Chief Justice Taft and Dissents: Down with the Brandeis Briefs! JONATHAN LURIE Introduction In 2007, we celebrate the 150th anniversary of William Taft’s birth, and thus it is especially appropriate to reconsider some aspects of his career and contributions to this Court, which he revered over all others. Although they may not be aware of it, any visitor to the Supreme Court and to the “Great Hall,” replete with its majesty and grandeur, immediately comes into contact with an example of these contributions: the building itself. Chief Justice Taft planned for it, pushed for it, persuaded the congressional leadership of its necessity, and personally selected its architect, Cass Gilbert. As his health failed in the late 1920s, he wrote to his daughter Helen on July 27, 1927, that “[w]hat I am praying for is that I can live and be on the Court until we move in. But that is a good deal to hope for.”1 Indeed it was: Taft did not live even to see ground broken for the building’s construction. Yet, in a very real sense, the Court’s majestic home is his most enduring monument. This paper does not propose to dwell ex tensively on Taft’s life and career, although that remains remarkable in scope: trialjudge, solic itor general, circuitjudge, Governor General of the Philippines, Secretary of War, President, professor of law (Taft declined the presidency ofhis alma mater, Yale University, because he felt that it was not yet ready to welcome a Uni tarian who declined to accept the divinity of Christ), and Chief Justice.2 Nor will it detail his fascinating actuarial agonies as President, when he considered whom to appoint as Chief Justice in 1910. For the first time in our his tory, a President reached within the Court to appoint a sitting Justice as Chief.3 Taft se lected a Democrat and former Confederate sol dier, Edward D. White. One high court Jus tice, Charles Evans Hughes, wasjusttoo young and too healthy! On the other hand, White— like Hughes, a current member ofthe Court— was seventeen years older than Hughes and a dozen years older than Taft himself. Given the CHIEF JUSTICE TAFT AND DISSENTS 179 vicissitudes of time, Taft hoped against hope that he might yet become Chief Justice. With a Republican sweep in 1920, what had seemed impossible became quite probable. And when President Harding appointed him in 1921, Taft might have recalled what he had said earlier about the judiciary: “I love judges and I love courts. They are my ideals, that typify on earth what we shall meet hereafter in heaven under a just God.”I * * 4 Indeed, as Chief Justice, noted one observer, he seemed to be “one ofthe high gods of the world, a smiling Buddha, placid, wise, gentle, sweet.”5 Norwill this essay spend much time onthe well-known fact that Taft was exceedingly am ple in girth as well as intellect. Thus, there will be minimal recounting ofthe many comments about his size. One may note, however, per haps the most famous line in Secretary ofState Elihu Root’s response to Taft’s report from the Philippines that his health was much improved and he had been able to ride on horseback for some twenty miles. In reply, Root telegraphed, “How is the horse?”6 Taft’s response is less well known and reflects the self-deprecating nature of the man: “Your cable inquiry about the condition ofthe horse... was too good to keep, so I published the dispatch and have been made the subject ofjoke in the local newspa pers ever since.”7 Many contemporaries com mented on the kindly and genial nature that Taft radiated. He was, quoted one ofhis closest confidants, Gus Karger, “America’s best liked and best lickedpresident.”8 EvenJustice David Brewer could not resist observing that he had been informed that “Taft is the politest man alive. I heard thatrecently he rose in a street car and gave his seat to three ladies.”9 He looked, wrote another observer, “like an American bi son, [albeit] a gentle kind one.”10 I But beneath this exterior amiability, Taft re vealed perceptive insights on men and...
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