“I Love Judges and I Love Courts”: Chief Justice at Last
William Howard Taft yearned so ardently to be chief justice that he prepared the groundwork during his own presidency. When Chief Justice Melville Fuller died a year after bungling the administration of Taft’s presidential oath, Taft agonized over the appointment of his successor. As the president observed wistfully to Justice William Moody days after Fuller’s death in July 1910, “It does seem strange that the one place in the government which I would have liked to fill myself I am forced to give to another.”1
The obvious candidate was Charles Evans Hughes, the former governor of New York and potential rival to Taft in 1912, whom Taft had shrewdly removed from the political arena by nominating him as an associate justice three months earlier. Just before making that appointment, Taft told his aide Archie Butt, “I don’t know the man I admire more than Hughes. If I ever have the chance I shall offer to him the Chief Justiceship.”2 And yet when the opportunity presented itself later that year, Taft could not bring himself to appoint the forty-eight-year-old dynamo, whose youth and perfect health suggested that he would outlive Taft, denying the president any possible opportunity to succeed him. And so in December, after telephoning to cancel a White House interview with Hughes as the justice was dressing for the appointment, Taft instead elevated one of Hughes’s colleagues, Justice Edward Douglass White, a Catholic Southern Democrat who, at the reassuringly advanced age of sixty-five, was the oldest chief justice ever nominated. The only explanation for this unusual appointment was the president’s hope that White would expire in time for Taft to take his place.
And yet, in the decade that followed, White inconveniently refused to perish. After Warren Harding’s election in 1920, Taft visited the president-elect in Marion, Ohio, where Harding astonished and delighted Taft by asking, “Would you accept a position on the Supreme Bench?”3 Taft replied, with what must have been scarcely concealed emotion, that “it was and always had been the ambition of my life,” but since he had twice declined the honor, “I could not accept any place but the chief justiceship.”4 After Harding reassured Taft of his intention to elevate him to the center chair, Taft hastened to Washington to pay a call on Chief Justice White. Appraising the seventy-five-year-old jurist’s declining health with a gimlet eye, he was disappointed to discover that White said nothing about retirement. Happily for Taft, the aging chief justice soon fulfilled his hopes by dying without warning on May 19, 1921.
To Taft’s frustration, President Harding dithered over the appointment, and so the former president mobilized every lobbying resource at his disposal, dispatching surrogates to emphasize his extensive experience on the federal bench.5 His postpresidential service, however, proved to be especially compelling: Taft was enjoying a bipartisan surge of popularity owing to his service as co-chairman of the National War Labor Board, which redeemed the “father of injunctions” in the hearts of organized labor because he had supported a series of progressive reforms including collective bargaining, a minimum wage, and bans on “yellow dog” contracts, in which workers agreed not to join unions.6 At the same time, his work on behalf of international arbitration and the League of Nations had won over Wilsonian internationalists.7 A final push by Attorney General Harry Daugherty convinced Harding that Taft’s administrative skills would help clear the congestion in the federal courts resulting from the recent enactment of Prohibition and the many arrests justified in the name of the war on alcohol.8 And so, on June 30, 1921, Harding nominated the man he affectionately called “the Big Chief” to be the tenth chief justice of the United States. The Senate confirmed the nomination the same day, by an overwhelming vote of 60 to 4.9 Taft viewed his appointment not only as the fulfillment of his lifelong dream but also as vindication for his electoral defeat nearly a decade earlier. The praise for his nomination was evidence, he suggested, that “I have come back from the status in which the campaign of 1912 left me.”10
On July 11, Taft was sworn in as chief justice. When Justice Joseph McKenna repeated the ceremony on October 3, the first day of the new term, he forgot to bring an official copy of the oath, and Taft was impressed that his new colleague recited it from memory.11 Taft threw himself into the job with passion and discipline, imposing on himself a schedule that dispelled any of the accusations of laziness that had followed him during his unwanted presidency. Freed from the burdens of the sleep apnea that had been caused by his presidential obesity, he would awaken at 5:15 a.m., repair to his study (the justices in those days worked from home), and toil until breakfast at 8. After more work until 10, he walked from his home to the Capitol, where the Court then sat, usually crossing the bridge that carries Connecticut Avenue across Rock Creek Park, known today as the Taft Bridge. After hearing cases at the Court from noon until 4:30, he was driven home, where he worked from 5 until 10, with an hour for dinner. “If I can maintain this,” he wrote to Horace Taft, “I think I shall have time enough to do the work. You see it gives me, in addition to my court work of four hours, eight hours for work outside the court, two hours for meals, and seven hours for sleep, one hour for exercise and one hour for dressing. This makes twenty-three hours. Just where the other hour goes you can figure out for yourself—I haven’t time.”12
Out of the 1,596 opinions delivered by the Court during his nine years as chief justice, Taft wrote one-sixth of the total himself, averaging 30 opinions a term while his colleagues averaged 20.13 And having achieved his dream job, Taft found that it surpassed his expectations of happiness. “Next to my wife and children,” the Court “is the nearest thing to my heart in life,”14 he wrote. “The truth is,” he observed in 1925, “I don’t remember I ever was president.”15
Taft began his chief justiceship with an ambitious vision of what he hoped to achieve for the judiciary, a vision he had clearly set out as president. Drawing on his executive experience, he aspired to nothing less than reform of the administrative structure of the entire federal judiciary, making it fully equal in independence, power, and dignity to the White House and Congress. “I love judges, and I love courts,” he once enthused. “They are my ideals on earth of what we shall meet afterward in heaven under a just God.”16 And Taft was able to achieve as chief justice the constitutional vision that had eluded him as president, exercising executive leadership that had been absent from the Court since the tenure of the greatest chief justice, John Marshall. The legal scholar Robert Post has written that “it was Taft who, as former chief magistrate of the Executive Branch, transformed the role of Chief Justice into something analogous to a chief executive for the judicial branch of government.”17 Taft was convinced that “the efficient administration of justice” would help the federal judiciary defend the Constitution against populist threats posed by state legislatures and juries and also keep the president and Congress within their constitutionally appointed bounds. And in so doing, he created the modern federal judiciary as a separate and cohesive branch of government.
Days after he joined the Court, Taft plunged into the ambitious task of judicial reform for which he had been preparing his entire life. Taft had campaigned for president in 1908 on the need to improve the efficiency of court administration. “The greatest question now before the American public is the improvement of the administration of justice, civil and criminal, both in the matter of its prompt dispatch and the cheapening of its use,” he had declared forcefully during the campaign.18 As president, he had proved his mettle as an extraordinary administrator. The historian Paolo Coletta has observed that Taft was “the first president to have the federal administration studied in detail as one mechanism,” and Taft became known as the “efficiency engineer” for reorganizing the Departments of War, State, and Treasury, and the Customs Service, as well as creating the Commission on Economy and Efficiency and attempting to send Congress the first centralized executive budget.19 Charles Evans Hughes said that efficient administration of justice was “the dominant interest of [Taft’s] public life.”20
As chief justice, Taft controversially lobbied Congress to achieve his visionary program of improving the efficient administration of the federal courts. (He had scorned similar lobbying as president but seems to have believed that his constitutional role had changed.) Taft had three ambitious goals, and he achieved all of them.21 First, he persuaded Congress in 1922 to establish a judicial conference of federal appellate judges, led by the chief justice. Second, he persuaded Congress to pass the Judiciary Act of 1925, which gave the Court discretion to focus on constitutional cases rather than being forced to hear mandatory appeals of less consequential disputes. And finally, he secured the necessary funds to build a magnificent Supreme Court building across the street from the Capitol, relieving the justices of the indignity of convening in the old Senate chamber in the basement of the Capitol building. Designed by Cass Gilbert, the Temple of Justice is the most tangible monument to Taft’s constitutional vision of the Supreme Court as head of a separate and fully equal branch of government, as inspiring as the Capitol and the White House themselves.
The 1922 legislation accomplished nothing less than the unification of the federal judiciary in the same way that Taft had attempted to unify the administration of the executive branch. Taft advocated a “flying squadron” of roving judges who could be assigned to congested courts by the chief justice, in the hope that a more efficient judiciary would be less vulnerable to congressional attempts to restrict its jurisdiction and end life tenure. The act also created the Conference of Senior Circuit Judges, including twenty-four temporary judgeships, providing “the first formal mechanism by which members of the federal judiciary might develop national administrative policies, reassign judges temporarily, and recommend legislation,” in the words of the Federal Judicial Center.22 This expansion in the machinery of the federal judiciary allowed the chief justice, as Taft put it, “temporarily to mass the force of the judiciary where the arrears are greatest.”23 Taft praised the legislation for introducing into a previously disorganized and decentralized judicial system “an executive principle to secure effective teamwork.”24 Taft viewed his role as the head of the newly created judicial conference like that of a president leading his cabinet, and he offered assistance to individual district court judges who were behind on their caseload.25 District judges responded gratefully to these reforms. As Judge Learned Hand wrote to Taft, “It is a great comfort to know the interest that you take. To be frank, we have never felt it before your incumbency.”26
As president, Taft had insisted on the need to strengthen the authority of the federal courts by reforming civil and criminal procedure. In December 1909, in his first message to Congress, he declared that “a change in judicial procedure, with a view to reducing its expense to private litigants in civil cases and facilitating the dispatch of business and final decision in both civil and criminal cases, constitutes the greatest need in our American institutions.”27 (Imagine a president today making a similar claim in a State of the Union address.) And in 1926, the Senate Judiciary Committee endorsed Taft’s proposed reforms, which united dozens of confusing separate systems of procedural rules into a single, efficient whole. The Federal Rules of Civil Procedure at last became law in 1938, an enduring monument to Taft’s vision of strong federal courts that protected both labor and capital fairly and efficiently, clearing their dockets without delay.
In addition to organizing lower federal judges to act as an efficient and coequal branch of government, Taft lobbied Congress to pass his second great reform, the Judiciary Act of 1925, which gave the Supreme Court control over its own docket. This reform represented the most important change in the Court’s procedures since the landmark Judiciary Act of 1789. Before it passed, the Supreme Court was required to hear all cases involving federal rights and laws, under a concept called “mandatory jurisdiction.” As early as 1908, in a speech called “Delays and Defects in the Enforcement of Law in This Country,” Taft had objected that the volume of cases that the Supreme Court was required to review left it unable to execute its “highest function”—namely, constitutional interpretation. The Court’s appellate jurisdiction, he concluded, should be limited accordingly.28 The 1925 reform achieved Taft’s goal, giving the Court the discretion to focus on those cases it believed raised important constitutional questions or questions of federal law about which lower appellate courts disagreed. Thanks to this reform, the backlog in the Court’s docket disappeared, and the number of cases decided by the justices plummeted from more than five hundred cases a year in 1924 to fewer than two hundred in 1926.29 The number of appellate cases decided by full opinion declined by more than half, averaging 30 percent in 1916 and falling to 16 percent in 1928.30 (Today, the Court writes opinions in about 1 percent of the cases on its docket, agreeing to decide fewer than eighty cases a year.)31 “The real work [of] the Supreme Court,” Taft declared, “is to lay down important principles of law and thus to help the public at large to a knowledge of their rights and duties and to make the law clearer.”32
Within the increasingly efficient Court, Taft proved himself to be the surest builder of consensus since John Marshall. Deploying his amiable personality and preference for consensus over confrontation to “mass the court,” as he put it, Taft, like Marshall, encouraged unanimous opinions and discouraged dissent. He maintained that the Court should preserve its institutional legitimacy by speaking as often as possible in one voice. Two of the six justices whom Taft had appointed while president, Willis Van Devanter and Mahlon Pitney, served with him and welcomed his leadership, although they did not always fulfill his hopes. Even Louis Brandeis, whose nomination to the Court Taft had vigorously opposed in 1916, and who had coolly appraised Taft as a “first-rate second-rate mind,”33 praised Taft’s talent for building consensus and “considerable executive ability.”34 “We are very happy with the present Chief,” Oliver Wendell Holmes Jr. concurred. “He is good-humored, laughs readily, not quite rapidly enough, but keeps things moving pleasantly.” Holmes added that “never before … have we gotten along with so little jangling and dissension.”35
Taft idolized John Marshall, whom he called “the greatest Judge that America or the World has produced.”36 Once, as he walked past a statue of Marshall on the west side of the Capitol, a companion asked if he would have rather been Marshall than president. “I would rather have been Marshall than any other American unless it had been Washington,” Taft replied, “and I am inclined to think I would rather have been Marshall than Washington. He made this country.” Continuing on the walk, Taft then stopped and added, “Taking it all in all, I think Washington was the greatest American, the greatest man, I almost believe, of his generation. Marshall is certainly the greatest jurist America has ever produced and Hamilton our greatest constructive statesman.”37
The chief justice, like the associate justices, has a single vote on the Supreme Court. His only formal power is the authority to assign the writing of an opinion when he is in the majority, to himself or to another justice. Like Marshall, Taft encouraged unanimity by joining majority opinions with which he did not fully agree and encouraging his colleagues to be similarly accommodating.38 As a result, the Taft Court was remarkably cohesive: 84 percent of its opinions between 1921 and 1928 were unanimous,39 and only 7 percent were issued with a written dissent.40 (By way of comparison, about 30 percent of the Court’s decisions between 1946 and 2009 were unanimous, a rate that continues today.)41 As time went on, Taft promoted unanimity by revising his majority opinions to induce skeptical justices to join them. He participated in more than fifteen hundred decisions but dissented in only nineteen—writing or joining the Court’s majority opinion in 98.7 percent of cases.42
“I don’t approve of dissents generally,” Taft explained, “for I think in many cases where I differ from the majority, it is more important to stand by the Court and give its judgment weight than merely to record my individual dissent where it is better to have the law certain than to have it settled either way.”43 During his tenure, Taft suppressed more than two hundred of his own dissents,44 which he deprecated as “a form of egotism” that “only weaken the prestige of the Court.”45 Taft persuaded other justices to do the same.46 Reflecting this norm, one justice wrote to another, “I do not agree but shall submit.”47
During the second half of Taft’s tenure, however, the unanimity rate on the Court declined, falling to 70 percent in 1929. The reasons for this development included Taft’s declining health and the less urgent impulse for the Court to show a united face to defend itself against congressional attacks, which had lessened as time went on.48 But the most important reason for the decline of unanimity, in an irony that Taft may not have grasped, was Taft’s own great achievement: the passage of the Judiciary Act of 1925, which gave the Court the discretion to focus on a handful of hotly contested cases rather than a hodgepodge of uncontroversial ones.49
Finally, the most tangible symbol of Taft’s belief in the need for the judiciary to be independent from the president and Congress was his determination to create a majestic building for the Court, separate from the Capitol. Since 1860, the Court had met in the chamber vacated when the U.S. Senate moved to its new wing. But the old Senate chamber, although grand in its way, was inadequate for the Court’s theatrical purposes—the justices had no backstage dressing area, for example, and had to put on their robes in full view of the gawking spectators. Soon after he became chief justice, Taft learned of legislation pending in Congress that would provide funds for the construction of new federal buildings, and in 1926 he convinced Congress to appropriate funds for the purchase of a new site for the Court, on First Street, across from the Capitol. In 1928, Taft told the House Judiciary Committee that the justices supported the new building by a 5–4 vote. Congress authorized $9,740,000 for construction on December 20, 1929, and Taft chose the architect Cass Gilbert to design it. The result was a marble palace that succeeded in combining “all the beauty, charm and dignity of the Lincoln Memorial,” as Gilbert wrote to Taft, with “the practical qualities of a first rate office building.”50 For Taft, who had also served as head of the Lincoln Memorial Commission during his presidency, Gilbert’s Roman temple was the architectural embodiment of his vision of the federal judiciary as fully equal in stature and dignity to the legislative and executive branches.51
As for judicial philosophy, Taft’s constitutional vision on the Court was similar to the one he displayed in the White House. Like Marshall and Hamilton, he was generally a nationalist who broadly construed the powers of Congress and the president, as long as they were clearly defined in the text of the Constitution. At the same time, in the old Federalist spirit, Taft also viewed the Court as the last bulwark in the defense of the constitutional rights of liberty and property against threats posed by state legislatures and juries, whom Taft viewed as especially susceptible to the passions of the mob. For this reason, Taft generally deferred to the prerogatives of Congress and the president while striking down laws that he considered a threat to liberty and property in the states. Ever since his days ruling on labor disputes on the Sixth Circuit, Taft had feared the mob. And on the Supreme Court, Taft was most likely to strike down laws when he thought that mobs in control of state governments were threatening the rights of property and liberty protected by the Fourteenth Amendment. Overall, the Taft Court struck down 131 state laws, while its predecessor the White Court had struck down only 107. By contrast, the Hughes Court, which came after Taft and was less devoted to freedom of contract, struck down 78 state laws.52
Taft’s first major opinion, handed down on December 21, 1921, allowed him to write into law the protections for the use of injunctions in labor disputes that had led his critics to denounce him as the “father of injunctions.” In Truax v. Corrigan, Taft wrote an opinion for a 5–4 majority striking down an Arizona law that forbade state courts from issuing injunctions in labor disputes, except when “necessary to prevent irreparable injury to property or to a property right.” Taft used the case to inscribe by judicial fiat the distinction between legal and illegal boycotts that, as president, he had unsuccessfully tried to persuade Congress to enact.53 Taft’s willingness to circumvent Congress as a judge but not as president shows that, although he generally deferred to the executive and legislative branches when they operated within broad but constrained constitutional limits, he was committed to enforcing his vision of the Constitution rather than an unwavering advocate of judicial restraint.
But when Congress rather than the states passed economic regulations, Taft generally voted to uphold them. (The Taft Court as a whole struck down only twelve federal laws—the same number as the White Court—while the Hughes Court struck down fourteen.)54 And Taft, unlike some of his conservative colleagues, was not a Jeffersonian libertarian, consistently ruling for liberty of contract regardless of the source of the regulation. Instead, he was, above all, a Hamiltonian nationalist, who broadly construed Congress’s power to regulate the economy as well as to protect public safety. On May 1, 1922, he wrote the majority opinion for the Court in Stafford v. Wallace, recognizing Congress’s broad authority under the Commerce Clause to pass the Packers and Stockyards Act of 1921, which regulated the shipping of meat and livestock through interstate commerce.
And yet two weeks later, Taft held that Congress’s regulatory efforts had gone too far. On May 15, 1922, he wrote the opinion for a unanimous Court in Bailey v. Drexel Furniture Co.,55 striking down the federal Child Labor Tax Law, which imposed a tax on businesses employing children under the age of fourteen. Taft was so successful in massing the Court that he persuaded the champions of judicial restraint, Brandeis and Holmes, to suppress what must have been their jurisprudential disagreement.56 Taft concluded that the federal child labor tax was not a permissible attempt to raise tax revenue but an impermissible attempt to intrude on the state’s authority to regulate the hours of labor.57 Taft worried that upholding the law as a tax would remove all limits on Congress’s power to regulate interstate commerce.58 (In 2012, Justice Antonin Scalia voiced the same concerns and cited Taft’s opinion at length in his dissent from the Court’s 5–4 decision to uphold the Affordable Care Act as a tax.)
The child labor case, however, was an exception to Taft’s general determination to defer to Congress. In 1923, he filed a significant dissent (the act of dissenting itself must have pained his Marshallian spirit) in Adkins v. Children’s Hospital,59 in which the Court struck down a federal minimum wage law for women. Writing for a 5–3 majority, Justice George Sutherland held that freedom of contract could be abridged only in “exceptional circumstances.” Taft, like Marshall, was devoted to freedom of contract, but as co-chairman of the National War Labor Board during the Great War, he had wondered aloud about how munitions and textile workers could live on their low wages. Taft’s dissent in Adkins may have been informed by that experience, since it includes some of his most memorable language about the excesses of unregulated capitalism. The poorest employees, he wrote, “are peculiarly subject to the overreaching of the harsh and greedy employer. The evils of the sweating system and of the long hours and low wages which are characteristic of it are well known.”60 Taft’s dissent was vindicated in 1937 when his successor as chief justice, Charles Evans Hughes, wrote for a 5–4 majority of the Court overturning the Adkins decision and upholding a Washington State law that required a minimum wage for women.
Much of the Taft Court’s caseload involved a backlog of criminal cases arising from Prohibition. Before joining the Court, Taft had opposed Prohibition on the ground that it would represent a dangerous expansion in the powers of Congress, threatening local self-government and states’ rights, and transferring the business of manufacturing alcohol to the criminal classes.61 As chief justice, however, Taft set aside his personal opposition to Prohibition and faithfully voted to uphold convictions under the Volstead Act, the draconian federal law passed to enforce the Eighteenth Amendment. (Taft’s insistence on maintaining a dry home during Prohibition out of respect for the Constitution provoked the only major disagreement between Taft and Nellie in their long marriage; eventually, Taft, never a heavy drinker, refused to discuss the issue with his wife.)62 For Taft, citizens and judges had an obligation to respect all provisions of the Constitution, regardless of their personal views.63
Taft’s most famous opinions are those upholding criminal convictions in the war against alcohol. In Carroll v. United States (1925),64 Taft created the “automobile exception” to the Fourth Amendment to the Constitution. In passing the Volstead Act, Congress distinguished between searches of private residences, where warrants were required, and searches of cars, where they were not. Writing for a 7–2 majority, Taft upheld the law against a Fourth Amendment challenge, noting that ever since the Founding, courts had distinguished between homes and movable objects. Similarly, in Olmstead v. United States (1928), Taft wrote for a 5–4 majority upholding the warrantless wiretapping of one of America’s most successful bootleggers. In his opinion, a straightforward if wooden application of the original understanding of the Constitution, Taft held that the government had not violated the Fourth Amendment when it placed a wiretap on phone lines leading into the bootlegger’s office because the Framers defined “unreasonable searches and seizures” as those involving physical trespass against private property. (Here, the wiretaps had been placed under public sidewalks.) Brandeis’s visionary dissenting opinion, the greatest defense of electronic privacy in the twentieth century, was vindicated when the Supreme Court overturned Taft’s opinion in the Katz case in 1967.
In the Hamiltonian spirit, Taft broadly construed presidential power as well as congressional power. On October 25, 1926, Taft delivered the most significant opinion of his entire tenure, Myers v. United States,65 in which he held that the president alone has the power to fire officers he appoints. Taft would later say of his opinion in Myers, “I never wrote an opinion that I felt to be so important in its effect.”66 The case involved the president’s power to fire executive branch officials without being constrained by Congress, and it remains a milestone for those who take a broad view of executive power today. In 1876, in the wake of the impeachment of President Andrew Johnson, Congress passed a law declaring that postmasters could be appointed and removed by the president only with the consent of the Senate. In 1920, President Woodrow Wilson had fired a postmaster named Myers without the Senate’s consent, and Myers insisted that his firing violated the 1876 law. In a seventy-one-page opinion for the Court, Taft reviewed the text and the original understanding of the Constitution, as well as subsequent interpretations of the scope of presidential power by courts, congresses, and presidents. Under Article II of the Constitution, Taft concluded, the president has the exclusive power to fire any executive officer whom he had appointed with the advice and consent of the Senate, and any attempt by Congress to restrict this power is unconstitutional. He seemed to draw on his own experience as president in insisting that the chief magistrate needed an unlimited power to fire executive officials in order to take care that the laws are faithfully executed. “The natural meaning of the term ‘executive power’ granted the President included the appointment and removal of executive subordinates,”67 Taft wrote.
In all such cases, the discretion to be exercised is that of the President in determining the national public interest and in directing the action to be taken by his executive subordinates to protect it.… The moment that he loses confidence in the intelligence, ability, judgment or loyalty of anyone of them, he must have the power to remove him without delay. To require him to file charges and submit them to the consideration of the Senate might make impossible that unity and coordination in executive administration essential to effective action.68
In a powerful dissent, Brandeis insisted that Taft had conflated “high political offices,” such as cabinet secretaries, whom the president should have sole discretion to fire, and “inferior offices,” such as postmasters, whose removal Congress should be able to restrict. “The doctrine of the separation of powers was adopted by the convention of 1787 not to promote efficiency, but to preclude the exercise of arbitrary power,” Brandeis memorably declared.69 Brandeis’s history, as well as his prose, was arguably more persuasive than Taft’s—and the Supreme Court recognized as much in a later case, Humphrey’s Executor v. United States (1935),70 in which it unanimously held that Congress could restrict the president from firing an officer on the Federal Trade Commission because Congress had the power to create “quasi-legislative or quasi-judicial agencies” and “to require them to act in discharge of their duties independently of executive control.”71 Nevertheless, Taft’s opinion has been praised as a “masterpiece of judicial craftsmanship” by judges and scholars today who believe that the Constitution gives the president broad, “unitary” executive power to supervise foreign affairs and the executive branch without being constrained by Congress.72
“Chief Justice Taft was the mirror image of Professor Taft!” the historian Francis Graham Lee has observed. “Taft’s opinion in Myers seemed totally to contradict the view he earlier expressed in Our Chief Magistrate and His Powers.”73 In fact, however, there is no contradiction. “Once power was delegated to the Chief Executive,” observe three leading proponents of the “unitary executive theory,” Taft believed that “the president should be given broad and plenary control over those powers.”74 After all, they note, Taft fired Gifford Pinchot in part because of his belief in the importance of unifying presidential control over the executive branch. In other words, Taft believed that the president’s power, like that of Congress, was broad but constrained within the boundaries explicitly set out in the Constitution.
In the second half of the 1920s, Taft became close to the conservative justices George Sutherland and Pierce Butler, and his votes to invalidate progressive legislation in the name of property rights helped contribute to the Court’s subsequent attempts to strike down Franklin Roosevelt’s New Deal. Nevertheless, Taft’s administrative reforms shoring up judicial independence prepared the ground for the vigorous enforcement of the Bill of Rights and the post–Civil War amendments that has defined the Court in the decades since it struck down school segregation in Brown v. Board of Education in 1954. Taft’s policies as president were less racist than Woodrow Wilson, who expanded segregation in the federal government, or even Theodore Roosevelt, who dishonorably discharged African American troops. In the tradition of his father, who was devoted to equal civil rights for all, Taft insisted in his inaugural address that he did not have “the slightest race prejudice or feeling,” and he pledged “sympathy for those who bear it or suffer from it.”75 At the same time, Taft refused to support the hiring of Republican African American officeholders in the South, in a futile effort to entice Southern Democrats to join the Republican Party. And although he spoke extensively as president on the need to expand education for African Americans, Taft wrote a unanimous opinion for the Supreme Court in 1927 upholding a Mississippi law requiring a Chinese American citizen to attend a local segregated school, open only to “colored children of the brown, yellow, or black races.” Citing the precedent of Plessy v. Ferguson, which upheld the constitutionality of racially segregated railroad cars, Taft concluded, “The decision is within the discretion of the state in regulating its public schools, and does not conflict with the Fourteenth Amendment.”76 In other words, although Taft was a public champion of civil rights for all races, he joined his eight fellow justices in applying what appeared at the time to be clear judicial precedent.
As the 1920s drew to a close, Taft’s health declined. Although his weight remained under control—he weighed about 280 pounds during his final years, far less than his presidential weight of 340 pounds—he had suffered heart attacks in 1924 and 1926, and his blood pressure had risen due to arteriosclerosis.77 “I am really in an invalid state,” Taft wrote in 1928.78 Taft’s memory began to slip, and he stumbled slightly in administering the oath of office to President Herbert Hoover in March 1929, as the ceremony was broadcast for the first time by radio.79 (After a young girl from New York wrote to correct his mistake, Taft replied that she could “attribute the variation” in the words of the oath “to the defect of an old man’s memory.”)80 In January 1930, while visiting Cincinnati for his brother Charles’s funeral, Taft suffered hallucinations, and he set off with Nellie for rest in North Carolina. But he recognized that his powers were waning, and so, on February 3, the ailing chief justice wrote a letter to President Hoover resigning from the Court. “Lifted off the train at the Union Station” in Washington, Pringle writes, “he was wheeled to an automobile and all that came from his lips was an occasional ‘darling’ when Mrs. Taft was near.”81 He was put to bed in his house on Wyoming Avenue and never arose. On his deathbed, Taft read a tender letter by Justice Holmes and signed by all of the members of the Court.
We call you Chief Justice still—for we cannot give up the title by which we have known you all these later years and which you have made dear to us. We cannot let you leave us without trying to tell you how dear you have made it. You came to us from achievement in other fields and with the prestige of the illustrious place that you lately had held and you showed us in new form your voluminous capacity for getting work done, your humor that smoothed the tough places, your golden heart that brought you love from every side and most of all from your brethren whose tasks you have made happy and light. We grieve at your illness, but your spirit has given life an impulse that will abide whether you are with us or away.82
A month after his resignation, on the evening of Saturday, March 8, 1930, William Howard Taft died. He was seventy-two years old. In the rotunda of the Capitol, as his body lay in state, Gilbert’s model of the Supreme Court building was exhibited at his side. In October 1932, at the groundbreaking ceremony for the Temple of Justice, a photograph of Taft was placed in the cornerstone.83 (Today, Taft’s portrait hangs in the West Conference Room and his bust in the center hall.) During the ceremony, Chief Justice Charles Evans Hughes, who had finally achieved the center chair, paid a graceful tribute to his predecessor. “We are indebted to the late Chief Justice William Howard Taft more than anyone else,” he declared. “The building is the result of his intelligent persistence.”84