The Supreme Court Opinion as Institutional Practice: Dissent, Legal Scholarship, and Decisionmaking in the Taft Court Robert Postt 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, t 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, Jim Gordley, Morton Horowitz, Laura Kalman, Robert Kagan, Larry Kramer, David Lieberman, Sandy Levinson, David and Miranda McGowan, Paul Mishkin, William Nelson, Judith Resnik, Dan Rubinfeld, Reva Siegel, and Mark Tushnet. I am especially grateful for the stalwart and heroic efforts of Linda Lye, Cathy Shuck, and Sambhav Nott Sankar. Copyright 2001 by Robert Post. Many of the materials cited and quoted herein are archival and on file with the author. The Minnesota Law Review was thus unable to independ- ently verify this authority. Unless otherwise noted, figures are based on the independent research of the author or annual reports of the Attorney General of the United States. 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, July 1984, at 61. But, she added, "[tioday, the grandeur seems exactly appropriate." Id. Contempo- rary representations of the Court nearly always include images of its building. 2. CHARLES MOORE, WASHINGTON PAST AND PRESENT 126 (1929). 3. See GREGORY HANKIN & CHARLOTrE A. HANKIN, PROGRESS OF THE LAW IN THE UNITED STATES SUPREME COURT, 1929-1930, at 5 (1930); Letter from William Howard Taft to Senator Reed Smoot (July 3, 1925) (Taft Papers, Reel 275). In remarks at the laying of the cornerstone for the present Su- preme 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." Charles 1267 HeinOnline -- 85 Minn. L. Rev. 1267 2000-2001 1268 MINNESOTA LAW REVIEW [Vol. 85:1267 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 combine "all the beauty, charm and dignity of the Lincoln Memorial" with "the practical qualities of a first-rate office building."5 Al- though Taft never lived to see the building constructed, a plas- ter 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 6 nation." In part, Tats success was due to what Charles Evans Hughes accurately characterized as "his intelligent persis- tence."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 re- markable 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 Evans Hughes, Address at the Laying of the Cornerstone of the Supreme Court Building (Oct. 13, 1932), in Corner Stone of New Home of Supreme Court of United States is Laid, 18 A.B.. J. 723, 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 any- one else" for the construction of the contemporary Supreme Court building. Hughes, supra note 3, at 728. For a brief synopsis of Tafts intense lobbying campaign, see ALPHEUS THOMAS MASON, WILLIAM HOWARD TAFT: CHIEF JUSTICE 133-37 (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." 54 CONG. REC. 1660, 1716 (1917). 5. Letter from Cass Gilbert to William Howard Taft (Jan. 16, 1929) (Taft Papers, Reel 307). Gilbert remarked that this was "a combination rather diffi- cult to achieve, but nevertheless possible." Id. Although the classical ele- ments of the Supreme Court are often remarked upon, it was equally impor- tant to Taft and Gilbert that "[tihe practical, working elements of the building are as simple and modest and as sanitary as a modern office should be." Let- ter from Cass Gilbert to James M. Beck (Nov. 28, 1933) (Gilbert Papers). 6. Hundreds File Past Taft Bier in Capitol, N.Y. TIMES, Mar. 12, 1930, at 15. 7. Hughes, supra note 3, at 728. 8. Anne O'Hare McCormick, Building the Greater Capital:A New Wash- ington Rises As the Symbol of America's New Status, N.Y. TIMES, May 26, 1929 (Magazine), at 1. The real pressure behind the new Washington is the new Amer- ica. We have heard a good deal during the past few years of the HeinOnline -- 85 Minn. L. Rev. 1268 2000-2001 2001] OPINIONS AS INSTITUTIONAL PRACTICE 1269 in the 1920s9 reflected "the dawning consciousness that this capital is an equivalent of the Rome of Augustus." 0 Writing at the end of the decade, one commentator noted that "[tihe proudest boast of the Emperor Augustus was that he found Rome a city of brick and left it a city of marble. All Washingto- nians seem bent upon following in his footsteps and making our national capital, if not a marble city, at least a white city."1" The new Supreme Court building self-consciously partici- pated in this imperial metaphor. Gilbert, who had been per- sonally 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 United States as a great world power, perhaps the greatest. But that conception of our place in the international scheme is new to Ameri- cans, and in the country at large has been discounted as political hy- perbole. 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 recog- nizes-wages, motor power, plumbing. Gradually our primacy has impressed ourselves. The capital, says Mr. Hoover, is "the symbol of the nation." Id. 9. See generally Emmet Dougherty, $50,000,000 To Add Beauty and Dignity to Capital'sSkyline: Stately Edifices of ClassicDesign to Accommodate an Army of Clerks, N.Y. HERALD TRIB., Aug. 15, 1926, § 3, at 3. 10. McCormick, supra note 8, at 1. 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, N.Y. TIMES, Sept. 21, 1930 (Magazine), at 18. The most notable buildings either recently erected or soon to be erected include the Departments of Commerce, Justice, Posts and La- bor. Then we shall see arise in majesty a new building for the Su- preme Court, another for the Interstate Commerce Commission, the Archives Building, Independent Offices Building, House of Represen- tatives Annex and a number of lesser ones .... Id. 12. Taft, who had been Chair of the Lincoln Monument Commission, ini- tially looked to Henry Bacon, who had designed the Monument. Bacon in fact produced preliminary drawings of a Supreme Court building. See Carson C. Hathaway, At Last a Home for the Supreme Court:Highest Tribunalof Nation Never Had Its Own Building But After 136 Years Plans for One Are Now Drawn, N.Y. TIMES, Sept. 26, 1926 (Magazine), at 13; Letter from Taft to Smoot, supra note 3. Bacon died in 1924. Hathaway, supra, at 13. 13. Letter from Cass Gilbert to Benito Mussolini (Aug. 11, 1932) (Gilbert Papers). Gilbert admired Mussolini, and he actively sought the dictator's as- sistance 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 HeinOnline -- 85 Minn. L. Rev. 1269 2000-2001 1270 MINNESOTA LAW REVIEW [Vol. 85:1267 Rome was complex and multi-dimensional. It evoked associa- tions of Roman law,' 4 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 5 and "pure" classicism of the building acquired a hard and cold edge. It became "a building symbolic of the Court's intransige- ance," a "sepulchral temple of justice."16 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.