TAFT COURT (1921–1930)

william howard taft became Chief Justice of the United States on June 30, 1921. Never before or since has any person brought such a range of distinguished experience in public affairs and professional qualifications to the bench. Taft presided over a court that included Justices of highly varied abilities and achievements. In 1921, oliver wendell holmes, already a great figure of the law, had served nineteen years on the Supreme Court. He remained on the Court throughout Taft's tenure and beyond. Holmes's only equal on the Court was louis d. brandeis, who had been on the Court barely five years at Taft's accession. Taft, a private citizen in 1916, had vigorously opposed the appointment of Brandeis to the High Court. Although they remained ideological opponents and although some mistrust persisted on both sides, they maintained cordial relations, carrying on their opposition in a highly civil manner.

The rest of the Court that Taft inherited lacked the stature or ability of Holmes and Brandeis. Three Justices, john h. clarke, mahlon pitney, and william r. day would retire within the first two years of Taft's tenure. Their retirements gave President warren c. harding a chance to reconstitute the Court. The President appointed his former Senate colleague george h. sutherland to one of the vacancies. The other two spots were filled by men strongly recommended by Taft: pierce butler and edward t. sanford.

The other Justices on the Court in 1921 were willis van devanter, james c. mcreynolds, and joseph mckenna. Van Devanter had been appointed to the bench by Taft when he was President. He, like Butler and Sanford, continued to be strongly influenced by the Chief Justice. During the Taft years, he served the Chief Justice in the performance of many important institutional tasks outside the realm of decision making and opinion writing. For example, Van Devanter led the drive to revamp the jurisdiction of the Supreme Court in the "Judges' Bill," the judiciary act of 1925. McReynolds, a Wilson appointee, was an iconoclastic conservative of well-defined prejudices.

Finally, Taft inherited Joseph McKenna, whose failing health impaired his judicial performance. In 1925, Taft, after consulting the other justices, urged McKenna to retire. McKenna was succeeded by harlan f. stone. Though deferential to Taft at the outset, by the end of the decade Stone became increasingly identified with the dissenting positions of Holmes and Brandeis. From early 1923 through Taft's resignation only that one change took place.

Because of the substantial continuity of personnel the Taft Court can be thought of as an institution with a personality and with well-defined positions on most critical issues that came before it. Outcomes were as predictable as they ever can be, and the reasoning, persuasive or not, was consistent.

Taft was a strong Chief Justice. He lobbied powerfully for more federal judges, for a streamlined federal procedure, for reorganization of the federal judiciary, and for greater control by the Supreme Court over the cases it would decide. The most concrete of Taft's reforms was a new building for the Court itself, though the building was not completed until after his death.

A second major institutional change was completed during Taft's term. In 1925 Congress passed the "Judges' Bill." The Supreme Court's agenda is one of the most important factors in determining the evolution of constitutional law. Until 1891 that agenda had been determined largely at the initiative of litigants. In 1891 the Court received authority to review certain classes of cases by the discretionary writ of certiorari. However, many lower court decisions had continued to be reviewable as of right in the Supreme Court even after 1891. The 1925 act altered the balance by establishing the largely discretionary certiorari jurisdiction of the Supreme Court as it has remained for six decades. The act was one of Taft's major projects. It relieved the docket pressure occasioned by the press of obligatory jurisdiction, and placed agenda control at the very center of constitutional politics.

The successful initiatives of the Court in seizing control of its own constitutional agenda and constructing a new home should not obscure the fact that the Court's institutional position was, as always, under attack during the 1920s. A spate of what were perceived as antilabor decisions in 1921–1922 led to calls from the labor movement and congressional progressives to circumscribe the Court's powers. In the 1924 election robert la follette, running as a third-party candidate on the Progressive ticket, called for a constitutional amendment to limit judicial review. Both the Republican incumbent, calvin coolidge, and the 1924 Democratic candidate, john w. davis, defended the Court against La Follette. The upshot of the unsuccessful La Follette campaign was a heightened sensitivity to judicial review as an issue and a firm demonstration of the consensus as to its legitimacy and centrality in the American constitutional system.

Much of the labor movement had supported La Follette's initiatives against judicial review, but labor specifically sought limitations on federal court labor injunctions. Labor's campaign against injunctions peaked in 1927 after the Supreme Court simultaneously declined to review a series of controversial injunctions in the West Virginia coal fields and approved an injunction in bedford cut stone company v. journeyman stonecutters, holding that a union's nationwide refusal to handle nonunion stone should be enjoined as an agreement in restraint of trade. Between 1928 and 1930 the shape of what was to become the norris-laguardia act of 1932 emerged in Congress. The impetus behind that law, the politics of it, indeed, the language and theory of the statute itself are rooted in the Taft years.

A description of the Court's institutional role must consider the relations between congress and the court in shaping constitutional law and constitutional politics. During the Taft years a dialogue between Court and Congress persisted on a variety of crucial constitutional issues. The decision of the Court striking down the first Child Labor Act in hammer v. dagenhart (1918) led to congressional interest in using the taxing power to circumvent apparent limitations on the direct regulatory authority of Congress under the commerce clause. The second Child Labor Act imposed an excise tax on the profits of firms employing child labor. That act was struck down as unconstitutional in 1922.

From 1922 on Congress had before it various versions of antilynching legislation—most notably the Dyer Bill, which had actually passed the House. Opponents of the antilynching legislation argued that it was an unconstitutional federal usurpation of state functions. In Moore v. Dempsey (1923), decided shortly after the Dyer Bill had nearly succeeded in passage, the Court held that a state criminal trial dominated by a mob constituted a denial of due process of law, appropriately redressed in a federal habeas corpus proceeding. Moore v. Dempsey did not establish that an antilynching law would be constitutional. Yet a conclusion that mob domination of a criminal trial did not deny due process surely would have been a constitutional nail in the coffin of antilynching laws. And, prior to Moore v. Dempsey the relatively recent precedent of frank v. mangum (1915) had pointed toward just such a conclusion. Considerations concerning the response of Congress regularly influenced the constitutional decision making of the Taft Court. When Taft was appointed, three important labor cases were pending that had been argued but not decided by the white court. The Court had reached an impasse. Two of the cases presented questions about the use of injunctions to restrain labor picketing. Section 20 of the Clayton Act appeared to deny the federal courts the power to issue such injunctions subject to certain exceptions, most notably the power to use the injunction to protect property from damage. American Steel Foundries v. Tri-City Labor Council presented questions of construction of this section, and truax v. corrigan, involving a state law, presented a constitutional variant of the Clayton Act problem.

In American Steel Foundries, Taft's first significant opinion as Chief Justice, the Court read section 20 to encompass protection of the property interest in an ongoing business from unreasonable or intimidating picketing or from illegal boycotts or strikes. Statutory construction thus preserved the injunction as a restraint on labor.

But not all state courts saw the issue as the Taft Court did. The Arizona Supreme Court read its statute to bar injunctions in labor disputes, at least where actual destruction of physical property was not threatened. In Truax v. Corrigan, decided a week after American Steel Foundries, Taft wrote for a majority of five, holding that Arizona had unconstitutionally denied employers the injunction in labor disputes. Truax in effect created a constitutional right to a labor injunction. It did so on two grounds. First, it held that employers were denied the equal protection of the laws insofar as their particular type of property interest was denied the same protection afforded other property interests. Second, it held that the failure to protect the interest in the continued operation of a business deprived the business owner of property without due process of law. Truax v. Corrigan was the cornerstone of the Taft Court edifice of industrial relations. Not only did the decision suggest that Congress could not constitutionally prevent the federal courts from granting labor injunctions, but it also ushered in a decade of the most intensive use of the labor injunction the country had ever seen. A desperate battle was fought to save the unionized sector of coal from competition from the newer, largely nonunion, southern mines. That union campaign was broken by dozens of labor injunctions upheld by the Fourth Circuit in a consolidated appeal. The Supreme Court's refusal to review those decisions in 1927 attracted larger headlines than all but the most significant of Supreme Court opinions ever get. The Fourth Circuit opinion later cost Circuit Judge John J. H. Parker a seat on the Supreme Court. In fact, however, his conclusion was an all but inevitable consequence of the Supreme Court's position in Truax v. Corrigan.

The industrial order that the Taft Court sought to protect from labor insurgency was itself built upon uncertain constitutional foundations. The Taft Court was not committed, unambiguously, to a laissez-faire market. The Court distinguished sharply between legislation regulating the price (wage or rent) terms of a contract and laws regulating other terms. Thus, in the best known of its apparent inconsistencies, the Taft Court held void a District of Columbia law prescribing a minimum wage for women, although only a year later it upheld a New York law establishing maximum hours for women. The Court also struck down a state statute regulating fees or commissions for employment brokers while intimating that other reasonable regulatory measures directed at employment brokerage would be upheld.

Sutherland, in his peculiar majority opinion in the minimum wage case—adkins v. children ' s hospital (1923)—seemed preoccupied with the redistributive aspects of the minimum wage law. There was nothing wrong with a legislative preference for a living (minimum) wage; the problem lay in imposing an obligation on the employer to pay it. One person's need, he argued, could not, in itself, justify another's obligation to satisfy it. The regulation of nonprice terms need not be redistributive in effect, for the costs of any such regulation could be recaptured by negotiated changes in price. If the Court was seeking to protect bargains against regulation with redistribution effect, then shielding price terms from governmental interference was the most visible and easily understood way to accomplish its purpose.

In general the Taft Court sought to maintain principled distinctions among three forms of economic activity. Government enterprise was subject to the usual constitutional constraints upon government. This form of economic activity was relatively unimportant in the 1920s, although in cases involving municipal utilities the Court had some opportunity to address such issues as contractual rate structure. The Court spoke more frequently to the problem of transition from private to public or from public to private enterprise. world war i had seen government control of the railroads, shipping, coal, and, to a lesser degree, labor relations generally. The Court had to develop principles of compensation to govern the takeover and return of such large-scale enterprises.

More important than the dichotomy between governmental and private economic activity was the distinction drawn between private activity affected with a public interest and the more general run of private economic endeavor. Upon this distinction turned the constitutionality of public regulation—including price regulation in some circumstances—of various forms of economic activity. Although the category of business affected with a public interest had been part of the Court's rhetorical stock in trade for almost half a century when Taft took his seat, it assumed particular significance through the decade beginning with a case from Kansas. In 1920, having survived the effects of a bitter coal strike, Kansas passed its Industrial Court Act, declaring all production and distribution of food, clothing, shelter, and fuel for human consumption or use to be business affected with a public interest. Public transportation and public utilities were also so labeled. The act forbade strikes, lockouts, and plant closings in all such industries except by order of the Kansas Court of Industrial Relations. Moreover, that court upon its own motion or upon the petition of virtually any person could adjudicate the fitness or adequacy of wages and prices in any such business. The act contemplated a form of compulsory arbitration to replace labor bargaining against a background of strikes and lockouts.

In a series of unanimous opinions the Supreme Court struck down one after another of these innovative aspects of the Kansas act. Taft, in the leading opinion, wolff packing corporation v. court of industrial relations (1923) held that the state could not, by legislative fiat, declare businesses to be affected with a public interest for purposes so comprehensive as to include supervision of their wage and price structures. Taft's opinion wholly failed to state a principled distinction between those businesses traditionally subject to price regulation (such as grain elevators), on the one hand, and meat packing, on the other. In obiter dictum he suggested that the competitive structure of the industry was not determinative of the legislature's power to regulate. But the opinion did acknowledge that long-established law permitted regulation of publicly conferred monopolies and of common carriers or inns even if not monopolies.

The Taft Court thus rejected a generalization, based on the war experience, that all basic economic activity could be defined as affected with a public interest. But the Court was not unmindful of the war's lessons. Unanimously it upheld the recapture provisions of the [Railroad] Transportation Act of 1920 despite the overt redistributive effect of the law. The act required the payment into a federal trust fund of half the profits earned by strong railroads, for redistribution to failing ones. The Chief Justice, at least, understood the recapture provisions as justified in part because the alternative to such a scheme might have to be nationalization. Furthermore, the Court had already gone to great lengths to uphold other, seemingly inevitable, characteristics of rate regulation in an integrated transportation system. The Interstate Commerce Commission (ICC), if it were to be effective at all, needed power to regulate joint rates over hauls using more than one line for a single journey. It was apparent that the apportionment of joint rates could be used to redistributive effect. In the New England Divisions Case (1923) the Court had already upheld the ICC's explicit consideration of the need to strengthen the weaker New England lines when it apportioned revenues from joint rates. It was a short step from such use of joint rates to the recapture provisions.

The Court's willingness to accept some qualifications of vested property rights in the interest of planning was not confined to such traditional areas of regulation as transportation and public utilities. The Court decided its first cases challenging general zoning ordinances in the 1920s and, on the whole, upheld the power, though not without significant dissent and important qualifications.

Despite the Court's upholding of zoning and of regulatory initiatives, the Taft Court has long been considered to have been ardent in imposing constitutional limits upon legislation that restricted vested property interests. That reputation is soundly based, although the extent to which the Taft Court differed from predecessor and successor Courts has been substantially exaggerated by felix frank-furter and his followers.

Perhaps the best known of the Taft Court pronouncements on the constitutional protection of property is Justice Holmes's opinion for the Court in Pennsylvania Coal Company v. Mahon (1923). Pennsylvania's Kohler Act required anthracite coal mining to be done so as to avoid subsidence of surface areas at or near buildings, streets, and other structures used by human beings. The Court held unconstitutional the application of the law to mining in an area where the mining company had conveyed surface rights, expressly reserving to itself and to its successors the subsurface mining rights.

Despite Brandeis's dissenting opinion, Holmes's opinion was moderate in tone and antithetical to the sort of dogmatics that characterized Sutherland's opinions in the wage and price regulation area. Indeed, Holmes's methodology was explicitly one that reduced the takingsregulation distinction to a matter of degree—as Holmes himself once recognized in a flippant reference to "the petty larceny of the police power." Moreover, the Court that decided Pennsylvania Coal decided the case of Miller v. Schoene (1928) five years later, upholding a Virginia law providing for the uncompensated (or less than fully compensated) destruction of cedar trees infected with cedar rust, a condition harmful only to neighboring apple trees.

The Court also had to face the implications of the constitutional protection of property in considering the methodology of public utility rate regulation. In a series of cases beginning in 1923 and proceeding throughout the Taft period, Justice Brandeis posed a major challenge to the "fair value" methodology of smyth v. ames (1895). Industry during the 1920s argued that the rate base—the "property" upon which the Constitution guaranteed a reasonable rate of permissible return—should be valued according to the replacement cost of capital items—despite a general inflationary trend, accelerated by World War I. Brandeis formulated a comprehensive critique both of this particular windfall calculation and of the rule that produced it. Brandeis first reformulated the problem in a characteristically daring way. The issue was not so much a vested right to a return on capital as it was the necessity for a level of profit that could attract the new capital required for effective operation of the public utility. Brandeis lost the battle for a new approach to rate-making. Yet here, no less than in other arenas for disputes over the constitutional protection of property, doctrinal lines had been drawn that anticipated the issues of the New Deal.

Traditional, genteel conservativism is neither overtly ideological in content nor strident in manner. In most respects the Taft Court was traditionally conservative. The Court was hostile to labor and to any insurgency from the left, but the hostility usually took the form of a neutral defense of civil order. That neutrality, though it almost always worked against the left, was not explicitly one-sided and was, in fact, applied occasionally against rightist militant politics and street activity as well.

The constitutional defense of civil order entailed a strong commitment to ratify the acts of local government and of the national political branches so long as their power and authority were used to put down militant politics and especially politics of the street. Thus, the Court consistently upheld criminal syndicalism laws, even while recognizing, in gitlow v. new york (1925), that the first amendment limited state as well as federal legislative power. Moreover, in a theoretically interesting, though practically less significant case, the Court upheld a New York law requiring the registration and disclosure of names of members of certain secret societies—a measure directed against the Ku Klux Klan. Brandeis and Holmes repeatedly dissented in the criminal syndicalism cases, sketching an alternative version of the political process far more hospitable to insurgent initiatives for change.

A second pillar of the defense of civic order was the reliance upon independent courts as guarantors of vested property rights against street politics. To this end the injunction was elevated to a constitutional pedestal. Truax v. Corrigan, which constitutionalized capital's right to a labor injunction, must be seen not only as a part of a larger antilabor corpus but also as the link between that work and the principle of civic order.

For traditional conservatives the injunction had much to commend it. It was in the hands of politically independent judges, who were less susceptible than other officials to mass pressure. It was governed—or supposed to be governed—by neutral principles rather than special interests; it permitted the adaptation of principle to local needs and adjusted the level of intervention to that necessary to shore up appropriately sound local elites. No wonder, then, that the issue of the injunction pervaded the constitutional politics of the 1920s.

If Taft was committed to the courts' playing a dominant role in labor discipline and the guarantee of civic order, he was at the same time committed to an efficient, unintimidated, and uncorrupted judiciary to do the job. In Tumey v. Ohio (1927) he wrote for a unanimous Court striking down as a denial of due process an Ohio scheme through which a public official judging traffic violations was paid a percentage of the fines collected. Of greater significance was moore v. dempsey (1923), in which a divided Court upheld the power of a federal district court in federal habeas corpus proceedings to go behind the record of a state court murder conviction to determine whether the trial had been dominated by a mob.

Racist justice was a deeply rooted problem, not high on the conservative agenda for reform. Taft was, however, very concerned with the potential for corruption of the courts inherent in the great national experiment of the decade, prohibition. The Chief Justice realized that there were many opportunities for organized crime in the liquor business to buy friendly judges and other officials, especially in states where prohibition was unpopular. The Court refused to extend the protection of the double jeopardy principle to cases of successive prosecutions under state and federal law for substantially the same conduct. Part of the reason for this limit upon the double jeopardy principle was the potential under any contrary rule of insulating conduct from federal prosecution by securing a state conviction and paying a small fine. The Court's interpretation of federalism to tolerate structural redundancy was thus a major prophylactic against the dangers of local corruption of courts.

Like all its predecessors, however conservative, the Taft Court paid lip service to the idea that the people are sovereign and, consequently, that popular government is a pervasive and overriding principle in constitutional interpretation. Even though dissenters within the court (Holmes and Brandeis) and critical commentators without (Frankfurter, edward s. corwin, and thomas reed powell) claimed that the Justices ignored the presumption of constitutionality that ought to attach to the work of the popular branches, the simple fact is that no Justice denied, as an abstract principle, either the presumption of constitutionality or the deference that ought to be paid to legislative judgments. It was the application of the principle that divided the Court.

Most of the Justices were skeptical of the capacity of the masses intelligently to exercise the rights and discharge the obligations of participatory, popular government. Taft himself welcomed a leading role for elites in suppressing, or at least damping, the demands of the rabble and in representing the "better class" of citizens. But Taft's views in these matters were not very different from those of Holmes. Holmes doubted the capacity of the masses and considered a dominant role for elites in politics to be almost a natural law. Brandeis, the only real contrast, was considerably more committed to reform and to its promise. But he, in his own way, also distrusted the masses. He saw hope for change in a shift from a propertied oligarchy to a technically trained meritocracy. At the same time Brandeis understood the limits of this vision. His support of states ' rights and localism in politics and his hostility to concentration in industry had common roots: the recognition of limits to techniques of effective organization; the affirmation of political principles limiting concentrations of power; and the affirmation of the principles of maximum participation in public affairs. Chiefly in this last respect, Brandeis stood committed to a principle that the other Justices ignored or rejected.

In what ways did the general attitudes of the Justices to popular government affect the work of the Court? Perhaps the most direct effect was visible in the great, perennial debate over the power of judicial review. The Justices appear to have been unanimous in their private opposition to schemes such as that of LaFollette to limit the power of judicial review by statute or constitutional amendment. Even Brandeis, who was personally close to LaFollette and who supported the Wisconsin senator's positions on many substantive issues, opposed initiatives to curb the Court.

In at least one important area the Taft Court initiated a significant reform in the mechanics of popular government itself. The Court struck down the first version of the Texas system of white primaries which, through official state action, denied blacks the right to vote in statewide primary elections. nixon v. herndon (1927) was the first in a line of cases that ultimately destroyed the white primary device.

The Court upheld the power of Congress to conduct legislative investigations and to use compulsory process to that end. The Court also appeared to uphold an enlarged vision of an exclusive presidential power to remove executive officers. A special constitutional status for government of territories was approved. Finally, the Court struggled mightily but produced no satisfactory or consistent principles in the area of state taxation of commerce and state regulation of commerce.

The 1920s saw a determined attack upon the ethnic pluralism, the cultural and ethical relativism, and the absence of traditional controls that characterized a newly emergent urban America. The prohibition movement, resurgent religious fundamentalism, virulent nativism, and racism gave rise to a reactionary program for legal reform. In the area of prohibition the Court did more than give full effect to a constitutional amendment and its implementing legislation. The Justices also decided a host of criminal procedure issues in such a way as to arm the enforcers against what was perceived as a concerted attack on law and order themselves.

But the Court was actively hostile to groups like the "new" Ku Klux Klan. It not only upheld a Klan registration statute but also, in pierce v. society of sisters (1925), held invalid an Oregon statute that had effectively outlawed private schools. The law was the product of a popular initiative organized and vigorously supported by the Klan as part of its nativist and anti-Catholic crusade. The decision in meyer v. nebraska (1923) striking down laws forbidding the teaching of German in the schools also reflected the Justices' unwillingness to permit nativist sentiment to cut too deeply into the social fabric.

But the Court did uphold state alien land ownership laws directed principally against Asian immigrants and upheld the disgraceful national discrimination against Asian immigration in the face of constitutional attack. The Court also permitted the continuation of restrictive covenants in housing (corrigan v. buckley, 1926) and segregation in public schools (gong lum v. rice, 1927), though in each instance it avoided an explicit articulation of constitutional approval for these practices.

The constitutional work of the Taft Court extended over the customary broad area of national life, but it was dominated by the motif of conflict between property and labor. Civil strife, policies toward insurgency, free or regulated markets, confiscation—all were issues that arose principally from the overarching conflict. It is a measure of the Taft Court's achievement that, through Brandeis on the one hand and Taft on the other, a measure of clarity was achieved in articulating the implications of this conflict for constitutional structure and doctrine over a wide range of subjects. It was Taft's vision alone, however, that dominated the Court's action—consistently hostile to labor and its interests. The traditional conservative structure of property and order was one legacy of Taft's Court to the era of the Great Depression; Brandeis's vision—as yet wholly unrealized—was the other.

Robert M. Cover
(1986)

Bibliography

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