The attached is a draft of Chapter 5 of the endless Volume X of the Oliver Wendell Holmes Devise History of the Supreme Court of the United States The chapter 5 discusses the Taft Court’s treatment of social and economic legislation. The Taft Court revived Lochnerism. It created precedents that in the next decade would directly contribute to the constitutional crisis of the New Deal. President Harding, who served for only two years, had remade the Court in his own conservative image by appointing a remarkable four Justices. Previous chapters in the history have discussed these individual members of the Court, as well as their dynamic interactions. Part I of Chapter 5 discusses the immense influence of World War I, when the American state for the first time acquired the economic and statistical expertise for large-scale social planning. Parts II and III examine the Taft Court’s struggle to assimilate and cabin the direct legacy of this influence. Part IV traces the renaissance of substantive due process jurisprudence, while Part V discusses the chef d’oeuvre of the Taft Court, Adkins v. Children’s Hospital, which struck down a congressional statute establishing minimum wages for women in the District of Columbia. Part VI discusses the creation of new Taft Court doctrine that struck down as unconstitutional all price fixing for property that was not “affected with a public interest.” Part VII queries why the Taft Court was so keen on protecting property, examining well-known cases like Meyer v. Nebraska, Pierce v. Society of Sisters, and Village of Euclid v. Ambler Realty Co. Part VIII concludes the chapter by sketching how the Taft Court’s ratemaking jurisprudence led directly to the rebellion of progressive Republican and Democratic Senators to the confirmation of Charles Evans Hughes as Taft’s successor. If you are pressed for time, I recommend reading Parts I-II; IV-VII. For ease of reading, I have converted all the footnotes to endnotes. They contain material that might be of interest to specialists. Robert Post Robert Post Draft 1 Please do not copy or cite without permission Chapter 5 The Taft Court: Social and Economic Legislation The newly elected President, Warren G. Harding, paraded down Pennsylvania Avenue on the day of his inauguration, March 4, 1921. Among the spectators was Justice Brandeis’s law clerk, Dean Acheson. The “most striking feature of the parade,” he later recalled, “was ‘the biggest broom ever made,’ gilded of handle, topped by an American flag, given to the President by an Oklahoma delegation to typify the ‘possibilities of change of administration from Democratic to Republican.’”1 Harding himself succinctly summarized the sweeping vector of change in his Inaugural Address: “[O]ur supreme task,” he said, must be “the resumption of our onward, normal way.”2 The nation had just passed through the furnace of World War I, the country’s first encounter with global warfare. It “learned that modern war” required not only battlefield tactics, but also “the organized mobilization of all the economic resources of a nation.”3 The Wilson administration responded by establishing “a most remarkable and unprecedented exercise of Federal power” that gave the government “control over corporate and individual existence which infinitely transcends the wildest dreams of those who advocate centralized authority.”4 Harding bitterly complained in 1918 that “the radicals at home are making the republic the realm of state socialism.”5 As President he intended to wield his gilded broom to cleanse the country of all such “abnormal conditions of war.”6 If “we shackled, regulated, restrained, reproved and revised during the war,” Harding proclaimed, if all this “was accepted as a war necessity,”7 it was now time to “[b]reak the shackles of war-time legislation for both business and citizens, because the war is actually ended . [G]ive us the normal ways of government and of men.”8 Nowhere did Harding’s broom produce more lasting change than on the Supreme Court. Although President for little more than two years, Harding appointed four Justices, producing what was then seen as an abrupt shift in the Court’s orientation toward social legislation.9 Montana District Judge George Bourquin, nominated by Taft in 1912, observed in a published opinion: It is said that Chief Justice White admitted that “in my time we relaxed constitutional guarantees from fear of revolution," and that Chief Justice Taft declared that "at a conference I announced ‘I have been appointed to reverse a few decisions,’ and,” with his famous chuckle, “I looked right at old man Holmes when I said it.”10 By the end of Taft’s tenure, the verdict of the eminent political scientist Edward S. Corwin was that Taft had succeeded in his task. In 1932, Corwin noted that if the tendency of the White Court had been to express “expansive views of governmental power, although not always, Chief Justice Taft’s period, on the other hand, was one, frequently, of reaction toward earlier concepts, sometimes indeed of their exaggeration.”11 2 Harding’s appointments created a “significant divide in the history of the Supreme Court.”12 Writing in 1934, Felix Frankfurter observed that “after the World War, during the decade when William H. Taft was Chief Justice, the Court . veered toward a narrow conception of the Constitution . Between 1920 and 1930 the Supreme Court invalidated more state legislation than during the fifty years preceding.”13 The very institution whose jurisdiction had been expanded in 1914 to create a check against conservative state court interpretations of the federal Constitution14 had been so transformed by the time of Taft’s resignation in February 1930 that it could be attacked as “the zenith of reaction.”15 Contemporaries believed that the Court had become “particularly active since the World War in striking down legislation, both State and federal.”16 Fearing that the rush “Back to Normalcy” had transformed the Court’s jurisprudence,17 they castigated “the Taft Court” as “an anachronism in its attempt to restore the conditions of an earlier generation.”18 The actual story, however, is more complex. The nation’s extraordinary response to World War I forever altered the landscape of the country’s social and economic legislation. “The values of continuity and regularity, functionality and rationality, administration and management set the form of problems and outlined their alternative solution.”19 World War I made the necessity of planning all but inescapable, but it simultaneously provoked a fierce backlash in favor of older ideals of laissez-faire individualism. The result was a “new era”20 in which “planning reflected both the antistatism of American political culture and the modern search for national managerial capabilities.”21 Harding himself perfectly inhabited this confusion, appointing to his cabinet both the arch-conservative Andrew Mellon, who insisted “on a minimal role for government,”22 and the progressive engineer Herbert Hoover, who believed that after the “convulsion” of the war “there could be no complete return to the past.”23 The pairing was not inadvertent.24 The powerful Senator Henry Cabot Lodge had desperately wanted Mellon but recoiled at Hoover. Harding coldly forced his hand, telling him “Mellon and Hoover or no Mellon.”25 Taft’s personal ambivalence toward social and economic regulation, which we have already sketched,26 mirrored the muddle of Republican-dominated Washington in the new era of the 1920s. Taft would lead his Court into an erratic, jumbled jurisprudence that both restricted social and economic regulation in ways that would grow increasingly rigid and conservative, and yet that also affirmed regulation in ways that would have been all be inconceivable before the war. To unpack this complex story, we must step back and grasp the vast and subtle impact of World War I on American social and political thought. I. World War I and the American State With much pomp and ceremony, the Unknown Soldier was laid to rest in Arlington Cemetery on November 11, 1921. His burial commemorated the nation’s sacrifices during the Great War. The Supreme Court attended the burial.27 Chief Justice Taft was described as looking “strong, rosy, and cheerful.”28 Although the war had lasted only eighteen months, from April 6, 1917, to November 11, 1918, more than four-and-a-half-million Americans had been mobilized; 116,516 had been killed and 204,002 wounded.29 The European slaughter left Henry James, of all people, at a loss for 3 words. “One finds in the mist of all this as hard to apply one’s words as to endure one’s thoughts. The war has used up words; they have weakened, they have deteriorated like motor car tires.”30 James’s childhood friend, Oliver Wendell Holmes, was at first “disgusted by the vulgarities of the bogus sentiment” at the burial of the Unknown Soldier, but then “when I saw the coffin borne into the great rotunda of the Capitol, which became beautiful and impressive in the dim twilight, and afterwards saw the miles of people marching through, three abreast, from early morning into the next day, I realized that a feeling may be great notwithstanding its inability to get itself expressed.”31 World War I has today all but faded from memory. It has become “the forgotten conflict of America’s war-torn twentieth century.”32 Over time, the dead of other wars were buried in the tomb of the Unknown Soldier, and Armistice Day has evolved into Veterans Day.33 A visitor to Washington D.C. now “looks in vain for a national memorial to the soldiers of World War I.”34 This is startling, because the “epochal changes”35 wrought by the war “left the nation transformed.” 36 The war “was a pervasive presence in the lives of Americans”37 during the 1920s.