TAFT, WILLIAM HOWARD (1857–1930)

William Howard Taft's life was amazing both for length of public service (1881–1930) and for the variety of his activities: prosecuting attorney in his native state of Ohio, superior court judge in Cincinnati, solicitor general of the United States, federal circuit court judge, governor general of the Philippine Islands, cabinet member, President of the United States (1908–1912), professor of law at Yale, and chief justice of the United States (1921–1930).

Taft appeared to be almost the prototype of a Chief Justice. Large of frame and good-natured, weighing well over 350 pounds, he filled out the popular image. His gallantry was famous. "I heard recently," Justice david j. brewer reported, "that he arose in a street car and gave his seat to three women."

Taft idolized Chief Justice john marshall. One day, passing by the west entrance to the Capitol, he paused in front of the bronze statue of Marshall. "Would you rather have been Marshall than President?" a friend asked. "Of course," Taft answered, "I would rather have been Marshall than any other American unless it had been Washington, and I am inclined to think I would rather have been Marshall than Washington. He made this country." Taft himself became the only man in history to occupy both the White House and the Supreme Court's center chair.

During theodore roosevelt's administration Taft rejected two opportunities to join the Supreme Court as associate justice. As successor to Roosevelt in the White House, Taft thought longingly about the future and pined to succeed aging Chief Justice melville w. fuller."If the Chief Justice would only retire," Taft lamented, "how simple everything would become!"

As President Taft signed Associate Justice edward d. white's commission as Chief Justice, he grieved: "There is nothing I would have liked more than being Chief Justice of the United States. I can't help seeing the irony in the fact that I, who desired that office so much, should now be signing the commission of another man." Rating Supreme Court appointments as among his most important presidential functions, Taft had the opportunity to appoint five associate Justices as well as the Chief—willis van devanter, horace h. lurton, joseph r. lamar, charles evans hughes, and mahlon pitney. Each appointment was a continuing source of pride to Taft, who at every opportunity underscored the importance of the judiciary.

Taft's cordial relations with Roosevelt did not last. Differences developed during Taft's presidency over questions of policy and administration. Finally the clash led to a split in the Republican Party. As a result, when Taft ran for reelection in 1912 Roosevelt ran as a Progressive. The upshot was a Democratic victory and the election of woodrow wilson as President.

After Justice Lamar died, rumor began to spread that the new President might, rising above party politics, follow the example of his predecessor's high-mindedness when in 1910 Taft had selected as Chief Justice a southern Democrat and Roman Catholic, Associate Justice Edward D. White. But Wilson appointed louis d. brandeis instead, and Taft, outraged by that appointment, declared that Brandeis was "not a fit person to be a member of the Court."

In 1919, Taft was off the public payroll for the first time. Soon he took a position at Yale, teaching constitutional law. Meanwhile, the chief justiceship seemed a remote possibility. Prospects brightened in 1920 with the smashing Republican victory of warren g. harding. Shortly after Harding's election the unblushing aspirant made the pilgrimage to Marion, Ohio. Taft was "nearly struck dumb" when the President-elect broached a Supreme Court appointment. Of course, the former President was available, but he made it clear that, having appointed three of the present bench and three others and, having vigorously opposed Brandeis's appointment in 1916, he would accept only the chief justiceship.

Taft's opportunity to achieve his ambition was not altogether accidental. During his presidency, when Chief Justice Fuller died, two choices loomed as possibilities—charles evans hughes and Edward D. White. The latter, seventeen years Hughes's senior, received the nod. Had Taft chosen Hughes, instead of White, his lifelong ambition would not have been realized.

The office of Chief Justice carries scant inherent power. He manages the docket, presents the cases in conference, and guides discussion. When in the majority, he assigns the writing of opinions. In 1921 Taft remarked: "The Chief Justice goes into a monastery." Yet it is difficult to think of a Chief Justice who more frequently violated the American Bar Association's canons of judicial propriety on so many fronts. During the presidency of calvin coolidge he was often a White House visitor. His political activities ranged widely over legislation and judicial appointments at all levels. In his choice of judges his alleged purpose was competence. But Taft even opposed selection of the eminent New York Judge benjamin n. cardozo, fearful lest he "herd with [ oliver wendell ] holmes and Brandeis." At the outset, he had kind words for harlan f. stone, indeed claimed credit for his appointment to the Court. But when Stone began to join Holmes and Brandeis, the Chief Justice became increasingly critical.

As institutional architect, Taft ranks second only to oliver ellsworth, the third Chief Justice, who originally devised the judicial system. Taft's best known extrajudicial achievement, "The Judges' Bill" of 1925, giving the Supreme Court control over its docket, passed with only token opposition. Soon Congress authorized other procedural changes Taft had long advocated. To achieve these reforms Taft lobbied Presidents and members of Congress and sought press support. The most striking example of his effectiveness as a lobbyist was his campaign for the marble palace in which the Court now sits. At the cornerstone ceremony, in October 1932, Chief Justice Hughes declared: "For this enterprise progressing to completion we are indebted to the late Chief Justice William Howard Taft more than anyone else. The building is the result of his intelligent persistence."

Taft's goals as Chief Justice were efficiency, prompt dispatch of the Court's business, and harmonious relations among his colleagues. His overwhelming desire was to "mass" the Court. For the ex-President, Brandeis's appointment had been "one of the deepest wounds that I have had as an American and a lover of the constitution and a believer in progressive conservatism." Naturally Taft anticipated strained relations with his new colleague. To smooth this possible difficulty he wrote Brandeis long letters on the desirability of taking prompt steps to make the Court more efficient. Such friendly appeals moved his brother Horace to predict: "I expect to see you and Brandeis hobnobbing together with the utmost good will." Taft's strategy worked. Soon he was able to write: "I've come to like Brandeis very much." The feeling was mutual. Brandeis thought of Taft as "a cultivated man" and enjoyed talking with him. The Chief Justice's brother thought Brandeis "had been taken into camp." Justice john h. clarke resigned because he believed that Brandeis could no longer be counted on to uphold the liberal stance.

"Things go happily in the conference room with Taft," Brandeis commented. "The judges go home less tired emotionally and less weary physically than in White's day. When we differ, we agree to differ without any ill feelings." It seems likely that certain of Brandeis's unpublished opinions reflect his high regard for the Chief Justice. In one decision in particular, the second child labor case, bailey v. drexel furniture co. (1922), Taft writing for the Court invoked the authority of hammer v. dagenhart (1918), a singularly conservative ruling. Yet, Brandeis went along with the majority, explaining: "I can't always dissent. I sometimes endorse an opinion with which I do not agree. I acquiesce." Brandeis's silence may have been the measure of Taft's gift for leadership.

In alexander bickel's volume, The Unpublished Opinions of Mr. Justice Brandeis (1957), eight out of eleven were prepared during less than ten years of Taft's chief justiceship. Taft went to great pains to create esprit de corps. Seemingly trivial personal considerations—the sending of a salmon to Justice willis van devanter, the customary ride he gave Holmes and Brandeis after the Saturday conference, the Christmas card that always went out to Justice joseph mckenna—all such thoughtful attention to highly dissimilar human beings contributed immeasurably to judicial teamwork.

Justice Van Devanter posed a unique problem. He was indispensable in conference where Taft was not always acquainted with judicial technicalities or even facts of the cases. But Van Devanter was "opinion shy." This, however, evoked no complaint from the Chief Justice, even if he wrote no opinions at all. Taft regarded him as "the mainstay of the Court" and dubbed him "my Lord Chancellor."

Taft was determined to make the Court's promptness "a model for the courts of the country." His colleagues, as Holmes said, approved the Chief's "way of conducting business … especially his disinclination to put cases over." To accelerate the Court's work, Taft urged cutting vacations from seventeen to twelve weeks and using various time-saving devices.

Taft's first major opinion, truax v. corrigan (1921), involved the constitutionality of an Arizona statute barring state courts from issuing injunctions in labor cases, except under special conditions. Owners of a restaurant sought an injunction against a boycott and picketing of their place of business. A majority of five Justices, concluding that the bar against injunctions denied due process of law and equal protection of the law, declared the act unconstitutional. "A law which operates to make lawful such a wrong as described in the plaintiff's complaint," the Chief Justice observed, "deprives the owner of the business and the premises of his property without due process of law and cannot be held valid under the fourteenth amendment. … The Constitution was intended, its very purpose was to prevent experimentation with the fundamental rights of the individual."

Taft's next major opinion, stafford v. wallace (1922), upheld broad federal power under the commerce clause, announcing that Congress had a "wide area of discretion, free from judicial second guessing." At issue was the packers and stockyard act of 1929, regulating the business of packers done in interstate commerce. The "chief evil" Congress aimed at was the monopoly of packers, "enabling them unduly and arbitrarily to lower prices to the shipper who sells, and unduly and arbitrarily to increase the price to the consumer who buys." In deciding Stafford Taft relied mainly on Holmes's majority opinion in swift v. united states (1905). "That case," wrote the Chief Justice, "was a milestone in the interpretation of the Commerce Clause of the Constitution. It recognized the great changes and development in the business of this vast country and drew again the dividing line between interstate and intrastate commerce where the Constitution intended it to be. It refused to permit local incidents of great interstate movements which, taken alone, were intrastate, to characterize the movement as such. The Swift case merely fitted the Commerce Clause to the real and practical essence of modern business growth."

Another example of Taft's effort to keep the Court "consistent with itself" was adkins v. children ' s hospital (1923) involving an act of Congress fixing the minimum wage for women and minors. Speaking for the Court, Justice Sutherland invalidated the act, relying primarily on Justice rufus peckham's reactionary decision in lochner v. new york (1905). Refusing to endorse Lochner, Taft and Holmes dissented: "It is impossible," the Chief Justice explained, "for me to reconcile the Bunting [ v. Oregon ] case of 1917 and the Lochner case and I have always supposed that the Lochner case was thus overruled sub silentio." Although Sutherland and Taft disagreed in Adkins, Taft could not bring himself to endorse Holmes's dissent because of its irreverent treatment of the freedom of contract doctrine. And in Wolff Packing Co. v. Court ofIndustrial Relations (1923) Taft for the Court approvingly cited Sutherland's Adkins opinion on that doctrine.

The year 1926 witnessed a significant decision in American constitutional history: the 6–3 ruling in myers v. united states upholding the President's power to remove a postmaster without the consent of the Senate. Said Taft: "I never wrote an opinion that I felt to be so important in its effect." The Chief Justice's unqualified appraisal reflects his White House experience. There were three dissenters—Holmes, james c. mcreynolds, and Brandeis. Brandeis wrote: "The separation of powers of government did not make each branch completely autonomous. It left each in some measure dependent on the other.… The doctrine of separation of powers was adopted by the [ constitutional ] convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but by means of the inevitable friction incident to the distribution of governmental powers among the departments, to save the people from autocracy."

Taft did not live to see the Court's later qualification of the President's power to remove executive officers. In humphrey ' s executor v. united states (1935) the President was denied executive power to remove a federal trade commissioner, appointed for seven years with the advice and consent of the Senate, on the score of inefficiency or neglect of duty. Speaking for the Court in that later case, Justice Sutherland, who had enjoyed most cordial relations with Taft, went out of his way to say that the authority of the Myers case remained intact. The Court did not adopt the views of the Myers dissenters, but shifted emphasis from the "simple logic" of Article II of the Constitution—that the removal power is inherently "executive"—to the theory that a postmaster "is merely one of the units in the executive department and hence inherently subject to the exclusive and illimitable power of removal by the Chief Executive whose subordinate and aide he is."

As Taft's tenure drew to a close, dissents came more frequently and vehemently. Holmes and Brandeis, who had dissented from Taft's first major opinion in Truax, dissented from his last major opinion in olmstead v. united states (1928). Justice Stone and even Justice pierce butler joined the dissenters. Taft, a crusader for stricter enforcement of the criminal law, narrowly construed the fourth amendment's ban on unreasonable searches and seizures by ruling that evidence obtained by wiretapping could be introduced at a criminal trial. In the face of hostile criticism of his Olmstead opinion, Taft declared privately, "If they think we are going to be frightened in our effort to stand by the law and give the public a chance to punish criminals, they are mistaken, even though we are condemned for lack of high ideals." Taft thought that Holmes's dissent was sentimental in declaring that "it is a lesser evil that some criminals should escape than that the Government should play an ignoble part."

Near the end, Taft winced nervously whenever he contemplated his probable successor. Knowing that President herbert c. hoover's attachment to Stone was "very great," Taft feared the worst: "I have no doubt that if I were to retire or die, the President would appoint Stone head of the Court." Once in the Chief Justice's good graces, Stone had fallen into profound disfavor. "He definitely has ranged himself with Brandeis and with Holmes in a good many of our constitutional differences." Nor was Stone's "herding" with the Court's "kickers" his only shortcoming. He was "not a great leader and would have a great deal of trouble in massing the Court." The Chief was not entirely without hope: "With Van and Mac and Sutherland and you and Sanford," he wrote to Justice Butler in 1929, "there will be five to steady the boat. So there would be a great deal of difficulty in working through reversals of present positions, even if I either had to retire or were gathered to my fathers, so that we must not give up at once."

Taft's triumphant march continued to the end, but the future was clouded with uncertainty. By 1929 the world he had known and the people on whom he relied were in eclipse. As the economy slid rapidly toward the abyss, government intervention was openly advocated. To combat these forces, Taft's determination stiffened. "As long as things continue as they are and I am able to answer in my place," he resolved to "stay on the Court in order to prevent the Bolsheviki from getting control." President Hoover, Taft thought, "would put in some rather extreme destroyers of the Constitution.…"

None of Taft's predecessors, with the possible exception of Marshall, entertained so expansive a view of the chief justiceship, or used it so effectively on so many fronts. Taft was a great administrator, a great judicial architect, a skillful harmonizer of human relations. Yet he is not commonly considered a great Chief Justice.

Alpheus Thomas Mason
(1986)