The Forging of Judicial Autonomy: Political Entrepreneurship and the Reforms of William Howard Taft

The Forging of Judicial Autonomy: Political Entrepreneurship and the Reforms of William Howard Taft Justin Crowe Princeton University In his first four years as Chief Justice of the United States, William Howard Taft convinced Congress to pass two reform bills that substantially enhanced the power of the federal courts, the Supreme Court, and the Chief Justice. In this article, I explore the causes and the consequences of those reforms. I detail how Taft’s political entrepreneurship— specifically the building of reputations, the cultivation of networks, and the pursuit of change through measured action—was instrumental in forging judicial autonomy and, subsequently, how that autonomy was employed to introduce judicial bureaucracy. By asking both how judicial reform was accomplished and what judicial reform accomplished, I offer an analytically grounded and historically rich account of the politics surrounding two of the most substantively important legislative actions relating to the federal judiciary in American history. In the process, I also draw attention to a largely neglected story of political development: the politics surrounding the building of the federal judiciary as an independent and autonomous institution of governance in American politics. “The spirit of speed and efficiency lurking in the corpulent powerful than they had previously been. Thus, it does form of an ex-President of the United States has entered the not seem an exaggeration to say that, in only nine years Court and broken up its old lethargy.” on the Court, Taft had surpassed even his own wish of —Herbert Little in The American Mercury (1928) “reasonable betterment by practical means” (Taft hen, after an extensive career in politics, 1916–17, 10). William Howard Taft finally achieved his Judicial reform arrived in two installments.1 The Wlifelong goal and was appointed Chief first came in 1922, when, at the suggestion and urging Justice of the United States in 1921, the judiciary was, of Taft, Congress provided 24 additional district court in Taft’s own words, “likely to be swamped, and delay judges; granted the Chief Justice authority to transfer of justice” was “inevitable” (Taft 1922b, 34). The judges from overstaffed districts in one circuit to courts, highly decentralized and still using cumber- understaffed districts in other circuits2; and estab- some procedures like automatic appeals to the lished the “Conference of Senior Circuit Judges” (later Supreme Court, were lagging behind the pace of known as the Judicial Conference), an annual meeting change across the rest of America. When, after a rela- of the nation’s top judges that, under the direction of tively short tenure on the bench, Taft resigned from the Chief Justice, would survey the state of judicial the Court in 1930, the federal courts, the Supreme affairs and make proposals to Congress (42 Stat. 837). Court, and the Chief Justice were each significantly The second came three years later, when, again at the more independent, more autonomous, and more suggestion of Taft but this time at the urging of both 1Taft’s reform platform actually consisted of three proposals, but, since the third leg—authorization for the Supreme Court to promulgate a set of uniform instructions governing judicial proceedings in courts across the nation (48 Stat. 1064)—did not gain congressional approval until 1934 (four years after Taft had left the Court and passed away) and was not actually accomplished until the “Federal Rules of Civil Procedure” became effective in 1938, I focus only on the first two legs here. 2Such authority, which was contingent upon the approval of the senior circuit judges from both circuits involved in the transfer, complemented another power conferred by the 1922 act: the ability of senior circuit judges to transfer judges between districts within a given circuit. The Journal of Politics, Vol. 69, No. 1, February 2007, pp. 73–87 © 2007 Southern Political Science Association ISSN 0022-3816 73 74 justin crowe Taft and his Court brethren, Congress passed the Judi- gate 2003)—the building of organizational reputa- ciary Act of 1925,3 which drastically redefined the role tions, the cultivation of multiple networks, and the of the Supreme Court by converting much of its pursuit of change through measured action—in con- obligatory jurisdiction into certiorari (or discretion- structing political legitimacy for the federal judiciary. ary) jurisdiction (43 Stat. 936). The former established Third, I examine how Taft’s reforms transformed the the Chief Justice as the “head” of the entire judicial judiciary by introducing “executive principle” and branch and imposed greater structural hierarchy other trappings of modern bureaucracy. Finally, I offer within the court system; the latter unburdened the some concluding thoughts about how we might use Court and allowed it to return to its “higher the Taft example as a window into a broader, but as yet function”—interpreting the Constitution.4 With these unexplored, subject: the process of “building” the judi- two reform thrusts, Taft sparked a “double revolution” ciary as an independent and autonomous institution (Starr 1991–92, 965): he not only accomplished what of governance in America. a decade earlier would have seemed an Acknowledging the fact that the judiciary, no less impossibility—he had laid the groundwork for the than Congress or the president, is one of American federal judiciary in general, and the Supreme Court in government’s “separated institutions sharing powers” particular, to become a powerful institution of Ameri- (Neustadt 1990, 29), my focus on the development of can governance—but also accomplished it in a judicial capacity fits within the recent historical- manner that had theretofore been unseen—with institutionalist movement toward understanding judi- active judicial intervention in the legislative process. cial authority—and, in particular, the power of In this article, I seek to determine both the causes judicial review—as a politically constructed feature of and consequences of Taft’s judicial reforms.5 In doing American politics (Gillman 2002; Graber 1993; Whit- so, I ask two key questions about the politics of insti- tington 2005).6 However, reaching beyond judicial tutional development during the 1920s. First, how, review (and beyond deciding cases entirely) to the despite both the “fury” surrounding the Court at the variety of other ways in which—the variety of other time (Ross 1994) and the potential for “a durable shift functions through which—courts and judges exercise in governing authority” (Orren and Skowronek 2004, power, my concern is less with how judges rule7 than 123) inherent in Taft’s reform proposals, was judicial with the conditions that make it possible for judges to reform accomplished? Second, what, in terms of con- rule. That is to say, recognizing that judicial institu- crete and enduring changes for the exercise of judicial tions are built of far more varied and complicated power in American politics, did judicial reform components than simply the written opinions of accomplish? judges, I am interested in the politics surrounding the In answering these questions, I proceed as follows. development of those components—the politics of First, I outline two existing explanations of judicial altering the institutional environment of courts and reform and, finding that these approaches fail to judges through changes in, for example, jurisdiction, capture the character of the Taft reforms accurately, organizational structure, or budgeting. summarize an alternative paradigm—Daniel P. Car- In sum, this article tells two stories (or, perhaps penter’s theory of “bureaucratic autonomy” (2001). more accurately, two sides of the same story): how Second, transferring Carpenter’s conceptual frame political entrepreneurship was exercised in forging from agencies to courts, I explain the passage of the judicial autonomy and, to a lesser extent, how that landmark judicial reforms of the 1920s as the result of autonomy was employed to introduce judicial bureau- Taft’s construction, or “forging,”of judicial autonomy. cracy.8 The former is the story of an entrepreneur In particular, I emphasize the importance of three features of Carpenter’s exposition of the more widely used concept of “political entrepreneurship” (Shein- 6There is also a large body of formal-quantitative literature con- cerned with similar themes both in the United States (de Figueiredo and Tiller 1996; Segal 1997) and abroad (Helmke 2002; Ramseyer and Rasmusen 1997). 3The statute is also known as the “Judges’ Bill” because judges— 7This is the central focus of recent comparative inquiries into Supreme Court justices, in fact—authored and testified in favor phenomena such as “juristocracy,”“judicialization,”and “constitu- of it. tionalization” (Hirschl 2004; Shapiro and Stone Sweet 2002; Tate 4Though, in practice, only a relatively small percentage of the and Vallinder 1995). Court’s work involves constitutional interpretation. 8This does not mean the judiciary was wholesale made into a 5I draw here on a number of previous accounts of Taft’s actions as bureaucracy; rather, it simply means that familiar features of Chief Justice (Buchman 2003; Fish 1975; Hartnett 2000; Mason bureaucracy were embedded within the judiciary. Given its variety 1984; Murphy 1961; Murphy 1962a; Post 1998b). of distinctly un-bureaucratic institutional features—the fact that the forging of judicial autonomy 75 framing the terms of political debate and guiding Regarding the

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