Chief Justice as Chief Executive: Taft’s Judicial Statesmanship

Abstract

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 ChiefJustice 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 ofthe ChiefJustice 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 ofthe 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 ajudge 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 48 JOURNAL OF 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 injudicial 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, modem 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 politicalexecutive 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...