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.
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