broken down old building that ought to be removed, but they are a lot of women who are most unprincipled and attempting to use every method to squeeze up the amount they are to derive from the Government.”82 In spite of the apparent willingness of Congress to allocate funds for new federal buildings, Taft realized that the key to his project lay in the creation and selection of a building commission. He was insistent that the architect of the Capitol play as minimal a role as possible. Rather the court was to control construction of its building. Late in December 1928 quiet but effective lobbying by Taft resulted in a commission of seven members, including two justices, Taft and Van Devanter, as well as four members of Congress, and last and least the Capitol architect.83 Taft was promptly designated chairman. Its first step would be to “meet and organize, [and] appoint an Architect, who shall be Cass Gilbert.” Indeed he “has been working on the plans and he has already gotten up a very beautiful building. I am not sure whether we can get money enough to build it.” Taft estimated that “we ought to have $9,000,000,” but it would not be too much to give us $10,000,000, because we shall be a building a building for a century, certainly.”84 Ultimately the structure would cost $9,395,566. As Taft began his final full year in the center seat, he looked forward to seeing it with hope if not optimism.

80. Ibid., November 13, 1927. 81. Congress had appropriated $1,500,000 to pay for the condemnation proceedings. Ultimately the law makers added $268,000, which, apparently satisfied the Woman’s Party. Manning Papers, December 9 and 16, 1928. 82. Robert A. Taft Papers, November 17, 1928. 83. “The Architect of the Capitol . . . shall perform such services . . . as the commission may direct.” Mason, William Howard Taft, 135. 84. Charles Taft Papers, December 9 and 23, 1928. Congress appropriated $9, 740,000. Unique among federal building projects, the new building cost less than was expected, and the commission returned unused funds to the Treasury.

9 1927–1929, Part I The Fissures Deepen

The final phase of Taft’s tenure as chief justice represents something of a paradox. On one hand he eagerly anticipated moving forward toward his goal of attaining an appropriate home for his court, a structure that would reflect the majesty and enduring grandeur of his beloved tribunal. Although he died before the groundbreaking ceremony, during his last full term on the bench (1928–29), he was able to view a model of Gilbert’s new design and to learn about some of the innovations intended by his architect. In short he could see the tangible results of his final efforts in the form of the specific drawings, visible progress toward his ultimate goal. At the same time, however, the skill with which he had once “massed” his colleagues as they moved from initial deliberation to ultimate decision now had diminished. As will be seen, by 1928–29 dissents became more frequent, not so much from Taft and the conservative bloc of Van Devanter, McReynolds, Sutherland, and Butler, as from Holmes, Brandeis, and Stone—sometimes described by an increasingly frustrated chief as the “Bolsheviki.” Once he had made great efforts to minimize dissents, to reconcile opposing viewpoints through tools such as “tact, good humor, and the strategic application of pressure,” often in the guise of informal communication from Van Devanter on Taft’s behalf.1 Now as his health deteriorated, he became more concerned with getting the requisite number of votes, regardless of any dissents, and more steadfast in his obeisance to legal classicalism “with its unyielding rules that ignored social and economic” realities. Taft relied on Van Devanter, and not without reason had Brandeis commented that Van Devanter “would have been the best of Cardinals. He is . . . on good terms with everybody, knows exactly what he wants & clouds over difficulties by fine phrases and deft language.” 2 1. Mason, William Howard Taft, 231. 2. Urofsky, “Brandeis-Frankfurter Conversations,” 328.

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1 During Sutherland’s absence from the court, Taft and his colleagues considered a challenge to the Federal Revenue Act of 1924, which after June 2, 1924, had levied a tax on transfers of property by gifts “not made in contemplation of death.” The eight remaining justices found themselves “with an equal division of opinion among those who . . . heard and considered this matter.” Plaintiff had transferred more than $850,000 in gifts in January, upon which he was taxed. He sued for a return of the tax paid and argued that “the imposition of a tax upon persons by reason of gifts made by them prior to the effective date is not taxation but an arbitrary exaction and a taking of property in violation of the 5th Amendment.”3 Speaking for himself, Taft, Van Devanter, and Butler, McReynolds agreed. The enactment “is arbitrary and for that reason invalid. It seems wholly unreasonable that one who, in entire good faith and without the slightest premonition of such consequence, made absolute disposition of his property by gifts should therefore be required to pay a charge for so doing.”4 In response for himself, Brandeis, Stone, and Sanford, Holmes rejected McReynolds’s premises even as he accepted its conclusions. At this point in the court’s history Holmes conceded “the futility of the charge that it was a usurpation . . . to declare an act of Congress unconstitutional.” The court had exercised such authority for more than a century. Nevertheless “I suppose we all agree that to do so is the gravest and most delicate duty that this court is called upon to perform. Upon this . . . the rule is settled that as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the act. Even to avoid a serious doubt the rule is the same.” Indeed “words have been strained more than they need to be strained here in order to avoid that doubt.”5 Observing that “statutes direct themselves to future not to past transactions,” Holmes sought to save the statute even as he supported a refund of money to the plaintiff. Assuming that Congress “had no power to tax past gifts, I think we should have no trouble in reading the act as meant to operate only from its date and only to tax gifts thereafter made.” “I think it tolerably plain,” he added, that “the act should be read as referring only to transactions taking place after it was passed.” So construed it would remain constitutional, and Blodgett should receive a rebate.6 3. Blodgett v. Holden, 275 U.S. 142 (1928). 4. Ibid., 147. 5. Ibid., 147–48. Here Holmes cited one of his own decisions for the court handed down more than a decade earlier. See United States v. Jin Fuey Moy, 241 U.S. 394 (1916). “But every question of construction is unique, and an argument that would prevail in one case may be inadequate in another.” 6. Blodgett, 148–49.

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Although he did not specify the point in this dissent, Holmes may well have been thinking about the proclivity of his conservative brethren to declare a legislative act unconstitutional, rather than attempting—as he had noted in this case—to save it. Like Holmes, Brandeis had long held similar views. In 1922 for example he had listed four remedies—all dealing with judicial self restraint—“for the prevailing discontent with his court that must be sought: 1) In refraining from all constitutional dicta. 2) In refusing to consider a constitutional question except in ‘cases’ or ‘controversies’ initiated according to the regular course of judicial procedure. 3) In refusing to pass on constitutional questions if the case can be disposed of on any other. 4) In refusing to hold an act void unless it clearly exceeds powers conferred etc.”7 By 1936 he had refined these points into a succinct set of guiding principles, which to this day retain their relevance for high court jurisprudence.8 For more than fifteen years Brandeis had often insisted that “the most important thing we do is not doing.”9 His efforts to gain strict jurisdictional standards increasingly had resulted not only in his brethren sometimes deciding no more than necessary to resolve the issue, but also ensuring that both lower courts and counsel were forced to confront significant points in briefs and arguments. See, for example, the Hammond case, wherein Brandeis spoke for a unanimous court. This litigation involved a lawsuit filed by the Schappi Bus line against the city of Hammond, Indiana. That municipality had adopted an ordinance barring the operation of buses “on certain streets which lead into and through the business district,” as well as prohibiting the busses from “stopping anywhere on any street to load or discharge passengers,” with certain exceptions as provided in the statute. It also included an unusual provision that, according to Schappi, “is the real reason for the ordinance.” This provision mandated that nothing in the ordinance shall “be construed to impair the obligation of any contract to which the city is a party under which motor vehicle are not operated for hire within the city.”10 Brandeis alluded to a 1924 contract between the city and the Calumet Motor Coach Company that authorized it to “run its coaches on any street of the city, and to stop on any street in order to load or discharge passengers.” Schappi insisted that the essential reason for the ordinance replete with this provision was to protect the Calumet company from competition with it.11

7. Letters of Louis Brandeis, ed. Melvin Urofsky and David Levy, vol. 5, September 19, 1922 (Albany: State University of New York Press, 1978), 64. See also Samuel J. Konefsky, The Legacy of Holmes and Brandeis: A Study in the Influence of Ideas (New York: Collier Books, 1956), 64–68. 8. See Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 341 (1936). 9. Urofsky, Louis D. Brandeis, 708. 10. Hammond v. Schappi Bus Line, 273 U.S. 164, 166–68 (1927). 11. Ibid. The 1924 contract was to remain in effect for twenty-five years.

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The bus line argued that the ordinance “is unreasonable, arbitrary and grossly discriminatory.” It also violated state law as well as the federal commerce clause because most of Schappi’s routes were operated in interstate travel. Such was as far as this litigant could travel on the road toward a Supreme Court decision. The company encountered a road block in the form of the opinion by Justice Brandeis, although he acknowledged that “the issues of law are as serious and as numerous as those of fact.” As he had done in Whitney, again Brandeis raised a number of legal concerns that should have been discussed before reaching his court.12 Both counsel and the lower courts were at fault. In the first place the appellate court had failed to consider “whether the [alleged] invalidity results from the provisions of a state statute, or from the constitution of the state or from the 14th Amendment.” Moreover the “court did not discuss the statutory powers of the city; declined to consider the effect of . . . recent state legislation . . . ; and did not even mention the claims urged upon the commerce clause.” Indeed there were “questions upon which this court should not be called upon to pass without the aid which discussion by members of the lower courts familiar with the local law would afford.” As to Schappi’s rights under the commerce clause, “it is not fitting that these should be passed upon by this court upon the present record.”13 Brandeis raised additional queries concerning the rights claimed by both parties to this litigation.14 These questions and “the facts essential to their determination have not been found by either court.” Even worse “the evidence in the record is not of such a character that findings could now be made with confidence.” Brandeis now entered his harshest comments concerning why in this case “the most important thing we do is not doing.” The pleadings, he observed, “are confusing. The affidavits are silent as to some facts of legal significance; lack definiteness as to some matters; and present serious conflicts on issues of fact that may be decisive. For aught that appears, the lower courts may have differed in their decisions solely because they differed as to conclusions of fact. Before any of the questions suggested [by Brandeis earlier in his opinion], which are both novel and of far reaching importance, are passed upon by this court, the facts essential to their decision should be definitely found by the lower courts upon adequate evidence.”15 In this case, by not doing, Brandeis made it very clear what the lower courts were to do.

12. The obverse of “the most important thing we do is not doing,” assumed in the resulting vacuum a thorough exploration, analysis, and determination by the lower courts of the relevant facts, issues, and arguments. 13. Hammond, 170. 14. Ibid., 170–71. 15. Ibid., 171–72.

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2 By the late 1920s members of the Taft court were well familiar with cases arising out of Prohibition. While, as will be seen, the topic was still capable of arousing bitter disagreement among the justices, overall it appears not to have been as contentious as had been true in the early years of the Taft court. In the period under review several legal challenges with widely varying fact structures resulted in unanimous opinions—not always in favor of the officials enforcing the law. One such case involved a resident of Alaska, Ole Berkeness, who in 1925 was charged under a 1917 federal statute “commonly known as the Alaska Dry Law.” Berkeness was accused of maintaining “a common and public nuisance” in that he kept intoxicating liquors in his possession. The affidavits on which the charge was based, however, “did not charge the use of the dwelling for unlawful sale [emphasis in original] of intoxicants or for any business purpose.” The district court for Alaska rejected the resulting warrant as did the court of appeals. Federal officials sought certiorari from the Taft court. They argued that the search provisions in the 1917 statute had not been affected by later federal legislation. Speaking for a unanimous court Justice McReynolds rejected the claim.16 McReynolds pointed to a provision in the National Prohibition Act of 1919 that stated that “it shall not be unlawful to possess liquors in one’s private dwelling . . . provided such liquors are for use only for the personal consumption of the owner thereof and his family residing in such dwelling and of his bona fide guests.”17 Conceding the known difficulties attending enforcement of prohibition legislation, nevertheless “Congress was careful” to include this wording in the act. Moreover this statute applied to the “United States and all territory subject to their jurisdiction.” Surely, added McReynolds, “no adequate reason has been suggested for withholding from those who reside in Alaska the safeguards deemed essential in all other territory subject to the jurisdiction of the United States.” To be sure, the special act applying to Alaska, as well as the general Prohibition statute binding everywhere in the United States and its territories, had been enacted by the same legislative body. But “the provision of the earlier special act is hostile to the later declaration of Congress and must give way.”18

16. United States v. Berkeness, 275 U.S. 149, 151 (1927). 17. Ibid., 153–54. 18. Ibid., 155. His conclusion, added McReynolds, “is entirely consistent with established canons of construction.” It might further be observed that apparently no counsel appeared to argue on behalf of Berkeness.

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Another Prohibition case decided on the same day as Berkeness raised a different and more intriguing fact structure and demonstrated the variety of conflicting claims arising from Prohibition. The plaintiff, Joseph Marron, had leased the entire second floor of a building in San Francisco. On October 1, 1924, federal officials obtained a warrant to search it, “particularly describing [as required by law] the things to be seized—intoxicating liquors and articles for their manufacture.” One day later agents gained admission apparently by ringing the doorbell. Among other things they found a cash register and large quantities of liquor, some of which was stored in a closet. Inside the closet they also discovered “a ledger showing inventories of liquors, receipts, expenses, including gifts to police officers,” as well as a number of bills against the plaintiff for various utilities and phone services. The agents seized the ledger and the bills even though the warrant specified “only the seizure of the intoxicating liquors.”19 Counsel for Marron insisted that seizure of these items as well as their appearance as evidence was “in contravention of the 4th Amendment . . . for the reason that they were not particularly described in the search warrant as those to be seized.” Also their use at trial violated Marron’s right against self-incrimination, protected by the Fifth Amendment. Counsel for the United States raised three arguments in response. One concerned a New York case that Justice Butler found unpersuasive. It “is clear that the seizure of the ledger and bills was not authorized by the warrant.” 20 The attorney, who also had argued the Berkeness case, had better success with her two remaining points: (a) “the seizure was valid as incident to a lawful arrest upon the premises,” and (b) the ledger “was subject to seizure as an instrumentality or means used in committing the offense.” 21 Speaking for a unanimous court Butler found these additional claims convincing. Defendant “was actually engaged in a conspiracy to maintain . . . the premises where intoxicating liquors were being unlawfully sold.” Thus federal agents “had a right without a warrant . . . to search the place in order to find and seize the things used to carry on the criminal enterprise.” Butler added that “the closet in which the liquor and the ledger were found was used as a part of the saloon.” If it was not as essential to the success of the saloon “as were bottles, liquors and glasses,” nevertheless it represented “a part of the outfit or equipment actually used to commit the offense.” While the ledger and receipts were not on defendant’s person, they were “in his immediate possession and control.” These facts led Butler to hold that the authority of the agent

19. Marron v. United States, 275 U.S. 192, 194–95 (1927). 20. Ibid., 198. 21. Ibid., 191–92.

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to “search and seize the things by which the nuisance was being maintained, extended to all parts of the premises used for the unlawful purpose.” Finally the bills for the various utility services “were so closely related to the business [that] it is not unreasonable to consider them as used to carry it on.”22 The third case, Gambino v. United States, involved an intricate fact structure. Gambino was one of two individuals arrested by New York State Troopers while traveling near the Canadian border. Their car was searched “without a warrant, and intoxicating liquor found therein.” The two defendants were handed over to a federal deputy collector of customs. Promptly arrested and indicted, the defendants sought suppression of the liquor as evidence, and its return “on the ground that the arrest, the search and the seizure were without a warrant and without probable cause, in violation of the 4th, 5th, and 6th Amendments of the Federal Constitution.” Their request was denied and the evidence introduced at trial. Subsequently they were found guilty and were fined and imprisoned. The circuit court of appeals affirmed the conviction. “Neither court delivered an opinion.”23 Gambino sought review by the Taft court, which granted certiorari in May 1927. Counsel for Gambino had insisted that there was no probable cause for the action by the state troopers. Brandeis agreed “on the facts, which it is unnecessary to detail, that there was not probable cause.” Further, while the relevant federal statute stated that federal enforcement of Prohibition fell to “any officer of the law,” he added that this phrase “refers only to Federal officers.” Thus the state troopers “were not at the time of the arrest and seizure, agents of the United States.”24 The point was important for the court because “the question here is whether, although the state troopers were not [federal] agents . . . , their relation to the Federal prosecution was such as to require the exclusion of the evidence wrongfully obtained.” In this case the evidence furnished by the state troopers “was the foundation for the prosecution and supplied the only evidence of guilt.” But the troopers were not shown to “have acted under the directions of the Federal authorities in making the arrest and seizure.” Nevertheless “the rights guaranteed by the 4th and 5th Amendments may be invaded as effectively by such [voluntary] co-operation, as by the state officers acting under the direction of the Federal officials.” Indeed the prosecution initiated by them “was, as conducted, in effect a ratification of the arrest, search and seizure” as initiated by the New York state troopers. As Gambino’s conviction “rests wholly upon such evidence

22. Ibid., 198–99. 23. Gambino v. United States, 275 U.S. 310 (1927). The above statement of facts draws heavily on the unanimous opinion of Justice Brandeis, 312–13. 24. Ibid., 314. “[T]he specific arrest and search was not participated in by any Federal officer.”

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obtained in violation of [his] constitutional rights, we are of opinion that the judgment should be reversed and the case remanded.” 25

3 As has been mentioned before, as its tenure drew to a close a majority of the Taft court remained addicted to legal classicalism, defined and discussed above in earlier chapters. Thus even as Brandeis might speak for a unanimous court in affirming the relevance of constitutional guarantees concerning Prohibition enforcement practices, the justices unanimously held that a railroad employee injured when she slipped on an icy surface adjacent to the station could not recover damages under the Federal Employers Liability Act.26 It took only a month for the court to decide the case, and Justice Butler’s matterof-fact harshness remains of interest. “There is no liability in the absence of negligence on the part of the carrier. . . . No employment is free from danger. Fault or negligence on the part of the [railroad] may not be inferred from the mere fact that the respondent fell and was hurt.” Had respondent been a passenger who slipped and fell on the icy surface, the outcome might have been different. The obligation owed to them “is greater than that due to employees accustomed to work thereon,” for employees “familiar with the situation are deemed voluntarily to take the risk of known conditions and dangers.”27 The old tort doctrine of contributory negligence as a bar to recovery remained alive and well in 1928. Yet the Taft court could not be immune to the pressures of agricultural change in a national context during the 1920s. In 1927 it heard a dispute involving the constitutionality of cooperative marketing associations, and if it took only a month to dispose of Aeby’s claim, the case of Liberty Warehouse v. Burley Tobacco Growers’ Co­operative Marketing Association required almost exactly one full year from argument to decision.28 At issue was a Kentucky statute, the 25. Ibid., 319. A number of Prohibition cases raising similar challenges came to the Taft court from the Court of Appeals for the Second Circuit, and Brandeis may well have been sending a signal to its judges that they should pay greater attention to the constitutional concerns on which he ruled in the Gambino case. 26. Missouri Pacific Railroad Co. v. Aeby, 275 U.S. 426, 429 (1928). Although not unusual Butler’s detailed description of the area around the station where the injury occurred remains interesting to read, 428–29. 27. Ibid., 430. 28. Liberty Warehouse v. Burley Tobacco Growers’ Co­operative Marketing Association, 276 U.S. 71 (1928). Although it is beyond the scope of this study to provide detailed background of the cases discussed, in this instance a few comments may be appropriate. The lawyer who represented the co-operative was a nationally known figure in the history of the agricultural co-operatives, especially in the Midwest and beyond, Aaron Sapiro. However, even as Sapiro argued the case on February 23, 1927, he was about to win a notorious defamation lawsuit against Henry Ford, a controversy that had held the nation’s attention. The best

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Bingham Co-Operative Marketing Act, enacted in 1922. Among other sections it created mechanisms for the “orderly marketing of agricultural products” in the form of incorporated nonprofit cooperative marketing associations limited only to members. In turn the corporations could contract only with them for selling such products. Further “it declares that these contracts shall not be illegal; provides penalties for interfering therewith, and further provides that the association shall not be deemed a conspiracy, illegal combination or monopoly.”29 The case arose when the Liberty Warehouse Company ran afoul of these guidelines and was ordered to pay a fine as authorized by the Bingham Act. Its counsel argued simply that “the Bingham Act as a whole is repugnant to the Federal Constitution.” In an earlier era such a point might have had some relevance, but not in 1927. To the contrary Sapiro described the enactment as “a proper declaration of public policy.” Further the regulation of the warehouse business authorized by the Bingham Act “falls within the long recognized right of the legislature to regulate a business impressed with a public interest.” Finally the penalties provided in the act “are a proper exercise of police power to prevent fraudulent and unlawful evasion or breach of contract.”30 McReynolds rejected arguments put forward by counsel for Liberty Warehouse out of hand. Its case rested solely on its claim that key sections of the Kentucky statute violated the usual contours of the Fourteenth Amendment. Its pleadings “allege no burden upon interstate commerce amounting to regulation, nor do they properly and definitively advance any claim under a Federal Statute.” McReynolds added further that “a corporation does not possess the privileges and immunities of a citizen of the United States within the meaning of the Constitution.” Indeed he dismissed the “allegation concerning deprivation of corporate life” as “unimportant.”31 Counsel had cited a 1902 antitrust decision in which the plaintiff “had been denied the equal protection of the law.”32 But there, McReynolds wrote, “the circumstances differed radically from those here presented,” and when a claim of equal protection is being raised, “there must be consideration of the peculiar facts.” Plaintiff had been “forbidden to do what others could do with source for understanding the case and its context is the work of Victoria Saker-Woeste. See her outstanding book Henry Ford’s War on Jews and the Legal Battle against Hate Speech (Stanford, Calif.: Stanford University Press, 2012). See also her earlier study The Farmer’s Benevolent Trust: Law and Agricultural Cooperation in Industrial America, 1865–1945 (Chapel Hill: University of North Carolina Press, 1998). The fact that a Jewish lawyer, Sapiro, had argued this case could not have been lost on Chief Justice Taft, who, possibly with slightly malicious intent, assigned the unanimous opinion to the most notorious anti-Semite ever to sit on the high court, James C. McReynolds. His decision is discussed below. 29. Liberty Warehouse, 84. 30. Ibid., 82–83. 31. Ibid., 89. 32. See Connolly v. Union Pipe Co., 184 U.S. 540 (1902).

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impunity.” Here the situation is very different. “The [Bingham] Act undertakes to protect sanctioned contracts against any interference—no one could do what the warehouse company did.”33 McReynolds even conceded that “the statute does prohibit and penalize action not heretofore restricted and to that extent interferes with freedom.” But so what? This “is done to protect certain contracts which the legislature deemed of great importance to the public. . . . We need not determine whether the liberty protected by the Constitution includes the right to induce a breach of contract between others for the aggrandizement of the intermeddler to violate the nice sense of right which honorable traders ought to observe.”34 Most important to McReynolds was the fact that “marketing statutes substantially like the one under review have been enacted by forty two states,” as well as by federal legislation. This reflects “widespread legislative approval of the plan for protecting scattered producers and advancing the public interest.” Speaking for the entire court, including the other adherents to the conservative bloc, McReynolds held that “it is impossible for us to say that” Kentucky’s Bingham Act unlawfully provided “against problematic interference and to that extent [limited] the sometime action of warehousemen.” As for the muchvaunted liberty of contract, which McReynolds had long affirmed, in truth it is characterized by “freedom from arbitrary restraint—not immunity from reasonable regulation.” Sounding much like his colleague Justice Brandeis, he concluded that in this case, “a provision for a penalty” against the warehouse company for the violation of a statute does not invalidate it.”35 Even as the Taft court unanimously affirmed the Kentucky Market CoOperative Act, the justices split five to four in a case dealing with entrapment. Holmes, who wrote the decision for the majority, dismissed it as an opinion “of no great interest” and added that “Brandeis and I are so apt to agree that I was glad to have him dissent in my case, as it shows that there is no pre-established harmony.”36 Despite Holmes’s nonchalant description of the case, dissents by Butler, McReynolds, Sanford, and especially Brandeis make it clear that Casey v. United States was far from “of no great interest.”37 The case arose when a Seattle attorney who had acted as counsel in a number of narcotics cases was suspected by a jailor of making morphine available to some of the prisoners awaiting trial. Two federal narcotics agents devised a entrapment scheme, replete with money to pay Casey for obtaining the drug, and a Dictaphone by which the agents could hear his conversations with two 33. Liberty Warehouse, 91. 34. Ibid., 92. Of course in upholding the Bingham Act, this is precisely what McReynolds did indeed determine, answering his question in the negative. 35. Ibid., 92–97. 36. Holmes­Laski Letters, February 18, 1928, 2: 198. 37. Casey v. United States, 276 U.S. 413 (1928).

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of the alleged addicts. Apparently money may have been given to Casey, who was arrested and later convicted of violating the Anti-narcotics Law. Holmes dismissed the entrapment scheme with the comment that “we are not persuaded that the conduct of the officials was different or worse than ordering a drink of a suspected bootlegger. Whatever doubts we may feel as to the truth of the testimony we are not at liberty to consider them on the only question before the court. The grounds for uneasiness can be considered only by another power.”38 In dissent Brandeis refused even to consider the question of whether Casey had illegally purchased the drug, for “the prosecution must fail because officers of the government instigated the commission of this alleged crime.” To be sure, “courts . . . have sanctioned the use of evidence obtained through criminal violation of property and personal rights or by other practices of detectives even more revolting.” The nature of the evidence is not the issue. Here Brandeis confronted what Holmes had ignored. “The obstacle to the prosecution lies in the fact that” whatever Casey allegedly did, “it was instigated by the officers of the government; that the act for which the government seeks to punish [him] is the fruit of their criminal conspiracy to induce its commission. The government . . . may not provoke or create a crime, and then punish the criminal, its creature.” 39 To so permit “would be tantamount to a ratification by the government of the officers’ unauthorized and unjustifiable conduct.” Swearing under oath of his innocence, standing for cross-examination, and gaining from government witnesses the admission that they had found “no narcotics, nor any trace of them or any other incriminating article,” Casey failed to raise the ground of entrapment as a defense either at trial or during argument before the Taft court. Brandeis found such a move “without legal significance. This prosecution should be stopped, not because some right of Casey has been denied, but in order to protect the government. To protect it from the illegal conduct of its officers. To preserve the purity of its courts.”40 These two statements from Casey may be proffered as typical examples of the “zeitgeist” held by Holmes and Brandeis. Replete with a “marvelously quotable” phrase, the opinion for the court simply sustained the outrageous conduct of the informants in the Casey litigation, who were themselves government agents, and had deliberately violated the law. Unlike Brandeis, Holmes “was often as ready to approve repressive legislation as he was social reform,” and his lack of concern with the obvious immorality demonstrated by the Prohibition agents is well reflected in his prose.41 Brandeis believed that law had 38. 39. 40. 41.

Ibid., 419–20. Ibid., 423. Ibid., 425. Urofsky, Louis D. Brandeis, 568–69.

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to reflect and preserve morality. To employ it for immoral and illegal purposes was not only wrong but if persisted in would corrupt both our legal system, as well as the citizenry utilizing it. Holmes could be persuaded, however, and the sequel to Casey came only a few months after the earlier case had been decided. In Olmstead v. United States the two justices were on the same page, but—as will be seen—Holmes did not demonstrate the intense outrage that permeated the Brandeis dissent.

4 The emergence of modern technology in the form of the automobile and telephone had transformed both the methods for business in Prohibition and the ongoing efforts to contain it. By 1925 an enterprising bootlegger—who also was a member of the Seattle police department—had set up a conspiracy operation in Seattle, aptly described by Taft as one of “amazing magnitude to import, possess and sell liquor unlawfully.”42 Roy Olmstead employed at least fifty “staff” members and used two seagoing vessels and a ranch outside Seattle replete with a “large underground cache for storage,” as well as maintaining a central office “manned with [telephone] operators . . . , executives, salesmen, delivery men, dispatchers, scouts, book keepers, collectors and an attorney.” He utilized at least three separate phone lines, which were always covered. “One of the chief men was always on duty at the main office to receive orders by the telephones and to direct their filling by a corps of men stationed in another room. . . . The telephone numbers . . . were given to those known to be likely customers. At times the sales amounted to 200 cases of liquor a day,” with a yearly aggregate that “must have exceeded two millions of dollars.”43 The size and efficiency of Olmstead’s “business” cannot have been unknown to the federal Prohibition authorities. Seeking out search warrants would simply result in it being shifted around to other locations. What they needed was a way to gain access to the various orders, and conversations—without an actual presence in Olmstead’s facility. They found it in a relatively new technology, that of wiretapping. Agents placed additional wires onto the existing phone lines and for nearly five months secretly listened and transcribed the multiple conversations that made up part and parcel of his operation. Never had the agents actually trespassed on Olmstead’s property. With their voluminous collection of tapped transcriptions—some 775 typewritten pages—they did not deem it necessary, with or without a warrant. Given the resulting evidence it is not surprising that Olmstead and his associates were convicted of criminal conspiracy to violate the National Prohibition Act.

42. Olmstead v. United States, 277 U.S. 438, 455–57 (1928). 43. Ibid., 456.

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The Taft court agreed to hear an appeal but restricted discussion to a single question: “whether the use of evidence of private telephone conversations between the defendants and others, intercepted by means of wire tapping, amounted to a violation of the 4th and 5th Amendments.” Olmstead’s counsel had no doubt on this score and raised three points in his argument: The rights guaranteed by these amendments “are indispensable to the full enjoyment of personal security, personal liberty, and private property; they are to be regarded as the very essence of constitutional liberty.” Further “if fraud, subterfuge . . . or theft is perpetrated by government officials . . . evidence thus secured is not admissible.” And finally “it is not necessary that the act complained of be strictly a search or seizure, if the effect of the act is to compel a man to furnish the evidence to convict himself of crime, and the act be one of governmental agency.” 44 Counsel for the United States insisted that the conduct of its agents was not inappropriate, and the evidence obtained there from was admissible, “unless these operations constitute an unreasonable search and seizure.” The wiretapping was not “a ‘search and seizure’ in violation of the security of the persons, houses, papers and ‘effects’ of the petitioners in the constitutional sense, or within the intendment of the 4th Amendment.” Further counsel made no attempt to defend the use of wiretapping, admitting that if it be deemed search and seizure within the Fourth Amendment, such action was unconstitutional. But the “protection given thereby cannot properly be held to include a telephone conversation.” Taft assigned the Olmstead decision to himself. For a bare majority he agreed (as did the rest of the court) that the purpose of the Fourth Amendment was to protect “a man’s house, his person, his papers, and his effects, and to prevent their seizure against his will.” More was needed, however, to gain the amendment’s protection. There must be something tangible involved, such as a paper, document, letter, “or an actual physical invasion of the house.” Such is lacking here. Telegraph or telephone messages are not the equivalent of sealed letters. “There was no searching. There was no seizure. The evidence was secured by the use of the sense of hearing and that only.” 45 These conclusions settled the matter as far as Taft was concerned. But in a rare instance of public acknowledgment of internal disagreement among his brethren, the chief justice added that “some of our number, departing from [the single question for consideration] have concluded that” the mode 44. Ibid., 440–55. 45. Ibid., 464. “The language of the Amendment cannot be extended and expanded to include telephone wires reaching to the whole world from the defendant’s home or office.” Further “a standard which would forbid the reception of evidence if obtained by other than nice ethical conduct by government officials would make society suffer, and give criminals greater immunity than has been known heretofore.” Ibid., 468.

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of obtaining the evidence that had convicted Olmstead “was unethical,” if not illegal. He meant Brandeis, Butler, Holmes, and Stone. Indeed, after the initial conference discussion and preliminary vote concerning Olmstead, Brandeis had circulated a memorandum urging that the case be decided “on the grounds that the government should not profit from an illegal act.” 46 He failed to dent Taft’s majority, although Holmes did agree to add a brief dissent. Apparently Taft thought that while Brandeis had agreed to discuss only the legal issues, instead he had “gone off on ethical considerations of wire tapping,” leading Taft to dismiss Brandeis as “the lawless member of the Court.”47 “It is rather trying,” Taft insisted, “to have to be held up as immoral by one who is full of tricks all the time.”48 What had Holmes and Brandeis written that provoked such an extreme negative reaction from their chief? In his typically short (two-paragraph) dissent, Holmes wrote that “the government ought not to use evidence obtained and only obtainable, by a criminal act.” Calling wiretapping “dirty business,” he added that “it is desirable that criminals should be detected, and to that end all available evidence should be used. It is also desirable that the government should not itself foster and pay for other crimes, when they are the means by which the evidence is to be obtained. . . . We have to choose, and for my part I think it a less evil that some criminals should escape than that the government should play an ignoble part.”49 Absent from the dissent is any mention of either a right of privacy in the Fourth Amendment, or any awareness that in his dissent Brandeis would completely rewrite if not revise Fourth Amendment jurisdiction The traditional view had been well expressed by Taft, who had concluded that the amendment protected “things,” for example, a book, a bottle, a box, in short tangible items. Brandeis would go far beyond this perception and apply it to individuals; in this case to Olmstead’s words or ideas as expressed in his various messages that had been wiretapped. For Brandeis these were every bit as tangible The narrow, arcane, and artificial view of the amendment held by Taft was no longer workable in an age of radio, telephone, and mass media. Brandeis observed that his court had repeatedly sustained congressional power “over objects of which the framers could not have dreamed.” He cited none other than Justice McKenna, who in 1910 had written that “time works changes, brings into existence new conditions and purposes. Therefore a principle to be vital must be capable of wider application than the mischief which gave it birth. This is particularly true of constitutions. . . . In the application of

46. See Philippa Strum, Louis D. Brandeis: Justice for the People (Cambridge, Mass.: Harvard University Press, 1984), 324–25. 47. Urofsky, Louis D. Brandeis, 631; Mason, William Howard Taft, 227. 48. Mason, William Howard Taft, 228. 49. Olmstead, 470. Taft fulminated that “Holmes wrote the nastiest dissent.”

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a constitution, therefore, our contemplation cannot be only of what has been but of what may be.”50 In terms of the Fourth Amendment Brandeis held that “there is, in essence, no difference between the sealed letter and the private telephone message. . . . True, the one is visible, the other invisible; the one is tangible, the other intangible; the one is sealed and the other unsealed; but these are distinctions without a difference.” 51 Brandeis believed that “the evil incident to invasion of the telephone is far greater” than that of tempering with the mails. When a line is tapped, privacy at both ends of the line “is invaded” and all conversations “may be overheard.” Moreover “the tapping of one man’s telephone involves” the same intrusion “of every other person whom he may call, or who may call him.” Indeed as a means of surveillance “writs of assistance and general warrants are but puny instruments of tyranny and oppression when compared with wire-tapping.” 52 But wiretapping was offensive for yet another reason. It interfered with the right of privacy, as important to Brandeis as any other right that might have been specified in the Constitution. The framers “conferred, as against the government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion upon the privacy of the individual, whatever the means employed, must be deemed a violation of the 4th Amendment.” 53 Further it made no difference where agents had placed their wires. “And it is also irrelevant that the intrusion was in aid of law enforcement. Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent. . . . The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning, but without understanding.” Brandeis found the government’s conduct in this litigation all the more offensive because the evidence obtained constituted “the warp and woof” of its entire case. “There is literally no other evidence of guilt . . . except that illegally obtained by these officers.” Adding that “no federal official is authorized to commit a crime on its behalf,” when the authorities determined to utilize what its agents had unlawfully procured, they “assumed moral responsibility for the officers’ crimes.” If the majority permits the government to “effect its purpose of punishing” the bootleggers by ratifying what has transpired, “the government itself would become a lawbreaker.”54 Brandeis found such 50. Weems v. United States, 217 U.S. 349, 373 (1910). 51. Olmstead, 475. 52. Ibid., 475–76. 53. Brandeis failed to identify when an intrusion became unjustifiable. His use of the qualifier, however, indicates that even for him, such an event was not altogether beyond the pale. 54. Olmstead, 482–83.

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conduct unacceptable, and the final paragraph of his dissent must be read in its entirety: Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a law breaker, it breeds contempt for the law; it invites every man to become a law unto itself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means—to declare that the government may commit a crime in order to secure the conviction of a private criminal—would bring terrible retribution. Against that pernicious doctrine this court should resolutely set its face.55 If Brandeis found the government’s conduct in Olmstead outrageous, the same might be said for Taft’s reaction to the Brandeis denunciation of wiretapping. In fact, as Taft wrote to his brother, invention of the automobile and telephone had furnished criminals with new weapons to circumvent Prohibition. Referring to Holmes and Brandeis as “these idealist gentlemen,” the chief complained that “they urge a conclusion which facilitates the crime by their use and furnishes immunity from conviction by seeking to bring its use by government officers within the obstruction of the Bill of Rights and the 4th Amendment.”56 In spite of Brandeis and “his claques in the law school contingent,” Taft believed that “ultimately it will be seen that we in the majority were right.” 57

5 In 1842 the Supreme Court through Justice Story held that federal courts were not obligated to follow “the decisional rules of the state courts.” 58 The 55. Ibid., 485. Stone concurred with both Brandeis and Holmes and thus incurred the wrath of Taft. “I am very much disappointed in him; he hungers for the applause of the law-school professors and the admirers of Holmes.” Mason, William Howard Taft, 228. Although it took almost forty years to do it, in 1969 the high court brought wire tapping within the ambit of the Fourth Amendment and peremptorily overruled Olmstead, although to this day it still declines to hold the entire Bill of Rights applicable to the states. Urofsky, Louis D. Brandeis, 632. 56. Mason, William Howard Taft, 227. The extent to which Taft’s views had rigidified by mid-1928 is seen in his reference to the “obstruction” of the Bill of Rights and the Fourth Amendment. 57. Ibid., 259. Taft, of course, was wrong. 58. Urofsky, Louis D. Brandeis, 743, referring to Swift v. Tyson, 41 U.S. 1 (1842).

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result of Swift v. Tyson was the emergence of a federal common law primarily devoted to commercial questions. In the context of burgeoning industrialization, by the 1920s “there were practically no jurisdictional limits on the federal courts.” As has been seen, the issue of overextended federal jurisdiction had long troubled Holmes and Brandeis. In 1928 they filed dissents in yet another such case. In it Holmes took on the doctrine’s original architect, Justice Story, and stated that Story’s interpretation of the 1789 Judiciary Act “probably was wrong.” 59 According to Holmes, Story had been victimized by “a subtle fallacy that has never been analyzed,” one that “has resulted in an unconstitutional assumption of powers by the courts of the United States which no lapse of time or respectable array of opinion should make us hesitate to correct.” It is very hard “to resist the impression that there is one august corpus” of law. “If there were such a transcendental body of law outside of any particular state . . . the courts of the United States might be right in using their independent judgment as to what it was. But there is no such body of law. The fallacy and illusion . . . consist in supposing that there is this outside thing to be found.” In fact law “does not exist without some definite authority behind it.” Whatever this force be called, it “is not the common law generally, but the law of that state existing by the authority of that state without regard to what it may have been in England or anywhere else.” 60 Thus according to Holmes the federal courts have no business “deciding common law questions arising within a particular state . . . as they saw fit, without regard to the state decisions.” 61 In the case at hand the question involved “the lawful use of land in Kentucky by a corporation chartered by Kentucky.” Moreover the policy of Kentucky with regard to it “has been settled for more than thirty five years.” For Holmes “the authority and only authority is the state, and if it be so, the voice adopted by the state as its own should utter the last word.” 62 But only Brandeis and Stone concurred with Holmes. The conservative bloc held firm, and it would not be overturned until 1938, ten years later, when Brandeis in one of his last opinions persuaded his colleagues to abandon Swift v. Tyson. By then Taft and Holmes were deceased, while Van Devanter and Sutherland had left the court. As if to confirm its staying power, in April 1928 the group of hard-liners rejected another Kentucky statute, this one a classification scheme for recording and taxing mortgage indebtedness, largely on the claim that the enactment denied equal protection. Again Sutherland described the tax as “arbitrary,” 59. 60. 61. 62.

Black and White Taxicab Co. v. Brown and Yellow Taxicab Co., 276 U.S. 518, 535 (1928). Ibid., 533–34. Holmes­Laski Letters, 2: 198n4. Black and White Taxicab Co., 535.

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while in another of his brief dissents (two paragraphs) Holmes shredded the majority’s mentality.63 “When a legal distinction is determined, as no one doubts that it may be, between night and day, childhood and maturity, or any other extremes, a point has to be fixed or a line has to be drawn, or gradually picked out by successive decisions, to mark where the change takes place. Looked at by itself, without regard to the necessity behind it, the line or point seems arbitrary. It might as well, or nearly as well, be a little more to one side or the other. But when it is seen that a line or point there must be, and that there is no mathematical or logical way of fixing it precisely, the decision of the legislature must be accepted unless we can say that it is very wide of any reasonable mark,” for Holmes, an impossibility.64 Adding that Kentucky has determined that the tax on long-term indebtedness can be different than short term, Holmes concluded that whatever doubt I may feel, I certainly cannot say that it is wrong. If it is right as to the run of cases a possible exception here and there would not make the law bad.” 65 Replete with his usual exhaustive footnotes (one of them running to more than three pages) in dissent Brandeis conceded that the Kentucky statute “discriminates between long and short term loans as subjects of taxation.” He explored the plethora of state cases affirming such statutes and inexplicably ignored by Sutherland, possibly because they legitimated state action. “In the light of these decisions, I should have supposed the validity of the [Kentucky] classification . . . to be clear. Recognizing that members of the legislature . . . and members of the court . . . necessarily possessed greater knowledge of local conditions and needs than is possible for us, I should have assumed that this classification . . . was a reasonable one.” 66 Of course the classification system invariably “would sometimes operate unjustly.” But so what? “Such occasional instances of injustice would not render the classification arbitrary.” The problems of government, he observed, “are practical ones and may justify, if they do not require, rough accommodations—illogical, it may be, and unscientific.” Finally Brandeis reminded his colleagues that “one who would strike down a statute must show not only that he is affected by it, but that, as applied to him, the statute exceeds the power of the state.” Such a rule is of long standing, and “in my opinion, it is sufficient alone to require affirmance of the judgment.” 67 The final case to be discussed in this chapter, when paired with the Olmstead litigation mentioned above, well reveals the transformation of the Taft court from a group of jurists seeking some sort of common jurisprudential values, to 63. 64. 65. 66. 67.

Louisville Gas and Electric Co. v. Coleman, 277 U.S. 32 (1928). Ibid., 41. Ibid., 41–42. Ibid., 46–47. Ibid., 54.

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a bloc of conservatives with the fervent hope for “continued life enough of our present membership to prevent disastrous reversals of our present attitudes.” 68 Such had been the case from 1921 to 1924, when Taft excelled in his roles as facilitator, negotiator, and compromiser. By 1928, however, his flexibility had given way to a doctrinaire rigidity, supported by a group of court conservatives, now irrevocably attached “to legal classicalism, with its emphasis on unyielding rules that ignored social and economic facts.” 69 With this hard-core group— Van Devanter, McReynolds, Sutherland, and Butler as a base—Taft assumed that he or Sanford or both would normally be able to provide a fifth or sixth vote, thus keeping the “Bolsheviki” at bay. In terms of judicial realities, for the most part Brandeis, Holmes, and Stone were unable to crack such rigidity— even though it had become obvious that “law divorced from factual reality could only be sterile.” The greater such a separation, the greater the threat to American society. This was especially true in the Ribnik litigation. It serves as a fitting example of what the Taft court had become by 1928. At first glance the case of Ribnik v. McBride, decided in May 1928, is very similar to the 1927 case of Tyson v. Banton, discussed above in an earlier chapter. Ribnik involved an employment agency, while Tyson concerned prices charged for theater tickets. Both dealt with efforts at state regulation; both were authored by Justice Sutherland, who freely cited a number of his own decisions as prime examples of legal classical thought; and both are indicative of the clash between this ideology and the realities of an urban, industrial age. In fact, however, they were far from similar. Ribnik fell afoul of a New Jersey statute that required a license for anyone operating an employment agency. He applied for it and was turned down by the commissioner of labor, who declined to approve the fees Ribnik proposed to charge, because they “were excessive and unreasonable.” Rebuffed by the New Jersey courts, he appealed to the Supreme Court, where Sutherland held “that the state has power to require a license and regulate the business of an employment agency does not admit of doubt.” But this was not the key issue for the justice. Rather the question is “whether the due process of law clause is contravened by the legislation attempting to confer upon the Commissioner of Labor power to fix the prices which the employment agent shall charge for his services.”70 To ask the question in this manner was to answer it. For Sutherland this meant a return to ground he had already covered in the Tyson case—the authority, always questionable, to fix prices. Sutherland found it necessary only to reiterate his earlier opinion. When the high court had upheld price regulation, the decision had turned “upon the 68. Urofsky, Louis D. Brandeis, 674. 69. Ibid., 617. 70. Ribnik v. McBride, 277 U.S. 350, 354 (1928).

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existence of conditions peculiar to the business under consideration, which bore such a substantial and definite relation to the public interest as to justify an indulgence of the legal fiction of a grant by the owner to the public of an interest in the use.”71 Does the business of running an employment agency involve “such a substantial and definite relation to the public interest”? Not really. Such a business “is essentially that of a broker, that is, of an intermediary.” It does not “differ in substantial character from the business of a real estate broker, ship broker, merchandise broker or ticket broker.” Barely a year ago in Tyson Sutherland had rejected a New York statute that sought to fix the price at which “theatre tickets could be sold by a ticket broker.” It is “not easy to see how, without disregarding that decision, price fixing legislation in respect of other brokers of like character can be upheld.”72 Sutherland only emphasized the obvious when he added that “under the decisions of this court it is no longer fairly open to question that, at least in the absence of a grave emergency, . . . the fixing of prices for food or clothing, of house rental or of wages to be paid, whether minimum or maximum is beyond the legislative power.” As for Ribnik’s case “we perceive no reason for applying a different rule in the case of legislation controlling prices to be paid for services rendered in securing a place for an employee or an employee for a place.” Finally Sutherland referred indirectly to the great body of factual evidence justifying state regulation forthcoming in Stone’s dissent: “that the business is one lending itself peculiarly to such evils, is simply to restate grounds already fully considered by this court.” They might be subjects for regulation, but not for price fixing.73 Speaking for himself, Holmes, and Brandeis, Stone started—as had Sutherland—with attention to the concept “affected with a public interest.” He noted that the phrase is not to be found in the Constitution and came up with a very different standard from his colleague. “Such regulation is within a state’s power whenever any combination of circumstances seriously curtails the regulative force of competition, so that buyers or sellers are placed at such a disadvantage in the bargaining struggle that a legislature might reasonably anticipate serious consequences to the community as a whole.” Moreover public use of the specific business “is not the test.” Rather “the nature of the service rendered, the exorbitance of the charges and the arbitrary control to which 71. Ibid., 356. 72. Of course Sutherland had no intention of modifying his Tyson holding. 73. Ribnik, 357–58. In keeping with adherents of classical legal thought, Sutherland completely ignored the plethora of evidence, facts, reports, and statistics gathered by Stone. He considered them irrelevant. Further “the power to require a license for and to regulate the conduct of a business is distinct from the power to fix prices. The latter power is not only a more definite and serious invasion of the right of property and the freedom of contract, but its exercise cannot always be justified by circumstances.”

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the public may be subjected without regulation, are elements to be considered in determining whether the ‘public interest’ exists.”74 Stone next turned to matters of concern totally lacking in Sutherland’s opinion for the court. “We are judicially aware that the problem of unemployment is of grave public concern,” and that the business of employment agencies “deal with a necessitous class, the members of which are often dependent on them for opportunity to earn a livelihood . . . and are often under exceptional economic compulsion to accept such terms as the agencies offer.” What is more important, “we are not judicially ignorant of what all human experience teaches, that those so situated are peculiarly the prey of the unscrupulous and designing.” 75 Further Stone objected to Sutherland’s claim that the employment agency was the same as that of the ticket brokers. In fact the New York statute rejected in Tyson had sought to limit the amount that brokers could charge over box office prices. Aimed at a comparatively small theater population in New York City, any efforts at fraud or extortion “were not visited upon the community as a whole in any such manner as are fraud and imposition practiced upon workers seeking employment.” The New Jersey law tried to protect from abuse a class unable to protect itself, and to “mitigate the evils which unemployment brings upon the community as a whole.” 76 Apparently Stone found Sutherland’s insistence on the duality between Tyson and Ribnik so unpersuasive that he took up the subject again in another section of his dissent. The significant facts in Tyson “bears little resemblance to this” case. “To overcharge a man for the privilege of hearing the opera is one thing; to control the possibility of his earning a livelihood would appear to be quite another.” Nor would Stone “stop to argue that the state has a larger interest in seeing that its workers find employment without being imposed upon, than in seeing that its citizens are entertained.”77 As for Sutherland’s insistence on the distinction between regulating a business and denying power to regulate price for the accomplishment of the same end, such a policy “is to make a distinction based on no real economic difference, and for which I can find no warrant in the Constitution itself nor any justification in the opinions of this court.” For more than thirty years, Stone added, the abuses of employment agencies “have been the subject of repeated

74. Ibid., 360. 75. Ibid., 362. Stone cited a New Jersey court’s finding that “it is common knowledge that an employment agency is a business dealing with a great body of our population, native and foreign born, which is susceptible to imposition, deception and immoral influences.” 76. Ibid. “We need not close our eyes to available data throwing light on the problem with which the legislature had to deal.” 77. Ibid., 373.

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investigations, official and unofficial, and of extensive public comment.”78 Several conclusions concerning abuses had emerged from them. (1) The agencies when left to themselves “charge extortionate fees . . . out of all proportion to the service rendered.” (2) The fees charged are often discriminatory, especially in New Jersey, when the agencies specialize in employees for hotels and resorts where of necessity the positions are seasonal and temporary. (3) Fee splitting “has been a recurring subject of complaint.” (4) “It is reported that at times of widespread unemployment the private agencies are known to raise their fees out of all proportion to the reasonable value of their services.” (5) The agencies “charge the employee but do not charge the employer for a service that is rendered to both.”79 Finally Stone detailed what Sutherland had denigrated, offering numerous examples in which the court had sustained “an interference with free bargaining in cases where, despite the competition that ordinarily attends [liberty of contract] serious evils persisted. Similar evils are now observed in the conduct of employment agencies.” How they are to be resolved may be a matter of choice, “and that choice should be left where . . . it was left by the Constitution—to the states and to Congress.”80 In 1922 Brandeis had drafted a dissent in which Taft indicated he would join. Brandeis had written, however, that “our Constitution is not a straitjacket. It is a living organism. As such it is capable of growth . . . [and] because it possesses the capacity of adaptation, it has endured as the fundamental law of an ever developing people.” Taft declined to join the dissent unless he cut these three sentences, which Brandeis did, even as he emphasized to Taft that “he strongly believed in what he had written.”81 In the context of the twentyfirst century, one might inquire why Taft found what Brandeis had written unacceptable. One answer can be found in the Taft court’s continued adherence if not addiction to the underpinnings of classical legal thought—with its emphasis on protection of property rights, liberty of contract, and fear of excessive government regulation. In this light the Constitution was seen as an unchangeable bulwark standing against “a law reflective of newer ideas and conditions.” For Taft the essential function of the Constitution was to protect against undesirable adaptation, not to facilitate it. In 1922, when Brandeis described the document as possessing “the capacity of adaptation,” Taft cringed at the idea of the fundamental law in the service of “an ever developing people.” Constitutional values for him were immutable. Little had changed six years later.

78. Ibid., 363–64. Stone cited many of these reports and findings in his footnotes—all of which Sutherland had ignored. 79. Ibid., 366–70. 80. Ibid., 375. 81. Urofsky, Louis D. Brandeis, 580.

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Thus the Ribnik case offers an excellent example of the enduring strength of legal classicalism in the waning years of the Taft court. For Sutherland New Jersey had no business telling Ribnik what his employment agency might charge. Moreover Ribnik had every right to enter into contracts with his clients, and it was not the state’s place to interfere. It made no difference to Sutherland that economic and urban realities were at variance with the rigid posture of the classicalists. Thus he ignored all the evidence cited by Stone, to say nothing of the dissent itself. At bottom Sutherland and his bloc had something that Holmes, Brandeis, and Stone lacked, a majority of votes on the court. Legal classicalism endured even as Taft’s health failed. Indeed it was still firmly in place as the era of the Taft court came to an end.

10 1928–1929, Part II The Taft Court in Decline

Late in 1928, and well aware of his declining health, Taft wrote to his daughter that “my mind moves slowly, and I have great difficulty in arranging my opinions as I would like . . . but that is incident I presume to my old age.”1 “My mental facilities,” he previously had observed, were “dulling a bit, and it takes more work for me to get hold of questions and to dispose of them.” The truth is “that my mind does not work as well as it did, and I scatter.”2 By late 1929 he was “older and slower and less acute and more confused.”3 His output of published opinions declined, even as the ones that appeared took much longer to prepare. But there was another dimension to Taft’s waning powers, one reflected in his decreased ability to lead his court as he once had done so well. In the early 1920s with skill and subtlety the chief had “energetically and proactively” intervened “in the Court’s deliberations so as to achieve consensus.” 4 Further he had often been able to mass the court toward a desirable outcome in a particular case.5 By 1929 Taft was lingering, having already suffered several heart attacks of varying intensity. Moreover he now faced an ongoing dissenting minority of three justices—Holmes, Brandeis, and Stone. Well aware of the high regard with which Brandeis, Holmes, and increasingly Stone were regarded by the law school community, Taft was all the more determined “to stay on the Court in order to prevent the Bolsheviki from getting control.” The

1. Helen Taft Manning Papers, December 16, 1928. 2. Robert Post, “The Supreme Court Opinion as Institutional Practice: Dissent, Legal Scholarship, and Decision Making in the Taft Court,” Minnesota Law Review 85 (2001): 1267–390, 1324–25. 3. Ibid., 1325. 4. Ibid., 1324. 5. See chapters 2–4 of this study.

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Taft majority stood at least at five, and usually at six, so “I think we can hold our six to steady the Court.” With Holmes approaching ninety and Brandeis seventy-three, “we can probably solve everything if we can only live, because delay makes for conservatism.” So Taft hoped, and so he wrote on December 8, 1929, a few weeks before a stroke ended his judicial activities in January, and his life on March 8.6 Although in the early years of the Taft court the justices had reflected what Professor Robert Post well described as a “norm of consensus,” eagerly nurtured by the chief justice, by 1928–29 this norm had been transformed into a norm of acquiescence, sometimes accepted willingly, in other instances with regret by the justices.7 During the internal deliberative phase of a case the justices might carp and object, but the finished opinion usually was unanimous, with the exception of dissents, which in Taft’s last full term of court, 1928–29, were too obvious to ignore. In the first place they invariably came from two of the Taft court’s most distinguished jurists (Holmes and Brandeis), “lionized in the law journals, but also the progressive cast of the law schools by 1928– 1929.” To make matters worse Brandeis and Stone made greater use of law review articles in their dissents, a practice Taft found offensive.8 It represented an unacceptable “pandering to academic expertise” by dissident members of the court. Thus Stone “hungered for the applause of the law school professors,” while the “claques in the law school contingent” supporting Brandeis “will sound his praises and point the finger of scorn at us.”9 But even while the Taft majority struggled to preserve its commitment to classical legal thought, the norm of judicial acquiescence was fading. As Post well stated, it “had sustained a world in which the authority of the court depended upon its capacity to maintain a domain of fixed and certain rules,” isolated from “the legislative realm of political will.” But by 1930 the norm of judicial acquiescence was giving way to “the sovereignty of purpose,” and by the mid-1930s, a new emphasis on the “law’s role as a flexible instrument for the accomplishment of political purposes” had become clear.10 As long as he could, Taft had insisted again that “I must stay on the court to prevent the Bolsheviki from getting control.”11 Such is the context in which representative cases from Taft’s final year in the center seat can be discussed.

6. Post, “Supreme Court Opinion as Institutional Practice,” 1326–27. 7. Ibid., 1344–54. 8. Brandeis believed that “much of the best and original legal thinking in America during the last generation is to be found in the law journals.” Ibid., 1362. 9. Ibid., 1364–65. 10. Ibid., 1382. 11. Post, 1325.

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1 Although argued in October 1927, the case of Bryant v. Zimmerman was not decided until November 19, 1928, the delay due in part to the habitual slowness with which Van Devanter drafted his opinions, as the reader will recall from earlier chapters. In this case plaintiff sought relief from a New York state statute under which he had been arrested, tried, convicted, and sentenced, on the grounds that the statute was unconstitutional. The law in question provided that any membership corporation other than a labor union or benevolent order had to file with New York a sworn copy of its rules, regulations, and oath of membership as well as a roster of its current members. Arrested for failure to comply with these provisions, it turned out that the unincorporated association to which plaintiff belonged was a local chapter of the Ku Klux Klan, and moreover that he was fully aware of its failure to heed them.12 Van Devanter easily disposed of the claim that the statute violated due process. Requiring the information just mentioned “to be supplied for the public files will operate as an effective or substantial deterrent from the violations of public and private right to which the association might be tempted if such a disclosure were not required.” But plaintiff further argued that the New York statute violated the equal protection clause in that it exempted such associations as the Masons, the Independent Order of Odd Fellows, the G.A.R., and the Knights of Columbus. The state responded by conceding that there were “two classes of associations,” distinguished by a tendency “on the part of one class to make the secrecy surrounding its purposes and membership a cloak for acts and conduct inimical to personal rights and public welfare.”13 Van Devanter further pointed to publication of a House committee report in 1921 that had observed that the Klan “was conducting a crusade against Catholics, Jews, and negroes, and stimulating hurtful religious and race prejudices.”14 2 Although Taft had hoped that Coolidge might be persuaded to run again, by the summer of 1928 he had become reconciled to Herbert Hoover as the Republican presidential candidate and applauded his overwhelming defeat of New York’s governor Al Smith in November. The ailing chief justice was all too well aware that by 1929 his influence concerning appointment to the

12. Bryant v. Zimmerman, 278 U.S. 63, 65, 71 (1928). 13. Ibid., 75. As to the Klan, “it is a matter of common knowledge that this organization functions largely at night, its members disguised by hoods and gowns and doing things calculated to strike terror into the minds of the people.” 14. Ibid., 76. By a vote of eight to one, the court affirmed that there “was a real and substantial basis for the distinction made between the two sets of associations.” Ibid., 77.

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federal courts had declined markedly. He welcomed Hoover’s selection of the current solicitor general William Mitchell, with whom the Taft court was well acquainted, as the new attorney general, but he was unprepared for Hoover’s announcement of a new presidential commission to recommend changes in federal criminal prosecution. While such an investigative body might be all to the good, Hoover apparently saw no reason why some of Taft’s colleagues could not be released from their work to serve on it. In particular the new president wanted the services of Harlan Stone, the youngest justice on the bench and just beginning his fourth year of service, as the chair of the commission. Apparently Taft visited with the president and made it clear that “he cannot have our court used that way unless they [the justices invited to serve as commission members] retire.” As a matter of fact there were at least three justices, Holmes, Van Devanter, and Brandeis, who were old enough to retire, “but I don’t know whether they would want to.”15 (As a matter of fact they did not.) More to the point was Taft’s recognition of the fact that by 1929 dissents in his court were not uncommon. “The Court is a coordinate branch of the government and has to function, and there are so many cases in which there is [now] a difference of opinion that the necessity exists for the presence of the whole Court.” Taft appears to have had some difficulty persuading Hoover to look elsewhere for his commission’s membership. Indeed at one point he even sounded out every member of the court and received unanimous endorsement of his position. “It is very hard to impress the President with the necessity of not bending the Court’s requirements to his. This is all very confidential.”16 While the new president demonstrated some stubborn recalcitrance in his wish for Stone, who alone among the Taft court was closest to Hoover, any mention of retirement invariably raised the related matter of replacement, a subject now of great concern to Taft, who, although he did not yet realize it, had barely six months remaining in his tenure as chief justice. When Hoover, albeit with real reluctance, was forced to abandon his quest for Stone as the new chair, he turned to one whom Taft had suggested months before, his former attorney general George Wickersham.17 Taft was enthusiastic about the selection. “I don’t think Hoover could have taken a better man.”18 With Wickersham to be named chair, invariably Taft could not resist comparing the two former cabinet members, and when he did he found Stone lacking, a matter of 15. Manning Papers, March 17, 1929. 16. Ibid., 2. 17. As president Taft had nominated Wickersham to the Supreme Court, only to see him refuse the appointment. As Taft’s attorney general, Wickersham been among the most effective advocates of tough antitrust prosecutions since the era of TR. 18. Charles Taft Papers, May 12, 1929. Indeed “I think he is a good deal better than the man he wished to take and whom we said he could not take unless he resigned, and that was Stone.”

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some interest when one recalls Taft’s marked enthusiasm for Stone only three years earlier when Coolidge had named his attorney general to the court. Now Taft wrote to his son that “I have no doubt if I were to retire or to die, [Hoover] would appoint Stone a[s] the head of the Court.” In doing so, Taft added, Hoover “would make a great mistake, for the reason that Stone is not a leader and would have a great deal of difficulty in massing the court.” He may “greatly improve . . . but at present I don’t think there is anybody on the Court, except Stone, who would think that he was fitted for Chief Justice.” Stone is “quite disposed to be discursive . . . covering as much as he can upon a general subject and thus expressing opinions that have not been thought out by the whole Court.” Learned he may well have been, “but his judgments I do not altogether consider safe.” Moreover, “without impeaching at all his good faith in matters of that sort, we find we have to watch closely the language he uses.” Worst of all “he definitely has ranged himself with Brandeis and with Holmes in a good many of our constitutional differences.”19 When added to the age of Holmes and Brandeis, the obvious evidence of Stone’s liberal leanings troubled Taft. He had no doubt that Hoover would have several judicial vacancies to fill, including his own. Moreover he now possessed minimal confidence in the president, who according to Taft “is a Progressive just as Stone is, and just as Brandeis is and just as Holmes is.” 20 A good example of the extent to which Taft’s jurisprudential values had shifted may be seen by comparing his enthusiastic comments on Stone in 1925 (see above) with his gloomy forebodings in 1929, only four years later. To what extent Hoover may have intended to name Stone as Taft’s replacement can only be surmised. Obviously it cannot have been of major significance as it never occurred. But even the possibility so distressed Taft that he had a mutual acquaintance sound out one of his oldest and closest friends Elihu Root.21 Now in his eighties the former New York senator remained involved in national politics. Taft’s contact noted “the aspiration of a certain Associate Justice,” further that Root “was deeply interested in the situation and is of the conviction that the gentleman in question is seriously lacking in the proper qualifications.” Taft was sure that Root “will cooperate earnestly in preventing a mistake in this 19. Ibid. 20. Mason, William Howard Taft, 295. During the last few months of his life, Taft reminded Pierce Butler that “with Van and Mac and Sutherland and you and Sanford,” there would be five to steady the boat, and consequently little that the “Bolsheviki” could accomplish. Taft could not know that in fact he and Sanford would die on the same day, March 8, 1930. Apparently at some point he had discussed not only his suspicions concerning Stone with Hoover, but also his strong preference for former justice Charles Evans Hughes as his replacement. President Taft had named Hughes to the court in 1910. 21. On the enduring friendship between Root and Taft, see Lurie, William Howard Taft.

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connection.”22 Although the “mistake” never occurred, by the end of January 1930 Robert Taft had informed the president that his father’s resignation was imminent.23

3 Early in 1929 the Taft court decided a case in which a Tennessee statute was declared unconstitutional. By 1929 such action by the court could no longer be considered shocking or even unusual. According to Roscoe Pound the Taft court’s addiction to classical legal thought had resulted in “a carnival of unconstitutionality.” Alpheus Mason claimed that by 1925 only fifty-three congressional enactments had been struck down, while between 1890 and 1937, 228 state statutes had been nullified.24 What made this 1929 case interesting is not that again a state statute met the same negative fate as had so many others, but that this Tennessee statute had included a specific clause insulating the remainder from any successful judicial finding of unconstitutionality. According to Justice Sutherland, the purpose of the law, enacted in 1927, was simply “to fix prices at which gasoline may be sold within the state.”25 On behalf of Standard Oil, John W. Davis, who had been the Democratic presidential nominee in 1924, listed a number of Sutherland’s prior opinions—several of which have been discussed above in earlier chapters—and insisted that the law violated “freedom of contract,” Moreover “the business of selling gasoline is not one affected with a public interest” and thus is not subject to price regulation by Tennessee.26 He cited Sutherland’s earlier insistence in Tyson that the state could not spread “an all-inclusive net . . . upon the chance that, while the innocent will surely be entangled in its meshes, some wrongdoers may also be caught.” However, Davis insisted, “neither the piety nor the depravity of the persons affected by a statute can determine its constitutionality.”27 In rejecting the statute Sutherland essentially reiterated what he had already stated in several prior opinions concerning the phrase “affected with a public interest.” Indeed “the meaning and application of the phrase” were examined at length in Tyson, “and we see no reason for restating what is there said.” Prior legislatures had attempted to bring (a) the sale of theater tickets, (b) the price of bread, (c) the distribution of dairy products, and (d) employment agencies all under state regulation, and all with no success when ultimately considered 22. Mason, William Howard Taft, 297. 23. Taft’s resignation was delivered to Hoover on February 3, 1930. By February 24 Hughes had been appointed, confirmed, and formally seated as Taft’s successor—and all before Taft’s death, which occurred on March 8. 24. Mason, William Howard Taft, 292. 25. Williams v. Standard Oil Co., 278 U.S. 235, 238 (1929). 26. Ibid., 236–38. 27. Ibid., 236–37.

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by the Taft court. Here Tennessee had argued that “gasoline is of widespread use,” with “enormous quantities of it [being] sold in” the state. Thus it “has become necessary and indispensable in carrying on commerce” and other related activities. As he had rejected similar arguments several times over, in this case Sutherland dismissed the points raised by counsel for Tennessee: “We are here concerned with the character of the business, not with its size of the extent to which the commodity is used.” Sutherland saw no meaningful distinction between the Tennessee enactment and other statutes that the court had previously rejected. “Gasoline is one of the ordinary commodities of trade, differing . . . in no essential respect from a great variety of other articles commonly bought and sold by merchants and private dealers in the country.”28 His earlier decisions “make it perfectly clear that the business of dealing in such articles . . . does not come within the phrase “affected with a public interest,” and they “control the present case.” 29 Unlike these cases, however, the Tennessee statute included a saving clause, which declared that “if any section or provision of this act shall be held to be invalid, this shall not affect the validity of other sections or provisions thereof.” Although one is not surprised to find Sutherland dismissing this clause, the way in which he does so deserves some comment. The clause, Sutherland observed, “raises a question of interpretation and of legislative intent, and the legislative declaration provides a rule of construction which may sometimes aid in determining that intent. But it is an aid merely; not an inexorable command.” Moreover inclusion of such a clause in the statute indicates “that the legislature intended the act to be divisible.” Otherwise there would be no point in including a saving clause in the first place. If on the other hand it seemed clear that the various sections of the statute were so interwoven with each other to make evident the inseparability of its provisions, “the existence of the savings clause becomes irrelevant.” 30 Such is the case here. “It requires no extended argument . . . to demonstrate the indivisible character” of this statute. Therefore it becomes clear that the various sections “are mere adjuncts of the price fixing provision of the law, or mere aids in their effective execution.” Indeed “it seemed evident that these provisions are mere appendants in aid of the main purpose.” But Sutherland had already established that on its face, the statute was unconstitutional as an illicit attempt to fix prices. The inclusion of a savings clause could not save it, since the statute’s general purpose “must fail for want of constitutional power.”31 28. Ibid., 239–40. 29. Ibid. 30. Ibid., 241–42. 31. Ibid., 244–45. Holmes dissented without opinion, while Stone and Brandeis concurred only in the result, probably out of respect for the principle of stare decisis. As will

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4 In 1928 the Taft court confronted an interesting variant among the more mundane cases it frequently considered. This one did not involve liberty of contract, interstate commerce, federalism, and the like. Rather it concerned what turned out to be a complicated question: who had the authority to raise the New York City subway fare. Today, with the basic fare approaching the $3.00 level, one can better understand why in 1928 this might be an extremely controversial point, for the basic fare had long been five cents, as applied to a yearly aggregate of 1,173,600,600 rides.32 The justices had first heard three days of argument in October 1928. Unable to decide the issue, they returned the case to the docket for reargument in November. They heard three additional days of oral contention in January 1929, and finally on April 8 the court announced its decision. For a number of years the question of a subway fare increase had been a subject of serious contention between the New York City Transit Commission and the Interborough Rapid Transit Company, summarized in some detail by McReynolds in his opinion for the court.33 At the heart of the dispute were two points: (1) the claim that the five-cent fare had become “non-compensatory” (unprofitable or confiscatory) and (2) the continued refusal by the city to support an increase to seven cents. In May 1928 the federal district court issued an injunction restraining it and the transit commission from requiring continued acceptance by the IRT of the nickel fare, in spite of its insistence that the fare was in fact confiscatory, and at the same time barring an increase to seven cents. The Supreme Court issued a stay pending further hearing on the case. McReynolds concluded that the district court’s injunction was both improvident and beyond the proper discretion of that court.34 The record must show with some certainty, he added, first that the city transit commission had taken some improper action concerning IRT’s request to discontinue the nickel rate and establish a seven-cent fare, and second that the latter fare was reasonable, while the former fare was confiscatory. “We think neither of these things adequately appears from the record.” Indeed “the record is voluminous; the contracts between the parties are complex; the relevant statutes intricate,” and no prior decision either from the high court or any New York court “authoritatively determines the questions at issue. The basic one calls for construction of complicated state legislation.” In fact “the

be seen, increasingly Holmes found the Sutherland majority’s obsession with judicial power under the Fourteenth Amendment unacceptable. 32. Gilchrist v. Interborough Rapid Transit Co., 279 U.S. 159, 210–11 (1929). 33. See ibid., 193–211. 34. Ibid., 207.

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transit commission has long held the view that it lacks power to change the five cent rate established by contract; and it intended to test this point of law by an immediate, orderly appeal to the courts of the state. This purpose should not be thwarted by a [federal court] injunction.” Thus McReynolds reversed the district court, rejected its interlocutory injunction, and remanded the case to it for further proceedings.35 In May Taft informed his youngest son that a unanimous court—through Justice Van Devanter—was shortly to “decide one of the most important constitutional cases that we have had.” 36 Indeed “it will be a corner stone in the history of the courts of this country.” 37 Taft usually was somewhat circumspect in his comments on court business. In retrospect, as will be seen shortly, he overstated the significance of the decision. The case he referred to, however, Bakelite Corp., Ex Parte, appeared at first glance to warrant Taft’s description, as it concerned one of the most important congressional functions possessed by that body—the power to establish federal courts.38 The cases arose when plaintiff sought a writ from the Taft court that would bar the court of customs appeals from hearing an appeal concerning findings rendered by the tariff commission. Counsel for Bakelite insisted that the court of customs appeals “is an inferior court created by Congress” under Article 3 of the Constitution. Thus its jurisdiction could not extend to any proceeding “which is not a case or controversy within the meaning” of this article. Counsel for Bakelite was confident that the court of customs appeals was not competent to hear a matter arising from a dispute between the corporation and the tariff commission. His confidence was misplaced. Van Devanter emphasized that “it has long been settled that article 3 does not express the full authority of Congress to create courts,” and that other articles invest the legislature with authority wherein “it may create inferior courts” to aid in carrying out those congressional powers granted it by the document. He distinguished between the two classes of courts. Those in existence under Article 3 “are called constitutional courts. They share in the exercise of authority defined” within it, and their judges hold office during good behavior, “with no power in Congress to provide otherwise.”39 Such was not the case with the 35. Ibid., 211. In this case three of McReynolds’s fellow conservatives disagreed with his holding. He was joined by Taft, Holmes, Brandeis, Stone, and Sanford—while Van Devanter, Butler, and Sutherland dissented without opinion. 36. Charles Taft Papers, May 12, 1929. 37. Ibid., May 19, 1929. 38. Bakelite Corp., Ex Parte, 279 U.S. 438 (1929). 39. Ibid., 448–49. Congress may or may not choose, however, to alter the composition of the constitutional courts, as President Roosevelt would discover in 1937, while he struggled with the legacy of the original Taft court—on which four members still remained ensconced as FDR began his second term.

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second class of courts, which Van Devanter labeled as “legislative courts.” 40 These tribunals have been created by Congress to aid in the execution of its functions, according to Van Devanter. They were “not confined in jurisdiction nor protected in independence by Article III . . . but . . . had been created by virtue of other, substantive, powers possessed by Congress under Article I.” 41 When acting within these limits, the court had no basis for interference, and thus Bakelite lost its case. We can never learn how Van Devanter might have reacted had he known that in later years (1953 and 1958) Congress would unequivocally order that these courts formally were to be reestablished under Article III. Had the Taft court confronted such a specific congressional mandate in 1929, Bakelite might have had a different outcome. On the same day the Taft court announced the Bakelite decision, it also handed down a finding concerning authority of the ICC to regulate railroad rates, a subject still open to serious legal dispute, even though it had been thirty years since the court first asserted its right to review the rates set by public service commissions such as the ICC.42 The industrial age in the context of progressivism with its obsession for reports and data had rendered such cases more and more complex, with justices increasingly unqualified to comprehend them.43 Six years earlier Brandeis had stated that the “so called rule of Smyth v. Ames is in my opinion, legally and economically unsound.” In attempting to apply it “insuperable obstacles have been encountered. It has failed to afford adequate protection to either to capital or to the public. It leaves open the door to grave injustice.” 44 In 1929 Justice McReynolds saw fit to ignore Brandeis, as he spoke for the five-member conservative bloc on the Taft court.45 In the case of St. Louis and O’Fallon Railroad Co. v. United States he reaffirmed Smyth v. Ames and added that the order of the ICC, from which the railroad had appeal, had “disregarded the approved rule and has thereby failed to discharge the definite duty imposed by Congress.” Moreover “the report of the 40. Ibid., 449. 41. These words are not from Van Devanter, but rather from Justice John Marshall Harlan II, who in a long (fifty-five pages), complicated, and confusing opinion, appears to have overruled Bakelite. In delivering the “judgment” of the court, joined by only two other justices with two more “concurring in the result.” See Glidden Co. v. Zdanok, 370 U.S. 530 (1962). 42. See Smyth v. Ames, 169 U.S. 446 (1898). 43. Indeed one of the few justices most qualified to understand them, Louis Brandeis took the lead in urging his more conservative brethren to withdraw from this field, leaving rate regulation to the experts on the various commissions. In particular Brandeis urged that Smyth v. Ames be jettisoned, as it finally was in 1944. See Urofsky, Louis D. Brandeis, 614. 44. Missouri ex rel. Southwestern Bell Telephone Co. v. Public Service Co., 262 U.S. 287, 290–92 (1923). 45. It probably would have been six, but Justice Butler did not participate in the consideration or determination of this case.

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Commission is long and argumentative. Much of it is devoted to general observations relative to the method and purpose of making valuations; many objections are urged to doctrine approved by us; and the superiority of another view is stoutly asserted.”46 McReynolds also chose to ignore arguments presented by George Wickersham, who incidentally had preceded McReynolds as attorney general, during Taft’s presidential years, and Donald Richberg, who in 1933 would become one of the architects of Roosevelt’s New Deal.47 Wickersham reminded the justices that the broad discretion vested in the ICC “will not be reviewed by the courts, and the order made by the Commission . . . is not invalid as made without due process.” Further, according to counsel for the commission, “the judiciary is not concerned with the mental processes or the reasoning by which the Commission arrives at its conclusions.” Indeed, he added, “railroad rate regulation is a legislative function, the performance of which is properly intrusted [sic] to an expert Commission appointed by law and informed of experience, whose judgment is subject to review by the courts only for the purpose of seeing that it does not violate the statutes under which it acts.” Finally Richberg claimed that “the evaluation of a public utility . . . is an exercise of the legislative power of rate regulation . . . within the range of legislative discretion and is not subject to judicial review.” 48 Although Brandeis had written on the subject of the ICC and railroad rate regulation on several prior occasions, his examination of the St. Louis and O’Fallon case convinced him that this case in particular required “expert knowledge” that the courts lacked.” Moreover he may well have found McReynolds’s superficial and repetitive opinion unacceptable. The result was a massive and thorough dissent extending some sixty pages with almost one hundred footnotes. Brandeis dissected the financial activities of the railroad in detail and offered numerous insights into the technical aspects of railroading. He consistently grounded his dissent in extended analysis of the ICC’s growth over forty years, noting that “findings of the Commission involving the appreciation or effect of evidence [as was the case here] have been treated with the deference due to those of a tribunal ‘informed by experience,’ and ‘appointed by law’ to deal with an intricate subject.” 49 His court, Brandeis insisted, “has no concern with the correctness of the Commission’s reasoning on the evidence in making its findings of fact, since it applied the rules of substantive law prescribed by Congress and reached its findings of actual value by the exercise of its judgment upon all the evidence.” 46. St. Louis and O’Fallon Railway Co. v. United States, 279 U.S. 461, 485–88 (1929). 47. By 1929 the New York law firm of Cadwalader, Wickersham, and Taft (brother of the chief justice) was on its way to becoming one of the largest corporate law firms in the United States, employing today between 450 and 500 lawyers. 48. St. Louis and O’Fallon, 460–79. 49. Ibid., 494.

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Finally he urged his colleagues to remember “that here we are not dealing with a question of confiscation,” but rather with a “a legislative question which can be more easily determined by a commission composed of persons whose special skills, observation and experience qualifies them to handle great problems of transportation as to do justice both to the public and to those whose money has been used to construct and maintain highways for the convenience and benefit of the people.” 50 Of Brandeis’s efforts Taft advised his son that “you will find an enormous dissenting opinion well drawn, but it seems to me to miss the point.” 51 In fact the rigorous judicial monitoring of commissions still insisted on by McReynolds and the legal classicalists itself missed the point, and in due course Brandeis’s insistence on independence for the commissions would be accepted. As long as he remained on the bench, he tried to get his fellow justices “to recognize administrative agencies not only as legitimate, but also as entrusted with particular duties requiring expert knowledge that the courts lacked.”52

5 In April 1929 the Taft court took up the case of Rosika Schwimmer, an emigrant from Hungary who had filed for naturalization in 1926. Schwimmer appears to have been a devoted pacifist, and while she testified that she would “whole-heartedly take the oath of allegiance,” she added that “I cannot see that a woman’s refusal to take up arms is a contradiction to the oath of allegiance.” If the United States saw fit to compel women “to take up arms in the defense of the country—something no other civilized government has ever attempted—I would not be able to comply.” Schwimmer would expect to be treated like any other conscientious objector. She reminded the naturalization authorities that she would turn fifty on her next birthday, “and even men of my age are not called to take up arms.” 53 During the interval between oral argument before the Taft court on April 12 and announcement of the decision on May 27, Mrs. Holmes’s health failed rapidly, and she died on April 30. On the day after oral argument, Holmes wrote to Harold Laski, “what damned fools people are who believe things.” His next sentence described Rosika Schwimmer as “a woman [who] wanting to become a citizen . . . has to explain that she would not fight for the Constitution 50. Ibid., 548. Holmes and Stone concurred with Brandeis. Stone could not resist observing that the ICC possessed “special knowledge of the property of this carrier,” and “it had the benefit of an expert knowledge of all the factors affecting value of railway property.” Ibid., 549. “I cannot say that the Commission did not have before it the requisite data for forming a trustworthy judgment.” Ibid., 550. 51. Charles Taft Papers, May 19, 1929. 52. Urofsky, Louis D. Brandeis, 616. 53. United States v. Schwimmer, 279 U.S. 644, 647–48 (1929).

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(or, as her counsel said, wouldn’t do what the law wouldn’t let her do) and so opens to the Government a discourse on the foundation of the Constitution being in readiness to defend itself by force &c. &c. All isms seem to me silly— but this hyperaethereal respect for human life seems perhaps the most silliest of all.”54 Schwimmer lost in the district court but prevailed upon appeal. The Taft court granted certiorari, and after the vote of six to three against her, the chief assigned the case to Butler, who, not unsurprisingly, found no merit in Schwimmer’s arguments. “Whatever tends,” he wrote, “to lessen the willingness of citizens to discharge their duty to bear arms in the country’s defense detracts from the strength and safety of the government.” Moreover Schwimmer’s testimony “clearly suggests that she is disposed to exert her power to influence others to such opposition.” Finally “one who is without any sense of nationalism is not well bound or held by the ties of affection to any nation or government.” 55 One suspects that in United States v. Schwimmer Butler saw only another naturalization case. Not so Holmes. Grappling with the impact of Fanny’s death after a life together of sixty years, Holmes transformed Schwimmer from a mere naturalization issue into a free speech declaration able to stand alongside of Gitlow and Abrams.56 To be sure, Schwimmer had made a statement that “she would not bear arms to defend the Constitution. . . . So far as the adequacy of her oath is concerned, I can hardly see how that is affected . . . inasmuch as she is a woman over fifty years of age, and would not be allowed to bear arms if she wanted to.” Holmes cited her belief in organized government and added that she “prefers that of the United States to any other in the world. Surely it cannot show lack of attachment to the principles of the Constitution that she believes it can be improved. I suppose that most intelligent people think that it might be.” 57 Holmes wrote only two paragraphs in his dissent, of which the second is more persuasive. As to Butler’s fear that Schwimmer’s optimistic anticipation would make her a worse citizen, Holmes referred him to her examination, “which seems to me a better argument for her admission than any that I can offer.” To be sure, some of her answers might “excite popular prejudices, but if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought—not free thought for those who agree with us but freedom for the thought we hate.” And finally, recurring to Butler’s opinion that “bars this applicant’s way, I would suggest 54. Holmes­Laski Letters, May 23, 1929, 2: 263. “My wife’s death . . . hasn’t prevented my writing . . . , and I have just turned off a dissent about the refusal to admit a pacifist to citizenship that Brandeis liked and joined in.” Ibid., May 30, 1929, 2: 267. 55. United States v. Schwimmer, 651–53. 56. White, Justice Oliver Wendell Holmes, 446. 57. United States v. Schwimmer, 654.

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that the Quakers have done their share to make the country what it is, that many citizens agree with the applicant’s belief, and that I had not supposed hitherto that we regretted our inability to expel them because they believe more than some of us do in the teachings of the Sermon on the Mount.”58

6 In an earlier term a divided court—speaking through the chief justice—had affirmed the presidential power of removal free from congressional interference. The presidential prerogative continued to concern Taft, and as his court entered its final months, on the same day as Schwimmer was decided, the justices handed down a unanimous decision affirming yet another aspect of executive authority. It concerned the pocket veto, so called after President Lincoln simply ignored a reconstruction measure passed by Congress in 1864 promptly followed by adjournment. In fact the practice of using congressional adjournment as a means of killing unwanted legislation appears to have been employed first by President Madison. Although soundly criticized by radical Republicans, Lincoln’s course of action was not challenged in federal court, and the subject of his veto—the Wade-Davis bill—was not revived. Not until 1929 did the court directly confront the constitutionality of the pocket veto. In 1929 the court considered whether under the appropriate constitutional provision a bill “passed by both houses . . . during the first regular session of a particular Congress and presented to the President less than ten days . . . before the adjournment of that session, but is neither signed by the President nor returned by him to the House in which it originated, becomes a law in like manner as if he had signed it.” 59 This question was raised by plaintiff, a group of Indian tribes in Washington. On their behalf the Senate—followed by the House—had passed a bill authorizing them to submit certain claims concerning “appropriation” of their lands to the court of claims. The bill was presented to President Coolidge on June 24, 1926. On July 3 both houses adjourned and did not return until the first Monday in December. Thus neither house was in session on July 6, the tenth day after the bill had been presented to Coolidge. The president neither signed the bill nor returned it to the Senate, and it was not published as a law. Observing that ten days had passed since the bill had gone to Coolidge without any action on his part, in due course the several tribes filed suit in the court of claims as—supposedly—they were permitted to do under the congressional measure. The United States demurred to this action on the grounds that the bill had never become a law, a conclusion that the court of claims accepted, 58. Ibid., 654–55. 59. Okanogan et al. Indian Tribes v. United States, 279 U.S. 655, 672 (1929). The case is also known as the Pocket Veto Case.

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even as it dismissed the suit. It was this decision from which the tribes appealed to the Taft court, giving the justices the opportunity to consider the constitutionality of the pocket veto. Lurking in the background of this litigation was a clash between legislative and executive authority. Counsel for the tribes raised some arguments that remain intriguing if not persuasive. He claimed that an adjournment typically did not prevent Coolidge from returning the bill. The only adjournment that does this is what counsel called “the final adjournment of Congress, terminating its legislative existence and thus making it impossible for the president to return the bill for reconsideration.” An earlier adjournment differed in that the life of the Congress might be suspended or interrupted—but not terminated. Therefore counsel insisted that the president could return the bill along with his objections to “the Secretary, Clerk, or other appropriate agent of that House, to be held” until the legislature “resumed its sitting at the next session.” 60 Moreover the term “ten days” should mean ten legislative days—that is “days on which the Congress is in legislative session.” What is most important, counsel for the tribes urged that the veto provision in the Constitution be construed so as to “give effect to the reciprocal rights and duties of [both] the President and of Congress and not enable him to defeat a bill of which he disapproves by a silent and absolute veto.” Such was the “pocket veto.” Its use enabled the chief executive not only to veto—without explanation of his objections, but also to block any opportunity for Congress to pass the bill over them. The practice represented an unwarranted expansion and distortion of executive authority at the expense of legislative independence. Attorney general William Mitchell responded on behalf of the United States. In the first place adjournment could include an interim break, as well as the final adjournment at the end of a Congress. Further the term “ten days” meant ten calendar days and not legislative days. Also the president could return a bill to the legislative body only while it was in session. Therefore if the house in which the bill originated is not in session on the last day of the ten day period, he is prevented from returning the bill, and it does not become a law. Whether the president would have opposed it becomes irrelevant. A unanimous court agreed, with Justice Sanford observing that “the failure of the bill to become a law cannot properly be ascribed to the disapproval of the President . . . but is attributable solely to the action of Congress in adjourning before the time allowed” him had expired.61 The court also accepted Mitchell’s other contentions and rejected the distinction proffered by opposing counsel of ten “legislative” days rather than 60. Ibid., 674–75. 61. Ibid., 675, 678–79.

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“calendar days.” Sanford wrote that the “words used in the Constitution are to be taken in their natural and obvious sense, and are to be given the meaning they have in common use.” He added that “no President or Congress has ever suggested that the President has ‘ten legislative days’ in which to consider and return a bill.” Sanford added that the house to which the president is to return the bill is expected to be the house from which the bill originated, and no such return is possible “when it is not in session as a collective body and its members are dispersed.” He dismissed the suggestion that somehow—although the house was not in session—the bill in question could be delivered “to an officer or agent of the House, for subsequent delivery when the House resumed its deliberations. No such statute had ever been enacted.” 62 Sanford had one final point to make, based on information furnished by Mitchell’s office, and it may have been most significant of all for the court. He stated that the views he had thus far articulated “are confirmed by the practical construction that has been given to it by the Presidents through a long course of years, in which Congress has acquiesced. Long settled and established practice is a consideration of great weight in a proper interpretation of constitutional provisions of this character.” Moreover Mitchell’s office had prepared a memorandum on the actual use of the pocket veto. This document, “the accuracy of which is not questioned,” cited more than “four hundred bills,” all of which were passed by Congress and submitted to the president less than ten days before a final or interim adjournment. They were neither signed by him, nor returned with his disapproval. “None of these bills or resolutions were placed upon the statute books or treated as having become a law; nor does it appear that there was any attempt to enforce them in the courts” until the current Okanogan litigation.63 Nor does there appear to be any instance where Congress “in any official manner questioned the validity and effect of the President’s action,” or proceeded on the assumption that any of the bills had become a law. For more than a century, all presidents dealing with the pocket veto issue have operated on the constitutional principle that they “were prevented from returning the Bill to the House [where it originated] by the adjournment of the session.” 64 The Okanogan Tribe did not prevail on any of the points raised before the Taft court, and the Pocket Veto Case apparently remains good law to the present day. Shortly before the end of the 1928 term ( June 3, 1929), the Taft court decided a case that had been argued a year and a half earlier. For reasons that remain unclear, the justices did not formally announce its decision until early

62. Ibid., 685–86. 63. Ibid., 689–92. 64. Ibid. Congressional absence made the bill’s presence impossible.

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June.65 The case concerned two fraternal orders called Nobles of the Mystic Shrine, both related to the Masonic fraternal societies. Originating in Texas, one had only white members, while the other had black members. In mid-1929 the deep South remained heavily segregated in terms of race, and the decade of the 1920s had also featured a national resurgence of the Ku Klux Klan. The white order was established in Texas as early as 1887, while the black order originated in 1894. The constitution, emblems, regalia, and presumably rituals “were all adopted in imitation of those of the white order.” 66 In 1918 the white order brought suit in Texas, asking on a national basis that the black order be barred from (a) using the name under which it functioned, (b) designating its local lodges as “temples,” (c) designating its members as “nobles” or “shriners,” and (d) using a constitution, emblems, and regalia “like those of the white order, and from organizing or instituting lodges in imitation of those of that order.” 67 In response counsel for the black order, among them Moorfield Storey, founding president of the NAACP, claimed that it had been duly incorporated under an act of Congress and remained entitled as it had been to undertake all that the white organization sought to bar. The Texas courts uniformly found for the white lodge, whereupon the Taft court granted a writ of certiorari. Counsel for the black lodge invoked in its defense the common law doctrine of laches. The term refers to the practice of intentional delay in a legal proceeding. The “neglect or intentional omission to do what one should do warrants [the] presumption that one has abandoned [their] right or claim.” 68 Here the white lodge had silently acquiesced in the black lodge’s activities for more than thirty years. As early as 1894 the Imperial Potentate of the white lodge had called attention to its existence. Moreover “a large proportion of the copied paraphernalia, regalia, emblems and insignia used by the black order was purchased from or through members of the white order.” 69 For a unanimous court Justice Van Devanter held that there was not only “obvious and long-continued laches on the part of the white order, but also that the circumstances were such that its laches barred it from asserting an exclusive right, or seeking equitable relief, as against the negro order.” Such a claim might have been valid thirty years ago, but after such a long period 65. It will further be recalled that Justice Van Devanter was among the slowest of the justices in producing a finished opinion. This case is an excellent example, although there might have been additional reasons for the court’s delay. 66. Ancient Egyptian Arabic Order of Nobles of the Mystic Shrine v. Michaux, 279 U.S. 737, 739 (1929). 67. Ibid., 741. In reality, without so stating, the white order sought the elimination of the black order, and this on a national basis. 68. Black’s Law Dictionary, 5th ed. (St. Paul, Minn.: West, 1979), 787 69. Ancient Egyptian Arabic, 747–48.

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of inaction and silent acquiescence, it was “too late to resuscitate the original exclusive right for which the white order is now contending.”70 The case was reversed and remanded, reminding observers that the Taft court defied facile generalizations as a completely conservative tribunal.

7 Late in April 1928 the court heard what turned out to be the first of two important but extended cases concerning the right of Illinois and the sanitary district of Chicago to continuing to draw some eighty-five hundred cubic feet of water per second from Lake Michigan. Ultimately involving five additional states besides the original parties of Illinois and Wisconsin, the justices selected Charles Evans Hughes as a special master, “with authority to take the evidence, and report the same to the court with his findings of fact, conclusions of law, and recommendations for a decree.”71 A former governor of New York, justice of the court, presidential candidate, and secretary of state, Hughes could not know that in barely a year he would replace Taft as chief justice, thereby returning to the bench on which Taft had seated him in 1910. The process described above by Taft was lengthy, and Hughes’s final report was filed late in 1927. Taft’s court heard arguments in April 1928, but Taft did not announce the decision for a unanimous court until January 1929. By the time the sequel to the original litigation was argued, the ailing chief was dead. Issues concerning water levels of Lake Michigan as Chicago expanded during the late nineteenth century were not new. They centered around the creation of the Chicago sanitary district, completed in 1890. At the time of this litigation, it extended to some 438 square miles, including about thirty-four miles of frontage on Lake Michigan, “embracing the metropolitan area of Chicago, consisting of a total of fifty four cities, towns, and villages.” It was the diversion of the lake waters by the sanitary district, extending to some eightyfive hundred cubic feet a second, “sufficient to cause, and it has caused the lowering of the mean levels of the lake and connecting waterways,” which had resulted in losses of between five and six inches for Lakes Michigan, Huron, Erie, and Ontario.72 Hughes reported to the court that “the damage due to the diversion at Chicago relates to navigation and commercial interests, to structures, to the convenience of summer resorts, to fishing and hunting grounds, to public parks and other enterprises, and to riparian property generally.”73 70. Ibid., 749. The Shriners as a fraternal organization linked to freemasonry continues to the present day. 71. Wisconsin v. Illinois, 278 U.S. 367, 399 (1929). 72. Ibid., 403, 407. 73. Ibid., 408. If water had been available on the Great Lakes for an additional six inches of draft, “the fleet could have handled for the year [1923] 3,346,000 tons more than was actually transported.” Ibid., 409.

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The “exact issue” confronting the justices had already been set forth for them by Hughes. It is “whether the state of Illinois and the sanitary district of Chicago, by diverting 8,500 cubic feet from the waters of Lake Michigan, have so injured the riparian and other rights of the complainant states . . . by lowering their levels as to justify an injunction to stop this diversion and thus restore the normal levels.” There is no doubt, added Hughes, “that the diversion is primarily for the purposes of sanitation. . . . [I]t remains true that the disposition of Chicago’s sewage has been the dominant factor in the promotion, maintenance and development of . . . the sanitary district.” Taft held that Wisconsin, as well as several other states, were “entitled to a decree which will be effective in bringing that violation . . . to an end.” But he cautioned that it “should be so framed as to accord to the sanitary district a reasonable practicable time in which to provide some other means of disposing of the sewage.”74 There could be no doubt, however, that the sanitary district in Chicago had defied federal authority in more than doubling the amount of water diverted from Lake Michigan. Moreover, as such action was “not for the purpose of maintaining navigation in the Chicago river,” it was without any legal basis. Taft saw the duty of his court “to compel the reduction of the diversion to a point where it rests” on such a basis. In truth the authorities of the sanitary district “have much too long delayed the needed substitution of suitable raw sewage plants as a means of avoiding the diversion in the future. Therefore, they cannot now complain if an immediately heavy burden is placed upon the district because of their attitude and course. The situation requires the district to devise proper methods for providing sufficient money and to construct and put in operation with all reasonable expedition adequate plants for the disposal of sewage through other means than the lake diversion.”75 But Taft was not yet finished with the sanitary district. Because there would be a need for experts, as well as careful consideration required for the “appropriate provisions of the necessary decree,” the case “will again be referred to” Hughes, with all the authority he had possessed as master in the earlier litigation, “and then with all convenient speed to make report of his conclusions and of a form of decree.” 76 Taft never returned to the case (see below), and during the spring and summer of 1929, as his health failed, Hughes carried on as special master in the litigation. For the last time Taft returned to his summer home in Canada, seeking in vain a sense of mental rejuvenation as well as physical recovery. He was forced to admit to Stone that “my summer has not been one to which I look back with 74. Ibid., 418–19. 75. Ibid., 420–21. “Though the restoration of just rights to the complainants will be gradual instead of immediate, it must be continuous and as speedy as practicable, and must include everything that is essential to an effective project.” 76. Ibid.

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any radiant satisfaction. . . . [I]t has been nothing but doctors and medicine. I sincerely hope that when I reach Washington, I shall find an end to them.”77 At about the same time McReynolds observed to Stone, “it seems to me the Ch.J has excellent cause for weariness. If he sticks to the work much longer it will kill him. However[,] it may be worth the choice although I do not think so.”78 In July Taft had to surrender a case to Sanford for decision. “You were good enough to say you would take over that patent case for me . . . and I thought I ought to take it myself; but the truth is that I have been sick for nearly a month and I haven’t been able to do any work.”79 Although the chief was able to join his brethren for the opening of court in October 1929, it was the last such opening for him. On December 31 his oldest brother, Charles, died after a long illness. During the summer he had appeared near death but had apparently rallied—at least for a few months. Noted publisher, philanthropist, and family mainstay, Charles Taft had long since become the family patriarch. Taft was much affected by his brother’s death. The chief justice determined to attend the funeral in Cincinnati, only to return to Washington exhausted and discomforted. He drafted an undated and unfinished note to Stone thanking him for his “kindly note of consolace [sic].” Of Charley he wrote that “the wrench that a separation like this makes in a life like ours is hard to bear.” Taft also sent Stone a copy of the note he had dictated to Holmes, on January 6, 1930, apparently the last day on which he attended his court. He wrote that “the strain through which I have been during the past summer, and the illness of my brother and his death, has produced a nervousness resulting in that makes my doctors feel that I ought to separate from the work in the Court and avail myself of the practically seven weeks that intervene between now and the session beginning February 24th. . . . It is said to be important that I withdraw from activity in the Court until the last week in February. Mrs. Taft will accompany me, and . . . I am hoping to be able to return again and try and pull my weight in the boat, and meantime ask you to bear with me as you are in the habit of doing as the ‘youngest’ man in the Court.”80 Taft and his wife traveled to Asheville, North Carolina, but his mental and physical condition continued to deteriorate. He grew more restive, believing that he was actually leaving at once to return home. The Tafts returned to 77. Stone Papers, August 31, 1929. 78. Ibid., August 9, probably in 1929. McReynolds had an irritating habit—one of so many—of not completely dating his notes. We know, for example that his description of Brandeis as “one who is consciously boring from within,” comes from a letter to Stone of April 2, 1930, only because Stone directly refers to it in his typed reply of April 3, 1930. 79. Pringle, Life and Times, 2: 1077. 80. Holmes was in fact the oldest man on the bench both in years of service and age when he received the letter from Taft.

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Washington shortly thereafter, but not without an alert photographer catching an image of the failing chief justice leaving the train at Union Station and being wheeled to a automobile. Holmes described it as “an unspeakable brutality. . . . [T]here was in one or more of the leading papers a photograph [of] him caught between the train and his house—with every spark of intelligence gone from his face . . . but I imagine he has no prospect of life, or reason to desire it. Hardening of the arteries and other troubles, I understand.” 81 Taft lingered until March 8, the day of Holmes’s eighty-ninth birthday, and by a perverse coincidence the same day on which another member of the Taft court, Edward Sanford, also died. If only in terms of actual membership, the Taft court had become a thing of the past with one exception. Only four days after his death, the court took up the sequel to one of the last significant cases Taft had decided, discussed earlier in this chapter, and necessarily left incomplete—Wisconsin v. Illinois. Again Hughes served as special master, with compensation it might be noted at $30,000 plus expenses.82 As had Taft, this time Holmes spoke for a unanimous court. He summarized Taft’s original findings, reiterating that Illinois’s diversion of water was illegal, “but the restoration of the just rights of the complainants was made gradual rather than immediate in order to avoid . . . the pestilence and ruin with which the defendants have done so much to confront themselves.” Now the master had reported. “Both sides have taken exceptions, but as we shall endeavor to show, the issues open here are of no great scope.” 83 It had already been decided, Holmes observed, “that the defendants are doing a wrong to the complainants, and that they must stop it. They must find out a way at their peril. We have only to consider what is possible if the state of Illinois devotes all its powers to dealing with an exigency to the magnitude of which it seems not yet to have fully awakened. It can base no defenses upon difficulties that it has itself created. If its Constitution stands in the way of prompt action, it must amend it or yield to an authority that is paramount to the state.” 84 As to the exceptions filed by counsel for Illinois seeking to delay implementation of the measures recommended by Hughes, Holmes was not sympathetic. 81. Holmes­Laski Letters, February 14, 1930, 2: 303. Taft had already resigned from the court on February 3, with Hoover immediately nominating Charles Evans Hughes. By February 24 Hughes had been nominated, confirmed, sworn in, and seated as chief justice. Holmes recalled then president Taft’s rejection of Hughes as chief justice in favor of Edward White in 1910. “If Hughes could have been appointed then as was expected,” he observed, “(but it was said that the opposition was too great) I think the history of the Court’s doings would have been better than it is.” Ibid., 2: 304. 82. 281 U.S. 179 (1930). 83. Wisconsin v. Illinois, 196–97 (1930). What Holmes may have meant by this comment is that the culpability of Illinois was not open to question. 84. Ibid., 197.

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“[T]here is a wrong to be righted, and the delays allowed are allowed only for the purpose of limiting, within fair possibility, the requirements of immediate justice pressed by the complaining states.” Indeed “the defendants argue for delay at every point, but we have indicated sufficiently why their arguments cannot prevail.” Finally “we see no reason why costs [including compensation for Hughes as special master] should not be paid by the defendants, who have made this suit necessary by persisting in unjustifiable acts.” 85 The decision ended with the notation that “the Chief Justice took no part in the consideration of decision of these cases.” This observation is not surprising as by April 14 the special master and the chief justice were one and the same, Charles Evans Hughes. Thus Holmes concluded what Taft had initiated in the first Wisconsin v. Illi­ nois litigation. It represented the chief justice at his best, writing a magisterial decision, characterized by a sound understanding of the issues—both in fact and law. That he did not live to see its sequel is unfortunate. Yet even as his life ended, his court remained imprisoned in the grip of classical legal thought, and indeed Taft had counted on the continuance of the conservative bloc to carry on. It seems fitting therefore to conclude this final chapter with an observation from Holmes, written barely a month after the second lake diversion case. “I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the 14th Amendment in cutting down what I believe to be the constitutional rights of the States. As the decisions now stand I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this Court as for any reason undesirable. I cannot believe that the Amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions.” 86 His words pointed to the future, while—although there were exceptions—too often the Taft court had pointed to the past.

85. Ibid., 199–200. 86. Baldwin v. Missouri, 281 U.S. 586, 595 (1930). Brandeis and Stone concurred with Holmes. “I have been somewhat active in dissent, which I regret,” Holmes had written, “but regret more the position of the Court on some important questions.” Holmes­Einstein Letters, ed. James Bishop Peabody (New York: St. Martin’s, 1964), June 5, 1928, 283.

Epilogue

1 With the death of William Howard Taft on March 8, 1930, one era ended, even as another—the worst depression thus far in our history—began. Although our Supreme Court is an ongoing institution, with one era giving way ineluctably to its successor, significant differences do emerge, remaining for future legal historians to consider. Thus, when looking at the Taft Court in retrospect, at least two interrelated characteristics can be observed. In the first place, it appeared to be the last Court dominated by classical legal thought. During the final year of his life, the chief justice was obsessed by his determination to keep it so. A dying man, he felt confident that the hard-core conservative bloc of justices already well established (Van Devanter, Sutherland, Butler, and McReynolds, joined by Sanford) would constitute an ongoing majority capable of blocking the “bolsheviki” (Holmes, Brandeis, and Stone) from gaining five votes. While his bloc of four did indeed endure unchanged until 1938, Taft never knew it, and in fact Sanford died on the same day as did his chief, March 8. Between 1930 and 1937, with the appointment of Charles Evans Hughes to replace Taft and a Philadelphia lawyer, Owen J. Roberts, to replace Sanford, for the most part Taft’s confidence was justified. The bloc of four justices was usually able to gain a fifth vote from either Roberts or Hughes, while the Brandeis bloc needed support from both new justices in order to prevail.1 Thus the “four horsemen” rode together sufficiently well that they effectively set the stage for the constitutional crisis of 1937. In the wake of Roosevelt’s court-packing plan and the severest depression in modern American history, however, classical legal thought was swept away. In the West Coast Hotel v. Parrish case handed down a year before Justice Sutherland retired, more in anguish than in anger, he mourned its passing.

1. See the noteworthy study by William Ross, The Chief Justiceship of Charles Evans Hughes.

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“The meaning of the Constitution,” he wrote, “does not change with the ebb and flow of economic events,” Further, to claim that “the words of the Constitution mean today what they did not mean when written, that they do not apply to a situation now to which they would have applied then—is to rob that instrument of the essential element which continues it in force as the people have made it until they, and not their official agents, have made it otherwise. . . . If the Constitution . . . stands in the way of desirable legislation, the blame must rest upon that instrument, and not upon the court for enforcing it according to its terms. The remedy in that situation—and the only true remedy—is to amend the Constitution.”2 Such did not happen, but no comparable doctrine arose to take the place of classical legal thought. William Wiecek has observed that since 1937 the Court has labored “under a popular suspicion that its results were bereft of a legitimating jurisprudence that integrated law into the larger social realm.”3 Yet its ghost lingers on in our contemporary constitutional jurisprudence. Legal classicalism, it must be conceded, is not in the dustbin of contemporary constitutional history. What is the new constitutional originalism but a reincarnation of the old legal classicalism? Both categorizations encompass giving priority to a search for certainty in substantive law. And both also advocate the subordination of all other factors to the need for stare decisis, along with inflexible acceptance of prior decisions. Finally, both share a tendency to subordinate all complicating factors (such as social, cultural, economic, and political realities) to an imperative need for a consistent and effective, as well as original, system of law.4 Thus, significant aspects of our legal past can be found in our legal present. Indeed, emphasis on this originalism has contributed to a sizable and important contemporary constitutional movement that should not be underestimated. The idea that classical legal thought was molded by the Taft Court into a distinctive kind of legal formalism—as has been argued in these chapters— must be conceded to be an intensely controversial thesis today. While this author believes that this thesis remains valid, it must be understood that legal conservatism is not a thing of the past, as future decisions of the current Supreme Court may well reveal. “Skepticism towards the legislative process, deregulation, and a rehabilitated faith in the efficacy of private markets,” were all characteristics of the Taft court’s jurisprudence, and they have all reappeared on our constitutional landscape in recent years.5 2. West Coast Hotel v. Parrish, 300 U.S. 379, 403–404 (1937). 3. See Wiecek, The Lost World of Classical Legal Thought, 241. 4. This study in general and this paragraph in particular are built on the insights shared with me over many years by the editor of this series, Herbert Johnson, to whom I owe much more than this grateful acknowledgment. 5. See the comments by William Wiecek in Law and History Review 33 (2015): 1019.

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2 The second distinguishing characteristic of the Taft Court is the lasting influence concerning a number of its dissents. Of course dissents have occurred in every era of the Court’s history, and the total of dissents from the Taft Court was not excessive.6 Rather, it was their quality that distinguished them. This is especially true of Brandeis and Holmes. In cases including Gitlow, Abrams, and Olmstead, the majority opinions have lost whatever significance they once possessed. The same cannot be said of the dissents. Holmes’s dissents in Gitlow and Abrams paved the way for expanding 1st Amendment freedoms of speech and press. The Brandeis dissent in Olmstead was later adopted by the Supreme Court, which overruled the case in 1967. In his dissent Brandeis had called for expanded application of the 4th Amendment to protect against unreasonable search and seizure, as well as constitutional acceptance of the right of privacy. Also in 1967, the Court overruled Whitney. Moreover, his dissents in both cases are still cited for their eloquence, scholarship and passionate tone.7 As a unit, the justices who composed Taft’s court cannot be said to have been an outstanding group of jurists, with the obvious exceptions of Holmes and Brandeis. Perhaps the assessment of Taft by Brandeis may be applicable to his court as well. The chief possessed, according to this colleague, “a first rate– second rate mind.” 8 Brandeis distinguished here between the quality of Taft’s jurisprudence, which he found lacking, and his administrative skills, which he found impressive. His point remains valid and merits consideration. Taft had never believed himself to be an outstanding jurist. Indeed, he was jealous of Holmes, who managed to toss off his relatively brief decisions with remarkable speed, possessing at the same time a flair for epigrammatic writing that they well reflected. To the contrary, Taft’s opinions were lengthy, ponderous, and solid. They lacked the occasional flashes of wit that are found in Holmes’s output, as well as the emotional eloquence that sometimes could be located in a Brandeis dissent; and a number of such cases have been discussed in these chapters. While all Supreme Court decisions are preserved in

6. In the post–World War II period, the number of dissents has increased, a trend that shows no sign of diminution. 7. Great cases hold significance and meaning not only for the generation that first encounters them, but also for generations yet to come. See the Brandeis dissent in Olm­ stead as a prime example of this tendency. 8. See Urofsky, “ The Brandeis-Frankfurter Conversations,” 313. The Brandeis quote should be read in context, as it was preceded by a few comments from Brandeis concerning his chief. He stated of Taft that “It’s astonishing he should have been such a horribly bad President, for he has considerable executive ability. . . . He has an excellent memory, makes quick decisions on questions of administration that arise & if a large output were the chief consideration, he would be very good.” Ibid.

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a number of locations and remain widely available, many written by Taft, with some exceptions, have not survived the test of ongoing scholarly interest. But this view, while accurate, does not present a balanced assessment of Taft. If not a great jurist, he was a truly outstanding chief justice, and in his case this distinction is crucial. The chief justice is more than “first among equals.” He is also the chief administrative officer of the court. In this capacity, Taft offered a perspective and experience unique in the court’s history. Never before (or since) has a member of the Supreme Court possessed the administrative background that Taft brought to the center seat. To be sure, no other justice has been president of the United States or governor-general of the Philippines, to say nothing of his service in Theodore Roosevelt’s cabinet or during his prior judicial career. By the time of his arrival at the court in 1921, Taft had become well versed in the art of lobbying. He had retained numerous congressional and social contacts established in his previous careers, especially during his term in the White House from 1909 to 1913. These were to be of great value to him when he resigned his law professorship at Yale, and returned to Washington to become chief justice. Long before he received this appointment, Taft had given considerable thought to the Supreme Court and to the federal judiciary as a whole. He had seen much room for improvement. Indeed, he had called for specific reforms in several of his messages to Congress. The newly appointed chief justice brought with him an agenda concerning needed changes, and, within the eight full terms allotted to him, he persuaded Congress to enact three of them. These three statutes have already been discussed earlier. Taken together, however, they are of such significance that they warrant brief recapitulation here as this study of Taft and his court is concluded.

3 In 1921 Taft became the first chief justice to appear before a congressional committee, a step he repeated on multiple occasions during his tenure. His purpose was not only to explain the function of the federal judiciary, but also to urge legislative approval for a bill with three key components: a) an increase in the number of federal judges to alleviate overcrowded dockets; b) authority given to the chief justice to move some of them around as conditions required; and c) provision for an annual federal conference of the senior circuit court justices, over which the chief justice would preside. Although not free from the inevitable congressional tinkering and alterations, ultimately, in 1922, the legislature enacted most what the chief had proposed. The significance of the 1922 statute has been enduring. To this day federal judges may be temporarily reassigned, while the annual conference provides a forum in which federal judges may raise issues of national concern. In effect a national federal judiciary could and does function as a unified entity. Thus it was appropriate

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when, after 1922, Taft referred to himself as chief justice of the United States, a title which all his successors have adopted. Although it took Congress much longer to enact the second of Taft’s desired measures, it did so in 1925, with the passage of the “Judges’ Bill.” The title is accurate because of the justices who, led by Van Devanter but inspired and spurred on by Taft, appeared before Congress: the proposed statute had the support of the entire Court. It dramatically reduced the categories of cases the justices had been required to hear, even as it increased the jurisdiction of the Federal Circuit Courts. The new law also increased the discretionary authority concerning the cases it could choose to hear, a matter Congress has revisited on several occasions since 1925. Indeed, by 1988 the legislature had eliminated all but four areas of mandatory review by the Court.9 Out of some five thousand cases filed before an annual term, the Court normally will review about 3 percent of them, fewer than 150.10 Such is the legacy of the Judge’s Bill. For such an important statute, the lack of congressional interest in its final passage is remarkable. The bill passed the House by voice vote and received only one negative vote in the Senate. Debate was desultory in both chambers. Perhaps this lack of legislative concern may have resulted in part from the imminent inauguration of President Coolidge to his own full term, as well as the fact that the former president and current chief justice had placed his prestige and that of his court behind the measure. The final piece in this legislative troika of bills proposed by Chief Justice Taft probably meant the most to him. It was an appropriation of more than nine million dollars, intended to fund a new home for his tribunal, one that would reflect the majesty, solidity, and enduring grandeur within which the highest court in the land should function. Taft had longed for such a structure many years before he occupied the center seat in 1921. But, by the time of the bill’s passage, he was in extremely poor health. With quiet—if not concealed— determination, he had pushed, prodded, and persuaded his congressional contacts on its behalf. Indeed, Taft had even hired his chosen architect, Cass Gilbert, before Congress appropriated funds for the structure. He was able to examine the architect’s drawings, as well as to view a model of the building. But he did not live long enough to attend the groundbreaking ceremonies in 1932.11 Taken together, these three measures proposed to Congress by Taft set 9. These four were “reapportionment cases, the Civil Rights and Voting Rights Acts, some antitrust matters, and the Presidential Election Campaign Fund Act.” See “The Business of the Court,” by David M. O’Brien,” in the Oxford Companion to the Supreme Court of the United States, ed. Kermit L. Hall (New York: Oxford University Press, 1992), 108–9, 10. Ibid. 11. William Wiecek aptly described the new building as “impressive, neoclassical in spirit, balanced, dignified, imposing, reverential, symmetrical, majestic, intimidating, dramatic, and above all, awe-inspiring.” Wiecek, Lost World, 223.

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in motion the modern Supreme Court of the United States. In fact they can be seen as having been indispensable to its future. Herbert Johnson is correct when he asks “could the Court even attempt to serve its current functions as a constitutional [tribunal] if its docket remained stuffed with mandatory appeals involving patents and copyrights? And if it could, what significance would be bestowed on the decisions of a tribunal relegated to a windowless closet situated between the foundation walls that supported the Congress sitting above?”12 Finally, it must be observed that if the Taft Court’s moves toward modernity were halting and inconsistent, they did actually occur. It was the Taft Court that “pioneered personal liberty doctrines,” even though they were articulated by one of its most reactionary members, James C. McReynolds. To be sure, McReynolds based his decisions on the 14th Amendment conception of due process, and the 1st Amendment is not mentioned in his opinions. Yet the future direction of the law’s progress was clear. Further, it was the Taft Court that unanimously had started American constitutional law down the long and curvy road toward incorporation of the Bill of Rights, via the 14th Amendment. In 1925 the court initiated this process by holding that the 1st Amendment was binding on the states. Later courts have gone much further, but they built on a foundation constructed by Taft and his colleagues. My studies of Taft and his court have left me with a lingering sense of admiration, although tempered by ambivalence. Decisions such as Village of Euclid v. Ambler Realty Co. and its expansion of federal regulatory authority remain good law. But many more have been wiped away by later courts, and the law student of today more often is probably pointed toward the dissents of Holmes and Brandeis rather than the holdings that inspired them. Nevertheless, as indicated above, the values of legal classicalism that Taft held dear still remain part of the contemporary constitutional zeitgeist. Yet William Howard Taft can be described as a truly great chief justice, one who ranks with John Marshall— not because of his jurisprudence or many of his specific decisions, but rather because of his administrative excellence and intuitive understanding of his court’s current needs and future aspirations. All seven chief justices who succeeded him since 1930 have utilized his administrative innovations, while the numerous visitors to his court still gaze with awe on what his determination accomplished. This is, perhaps, the most fitting legacy for William Howard Taft and his court.

12. Herbert Johnson to author, November 4, 2016.

Bibliography

Manuscripts Mabel Boardman Papers, Manuscript Division, Library of Congress Gustav Karger Papers, Cincinnati Historical Society Helen Taft Manning Papers, Manuscript Division, Library of Congress Henry Pringle Papers, Manuscript Division, Library of Congress Elihu Root Papers, Manuscript Division, Library of Congress Harlan Fiske Stone Papers, Manuscript Division, Library of Congress George Sutherland Papers, Manuscript Division, Library of Congress Charles Taft Papers, Manuscript Division, Library of Congress Robert A. Taft Papers, Manuscript Division, Library of Congress William H. Taft Papers, Manuscript Division, Library of Congress William H. Taft Papers, Cincinnati Historical Society Willis Van Devanter Papers, Manuscript Division, Library of Congress

Books Abraham, Henry J. Justices, Presidents and Senators: A History of the U.S. Supreme Court Ap­ pointments from Washington to Clinton. Lanham: Rowman & Littlefield, 1999. Alschuler, Albert. Law without Values: The Life, Work, and Legacy of Justice Holmes. Chicago: University of Chicago Press, 2000. Benedict, Michael Les. A Compromise of Principle: Congressional Politics and Reconstruction. New York: W. W. Norton, 1974. Bickel, Alexander. The Least Dangerous Branch: The Supreme Court at the Bar of Politics. Indianapolis: Bobbs-Merrill, 1962. ———. The Unpublished Opinions of Mr. Justice Brandeis: The Supreme Court at Work. Chicago: University of Chicago Press, 1957. Bollinger, Lee. The Tolerant Society. New York: Oxford University Press, 1886. Braeman, John, Robert Bremmer, and David Brody, eds. Change and Continuity in Twentieth Century America: The 1920s. Columbus: Ohio State University Press, 1968. Chafee, Zechariah, Jr. Free Speech in the United States. New York: Atheneum, 1969. Cohen, Adam. Imbeciles: The Supreme Court, American Eugenics, and the Sterilization of Carrie Buck. New York: Penguin, 2016. Congressional Record, vol. 66, part 3, 68th Cong., 2nd Sess. Cooper, Phillip. Battles on the Bench: Conflict inside the Supreme Court. Lawrence: University Press of Kansas, 1995.

238

Bibliography

Cushman, Barry. Rethinking the New Deal Court: The Structure of a Constitutional Revolution. New York: Oxford University Press, 1998. Cushman, Clare, ed. The Supreme Court Justices: Illustrated Biographies, 1789–1993. Washington, D.C.: Congressional Quarterly, 1993. Danelski, David. A Supreme Court Justice Is Appointed. New York: Random House, 1964. Freedman, Leon, and Fred Israel, eds. The Justices of the Supreme Court, 1789–1995. New York: Chelsea House, 1995. Goodwin, Doris Kearns. The Bully Pulpit: Theodore Roosevelt, William Howard Taft, and the Golden Age of Journalism. New York: Simon and Schuster, 2013. Gould, Lewis. Chief Executive to Chief Justice: Taft betwixt the White House and Supreme Court. Lawrence: University Press of Kansas, 2014. Gunther, Gerald. Learned Hand: The Man and the Judge. New York: Alfred A. Knopf, 1994. Hall, Kermit. The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press, 1992. Hall, Kermit, and Peter Karsten. The Magic Mirror: Law in American History. 2nd ed. New York: Oxford University Press, 2007. Harbaugh, William. Lawyer’s Lawyer: The Life of John W. Davis. New York: Oxford University Press, 1973. Healy, Thomas. The Great Dissent: How Oliver Wendell Holmes Changed His Mind—and Changed the History of Free Speech in America. New York: Picador, 2013. Hoffer, Peter Charles, Williamjames Hull, and N. E. H. Hull. The Supreme Cut: An Essential History. Lawrence: University Press of Kansas, 2007. Hofstadter, Richard. The Age of Reform: From Bryan to F.D.R. New York: Alfred A. Knopf, 1955. Horowitz, Morton. The Transformation of American Law 1870–1960: The Crisis of Legal Ortho­ doxy. New York: Oxford University Press, 1992. Howe, Mark DeWolfe, ed. Holmes­Laski Letters: The Correspondence of Mr. Justice Holmes and Harold J. Laski, 1916–1935. 2 vols. New York: Atheneum, 1963. Knox, John. The Forgotten Memoir of John Knox. Edited by Dennis Hutchinson and David Garrow. Chicago: University of Chicago Press, 2002. Kurland, Philip, ed. Felix Frankfurter on the Supreme Court: Extrajudicial Essays on the Court and the Constitution. Cambridge, Mass.: Belknap Press of Harvard University Press, 1970. Kurland, Philip, and Gerhard Casper. Landmark Briefs and Arguments of the Supreme Court of the United States. Arlington, Va.: University Publications of America, 1975. Lendler, Marc. Gitlow v. New York: Every Idea an Incitement. Lawrence: University Press of Kansas, 2012. Link, Arthur. Woodrow Wilson: The New Freedom. Princeton, N.J.: Princeton University Press, 1956. Lombardo, Paul. Three Generations, No Imbeciles: Eugenics, the Supreme Court, and Buck v. Bell. Baltimore: Johns Hopkins University Press, 2008. Lurie, Jonathan. William Howard Taft: The Travails of a Progressive Conservative. New York: Cambridge University Press, 2012. Magliocca, Gerard. American Founding Son: John Bingham and the Invention of the Fourteenth Amendment. New York: New York University Press, 2013. Mason, Alpheus Thomas. Brandeis: A Free Man’s Life. New York: Viking, 1946. ———. Harlan Fiske Stone: Pillar of the Law. New York: Viking, 1956. ———. William Howard Taft: Chief Justice. New York: Simon and Schuster, 1964. McCraw, Thomas. Prophets of Regulation. Cambridge, Mass.: Harvard University Press, 1984.

Bibliography

239

Nourse, Victoria F. In Reckless Hands: Skinner v. Oklahoma and the Near Triumph of American Eugenics. New York: W. W. Norton, 2008. Parrish, Michael. Anxious Decades: America in Prosperity and Depression, 1920–1941. New York: W. W. Norton, 1992. Paschal, Joel F. Mr. Justice Sutherland: A Man against the State. New York: Greenwood, 1969. Peabody, James, ed. Homes­Einstein Letters. New York: St. Martin’s, 1964. Pennick, James, Jr. Progressive Politics and Conservation: The Ballinger­Pinchot Affair. Chicago: University of Chicago Press, 1968. Polenberg, Richard. Fighting Faiths: The Abrams Case, the Supreme Court, and Free Speech. New York: Penguin Books, 1987. Pratt, Walter F., Jr. The Supreme Court under Edward Douglass White, 1910–1921. Columbia: University of South Carolina Press, 1999. Pringle, Henry. The Life and Times of William Howard Taft. 2 vols. New York: Holt, Rinehart, and Winston, 1939. Rabban, David. Free Speech in Its Forgotten Years. New York: Cambridge University Press, 1997. Renstrom, Peter. The Taft Court: Justices, Rulings and Legacy. Santa Barbara, Calif.: ABCClio, 2003. Ross, Ishbel. The Tafts, 1678–1964: An American Family. Cleveland: World, 1964. Ross, William. The Chief Justiceship of Charles Evans Hughes, 1930–1941. Columbia: University of South Carolina Press, 2007. ———. Forging New Freedoms: Nativism, Education and the Constitution, 1917–1927. Lincoln: University of Nebraska Press, 1994. ———. A Muted Fury: Populists, Progressives, and Labor Unions Confront the Courts, 1890– 1937. Princeton, N.J.: Princeton University Press, 1994. Saker-Woeste, Victoria. The Farmer’s Benevolent Trust: Law and Agricultural Cooperation in Industrial America, 1865–1945. Chapel Hill: University of North Carolina Press, 1998. ———. Henry Ford’s War on the Jews and the Legal Battle against Hate Speech. Stanford, Calif.: Stanford University Press, 2012. Schlesinger, Arthur M., Jr. The Crisis of the Old Order, 1919–1933. Boston: Houghton Mifflin, 1957. Semonche, John. Charting the Future: The Supreme Court Responds to a Changing Society, 1890–1920. Westport: Greenwood, 1978. Skowronek, Stephen. Building a New American State: The Expansion of National Administrative Capacities 1877–1920. New York: Cambridge University Press, 1982. Strum, Philippa. Louis D. Brandeis: Justice for the People. Cambridge, Mass.: Harvard University Press, 1984. ———. Speaking Freely: Whitney v. California and American Free Speech. Lawrence: University Press of Kansas, 2015. Sullivan, Kathleen, and Gerald Gunther, eds. Constitutional Law. 15th ed. New York: Foundation, 2004. Urofsky, Melvin I. Louis D. Brandeis: A Life. New York: Pantheon Books, 2009. ———. The Supreme Court Justices: A Biographical Dictionary. New York: Garland, 1994. Vile, M. J. C. Constitutionalism and the Separation of Powers. Oxford: Oxford University Press, 1967. Ward, Artemus. Deciding to Leave: The Politics of Retirement from the United States Supreme Court. Albany: State University of New York Press, 2003. White, G. Edward. The American Judicial Tradition: Profiles of Leading American Judges. New York: Oxford University Press, 1988.

240

Bibliography

———. Intervention and Detachment: Essays in Legal History and Jurisprudence. New York: Oxford University Press, 1994. ———. Justice Oliver Wendell Holmes: Law and the Inner Self. New York: Oxford University Press, 1993. Wiebe, Robert. The Search for Order. New York: Hill and Wang, 1967. Wiecek, William. Liberty under Law: The Supreme Court in American Life. Baltimore: Johns Hopkins University Press, 1988. ———. The Lost World of Classical Legal Thought: Law and Ideology in America, 1886–1937. New York: Oxford University Press, 1998. Wolf, Michael Allan. The Zoning of America: Euclid v. Ambler: Lawrence: University Press of Kansas, 2008.

Articles Belknap, Michal. “Mr. Justice Pitney and Progressivism.” Seton Hall Law Review 16 (1986): 381–425. Collins, Ronald, and David Skover. “Curious Concurrence: Justice Brandeis’s Vote in Whitney v. California.” Supreme Court Review, 2005, ed. Dennis Hutchinson, David Strauss, and Geoffrey Stone. Chicago: University of Chicago Press (2006): 333–87. Cushman, Clare. “Beyond Knox: James C. McReynolds’s Other Law Clerks, 1914–1941.” Journal of Supreme Court History 41 (2016): 147–75. Frankfurter, Felix, and James Landis. “The Business of the Supreme Court of the United States—a Study in the Federal Judicial System.” Harvard Law Review 40 (1927): 431–68. Freund, Paul. “Mr. Justice Brandeis: A Centennial Memoir.” Harvard Law Review 70 (1957): 769–92. Goldberger, Paul. “Cass Gilbert: Remembering the Turn-of-the-Century Visionary.” Archi­ tectural Digest 58 (2001): 106–12. Hartnett, Edward. “Questioning Certiorari: Some Reflections Seventy-Five Years after the Judges’ Bill.” Columbia Law Review 100 (2000): 1643–738. Hearing. “Jurisdiction of Circuit Courts of Appeals and of the Supreme Court of the United States.” U.S. Congress, House, Committee on the Judiciary, 68th Cong., 2nd Sess., 1924. ———. “Jurisdiction of Circuit Courts of Appeals and United States Supreme Court.” U.S. Congress, House, Committee on the Judiciary, 67th Cong., 2nd Sess., 1922. ———. “Procedure in Federal Courts.” U.S. Congress, Senate, Judiciary Committee, 68th Cong., 1st Sess., 1924. Lurie, Jonathan. “Chief Justice Taft and Dissents: Down with the Brandeis Briefs.” Journal of Supreme Court History 37 (2007): 177–89. ———. “Mr. Justice Bradley: A Reassessment.” Seton Hall Law Review 16 (1986): 342–75. Post, Robert. “Judicial Management and Judicial Disinterest: The Achievements and Perils of Chief Justice Taft.” Undated draft in possession of the author, kindness of Professor Post. ———. “The Supreme Court Opinion as an Institutional Practice: Dissent, Legal Scholarship, and Decision Making in the Taft Court.” Minnesota Law Review 85 (2001): 1267– 390. Report. “Appellate Jurisdiction of Federal Courts.” U.S. Congress. Senate, Judiciary Com­ mittee, 68th Cong., 1st Sess., 1924. Rhee, Jeannie. “In Black and White: Chinese in the Mississippi Delta.” Journal of Supreme Court History 19 (1994): 117–32.

Bibliography

241

Snyder, Brad. “The House That Built Holmes.” Law and History Review 30 (2012): 661– 721. Stras, David. “Pierce Butler: A Superb Technician.” Vanderbilt Law Review 62 (2009): 695– 756. Thomas, Kendall. “Rouge et Noire Reread: A Popular Constitutional History of the Angelo Herndon Case.” Southern California Law Review 65 (1992): 2599–704. Urofsky, Melvin, “The Brandeis-Frankfurter Conversations.” Supreme Court Review, 1985 (1986): 299–339. ———. “The Taft Court, 1921–1930: Groping for Modernity.” In Christopher Tomlins, ed., The United States Supreme Court. Boston: Houghton Mifflin, 2005, 199–202. White, G. Edward. “The Lost Episode of Gong Lum v. Rice.” Greenbag 18 (2015): 191–205. Yarborough, Thomas. “Cass Gilbert’s Marble of Justice: Designing for the Supreme Court’s Building and Image.” Supreme Court Historical Society Quarterly 35 (2013): 4, 5–8.

Index of Cases

Amos v. United States, 255 U.S. 313 (1921) Abrams v. United States, 250 U.S. 616 (1919) Addyston Pipe and Steel Co., 175 U.S. 211 (1899) Adkins v. Children’s Hospital, 261 U.S. 525 (1923) American Steel Foundries v. Tri­City Central Trades Council, 257 U.S. 184 (1921) Ancient Egyptian Arabic of Nobles of the Mystic Shrine v. Michaux, 279 U.S. 737 (1929) Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936) Asakura v. City of Seattle, 265 U.S. 332 (1924) Atherton Mills v. Johnson, 259 U.S. 13 (1922) Bailey v. Drexel Furniture, 259 U.S. 20 (1922) Bakelite Corp., Ex Parte, 279 U.S. 438 (1929) Baldwin v. Missouri, 281 U.S. 586 (1930) Balzac v. Puerto Rico, 258 U.S. 298 (1923) Bartels v. Iowa, 262 U.S. 404 (1923) Bedford Cut Stone Co. v. Journeyman Cutters’ Ass’n, 274 U.S. 37 (1927) Beery v. Houghton, 273 U.S. 671 (1927) Biddle v. Perovich, 274 U.S. 480 (1927) Black and White Taxicab Co. v. Brown and Yellow Taxicab Co., 276 U.S. 518 (1928) Blodgett v. Holden, 275 U.S. 142 (1928) Board of Trade v. Olsen, 262 U.S. 1 (1923) Boyd v. United States, 116 U.S. 616 (1886) Brandenburg v. Ohio, 395 U.S. 444 (1969) Bryant v. Zimmerman, 278 U.S. 65 (1928)

Buck v. Bell, 274 U.S. 200 (1927) Bunting v. Oregon, 243 U.S. 426 (1917) Burdick v. United States, 236 U.S. 79 (1915) Byars v. United States, 273 U.S. 28 (1927) Carroll v. United States, 267 U.S. 132 (1925) Casey v. United States, 276 U.S. 413 (1928) Champion v. Amer, 188 U.S. 321 (1903) Charles Wolff Packing Co. v. Court of Indus­ trial Relations, 262 U.S. 522 (1923) Chastleton Corp. v. Sinclair, 264 U.S. 543 (1924) Cline v. Frink Dairy Co., 274 U.S. 445 (1927) Connolly v. Union Pipe Co., 184 U.S. 540 (1902) Cook v. United States, 267 U.S. 517 (1925) Coppage v. Kansas, 236 U.S. 1 (1915) Coronado Coal Co. v. United Mine Workers, 268 U.S. 295 (1925) Corrigan v. Buckley, 271 U.S. 323 (1926) Cudahy Packing Co. v. Parramore, 263 U.S. 418 (1923) Di Santo v. Pennsylvania, 273 U.S. 34 (1927) Duplex Printing Co. v. Deering, 254 U.S. 443 (1921) Euclid, Village of, v. Ambler Realty Co., 272 U.S. 365 (1926) Ex Parte Grossman, 267 U.S. 80 (1925) Fairchild v. Hughes, 258 U.S. 126 (1922) Fairmont Creamery Co. v. Minnesota, 274 U.S. 1 (1927) Farrington v. Tokushige, 273 U.S. 284 (1927)

244

Index of Cases

Federal Trade Commission v. Western Meat Co., 272 U.S. 554 (1926) First National Bank v. Missouri, 263 U.S. 640 (1924) Fiske v. Kansas, 274 U.S. 380 (1927) Frank v. Magnum, 237 U.S. 309 (1915) Frothingham v. Mellon, 262 U.S. 447 (1923) Gambino v. United States, 275 U.S. 310 (1927) Gilbert v. Minnesota, 254 U.S. 325 (1920) Gilchrist v. Interborough Rapid Transit Co., 279 U.S. 159 (1929) Gitlow v. New York, 268 U.S. 652 (1925) Glidden Co. v. Zdanok, 370 U.S. 530 (1962) Gong Lum v. Rice, 275 U.S. 78 (1927) Gorieb v. Fox, 274 U.S. 603 (1927) Graves v. Minnesota, 272 U.S. 425 (1928) Hammer v. Dagenhart, 247 U.S. 251 (1918) Hammond v. Schappi Bus Line, 273 U.S. 164 (1927) Hester v. United States, 265 U.S. 57 (1924) Hill v. Wallace, 259 U.S. 44 (1922) Hipolite Egg Co. v. United States, 220 U.S. 45 (1911) Hoke v. United States, 227 U.S. 308 (1913) Hopt v. Utah, 110 U.S. 574 (1884) Hudson v. United States, 272 U.S. 451 (1926) Humphrey’s Executor v. United States, 295 U.S. 602 (1935) Jacobson v. Massachusetts, 197 U.S. 11 (1905) James Everard Breweries v. Day, 265 U.S. 545 (1924) Jay Burns Baking Co. v Bryan, 264 U.S. 504 (1924) Katz v. United States, 386 U.S. 954 (1967) Kelley v. Oregon, 273 U.S. 589 (1927) Lambert v. Yellowley, 272 U.S. 581 (1926) Leser v. Garnett, 258 U.S. 130 (1922) Liberty Warehouse v. Burley Tobacco Growers’ Co­operative Marketing Association, 275 U.S. 71 (1928) Lochner v. New York, 198 U.S. 45 (1905) Louisville Gas and Electric Co. v. Coleman, 277 U.S. 32 (1928) Maple Flooring Manufacturers Ass’n v. United States, 268 U.S. 563 (1925)

Marron v. United v States, 275 U.S. 192 (1927) Massachusetts v. Mellon, 262 U.S. 447 (1923) McCarthy v. Arndstein, 266 U.S. 34 (1924) McGrain v. Daugherty, 273 U.S. 135 (1927) Meyer v. Nebraska, 262 U.S. 390 (1923) Missouri ex rel. Barrett v. Kansas Natural Gas Co., 265 U.S. 298 (1924) Missouri ex rel. Southwestern Bell Telephone Co. v. Public Service Co., 262 U.S. 287 (1923) Missouri Pacific Railroad Co. v. Aeby, 275 U.S. 426 (1927) Moore v. Dempsey, 261 U.S. 86 (1923) Muller v. Oregon, 208 U.S. 412 (1908) Munn v. Illinois, 94 U.S. 113 (1876) Myers v. United States, 272 U.S. 52 (1926) Nectow v. City of Cambridge, 277 U.S. 183 (1928) New York Central Railroad v. United States, 265 U.S. 41 (1924) New York ex rel. Bryant v. Zimmerman, 278 U.S. 63 (1928) Nixon v. Herndon, 273 U.S. 536 (1927) Okanogan et al. Indian Tribes v. United States, 279 U.S. 655 (1929) Olmstead v. United States, 277 U.S. 438 (1928) Ozawa v. United States, 260 U.S. 178 (1922) Pierce v. Society of Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510 (1925) Pocket Veto Case, 279 U.S. 655 (1929) Powell v. Pennsylvania, 127 U.S. 678 (1888) Power Manufacturing Co. v. Saunders, 274 U.S. 490 (1927) Radice v. New York, 264 U.S. 293 (1924) Ribnik v. McBride, 277 U.S. 350 (1928) Rosevale Realty Co. v. Kleinert, 268 U.S. 646 (1925) Ruthenberg v. Michigan, 273 U.S. 782 (1927) Samuels v. McCurdy, 267 U.S. 188 (1925) Schenck v. United States, 249 U.S. 47 (1919) Senn v. Tile Layers Protective Union, 301 U.S. 468 (1937) Silver­Thorne Lumber Co. v. United States, 251 U.S. 385 (1920)

Index of Cases Sinking Fund Cases, 99 U.S. 700 (1878) Skinner v. Oklahoma, 316 U.S. 535 (1942) Smyth v. Ames, 169 U.S. 446 (1898) Sonneborn Bros. v. Cureton, 262 U.S. 506 (1923) Stafford v. Wallace, 258 U.S. 495 (1922) St. Louis and O’Fallon Railway Co. v. United States, 279 U.S. 461 (1929) Swift and Co. v. United States, 196 U.S. 375 (1905) Swift v. Tyson, 41 U.S. 1 (1842) Toyota v. United States, 268 U.S. 402 (1925) Truax v. Corrigan, 257 U.S. 312 (1921) Tumey v. Ohio, 273 U.S. 510 (1927) Tyson and Brother v. Banton, 273 U.S. 418 (1927) United Leather Workers International Union v. Herkert and Meisel Trunk Co., 265 U.S. 457 (1924) United Mine Workers v. Coronado Coal Co., 259 U.S. 344 (1922) United States v. Alford, 274 U.S. 264 (1927) United States v. Berkeness, 275 U.S. 149 (1927) United States v. Berwind­White Coal Mining Co., 274 U.S. 564 (1927)

245

United States v. E.C. Knight, 156 U.S. 1 (1895) United States v. Jin Fuey Moy, 241 U.S. 394 (1916) United States v. Schwimmer, 279 U.S. 644 (1929) United States v. Southern Pacific Co., 259 U.S. 214 (1922) United States v. Sullivan, 274 U.S. 259 (1927) Van Oster v. Kansas, 272 U.S. 465 (1926) Weedin v. Chin Bow, 274 U.S. 657 (1927) Weeks v. United States, 232 U.S. 383 (1914) Weems v. United States, 217 U.S. 349 (1910) West Coast Hotel v. Parrish, 300 U.S. 379 (1937) Whitney v. California, 274 U.S. 357 (1927) Williams v. Standard Oil Co., 278 U.S. 235 (1929) Wilson v. New, 243 U.S. 332 (1917) Wisconsin v. Illinois, 278 U.S. 367 (1929); 281. U.S. 179 (1930) Yankton Sioux Tribe v. United States, 272 U.S. 351 (1926) Ziang Sung Wan v. United States, 266 U.S. 1 (1924)

Subject Index

Abrams v. United States (1919), 18, 52, 232 Adams, John, 13, 14 Adams, John Quincy, 1 Addams, Jane, 13n39 Addyston Pipe and Steel Col v. United States (1899), 9n25 Adee, Alvey, 10 Adkins v. Children’s Hospital (1923), 6, 96, 98, 147, 150, 162, 166 Alaska, 73, 80, 189 Allen, Henry, 52 American Bar Association (ABA), 77, 88–89 American Law Institute (ALI), 61 American Steel Foundries v. Tri-City Central Trades Council (1921), 22–23, 25–27, 28, 30 Ancient Egyptian Arabic Order of Nobles of the Mystic Shrine v. Michaux (1929), 224–25 antitrust law, 6, 9, 10, 15, 31, 36–37, 72–73n22, 105, 173–74 Arizona, 27 Asakura v. City of Seattle (1924), 102–3 Atherton Mills v. Johnston (1922), 33 Bailey v. Drexel Furniture (1922), 32, 33–34, 35 Bakelite Corp. Ex Parte (1929), 216–17 Baker, Newton, 128–29 Ballinger, Richard, 121 Balzac v. Puerto Rico (1922), 58–59 Bartels v. Iowa (1923), 52n36 Beck, James, 71, 73–76, 119–20, 123 Bedford Cut Stone Co. v. Journeymen Stone Cutters’ Ass’n (1927), 159–62

Beery v. Houghton (1927), 133 Belmont, Eleanor, 184 Berkeness, Ole, 189 Bettman, Alfred, 127n40 Bickel, Alexander, 14, 33, 34, 102n50 Biddle v. Perovich (1927), 174–75 Bingham Co-Operative Marketing Act (1922), 193–94 Black and White Taxicab Co. v. Brown and Yellow Taxicab Co. (1928), 201 Blanton, Thomas, 85 Boardman, Mabel, 20 Bow, Chin, 179–80 Bradley, Joseph, 145n16 Brandegee, Frank, 20 Brandeis, Louis D., xi, 5, 10, 11, 13, 21, 36, 42, 148, 149, 186; advanced age of, 209, 211, 212; administrative law jurisprudence of, 218–19; as attorney general candidate, 14, 15; Buck v. Bell and, 153; criminal law jurisprudence of, 113–14, 195, 198, 199; dissents by, 23–24, 29, 93–94, 107–8, 112, 122, 125–26, 140, 145–46, 161–62, 166, 169–70, 185, 195–96, 201–2, 208–9, 218–19, 232; Euclid and, 130; finality valued by, 34; free speech jurisprudence of, 51, 112, 169–72; insufficient records criticized by, 187–88; Judges’ Bill and, 78n37; judicial philosophy of, 16, 24, 29, 32, 177, 178, 187; labor law jurisprudence of, 17, 27, 29–33, 53, 159, 161–62; living constitution embraced by, 206; presidential power opinion of, 125–26; privacy right recognized by,

248

Subject Index

Brandeis, Louis D., (continued) 199–200, 232; progressivism of, 16–17, 30, 46–47, 230; Prohibition cases and, 38, 138–39, 191–92; recusal by, 59n70; restatements of law mistrusted by, 61; Stone’s frictions with, 93; Supreme Court building project and, 181; Sutherland disdained by, 44; Taft’s view of, 162–63, 165, 200; Taft viewed by, 62, 232; unanimous opinions joined by, 96–97; vice presidential nomination declined by, 81–82n50; women’s suffrage challenge dismissed by, 38 Bryan, Charles, 81–82n50 Bryan, William Jennings, 82–82n50 Bryant v. Zimmerman (1928), 210 Buck, Carrie, 152–53 Buck v. Bell (1927), 152–55 Bunting v. Oregon (1917), 6, 60 Burdick v. United States (1915), 175 Butler, Nicholas Murray, 55n54 Butler, Pierce, 122, 186, 220–21; Buck v. Bell and, 154; conservatism of, 96, 101–2, 103, 107–8, 116–17, 139, 145, 185, 192, 203, 230; Euclid and, 130; nomination of, 48–49; Prohibition cases and, 100, 101–2, 138, 190–91; Taft’s view of, 140 Byars v. United States (1927), 144–45 California Criminal Syndicalism Act (1919), 168–73 Calumet Motor Coach Company, 187 Canal Zone, 80 canons of construction, 55n53 Cardozo, Benjamin, 30n45, 47 Carroll v. United States (1925), 99–100 Casey v. United States (1928), 194–96 Central Pacific Railway Company, 36–37 certiorari, writ of, 71–75, 78–80, 82, 84–87 Champion v. Ames (1903), 11 Charles Wolff Packing Co. v. Court of Industrial Relations (1923), 52, 53 Charles Wolff Packing Co. v. Court of Industrial Relations (1925), 106 Chase, Salmon, 14, 17 Chicago Board of Trade, 34–35, 57

child labor, 10–11, 32–33, 35 Child Labor Tax Act (1919), 33 citizenship, 55, 103n57, 179–80, 219–20 Clarke, John H., 5, 11, 13, 21, 23–24, 34; progressivism of, 17–18; retirement of, 39–41, 43, 44, 128 “classical legal thought,” 6, 31, 50–51, 98, 209; decline of, 231; federalism and, 97; fissures in, 96, 117, 127, 134–36, 145– 46, 176–77; Holmes’s attack on, 148; persistence of, 149, 165–66, 192, 206–7, 213, 229, 231; tenets of, 59, 96, 178 Clayton Act (1914), 24–26, 139–40, 162 clear and present danger doctrine, 170–72 coal mining, 30–32, 34, 104, 105–6, 158, 159, 177–78 Cohen, Adam, 153–54 commerce clause, 6–8, 10–11, 32, 34–35, 57, 102, 188 Common Law, The (Holmes), 8 communism, 167–68 Coolidge, Calvin, 85, 89, 114, 142, 210, 234; Daugherty dismissed by, 50, 77n36, 93; Judges’ Bill and, 77, 83; judicial appointments of, 70n14, 90, 92–93, 94; legal career of, 50; pocket veto by, 221–22; as presidential candidate, 47n20, 81, 95 Copeland, Samuel, 85–86n66, 86–88 Coronado Coal Co., 30–32, 34, 104, 105–6, 158, 159 Coronado Coal Co. v. United Mine Workers of America (1925), 105–6 court packing, 230 Cudahy Packing Co. v. Parramore (1923), 103–4 Cummins, Albert, 69, 71, 77–81, 85–86 Danelski, David, 49 Dartmouth College v. Woodward (1819), 75 Daugherty, Harry, 45–46, 50, 77n36, 93, 141, 142 Daugherty, Mally, 141–44 Davis, John W., 47, 81, 95, 111n87, 213 Day, William R., 5, 10–11, 12, 21, 31–32, 40; antitrust jurisprudence of, 36; retirement of, 39, 44, 46, 48, 68, 73n25

Subject Index District of Columbia, 80 Dougherty, Harry, 21 Douglas, William O., 154 due process, 18, 97, 134, 157–58, 210, 235 Duplex Printing Co. v. Deering (1921), 23–24, 160, 161–62 Eighteenth Amendment, 97, 138 entrapment, 194–95 equal protection, 151, 155, 193–94, 201, 210 Espionage Act (1917), 9 Euclid v. Ambler (1926), 127–35, 137, 235 eugenics, 152–53 Ex Parte Grossman (1925), 114–16 Fairchild v. Hughes (1922), 37–38 Fairmont Creamery v. Minnesota (1927), 165–66 Farrington v. Tokushige (1927), 149–50 Federal Employers Liability Act (1908), 12, 192 federalism, 54, 108–16 federal jurisdiction, 32, 33, 69, 117, 201 Federal Revenue Act (1924), 186 Federal Trade Commission (FTC), 139 Federal Trade Commission v. Western Meat Co. (1926), 139–40 Field, Stephen, 5, 167 Fifteenth Amendment, 38, 150 Fifth Amendment, 98, 113–14, 150, 166–67, 186, 190, 191, 197 First Amendment, 9, 18, 51, 58, 111–12, 150, 167–73; incorporation of, 117, 167, 235 First National Bank v. Missouri (1924), 109–10 Ford, Henry, 192–93n28 formalism, 49, 59, 231 Fourteenth Amendment, 45, 102, 103, 134, 137, 149, 157, 229; in business cases, 176, 193; in civil rights cases, 155; in free speech cases, 169; incorporation through, 110, 111–12, 117, 145, 167, 235; in labor cases, 28–29, 31, 104; liberty interest in, 50–51, 235; territories excluded from, 150

249

Fourth Amendment, 98, 99–101, 144–45, 190, 191, 197, 198–99, 232 Frank, Leo, 54 Frankfurter, Felix, 29, 49, 51, 53, 64, 68n4, 70, 85, 96 Frank v. Magnum (1915), 54 freedom of assembly, 170–71 freedom of contract, xi, 59–60, 206 freedom of religion, 111 freedom of speech, 9, 18, 51, 58, 111–12, 150, 167–73 freedom of the press, 111–12 Frothingham, Harriet, 56–57 Frothingham v. Mellon (1923), 56–57 Fuller, Melville, 4 Futures Trading Act (1921), 57 Gambino v. United States (1927), 191–92 Gibbons v. Ogden (1824), 75 Gilbert, Cass, 182–85, 234 Gilchrist v. Interborough Transit Co. (1929), 215–16 Gitlow, Benjamin, 111, 167 Gitlow v. New York (1925), 60–61n75, 111–13, 150, 167, 169–70, 232 Goldberger, Paul, 183 Gong Lum v. Rice (1927), 154–55 Goodwin, Doris Kearns, 65 Gorieb v. Fox (1927), 133 Graham, George S., 88 Grain Futures Act (1922), 57 Graves v. Minnesota (1926), 134–35 Gray, Horace, 8 Great Depression, 230 Grossman, Philip, 114–15 habeas corpus, 53–54, 114, 142–44 Hamm, Richard, 6 Hammer v. Dagenhart (1918), 10–11, 31, 32–34, 35 Hammond v. Schappi Bus Line (1927), 187–88 Hand, Augustus, 70 Hand, Learned, 46–47, 65, 69–70 Hanna, Mark, 17 Harding, Warren G., 2, 5, 92, 110; judicial appointments of, 20–21, 39, 41–50, 60, 69

250

Subject Index

Harris, William, 66 Harrison, Benjamin, 2 Hartnett, Edward, 68n7 Hawaii, 73, 80, 149–50 Heflin, James, 87–88 Herkert and Meisel Trunk Company, 104 Herndon, Lawrence, 150–51 Hester v. United States (1924), 97–98 Hill v. Wallace (1922), 34–35 Hipolite Egg Co. v. United States (1911), 6, 11 Hoke v. United States (1913), 7, 11 Holmes, Fanny, 219–20 Holmes, Oliver Wendell, xi, 5, 10, 42, 91, 94, 145, 149, 159, 178; advanced age of, 209, 211, 212; antitrust jurisprudence of, 9; constitutional questions avoided by, 186–87; criminal law jurisprudence of, 53–54, 194–95, 198; dissents by, 8–9, 11, 18, 23–24, 34, 50, 59–60, 112, 122, 123, 125, 146, 148, 166, 167, 176, 185, 198, 201–2, 208–9, 219–20, 232; equal protection jurisprudence of, 152–53; Euclid and, 130; finality valued by, 34; free speech jurisprudence of, 9, 18, 51–52, 112, 169–70, 219–21; iconic status of, 8, 11; lake diversion case opinion of, 228–29; pardon power opinion of, 174–75; patrician background of, 8, 152; progressivism of, 50, 230; Prohibition cases and, 98, 138, 194–95; retirement of, 182; state law deferred to by, 51, 152, 176, 201–2; statutory construction viewed by, 186; Supreme Court building project and, 181; Taft’s view of, 165, 174; Taft viewed by, 19–20, 28, 36; unanimous opinions joined by, 96; writing style of, 9, 93, 122, 157, 167, 232 Holmes, Oliver Wendell, Sr., 8 Hoover, Herbert, 11–12n34, 50, 92, 210–12 Hudson v. United States (1926), 137 Hughes, Charles Evans, 11, 13, 61, 179, 212n20; as chief justice, 38, 228n81, 230; as chief justice candidate, 4, 19, 21n10; as presidential candidate, 17; as special master, 225–26, 228

incorporation doctrine, 110, 111–12, 117, 145, 167, 235 Industrial Workers of the World (IWW), 168, 173 injunctions, 23–25, 28, 29–30 Insular Cases (1901–4), 58 Interstate Commerce Commission (ICC), 177–79, 217–18 Jackson, Andrew, 14 Jackson, Robert H., 12n36 Jacobson v. Massachusetts (1905), 153 James Everard’s Breweries v. Day (1924), 98–99, 138–39 Jay, John, 4 Jay Burns Baking Co. v. Bryan (1924), 106–7 Jefferson, Thomas, 82 Johnson, Andrew, 1, 118, 121, 124 Johnson, Herbert, 18, 235 Johnson, Hiram, 126n34 Journeymen’s Union, 158–59 Judges’ Bill (1925), 68–89, 117, 157, 180, 234 Judiciary Act (1789), 201 jury trials, 58 justiciability, 38 Karger, Gus, 89–90 Keating-Owen Act (1916), 10–11 Kelley, Ellsworth, 157–58 Kelley v. Oregon (1927), 157–58 Knox, John, 15n48 Ku Klux Klan (KKK), 81, 110, 210, 224 labor law, 2, 13, 23–30, 103–5, 158–59 laches, 224 La Follette, Robert, 81, 88, 95 Lamar, Joseph R., 16 Lambert, Samuel, 138 Landis, James M., 64, 68n4, 70, 85 Langdell, Christopher Columbus, 16 Laski, Harold, 36, 52n36, 152, 175, 219 League of Nations, 1, 39, 49 legal realism, 59 Lendler, Marc, 111 Leser v. Garnett (1922), 38

Subject Index Liberty Warehouse v. Burley Tobacco Growers’ Cooperative Marketing Association (1928), 192–93 Lincoln, Abraham, 14, 221 Lochner v. New York (1905), 6, 51, 60, 148, 150 Lodge, Henry Cabot, 8 Lurton, Horace, 13 lynching, 168 Madison, James, 221 Mann Act (“White-Slave Traffic Act”; 1910), 7–8 Manton, Martin, 48 Marron, Joseph, 190 Marron v. United States (1927), 190–91 Marshall, John, 1, 3, 13, 14, 235 Marshall, Louis, 151 Mason, Alpheus T., 23, 213 Massachusetts v. Mellon (1923), 56 Maternity Act (1921), 56 McAdoo, William, 81–82n50 McClennen, Edward F., 36 McGrain v. Daugherty (1927), 144 McKenna, Joseph, 12, 20, 21, 34, 175; as attorney general, 5; commerce clause jurisprudence of, 6–8, 11; inconsistent rulings of, 6, 8, 10, 11; living constitution embraced by, 198–99; mental and physical decline of, 91; retirement of, 92, 93 McKinley, William, 5, 10, 17 McLean, John, 14 McReynolds, James C., 5, 17, 36, 68, 186, 215–18; agricultural cooperative marketing associations upheld by, 192–94; antitrust enforcement viewed by, 15, 139–40; as attorney general, 69; boorishness of, 14–15, 46n16, 84n59; conservatism of, 14–15, 40, 44, 46, 50–51, 96, 101, 110, 166, 185, 203, 230; Euclid and, 130; Judges’ Bill and, 77, 80, 83, 87; liberal bloc disparaged by, 160–61n80; personal liberty doctrines articulated by, 235; presidential power opinion of, 122, 125; Prohibition cases and, 100–101, 107, 138, 189; property rights stressed by, 111, 150, 178–79;

251

racism and anti-Semitism of, 53–54, 110n85, 192–93n28; regulatory state mistrusted by, 140n86, 176; Supreme Court building project and, 181; Taft’s view of, 14, 84n59, 100, 101n47, 122–23, 126, 140 meatpacking industry, 35–36 Mellon, Andrew, 183–84 Metzenbaum, James, 128–29, 131 Meyer, Robert, 50–51 Meyer v. Nebraska (1923), 50–52, 110–11, 149 Miller, Samuel, 17 minimum wage, 59–60 Missouri ex rel. Barrett v. Kansas Natural Gas Co. (1924), 102 Missouri Pacific Railroad Co. v. Aeby (1927), 192 Mitchell, William, 211, 222–23 Montague, Andrew, 84 Moore v. Dempsey (1923), 53–54 mootness, 33 Muller v. Oregon (1908), 6, 16 Munn v. Illinois (1876), 57, 147 Murphy, Frank, 168 Myers, Frank, 119, 123 Myers, Lois, 119 Myers v. United States (1926), 116, 118–26 NAACP, 151 National Prohibition Act (1919), 189, 196 Native Americans, 91n64, 135–36, 221–23 New York Central Railroad v. United States (1924), 103n58 Nineteenth Amendment, 37–38, 42 Nixon v. Herndon (1927), 150–51 nolo contendere pleas, 137 Norris, George, 63, 88 Okanogan et al. Indian Tribes v. United States (1929), 221–23 Olmstead v. United States (1928), 196–200, 202, 232 originalism, 231 Overman, Lee, 63n81 Ozawa v. United States (1922), 54–55 pardon power, 114–16, 174–75

252

Subject Index

Pepper, George Wharton, 119, 120–21, 124–25 Perovich, Vuco, 174–75 Philippines, 2, 10, 57, 73, 80 picketing, 22–28 Pierce v. Society of Sisters of the Holy Names of Jesus and Mary (1925), 110–11, 149 Pinchot, Gifford, 121–22 Pitney, Mahlon, 61; early career of, 5, 17; labor and unions viewed by, 12–13, 24, 25, 26; retirement of, 39, 44, 49 pocket veto, 221–23 police power, 10, 18, 29, 127, 128, 132 Post, Robert, 66, 209 Pound, Roscoe, 213 Powell, Thomas Reed, 13 Power Manufacturing Co. v. Saunders (1927), 176 preemption, 137 Pringle, Henry, 68 progressivism, xi, 10, 69, 177 Prohibition: contentiousness of, 81, 97, 101, 138; docket expanded by, 37, 68, 166; federal authority affirmed during, 97–100, 102, 114; ratification of, 97; repeal of, 39n83; search and seizure during, 99, 144–45, 189–92, 196–200; state law and, 101, 137–38; Taft’s commitment to, 156–57; technology and, 196 property rights, xi, 6, 45, 111, 150, 166, 206 prostitution, 7 Puerto Rico, 58–59, 73, 80 Pure Food and Drug Act (1906), 6 Radice v. New York (1924), 96–97 railroads: anticompetitive mergers by, 36–37; coal consumption by, 177; labor force of, 17, 42, 52, 104; rate setting by, 217–18 Reed, James, 87 removal power, 118–26, 227 Ribnik v. McBride (1928), 203–6 Richberg, Donald, 218 Robbins, Henry, 34–35 Roberts, Owen J., 230 Roosevelt, Franklin D., 72n20, 82, 230

Roosevelt, Theodore, 15, 42, 52, 233; Hand’s support for, 69; Holmes’s frictions with, 2; judicial appointments of, 8, 12, 20n7; presidential ambitions of, 4 Root, Elihu, 44, 48, 49, 61, 97, 212–13 Ross, William, 46n14, 67n3, 95, 110 Ruthenberg, Charles, 169–70 St. Louis and O’Fallon Railroad Co. v. United States (1929), 217–18 Salinger, Benjamin, 76 Sanford, Edward, 117, 122, 139, 146, 149, 186, 227, 230; Bedford and, 159–61; free speech jurisprudence of, 169–70, 173; incorporation doctrine expounded by, 111–12; nomination of, 22, 49–50, 116; pocket veto opinion of, 221–23; Prohibition cases and, 98–99, 138; as swing vote, 203; Taft’s view of, 140; zoning cases and, 130, 134 Sapiro, Aaron, 193 saving clauses, 214 Schappi Bus line, 187–88 Schenk v. United States (1919), 9, 170n30 Schwimmer, Rosika, 219–20 search and seizure, 98, 99–101, 144–45, 189–92, 196–200, 232 segregation, 150–51, 154–55, 224 Senn v. Tile Layers Protective Union (1937), 30 separation of powers, 115–16, 125–26, 222 Shelton, Thomas, 89n75 Sherman, John, 10 Sherman Anti-Trust Act (1890), 6, 9, 15, 31, 36–37, 105, 162, 173 Shiras, George, 10 “silver platter” doctrine, 145 Sixth Amendment, 58, 191 Skinner v. Oklahoma (1942), 154 Smith, Al, 112n95, 210 Southern Pacific Company, 36–37 Spanish-American War, 10 Stafford v. Wallace (1922), 35–36, 57, 105, 173 standing, 38, 56 Stanton, Edwin, 118 stare decisis, 31, 34, 60, 146, 231 Stimson, Henry, 49–50

Subject Index Stone, Harlan Fiske, xi, 77n36, 92–93, 122, 145, 176, 178, 186, 227, 230; as attorney general, 115, 142; Bedford and, 159–61; Brandeis’s frictions with, 93; Buck v. Bell and, 153; confirmation of, 93, 95; criminal law jurisprudence of, 137–38, 159; dissents by, 93–94, 146, 148–49, 166, 185, 204–6, 208; Euclid and, 130; Hoover’s closeness to, 211; Prohibition cases and, 137–38; recusal by, 144; Supreme Court building project and, 181; Taft’s doubts as to, 140, 160n77, 165, 212 Storey, Moorfield, 151, 224 Story, Joseph, 200–201 “stream of commerce” doctrine, 35 strikes, 23–27, 31, 52–53, 104–5, 158–60, 168 Strum, Philippa, 168 substantive due process, 18 Sullivan, Louis, 182 Sutherland, George, 46, 48n24, 68, 122; accession of, 43–44; Brandeis viewed by, 17n56; congressional policy deferred to by, 55–57, 98; conservatism of, 59, 96, 116–17, 146–48, 165, 185, 203, 207, 230; criminal law jurisprudence of, 54; expanding docket lamented by, 42–43; federalism jurisprudence of, 102, 109– 10; free speech jurisprudence of, 50; ill health of, 164–65; Judges’ Bill and, 77, 80, 87; labor law jurisprudence of, 104, 159, 161; legislative silence viewed by, 102; mental exhaustion of, 129–30; presidential power opinion of, 126; Prohibition cases and, 97, 100, 138, 139, 144–45; as senator, 42, 69; state laws invalidated by, 201–2, 203–4, 213–14; Supreme Court building project and, 181; as Supreme Court candidate, 20, 21, 47; Taft’s view of, 140; zoning opinions by, 131–34, 135–36 Swift and Company, 139 Swift & Co. v. United States (1905), 9, 35, 57 Swift v. Tyson (1842), 201 Taft, Alphonso, 3

253

Taft, Charles, 89, 103, 116, 227 Taft, Helen (daughter), 48n23, 50n32, 61, 69, 70, 81n48, 82, 90, 92, 161, 164, 180, 183, 208 Taft, Helen (wife), 3 Taft, Horace, 122, 126, 200 Taft, Robert, 57–58n62, 69, 81, 92, 94, 118, 122–23, 174, 184, 213 Taft, William Howard, 51, 176, 186; administrative law jurisprudence of, 2, 34–36, 53, 57, 139n84; as administrator, 4, 61–68, 117, 232, 233, 235; antitrust jurisprudence of, 105, 173–74; Arizona statehood and, 27; Buck v. Bell and, 151, 153; Brandeis viewed by, 162–63, 165, 200; as chief justice nominee, 42, 43; chief justiceship sought by, 20–21, 60– 61; classical legal thought expounded by, 96, 203, 231; commerce clause jurisprudence of, 57; consensus sought by, xi, 23, 59, 95, 116, 122, 139, 159–60, 203, 208, 209; constitutional immutability embraced by, 206, 231; criminal law jurisprudence of, 157–58, 196–98; criticisms of, 29; death of, 228, 230; equal protection jurisprudence of, 155; Euclid and, 130; Fourth Amendment jurisprudence of, 99–100, 198; Hand viewed by, 69–70; Holmes viewed by, 91–92, 200, 232; ill health of, 90, 94, 116, 118, 140, 162, 164, 180, 208, 227–28, 234; judicial appointments by, 4–5; judicial philosophy of, xi; Judges’ Bill backed by, 68–77, 81–83, 87–89, 117, 180, 234; labor law jurisprudence of, 22–29, 32–34, 52–53, 105–6, 159–61; lake diversion opinion of, 229; as law professor, 2, 180; liberal bloc disparaged by, 185, 203, 208, 209, 212, 230; McKenna viewed by, 91; McReynolds viewed by, 14, 84n59, 100, 101n47, 122–23, 126, 140; narrowmindedness of, 58–59, 203; as president, 4–5, 27, 62, 65, 67, 174–75; presidential power opinion of, 121–26; “progressive conservatism” of, 27; Prohibition cases and, 99–100, 102, 138, 156–57, 196–98; retirement of, 94, 213; separation of powers viewed

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Subject Index

Taft, William Howard, (continued ) by, 115–16; shortcomings of, 22; as solicitor general, 1, 2–3, 180; statutory construction viewed by, 179–80; Supreme Court building project backed by, 180–84, 234; Supreme Court nominations declined by, 5–6n11, 20n7; Supreme Court candidates evaluated by, 45–49, 69, 73n25, 92, 94, 210–11; taxing power jurisprudence of, 34–35; as trial court judge, 2, 4n7, 28n36; on U.S. Court of Appeals, 2, 5, 10, 180; Van Devanter viewed by, 46, 140, 141 takings, 56, 102, 110, 136–38, 178, 186 Taney, Roger B., 1, 3, 14 taxation, 33, 34, 166, 186 Tenure of Office Act (1867), 118–19, 121, 124 treaties, 102–3 trial by jury, 58 Tumey v. Ohio (1927), 156–57 Truax v. Corrigan (1921), 27–28, 30, 51 Tyson and Brother v. Banton (1927), 146, 166, 203, 204, 205, 213 United Leather Workers International Union v. Herkert and Meisel Trunk Co. (1924), 104–5 United Mine Workers of America v. Coronado Coal Co. (1922), 30–32, 34, 104, 105–6, 158, 159 United Shoe Machinery Corp. v. United States (1922), 74, 162 United States v. Berkeness (1927), 189, 190 United States v. Berwind-White Coal Mining Co. (1927), 176–79 United States v. Sullivan (1927), 166–67 U.S. Steel Corporation, 162 U.S. v. E. C. Knight Co. (1895), 9, 10 United States v. Southern Pacific Co. (1922), 36–37 Unpublished Opinions of Mr. Justice Brandeis, The (Bickel), 33 urbanization, 126, 131, 203 Urofsky, Melvin, 37, 59, 95–96, 106, 107, 113, 117, 172 Van Devanter, Willis, 5, 19, 22, 61, 68,

94n14, 122, 139, 184, 186, 224–25; advanced age of, 211; Article 3 courts viewed by, 216–17; Clarke’s retirement and, 39–40, 44; conservatism of, 96, 185, 203, 230; congressional power viewed expansively by, 12, 141–44; early career of, 12, 13; Euclid and, 130; federal jurisdiction expertise of, 69; ill health of, 164; Judges’ Bill and, 69, 72, 77–79, 80, 83–85, 87, 89, 234; Prohibition cases and 100, 101, 138; slowness of, 141, 142, 210, 224n65; Supreme Court candidates evaluated by, 46n14, 47; Taft’s view of, 46, 140, 141 Van Oster v. Kansas (1926), 137–38 Village of Euclid v. Ambler Realty Co. (1926), 127–35, 137, 235 Virgin Islands, 80 Volstead Act (1919), 97, 100–101, 156 voting rights, 150–51 Wade-Davis Bill (1864), 221 Walsh, Joseph, 73 Walsh, Thomas, 81–82n50, 82, 83, 86–89 Warren, Earl, 3 Weedin v. Chin Bow (1927), 179–80 Weeks v. United States (1914), 144n14 West Coast Hotel v. Parrish (1937), 230 Westenhaver, David C., 128 White, Edward, 15, 17, 61; as chief justice, 18, 37, 62, 68; death of, 5, 19, 42; elevation to chief justiceship of, 4–5, 20 White, G. Edward, 153n46, 154, 155 “White-Slave Traffic Act” (Mann Act; 1910), 7–8 Whitney, Anita, 167–73 Whitney v. California (1927), 167–73, 188, 232 Wickersham, George, 15, 47, 55, 142, 211, 218 Wiecek, William, 6, 231 Williams, John, 63 Williams v. Standard Oil (1928), 74, 213–14 Wilson, Woodrow, 8, 40, 69, 82, 119, 175; election of (1912), 2; judicial appointments of, 13–17; progressivism of, 10, 12; Volstead Act vetoed by, 97

Subject Index Wilson v. New (1917), 52–53 wiretapping, 196–98 Wisconsin v. Illinois (1929), 225–26, 228 Wolf, Michael Alan, 127nn36, 38, 129–30, 134 women’s suffrage, 38 workmen’s compensation, 13, 42, 103–4 World War I, 9, 50, 68, 168

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Wright, Frank Lloyd, 182 writ of error, 71, 72, 80, 157 Yale University, 2 Yankton Sioux Tribe v. United States (1926), 135–36 zoning, 126–35

About the Author

Jonathan Lurie is a professor emeritus of American history and an adjunct professor emeritus of law at Rutgers University. He also served as an academic integrity facilitator at Rutgers University until he retired in 2014. His books include William Howard Taft: The Travails of a Progressive-Conservative, Law and the Nation, 1865–1912, and Military Justice in America: The U.S. Court of Appeals for the Armed Forces, 1775–1980.