Due 3/11

Chief Justice as Chief Executive: Taft’s Judicial Statesmanship

KEVIN J. BURNS

William Howard Taft is the only Ameri- can to have served as the head of two branches of the national government. After his term as President (1909-1913), he was appointed Chief Justice in 1921 by his fellow Ohioan, Warren G. Harding. Taft was a remarkable success as Chief Justice, putting his formidable abilities to work strengthening the powers of the Chief Justice and reshaping both the Supreme Court and the federal judiciary as a whole. As a result of his lobbying, in 1922 Congress created the Conference of Senior Circuit Judges (now the Judicial Conference) and gave the Chief Justice and senior circuit court judges the ability to eliminate delays in the nation’s busiest courts by transferring judges between courts.1 Three years later, he convinced Congress to pass the 1925 Judges’ Bill, which tremendously expanded the Supreme Court’s certiorari jurisdiction and allowed it to focus on the most important constitutional and statutory questions of the day.2 These two reforms, taken together, made the Chief Justice the formal head and chief executive

of the federal judiciary and greatly increased the power of the Supreme Court. Felix Frankfurter wrote that for his reform work, “Chief Justice Taft had a place in history . . . next to Oliver Ellsworth, who originally devised the judicial system.”3

The scholarship on Taft, the Chief Justiceship, and the Supreme Court typically tells us two things about Taft and the Taft Court. First, it tells us that William Howard Taft was a judge at heart; he had never been a competent executive and had always wished to be Chief Justice rather than President. As Chief Justice, he was finally freed from executive responsibility and his true talents as a knowledgeable judge and skillful administrator were allowed to show them- selves. Louis D. Brandeis summed up the sentiment well: “It’s very difficult for me to understand why a man who is so good a Chief Justice . . . could have been so bad as President.”4 Second, it views the Taft Court as reactionary; the major modern work on the Taft Court insists that under Taft, the Court “retreated from progressivism,” giving “high

J O U R N A L O F

SUPREME COURT HISTORY

priority to protection of private property.”5

Even his judicial reforms have been seen as attempts to strengthen the courts in order to repress progressive legislation. One author argues that Taft was a “conservative” reformer, rejecting “social reform” and accepting “efficiency progressivism” only “to ward off specific threats to an indepen- dent federal judiciary and to preserve a social and political equilibrium which seemed ever precarious.” Thus, he concludes that Taft’s interest in judicial reform was “but rhetoric” to hide his true desire to protect property against democratic reformers.6 As Felix Frankfurter would later opine, “The Supreme Court under Taft had reached the zenith of reaction.”7

I will argue that the traditional view of Chief Justice Taft and his Court is incom- plete. First, modern scholarship, by seeing Taft as nothing but the Court’s chief bureau- crat, may not only miss Taft’s real executive abilities, but it may also fail fully to understand the executive powers wielded by the modern Chief Justice. I will show that as Chief Justice, Taft made himself a true chief executive, institutionalizing a political- executive power over a newly strengthened judiciary. Second, in contrast to the tradi- tional view that claims that Taft simply worked to strengthen the Court as an oligarchic defender of property, I will contend that Taft’s work to increase the Court’s efficiency was an explicit effort to decrease the costs of litigation in order to make the administration of justice more affordable and available to the poor.

This article will be divided into three parts. First, it will examine Taft’s work as Chief Justice to strengthen and expand the executive powers of his office; second, it will show the effects his reforms had in rejuve- nating the federal judiciary as a whole and strengthening the Supreme Court in particu- lar; and finally, it will explain, in Taft’s own terms, the progressive results of his judicial reforms.

The Chief Justice

Taft was deeply devoted to the judiciary, praising judges as “high priest[s] in the temple of justice . . . [with] obligations of a sacred character.”8 He saw that courts played a critical role in protecting the rights of individuals, yet he also realized that the great duties placed on the shoulders of the judiciary created high expectations. If the courts failed to dispense justice and appeared incapable of addressing the needs of the common man, Taft feared that the people would eventually reject not only the courts but the Constitution itself. Thus, he made the reformation of the judiciary a consistent theme of his tenure on the Court.9

The federal courts of the early twentieth centurywere highly decentralized and bogged down by cumbersome procedures; while the country was modernizing, the structure of the judiciary lagged far behind. Because most Chief Justices had been stringently apolitical—even refusing to advise Congress as it attempted to reform the judiciary10—the courts lacked a spokesman capable of articu- lating their needs to the political branches. As Chief Justice, Taft transformed his office, imbuing it with distinctly political and executive duties and making the Chief Justice the Court’s official representative and emis- sary to the political branches. In contrast to his predecessors, Taft insisted he had a duty to strengthen the courts by “suggest[ing] needed reforms and . . . becom[ing] rather active in pressing them” to Congress.11 He believed that the Chief Justice had a political role as chief executive of the Court, even comparing his role to the executive function of the British Lord Chancellor.12

Taft entered office with a reform agenda for the Court. In a 1922 article for the American Bar Association Journal, in what can easily be seen as the new Chief Justice’s State of the Judiciary missive, Taft proposed three specific reform measures to address the major problems besetting the courts. First,

48 JOURNAL OF SUPREME COURT HISTORY

15405818, 2018, 1, D ow

nloaded from https://onlinelibrary.w

iley.com /doi/10.1111/jsch.12165 by L

iberty U niversity, W

iley O nline L

ibrary on [09/03/2026]. See the T erm

s and C onditions (https://onlinelibrary.w

iley.com /term

s-and-conditions) on W iley O

nline L ibrary for rules of use; O

A articles are governed by the applicable C

reative C om

m ons L

icense

because of the increase in the number of federal cases, Taft called onCongress to create additional judgeships and establish a judicial conference that would provide “executive direction” to the judicial force. Second, he insisted that the federal rules of procedure ought to be simplified and streamlined by the judiciary, and to that end he asked Congress to permit the Supreme Court to reformulate the rules of procedure for suits at common law, just as it was allowed to formulate rules for equity and admiralty. Finally, he argued that the mandatory jurisdiction of the high court should be reduced and its certiorari jurisdic- tion concomitantly increased. By giving the Court broader discretion over its workload, he hoped to free it fromhearing trivial suits and to allow it to act as the highest court of appeals for the nation, ruling on key constitutional questions and settling circuit splits.13 Al- though Taft’s hopes for simplifying judicial procedure would not be achieved in his lifetime, he inaugurated a significant push for reform and convinced Congress to create the judicial conference and expand the Court’s certiorari jurisdiction soon after he took office.

As Chief Justice, the former President aggressively promoted his reforms, exerting every ounce of political influence he had, seeking support from his extensive network of allies in Congress, the judiciary, and the bar, and even among newspapermen.14

He launched vigorous campaigns to advance the 1922 and 1925 bills, testifying before Congress and speaking to various bar associations to whip up support for his proposals.15 As Taft’s judicial biographer Alpheus Thomas Mason wrote, no Chief Justice “before or since, worked so hard at lobbying.”16 Consequently, he was able not only to encourage Congress to consider what reforms might be necessary for the judiciary, but also to guide the legislative debate and advance the specific policies he believedwere most critical.17

His success relied on informal power and personal influence, but by his efforts, Taft

institutionalized the Chief Justice’s power to affect the political branches. He increased the Chief Justice’s formal power, particularly his ability as head of the Judicial Conference to lobby and engage in politics for the sake of reform. Thus, Taft not only gained significant reform legislation in the 1920s, he also set a precedent for future Chief Justices. His work “expand[ed] the very concept of the Chief Justiceship,” transforming the office and virtually requiring his predecessors to serve as “chief judicial reformer[s].”18

1922 Reform: The Chief Executive of the Judiciary

In 1921, when Taft assumed the Chief Justiceship, the federal courts faced two connected problems: the judiciary needed a greater number of district judges to keep up with its rapidly growing workload and it lacked “a head charged with the responsibil- ity of the use of the judicial force.”19

Although there was a hierarchy of courts, there was not a hierarchy of judges. Thus, although the Supreme Court was supreme (having the power to review the decisions of lower courts), there was no formal structure that permitted either the Chief Justice or senior circuit judges to preside over their colleagues in executive or administrative matters.20 As Felix Frankfurter wrote, “The system was without direction and without responsibility. Each judge was left to himself, guided in the administration of his business by his conscience and his temperament.”21

The 1922 reform bill helped to ameliorate these two problems by increasing the size of the federal judiciary and creating an institu- tional executive force in the form of the Conference of Senior Circuit Judges, headed by the Chief Justice.

Only a few days after he was sworn in, Taft emphasized the need for executive direction in the judiciary, writing to Brandeis, “Wemust have machinery of quasi-executive

CHIEF JUSTICE WILLIAM H. TAFT AS CHIEF EXECUTIVE 49

15405818, 2018, 1, D ow

nloaded from https://onlinelibrary.w

iley.com /doi/10.1111/jsch.12165 by L

iberty U niversity, W

iley O nline L

ibrary on [09/03/2026]. See the T erm

s and C onditions (https://onlinelibrary.w

iley.com /term

s-and-conditions) on W iley O

nline L ibrary for rules of use; O

A articles are governed by the applicable C

reative C om

m ons L

icense

character to mass our Judicial force where the congestion is, or is likely to be.”22 Thus, he lobbied Congress for a “flying squadron” of eighteen new federal judges, assigned not to specific states or districts, but to the nation at large. According to Taft’s proposed plan, the President would appoint eighteen judges with the advice and consent of the Senate, but the Chief Justice would have the power to determine, either by himself or after consul- tation with other judges or Justices, where these judges would hold court, moving them to the districts most in need of additional personnel, either to clear backlogs or keep up with the districts’ workloads.23 Taft’s sug- gestion went far beyond mere administrative efficiency. While shifting low-level civil servants between offices for the sake of efficiency would undoubtedly be an adminis- trative duty, Taft asked for a power that was essentially executive.24

The political implications of the transfer power raised substantial objections, especially in regard to prohibition and the enforcement of federal criminal law.25 In response to fears that judges from “dry” districts would be moved indiscriminately to “wet” areas, or vice versa, Taft insisted that he would refrain from playing prohibition politics.26 Yet even aside from the enforcement of the Volstead Act, the power to transfer judgeswould have enormous political repercussions. Since Taft was deeply concerned about rising disrespect for law and the seeming inability of some state courts to punish criminals and maintain order,27 it seems almost certain that he would have been tempted to move rigid law-and-order judges to areas known for lax enforcement of the law. The power to transfer judges would give the Chief Justice a significant political role in taking care that the lawswere faithfully executed.

Congress rejected Taft’s proposal for a group of at-large judges. Aside from concerns that imported judges would not understand local affairs, it was unwilling to separate the creation of new judgeships, which all

acknowledged to be necessary, from the political benefits of patronage. Nevertheless, it did agree to create a total of twenty-four new district judgeships.28 Moreover, the legislature created a mechanism by which judges could be transferred between courts. Under the new law, senior circuit judges could move district judges between districts and the Chief Justice could move district judges between circuits, with the agreement of the senior circuit judge in both circuits.29

Essentially, Congress created two levels of executive chiefs by increasing the formal powers of both the Chief Justice and the senior circuit judges.

Moreover, Taft’s endeavors to create an executive head of the judiciary were further realized with the creation of the Conference of Senior Circuit Judges. The Conference served a key bureaucratic function by providing detailed reports on the work of each circuit and district. At its yearly meet- ings, the senior judges submitted statistics for their circuits, showing the amount of business completed and remaining in each federal court and allowing a more complete under- standing of the workload and productivity of individual judges.30 This information showed

how the different districts and different judges dispose of their business, the demands of different classes of litigation upon court time, the expedition or delay in adjudica- tions . . . the relation between federal courts and state courts, and the work of the federal courts in regard to litigation involving no peculiar fed- eral questions.31

This information permitted Taft and the Conference to exercise its executive powers efficiently.

Most importantly, Taft believed that reports on the productivity of individual judges would be beneficial in “stimulat[ing] effective work of each judge in the reduction of arrears.”32 If a district or circuit remained

50 JOURNAL OF SUPREME COURT HISTORY

15405818, 2018, 1, D ow

nloaded from https://onlinelibrary.w

iley.com /doi/10.1111/jsch.12165 by L

iberty U niversity, W

iley O nline L

ibrary on [09/03/2026]. See the T erm

s and C onditions (https://onlinelibrary.w

iley.com /term

s-and-conditions) on W iley O

nline L ibrary for rules of use; O

A articles are governed by the applicable C

reative C om

m ons L

icense

continuously behind, the statistics and reports would allow the Chief Justice and the local senior circuit judge to understand the problem fully and transfer judges to correct it. And if, despite the best efforts of its judges, a circuit or district remained consistently behind, the Conference would have the data necessary to see what changes should be made by Congress in order to ensure “a more vigorous and scientific approach to the problems of administration of justice.”33

The Conference presented information on the administrative and personnel needs of each circuit and offered suggestions for policy changes to improve the administration of justice, helping to institutionalize the Chief Justice’s role as a lobbyist for the courts. Taft used the annual reports of the Judicial Conference as a platform from which to tell Congress and the country the state of the judiciary and recommend measures neces- sary for the health of the courts.34 Once again, Taft’s work was clearly both executive and political, not simply administrative. Felix Frankfurter explicitly pointed to the political nature of this role, arguing that the bill interjected the courts directly into the process of judicial legislation. Modern commentators have followed his lead, with one calling the Judicial Conference “the principal policy- making body of the federal judiciary.”35

Taft had become Chief Justice when the judiciary was disjointed and lacking in structure and accountability. Only one year after assuming office, he secured a tremendous reform that made the judiciary, in the words the Taft Court’s most prominent scholar, “a coherent branch of government” with the Chief Justice as the source of unity to promote efficiency in the administration of justice.36

The Court’s General Manager and Chief Lobbyist

As a result of the new formal powers granted him by the 1922 act, Taft saw the

potential to expand the Chief Justice’s informal influence further. Taft is famous for having advised Presidents on judicial appointments and for lobbying for the creation of an independent Supreme Court building; however, his extensive work to unify the federal courts, through soliciting needed information from lower court judges and serving as a general manager and unofficial disciplinarian, has too often gone unnoticed.

As Chief Justice, Taft advised, some- times without being invited to do so, Presidents Harding, Coolidge, and Hoover on their appointments to the high bench. During his tenure on the Court, Taft wielded significant influence over judicial appointees. Even today, modern literature continues to cite Taft as the exemplar of a Chief Justice who could control appointments to the high bench.37

As a practicalmatter, Taft had the greatest influence over judicial appointments during theHardingAdministration, playing somepart in the selection of Justices George Sutherland, Pierce Butler, and Edward T. Sanford.38

Harding’sAttorneyGeneral,HarryM.Daugh- erty, apparently assured the Chief Justice that he would only put forward judicial nominees of whom Taft approved.39 Taft’s impact can perhaps be best seen in the appointment of Butler. Not only did he personally advise Butler during the nomination and confirmation process, but he also appeared before the Senate Judiciary Committee to defend Butler’s reputation after Wisconsin Senator Robert LaFollette attempted to paint Butler as a corporate lawyer with inappropriate ties to railroads.40 His influence with Coolidge and Hoover was less pronounced, yet even during his later years, Taft seems to have had some pull with the White House. He supported Coolidge’s appointment of Justice Harlan F. Stone and reportedly refused to resign, even on his deathbed, until Hoover had promised to appoint Charles Evans Hughes as his replacement!41

CHIEF JUSTICE WILLIAM H. TAFT AS CHIEF EXECUTIVE 51

15405818, 2018, 1, D ow

nloaded from https://onlinelibrary.w

iley.com /doi/10.1111/jsch.12165 by L

iberty U niversity, W

iley O nline L

ibrary on [09/03/2026]. See the T erm

s and C onditions (https://onlinelibrary.w

iley.com /term

s-and-conditions) on W iley O

nline L ibrary for rules of use; O

A articles are governed by the applicable C

reative C om

m ons L

icense

Obviously, it is ultimately impossible to determine how much his recommendations influenced any President to nominate a candidate for the high bench. The Chief Justice had a large role in promoting Butler’s appointment and played a part in supporting the nominations of Justices Sanford and Stone. But in many cases Taft’s preferred candidate was passed over or overlooked; even Butler was only his second choice. He was merely Chief Justice, not President, and he lacked the power to ensure that his favored candidates were nominated. Nevertheless, his influence was substantial, and he seems to have wielded a veto over Supreme Court nominations. As Walter Murphy notes, “if Taft was only partially successful in getting his own candidates on the Court, he was completely successful in keeping out men who he thought would misinterpret the Constitution.”42

While his actions have raised questions of propriety, he believed that his involvement

was necessary for three reasons. As Chief Justice, he saw a duty, first, to guarantee that the Supreme Court did its work well; second, to protect the reputation of his Court; and third, to ensure that the judiciary would protect constitutional progressive reforms enacted by the political branches.

Upon taking the center seat, Taft was faced with a Court behind in its work, largely due to the infirmity of its older members. Between 1921 and 1924, Justice Mahlon Pitney had suffered a nervous breakdown, Justices William R. Day and Oliver Wendell Holmes, Jr. had absented themselves due to illness, and Justice Joseph McKenna was becoming mentally incapable of continuing to serve on the Court.43 Taft sought to ensure that new Justices would be capable of the labors required of a member of the Supreme Court, and he used his influence to support the nomination of judges whowere up to the task. As he wrote to Harding in late 1922, he wanted Justices who were “hard hitting,

Chief Justice William H. Taft worked hard to unify the federal courts, through soliciting needed information from lower court judges and serving as a general manager and unofficial disciplinarian. Above he is shown with the U.S. Circuit Court judges calling on President Calvin Coolidge at the White House in 1929.

52 JOURNAL OF SUPREME COURT HISTORY

15405818, 2018, 1, D ow

nloaded from https://onlinelibrary.w

iley.com /doi/10.1111/jsch.12165 by L

iberty U niversity, W

iley O nline L

ibrary on [09/03/2026]. See the T erm

s and C onditions (https://onlinelibrary.w

iley.com /term

s-and-conditions) on W iley O

nline L ibrary for rules of use; O

A articles are governed by the applicable C

reative C om

m ons L

icense

industrious . . . and very able lawyer[s]” marked by “eminent ability and judicial experience” and possessing the respect of “the Bar and the community.”44

Furthermore, Taft recognized that the Court’s legitimacy could easily be called into question because Republicans had so consis- tently controlled the Presidency, and there- fore federal judicial appointments, for decades. Between 1897 and 1921, when Harding named Taft Chief Justice, four Republican Presidents had appointed eleven Supreme Court Justices while Woodrow Wilson, the sole Democratic President during those years, had appointed only three. As Chief Justice, Taft argued that a bipartisan Court was necessary in order to protect the Court’s reputation. When Justice Day retired, he informed Harding that it would “aid the Court to increase the number of Democrats on the bench, there now being only two,” and he similarly wrote to Justice Willis VanDevanter that the appointment of a Democrat “would be a good thing for the Court and politically.”45 As the appointment process moved forward, Taft argued for Butler’s appointment in part because “[h]e is a Democrat.”46

Finally, Taft argued that the Court needed progressive jurists who were deeply attached to the Constitution. Taft has often been accused of seeking to appoint rigid conservatives to the bench,47 although Jonathan Lurie’s work has recently offered a more balanced reassessment,48 but Taft believed the Court needed to recognize that significant progressive reforms could be enacted under the Constitution and without violating its strictures. As he wrote to Elihu Root in 1922, he sought a delicate balance: “we ought not to have too many men on the Court who are . . . reactionary on the subject of the Constitution . . . [instead] we need men who are liberal” but who also believed that the maintenance of the Constitution’s guar- antees of individual rights remained “the corner stone of our civilization.”49 This was

not a new theme for Taft, who as early as 1919 had insisted that lawyers should play a key role in protecting progress, maintaining “the nice balance between private right and public necessity . . . in order that individual initiative and the spur of the advance of all by the advance of each shall not be lost.”50 It is worth recalling that Taft, traditionally de- picted as a rock-ribbed reactionary, opposed the Court’s rulings in Lochner v. New York51

and United States v. E.C. Knight52 and authored a stinging dissent in Adkins v. Children’s Hospital.53

Moreover, Taft’s influence went beyond judicial appointments and extended to a general managerial role in overseeing the personnel of the courts. He not only sought the appointment of strong new judges, but he also worked to hasten the retirement of weak sitting judges. In 1924, he wrote to then- Attorney General Stone, encouraging him to seek the retirement of an elderly judge on the Ninth Circuit who was no longer capable of fulfilling his duties. Taft evenwent so far as to recommend that, if the judge could not be prevailed upon to retire, Stone invoke a relatively unknown provision of the judiciary laws, which would allow the President to appoint a new judge to the Ninth Circuit, not replacing the older judge but effectively relieving him of his duties.54 Closer to home, Taft played a leading role in convinc- ing the ailing Justice Joseph McKenna to retire. Having consulted with McKenna’s family and personal physician, Taft called a meeting of the other Justices, who agreed not to hand down any decisions whenMcKenna’s vote would determine the outcome of the case and encouraged Taft to pressure the Justice to resign.55 Despite his desire to remain on the Court, McKenna consented to retire out of respect for the unanimous opinion of his brother Justices.56

Finally, Taft used his personal influence to improve the administration of justice throughout the federal judiciary. He often wrote to his fellow judges to ask them for

CHIEF JUSTICE WILLIAM H. TAFT AS CHIEF EXECUTIVE 53

15405818, 2018, 1, D ow

nloaded from https://onlinelibrary.w

iley.com /doi/10.1111/jsch.12165 by L

iberty U niversity, W

iley O nline L

ibrary on [09/03/2026]. See the T erm

s and C onditions (https://onlinelibrary.w

iley.com /term

s-and-conditions) on W iley O

nline L ibrary for rules of use; O

A articles are governed by the applicable C

reative C om

m ons L

icense

information on the state of affairs in their district or circuit. Upon assuming the Chief Justiceship, he almost immediately wrote personal letters to every senior circuit judge, asking for information about their circuits and soliciting suggestions for reform.57 By all accounts, the judges appreciated the gesture; they understood that the Chief Justice was making a concerted effort to show that they were all “parts of an articulated system of courts.”58

In other instances, Taft’s efforts were more disciplinary. He would write personal letters to slow judges, asking them to increase their efforts, both to protect the reputation of the federal judiciary and to give justice to the litigants before them. To one tardy judge, who had put off deciding a case for four years, he wrote “I write in the interest of the administration of justice, and for the

reputation of the Federal Judiciary . . . I urge that you drop everything else and decide this case.”59 To another, he stressed the impor- tance of dispensing speedy justice: “I think it is a source of considerable irritation among litigants that their cases are not decided . . . One can acquiesce in an adverse conclusion by taking an appeal, but when two people have no means of taking an appeal, it leaves both in a situation of which theymay properly complain.”60 He used every ounce of influ- ence he had, even reminding one judge “my pride in you as one of my appointments is so great, that I thought it [appropriate] . . . to call this [delay] to your attention.”61

These letters went beyond mere verbal prodding from the Chief Justice, for Taft and the Conference had before them actual data from each court. Effectively, the Conference helped to institutionalize at least an informal

Chief Justice Taft not only sought the appointment of strong new judges, but he also worked to hasten the retirement of weak sitting judges. On his own court, he persuaded the ailing Justice JosephMcKenna (pictured with cane) to retire.

54 JOURNAL OF SUPREME COURT HISTORY

15405818, 2018, 1, D ow

nloaded from https://onlinelibrary.w

iley.com /doi/10.1111/jsch.12165 by L

iberty U niversity, W

iley O nline L

ibrary on [09/03/2026]. See the T erm

s and C onditions (https://onlinelibrary.w

iley.com /term

s-and-conditions) on W iley O

nline L ibrary for rules of use; O

A articles are governed by the applicable C

reative C om

m ons L

icense

sense of responsibility in the federal judges. Thus, Taft believed that the Conference “solidifies the Federal judiciary,” bringing “all the district judges within a mild disci- plinary circle” and making “them feel as if they are under real observation by the other judges and the country.”62 Of course, Taft had no formal authority over any federal judge. The purpose of creating executive power in his office was not to dominate lower court judges but simply to increase efficiency. As Taft himself acknowledged, “Judges should be independent in their judgments, but they should be subject to some executive direction as to the use of their services.”63 Thus, Taft not only understood the need for an executive to manage the judiciary but also recognized the importance of limiting the Chief Justice’s power to purely executive—not judicial— matters.64

Taft also engaged in more clearly political affairs. Believing that the Supreme Court needed a home of its own, he

successfully lobbied Congress for funds to construct a separate building for the Supreme Court.65 Taft did not live to see the erection of the current Supreme Court building, but his efforts ensured the ultimate success of the project. At the laying of the cornerstone for the new building, Chief Justice Hughes observed, “we are indebted to the late Chief Justice William Howard Taft more than to anyone else . . . this building is the result of his intelligent persistence.”66 It is thanks to Taft that the Supreme Court no longer meets beneath the Capitol but has its own home, physically independent of the legislature. And this physical independence—now as then—is critically important for guaranteeing the political independence of the third branch.67

By expanding his influence beyond mere administrative duties to explicitly political matters, he helped guarantee strong appoint- ments to the bench, sought to ensure judicial accountability, and worked to promote the

Cass Gilbert’s model for the new Supreme Court building. When the cornerstone was laid in 1932, Chief Justice Charles Evans Hughes said of Taft, “This building is the result of his intelligent persistence.”

CHIEF JUSTICE WILLIAM H. TAFT AS CHIEF EXECUTIVE 55

15405818, 2018, 1, D ow

nloaded from https://onlinelibrary.w

iley.com /doi/10.1111/jsch.12165 by L

iberty U niversity, W

iley O nline L

ibrary on [09/03/2026]. See the T erm

s and C onditions (https://onlinelibrary.w

iley.com /term

s-and-conditions) on W iley O

nline L ibrary for rules of use; O

A articles are governed by the applicable C

reative C om

m ons L

icense

judiciary’s unity and independence. Overall, Taft successfully developed executive man- agement in the judiciary by making the Chief Justice the “substantive head of the third branch of government”68 endowed with “a distinctive managerial outlook.”69

The Supreme Court

If the 1922 Judiciary Act made the Chief Justice the formal head of the judiciary, the Judges’Bill of 1925 made the Supreme Court fully supreme over the lower courts of the federal judiciary. It “established the basic jurisdiction of the modern Supreme Court” and gave it the power to “decide what to decide,”70 allowing it to focus exclusively on issues of constitutional and national impor- tance. As a result, Taft’s work to draft and lobby for the enactment of the 1925 law helped to reinforce the already burgeoning power of the Chief Justice and further unify the judiciary by transforming the Supreme Court into the highest appeals court in the land.

The Judges’ Bill

By 1925 the Supreme Court was inun- dated with work. The growth of the federal government, the modernization of industry, military contractors’ claims in the wake of the First World War, and litigation following the passage of the Volstead Act had overbur- dened its docket. This problem was exacer- bated by the outdated structure of the federal courts. Although the 1891 Evarts Act had constituted permanent circuit courts, com- posed of two circuit court judges and one Supreme Court Justice, these circuit courts had relatively limited jurisdiction and did not function as true intermediate courts of appeals.71 Because the circuit courts had relatively narrow jurisdiction, the Supreme Court’s obligatory jurisdiction typically

accounted for over eighty percent of its docket. As a result, litigants often waited for up to two years for a hearing, and the Court frequently took another three years to hand down a decision in important cases.72 The Judges’ Bill of 1925 alleviated these difficul- ties by substantially restricting the Court’s mandatory jurisdiction and increasing its discretionary certiorari jurisdiction.

The 1922 bill had strengthened the Chief Justice’s ability to ask Congress for legisla- tion to aid the Court and by 1925, Taft was using that power enthusiastically. Indeed, not only Taft but the Supreme Court as a whole actively supported the enactment of the Judges’ Bill. Because the American Bar Association had convinced Congress that a jurisdiction bill would be too complicated for the legislature to formulate on its own, Senator Albert B. Cummins of the Judiciary Committee had invited the Justices of the Supreme Court to author a reform bill.73 Taft created a drafting committee made up of Justices Day, Van Devanter, and James C. McReynolds, which was later aided by both Justice Sutherland and the Chief Justice himself.74 The entire Court—with the excep- tion of Justice Brandeis—approved of the bill, and Taft and Justices Van Devanter and McReynolds each spent two or three days lobbying for it on Capitol Hill.75 The bill was approved, without amendment, by a voice vote in the House and with only one dissenting vote in the Senate.76

By limiting direct appeals to the Supreme Court to a small class of cases, the Judge’s Bill reduced the Court’s burden by requiring most cases to be filtered through the circuit courts.77 Freed from the burden of hearing trivial cases and direct appeals, the Court could limit its docket to cases of true national importance. It retained mandatory jurisdic- tion over cases in which a state supreme court had struck down a federal statute or a state statute was held to be valid against a claim of unconstitutionality or conflict with a federal law.78 At the same time, the Court’s newly

56 JOURNAL OF SUPREME COURT HISTORY

15405818, 2018, 1, D ow

nloaded from https://onlinelibrary.w

iley.com /doi/10.1111/jsch.12165 by L

iberty U niversity, W

iley O nline L

ibrary on [09/03/2026]. See the T erm

s and C onditions (https://onlinelibrary.w

iley.com /term

s-and-conditions) on W iley O

nline L ibrary for rules of use; O

A articles are governed by the applicable C

reative C om

m ons L

icense

expanded certiorari jurisdiction permitted it to review any lower court decision that determined the constitutionality of a federal statute or treaty, affected the validity of a state statute said to be repugnant to the United States Constitution, laws, or treaties, or any decision in a case affecting “any title, right, privilege, or immunity” claimed under the Constitution.79

Essentially, the Judges’ Bill turned the SupremeCourt into a real final appellate court for important national issues involving indi- vidual rights or the power of the federal government. The Supreme Court could now focus solely on its higher duties, “first to secure uniformity of decision between those courts in the nine circuits, and second to bring up cases involving questions of importance which it is in the public interest to have decided by this Court.”80 As a result of its new discretionary power, the Court gained a tremendous amount of political power, guaranteeing it a key role in buttressing the authority of the federal government. In this way, the bill not only expanded the influence of the Supreme Court over lower courts, but also gave it an increasingly significant role in deciding questions of federalism, private rights, and public policy.

“Massing the Court”

As the Supreme Court began to focus on a different class of cases, the Chief Justice’s influence over the Court rose, particularly in the realm of building up and maintaining strong majorities of the Court in support of key decisions. During his tenure, he sup- pressed more than 200 dissenting votes,81

employing his power to assign cases,82

personal persuasion, and influence over legal culture to dissuade dissents, mass the Court around majority opinions, and strengthen the Court’s institutional reputation.

As Chief Justice, Taft used his power to assign opinions to promote unanimity,

assigning opinions to the Justice with exper- tise in the subject matter. He typically assigned patent cases to Justices John H. Clarke and McKenna, tax and rate cases to Justice Brandeis, admiralty cases to Justice McReynolds, and land and Indian disputes to Justices Van Devanter and Sutherland.83 This strategy went beyond assigning cases to the Justice most interested in the subject; Taft intentionally gave cases to the Justice most likely to produce a clear, well-written deci- sion that would unite the Court and deter dissents.84 From his brother judges, he demanded “carefully crafted opinions to meet the concerns of all of the Justices,” and he reserved the right to reassign a case simply because a Justice’s draft majority opinion failed to win sufficiently strong support.85

Thus, Taft had originally assigned the opinion in Sonneborn Brothers v. Cureton86

to JusticeMcReynolds, but because of serious objections to the draft opinion, the Chief Justice took over the case himself, carefully considered the dissenters’ views, and pro- posed a more conciliatory opinion. Although McReynolds authored a two-paragraph con- currence expressing his own ideas, the Court supported Taft’s opinion unanimously.87

Similarly, when McReynolds’s opinion in Railroad Commission v. Southern Pacific Co.88 failed to convince the more progressive members of the Court, Taft finally reassigned the majority opinion to himself. Holmes and Brandeis approved of his new opinion and joined the majority and McReynolds, al- though he initially protested and threatened to dissent, eventually conceded quietly.89

Taft held himself to this same high standard, and frequently altered his opinions to conciliate his brother Justices. In 1929, he agreed to eliminate a long discussion of the Interstate Commerce Clause from his opinion in Wisconsin v. Illinois90 to avoid dissenting opinions. As he wrote to Justice Butler, “it is a real sacrifice ofmy personal preference. But it is the duty of us all to control our personal

CHIEF JUSTICE WILLIAM H. TAFT AS CHIEF EXECUTIVE 57

15405818, 2018, 1, D ow

nloaded from https://onlinelibrary.w

iley.com /doi/10.1111/jsch.12165 by L

iberty U niversity, W

iley O nline L

ibrary on [09/03/2026]. See the T erm

s and C onditions (https://onlinelibrary.w

iley.com /term

s-and-conditions) on W iley O

nline L ibrary for rules of use; O

A articles are governed by the applicable C

reative C om

m ons L

icense

preferences to the main object of the Court.”91

Beyond personal preferences, Taft rec- ognized that due concern for the constitu- tional and legal objections of potential dissenters would help to unite the Court. Thus in several cases, he accepted criticisms or concerns from draft dissents and incorpo- rated these ideas into his own opinions to appease the dissenting Justices.92 In United Mine Workers v. Coronado Coal Co., Taft adopted much of Brandeis’s reasoning and held that, while a union and its local branches could be sued for lawless acts during a strike, the national board of the United Mine Workers could not be held liable for the actions of local strikers, as it had not sanctioned or participated in the illegal acts.93 Brandeis was satisfied with the compromise and the decision was handed down unanimously.

Similarly, in American Steel Foundries v. Tri-City Trades Council, Taft helped to unify a badly fractured Court. The White Court had heard the case twice, but the Justices remained divided and heard the case again in 1921 after Taft took the center seat. Taft’s opinion, relying in part on arguments set forth by the liberals on the Court, upheld an injunction against a violent labor strike but also held that the workers had a right to strike and picket.94 As a result, Holmes joined the majority and Brandeis chose to concur separately rather than dissent, merely noting that he “concurs in substance in the opinion and the judgment of the Court.”95 When Justice Pitney hesitated to join the new, more liberal, opinion, Taft both incorporated several of Pitney’s suggestions and con- vinced him to suppress his other objections, arguing that “it is so unusual to get as many of the Court together . . . that we better let it go as the opinion has been approved.”96 Justice Clarke remained the lone holdout, but he did not write a dissent.97

Thus, Taft showed the potential of carefully refined legal arguments that would

appeal to virtually the entire high court, from Brandeis to Butler. Indeed, even Brandeis, more than any other Justice the ideological opposite of Taft, admitted that the Chief Justice showed great skill in addressing his constitutional concerns. With respect to Southern Pacific, Brandeis wrote, “I had written a really stinging dissent . . . [but] I suppressed my dissent because . . . the worst things [in the majority opinion] were removed by the Chief.”98 Similarly, he accepted Taft’s opinion in Chicago & Northwestern Railway Co. v. Nye Schneider Fowler Co.99 because “the opinion handles the matter so deftly that I think there will be no such lasting harm done as to require dissent. So as our Junior [Justice] says: ‘I’ll shut up.’”100

Taft’s successes in suppressing dissents arose in large part from his personality and generosity. Particularly in interpersonal mat- ters, he ensured ease, efficiency, and consen- sus. Holmes praised the genial Chief Justice, writing that “never before . . . have we gotten along with so little jangling and dissen- sion.”101 Taft used personal persuasion to convince his fellow Justices to modify their own views to bring in dissenters. When the Court was deciding American Railway Express Co. v. Kentucky,102 he recognized that Brandeis had valid complaints against McReynolds’s majority opinion; managed to make Brandeis’s more liberal views palatable to McReynolds’s more conservative ear; and ultimately convinced McReynolds to adopt Brandeis’s arguments as his own. This compromise evidently caused Brandeis, Holmes, and Stone to suppress dissents.103

The Court decided the case 7-2, with only Sutherland and Butler dissenting without opinion.

Beyond his powers of personal persua- sion and his use of the assigning power, Taft also helped to craft a legal culture that frowned on dissents. The 1924 code of judicial ethics emphasized the importance of unanimity in Cannon 19:

58 JOURNAL OF SUPREME COURT HISTORY

15405818, 2018, 1, D ow

nloaded from https://onlinelibrary.w

iley.com /doi/10.1111/jsch.12165 by L

iberty U niversity, W

iley O nline L

ibrary on [09/03/2026]. See the T erm

s and C onditions (https://onlinelibrary.w

iley.com /term

s-and-conditions) on W iley O

nline L ibrary for rules of use; O

A articles are governed by the applicable C

reative C om

m ons L

icense

It is of high importance that judges constituting a court of last resort should use effort and self-restraint to promote solidarity of conclusion and the consequent influence of judicial decision . . . . Except in cases of conscientious difference of opinion on fundamental principle, dissenting opinions should be discouraged in courts of last resort.104

This reigning legal culture undoubtedly helped Taft to promote unanimity on the Court.Butwhile legal culture helped theChief Justice mass the court, Taft himself helped to maintain that culture, as he had chaired the committee that authored Cannon 19.105

The Court’s efforts to maintain unanim- ity were critical for countering the more

radical political forces of the day, and the policy of suppressing dissents helped to protect the Court and its legitimacy. As Taft wrote to Justice Stone, “I am quite anxious, as I am sure we all are that the continuity and weight of our opinions on important questions of law should not be broken any more than we can help by dissents.”106 The Court understood that the frequent public airing of disagreements would simply provide fodder for attacks on the judiciary. Using dissents to attack the legitimacy of the Court was so common among the more radical progressives that Taft once complained that Senator LaFollette “could find a good deal of material in Brandeis’s dissenting opinions.”107

Taft may have been somewhat unfair to Brandeis, for the political repercussions of

Chief Just Taft was successful in suppressing dissents on the Court because of his jovial personality, generosity, efficiency, and determination to build consensus. Oliver Wendell Holmes, Jr., (standing to the right of Taft in front of the White House at the annual courtesy call on the President) wrote that “never before . . . have we gotten along with so little jangling and dissension.”

CHIEF JUSTICE WILLIAM H. TAFT AS CHIEF EXECUTIVE 59

15405818, 2018, 1, D ow

nloaded from https://onlinelibrary.w

iley.com /doi/10.1111/jsch.12165 by L

iberty U niversity, W

iley O nline L

ibrary on [09/03/2026]. See the T erm

s and C onditions (https://onlinelibrary.w

iley.com /term

s-and-conditions) on W iley O

nline L ibrary for rules of use; O

A articles are governed by the applicable C

reative C om

m ons L

icense

dissents were abundantly clear to all of the Justices—even those most prone to dissent. Brandeis and Holmes, now often best remembered for their dissenting opinions, often hesitated to disagree openly with the Court. Holmes, the “Great Dissenter,” was known to be reticent “to express his dissent, once he’s ‘had his say’ on a given subject.”108

Brandeis, for his part, not only feared radical attempts to limit the Court’s power but recognized the importance of protecting the Court’s solidarity and reputation. As he wrote, “I have differed from the court recently in three expressed dissents and concluded that, in this case, I had better ‘shut up.’”109

Following an effort by Senator William Borah of Idaho to require a seven-vote majority on the Supreme Court to strike down a federal statute, Brandeis recounted the Court’s deliberations on one case, telling Frankfurter that the Court had “deemed [it] inadvisable to express dissent and add another 5 to 4 [decision] . . . The whole policy is to suppress dissents, that is one positive result of Borah[’s] 7 to 2 business . . . You may look for fewer dissents.”110

Throughout his tenure, Taft worked tirelessly to protect and strengthen the reputation of the judiciary by “massing the court” to hand down unanimous (or nearly unanimous) decisions.111 The percentage of unanimous Supreme Court decisions had fallen sharply just before Taft’s ascent to the center seat. In 1912, almost ninety percent of the Court’s opinions were unanimous, but by 1919 that number had fallen to just over sixty percent. In Taft’s first term as Chief Justice, the Court’s unanimity rate spiked back up above ninety percent and throughout his tenure, the Court would maintain una- nimity in an average of 91.4% of its opinions. Moreover, the Taft Court almost wholly eliminated one-vote decisions, with only 1.77% of cases being decided by a single vote.112

Through his efforts to ensure the passage of the Judges’ Bill, Taft helped to

buttress the Court as a whole, but he also saw the potential to expand the prerogatives and influence of the Chief Justice. And by using his personal influence alongside the Chief Justice’s assigning power, Taft unified and strengthened the Court as an institution, protecting its reputation and guarding its influence. Taft has often been seen as a judge at heart, but his leadership on the Court shows that he also had the mind of a successful executive.

Progressive Reforms in Service of the Constitution

As the federal government’s role ex- panded, the courts had been called upon to address vast new fields of litigation arising from the government’s broadening role in American life. Taft saw that the courts needed to be strengthened to meet the new demands placed on all three branches of American government. In this sense, his work to rejuvenate and strengthen the courts clearly aligned with the Progressive Era’s expansion of the role of government.113

Taft’s reform efforts on the Court were in line with progressive goals insofar as they both helped to centralize national power and institutionalized a “scientific approach to the problems of administration of jus- tice.”114 His interest in efficiency and his strong nationalism have received fairly wide recognition.115 But Taft’s goals extended beyond nationalism and efficiency, for he recognized that judicial reform would also advance social reforms, most notably by making access to the courts of justice more affordable for poor litigants. Thus, while he advanced efficiency-based reforms, he also understood that these reforms pointed to and promoted social progress. Finally, by show- ing that the Constitution and the govern- ment it created were capable of and open to reform, he also strengthened the Courts as a vehicle by which the Constitution and its

60 JOURNAL OF SUPREME COURT HISTORY

15405818, 2018, 1, D ow

nloaded from https://onlinelibrary.w

iley.com /doi/10.1111/jsch.12165 by L

iberty U niversity, W

iley O nline L

ibrary on [09/03/2026]. See the T erm

s and C onditions (https://onlinelibrary.w

iley.com /term

s-and-conditions) on W iley O

nline L ibrary for rules of use; O

A articles are governed by the applicable C

reative C om

m ons L

icense

protections of individual rights could be preserved.

The Courts and Progressivism

Typically, Progressives believed that the courts, and especially federal courts, should be substantially weakened in order to protect social reforms. For example, James Bradley Thayer’s classical argument for judicial restraint insisted that judicial review should be employed only in the most extraordinary circumstances, leaving the business of “checking and cutting down . . . legislative power” to the political process.116 Many members of the progressive movement sought to embody this principle of judicial humility in law. The Progressive Party platform of 1924 actually called for constitu- tional amendments to permit Congress to override a Supreme Court precedent by a simple majority and to do away with life terms for federal judges, instead shifting them to fixed, elective terms of office.117 These principles would have substantially altered the constitutional system of separation of powers; by severely limiting the power of the courts to act, they would have removed the courts as an institutional barrier against unconstitutional action by Congress.

While many progressives feared the courts and saw them as defenders of wealth, Taft pointed to the critical role played by the Court in our constitutional system of separation of powers and in Justin Crowe’s words, “successfully invoked Progressive era aims” to address the very “critiques of federal judicial power offered by Progres- sives.”118 The Chief Justice argued that the Constitution, including the federal courts created by Article III, was the foundation of American government and could continue to function alongside progress and reform. He believed that a written Constitution’s central feature was its permanence. Unlike the unwritten British constitution, which left

Parliament all but “omnipotent,” the United States had a written Constitution, a “fun- damental law” that “imposes limitations upon the powers of all branches of the Government.”119 Because the written Con- stitution creates permanent barriers to protect individual rights, the courts were a necessary instrument by which those rights could be protected against unconsti- tutional laws.120

Taft recognized the legitimacy of many Progressive complaints against the courts, but he sought to provide remedies for these concerns while also protecting the federal judiciary. He believed that much of the anger against the federal judiciary arose not because the courts had struck down unconstitutional laws, but because they were inefficient and failed to treat poor litigants fairly.121 Thus, while many progressives argued that the judges were unelected, life-tenured defenders of wealth and property, Taft sought to reform the courts while pointing out how these reformswould help to protect the poor against moneyed interests.122 In so doing, he strengthened the federal courts, but he did so while also attempting to alleviate the concerns of progressives who feared that the judiciary was unresponsive to the poor. He hoped that by “promoting dispatch in the disposition of litigation and reducing the cost thereof to the poor litigant,” he could help to remedy “the only real arguments that they have against our judicial system” and to legitimize and strengthen the federal judiciary.123

Thus, Taft’s goals were twofold. While he believed strongly in the importance of courts and constitutional government and was a firm advocate of judicial power, at the same time his clearly stated goals for judicial reform also show his interest in assuaging the plight of poor litigants who had suffered from the inefficiencies of the judiciary. He worked by traditional consti- tutional means to achieve ends sought by many progressives.

CHIEF JUSTICE WILLIAM H. TAFT AS CHIEF EXECUTIVE 61

15405818, 2018, 1, D ow

nloaded from https://onlinelibrary.w

iley.com /doi/10.1111/jsch.12165 by L

iberty U niversity, W

iley O nline L

ibrary on [09/03/2026]. See the T erm

s and C onditions (https://onlinelibrary.w

iley.com /term

s-and-conditions) on W iley O

nline L ibrary for rules of use; O

A articles are governed by the applicable C

reative C om

m ons L

icense

Cutting Costs, Simplifying Appeals, and Protecting Rights

In 1908, Taft had argued that the greatest defect of the national government was its “failure to secure expedition and thorough- ness in the enforcement of public and private rights in our courts.” Because the judicial machinery was “slow and expensive” it often failed to secure speedy justice, undermining the public’s faith not only in the courts, but even in the justice of the laws and the Constitution.124 Moreover, Taft recognized that the slowness of the judicial system did not harm all litigants equally. Instead, inefficient courts often helped the rich at the expense of the poor, as delays provided “a great advantage for that litigant who has the longest purse . . . [who] can almost always secure a compromise . . . because of the necessities of the poor plaintiff.”125 Taft believed that it was his duty to alleviate this “unequal burden” by reducing the “delays and expense of litigation.”126

By creating true intermediate courts of appeal and limiting the Supreme Court’s mandatory jurisdiction, the Judges’ Bill had reduced the costs of litigation by ensuring that most cases were appealed no more than once—from a district to a circuit court. Theoretically, guaranteeing poor litigants as many appeals as possible seemed to ensure just results, but Taft argued that, in practice, a right of appeal through numerous courts typically allowed a rich litigant, whether an individual or a corporation, “to hold these [poorer] litigants off from what is their just due by a lawsuit for a period [of several years], with all the legal expenses incident” to a lengthy legal battle. By limiting the number of possible appeals in most cases, the 1925 reform bill promoted a less expensive process, thereby helping to protect the poorer party.127

Similarly, Taft’s plans for reforming and simplifying the federal judiciary’s antiquated system of procedure would have reduced the

expense of litigation. Under the Conformity Act of 1872, Congress had required federal district and circuit courts to adopt state rules of procedure for all civil cases at common law, effectively requiring the judiciary to use four dozen systems of procedure. Taft asked Congress to delegate rulemaking for proce- dures at common law to the judiciary. Although his efforts were stymied by legisla- tive inaction, the reforms he championed would be achieved by his successor, Charles Evans Hughes, who finally convinced Con- gress to delegate rulemaking power to the Court and secured legislative approval of the Federal Rules of Civil Procedure.128

Moreover, Taft worked to decrease the direct costs of litigation in a number of small ways. As he wrote to Brandeis, “I am itching to reduce expenses to the litigants in our Court.”129 In 1926, he cut the Court’s printing costs by nearly fifty percent;130 having long believed that employing court officials on a fee-based income unduly raised costs for litigants, he encouraged Congress to shift the Supreme Court’s clerk to a fixed salary;131

and, in response to a plea from a country lawyer, Taft convinced the administration and Congress to guarantee a criminal defen- dant a free copy of his indictment, ending the practice of charging the accused for access to his own court records.132

Finally, the Taft Court began to expand federal protections of individual rights. More often than not, Taft is thought of as a reactionary conservative on the issue of rights, most memorably for his reticence to accept a more modern understanding of free speech, for example, in Gitlow v. New York,133Whitney v. California,134 andUnited States v. Schwimmer,135 and for his majority opinion in Olmstead v. United States, which held to the common law “Trespass Doctrine” and rejected more expansive readings of the Fourth Amendment.136 Nevertheless, Taft believed his reforms would give the Court the power it needed to protect individual rights. The Judges’ Bill freed the Court to

62 JOURNAL OF SUPREME COURT HISTORY

15405818, 2018, 1, D ow

nloaded from https://onlinelibrary.w

iley.com /doi/10.1111/jsch.12165 by L

iberty U niversity, W

iley O nline L

ibrary on [09/03/2026]. See the T erm

s and C onditions (https://onlinelibrary.w

iley.com /term

s-and-conditions) on W iley O

nline L ibrary for rules of use; O

A articles are governed by the applicable C

reative C om

m ons L

icense

give appropriate attention to “genuine issues of constitutional right of individuals,” ex- panding the national government’s role in protecting rights against state action.137 For Taft, this was a critical part of the federal judiciary’s duty. He had vehemently opposed proposed restrictions to the federal judi- ciary’s jurisdiction over claims of federal rights, not only because he believed that such limitations would unduly weaken the Court, but also because he recognized that such restrictions would give southern states carte blanche to strip African Americans of their rights.138 Without strong federal courts to reign in errant states, vulnerable minorities could be subject to “a practical deprivation of their Federal rights and protection.”139

Moreover, the Judges’Bill played a large part in allowing the Supreme Court to begin the process of incorporating the Bill of Rights. In 1916, Taft had written that the Fourteenth Amendment “vests in the National Government the power and duty to protect against the aggression of a State, every person within the jurisdiction of the United States in most of the personal rights, violation of which by Congress is forbidden in the first eight amendments to the Constitu- tion.”140 Almost a decade later, the passage of the Judges’ Bill coincided perfectly with the beginning of the process of incorporation; the bill was enacted in 1925, the same year the Court handed downGitlow v. New York,141 its first case incorporating a provision of the Bill of Rights. As Chief Justice, Taft was a part of theGitlowmajority, and he also supported the Court’s decisions in Meyer v. Nebraska142

and Pierce v. Society of Sisters.143 By convincing Congress to free the Court from the crushing burden of hearing trivial appeals, he ensured that the high court could give due attention to the protection of national rights through the process of incorporation. The Taft Court is almost universally viewed as hardline and conservative, but it did take critical initial steps toward protecting the vulnerable against moneyed interests and

guarding sidelined minorities against uncon- stitutional laws.

Clearly, Taft’s efforts as Chief Justice show his desire to promote efficiency and speed in the federal courts. But his own testimony suggests that Taft was attached not only to efficiency-based reform, but that he was even interested in encouraging social reform. By reducing expenses and simplify- ing procedures, he showed that the Constitu- tion and the federal courts created under it were capable of continuing to function justly and fairly even as the country developed. The most radical of the progressives had launched assaults on the federal courts, seeing the judiciary’s role in interpreting the Constitu- tion as an anti-democratic check on social legislation. Taft, seeing that the Courts had sometimes failed adequately to provide for the needs of the litigants before them, sought to reform the courts to ensure greater efficiency in attaining justice and protecting the Constitution’s guarantees of rights. His work was in line with progressive goals, but he met those goals by conservative means— working through the existing constitutional system and avoiding more radical reform measures that would have altered the struc- ture of the government or affected the separation of powers.

Conclusion

In an era of change and reform, the Court’s function would inevitably have been altered. Had then-President Taft appointed Charles Evans Hughes as Chief Justice in 1910 rather than elevating Edward D. White to the center seat, reform might have come sooner. But the specific reforms Taft achieved were hardly inevitable; they came about as a direct result of his political abilities and executive leadership on the Court.144 Indeed, Alpheus Mason actually argues that “[a]s a judicial architect, Taft is without peer,” even insisting that Hughes merely built up from a

CHIEF JUSTICE WILLIAM H. TAFT AS CHIEF EXECUTIVE 63

15405818, 2018, 1, D ow

nloaded from https://onlinelibrary.w

iley.com /doi/10.1111/jsch.12165 by L

iberty U niversity, W

iley O nline L

ibrary on [09/03/2026]. See the T erm

s and C onditions (https://onlinelibrary.w

iley.com /term

s-and-conditions) on W iley O

nline L ibrary for rules of use; O

A articles are governed by the applicable C

reative C om

m ons L

icense

foundation laid by Taft.145 It was Taft, particularly through the executive-political role he envisioned for the Chief Justice, who ensured the success of these reforms. As Allan Ragan has observed, if Taft was conservative in his desire for slow, steady reform in many areas, he was a liberal in the realm of judicial reform, “if not a confirmed radical.”146

Not only did Taft display impressive administrative and executive abilities, his interest in reform was tinged with progres- sivism, particularly in his concern for poor litigants in federal courts. Taft recognized that many Americans had real grievances against the inefficient and expensive federal courts. By working to remedy legitimate arguments against the inefficiency and ex- pense of the judiciary, he sought to show that the courts could continue to function and protect rights even as change continued in the United States.147 In effect, by making the administration of justice more just, Taft hoped to prove to the nation that the Constitution and the Courts created byArticle III were worthy of being maintained.

Taft’s efforts helped to maintain the constitutional system of separation of powers by making the Court sufficiently “strong and independent . . . [to] fulfill its constitutional purpose.” He faced no easy task, for at the time he assumed the bench “the federal courts were perilously close to abdicating their role.”148 It has sometimes been said that Taft’s reforms buttressed the power of the judiciary and helped the “Four Horsemen” to stanch the tide of the First New Deal until 1937. But if his work strengthened the Court in the early 1930s, it also invigorated the courts after 1937. Just as the “Four Horse- men” owed much of their power to Taft’s work, liberal Justices from Harlan F. Stone to Earl Warren may thank Taft for establishing the modern federal judiciary. By expanding the executive role of the Chief Justice and making the Supreme Court a true court of final appeal, Taft helped to strengthen the

judiciary, making it a fully coequal branch of the national government.149 As a later Chief Justice would recognize, the effects of Taft’s work remain “immeasurable.”150

ENDNOTES 1 Conference of Senior Circuit Judges, 42 Stat. 837

(1922). 2 Judges’ Bill, 43 Stat. 936 (1925). 3 Felix Frankfurter, Felix Frankfurter on the Supreme Court, ed. Philip Kurland (Cambridge: Harvard Univer-

sity Press, 1970), pp. 487-88. Ellsworth authored the

Judiciary Act of 1789 while in the United States Senate.

He would go on to serve as the third Chief Justice of the

United States, immediately preceding John Marshall. 4 Felix Frankfurter and Harlan Phillips, Felix Frank- furter Reminisces: An Intimate Portrait as Recorded in Talks with Dr. Harlan B. Phillips (New York:

Reynald & Company, 1960), p. 85. See Donald

Anderson, “Building National Consensus: The Career

of William Howard Taft,” U. Cincinnati L. Rev., 68

(2000): 351-53; Alpheus Thomas Mason, William Howard Taft: Chief Justice (New York: Simon and

Schuster, 1964), pp. 234, 269, 271, 299-301; Alpheus

Thomas Mason, “President by Chance, Chief Justice by

Choice,” Amer. Bar Ass’n J., 55, no. 1 (January, 1969):

35-36, 39; Peter Renstrom, The Taft Court: Justices, Rulings, and Legacy (Santa Barbara, CA: ABC-CLIO,

2003), pp. 35-36, 74, 184; Judith Resnik, “Building the

Federal Judiciary (Literally and Legally): The Monu-

ments of Chief Justices Taft, Warren, and Rehnquist,”

Indiana L. J., 87 (2012): 433-34. Note, however, that a

handful of scholars have noted (albeit very briefly) the

executive nature of Taft’s work: Robert Post, “Judicial

Management and Judicial Disinterest: The Achieve-

ments and Perils of Chief Justice William Howard Taft.”

J. Supreme Court History, 23, no. 1 (1998): 56, 59, 61,

67; Kenneth Starr, “William Howard Taft: The Chief

Justice as Judicial Architect,” U. Cincinnati L. Rev.

60 (1992): 963, 965-66; also possibly Justin Crowe, “The

Forging of Judicial Autonomy: Political Entrepreneur-

ship and the Reforms of William Howard Taft,” J. of

Politics, 69 (2007): 82; Mason, William Howard Taft, p. 232; Robert Post, “Judicial Management: The

Achievements of Chief Justice William Howard Taft,”

25-26, 29; and William Rehnquist, “Chief Justices

I Never Knew,” Hastings Constitutional Q., 3 (1976):

637, 641. 5 Renstrom, p. xii, also pp. 27, 30, 186. 6 Peter Fish, “William Howard Taft and Charles Evans

Hughes: Conservative Politicians as Chief Judicial

Reformers,” The Supreme Court Review 1975 (1975),

124-25, 145; also p. 126-30, 137, 144.

64 JOURNAL OF SUPREME COURT HISTORY

15405818, 2018, 1, D ow

nloaded from https://onlinelibrary.w

iley.com /doi/10.1111/jsch.12165 by L

iberty U niversity, W

iley O nline L

ibrary on [09/03/2026]. See the T erm

s and C onditions (https://onlinelibrary.w

iley.com /term

s-and-conditions) on W iley O

nline L ibrary for rules of use; O

A articles are governed by the applicable C

reative C om

m ons L

icense

7 Frankfurter, Felix Frankfurter on the Supreme Court p. 228. See variously, Anderson, “Building

National Consensus,”324-25, 340-41, 344, 354; Fish,

“William Howard Taft,” 125-28, 139, 144; Stanley

Kutler, “Chief Justice Taft and the Delusion of Judicial

Exactness. A Study in Jurisprudence,” Virginia L. Rev.,

48 (1962): 1407-408, 1416-19, 1422, 1424 (but cf. 1412,

1423); Mason, William Howard Taft,Chief Justice, pp.13-16, 43-45, 48, 52-53, 58-60, 64-65, 156-59,

174-77, 262, 264-45, 291-95, 303; Mason, “President

by Chance,” Chief Justice p. 37; Carl McGowan,

“Perspectives on Taft’s Tenure as Chief Justice and Their

Special Relevance Today,” U. Cincinnati L.Rev. 55

(1987): 1149-50, 1153-54; Henry Pringle, The Life and Times ofWilliamHoward Taft. (NewYork: Farrar and

Rinehart, Inc., 1939), Vol. II, pp. 967-68, 978-81; Allen

Ragan, Chief Justice Taft (Columbus, Ohio: Ohio State

Archaeological and Historical Society, 1938), pp. 7, 30,

44, 93-94, 119-21 (but cf. pp. 4, 41, 89); Bernard

Schwartz, A History of the Supreme Court (Oxford: Oxford University Press, 1993), pp. 206-7; Robert

Steamer, Chief Justice: Leadership and the Supreme Court (Columbia, SC: University of South Carolina

Press, 1986), pp. 161-62, 164, 167. 8 Taft, The CollectedWorks of William Howard Taft, ed. David Burton (Athens: Ohio University Press,

2001-2004), Vol. I, p. 123. 9 See, e.g. Taft, Collected Works, Vol. I: pp. 25-29, 336-41; Vol. II: pp. 10-16; Vol. IV, pp. 39-40; Taft,

“Needed Changes in Criminal Procedure,” Proceedings

of the Academy of Political Science in the City of New

York, 1, no. 4 (July, 1911): 620-24. 10 Van Devanter to Taft (May 11, 1927), Taft Papers. 11 Taft to FrankH. Hiscock (April 12, 1922); see alsoTaft

to Chauncey M. Depew (October 15, 1910), Taft Papers. 12 Taft, “Attacks on the Courts and Legal Procedure,”

Kentucky L. J., 5, no. 2 (1916): 14. 13 Taft, “Three Needed Steps of Progress,” Amer. Bar

Ass’n J., 8, no. 1 (Jan., 1922): 34-36. See also his earlier

thoughts on reform proposals, Taft, “The Attacks on the

Courts,” 14-15. 14 Lawrence Baum, The Supreme Court, 11th ed. (Los

Angeles: CQ Press, 2012), p. 11; Crowe, “The Forging of

Judicial Autonomy,” 79; Post, “Judicial Management

and Judicial Disinterest,” 26; Schwartz,AHistory of the Supreme Court, pp. 216-17. 15 Starr, “Judicial Architect,” 965-66. 16 Mason, William Howard Taft,, pp. 14-15; see also

David O’Brien, Storm Center: The Supreme Court in American Politics, 10th ed. (NewYork:W.W. Norton&

Company, 2014), pp. 90, 101. 17 Crowe, “The Forging of Judicial Autonomy,” 78. 18 Fish, “William Howard Taft and Charles Evans

Hughes,” 124; Post, “Judicial Management and Judicial

Disinterest,” 53.

19 Taft, “Attacks on the Courts,” 16. 20 Crowe, “The Forging of Judicial Autonomy,” 81; Felix

Frankfurter and James Landis, The Business of the Supreme Court: A Study in the Federal Judicial System (New Brunswick: Transaction Publishers, (New

Brunswick: Transaction Publishers, 1928 [2007]), p. 218. 21 Ibid., p. 220. 22 Taft to Louis Brandeis (July 27, 1921), quoted in

Mason, William Howard Taft, Chief Justice, p. 199. 23 Mason, William Howard Taft, p. 100. 24 Indeed, as President, Taft and his Attorney General

had been responsible for shifting federal judges

between courts in order to avoid conflicts of interest.

See George W. Wickersham to Taft (January 20,

1910); Taft to Edward E. Cushman (January 21,

1910); Taft to Thomas R. Lyons (January 21, 1910);

Taft to Peter D. Overfield (January 21, 1910). The

President had this power solely over judges in the

federal territories (the letters above usually referred to

judges in Alaska), not over district judges sitting in the

states. 25 Taft to Frank H. Hiscock (April 12, 1922), Taft Papers. 26 Taft, “Possible andNeededReforms inAdministration

of Justice in Federal Courts,” American Bar Association

Journal, 8, no. 10 (Oct., 1922): 602. 27 E.g. Taft, “Attacks on the Courts,” 22; Taft, “Needed

Changes,” 621-24; Taft, Collected Works, Vol. I,

pp. 336-37, 340-41; Vol. II: p. 9; Vol. III, p. 156. 28 Conference of Senior Circuit Judges, 42 Stat. 837

(1922) at 837-38; also Frankfurter and Landis, The Business of the Supreme Court, pp. 236-78; Mason,

William Howard Taft, p. 100. 29 Conference of Senior Circuit Judges, 42 Stat. 837, 839

(1922). 30 Crowe, “The Forging of Judicial Autonomy,” 82. 31 Frankfurter and Landis,TheBusiness of the Supreme Court, pp. 253-54. 32 Taft, “Attacks on the Courts,” 16. 33 Frankfurter and Landis,TheBusiness of the Supreme Court, p. 254. 34 Indeed, it is largely an outgrowth of Taft’s work that

the Chief Justice gives a yearly report on the state of the

judiciary. Peter Fish, The Politics of Federal Judicial Administration, (Princeton: Princeton University Press, 1973), p. 50; Post “Judicial Management and Judicial

Disinterest,” 57-58. 35 Frankfurter and Landis,TheBusiness of the Supreme Court, p. 240; O’Brien, Storm Center, pp. 100-101. 36 Post, “Judicial Management and Judicial Disinter-

est,” 54. 37 See, e.g. Henry Abraham, The Judicial Process, 7th ed. (NewYork: Oxford University Press, 1998), p. 31;

G. Edward White, The American Judicial Tradition: Profiles of Leading American Judges (Oxford Univer- sity Press, 2000), p. 179.

CHIEF JUSTICE WILLIAM H. TAFT AS CHIEF EXECUTIVE 65

15405818, 2018, 1, D ow

nloaded from https://onlinelibrary.w

iley.com /doi/10.1111/jsch.12165 by L

iberty U niversity, W

iley O nline L

ibrary on [09/03/2026]. See the T erm

s and C onditions (https://onlinelibrary.w

iley.com /term

s-and-conditions) on W iley O

nline L ibrary for rules of use; O

A articles are governed by the applicable C

reative C om

m ons L

icense

38 Anderson, “Building National Consensus,” 351;

Ragan, Chief Justice Taft, pp. 96-97; Renstrom, The Taft Court, pp. 30-31, 33. 39 Henry Taft to Taft (October 26, 1922), Taft Papers. 40 Ragan, pp. 96-97; Taft to Pierce Butler (October 25

and November 2 and 17, 1922), Taft Papers. 41 Anderson, “Building National Consensus,” 349, 351;

Renstrom, The Taft Court, p. 34. 42 Murphy, “In His Own Image: Mr. Chief Justice Taft

and Supreme Court Appointments,” The Supreme Court

Review (1961): 188; also Anderson, 347; Steamer, 147. 43 Murphy, “In His Own Image,” 165-67, 183-85. 44 Taft to Warren G. Harding (December 4, 1922), Taft

Papers. 45 Taft to Pierce Butler (October 25, 1922); Taft to Van

Devanter (September 16, 1922), Taft Papers. 46 Taft to Harding (October 30 and November 17, 1922),

Taft Papers. 47 Paulo Coletta, The Presidency of William Howard Taft (Lawrence: University Press of Kansas, 1973),

p. 153; Lewis Gould, The William Howard Taft Presidency (Lawrence: University Press of Kansas,

2009), p. 128; Pringle, The Life and Times, Vol. I, p. 536; Schwartz, A History of the Supreme Court, pp. 206-7; Steamer, Chief Justice, p. 174. 48 Jonathan Lurie,WilliamHoward Taft: The Travails of a Progressive Conservative (Cambridge: Cambridge

University Press, 2012), pp. 120-29. 49 Taft to Elihu Root (December 21, 1922); also D. L.

Cease to Taft (December 7, 1909), Taft Papers: “you

referred to the necessity for a more liberal judiciary . . .

prior to the [1908]RepublicanConvention and I know that

you meant every word you said.” Taft’s letter to Root is

open to misinterpretation, for he insisted that “the corner

stone of our civilization is in the propermaintenance of the

guarantees of the 14th Amendment and the 5th Amend-

ment.”While this could suggest that Taft was a Lochner-

supporting proponent of absolute freedom of contract, it is

worth remembering that Taft had unabashedly voiced

support for a broad understanding of the Due Process

Clause’s protections, one that guaranteed not only

property, but also life and liberty. See Taft, Collected Works, Vol. V, p. 193, see also 86-87. 50 Taft, “Introduction” to Law as a Vocation, quoted in

Ross Davies, “Debate and Switch: William Howard Taft

on Law as a Vocation,” J.of Law 6 (2016): 4. 51 Lochner v. New York, 198 U.S. 45 (1905). 52 United States v. E. C. Knight Co., 156 U.S. 1 (1895).

For his rejection of Lochner andKnight, see Taft to Elihu

Root (October 15, 1910), Taft Papers. 53 Adkins v. Children’s Hospital, 261 U.S. 525 (1923). 54 Taft to Harlan F. Stone (December 17, 1924), Taft

Papers. Under a 1919 law, Congress gave the President

power to appoint a new justice to a circuit or district

court, if a judge who had served for ten years and attained

the age of seventy suffered from “mental or physical

disability of permanent character.” While the President

could not replace the older judge, the older judge would

immediately be ranked as the least senior judge on his

court: he “shall be held and treated as if junior in

commission to the remaining judges . . . who shall, in the

order of the seniority of their respective commissions,

exercise such powers and perform such duties as by law

may be incident to seniority.” 40 stat. 1157, 1157-58

(1919). Effectively, Taft recommended that the judge be

retired from his duties, but kept on the payroll. 55 Murphy, “In His Own Image,” 184. 56 Mason, William Howard Taft, pp. 214-15; Murphy,

“In His Own Image,” 184-85. 57 Taft to Each Senior Circuit Judge (December 19,

1921). See also Taft’s letters to the entire federal

judiciary: Taft to All Circuit and District Judges

(November 29, 1924 and June 16, 1925), Taft Papers. 58 Frankfurter and Landis,TheBusiness of the Supreme Court, p. 242; Murphy, “Chief Justice Taft and the

Lower Court Bureaucracy: A Study in Judicial Adminis-

tration,” J. of Politics, 24 (1962): 454; Post, “Judicial

Managementt,” 27. 59 Taft to John A. Peters (October 11, 1927), Taft Papers. 60 Taft to William N. Runyon (March 12, 1928), Taft

Papers. 61 Taft to Ferdinand A. Geiger (November 17, 1927),

Taft Papers. 62 Taft to Robert A. Taft (October 2, 1927), Taft Papers. 63 Taft, “Three Needed Steps of Progress,” 35; see also

Post, “JudicialManagement and JudicialDisinterest,” 26. 64 Post, “Judicial Management and Judicial Distinter-

est,” 267. 65 Baum, The Supreme Court, p. 11; Schwartz,

A History of the Supreme Court, p. 226. 66 Charles Evans Hughes, “Address of Chief Justice

Hughes,” in “Corner Stone of New Home of Supreme

Court of the United States Is Laid,” Amer. Bar Ass’n J.,

18, no. 11 (1932): 728. 67 See especially Resnik, “Building the Federal Judi-

ciary,” 888-89, 937. 68 Steamer, Chief Justice, p. 16. 69 Post, “Judicial Management and Judicial Distinter-

est,” 25. 70 O’Brien, Storm Center, p. 100; Kenneth Starr, “The

Supreme Court and Its Shrinking Docket: The Ghost of

William Howard Taft,” Minnesota L. Rev., 90 (2006):

1364. 71 The Evarts Act provided for a direct appeal to the

Supreme Court in federal jurisdiction cases, prize cases,

important criminal cases, cases involving the construc-

tion of the United States Constitution or the validity of

federal or state statutes under the Constitution, and all

civil cases disputing any amount over $1,000. Evarts Act, 26 Stat. 826 (1891), at 826-28.

66 JOURNAL OF SUPREME COURT HISTORY

15405818, 2018, 1, D ow

nloaded from https://onlinelibrary.w

iley.com /doi/10.1111/jsch.12165 by L

iberty U niversity, W

iley O nline L

ibrary on [09/03/2026]. See the T erm

s and C onditions (https://onlinelibrary.w

iley.com /term

s-and-conditions) on W iley O

nline L ibrary for rules of use; O

A articles are governed by the applicable C

reative C om

m ons L

icense

72 Pringle, The Life and Times, Vol. II, p. 973; Carolyn Shapiro, “A ‘Progressive Contraction of Jurisdiction’:

The Making of the Modern Supreme Court,” 125th

Anniversary Documents, Paper 3 (2013): 81, 83; Starr,

“William Howard Taft,” 964, 967. 73 See especially Murphy, “Chief Justice Taft and the

Judicial Bureaucracy” 456-57. 74 Crowe, “The Forging of Judicial Autonomy,” 80;

Pringle,The Life and Times, Vol. II., p. 998; Renstrom,

The Taft Court, p. 54. 75 Mason, William Howard Taft, pp. 109, 218;

Pringle, The Life and Times, Vol. II, p. 1000.

Brandeis believed the bill would not be effective. Taft,

speaking to the House Judiciary Committee, stated,

“I am told by all the members [of the Court] that I can

say that the court is for the bill. There may be one

member—I do not think there are more—who is

doubtful about it, or I should say, doubtful as to its

efficacy: but he said to me that I could say the whole

court were in favor of the bill.” Taft, Collected Works, Vol. VIII, p. 422. 76 Frankfurter and Landis,TheBusiness of the Supreme Court, pp. 274, 279-80; Mason,William Howard Taft, p. 114; Crowe, “The Forging of Judicial Autonomy,” 80. 77 The Court would hear cases on direct appeal from a

district court in only four areas: certain cases arising

under the antitrust law or the interstate commerce law, a

limited class of criminal appeals, and attempts to enjoin

the enforcement of a state statute because it violated the

federal Constitution. Judges’ Bill, 43 Stat. 936, 936-38

(1925); see also Taft, Collected Works, Vol. VIII, p. 401; Frankfurter and Landis, The Business of the Supreme Court, pp. 262-63. 78 Judges’ Bill, 43 Stat. 936, 937, 939 (1925); see also

Robert Post, “The Supreme Court Opinion as Institu-

tional Practice: Dissent, Legal Scholarship, and Deci-

sionmaking in the Taft Court,”Minn. L. Rev., 85 (2001):

1272 n.23. 79 Judges’ Bill, 43 Stat. 936, 937-38 (1925). 80 Taft, writing in Magnum Import Co., Inc. v. Coty,

262 U.S. 159 (1923) at 163. See also Taft’s opinion in

Layne & Bowler Corp. v. Western Well Works, Inc.,

261 U.S. 387 (1923) at 393, and his statement to the

House Judiciary Committee in 1922, Taft, Collected Works, Vol. VIII, p. 397. 81 Mason, William Howard Taft, p. 223; O’Brien,

Storm Center, p. 302; Sandra Day O’Connor, “William

Howard Taft and the Importance of Unanimity,” J. of

Supreme Court History, 28 (2003): 160; see also

Rehnquist, “Chief Justices I Never Knew,” 341. 82 After the Supreme Court votes on a case in

Conference, the senior Justice in the majority determines

which Justice will author the majority opinion. Taft, who

only dissented nineteen times in his eight-and-a-half-

year tenure on the Court, was virtually always in the

majority and therefore almost always had the power to

assign the majority opinion. 83 O’Brien, Storm Center, p. 276. 84 O’Connor, “William Howard Taft and the Importance

of Unanimity,”160. 85 Id.,161. 86 Sonneborn Brothers v. Cureton, 262 U.S. 506 (1923). 87 Alexander Bickel, The Unpublished Opinions of Mr. Justice Brandeis: The Supreme Court at Work (Cambridge: Belknap Press of Harvard University Press,

1957), pp. 111-14; Mason, William Howard Taft, p. 203. 88 Railroad Commission v. Southern Pacific Co.,

264 U.S. 331 (1924). 89 Mason, William Howard Taft, p. 211. 90 Wisconsin v. Illinois, 278 U.S. 367 (1929). 91 Taft to Pierce Butler (January 7, 1929), Taft Papers. 92 Lurie, “Chief Justice Taft and Dissents,” 182. 93 United Mine Workers v. Coronado Coal Co., 259 U.S.

344 (1922) at 390-91, 393-94. See Bickel, The Unpublished Decisions, pp. 97-98; David Danelski,

“The Chief Justice and the Supreme Court” (PhD diss.,

University of Chicago, 1961), p. 189. 94 American Steel Foundries v. Tri-City Trades Council,

257 U.S. 184, 206-11 (1921). 95 Id., at 213. 96 Taft to Mahlon Pitney (December 3, 1921), Taft

Papers. 97 Danelski, “The Chief Justice and the Supreme Court,”

pp. 180-81. 98 Urofsky, “The Brandeis-Frankfurter Conversations,”

329. 99 Chicago & Northwestern Railway Co. v. Nye

Schneider Fowler Co., 260 U.S. 35 (1922). 100 Louis Brandeis to Taft (undated, Reel 614), Taft

Papers; quoted in Post, “The Supreme Court Opinion as

Institutional Practice,” 1341, n. 220. 101 Quoted in O’Connor, “William Howard Taft and the

Importance of Unanimity,” 160. 102 American Railway Express Co v. Kentucky, 273 U.S.

269 (1927). 103 Bickel, The Unpublished Opinions, p. 212. 104 Quoted in O’Connor, “William Howard Taft and the

Importance of Unanimity,”160. 105 Id. 106 Taft to Harlan F. Stone (January 26, 1927), Taft

Papers. 107 See Jonathan Lurie, “Chief Justice Taft and Dissents:

Down with the Brandeis Briefs!” Journal of Supreme

Court History, 32, no. 2 (2007): 181; Post, “The Supreme

Court Opinion,” 1317 n. 158. Taft to Gus Karger,

(August 30, 1924), Taft Papers. 108 Melvin Urofsky, “The Brandeis-Frankfurter Con-

versations,” The Supreme Court Review 1985 (1985):

330.

CHIEF JUSTICE WILLIAM H. TAFT AS CHIEF EXECUTIVE 67

15405818, 2018, 1, D ow

nloaded from https://onlinelibrary.w

iley.com /doi/10.1111/jsch.12165 by L

iberty U niversity, W

iley O nline L

ibrary on [09/03/2026]. See the T erm

s and C onditions (https://onlinelibrary.w

iley.com /term

s-and-conditions) on W iley O

nline L ibrary for rules of use; O

A articles are governed by the applicable C

reative C om

m ons L

icense

109 Louis Brandeis to Taft (December 23, 1922), Taft

Papers. 110 Urofsky “Brandeis-Frankfurter Conversations,” 330. 111 Taft to Charles P. Taft, II (May 12, 1929), Taft

Papers. 112 See Post, “The Supreme Court Opinion as Institu-

tional Practice,” 1310, 1313; Renstrom, 99. It is worth

noting that these two formidable scholars present slightly

different statistics for this period. 113 Taft, “Three Needed Steps of Progress,” 34; Taft,

“Possible and Needed Reforms,” 601. 114 Frankfurter and Landis, The Business of the Supreme Court, p. 254. 115 Crowe, “The Forging of Judicial Autonomy,” 73, 76,

78-9, 81; Fish, “William Howard Taft and Charles Evans

Hughes,” 125, 129-30, 134-35, 140, 145; Mason,

William Howard Taft, pp. 13-14, 115-21, 194-97,

211-12, McGowan, 1153; Robert Post, “Chief Justice

William Howard Taft and the Concept of Federalism,”

Constitutional Commentary, 9 (1992): 199-203, 216;

Post, “Judicial Management and Judicial Disinterest,”

24; Steamer,Chief Justice, p. 193; Ragan,Chief Justice Taft, pp. 44, 53, 79, 89, 104-105; Starr, “William

Howard Taft,” 964, 969-70. 116 James Bradley Thayer, “The Origin and Scope of the

American Doctrine of Constitutional Law,” Harvard L.

Rev. 7 (Oct., 1893): 156; see also 142, 144, 147-48, 150-

52. For a more radical view, see Herbert Croly, The Promise of American Life (Princeton: Princeton

University Press, 2014), pp. 44, 163, 335; Herbert Croly,

Progressive Democracy (New Brunswick: Transaction

Publishers, 2009), pp., 44, 165. 117 Arthur Schlesinger, History of American Presiden- tial Elections: 1789-1968 (New York: Chelsea House

Publishers, 1971), Vol. III, p. 2520. 118 Crowe, “The Forging of Judicial Autonomy,” 79. 119 Taft, Collected Works, Vol. V, p. 105, cf. Vol. II, p. 8. 120 Id., Vol., IV, pp. 152-53; Vol. V: pp. 118-19, 123,

Vol. VII, pp. 36-37. 121 Taft was not alone in this belief. See Franklin A.

Shotwell to Sen. Norris Brown (February 24, 1912); O.

Ellery Edwards, Jr. toWilliam Howard Taft (October 26,

1911), Taft Papers. 122 See especially Taft, “Administration of Justice,”

191-96. 123 Taft, “Attacks on the Courts,” 24.

124 Taft, “Delays and Defects in the Enforcement of

Law in this Country,” North American Review, 187

(June-July, 1908): 851. 125 Taft, “Administration of Justice,” Central Law

Journal, 72, no. 11 (January-July, 1911): 194; see also

Taft, Collected Works, Vol. II, pp. 10-11. 126 Taft, “Administration of Justice,” 193. 127 Taft, “Possible and Needed Reforms,” 603. 128 Harold Burton, “‘Judging Is Also Administration’:

An Appreciation of Constructive Leadership,” American

Bar Association Journal, 33 no. 11 (Nov., 1947): 1100;

Fish, “WilliamHoward Taft and Charles Evans Hughes,”

138; Starr, “William Howard Taft,” 970. 129 Taft to Brandeis (December 18, 1926), Taft Papers. 130 Taft to Brandeis (December 18, 1926), Taft Papers. 131 O’Brien, Storm Center, 147; Crowe, “The Forging

of Judicial Autonomy,” 78. Taft had called for removing

court officers from a fee-based salary as President. See

Taft, Collected Works, Vol. III, p. 159. 132 44 Stat. 1022 (1927); Post, “Judicial Management

and Judicial Disinterest,” 58. 133 Gitlow v. New York, 268 U.S. 652 (1925). 134 Whitney v. California, 274 U.S. 357 (1927). 135 United States v. Schwimmer, 279 U.S. 644 (1929). 136 Olmstead v. United States, 277 U.S. 438 (1928). 137 Taft, “The Jurisdiction of the Supreme Court under

the Act of February 13, 1925,” Yale L. J., 3, no. 1 (Nov.,

1925): 2-3. 138 See Post “Judicial Management and Judicial Disin-

terest,” 61-62; Taft to Henry Taft (April 5, 1928) and Taft

to Casper Yost (April 5, 1928), Taft Papers. 139 Taft to Henry Taft (April 5, 1928) and Taft to Casper

Yost (April 5, 1928), Taft Papers. 140 Taft, Collected Works, Vol.V, p. 87. 141 Gitlow at 666. I am indebted to Matthew Brogdon of

the University of Texas at San Antonio for this

observation. 142 Meyer v. Nebraska, 262 U.S. 390 (1923). 143 Pierce v. Society of Sisters, 268 U.S. 510 (1925). 144 Crowe, “The Forging of Judicial Autonomy,” 83. 145 Mason, “President by Chance, Chief Justice by

Choice,”Amer. Bar Ass’n J., 55, no. 1 (January, 1969): 39. 146 Ragan, Chief Justice Taft, p. 110. 147 Taft, “Attacks on the Courts,” 24. 148 Starr, “William Howard Taft,” 964. 149 Crowe, “The Forging of Judicial Autonomy,” 73-74. 150 Rehnquist, “Chief Justices I Never Knew,” 348.

68 JOURNAL OF SUPREME COURT HISTORY

15405818, 2018, 1, D ow

nloaded from https://onlinelibrary.w

iley.com /doi/10.1111/jsch.12165 by L

iberty U niversity, W

iley O nline L

ibrary on [09/03/2026]. See the T erm

s and C onditions (https://onlinelibrary.w

iley.com /term

s-and-conditions) on W iley O

nline L ibrary for rules of use; O

A articles are governed by the applicable C

reative C om

m ons L

icense