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Chief Justice William Howard Taft's Conception of Judicial Integrity: the Legal History of Tumey V

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Chief Justice William Howard Taft's Conception of Judicial Integrity: the Legal History of Tumey V 2017 Chief Justice William Howard Taft's Conception of Judicial Integrity: The Legal History of Tumey v. Ohio Joshua E. Kastenberg University of New Mexico - School of Law Follow this and additional works at: https://digitalrepository.unm.edu/law_facultyscholarship Part of the Courts Commons, Judges Commons, and the Legal Ethics and Professional Responsibility Commons Recommended Citation Joshua E. Kastenberg, Chief Justice William Howard Taft's Conception of Judicial Integrity: The Legal History of Tumey v. Ohio, 65 317 (2017). Available at: https://digitalrepository.unm.edu/law_facultyscholarship/416 This Article is brought to you for free and open access by the UNM School of Law at UNM Digital Repository. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of UNM Digital Repository. For more information, please contact [email protected], [email protected], [email protected]. CHIEF JUSTICE WILLIAM HOWARD TAFT’S CONCEPTION OF JUDICIAL INTEGRITY: THE LEGAL HISTORY OF TUMEY V. OHIO JOSHUA KASTENBERG* ABSTRACT In 1927, Chief Justice William Howard Taft led a unanimous Court to determine that, at minimum, the right to an impartial and independent judiciary meant that the judge had to lack a personal interest in the outcome of the trial. While the decision, Tumey v. Ohio, was based on a judge’s pecuniary interest, it was also part of Taft’s efforts to ensure that the nation’s judges, from the municipal courts to the Supreme Court had the public’s confidence in their integrity. Tumey, therefore, is not simply a decision on pecuniary interests. It can, and should, be applied to judicial elections, including the financing of elections and limits on election speech, as well as a judge’s association or relationships with the litigants. CONTENTS I. INTRODUCTION ....................................................................................... 317 II. JUDICIAL AUTHORITY, IMPARTIALITY, AND DECORUM, ON THE EVE OF THE “TAFT COURT” ....................................................................................... 324 A. Berger v. United States .................................................................. 326 B. Judicial Biography ........................................................................ 328 C. Taft and the Shaping of Judicial Governance................................ 337 III. THE “TAFT COURT” AND THE JUDICIAL CONTEMPT AUTHORITY ............ 341 IV. IMPARTIAL JUSTICE: TUMEY V. OHIO ...................................................... 355 A. Tumey’s Background .................................................................... 356 B. Tumey v. Ohio: The Decision ...................................................... 361 C. Kinship: The Taft Family ............................................................... 369 V. CONCLUSION: CONTEMPORARY USE OF THE DECISION AND AN ARGUMENT FOR INCORPORATING JUDICIAL INTENT IN THE FUTURE .......................... 373 I. INTRODUCTION On March 7, 1927, Chief Justice William Howard Taft wrote his younger brother Horace Taft, “I am going to deliver an opinion this morning in a very important alcohol prohibition act matter in Ohio.”1 Taft went on to explain that the Supreme Court’s decision did not address whether the so-called Volstead Act, which implemented the Eighteenth Amendment, was constitutional, but rather it addressed how Ohio’s system of prohibition enforcement violated due process.2 Ohio’s legislature had enacted a * Assistant Professor of Law, University of New Mexico School of Law. 1 Letter from William Howard Taft, Chief Justice, U.S. Supreme Court, to Horace Taft, Brother of Taft (Mar. 7, 1927) (on file in the Library of Congress). 2 U.S. CONST. amend. XVIII reads: Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the 317 Published by EngagedScholarship@CSU, 2017 1 318 CLEVELAND STATE LAW REVIEW [Vol. 65:317 prohibition statute as an analog to the Volstead Act. 3 Known as the “Crabbe Act,” Ohio’s law barred the possession of “intoxicating liquor.”4 After mailing his letter to his brother, Taft walked to the Supreme Court and assembled the Justices to announce the decision. Reported in newspapers across the country, the decision, captioned as Tumey v. Ohio, 5 determined that Ohio’s downward delegation of prohibition enforcement to municipal courts failed to ensure due process.6 One day before writing to Horace, Taft wrote to his son Charles Phelps Taft II that the Court had unanimously determined that the Crabbe Act was “invalid under the Fourteenth Amendment” and then stressed that the Justices found the Ohio law repugnant to fundamental rights.7 Tumey has become a benchmark for assessing judicial impartiality, but the legal history of the decision, including how it was shaped, has hardly been written about. Professor Robert Post, in an article titled “Federalism, Positive Law, and the Emergence of the American Administrative State: Prohibition in the Taft Court Era,” exportation thereof from the United States and all the territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited. Section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation. Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress. For more information on the implementation of the Eighteenth Amendment into law, see National Prohibition Act of 1919, ch. 85, 41 Stat. 305. Although the National Prohibition Act, more commonly called the Volstead Act, implemented the Eighteenth Amendment, it further restricted prohibition by making possession of alcohol, with limited exceptions, unlawful. For more information on the constitutionality of the Volstead Act, see Rhode Island v. Palmer, 253 U.S. 350 (1920). 3 An Act to Prohibit the Liquor Traffic and to Provide for the Administration and Enforcement of Such Prohibition and Repeal Certain Sections of the General Code, ch. 108, OHIO GEN. CODE 6212-15 (1919). This provision barred the possession of “any intoxicating liquors” within the state. Id. See, e.g., Ruppert v. Caffrey, 251 U.S. 264, 284 (1920). 4 See, e.g., Decker v. State, 150 N.E. 74, 75 (Ohio 1925); Krusoczky v. State, 140 N.E. 614, 615 (Ohio 1923). It appears through the available case law that the majority of prohibition violations in Ohio were not, under state law, dealt with as felonies, but rather were adjudicated in municipal courts where it was common for fines to be assessed. However, a person’s failure to pay an adjudged fine could result in imprisonment. 5 Tumey v. Ohio, 273 U.S. 510 (1927). 6 See, e.g., Ohio Liquor Courts Declared Illegal; Supreme Court Rules Costs as Judges’ Compensation Violates Constitution, N.Y. TIMES, Mar. 8, 1927, at 3; Highest Court Sounds Doom of Liquor Courts in Ohio, THE CINCINNATI ENQUIRER, Mar. 8, 1927, at 1, 10; Judge Cannot Profit by Own Decisions: Chief Justice Taft Gives Opinion in Case of Ohio Mayor, LEWISTON SUN (Maine), Mar. 8, 1927, at 1, 4; Ohio’s Dry Law Hit by Supreme Court, PHILADELPHIA INQUIRER, Mar. 8, 1927, at 1. 7 Letter from William Howard Taft, Chief Justice, U.S. Supreme Court to Charles Phelps Taft II, son of William Howard Taft and Mayor, Cincinnati (Mar. 6, 1927) (on file in the Library of Congress). http://engagedscholarship.csuohio.edu/clevstlrev/vol65/iss3/6 2 2017] LEGAL HISTORY OF TUMEY V. OHIO 319 placed Tumey as part of the Court’s authoritative—or “national”—expansion over the United States.8 Yet unlike decisions upholding Prohibition, Tumey placed restraints against its enforcement. Professor Post was not in error in analyzing Tumey in the context of Prohibition or the Court’s authoritative expansion, but to exclusively do so results in an incomplete historic analysis of the judicial intent underlying the decision. For instance, Tumey arose during Taft’s efforts to limit congressional attempts to govern the judiciary.9 The case was also decided at a time when Taft had been attacked as being beholden to corporate interests and therefore overly partial to wealthy litigants.10 Most importantly, Tumey was part of a line of cases and extrajudicial actions that Taft used to shape judicial ethics. A legal history centering on Taft’s conception of the duties and independence of judges, as well as constraints on judicial power, amplifies how he led a largely conservative, yet jurisprudentially diverse, Court to unanimously intervene in a state’s municipal court construct. While it may be correct, as legal historian Melvin Urofsky has pointed out, that during the period Taft sat as Chief Justice the justices limited their dissents in an effort to fend off Congressional efforts to narrow federal court jurisdiction, the justices did dissent in several appeals, particularly decisions involving criminal prosecutions.11 The unanimity underlying Tumey is also, in this light, a noteworthy element in analyzing Taft’s intent. Taft believed that Edward Tumey’s appeal from an Ohio conviction and sentence of a fine provided an avenue to force upon the states a base-line uniformity of judicial ethics that would bolster public confidence in the nation’s courts, including in its “inferior courts.”12 He also intended that this judicially crafted “base-line” would be 8 Robert Post,
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