Taft Court (1921–1930)

Author:Robert M. Cover

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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

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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...

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