The Achievements and Perils of Chief Justice William Howard Taft Robert Post
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Judicial Management and Judicial Disinterest: The Achievements and Perils of Chief Justice William Howard Taft Robert Post William Howard Taft holds the significant observe that “Few public men have evoked such distinction of being the only person in the his- spontaneous and warm affection from the pub- tory of the nation to preside over two branches lic as has Taft. He is a dear man-a true of the federal government. He was President human.”4 from 1909 to 1913, and he was Chief Justice of This was a striking tribute to a man who theunited States from 1921 to 1930.1 had only eighteen years before been crushingly This achievement ought to have secured repudiated. Caught between Theodore Taft a prominent position within the history of Roosevelt’s New Nationalism and Woodrow the Court. Yet Taft has drifted into almost com- Wilson’s New Freedom, Taft was blasted as a plete professional eclipse. Although familiar reactionary, and managed to obtain only a hu- to specialists in legal history, Taft is no more miliating eight electoral votes in his 19 12 cam- known to the average lawyer or law student paign for reelection to the presidency. Taft took than are Chief Justices White, Fuller, or Waite. defeat graciously, however, and he quickly be- Taft’s contemporary obscurity is remark- came, in the famous phrase ofjournalist George able. When Taft died on March 8, 1930, the Harvey, “our worst licked and best loved Presi- nation convulsed in an overpowering and spon- dent.”5 Although Taft had been known as the taneous wave of mourning. He was widely char- father of the labor injunction since his days as acterized as “the most beloved of Americans,”* an Ohio state court judge, he mollified orga- and hailed by observers like Augustus Hand, nized labor during World War I by assuming then a federal district Judge in New York, as the joint chairmanship (with Frank P. Walsh) of “the greatest figure as Chief Justice since John the National War Labor Board. The Board Marshall.”3 Even Felix Frankfurter, certainly no shocked industrial leaders not only by explic- admirer of Taft’sjurisprudence, was moved to itly recognizing the right of American workers WILLIAM HOWARD TAFT 51 The administrative responsibilities of the chief justiceship became apparent to William H. Taft quickly after taking the oath of office on July 12. Two weeks after being sworn in, Taft learned that Deputy Clerk Henry McKenney had passed away, leaving no one authorized to issue official papers because the Clerk of Court, James D. Maher (pictured), had died on June 3. Told it was unneccessary to consult with the Associate Justices on summer recess, Taft unilaterally decided to appoint Assistant Clerk William R. Stansbury to fill the position. to unionize, but also by pledging official sup- Taft’s resignation: “Outstanding decisions: port for the right of employees to receive a none.”‘O “living wage.”6 Taft also transcended parti- It is not, of course, that Taft wrote few opin- san politics by opposing the leaders of his ions. Indeed, from October 1921 through July own party in courageously and publicly 1929, Taft authored 249 opinions for the Court. championing Woodrow Wilson’s campaign The prodigious nature of this accomplishment to join the League of Nations. As a result, can be seen by contrasting Taft’s output with Harding’s nomination of Taft for the Chief that of the four other Justices who served con- Justiceship in July 1921 was greeted with tinuously during those eight Terms: Holmes “almost unanimous approvaL”7 It was, as wrote 205 opinions for the Court, Brandeis 193, the The New York Times remarked, “a ‘come- McReynolds 172, and Van Devanter only 94.” back’ unprecedented in American political It is rather that Taft’s opinions were, as Holmes annals.”* put it, “rather spongy.”’* Although Taft We may ask, then, how this man, who, as authored a good many opinions that were, Walter Lippmann’s New York World observed, within the context of his time, quite impor- retired “as Chief Justice with the enduring af- tant, his writing was seldom crisp or elo- fection of his countrymen,” with a “career” quent.13 Taft’s opinions were often suffused that “has no equal in our history,”g could have with judicious common sense, which per- slipped so rapidly into such deep professional versely blurred the expression of any sharp- oblivion. The short answer, I think, may be edged and therefore memorable jurispruden- found in Time magazine’s pithy assessment of tial visi0n.1~ 52 JOURNAL 1998, VOL. I Thus, at the time of Taft’s death, even his I supporters recognized that “His name will not be . connected with any outstanding deci- The distinct characteristics of the office of sions-as are the names, for instance, of Chief Chief Justicewere forcibly impressed upon Tat? Justice Marshall and Chief Justice Taney.”I5 almost immediately after his appointment. Instead, Taft’s unique achievements were said Harding nominated Taft on June 30,192 1, and to lie in “his success as an administrator of the the Senate confirmed Taft on that same day. At complicated functions and activities of the [Su- the time Taft was in Montreal, sitting as an arbi- preme Court] . and his role as a supervisor of trator to determine the value of the Grand Trunk the Federal courts throughout the country.”l6 Railway Company, which was being national- His “lasting monument” was that he “laid the ized by the Canadian government.21Taft jour- foundation for a reorganization of the judicial neyed to Washington to take the oath of office administration in this country.”l7 Friend and at the Department of Justice on July 12. Re- foe alike acknowledged that Tafi “simplifiedand turning to Canada to his summer home in Murray expedited the processes of the [Supreme] court Bay, Quebec, he was telegraphed on July 30 by and greatly improved the administrationofjus- Justice Joseph McKenna, the Senior Associ- tice in the Federal courts.”l8 As Charles Evans ate Justice, that Deputy Clerk Henry McKenney Hughes accurately observed, Taft’s career “fit- had passed away.22 tingly culminated in his work as Chief Justice,” This posed a serious difficulty for the Court, because the “efficient administration of justice because its Clerk, James D. Maher, had died on was, after all, the dominant interest of his pub- June 3. At the time, federal law provided that lic life.”l9 the Clerk could only be appointed by the Hughes’ observation suggests an impor- Court.23 If the Clerk died, the Deputy Clerk tant distinction between Associate Justices and could “perform the duties of the clerk in his a Chief Justice. The primary task of Associate name until a clerk is appointed and quali- Justices is to decide cases and deliver opin- fied.”24 With the death of Deputy Clerk ions, whereas the work of the Chief Justice also McKenney, however, the Clerk’s ofice was, as includes administrative responsibilities for the Assistant Clerk William R. Stansbury tele- judicial branch of the federal government. graphed Taft, “now without an official head and Taft’s current obscurity strongly indicates no one authorized to issue official papers.”25 that enduring professional reputation de- Yet a Court could not be gathered to appoint a pends upon the former task, but not the lat- new Clerk. ter. Indeed, when Frankfurter praised Taft Taft promptly returned to Washington to as a great “law reformer” and accorded him meet with McKenna. Telegraphic consultation “a place in history . next to Oliver Ellsworth, with those Associate Justices who could be who originally devised the judicial system,”zo contacted proved unhelpful, which, as Taft he unwittingly revealed what a very small place wrote, “only shows what McKenna assured that is. me that the other members of the Court expect It is, however, a place whose comers I shall me to attend to the executive business of the attempt to illuminate. This paper shall assess Court and not bother them.” McKenna im- Taft’s contributions as Chief Justice, rather than pressed the point on his new Chief: “McKenna his generaljurisprudence as expressed through said I must realize that the Chief Justiceship his opinions. It is my hope that by so doing an was an office distinct from that of the Associ- important but largely overlooked aspect of our ates in executive control and was intended to judicial history may be excavated. In particular, be and all of the Associates recognized it, that I shall examine both the birth of the effort to in judicial decisions all were equal but in man- subject federal courts to a regime of efficient agement I must act and they would all stand by judicial management, and the simultaneous ori- if ever question was made.”26 Taft boldly and gin of important tensions between this regime promptly resolved “to do something without and traditional American norms ofjudicial dis- statutory authority”27 and appoint Stansbury interest. “de facto deputy clerk,”2*exacting “a common WILLIAM HOWARD TAFT 53 law bond from him to protect everybody.”29 He a large output were the chief had learned a valuable lesson about the dis- desideratum, he would be very good.34 tinction and prerogatives of the Chief Justice- ship. Taft’s genial and winning personality was par- Chief Justices are typically evaluated as to ticularly useful in managing the Court’s poten- how well they employ these prerogatives to tially contentious conferences. Holmes said administer the day-to-day functioning of the that “The meetings are perhaps pleasanter than Court. They are scrutinized for their handling I ever have known them - thanks largely to of small emergencies, like the death of Deputy the C.J.”35.The Justices also appreciated how Clerk McKenney, and for their ability to dis- “fairly” Taft distributed case assignments.36 pose efficiently of routinized institutional ne- Indeed, Harlan Fiske Stone later remarked that cessities like assigning opinions or moderating “there was never a Chief Justice as generous to the Court’s Conferences.