The Supreme Court Historical Society

What Heaven Must Be Like: William Howard Taft as Chief Justice, 1921-30

by Jeffrey B. Morris*

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. —William Howard Taft[1]

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* I acknowledge with appreciation the research assistance of Helena Silverstein, a junior at the University of Pennsylvania.

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No person who ever became Chief Justice yearned for that office more than William Howard Taft. No man to chair the supreme committee of nine did so with greater love. No Chief Justice came to the office having thought more about its potential than Taft. Although he served less than a decade, Taft's stamp upon the office was such that each of his successors has to an important degree had to fit into expectations which he created.

Few who have ever served or even aspired to be Chief Justice were better qualified for the position than William Howard Taft. Taft had been a judge on both the state and the federal bench. In his thirties he had served on the Superior Court of Ohio (1887-90). Later, from 1892 to 1900, Taft was a member of one of the strongest courts in American history, the Court of Appeals for the Sixth Circuit, which at one time was composed of three future Justices: Taft, William Rufus Day and Horace Lurton. Taft wrote two hundred opinions in eight years on the Sixth Circuit, dissenting only once (and filing four separate opinions). He was nationally recognized for his powerful opinions interpreting the then new Sherman Anti-trust Act, and was viewed as an anti-labor jurist.

While by no means an important legal scholar like Holmes, Thayer or Pound, Taft had taught law—as Dean and Professor at the University of Cincinnati Law School (1896-1900) and at the Yale Law School (1913-21)
He was the author of a number of books, among them Our Chief Chief Magistrate and His Powers[2] and The Antitrust Act and the Supreme Court.[3]

Schooled as well in world affairs, Taft's career as an executive had been important, as first civil Governor of the Philippines (1901-04), Secretary of War (1904-09), and twenty-sixth President of the United States (1909-13). He was a great success as Secretary of War— the most influential advisor of—and heir apparent to—Theodore Roosevelt. But Taft's presidency was notably less successful. He viewed the powers of that office far more restrictively than his predecessor,-"waffled" on many issues, and squandered his popularity.[4] Taft's own opinion of his administration was unenthusiastic:

. . . a very humdrum, uninteresting administration, and it does not attract the attention or enthusiasm of anybody.[5]
Naturally, such self-deprecation ought to be viewed in light of Theodore Roosevelt's flamboyant presidency Taft added, in words that might as well have been applicable in large measure to the administration of Dwight D. Eisenhower:
. . . I have strengthened the Supreme Bench, have given them a good deal of new . . . legislation, have kept the peace, and on the whole have enabled people to pursue their various occupations without interruptions.[6]
The passage of time and further public service during and after World War I as co-Chairman of the National War Labor Board (1918-19) and as a strong supporter of ratification of the Versailles Peace Treaty, transformed the unpopular President of 1912 into a well-thought of "elder statesman.

Taft had aspired to a seat on the Supreme Court throughout his distinguished career. Briefly considered for the High Court as early as 1889, Taft accepted the position of Solicitor-General (1890-92), viewing it as a "stepping-stone." Twice, however, he refused Theodore Roosevelt's tender of appointment to the Supreme Court—to the seats vacated by Justices Shiras (1902) and Brown (1906). His wife's ambitions for a Taft presidency and Taft's commitment to duties in the Philippines and the War Department dictated decisions made with regret. Had Chief Justice Fuller retired or died, Taft would probably have chosen the Chief Justice-ship over the Presidency He had said, "If the Chief Justice would only retire how simple everything would become."[7] Taft's ambition was hardly a closely guarded secret, and Roosevelt was not above manufacturing rumors of Fuller's retirement; the old Chief Justice, however, was "not to be paragraphed" out of his place by news stories.[8] Mrs. Fuller reportedly sent word to the Philippines, "You tell Willie Taft not to be in too much of a hurry to get into my husband's shoes.”[9]

As President, Taft made six appointments to the high bench with great care, blending concern for the right jurisprudential outlook with institutional requirements—legal competence, experience, vigor, integrity, and the ability to work with others.[10] Judging Taft's appointments by his own criteria, they failed him in only one important way—longevity Of the six, only one—Willis Van Devanter —would serve more than ten years.*

Taft's concern about courts went far beyond his own ambitions and his belief that the courts would protect private property From at least the time of his first article, published in 1884, Taft cared passionately about the administration of justice—the structure and management of courts, their staffing and procedures.[11] As senior judge of the Sixth Circuit, he had "demonstrated an abiding interest in centralized administration of that court," and had "assumed personal responsibility for those cases which had been pending before the Court for long periods of time."[12] As President, Taft was "to a unique degree" interested in the effective working of the judicial machinery and conversant with the details of judicial administration.”[13] In his first address on the State of the Union, Taft argued that:

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*Charles Evans Hughes served five years as a Taft appointee prior to his resignation in 1916. Succeeding Taft as Chief Justice, Hughes would serve another eleven years.

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. . . a change in judicial procedure with a view to reducing its expense to private litigants in civil cases and facilitating the dispatch of business and final decisions in both civil and criminal cases, constitutes the greatest need in our American institutions.[14]
As President, Taft bitterly fought the trend in the states and territories towards recall of judges; he "set a fire" under the Supreme Court "to modernize the federal rules of equity,"[15] and vigorously supported the union of law and equity.
After Taft left the White House, he continued his crusade for judicial reform in speeches and law review articles as Kent Professor of Law at Yale (1913-21), president of the American Bar Association (1913), and president of the American Academy of Jurisprudence (1914). During this period, the best known advocate of judicial reform in the United States continued to yearn to be Chief Justice. Taft was sixty-three years old in 1920, and the fulfullment of his ambitions depended upon the victory of Warren G. Harding that year, and the departure from office of the man he had appointed, Edward Douglass White.

Personal disappointment had been evident in 1910 as Taft had set about filling the first vacancy in the Office of Chief Justice since 1888:

It seems strange that the one place in the government which I would have liked to fill myself I am forced to give to another.[16]
Taft bypassed the vigorous forty-eight year old Charles Evans Hughes, whom he had once indicated he might appoint, to choose White, a sixty-five year old Democrat; a Roman Catholic who had fought in the Confederate army, White was the first Associate Justice ever to be directly promoted to the Office of Chief Justice. It is difficult to measure the degree to which Taft's ambitions to be Chief Justice may have weighed in the selection of White. There were good reasons for choosing White. His jurisprudential views were congenial, and with a major transformation occurring in the membership of the Court,* it made sense to choose someone who was familiar with its work and traditions. Nor did White appear to be too old nor too unhealthy to be able to do hard, routine work. White could handle the procedural and jurisdictional questions which were often the lot of the "Chief." White was popular with his colleagues, and it appeared that his appointment would be well-regarded by at least three constituencies important to Taft — Southerners, Roman Catholics, and Theodore Roosevelt.

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*Taft made six appointments in four years.

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On the other hand, the selection of White seems a strange choice for a President so sensitive to the need for major changes in the operations of the Supreme Court and management of federal judiciary "A very dear man,"[17] White was neither a manager nor a reformer. He proved ineffective in presiding over the conference of the Court, permitting rambling debate and generating unnecessary controversy He was not willing to take the lead in fighting for changes in the jurisdiction of the Supreme Court that would protect it from being overwhelmed by trivial cases. Although he sanctioned Justice Willis Van Devanter 's drafting what later became the Act of January 28, 1915 which slightly expanded certiorari jurisdiction,[18] White "particularly requested that it be turned over to a legislator who would make it his own and in no way connect the Court or any member of the Court with it."[19] The Chief Justice would not appoint a committee of Justices having anything to do with legislation; he was irked by the efforts of Justices Day, McReynolds and Van Devanter who drafted the Act of September 6, 1916, which again slightly expanded certiorari jurisdiction. The legislation was introduced and passed by the Congress when the Court was in recess; White "never became reconciled to that act."[20]

White preferred to deal with the caseload problem facing the Court by modification of methods which had been used in the Waite and Fuller years: decisions per curium, and the use of jurisdictional and procedural grounds to avoid reaching the merits of many cases. There was one innovation, the summary docket, but with the rapid growth of caseload during and after World War I, the old methods were not good enough. White would not fight for more law clerks nor for a significant improvement in the Court's working space. What Holmes had written of Fuller in 1908 remained true at the end of White's tenure:

The Chief twigs things as well as another, but you don't get him to change what has been, one jot.[21]
Nor would White take the lead in supporting major changes affecting the lower federal courts. He would not move in the direction which Taft and others were urging towards greater centralization with the Chief Justice given the responsibility to assign judges to overloaded districts. Indeed, White restrictively interpreted the one law granting the Chief Justice assignment power—the Act of October 13, 1913. Although he served with Lurton and Van Devanter on the committee appointed by President Taft in 1911 to revise the Federal Rules of Equity, White would not support legislation to delegate rule-making powers in civil cases to the Supreme Court. As Chief Justice, White strictly curtailed his public apearances. He addressed the American Bar Association three times during his tenure, but did not choose to use that podium to preach sermons of reform. *

Perhaps a younger and healthier White would have responded more vigorously to the demands of the caseload which occurred during the end of his tenure, but then he was ailing. Even in the more effective early years, however, White had preferred the status quo. The last "Nineteenth Century Chief Justice," White viewed the office largely the way Taney, Waite and Fuller had. ** For White, the job of the Chief Justice was to be head of the Supreme Court: to spare the Associate Justices from dealing with matters that were primarily administrative motions and other procedural problems to be handled with the Clerk; to supervise the Court's other officers; to apportion the assignment of opinions fairly; and all the while, to take responsibility for the same duties of judging as the Associate Justices. Thus, the traditional view of the job of Chief Justice to which White adhered was that the Chief Justice was primarily responsible for maintaining a good working atmosphere within the Supreme Court,

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*On one occasion he introduced the Lord Chancellor; on another, he responded to a toast. White did speak once on the public duties of American lawyers.

**Chase's interests clearly transcended the running of the Supreme Court and riding circuit, but they were primarily connected with his continuing quest for the Presidency while turning out more than one-ninth of its opinions.

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No one would deny that this was—and is—a difficult enough job to perform. But the growing centralization of American government led to increased demands upon the federal judiciary The courts would not be able to function effectively without someone taking the lead in pressing for changes in structure, management, and staffing. William Howard Taft saw this, and knew that the only person who could be successful would be the Chief Justice. Thus, Taft became the first "modern" Chief Justice, looking outside of the Supreme Court for a substantial part of his duties. His way of looking at the office, as well as the administrative mechanisms he established, greatly influenced the manner in which his successors would view their roles.

The Appointment of Taft as Chief Justice

Seventy-five years old and ailing, with poor eyesight and poor hearing, Chief Justice White lived through Woodrow Wilson's Presidency, keeping conscientiously at his job. Although there were rumors that he was keeping the seat warm for Taft, White gave no indication that he would retire after Harding became President on the fourth of March, 1921. Taft had been a friend and political ally of Harding, having contributed to his unsuccessful race for Governor of Ohio in 1910, and having asked Harding to put his name in nomination in 1912. Soon after the election, Harding indicated to Taft that he wished to appoint him to the Supreme Court. When Taft told Harding that he could serve on the Court only as Chief Justice because he had appointed three of the then sitting Justices — White, Van Devanter, and Pitney, and had publicly opposed the confirmation of two others — Brandeis and Clarke, Harding remained silent. There were several potential roadblocks to the realization of Taft's ambition. White would have to leave office soon, as Taft was already sixty-three years old. Secondly, Charles Evans Hughes, Harding's Secretary of State, was a potential rival. Finally, Harding had promised the first available seat on the Supreme Court to his friend and former colleague, Senator George Sutherland of Utah. Taft became so impatient that soon after Harding took office, he paid personal visits to both White and White's physician, to ascertain the state of White's health.

White died on May 19, 1921. Spurred by Attorney General Harry Daugherty, who felt that he could work well with Taft on matters of federal judicial administration, Harding appointed Taft on June 30th. He was confirmed on the same day he was appointed with but four dissenting votes. Taft took the oath of office on July 11th and immediately went to work.

Chief Justice Taft

William Howard Taft brought to the Office of Chief Justice the prestige of the presidency; a lifetime of experience and special interest in courts and politics; an intricate network of friends throughout the three branches of the national government, among the bar, and in the press; a winning personality; and, a carefully considered view of what the job of the Chief Justice should be. Taft believed that within the Supreme Court the Chief Justice must "promote teamwork" to give the product of the institution "weight and solidarity."[22] To that end, he brought unusual administrative skills and an attractive personality It was, however, in his view of the appropriate responsibilities of the Chief Justice outside of the Supreme Court that Taft departed audaciously from his predecessors. If Taft's view of the constitutional powers of the President had been narrow, his views of the prerogatives, duties and responsibilities of the Chief Justice were "almost majestic."[23] Accepting responsibility for acting as a visible spokesman for change, Taft brought the "executive principle" to the federal courts, fighting for a program of reform with an extraordinary array of tactics and unflagging energy.

The Taft Program

Taft became Chief Justice at one of those times during which congestion and delay in the federal court system had become especially intolerable.[24] The jurisdiction of the federal courts had grown rapidly within a short period of years, largely as a result of new federal laws regulating the economy wartime measures, and a host of new federal penal offenses. Between 1918 and 1921, civil cases with the United States as a party filed in the federal courts increased from 2,877 to 9,727. Other civil cases filed increased from 13,789 to 22,453. Criminal cases increased from 35,096* to 54,487.[25] There was no increase in the number of federal judgeships during the period. In 1922, Albert Cummings, United States Senator from Iowa, stated that "in many parts of the United States it is utterly impossible to secure the trial of a civil suit within one year or two years."[26]

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*In 1917 there were only 19,828 criminal cases filed.

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When Taft became Chief Justice, the federal court system had no system-wide direction. Life-tenured judges went unsupervised and unassisted. Local judges had complete power over patronage and were accountable only through impeachment. Felix Frankfurter and James M. Landis described the situation this way:

Each judge was left to himself, guided in the administration of his business by his conscience and his temperament.[27]

The traditional remedies for increased workload had been the creation of new federal courts, more judgeships, or curtailment of jurisdiction. Taft supported the creation of new judgeships and curtailing the obligatory jurisdiction of the Supreme Court, but he also placed an emphasis upon better management, accountability of District Judges for their docket, and modernized rules of procedure. Concerned about delays, high court fees, unnecessarily complex procedures, abuses in the appointment of receivers in bankruptcy, and misconduct in the offices of clerks of court, Taft believed that someone—or some institution — had to be responsible for the overall business of the federal courts; judicial independence did not mean freedom from oversight of the management of court business.

The Executive Principle

Taft first sought a new institution—a multi-judge agency—which would provide "machinery of a quasi-executive character" to mass the judicial force to attack congestion, wherever it might be. He sought to introduce into the judicial system "an executive principle to secure effective team work."[28] To this end he proposed annual meetings of the Chief Justice and the Senior Circuit Judges of the then nine circuits, to join with the Attorney General in considering reports on the business in each district from the district judges and clerks. The conference would make "a yearly plan for the massing of the new and old judicial force of the United States in those districts all over the country where the arrears" were "threatening to interfere with the usefulness of courts."[29]

The Conference of Senior Circuit Judges, composed of the Chief Justice and nine Circuit Senior Judges, was established by the Act of September 14, 1922, to meet annually upon the summons of the Chief Justice. The Conference was to make a comprehensive survey of the condition of the business in the courts, prepare plans for the assignment of judges, and submit suggestions to the courts in the interest of uniformity and expedition of business.[30] Taft presided over the Conference, voted as a member, and appointed its committees, all the while serving as its staff.

Through the creation of what in time became the Judicial Conference of the United States, leadership in federal judicial administration was given to the Chief Justice and the senior circuit judges. In the early years the Conference not only collected statistics, but as a result of Taft's prodding, discussed in specifics the quantity and quality of justice in the trial courts in each district, beginning to serve as a clearing house for recommendations to the Congress.

The power to act directly upon individual judges was not clearly defined by the legislation creating the Conference. The Conference was hardly a centralized executive, nor has it ever truly become one. There would not be direct control by command; rather there was coordination through persuasion.[31] The Conference was but a "first step towards a more integrated administrative system,"[32] providing not management, but important oversight and coordination.

Judgeships

Fears of centralization, of the dimunition of judicial independence, and of the Chief Justice amassing too much power, led to the defeat of the second plank in Taft's platform: the creation of eighteen new judgeships, two to a circuit, who would not be permanently assigned to any specific district, but rather, assignable by the Senior Circuit Judge to any district within his circuit, and by the Chief Justice to any district outside the home circuit. In 1921, the Chief Justice of the United States could only assign judges with light caseloads to the Second Circuit, and then only with the consent of the individual District Judge. * Taft's proposal would have provided the federal courts, guided by the Conference, with a judicial force to grapple with the arrears and end them.[33] Taft proposed that the judgeships be "temporary," expiring when the first appointee left the bench unless Congress provided otherwise; his proposal also left the judges-at-large without the power to make patronage appointments. Taft hoped that the at-large judgeships would head off attempts to create new judgeships for political reasons, and that the positions might be filled by more able judges than usual, for the judges would be chosen from a pool that was circuit-wide rather than district-wide.[34]

In the end, Taft received half-a-loaf. Twenty-four new judgeships were created—more judges than he wanted, and the largest increase since the First Judiciary Act—but they were placed within specific districts, with the assignment power shared by the Chief Justice and the Senior Circuit Judges of the "giving" and "receiving" circuits. Thus, Taft had less formal assignment authority with regard to the circuits than his predecessor had enjoyed with respect to the Second Circuit.[35] What assignment powers Taft did have, he would be especially careful not to over-exercise.[36]

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*However, the Chief Justice could assign the judges of the Commerce Court, which had been abolished, to any circuit.

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Rule-Making Power

The third part of Chief Justice Taft's program was the delegation by Congress to the courts of rule-making powers enabling the adoption of a single code of federal practice for civil cases. As early as 1908, Taft had been critical of the Conformity Act of 1872, which required federal courts to follow in civil cases the procedures of the state in which the federal court was meeting. As a result, federal procedures in civil cases varied from state to state, and federal courts could do nothing to modify those procedures which were archaic and complex.

For more than a century the Supreme Court had exercised the power to lay down national rules of equity, admiralty and bankruptcy for the federal courts. As President, Taft had successfully pressed for revisions of the Federal rules of Equity, a revision which permitted parties to bring controversies before the courts in intelligible, factual form, omitting ritualistic and obscure language - As Chief Justice, Taft favored the unification of law and equity in one national code of procedure:

All that is needed is to vest the same power in the Supreme Court with reference to the rules at common law and then to give that court the power to blend them into a code, which shall make the procedure the same in all and as simple as possible.[37]
Taft envisioned a "system so simple that it needs no special knowledge to master it," a system which would be "a model for all other courts."[38]

Congress would not delegate rule-making powers in civil cases to the Supreme Court in Taft's lifetime. Even among his colleagues, Taft was unable to convince Holmes, Brandeis and McReynolds. But by giving visibility and sustenance to the two-decade long struggle of the American Bar Association Committee on Judicial Administration and Remedial Procedure, led by Thomas W. Shelton, Taft sowed the seeds which would be successfully reaped a few years later by Homer Cummings, William D. Mitchell, Charles E. Clark, and Chief Justice Charles Evans Hughes.[39] The Federal Rules of Civil Procedure were one of the great reforms in the American judicial process in the Twentieth Century.[40] The rule-making process itself and the substance of the Federal Rules were widely emulated by state courts.*

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*In recent years both the process and the rules themselves have been called into question. See, e.g., Jeffrey B - Morris, "The Changing Federal Courts," in (ed.) Richard M. Pious, "The Power to Govern," 34 Proc. Acad. Pot. Sci. No. 290,97-99(1981).

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Discretionary Jurisdiction for the Court

The fourth part of Taft's program was providing relief for an overburdened Supreme Court through substantial restriction of the unqualified right to appeal from courts below. The Evarts Act of March 3, 1891, which created the Courts of Appeals, substantially increased federal appellate capacity and provided discretionary jurisdiction for the Supreme Court in a limited class of cases.[41] That jurisdiction, by way of the writ of certiorari, had been slighty expanded in 1915 and 1916. Further relief proved necessary as growing caseloads eradicated the benefits of the 1891 Act. In 1910, for example, the Court disposed of 509 cases; by 1916, there were 647 filed and the Court disposed of just ten fewer. Justice John Hessin Clarke complained of the "amount of grinding, uninteresting, bone labor," and added that "much more than one-half of the cases are of no considerable importance."[42] Taft saw as a goal that:
. . . there must be some method adopted by which the cases brought before that Court shall be reduced in number, and yet the Court may retain full jurisdiction to pronounce the last word on every important issue under the Constitution and Statutes of the United States on all important questions of general law with respect to which there is a lack of uniformity in the intermediate appellate Federal courts of appeal.[43]

Taft proposed to replace much of the Supreme Court's obligatory jurisdiction with an expanded use of the writ of certiorari.

Taft also hoped that at the same time the Court's discretionary jurisdiction was broadened, the laws governing the Supreme Court would be recodified "to enable any lawyer, judge, or layman, to look to one statute and be sure that it contains all there is on the appellate jurisdiction of the Supreme Court."[44]

Taft was the central force behind the enactment of enlarged certiorari jurisdiction. Senator Albert B. Cummings of Iowa purportedly requested Taft to appoint a committee of Justices to draft a measure for relief of the Court. Taft appointed Van Devanter, McReynolds and Sutherland,* and sat with the committee himself. The measure drafted by the Justices was eventually approved by the entire court, Taft having persuaded Justice Brandeis not to

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* Sutherland replaced Day on the latter's retirement.

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make his opposition public.[45] Taft arranged the testimony of Justice Van Devanter before the Congress, "set in motion the powerful machinery and organization of the American Bar Association,"[46] and drafted the language used by the President to support the bill.[47] The Judge's Bill was introduced on March 30, 1922, and became law on February 13, 1925 — a very short time for enactment of such a major reform in judicial administration.

Once again, Taft had to settle for half-a-loaf—recodification of the laws governing the jurisdiction of the Supreme Court into one statute was not accomplished—but, what a half loaf it was! By 1933 Felix Frankfurter and Henry M. Hart, Jr. could report that:

. . . the Court is hearing and disposing of all litigation brought before it without delay and without sacrifice of any of the guarantees of ample argument and due deliberation which the effective exercise of its functions demands. In so doing, it sets a standard for state courts of last resort throughout the country.[48]
Taft's medicine put the disease into remission for two generations. Stating that the Chief Justice's very active part in shepherding the Act of 1925 "entitles him to a high place among judicial statesmen," Justice William Rehnquist concludes:

Chief Justice Taft foresaw the need for this grant of discretionary jurisdiction before it became indispensable, It is due to his foresight and to his willingness to perform tasks outside of the normal business that the Supreme Court today is as currently abreast of its docket as it is.[49]

Tactics

As President, William Howard Taft appeared to be a bumbling, indecisive amateur who was ill at ease in politics and cautious in the exercise of the powers of his office. As Chief Justice, Taft was deft and professional, effective in the game of politics, bold in assertion of the prerogatives of the office. Thoroughly knowledgable about judicial administration, Taft possessed an intricate network of contacts; coming to office with a program, he filled the traditional vacuum in judicial administration, a vacuum compounded by a compliant President and an Attorney General who knew little about the needs of the courts.[50]

Taft moved rapidly once he took office. Almost immediately, he met with the Attorney General's five-person committee on court reform chaired by Judge John E. S later of the Sixth Circuit, Taft urged the committee to recommend that administrative power for the court system be placed with the Chief Justice and Senior Circuit judges in collaboration with the Attorney General. Asked by Daugherty to comment on the work of the committee and to draft legislation implementing his vision of a council of judges, Taft doubled the number of District Judges recommended by the committee, and inserted language requiring annual reports by each District Judge on the business of his court,.[51]
Throughout his tenure, Taft was willing to place the prestige of his office on the line for his program. He was not troubled by the separation of powers, If anything, he considered that the separation of powers warranted his activities, making it his duty to propose and press reforms.[52] Taft testified formally before Congressional committees and subcommittees a number of times. He wrote to Congressmen and buttonholed them in the Capitol. He called upon his colleagues for assistance: Van Devanter, McReynolds and Sutherland testified on the Judges' Bill; Holmes and Brandeis joined Taft in testifying on behalf of the acquisition of a library for the federal courthouse in Boston.[53] As Chief Justice, Taft worked well with the Congress, employing his charm and prestige; he knew when to take soundings, when to move, when to place himself on the line, and equally important, when to pull back and let others carry on.

Taft forged an extraordinary partnership with the executive branch during his tenure, especially in the first few years, wielding immense influence upon Daugherty and Harding. His relations were cordial with Coolidge and Attorney General Harlan Fiske Stone, but were less effectual with Attorneys General Charles B. Warren and John G. Sargent. He was not close to President Hoover, but was successful in lobbying for the appointment of William Mitchell to head the Department of Justice.[54] Taft, however, went well beyond close collaboration with Attorneys General. The Justice Department was responsible at the time for many of the administrative details connected with the running of the federal courts; prior to making requests for appropriations, Taft met personally with members of the Department's budget section and with the Director of the Bureau of the Budget.[55]

Not until Warren E. Burger would a Chief Justice forge as effective a partnership with the organized bar as Taft. In 1923 the Chief Justice wrote:

There is no reason why the bar should not exert a tremendous influence through the country. Its organization is necessary to bring about such a result. I want, so far as I can, to organize the Bench and Bar into a united group in this country dedicated to the cause of the improvement in judicial procedure and in the defense of the constitutional provisions for the maintaining, through the judiciary, of the guarantees of the Constitution. [56]
Elihu Root, a leader of the bar and an old friend from his years in the Cabinet, wrote Taft in 1922, stating that he was "the first Chief Justice to fully appreciate the dynamics of the bar as an organization."[57] Taft attended meetings of the ABA, stating that:

I deem this one of the most important extracurriculum things that I have to do as Chief Justice."[58]
H e frequently used the podiums of local bar associations, and as the "godfather" of the American Law Institute, began in 1927 the tradition of an address to that body by the Chief Justice.[59] Solicitous and accessible to these organizations, Taft reaped their support for his measures and insured their opposition to measures which he opposed.

In contrast, the Judicial Conference offered a pulpit for a different message. Peter Fish has written:

The Chief Justice commanded the Conference. For Taft, it was command with a purpose, for the two to five-day sessions afforded him a means of giving "unity to the federal judicial force." The social as well as the business aspects of the meetings were intended to inculcate a national perspective among the ranking federal judges. To this end, the Chief Justice arranged for Conference members to visit the White House and meet the President, and gave them a luncheon at the Metropolitan Club.[60]
Ill at ease with the press and with critics as President, Taft collaborated with both as Chief Justice. As Chairman of the Conference, he became its public relations director.[61] He encouraged interviews with newspapers and magazines.[62] As for critics, Professor Felix Frankfurter provides a typical example. Frankfurter wired Taft in 1926 urging appointment of a Conference committee on statistics. Taft did what Frankfurter asked, appointing as the committee chairman Charles M. Hough, a jurist whom both men greatly respected.[63]

Taft's political abilities and alliances not only helped him win approval for the greater part of the four-part program already discussed but also resulted in victories against the Caraway bill which would have prevented federal judges from commenting upon the testimony of witnesses, and the Norris bill which would have eliminated the diversity jurisdiction of the federal courts.

No Chief Justice before or after Taft has had such an influence upon the appointment of judges. He was influential because he was a former President and party leader, but also because he was knowledgeable, concerned, and tenacious. Even before he became Chief Justice, Taft had written Attorney General Daugherty:

If you don't mind it, my interests 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. lam not butting in, but lam only testifying, without any personal slant and only with a view of helping if I can.[64]
Daugherty did not mind it, welcoming the overture: "I want you at all times to feel free to make suggestions."[65] This proved to be more than a politician's tact.

Taft sought the advice of lawyers, federal judges, politicians journalists, family and friends about possible nominees to the bench.[66] He located and advanced candidates, gathering a great deal of information with which he bombarded Attorneys General and Presidents in writing and in person. He would go to extraordinary lengths to keep from the bench judges he felt ill equipped, pleading with judges not to retire or to delay their retirements; he even pursued Coolidge onto the Harding funeral train in order to neutralize the efforts of a particular 5enator.[67] Taft's standards—legal competence, sound views, "team players" and honesty—were usually high; generally, the bench was the stronger for his activities. Due in some measure to his involvement, the U.S. Court of Appeals for the Second Circuit was transformed into a great court through the appointments of Thomas Swan, and Learned and Augustus Hand.[68]

Few statements show as little self-awareness as Taft's homily of July 30, 1921 that "the Chief Justice goes into a monastery and confines himself to his judicial work."[69] Taft was, to be sure, personally honest, but he hardly was "more circumspect than Caesar's wife."[70] Taft altered what had become the accepted view of how a Chief Justice should behave. Reacting to the excesses of Salmon P. Chase, Morrison Waite stayed out of activities other than judicial business. Melville Weston Fuller was the first Chief Justice to absent himself from a heavy Washington social schedule. As Chief Justice, Edward Douglass White avoided public speeches and hung back from pushing for judicial reforms. Taft, however, broke new ground. He placed the Office of Chief Justice in the front lines of the fight for reform, and became an outspoken advocate for important issues.

Certain aspects of this new expanded role for the Chief Justice did raise questions. For example should the nation's highest legal officer advise the President about pardons, or serve as emissary to convince an Attorney General besmirched by convincing allegations of corruption to resign?[71] The special interest of Chief Justices from the time of Morrison Waite in the legal resolution of conflicts between nations might explain Taft's interest in the plank of the Republican party platform devoted to the World Court. If Taft engaged in activities which might be considered inappropriate for a Chief Justice, such behavior was largely harmless. He urged Presidents to remain steadfast in pursuing policies to which they were already committed. His irrepressible fraternization with old friends, some of whom continued to argue before the High Court, may have dismayed the more austere Charles Evans Hughes, but didn't place the Court in disrepute.

Some of Taft's activities, however, should not belong to the "job description" of a Chief Justice. Taft advised Presidents on the substance of legislation unrelated to the courts. He encouraged friends to lobby to sustain presidential vetoes. He wrote to editors to persuade them to influence the legislative process. He took soundings of Republicans in Rhode Island on Coolidge's prospects for the presidential nomination of a incumbent senator. What is perhaps nation of a incumbent Senator. What is perhaps most remarkable is how little criticism Taft received for these activities.

Massing the Court

No Chief Justice can be said to have exercised true intellectual domination over the work of the Supreme Court since Marshall, if indeed Marshall did so. Some like Taney exercised a good deal of influence upon the jurisprudence of the era. Fuller and Hughes managed the conference of the court well, assigned opinions deftly, and produced a congenial working atmosphere that maximized the productivity of their colleagues. Waite and Hughes' administrative talents spared their colleagues a good deal of time in dealing with judicial flotsam and jetsam.

Taft came to office having given considerable thought as to how he might exercise influence upon the Court's jurisprudence and working conditions. He considered it to be the duty of the Chief Justice to "mass" the Court in order to give "weight and solidarity" to its opinions. Marshalling the Court to achieve the greatest possible consensus consistent with precedent was clearly Taft's goal:

The Chief Justice is the head of the Court, and while his vote counts but one in the nine, he is, if he be a man of strong and persuasive personality, abiding convictions, recognized learning and statesman-like foresight, expected to promote teamwork by the Court, so as to give it weight and solidarity to its opinions. [A great Chief Justice is] winning in his way, strong in his responsibility for the Court, earnest in his desire to avoid divisions, and highly skilled in reconciling difficulties in the minds of his brethren.[72]

In a now classic article on the role of the Chief Justice, David J. Danelski argues that two leaders often emerge in a small group: a task leader— someone able to present views with force and clarity, and the person to whom colleagues turn when perplexing questions arise; and, a social leader — someone who provides "the warmth and friendliness which make interpersonal relations pleasant or even possible." The social leader raises the self-esteem of the members of the group, accepts suggestions readily, and is quick to relieve tensions with a laugh or friendly joke.[73] According to Danelski, Taft was just that kind of social-oriented leader.

Taft was an effective head of the Supreme Court. He managed its business well. He usually massed a majority for his jurisprudential views through intellectual persuasion, warmth and charm, and to some extent, through his unique influence upon the process of selection of Justices. In his early years as Chief Justice he was especially effective in discouraging dissent. Measuring Taft's impact in terms of institutional cohesion, "job satisfaction" of his colleagues, and to a slightly lesser extent, productivity, Taft was one of the most satisfactory Chief Justices of this century.[74]

It is worth pausing to examine Taft's effectiveness as chairman of the committee of nine, by looking at him through the eyes of his great colleague, Oliver Wendell Holmes, whose admiration and fondness for Taft grew over the years. Holmes was unenthusiastic at the prospect of Taft as Chief Justice. A few days after Chief Justice White's death, Holmes wrote to Harold Laski:

Now people speculate as to who will take White's place. Taft is much mentioned. I would rather have Hughes, but I think he doesn't want it. Hughes is very hard working. Taft is said to be indolent. He has been out of judicial place for 20 years or so—and though he did well as a Circuit Judge I never saw anything that struck me as more than first rate second rate. I have heard it said and denied that he is hard to get along with if you don't agree with him.[75]

On the day Taft took the oath of office, Holmes wrote to Sir Frederic Pollack:

I am looking forward with curiosity to the new Chief Justice. He marked a fundamental difference in our way of thinking by saying that this office always had been his ambition. I don't understand ambition for an office.[76]

But, as usual, Homes mind was open, educable by experience. Early in Taft's first term he wrote to Laski:

Taft, t think will do well as CJ—the executive details, which, as I have said, are the matters upon which the CJ most counts as such, will be turned off with less feeling of friction and more rapidly [than with his predecessor].[77]
Two months later, Holmes wrote the same correspondent:

I continue pleased with the Chief's way of conducting business through at times a little too long winded which I dare say he will get over.[78]

Towards the end of Taft's first term, he wrote to Laski:

Taft continues to give me great satisfaction as C. J. Also he is amiable and comfortable.[79]

A few weeks later, Holmes wrote to Pollock:

We are very happy with the present Chief, as I may have told you. He is good humored, laughs readily, not quite rapid enough, but keeping things moving pleasantly His writing varies; he has done some things that I don't care for but others that I think touch a pretty high level.[80]

In February 1923 Holmes wrote Pollock that "the meetings are perhaps pleasanter than I ever have know them—thanks largely to the C. J. In a letter to his son on May 3, 1925, Taft himself quoted Holmes as saying that "never before . . . have we gotten along with so little jangling and dissension."'[82] On November 13, 1925, Holmes stated that Taft was "the best appointment that could have been made."[83] Finally, Homes wrote Laski in 1926 stating that "I think Taft is all the better Chief Justice for having been President.”[84]

Felix Frankfurter, a great admirer of Holmes but by no means an unabashed admirer of Taft, said many years afterwards that Taft was "instinctively genial with great warmth and a capacity to inspire feelings of comaraderie about him."[85] Taft was no saint. In private, he demonstrated sensitivity to opposition from his brethren, and in personal correspondence, questioned and deprecated the motives of his antagonists. In public and with his brethren, however, he kept his tongue, and during the years of his Chief Justiceship — except near the end — his normally good spirits prevailed.

Taft attended sincerely to those little human details which make a man beloved. Gifts and cards of condolence or of good cheer went to bereaved or sick colleagues. After the Saturday conference of the Court, he would always drive Holmes and Brandeis home. After Taft handled the arrangements for the burial of Mrs. Holmes in Arlington National Cemetery, the eighty-eight year old skeptic wrote to Laski, no admirer of Taft, "How can one help loving a man with such a kind heart?"[86] Despite the ritualistic quality in letters to and from a retiring Justice, the words used on Taft's retirement ring with special sincerity and warmth; tough men, strong men like Holmes, Brandeis and Stone, Sutherland, Butler and McReynolds, wrote:

We cannot let you leave us without trying to tell you how dear you have made it... you showed us . . . your golden heart that has brought you love from every side.[87]

That heart softened for the Court the adversities of the decade. Van Devanter and Sutherland appear to have broken down from overwork. McReynolds was an extremely disagreeable colleague who may have suffered from a tendency to "underword." Having arranged for special legislation to permit Mahlon Pitney's retirement without publicizing the extent of his illness, Taft had also to deal with Justice McKenna, no longer mentally sound, who after the death of his wife, clung to the Court as his one reason for life. Authorized by his brethren to handle the problem as he saw fit, Taft spoke with Justice McKenna, respected his request for the assignment of a few more opinions, and orchestrated his final day on the bench as a loving ritual.[88]

It was a happier time than usual to be a justice during the Taft era; working conditions within the Supreme Court greatly improved, not only as a result of Taft's infusion of vigor after White's last years, and his ready laugh and good humor, but also because he was an excellent administrator. When Taft assigned opinions, he spread the "desirable" cases around taking more than his share of "undesirable" cases. Furthermore, Taft set the standard for hard work. In little more than eight full terms, Taft wrote 255 opinions for the Court. Averaging nearly thirty-two opinions for the Court per term,[89] Taft achieved the fifth highest record in productivity of the Court's 102 Justices. * Taft's eight colleagues averaged a little over twenty opinions each during the same period.[90] Taft wrote twenty-five percent more opinions than either Holmes or Brandeis** during these years—not a bad pace for a man who returned to judging in his mid-sixties after two decades away, and who suffered three heart attacks in 1924. In 1928 the Chief Justice wrote, probably wryly, to his son that he was often faced with "a cabal in the court to try to influence me to reduce work."[91]

Much of Taft's success within the Court was due to the fact that he did not attempt to do all the work himself nor to take all of the credit. He admitted readily that he could not have gotten along without Van Devanter. He called the Justice from Wyoming "my Chancellor" and used him as legislative draftsman, opinion critic, and advisor on judgeship nominees. Van Devanter was asked to stand-in for the Chief Justice regarding activities in judicial administration while Taft was in England during the summer of 1922.[92] When it looked as if an appearance by Taft before Congress on the Judge's Bill might hinder rather than expedite its passage, Taft stayed out of the limelight; he appointed a committee comprised of Van Devanter (the best informed on the mechanics of the legislation), Sutherland (a former Senator) and McReynolds (a Democrat) to testify in his stead. When disagreement truly existed within the Court—as over the delegation or rulemaking power—Taft did not minimize it nor run roughshod over it." Tactics like these helped make Brandeis an ally a surprising proportion of the time, and along with his constant stress upon institutional norms, helped Taft is his goal of eliminating or at least minimizing dissent.

There were some times, however, when Taft thought dissent appropriate: if a Justice felt strongly that the majority had erred in handling an important principle; or, if a dissent might truly have practical value. For the most part, however, Taft believed that "a Justice should be a good member of the team, silently acquiescing in the views of the majority."[94] He used the power of example, suppressing more than two hundred of his dissenting votes while he was on the Court. Taft also employed the power of opinion assignment, relying upon his charm and the constant reiteration of the norm to achieve his goal without generating opposition. Dissent could hardly be eliminated in the modern Supreme Court, but it was considerably lessened during the Taft years— especially in the early part—as men of the calibre of Holmes and Brandeis accepted Taft's institutional values.[95]

There are many reasons for the Court's productivity during this period. The happy working atmosphere, the new certiorari jurisdiction, and Taft's competence in presiding over the conference certainly contributed to greater productivity But the Court was also strengthened by the retirements of Pitney, McKenna and Day, and by the relative youth and legal competence of the Justices who joined the court during the 1920's. Taft's influence upon the appointment of Justices during his tenure is unique among Chief Justices, and might be compared only to the influence of Felix Frankfurter upon appointments to the Supreme Court. Taft was most influential in the choice of Pierce Butler to succeed Justice Day That appointment was engineered by Taft, who presented Butler's candidacy to Harding, advised Butler on how to secure the position, mobilized support for Butler from the Catholic hierarchy, and orchestrated the campaign for confirmation.[96] With Harding's other two appointments—Sutherland and Sanford—and Coolidge's appointment of Stone, Taft's role was less significant, but not altogether unimportant. Taft appears to have encouraged Harding to go ahead with his commitment to Sutherland. With a little less enthusiasm, Taft seems to have encouraged Coolidge to appoint Stone.

With all four vacancies, Taft suggested candidates to the Attorney General and President, and investigated the backgrounds of candidates, whether or not he was solicited to do so. Taft quenched enthusiasm for candidates less likely to be "safe" and "team players." Safety meant for Taft, of course, someone who would "enforce the guarantee that no man shall be deprived of his property without due process of law."[97] As the Taft of 1922 was considerably more conservative than the Taft of 1910, this required solid conservatives like Sutherland or John W. Davis, but not reactionaries as McReynolds then appeared to Taft. It meant that Taft opposed the elevation

* * * * * *

*Behind Waite, Blatchford, Fuller and Matthews.

**and considerably more than Sutherland, Butler and Sanford, as well as more than twice as many annually as Van Devanter.

* * * * * *

to the high court of Benjamin Nathan Cardozo and Learned Hand, admittedly capable, but not safe. Taft fought more bitterly, though, against the candidacy of Martin Manton, a man whom the Chief Justice believed to be unscrupulous. Taft's judgment was correct. Manton would eventually end up in prison.

Taft was willing to move ahead without listening to the voices of his colleagues in one area—a new building for the Supreme Court. Of his unenthusiastic brethren, Taft would say, not entirely unfairly on this issue, that they "did not look forward or beyond their own service on the bench or its needs."[98] Though Taft would probably have fought for such a building while he was in the White House, it does not seem to have been part of his original program when he became Chief Justice. The Court manifestly had grown out of its twelve rooms inconveniently located in the Capitol, and Taft was increasingly frustrated in his bargaining with Congressmen for more desirable space. Taft finally convinced the House Public Buildings Committee to include moneys for the purchase of land in a fifty million dollar public building bill. He was the dominant figure in the choice of the site and the architect, Cass Gilbert. The Chief Justice lived just long enough to see Congress approve Gilbert's plans and appropriate $9,740,000 for construction, a law signed by Herbert Hoover on December 17, 1929.[99]

Taft-the-Justice

The career of Taft-the-Justice has been overshadowed by that of Taft-the-Chancellor, and Taft as head-of-the-Supreme Court. This is not unjust, for Taft did adapt the Court and the federal court system to their times and for several generations hence. In contrast, Taft-the-Justice looked backwards to a jurisprudence which strained the Constitution by unduly protecting property rights and by making the court the ultimate judge of the wisdom of state and federal legislation. Although Taft was a reformer of courts, he was not a social reformer. It has been argued with considerable justice that Taft wished to reform the federal judiciary primarily to strengthen it as a bulwark for the protection of private property rights; his goal was to enhance federal judicial power so as to better restrain the excesses likely to occur in the states.[100] Whatever his motivation, Taft's impact upon the Supreme court and the lower federal courts was nevertheless to modernize their administration and enable them to cope with the needs of a strong central government.
Taft's work as a Justice should not, however, be ignored completely Although Taft himself contributed to the view that he was a "legal light weight" through his appreciation of Van Devanter's contributions in the conference and in critiquing his own opinions,[101] his judicial work is stronger than has been recognized. He was productive. He took on patent cases, ordinarily not an area for weak legal technicians.[102] His opinions are not in the same league with those of Holmes and Brandeis, but generally read no worse than those of his other colleagues. Taft did not "dominate" his Court, nor did he dominate his "wing" of the Court, but he helped to lead the Court in the direction he wished without evoking disrespect from either Holmes or Brandeis.*

That direction was toward voiding federal—and especially—state laws regulating the economy, relying primarily upon theories of substantive due process, liberty of contract, and dual federalism.'[103] If Taft during the 1920's was more conservative than he had been as President, Chief Justice Taft's court was more conservative than the court headed by Chief Justice White. Sutherland, Butler and Sanford were more conservative than the three men ** they replaced: Clarke, Day and Pitney.[104] The pace of nullification of state actions quickened appreciably during the Taft years. From 1870 to 1921 the Supreme Court had held thirteen state and five federal laws unconstitutional in 195 cases invoking the due process clause. From 1921 to 1926 the Court struck down statutes in fifteen of fifty-three cases.[105] In his judicial career Taft sat on 114 cases (12.67/year) in which legislative acts of states were voided, all but a handful involving property rights.[106]

A recent scholar has argued that due to the Taft Court, the Courts of the Fuller and White eras have appeared more conservative than they really were:

Perhaps more than anything else this tendency of the Court of the 1920s to exploit distinctions and language found in earlier opinions, which the High Bench of the preceding generation had chosen wisely to ignore, and to use as precedents decisions that were bitterly attacked at the time of their issuance gave credence to the contention that the period from the depression of the 1890s to that of the 1930s could be interpreted meaningfully as a whole.[107]

A brief survey of some of Taft's major opinions will suggest how he fitted in with the prevailing jurisprudence of his era. In Wolff Packing Co. v. Court of Industrial Relations,[108] Taft wrote for a unanimous court, striking down on due process grounds a Kansas law which required compulsory arbitration of wage disputes. Felix Frankfurter commented:
Thus fails another social experiment not because it has been tried and found wanting, but because it has been tried and found unconstitutional.[109]

Taft carried the entire Court—except for Justice Clarke — in Bailey v. Drexel Furniture Co.[110] The case not unrealistically held that Congress was using its taxing power to penalize a company for doing business with child labor rather than to raise revenue for the federal government. In an attempt to circumvent the Court's holding in Hammer v. Dagenhart[111] that child labor could not be regulated under the Commerce Clause, Congress had again intruded unconstitutionally upon reserved state powers.

Taft was generally unsympathetic to the rights of labor. Writing for court divided 5-4 in Truax v. Corrigan.[112] Taft held unconstitutional on due process grounds an Arizona law which had limited the use of injunctions in labor cases. Professor Frankfurter, writing anonymously in the New Republic, spoke of the "jejune logomarchy of his judicial process," adding:

at the Chief Justice of the United States pays to the facts of industrial life, he might as well have written this opinion as Chief Justice of the Fiji Islands.[113]

In American Steel Foundries v. Tri-City Council, Taft's opinion for the Court circumvented the Clayton's Act general ban on injunctions in industrial disputes."[114] In United Mine Workers v. Coronado Coal Co.,[115] Taft's opinion for the Court held that a trade union was suable and liable for damages under the Sherman Act.

Yet, there is another side. Felix Frankfurter himself was of the viewpoint that the Coronado case was not so adverse to the rights of labor.[116] And at various times, Taft departed from the conservative wing of the Court demonstrating respect for recent precedents upholding statutes regulating the economy His opinion in Stafford v. Wallace is a milestone upholding Congressional power under the Commerce Clause. Stafford involved the Packers and Stockyards Act of 1921 which regulated the business of meat packers. Taft, not unreasonably concluded that the Chicago Stockyards were not a final destination, but "a throat through which the current flows."[117] In words which sounded as if they came from the pen of Holmes, Taft wrote:

This court will certainly not substitute its judgment for that of Congress in such a matter unless the relation of the subject to interstate commerce and its effect upon it are clearly nonexistent.[118]

Even if the "Supreme Court under Taft had reached the zenith of reaction,"[119] Taft was not always on the side of the reactionaries, in Adkins v. Children's Hospital, Taft joined Holmes in dissent (Brandeis not participating) from a decision striking down a law of the District of Columbia setting minimum wages for women. In his Adkins dissent, Taft again sounded like Holmes or Brandeis:

But it is not the function of this Court to hold Congressional acts invalid simply because they are passed to carry out economic views which the Court believes to be unwise or unsound.[120]

The former President was especially interested in opinions interpreting Article II of the Constitution. The opinion upon which he lavished the most love of any in his eight terms was Myers v. United States,[121] sanctioning virtually unlimited Presidential power to remove any executive officer. Holmes, Brandeis and McReynolds dissented. Myers would be considerably limited within a decade.[122]

During Taft's tenure, the Supreme Court began the process of incorporating the First Amendment via the Fourteenth Amendment to protect individuals from actions of the states,[123] but the Chief Justice did not play an important role in the process. A resounding opinion limiting arbitrary use of the contempt power came from Taft's pen for a unanimous court:

The power of contempt which a judge must have and exercise in protecting the due and orderly administration of justice and in maintaining the authority of the court is most important and indispensable. But its exercise is a delicate one and care is needed to avoid arbitrary or oppressive conclusions.[124]

In the field of civil liberties, Taft is remembered most for his opinion in Olmstead v. United States (with Holmes, Brandeis, Stone and Butler in dissent)~ holding that wiretapping did not violate the Fourth Amendment:

There was no searching. There was no seizure. The evidence was secured by the use of the sense of hearing and that only. There was no entry of the houses or offices of the defendant.[125]

Olmestead would survive thirty years longer than Myers v. United States, but ultimately would be overruled.[126]

Conclusions

Taft hoped to serve for a decade as Chief Justice, then retire, and travel with his wife. He did not live to do so, retiring February 3, 1930, as a result of the illness which caused his death a month later. Nine other Chief Justices have served longer than Taft, yet his impress upon the Office of Chief Justice, the Supreme Court, and the federal court system accords him consideration as one of the great "Chiefs." After Taft each Chief Justice would be expected to perform extensive duties other than deciding cases and heading the Supreme Court. After Taft, the Chief Justice would be expected by the Attorney General, the Congress, the bar and the general public to take an active interest in the administration of the federal court system, and to be a force in advancing the needs of the third branch. No Chief Justice since Taft has proven as audacious in conceiving his role, for Taft had treated his job as an American Lord Chancellor—managing a system, framing legislation and putting it through, selecting judges, as well as presiding over a court and deciding cases. But all Chief Justices since Taft have been involved with the Judicial Conference of the United States, with legislation effecting the federal courts, and with the rule-making process. They have also had to spend some time managing the Supreme Court building.

The Chief Justice who most resembles Taft is the present incumbent, Warren E. Burger, who came to office ready to address needs in judicial administration—federal and state—with a program, tactics and tenacity evoking memories of Taft. By the time he became Chief Justice, the lower federal courts had emerged as a major force in American governance. This would have occurred had Taft never been Chief Justice, as a result of the centralization of American government, Congress' increased reliance upon federal jurisdiction, and the jurisprudence of the Supreme Court, especially during the 1960's. But Taft's legacy pointed the lower federal courts towards modernization, and provided tools for management and procedural reform which would be built upon by later leaders — Charles Evans Hughes, Charles E. Clark and Arthur Vanderbilt, Earl Warren and Tom Clark, Warren Burger and Griffin Bell. Such management and reform enabled the courts to survive overgenerous increases in their jurisdiction coupled with frugality in providing the tools. Were Taft alive today, he would approve the increased prestige of the lower federal courts, and probably bewail much of their jurisprudence.

Taft-the-Chancellor deserves the "high place among judicial statesmen" which Justice Rehnquist gives him.[127] Even Taft's old adversary, Felix Frankfurter, concluded that:

[Taft] had a place in history ... next to Oliver Ellsworth, who originally devised the judicial system. Chief Justice Taft adapted it to the needs of a country that had grown from three million to a hundred and twenty million.[128]
To the functioning of the Supreme Court, Taft brought administrative talent and a gift for human relations. He could not eliminate conflict, and would not dominate its product, but he did minimize friction, establish a warm atmosphere, and mass strong majorities for most of the decisions about which he truly cared. His jurisprudence is not much with us, but the certiorari jurisdiction and the "marble palace" are.

The Court, "next to [his] wife and children" was "the nearest thing to [his] heart in life."[129] He wanted to make the Court a model for all other American courts. His friend, Charles E. Barker, related an extraordinary story Soon after Taft was appointed Chief Justice, he said to Barker:

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Old man, I guess you know this appointment as Chief Justice is the crowning joy and honor of my life. Though it is an honor, it means I shall have to work hard. The agenda of cases before the Court is now several years behind, which means that any litigant must wait a long time before his case can even be heard. This is dead wrong, and it will be my constant endeavor and ambition to bring the docket up to date.[130]

Barker related that in January, 1930, during Taft's final illness, the Chief Justice took his hand and said:

Old man, do you remember what I told you in Washington? Well, I can report that my one great ambition as Chief Justice has been accomplished. The docket is up to date, so I guess I've earned a few weeks' rest.[131]
Whether or not the story is entirely accurate, Taft had certainly earned that rest.

For Further Reading

William Howard Taft's activities as Chief Justice have been the subject of studies by a number of distinguished political scientists, among them Alpheus T. Mason, Walter F Murphy, Peter is cited more thoroughly in the footnotes to this article. The best overview of Taft as Chief Justice, as well as one of the most satisfactory works ever written about a member of the Supreme Court, is Mason's William Howard Taft: Chief Justice. Murphy discussed Taft's work in a number of places including his tour de force, Elements of Judicial Strategy (Chicago & London: University of Chicago Press, 1964). Fish chronicled Taft's role in federal judicial administration in The Politics of Federal Judicial Administration (Princeton, N.J.: Princeton University Press, 1973). Taft's influence in the appointment of judges is dealt with in Danelski's A Supreme Court Justice is Appointed: The standard full-length biography of Taft is Henry F Pringle's two-volume, the Life and Times of William Howard Taft (New York: Farrar & Rinehart, Inc. 1939). Judith Icke Anderson has written a provocative psycho-biography, William Howard Taft (New York: W W. Norton & Co., 1981), which gives detailed treatment of Taft's career only through his Presidency.

* However loyal to the entire "team," Taft did hold rump conferences on some Sundays in his home with the more conservative members of the Court, so that a united front might be presented to Holmes. Brandeis and Stone. See Walter E Murphy, "Marshaling the Court: Leadership, Bargaining, and the Judicial Process," 29 Univ. Chi. L. Rev. 640, 670.
**While McKenna was not a "conservative" in the way McReynolds or Van Devanter were, his replacement by Stone strengthened the "liberal" wing of the Court.

* * * * * *

Endnotes

1. Address to the Pocatello, Idaho Chamber of Commerce, New York Evening Post, October 6, 1911.
2. (New York: Columbia University Press, 1916).
3. (New York: Harper, 1914).
4. On Taft's Presidency see, e.g., Henry F. Pringle, Life and Times of William Howard Taft (New York: Farrar and Rinehart, 1939).
5. Judith Icke Anderson, William Howard Taft, (New York).
6. Id.
7. Alpheus T. Mason, William Howard Taft: Chief Justice (New York: Simon and Schuster, 1964), 32.
8. Willard L. King, Melvin Weston Fuller (New York: Macmillan, 1950), 303.
9. Quoted in Mason, William Howard Taft, supra n. 7, p. 28.
10. See Jeffrey B. Morris, "Edward Douglass White and President Taft's Court," YBK SCHS 1982, 27; Alexander M. Bickel, "Mr. Taft Rehabilitates the Court," 79 Yale L.J. 1 (1969); Daniel S. McHargue, "President Taft's Appointments to the Supreme Court," 12 J. of Pol. 478 (1950).
11. Mason, William Howard Taft, supra n. 7, p. 14.
12. Peter Graham Fish, The Politics of Federal Judicial Administration (Princeton, N.J.: Princeton University Press, 1973), 24.
13. Felix Frankfurter and James M. Landis, The Business of the Supreme Court (New York: MacMillan Co., 1928), 156.
14. Quoted in Mason, William Howard Taft, supra, n. 7, p. 56.
15. Remarks of W. H. Taft, Proc. Judicial Section, 41 ABA Rpts. 741 (1916).
16. Taft to Justice William H Moody, July 8, 1910, quoted in Mason, William Howard Taft, supra n. 7, p. 34. On the appointment of White, see Morris, "Edward Douglass White and President Taft's Court," supra n. 10, pp. 33-37.
17. The description is from Charles Evans Hughes and is recorded in (ed.) Joseph P. Lash, From the Diaries of Felix Frankfurter (New York: W. W. Norton, 1975), April 25, 1947, p. 313.
18. 38 Stat. 803.
19. Willis Van Devanter to William Howard Taft, May 11, 1927, quoted in Mason, William Howard Taft, supra n. 7, 108-09 at 109.
20. Id. The Act is contained in 39 Stat. 726.
21. Oliver Wendell Holmes to Lewis Einstein, Jan. 6, 1908, in (ed.) James Bishop Peabody, The Holmes-Einstein Letters (New York: St. Martin's Press, 1964), p. 31 at 32.
22. Mason, William Howard Taft, supra n. 7, 233.
23. Ibid., 120.
24. Henry P. Chandler, "Some Major Advances in the Federal Judicial System," 31 FRD 307 at 320 (1963).
25. Ibid. at p. 318.
26. Ibid., at p. 319.
27. Frankfurter and Landis, The Business of the Supreme Court, supra n. 13, p. 220.
28. William Howard Taft, "Adequate Machinery for Judicial Business," 7 JABA 453 at 454 (1921).
29. Id.
30. 42 Stat. 837.
31. Walter F. Murphy, "Chief Justice Taft and the Lower Court Bureaucracy: A Study in Judicial Administration," 24 J. of Pol. 453 (1962).
32. Fish, The Politics of Federal Judicial Administration, supra n. 12, p. 39. See also Peter G. Fish, "William Howard Taft and Charles Evans Hughes: Conservative Politicians as Chief Judicial Reformers," 1975 Sup. Ct. Rev. 123.
33. Taft, "Adequate Machinery for Judicial Business," supra n. 28 at p. 454.
34. William Howard Taft, "To Unify the Federal Judges," 5 J. Am. Judic. Soc. No. 2 (Aug. 1921) 37 at 39.
35. 41 Stat. 837, 839. See Fish, The Politics of Federal Judicial Administration, supra n. 2, p. 33.
36. William J. Cibes, "Extra-Judicial Activities of Justices of the United States Supreme Court 1790-1960" (Ph.D., Princeton University, 1975), IV, 1321.
37. William Howard Taft, "Three Needed Steps of Progress," 8 ABAJ 34, 35 (1922).
38. Id.
39. Rules Enabling Act of 1934, Act of June 19, 1934, 48 Stat. 1064. See also 295 U.S. 774 ( ); 302 U.S. 783 ( ); 308 U.S. 645 (1938); 28 U.S.C. 2072.
40. Warren E. Burger, "Deferred Maintenance of Judicial Machinery," Remarks at National Conference on the Judiciary, Williamsburg, Virginia, March 12, 1971, p 14.
41. 26 Stat. 826.
42. To Woodrow Wilson, September 9, 1922, quoted in Mason, William Howard Taft, supra n. 7, pp. 165-7.
43. Taft, "Three Needed Steps of Progress," supra n. 37, p. 35.
44. William Howard Taft's testimony before the House Committee on the Judiciary in Frankfurter and Landis, The Business of the Supreme Court, supra n. 13, pp. 250-1, n. 50.
45. Mason, William Howard Taft, supra n. 7, p. 218.
46. Ibid., p. 112.
47. Id.
48. "The Business of the Supreme Court at October Term, 1932," Harv. L. Rev. 245, 249 (1933).
49. William H. Rehnquist, "Chief Justices I Never Knew," 3 Hast. Const. L.Q.
50. David J. Danelski, A Supreme Court Justice is Appointed (New York: Random House, 1963), p. 33.
51. Fish, The Politics of Federal Judicial Administration, supra n. 12, pp. 24ff.
52. Ibid., pp. 61, 62, 69. Compare with Mark W. Cannon and Warren I. Cikens, "Interbranch Cooperation in Improving the Administration of Justice: A Major Innovation," 34 W & L L. Rev. 1 (1981) and Warren E. Burger, "Remarks Accepting the Fordham-Stein Award," New York City, Oct. 25, 1978.
53. Fish, The Politics of Federal Judicial Administration, supra n. 13, p. 80.
54. Murphy, "Chief Justice Taft and the Lower Court Bureaucracy," supra n. 31, pp. 471-2.
55. Fish, The Politics of Federal Judicial Administration, supra n. 12, p. 77.
56. William Howard Taft to Clarence H Kelsey, Aug. 17, 1923, quoted in Mason, William Howard Taft , supra n. 7, p. 276.
57. Root to Taft, Sept. 9, 1922, quoted in Ibid., p. 276.
58. Ibid., p. 129.
59. Fish, The Politics of Federal Judicial Administration, supra n.12, p. 50.
60. Ibid., p. 51.
61. Ibid., p. 49.
62. Mason, William Howard Taft, supra n. 7, p. 278.
63. Chandler, "Some Major Advances in the Federal Judicial System," supra n. 24, p. 356ff.
64. May 2, 1921, quoted in Danelski, A Supreme Court Justice is Appointed, supra n. 50, pp. 33-4.
65. May 6, 1921, quoted in Ibid., p. 34.
66. Murphy, "Chief Justice Taft and the Lower Court Bureaucracy," supra n. 31, pp. 462-63. See also Walter F. Murphy, "In His Own Image: Mr. Chief Justice Taft and Supreme Court Appointments," 1961 Sup. Ct. Rev. 159.
67. Murphy, "Chief Justice Taft and the Lower Court Bureaucracy," supra n. 31, pp. 462-63.
68. Marvin Schick, Learned Hand's Court (Baltimore and London: The Johns Hopkins Press, 1970).
69. William Howard Taft to W. J. Moore, July 30, 1921, in Mason, William Howard Taft, supra n. 7, p. 287.
70. William Howard Taft to Helen H. Taft, Sept. 25, 1923, in Mason, William Howard Taft, supra n. 7, pp. 274-75.
71. William J. Cibes, "Extracurricular Activities of Justices of the United States Supreme Court," supra n. 36, at V, 1852 n. 173.
72. Mason, William Howard Taft, supra n. 7, p. 233.
73. Quoted in Walter F. Murphy, "Marshaling the Court: Leadership, Bargaining, and the Judicial Process," 26 U. Chi. L. Rev. 640 at 641 (1962). See also David J. Danelski, "The Influence of the Chief Justice in the Decisional Process," in C. Herman Pritchett and Walter F. Murphy, Courts, Judges and Politics (New York: Random House, 1961), 497-508.
74. Danelski, "The Influence of the Chief Justice in the Decisional Process," supra n. 73, pp. 502-03.
75. May 27, 1921, in (ed.) Mark De Wolfe Howe, Holmes-Laski Letters (Cambridge, Mass.: Howard University Press, 1953), 339 at 340.
76. July 11, 1921, in (ed.) Mark De Wolfe, Holmes-Pollock Letters (Cambridge, Mass.: Harvard University Press, 1941), II, 72.
77. October 9, 1921, in (ed.) Howe, Holmes-Laski Letters, supra n. 75, p. 373.
78. December 22, 1921, in Ibid., p. 390.
79. May 3, 1922, in Ibid., p. 423.
80. May 21, 1922, in (ed.) Howe, Holmes-Pollock Letters, supra n. 76, II, 96.
81. February 27, 1923, in Ibid., II, 113-14.
82. William Howard Taft to Robert A. Taft, May 3, 1925, quoted in Mason, William Howard Taft , supra n. 7, p. 199.
83. Holmes to Laski, in (ed.) Howe, Holmes-Laski Letters, supra n. 75, p. 797.
84. June 6, 1926, in Ibid., II, 848.
85. Felix Frankfurter, "Chief Justices I Have Known" in (ed.) Philip B. Kurland, Felix Frankfurter on the Supreme Court (Cambridge: Belknap Press, 1970), 471 at 488.
86. June 15, 1929, in (ed.) Howe, Holmes-Laski Letters, supra n. 75, p. 1158.
87. 280 U.S. v (1930).
88. The story is told in David J. Danelski "A Supreme Court Justice Steps Down," 54 Yale Rev. 411.
89. Albert P. Blaustein and Roy M. Mersky, The First One Hundred Justices (Hamden, Ct.: Archon Books, 1978), 148.
90. Mason, William Howard Taft , supra n. 7, p. 231.
91. William Howard Taft to Robert A. Taft, March 4, 1928, quoted in Mason, William Howard Taft, supra n. 7, p. 195.
92. See Danelski, "The Influence of the Chief Justice in the Decisional Process," supra n. 73, p. 499; Frankfurter, "Chief Justices I Have Known," supra 85, 471 at 487; Danelski, A Supreme Court Justice is Appointed, supra n. 50 p. 36.
93. Mason, William Howard Taft, supra n. 7, p. 117.
94. Danelski, "The Influence of the Chief Justice on the Decisional Process," supra n. 73, p. 505.
95. See Mason, William Howard Taft, supra n. 7, pp. 223, 204.
96. See generally Danelski, A Supreme Court Justice is Appointed, supra n. 50.
97. William Howard Taft, "Mr. Wilson and the Campaign," 10 Yale Rev. 1, 19-20 (1920) quoted in Mason, William Howard Taft, supra n. 7, p. 158.
98. Mason, William Howard Taft, supra n. 7, p. 136.
99. See Catherine Hetos, "The Supreme Court Gets a Home," YBK SCHS 1976, p. 25ff; see also Mason, William Howard Taft, n. 7, pp. 133-37.
100. See generally Peter G. Fish, "William Howard Taft and Charles Evans Hughes," supra n. 32.
101. See, e.g., Walter Murphy, "Marshaling the Court," supra n. 73, p. 642.
102. See Mason, William Howard Taft, supra n. 7, p. 206.
103. Alfred A. Kelly, Winfred A. Harbison and Herman Belz, The American Constitution, Its Origin and Development (New York: W.W. Norton & Co., 6th rev. ed. 1983), 454.
104. John E. Semonche, Charting the Future, The Supreme Court Responds to a Changing Society, 1890-1920 (Westport, Conn.: Greenwood Press, 1978), 423.
105. Ibid., pp. 424-25.
106. Fish, "William Howard Taft and Charles Evans Hughes," supra n. 32 at 143 n. 108.
107. Semonche, Charting the Future, supra n. 104, p. 424.
108. 262 U.S. 522 (1923).
109. Unsigned editorial, New Republic, June 7, 1923, reprinted as "Exit the Kansas Court," in (ed.) Kurland, Felix Frankfurter on the Supreme Court, supra n. 85, at p. 140.
110. 259 U.S. 20 (1922).
111. 247 U.S. 251 (1918).
112. 257 U.S. 312 (1921).
113. Unsigned editorial, New Republic, Jan. 18, 1922, reprinted as "Taft and the Supreme Court," in Kurland, Felix Frankfurter on the Supreme Court, supra n. 85, pp. 49, 52 at p. 59.
114. 257 U.S. 184 (1921).
115. 259 U.S. 344 (1922).
116. See, e.g., Professor Frankfurter, "The Coronado Case," New Republic, Aug. 16, 1922, reprinted in Kurland, Felix Frankfurter on the Supreme Court, supra n. 85, p. 228.
117. 258 U.S. 495, 515, 516 (1922).
118. Id. at 518-519.
119. Felix Frankfurter, "The Supreme Court and the Interstate Commerce Commission," New Republic, Jan. 20, 1932, reprinted in Kurland, Felix Frankfurter on the Supreme Court, supra n. 85, at p. 228.
120. 261 U.S. 525, 562 (1923).
121. 272 U.S. 52 (1926).
122. See Humphrey's Executor v. United States, 295 U.S. 602 (1935).
123. See Gitlow v. New York, 268 U.S. 652 (1925).
124. Cooke v. United States, 267 U.S. 255 ( ).
125. Olmstead v. United States, 277 U.S. 438 (1928).
126. Katz v. United States, 389 U.S. 347 (1967).
127. Rehnquist, "Chief Justice I Never Knew," supra n. 49, p. 637 at p. 648.
128. Frankfurter, "Chief Justices I've Known," in (ed.) Kurland, Felix Frankfurter on the Supreme Court, supra n. 91, at p. 488.
129. William Howard Taft to H. S. Pritchett, April 25, 1923.
130. Charles Edwin Barker, With President Taft in the White House (Chicago: A. Knoch, 1947), 69.
131. Ibid., p. 71.