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THE SUPREME COURT OPINION AS INSTITUTIONAL PRACTICE: DISSENT, LEGAL SCHOLARSHIP, and DECISIONMAKING in the TAFT COURT Robert

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THE SUPREME COURT OPINION AS INSTITUTIONAL PRACTICE: DISSENT, LEGAL SCHOLARSHIP, and DECISIONMAKING in the TAFT COURT Robert THE SUPREME COURT OPINION AS INSTITUTIONAL PRACTICE: DISSENT, LEGAL SCHOLARSHIP, AND DECISIONMAKING IN THE TAFT COURT Robert Post School of Law (Boalt Hall) University of California at Berkeley Berkeley, California 510-642-9523 FAX: 510-643-2672 Working Paper 2001-1 Working Papers published by the Institute of Governmental Studies provide quick dissemination of draft reports and papers, preliminary analysis, and papers with a limited audience. The objective is to assist authors in refining their ideas by circulating results and to stimulate discussion about public policy. Working Papers are reproduced unedited directly from the author’s page. 1 Robert Post Draft 11 THE SUPREME COURT OPINION AS INSTITUTIONAL PRACTICE: DISSENT, LEGAL SCHOLARSHIP, AND DECISIONMAKING IN THE TAFT COURT† In 1921, when William Howard Taft became Chief Justice, the Supreme Court did not occupy the serene and imposing marble building that has since become its contemporary icon.1 Its courtroom was instead located in the old Senate Chamber, whose intimate, elegant surroundings echoed with the debates of Webster, Clay, and Calhoun.2 Its administrative staff and offices were scattered haphazardly and inefficiently throughout the Capitol.3 It was Taft who, with great skill and patience, seized the occasion to extract from Congress the resources to construct and design the present structure,4 which, in the words of its architect Cass Gilbert, was intended to † I am very grateful for the advice and insight of friends and colleagues. I would particularly like to thank Paul Carrington, Jesse Choper, Meir Dan-Cohen, Mel Eisenberg, Dan Farber, Phil Frickey, Barry Friedman, Howard Gillman, Morton Horowitz, Laura Kalman, Robert Kagan, Larry Kramer, David Lieberman, Sandy Levinson, David and Miranda McGowan, Paul Mishkin, William Nelson, Judith Resnik, Dan Rubinfeld, and Reva Siegel. I am especially grateful for the stalwart and heroic efforts of Cathy Shuck and Sambhav Nott Sankar. 1 Writing in 1984, Margaret P. Lord noted that to the Justices who first moved into the contemporary Supreme Court building in 1935, “the spaces were too huge, the corridors were too long and cold, the rooms too formal.” Margaret P. Lord, “Supreme Courthouse,” Connoisseur, Vol. 214, July 1984, p. 61. But, she added, “Today, the grandeur seems exactly appropriate.” Contemporary representations of the Court nearly always include images of its building. 2 Charles Moore, Washington Past and Present 126 (New York: The Century Co. 1929). 3 See William Howard Taft to Senator Reed Smoot, July 3, 1925 (Taft Papers, Reel 275); Gregory Hankin and Charlotte A. Hankin, Progress of the Law in the United States Supreme Court, 1929-1930 5 (Legal Research Service: Washington D.C. 1930). In remarks at the laying of the cornerstone for the present Supreme Court building, Charles Evans Hughes referred to the administrative facilities of the old Court as “shockingly insufficient. I doubt if any high court has performed its tasks with so slender a physical equipment.” “Address of Chief Justice Hughes,” 18 American Bar Association Journal 728, 728 (1932). 4 Hughes was speaking simple truth when he later observed that “we are indebted to the late Chief Justice William Howard Taft more than to anyone else” for the construction of the contemporary Supreme Court building. Hughes, supra note 3. For a brief synopsis of Taft’s intense lobbying campaign, see Alpheus Thomas Mason, William Howard Taft: Chief Justice 133-137 (Simon and Schuster: New York 1965). To get a sense of how remarkably innovative were Taft’s lobbying efforts on behalf of the new Supreme Court building, consider the 1917 remarks of Representative James R. Mann, when speaking to the question of the housing of the Supreme Court: The members of the Supreme Court of the United States can not go lobbying. They can not permit one of their employees to go lobbying. It is beneath their dignity, properly so, to even make a representation in reference to the matter. 2 combine “all the beauty, charm and dignity of the Lincoln Memorial” with “the practical qualities of a first-rate office building.”5 Although Taft never lived to see the building constructed, a plaster model of it was placed beside his casket as he lay in state at the Capitol, in tribute to “one of [his] last contributions to the nation.”6 In part, Taft’s success was due to what Charles Evans Hughes accurately characterized as “his intelligent persistence.”7 But in part it was also due to the mood of the nation in the decade after World War I. Despite the notorious budgetary astringency of Republican administrations, there was a remarkable and widespread conviction that Washington D.C. should be rebuilt “to make the national capital as splendid as our new status in the world.”8 The spate of federal construction in the 1920s9 reflected “the dawning consciousness that this capital is an equivalent of the Rome of Augustus.”10 The proudest boast of the Emperor Augustus was that he found Rome a city of brick and left it a city of marble. All Washingtonians seem bent upon following in his footsteps and making our national capital, if not a marble city, at 11 least a white city. 54 Congressional Record 1716, 64th Cong., 2nd Sess., January 19, 1917. 5 Cass Gilbert to William Howard Taft, January 16, 1929, (Taft papers, Reel 307). Gilbert remarked that this was “a combination rather difficult to achieve, but nevertheless possible.” Id. Although the classical elements of the Supreme Court are often remarked upon, it was equally important to Taft and Gilbert that “The practical, working elements of the building are as simple and modest and as sanitary as a modern office should be.” Cass Gilbert to James M. Beck, November 28, 1933 (Gilbert Papers). 6 “Hundreds File Past Taft Bier in Capitol,” New York Times, March 12, 1930, p. 15. 7 Hughes, supra note 3. 8 Anne O’Hare McCormick, “Building the Greater Capital: A New Washington Rises as the Symbol of America’s New Status,” The New York Times Magazine, May 26, 1929, p. 1. The real pressure behind the new Washington is the new America. We have heard a good deal during the past few years of the United States as a great world power, perhaps the greatest. But that conception of our place in the international scheme is new to Americans, and in the country at large has been discounted as political hyperbole. Very slowly the legend has acquired the vitality of a fact, predicated not upon a vague political pre-eminence but upon the clear evidence of our mechanistic supremacy. We begin to see ourselves first among the nations by the tangible standards the populace recognizes—wages, motor power, plumbing. Gradually our primacy has impressed ourselves. The capital, says Mr. Hoover, is “the symbol of the nation.” 9 See Emmet Dougherty, “$50,000,000 To Add Beauty and Dignity to Capital’s Skyline: Stately Edifices of Classic Design to Accommodate an Army of Clerks,” New York Herald Tribune, August 15, 1926, Section III, p. 3. 10 McCormick, supra note 8. 11 Fitzhugh L. Minnigerode, “Washington Doffs Its Brick for Marble: White Masterpieces of Architecture Replace Old Red Buildings as Townsmen Join the Government in Beautification Plan,” The New York Times Magazine, September 21, 1930, p. 18. The most notable buildings either recently erected or soon to be erected include the Departments of Commerce, Justice, Posts and Labor. Then we shall see arise in majesty a new building for the Supreme Court, another for the Interstate Commerce Commission, the Archives 3 The new Supreme Court building self-consciously participated in this imperial metaphor. Gilbert, who had been personally selected by Taft,12 designed the structure “to express the serious beauty and quiet refined splendor of a Courtroom of the classic period of Rome.”13 The architectural reference to Rome was complex and multi-dimensional. It evoked associations of Roman law,14 Roman power and virtue, and the stable equipoise of secure authority. By the time the Court actually moved into its new quarters in 1935, however, it had thrown down the gauntlet to the New Deal, so that the abstract and “pure” classicism15 of the building acquired a hard and cold edge. It became “a building 16 symbolic of the Court’s intransigence,” a “sepulchral temple of justice.” Building, Independent Offices Building, House of Representatives Annex, and a number of lesser ones . Id. 12 Taft, who had been Chair of the Lincoln Monument Commission, initially looked to Henry Bacon, who had designed the Monument. Bacon in fact produced preliminary drawings of a Supreme Court building. See Taft to Smoot, supra note 3; Carson C. Hathaway, “At Last a Home for the Supreme Court: Highest Tribunal of Nation Never Had Its Own Building But After 136 Years Plans for One are Now Drawn,” The New York Times Magazine, September 26, 1926, p.13. Bacon died in 1924. 13 Cass Gilbert to Benito Mussolini, August 11, 1932 (Gilbert Papers). Gilbert admired Mussolini, and he actively sought the dictator’s assistance in acquiring the Italian marble that Gilbert insisted be used in the courtroom. Gilbert met with Mussolini in June 1933 to discuss the situation: I said that I had thought it would interest him to know of these matters at first hand & that I wanted him to know of them from me, as I had the greatest admiration for him & for what he had done & is doing for Italy. I moved to withdraw. He put out his hand across the table & said very simply “Goodbye—Goodbye”! We shook hands & I turned & walked rapidly to the door, reaching which I turned sharply around and raised my hand in the Roman Salute—as he did the same.
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