One month after the armistice, Louis excitedly wrote to Alice that the previous day he had an experience
which I did not expect to encounter in this life. As I was walking toward the Stoneleigh about 1 p.m. [William Howard] Taft & I met. There was a moment’s hesitation, & when he’d almost passed, he stopped & said in a charming manner: “Isn’t this Justice Brandeis? I don’t think we have ever met.” I answered: “Yes, we met at Harvard after your return from the Philippines.” He at once began to talk about my views on regularity of employment. After a moment I asked him to come in with me. He spent a half hour in 809, talking about labor & War Labor Board experiences. Was most confidential—at one point put his hand on my knee. I told him of the great service he had rendered the country by his action on the Labor Board, & we parted with his saying in effect—He hoped we would meet often.
That hope came true in June 1921, when Warren Harding nominated the former president to be chief justice of the United States. The man who had been so politically inept while in the White House proved to be an exceptionally fine administrator of the nation’s judiciary, and while Louis Brandeis often disagreed with the jurisprudence that Taft and a majority of the Court embraced, he nonetheless respected the man and his abilities. The years of the Taft Court produced nearly all of Brandeis’s most influential dissents, opinions that would eventually be accepted by the Court as correct.
• • •
The Supreme Court in 1925. Seated from left: James C. McReynolds, Oliver Wendell
Holmes Jr., Chief Justice William Howard Taft, Willis Van Devanter,
Louis D. Brandeis; standing from left: Edward T. Sanford, George Sutherland,
Pierce Butler, Harlan Fiske Stone.
IN APRIL 1922, Felix Frankfurter recorded the first conversation he had had with Brandeis since William Howard Taft had become chief justice. Admitting that Taft had been very “gentlemanly” and “cultivated,” he nonetheless was “the Taft we thought he was. He has all the defects but also the advantages of the aristocratic order.” That summer, however, while walking with Frankfurter near his Chatham home on Cape Cod, Brandeis put his arm through Frankfurter’s and in a soft voice asked, “Felix, do you still think Taft was as bad a president as we thought he was?”
This question took the Harvard professor by surprise, and he responded that he still considered Taft’s record in the White House a poor one. “Why do you raise the question? Why are you ready to reconsider that judgment?”
Because, Brandeis explained, “it’s difficult for me to understand why a man who is so good as Chief Justice, in his function as presiding officer, could have been so bad as a President. How do you explain that?”
“The explanation is simple,” said Frankfurter. “He loathed being President and being Chief Justice [is] all happiness for him.”
There is much truth in Frankfurter’s response. William Howard Taft had never really wanted the White House and had always yearned for a seat on the high court. “I love judges and I love courts,” he once said. “They are my ideals, that typify on earth what we shall meet hereafter in heaven under a just God.” Now he had his heart’s desire, and Brandeis viewed with approval the changes that Taft initiated. The chief justice had “admirable qualities, a great improvement on the late C.J. [White]; he smoothes out difficulties instead of making them. It’s astonishing that he should have been such a horribly bad President, for he has considerable executive ability…. He has an excellent memory and makes quick decisions on questions of administration that arise.” Brandeis, however, found him lacking in one important area. “He is,” he told Frankfurter, “a first-rate second-rate mind.” That second-rate mind, however, had the virtue of often being open to argument.
One might have expected relations between Brandeis and Taft to have been strained at best. The Boston lawyer had humiliated the president during the Pinchot-Ballinger investigation, and Taft had vigorously opposed Brandeis’s confirmation to the Court in 1916. Taft, however, had held out an olive branch to Brandeis when they met on the street, and the new chief justice went out of his way—and successfully—to cultivate camaraderie among the brethren. On taking office, Taft sent Brandeis a long letter stating that he hoped they would be able to work well together on the bench. The two men met soon afterward, and Taft happily reported to his brother, “Brandeis and I are on most excellent terms…. He can not be any more cordial to me, than I am to him, so that honors are easy.” Later, when Brandeis began dissenting more, Taft found him less charming.
Thanks in large measure to Taft, the deep jurisprudential divisions on the Court never became personal. The atmosphere on the Court, he said, “is very friendly. When we differ, we agree to differ, without any ill feeling. It’s all very friendly.” Brandeis found Taft to be the only man other than Holmes “with whom it is a pleasure to talk—you feel you talk with a cultivated man. He knows a lot, he reads, he has wide contacts.” On the chief justice’s seventieth birthday Brandeis sent him a note that went well beyond the requirements of formal politeness. “To you of Eternal Youth,” he wrote, “it must be permissible to tell that Mrs. Brandeis and I send best wishes for the birthday on which we congratulate ourselves.”
Brandeis enjoyed good relations with the other members of the Taft Court with the exception of McReynolds, and even McReynolds acted civilly in the business of the Court. He returned Brandeis’s drafts, noting either concurrence or disagreement and occasionally adding a few words of explanation. In 1923, Brandeis wrote to his wife, “My friendly relations with my ‘brothers’ took a new advance yesterday when I asked McReynolds to write the dissent in a case in which we two are unable to concur with the majority. He seemed greatly pleased at being asked.” Brandeis never commented on how McReynolds acted toward him, but the fact that McReynolds did the work of the Court in a sloppy manner, even missing sessions when he did not feel like attending, offended him. Taft deemed McReynolds’s opinions “simply dreadful,” and while he wanted conservatives on the Court, he considered McReynolds a reactionary.
(There is, however, another side to McReynolds, one never seen by the public and rarely seen by his colleagues. Every year when the circus came to town, McReynolds organized and paid for a trip for the Court’s pages. During World War II he adopted thirty-three British war orphans, corresponding with them and providing financial support. On his death, he bequeathed significant sums to various charities.)
Although Mahlon Pitney is remembered primarily for several opinions restricting the rights of labor unions, Brandeis thought well of him. He had real character, he told Frankfurter, welcomed correction and discussion, and listened carefully to Brandeis’s comments on his drafts. He worked hard, and Brandeis believed he had “intellectual honesty that sometimes brought him out against his prejudices and first judgment.”
Brandeis was closest to Holmes of course, both in thought and in affection, and although he got along well with John H. Clarke, he had nothing more than thinly disguised contempt for him when Clarke resigned from the Court to devote his attention to the League of Nations rather than to “unimportant cases.”
George Sutherland replaced Clarke in the fall of 1922 and quickly became the intellectual leader of the conservative bloc. Brandeis, however, did not hold Sutherland’s mental abilities in the highest esteem: “I am much disappointed in Sutherland. He is a mediocre Taft.” He liked the man, however, even though as a senator Sutherland had voted against Brandeis’s confirmation. But as Sutherland’s biographer noted, “These affairs seem to have reflected only the differences of opinion between two honest men.” Brandeis had invited Sutherland to dinner in his apartment even before his nomination to the Court, and his guest ate, as Brandeis approvingly noted, “like an expert.” In the years they served together on the Court, they were often in disagreement, but that did not affect their cordial personal relationship.
Brandeis and Pierce Butler, a former railroad lawyer, seem to have coexisted peacefully; moreover, they were the only two members of the Court to understand the complexities of rate regulation. A die-hard conservative, Butler valued principle above all else, a position that might have appealed to Brandeis except for Butler’s dedication to a rigid jurisprudence out of touch with modern life. He opposed any form of government involvement in the economy or in the lives of individuals, and he alone dissented from Holmes’s opinion upholding involuntary sterilization.
If Taft provided political direction for the Court conservatives, and Sutherland the intellectual heft, Willis Van Devanter acted as the coordinator and strategist. One of the least productive members of the Taft Court in terms of output, he wrote few controversial opinions, and his colleagues seemed happy for him to take on the often tedious cases involving public land law, admiralty, and corporation law. Even if Van Devanter wrote no opinions, Taft declared, “we could hardly get along without him.” Brandeis admired him for his skill and knowledge in procedural and jurisdictional cases, being one of the few men on the high court besides himself to think those matters important, and like Taft, Brandeis often sent his draft opinions to Van Devanter before circulating them to the rest of the Court. Van Devanter “worked” the Court on behalf of Taft, who called him his “chancellor,” checking with the different justices, sometimes trying to persuade them to change their votes. Brandeis saw how this would be useful to Taft: “Ein treuer Diener seines Herrn”—”He is the true servant of his master.” On one occasion Brandeis said that Van Devanter would make an ideal cardinal, and on another described him as a “Jesuit general,” the man who really runs the Court. Despite their jurisprudential differences, the two men apparently enjoyed warm and respectful personal relations.
Although Brandeis admired these skills, he recognized that he could never work that way. In his first terms on the bench, Brandeis claimed, “I could have had my views prevail in cases of public importance if I had been willing to play politics. But I made up my mind I wouldn’t—I would have had to sin against my light, and I would have hated myself. And I decided that the price was too large for the doubtful gain to the country’s welfare.” But, he added, one should not underestimate the “large part played by personal considerations.” There is a certain sanctimony here, a belief that “politicking” would somehow soil the sanctity of the Court. Personal relations did matter, and since he had no hesitation in pushing Holmes to act at times, one wonders exactly what sin he would have committed by talking to other members of the Court, trying to persuade them to support a particular position. It is possible, although he does not say so explicitly, that the price of support for his views in some cases would have meant his vote in others, and on matters that meant a great deal to him.
Brandeis considered Joseph McKenna the one completely incompetent member of the Court. Although he had had a distinguished political career, he was a poor lawyer and knew it, and in twenty-seven years on the bench never developed a consistent judicial philosophy. His last coherent opinion came in the speech case Gilbert v. Minnesota (1920), but he stayed on the Court even though he no longer could understand the issues. “The only way of dealing with him is to appoint guardians,” Brandeis told Frankfurter. Taft, Van Devanter, and to a lesser degree McReynolds tried to manage his outbursts with varying degrees of success. McKenna knew “he doesn’t count, he sends up a balloon just to show that he is there. He breaks loose occasionally.” Although Taft on several occasions tried to get him to resign, McKenna refused, and so the others joined together to minimize any damage he might do. The chief justice assigned him only the simplest cases and then suppressed his opinions, holding them up until McKenna got mad and threw away the cases so they could be reassigned. The other justices, at Taft’s suggestion, agreed not to make any decisions in which his vote would be the deciding one. After his wife’s death in late 1924, McKenna finally resigned.
To replace McKenna, Calvin Coolidge appointed his college classmate Harlan Fiske Stone, the former Wall Street lawyer and dean of Columbia Law School who had become attorney general to clean up the mess of the Harding scandals. Within a few years Stone would become a close ally of Brandeis’s, but relations between the two did not start off well, even though Brandeis wrote encouragingly on his return of Stone’s first circulation, “Uncommonly good.” Stone did not like Brandeis’s highly documented opinions, which he considered ostentatious, although before long he, too, began citing law review articles in his opinions—and to similar disapproval from his conservative colleagues. In one of the first cases Stone heard, he thought that Brandeis used “bad economics to support bad law.” In a case assigned to him that the new justice believed had been decided unanimously, he worked long and hard on the opinion, and then in what he considered an unsportsmanlike move, Brandeis entered a well-reasoned dissent that the case should be dismissed for want of jurisdiction, an issue that had not been discussed at the conference. Stone’s annoyance did not abate when, after long hours of further research, it became clear that Brandeis was right. Brandeis, for his part, initially thought Stone too academic, wanting to discuss endlessly the pros and cons of each case. “I think it’s wrong, but. I think it’s right, but. Doesn’t know and doesn’t take trouble to find out.” Although the two eventually agreed on nearly all major jurisprudential issues, they never developed the warmth that marked the Holmes and Brandeis relationship, or even the guarded affection of Brandeis for Sutherland or Van Devanter.
Justices Stone, Holmes, and Brandeis, ca. 1927
Although learned in law, Stone felt unsure of himself in his first months on the Court, and since Chief Justice Taft frowned on dissents, Stone decided not to oppose the majority unless he felt very strongly on the subject. He dissented only four times in his first year on the Court, leading the New Republic to lament that “he aligns himself with the majority without reservation.” When Harold Laski complained about Stone’s vote, Holmes responded, “Don’t make a mistake about Stone. He is a mighty sound and liberal-minded thinker.” Starting in 1926, liberal fears abated as more and more cases came down tagged “Holmes, Brandeis, and Stone dissenting,” and Taft complained to his brother that insofar as maintaining the proper conservative jurisprudence, “Brandeis is of course hopeless, as Holmes is, and as Stone is.”
The three men did not agree on everything, but they did share a belief in what Brandeis had called a “living law,” one attuned to changes taking place in the broader economy and society. They thought that judges should practice judicial restraint and not impose their policy views in place of the legislative act. They also realized that judicial outcomes might not always be the best solution to particular problems; in a democracy, however, the process of airing a dispute would be worthwhile.
The three had different approaches as well. Holmes had the best writing style, but he loved to play with generalizations, so that he often failed to meet the majority on its own ground. “This is a pretty good opinion on the point he decides,” Stone once commented, “but the old man leaves out all the troublesome facts and ignores all the tough points.” Brandeis, on the other hand, often seemed to delight in taking the fight to the majority, confirming what Holmes had said early after Brandeis joined the Court: “I told him long ago that he really was an advocate rather than a judge. He is affected by his interest in a cause.” Stone, more dispassionate than Brandeis and less philosophical than Holmes, had the academic’s interest in developing jurisprudential theory, and this bothered Taft a great deal. “He is a learned lawyer in many ways,” Taft said, “but his judgments I do not altogether consider safe.” Taft worried that Stone would develop theories to overthrow the legal classicism that the chief justice and his conservative allies so treasured.
TAFT MADE SUCH A GOOD IMPRESSION on Brandeis in 1921 because the former president brought much-needed administrative ability to the Court, a skill that Chief Justice White had sorely lacked. The Court had an enormous backlog of undecided cases—343 cases had been carried over from the 1920 term—and the average time for an appeal to be heard after filing ran more than eighteen months. Within a few years the backlog had been all but eliminated, and the average time from filing to oral argument reduced to six months. Some of this improvement came simply from having a better and harder-working administrator in the center chair. Before a heart attack slowed him down in 1925, Taft routinely took on 50 percent more cases than did the associate justices, writing an average of thirty opinions per term compared with twenty for his colleagues. But Taft also believed in “massing the Court” and having it speak with a single voice. During the eight full terms that Taft presided over the Court (he suffered a stroke and resigned in the middle of the 1929 term), it handed down 1,554 full opinions, of which 84 percent were unanimous. By contrast, during the 1990s only 27 percent of the opinions had the support of all the justices.
Brandeis, despite his reputation as a great dissenter, had from the time he joined the Court believed that justices should refrain from dissenting except when necessary, but he did not share Taft and Butler’s general opposition to all dissents. “I don’t approve of dissents generally,” Taft wrote, “for I think that in many cases, where I differ from the majority, it is more important to stand by the Court and give its judgment weight.” Most dissents, he thought, “are a form of egotism. They don’t do any good, and only weaken the prestige of the Court.” Pierce Butler also saw dissents as an expression of vanity and would just as soon have done away with them. As chief justice, Taft worked hard to build consensus and stood ready to modify his own opinions to gain support from the others. Over his eight and a half years on the Court, Taft dissented only seventeen times, wrote only three dissenting opinions, and suppressed nearly two hundred of his own dissenting votes.
Brandeis drew a distinction between cases involving constitutional questions and those involving common legal matters. “In ordinary cases there is a good deal to be said for not having dissents. You want certainty & definiteness & it doesn’t matter terribly how you decide, so long as it is settled.” It is usually more important, he declared, “that a rule of law be settled than that it be settled right.”
One also had to weigh the effect of dissents on the relations with the other justices. “There is a limit to the frequency with which you can [dissent], without exasperating men.” Silence did not mean concurrence, Brandeis told Frankfurter. But one had to husband resources, and dissenting too often would weaken the force of a dissent when it became important to write. So “I sometimes endorse an opinion with which I do not agree, ‘I acquiesce’; as Holmes puts it ‘I’ll shut up.’” A dissenting justice has to be careful not to “vent feelings or raise a rumpus.” “You may have a very important case of your own as to which you do not want to antagonize [other justices] on a less important case.” In a return of a Stone opinion, Brandeis wrote, “I think this is woefully wrong, but do not expect to dissent.” On a Holmes opinion he remarked, “I think the question was one for a jury—but the case is of a class in which one may properly ‘shut up.’”
Just as Brandeis acquiesced in the opinions of others, they concurred with him even when they had doubts. Holmes wrote back on one return, “I am unconvinced. I think the other interpretation more reasonable.” In the same case, McReynolds also disagreed, but said, “I shall not object.” Pierce Butler noted that he “inclined the other way,” but Brandeis had made a strong case, so “I am content—& concur.” In another opinion, McReynolds wrote on his return, “Sorry but I cannot agree,” and still did not dissent.
Brandeis, like all justices, showed a willingness to change particular words or even sections to satisfy criticism and keep another justice on board. He proved particularly receptive to suggestions made by Willis Van Devanter, knowing that if “the Cardinal” agreed, he would bring along other members of the Court. Brandeis occasionally went further, actually drafting a dissent and then withdrawing it once his point had been made. In the Coronado labor case (see next chapter), he got Chief Justice Taft to modify the majority opinion in a way that did less harm to the union position.
In the circulation of one dissent he wrote, “Our Constitution is not a strait-jacket. It is a living organism. As such it is capable of growth…. Because [it] possesses the capacity of adaptation, it has endured as the fundamental law of an ever developing people.” Taft refused to join the dissent unless Brandeis deleted these sentences, which he did. Brandeis told the chief justice that while he believed strongly in what he had written, “they are not necessary and I am perfectly willing to omit them.” While the sentiment may have been incidental to this particular case, it marked the limits to which Brandeis would go in acquiescing for the sake of unanimity. When the idea of a “living Constitution” really mattered in cases involving rights or where Brandeis could not accept the majority’s legal classicism, he would dissent, and nothing Taft said had any effect.
On occasion Brandeis changed his mind and brought his colleagues around from their original position. In McCarthy v. Arndstein (1924), for example, the conference originally voted that a lower court had been wrong in holding that the Fifth Amendment right against self-incrimination applied to the financial papers of a petitioner in bankruptcy, and Taft had assigned the opinion to Brandeis. After studying the case, however, Brandeis concluded that the lower court had been right, and drafted an opinion to this effect. Chief Justice Taft responded, “I am inclined to go with you because I don’t know where else to go.” Van Devanter, Butler, and Edward Sanford all suggested changes, which Brandeis accepted, and he handed down the decision for a unanimous Court. In at least two other cases draft opinion by Brandeis led to the Court’s unanimously reversing itself from an earlier decision.
In the middle of the decade, pressure grew even stronger on the Court to suppress dissent in order to fend off political attacks. In 1919 the American Federation of Labor began a campaign against judicial review to protest what it saw as a wave of anti-union decisions by the high court. Then, in 1922, Senator Robert La Follette introduced a constitutional amendment giving Congress the power to overturn Supreme Court decisions that declared a federal law unconstitutional. The following year Senator William Borah proposed a bill that would require at least seven votes to void an act of Congress, and in 1924 La Follette included his proposed amendment as part of the Progressive Party platform.
Critics seized upon dissents to claim that the majority had not made the right decision, and in place of law had substituted their own views. Had the law been as clear as the majority opinions had claimed, there would have been no need for dissents. Taft followed the attacks on the Court closely, and to one friend he claimed that La Follette was no doubt discovering “a good deal of material in Brandeis’s dissenting opinions.” Taft found Brandeis’s dissents ever more exasperating, not only giving aid to enemies such as La Follette but also undermining the need of the Court to speak with one voice. Brandeis’s ultimate purpose, he told Willis Van Devanter, “is to break down the prestige of the Court.”
Whatever their political differences, all of the justices rejected the notion of Congress’s limiting the Court’s decision-making authority. Taft stepped up pressure on the brethren to speak with one voice, and it worked. Brandeis told Frankfurter the political attack on the Court had tended to reduce dissents. “The whole policy is to suppress dissents, that is the one positive result of Borah 7 to 2 business, to suppress dissent so as not to make it 7 to 2,” he said. “You may look for fewer dissents. That’s Van Devanter’s particularly strong lobbying with the members individually, to have them suppress their dissents…. The prudential arguments of Van D. as to what is ‘good—or bad—for the Court’ are weighty with him & with all of them.”
BRANDEIS DREW AN IMPORTANT DISTINCTION between constitutional and nonconstitutional cases, and he, perhaps more than anyone on the Court at that time, cared deeply about jurisdictional limits. It is somewhat surprising, therefore, that he alone of all the justices opposed Taft’s efforts to give the Court greater control over its docket and to make it into a true constitutional tribunal.
A court’s jurisdiction is the area over which it has authority, and one has to go into the proper court when conducting legal business. A person with a traffic ticket would not go into a small-claims court, while someone seeking a divorce cannot file in a criminal court. In the federal system, district courts will hear trials involving a federal crime, or suits between citizens of different states. For federal appellate tribunals, those that hear appeals from trial courts and lower appeals courts, the types of cases they may hear are determined by the Constitution and by legislation. The Constitution provides that the Supreme Court has original jurisdiction—that is, it will hear a case as the trial court—in suits involving ambassadors of foreign countries and those in which a state is a party. It may hear any case involving matters arising under the Constitution, federal laws, and treaties, as well as maritime and admiralty appeals. Beyond that, the Court’s jurisdiction is defined by federal law and by the interplay of the federal system. Federal courts do not hear suits arising under state law unless there is diversity of citizenship (the parties come from different states) or a constitutional right is asserted. State court systems have similar jurisdictional definitions.
Old Court Chamber
Brandeis believed that jurisdictional limitations should be strictly enforced, and voted against taking any case that he believed did not meet the Court’s requirements. His law clerk Paul Freund asserted that “Brandeis was prepared to reject the claims, almost literally, of a workman, a widow and an orphan in pursuance of what seemed to him a more harmonious federalism.” In conference Brandeis would “pound on jurisdictional observance.” Some of the cases most criticized by reformers should never have been heard by the Court, he argued, and if the justices would just pay more attention to jurisdiction, the Court could avoid a great deal of censure. Throughout the 1920s he constantly urged Frankfurter to have his students write and publish articles on the Court’s jurisdictional limits, in the hope that if bench and bar read them, it would do a great deal to eliminate needless filings. “The most important thing we do,” he declared, “is not doing.”
Brandeis may have been a bit unfair in his characterization of Taft, whom he charged with ignoring jurisdictional limits because he liked to decide issues. The chief justice had, after talking with Brandeis, changed his mind and adopted his argument on jurisdictional limits in an important labor case. Moreover, Taft, even before becoming chief justice, had worried about the Court’s caseload and the almost total lack of administrative coherence within the federal judiciary. His work in addressing these issues remains one of his great legacies as chief justice.
As early as 1908, Taft had called for reform of the judiciary and, after leaving the White House, had used his platform as professor at Yale Law School to promote judicial reorganization. When he became chief justice, he had a clear idea of what he wanted to do. He achieved his first victory in 1922, when Congress at his request established a conference of each circuit’s senior judges, who would meet on a regular basis with the chief justice to identify problems in the system, and empowered the chief justice to reassign district court judges on a temporary basis to reduce backlogs. In promoting the measure, Taft became the first chief justice to testify before a congressional committee. The law also required an annual report on the judiciary, analogous to the president’s State of the Union. Most important, the act treated the federal courts as a single administrative unit; it made Taft and his successors not only the chief justice of the Supreme Court but, as the Constitution had envisaged, the chief justice of the United States and head of the entire judicial system.
Three years later Congress gave Taft the second tool he needed in the Judiciary Act of 1925, also known as the Judges’ Bill. A committee of Sutherland, McReynolds, and Van Devanter had drawn up the measure, after Brandeis declined to be a member. The Judges’ Bill gave the Supreme Court control over its docket. Ever since the first Judiciary Act in 1789, Congress had defined the Court’s jurisdiction, but in doing so had never given the Court the power to say it would not hear certain types of cases. It could dismiss appeals for lack of standing, for frivolity, and for other causes, but all sorts of minor matters could be appealed by writ of error to the high court. There was more than a grain of truth in Justice Clarke’s complaint when he resigned that more than half of the cases heard by the tribunal “are of no considerable importance whether considered from the point of view of the principles or of the property involved.” Not only did many of these cases have nothing to do with constitutional questions; they did not even involve federal law.
Taft believed that the Supreme Court should primarily be a constitutional court, with its chief function of interpreting the Constitution “so as to furnish precedents for the inferior courts in future litigation and for the executive officers in the construction of statutes and the performance of their legal duties.” The Judges’ Bill reduced the mandatory jurisdiction of the Court—those cases it had to accept under a writ of error—and gave it the power to pick and choose the cases it would hear through the discretionary writ of certiorari. The law implemented Taft’s belief that the main business of the Supreme Court should be the development of federal constitutional law.
Brandeis initially opposed Taft’s proposal. He believed that changes to jurisdiction in a 1916 act had already enlarged the Court’s discretionary powers and simply expanding them further would be neither the safest nor the most effective manner to limit the Court’s docket. He recognized, however, that the 1916 act contained a number of inconsistencies; all the other justices supported Taft’s proposal, and from an institutional perspective Brandeis agreed that the chief justice had a mandate from the Court. “I am willing,” he told Taft, “that you should say that the Court approves the bill—without stating whether or not individual members approve it. For, in relation to proposed legislation directly affecting the Court, the Chief Justice, when supported by a clear majority, should be permitted to speak for it as a unit; and the difference of view among its members should not be made a matter of public discussion.”
As the bill moved through final reading toward passage in early 1925, Brandeis wrote the following to Felix Frankfurter:
U.S.S. C—venerated throughout the land. Despite the growth of population, wealth and governmental functions, & development particularly of federal activities, the duties of the Court have, by successive acts passed from time to time throughout a generation, been kept within such narrow limits that the nine men, each with one helper, can do the work as well as can be done by men of their caliber, i.e., the official coat has been cut according to the human cloth.
Congress, Executive Depts., Commissions & lower federal courts.—All subject to criticism or execration. Regardless of human limitations, increasing work has been piled upon them at nearly every session. The high incumbents, in many cases, perform in name only. They are administrators, without time to know what they are doing or to think how to do it. They are human machines.
Brandeis had been concerned about the workload of the Court for a long time and was not sure that the changes Taft had recommended would in fact cut down on congestion in the Court’s docket. Throughout his tenure he took pride that nine men, each with a single clerk, did all the work of the nation’s highest court efficiently and effectively, while the other branches of government swelled with hundreds and thousands of employees, each one, in his opinion, making that particular agency or office less efficient and more removed from the people. Nowhere else, Brandeis thought, had the ideal of small government proved so successful as in the Supreme Court. Within a few years, however, he recognized that Taft had been right, as the Court gained control over its docket and eliminated the backlog of cases. When his former law clerk James Landis and Frankfurter wrote approvingly of the Judges’ Bill, Brandeis concurred in their judgment.
Brandeis also opposed Taft when he wanted to streamline the bankruptcy procedures in New York. A majority of the district and circuit judges approved, but Brandeis did not, believing that such changes should be uniform throughout the federal system, and therefore that Congress should implement these changes. Taft lashed out at Brandeis in a letter to his nephew, charging that the justice “always finds some reason for interfering with the course necessary to accomplish real reform.” Then, in a disgusting display of anti-Semitism, Taft said that the real reason for Brandeis’s opposition was that he did not want to interfere with “the young Russian Jews” who composed the bulk of the bankruptcy petitioners.
As part of his campaign to overhaul the federal court system, Taft also wanted to simplify the rules that governed procedure of cases in federal courts. The chief justice believed not only that out-of-date regulations hampered the effective administration of justice but also that inordinate complexity led to unnecessary delays in bringing cases to trial. In May 1926 the Senate Judiciary Committee unanimously reported a procedures bill drafted by Senator Albert Cummins and supported by Taft. Then the bill stalled, with rumors that Holmes, McReynolds, and Brandeis had all communicated their doubts about the measure to Senator Thomas Walsh. Taft and Van Devanter worked on Holmes and McReynolds and got them to agree not to communicate with the Senate committee. Brandeis would make no such promise, and this worried Taft considerably. Unwilling to confront Brandeis directly, Taft asked the chairman of the American Bar Association’s Committee on Uniform Judicial Procedure, T. W. Shelton, to see Brandeis and to press him not to send a letter. Brandeis, however, remained noncommittal, and there is no record to indicate whether he wrote or even spoke to Walsh, who single-handedly stopped the bill dead in its tracks. Eventually, Congress in 1934 authorized the establishment of the uniform Federal Rules of Civil Procedure, which went into effect in 1938. By then, however, Taft had passed from the scene.
Brandeis, despite his refusal to join Taft in pushing for the Judges’ Bill, nonetheless did his bit when Taft asked him and Holmes to join him before the House Appropriations Committee. The entire judicial system at the time was inadequately financed, and the U.S. Court of Appeals for the First Circuit lacked not only a law library but the funds necessary to purchase one. Taft recognized that Holmes and Brandeis would be the “big guns” to appeal to progressives on the committee, and he was right. They successfully made the case for a deficiency allotment to enable the First Circuit to secure a law library.
The final part of Taft’s plans involved finding the Supreme Court more dignified quarters. Since 1860 the Court had met in the Old Senate Chamber in the Capitol. The justices had no privacy (after robing in one room, they paraded down a corridor to the courtroom), no separate chambers, a small room for conferences, and cramped library space. Taft lobbied for and Congress approved the construction of a large and magisterial building, one befitting a co-equal branch of government, on a site across from the Capitol and next to the Library of Congress. Taft, however, did not live to see completion of the building in 1935. Brandeis, who thought the old courtroom not only adequate but symbolic of small government, opposed the new Court building and, while he joined the other justices in hearing cases in what came to be called the Marble Palace, refused to occupy the large set of offices reserved for him. Instead, the Court used those rooms as an exhibition suite for visitors, and Mrs. Brandeis went down one day to take a tour of the new building. When she came back home, she declared, “They showed me the running ice water and the shower bath, two things my husband never uses.”
IN IMPORTANT CASES involving property rights and labor legislation, Taft knew that despite his best efforts, he would not be able to silence Brandeis’s dissents, but he never expected disagreement in the case that may have been the nearest to Taft’s heart during this time, one explicating the powers of the presidency.
In order to prevent President Andrew Johnson from removing any government official appointed by Abraham Lincoln, Congress passed the Tenure of Office Act in 1867, requiring the president to get the Senate’s approval to dismiss certain appointed officials, including postmasters. In 1920, Woodrow Wilson removed Frank S. Myers as postmaster of Oregon without the consent of the Senate. Myers died a little while later, and his wife, as executor of his estate, sued for damages and lost wages, claiming that Wilson needed the Senate’s approval before firing Myers. She lost in the U.S. Court of Claims and then appealed to the Supreme Court. The Court heard oral argument on 5 December 1924 but, unable to reach agreement, restored the case to the docket and had it reargued on 13 and 14 April 1925. The Court did not hand down its decision until 25 October 1926, when by a 6–3 majority it found in favor of the president’s power. The delay resulted at least in part from the time it took Taft to write a seventy-one-page majority opinion, McReynolds a sixty-two-page dissent, and Brandeis a fifty-five-page dissent. (Holmes said he agreed with everything McReynolds and Brandeis wrote and then added a mere two paragraphs of his own.)
Taft, as well as McReynolds and Brandeis, relied heavily on history, each going back to the Constitutional Convention of 1787, Taft to prove the Framers’ intent to develop a strong executive power that, at least in the area of appointments, Congress could not limit, the other two to prove just the opposite. All three embraced what we today call “original intent,” and their opinions illustrate how history can “prove” arguments on both sides of a dispute.
As president, Taft had believed that the Constitution strictly limited the power of the chief executive. In Myers, however, he put forth one of the broadest expressions of presidential power heard until that point. Although Congress clearly had the power to create a postal system, establish post offices, and provide for the hiring and pay of postal workers, Taft found the Tenure of Office Act an unconstitutional invasion of presidential authority. His reading of history led to the conclusion that the Framers had intended the chief magistrate to have an unrestricted power to remove any officials he appointed. Since the Constitution made the president responsible for the faithful execution of the laws, he had to have complete discretion in removing those officers who, in his judgment, did not carry out that duty. For Taft, the question involved separation of powers between the executive and the legislative, and the requirement for the Senate’s advice and consent should be interpreted as narrowly as possible so as not to diminish presidential authority. Except for judges, who under Article III are appointed for life, the president ought to have complete discretion over removal of government officers. To allow Congress any intrusion on this authority would prevent the president from carrying out his duties. “I never wrote an opinion that I felt to be so important in its effect,” Taft said.
The dissenters tore his argument apart. McReynolds ridiculed the idea of any inherent presidential power to remove government employees. The Constitution gave Congress the power to place the appointment of lesser officials in hands other than the president’s and to provide the means by which they could be removed. Because Congress gave the president authority to appoint certain officials did not deprive Congress of the power to place limits on their removal. Had Taft not stretched his opinion to include the commissioners of the regulatory commissions, perhaps Brandeis’s dissent would not have been so forceful. But the justice believed that if Taft’s ruling were fully implemented, it would undermine the independent agencies.
Brandeis’s first draft ran a mere page and a half, and he then assigned his law clerk for the term, James Landis, to investigate the history of the presidential appointment power and what lower courts had said. Landis went to the Library of Congress and spent months there. As Landis later noted, “I paged, literally paged every one of the Senate journals from the time of the passage of the Tenure of Office Act just in order to determine what the practice was.” Brandeis had taught him that “practice is the important thing in determining constitutional law.” As he turned in his notes, Brandeis’s opinion grew and grew, until eventually it ran fifty-five pages in United States Reports, much of it devoted to the eighty-seven footnotes that contained Landis’s research.
Whereas Taft had framed the question broadly—”whether under the Constitution the President has the exclusive power of removing executive officers of the United States whom he has appointed”—Brandeis structured his argument far more narrowly: “May the President, having acted under the statute in so far as it creates the office and authorizes the appointment, ignore, while the Senate is in session, the provision which prescribes the condition under which a removal may take place?” He then carefully examined the Framers’ writings on the removal power, the experience of the early Republic, the conditions under which Congress had enacted the Tenure of Office Act, other statutes restricting presidential removal authority, and how succeeding presidents had fully obeyed their provisions.
Brandeis dismissed Taft’s separation of powers argument and argued instead that the checks and balances among the three branches constituted the most important principle involved. That is why the Framers had refused to give the president an unlimited removal power. “The conviction prevailed then that the people must look to representative assemblies for protection of their liberties,” he wrote. “And protection of the individual, even if he be an official, from arbitrary or capricious exercise of power was then believed to be an essential of free government.” Separation of powers had been established “not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.” To Brandeis, Congress, in protecting government employees from arbitrary dismissal, was also protecting free government.
Taft saw the Myers case as a test of loyalty to the American system of government, and Brandeis’s dissent infuriated him. “He is opposed to a strong Executive,” he fumed.
He loves the veto of the group upon effective legislation or effective administration. He loves the kicker, and is therefore in sympathy with the power of the Senate to prevent the Executive from removing obnoxious persons, because he always sympathizes with the obnoxious person. His ideals do not include effective and uniform administration unless he is the head. That of course is the attitude of the socialists till he and his fellow socialists of small number acquire absolute power, and then he believes in a unit administration with a vengeance.
A year later the chief justice still fumed at Brandeis and McReynolds. “They have no loyalty to the court and sacrifice almost everything to the gratification of their own publicity and wish to stir up dissatisfaction with the decision of the Court, if they don’t happen to agree with it.”
Taft had claimed far too much in his opinion. At a time when Congress had created administrative agencies such as the Federal Trade Commission designed to be independent of presidential authority, Taft’s assertion of an unlimited right of removal undermined congressional policy-making powers. The decision made the front pages of the newspapers and met a barrage of criticism ranging over the political spectrum from the liberal Robert La Follette Jr. to the conservative senator George Wharton Pepper. The law journals almost unanimously sided with the dissenters, and Senator Hiram Johnson scoffed that the only people who supported the Taft opinion were those who believed the country needed a Mussolini.
Although Brandeis did not live to see all of his dissents become accepted by the Court, in this case he did, and he did not have to wait long. Nine years later a unanimous Court overturned Myers and held that when Congress created positions, especially in the quasi-independent administrative agencies, it could also protect the members of those agencies from presidential removal. (The president, of course, retains the power to remove officials performing strictly executive functions.)
BY THE TIME of the Myers case, Taft’s initial praise of Brandeis had evaporated, as Brandeis, Holmes, and soon Stone stopped being, at least in Taft’s eyes, “team players.” Although he understood and supported Taft’s desire to improve the administration of the judicial system, Brandeis did not share the chief justice’s views on how those reforms should be implemented. Brandeis considered this a difference in opinion, one that could be discussed among the brethren, and when he saw that a majority of the justices supported Taft, he went along. Taft, on the other hand, saw anything less than full endorsement as a betrayal not only of himself but of the Court. Brandeis shared Taft’s views that dissents ought to be infrequent, and on many occasions he suppressed his disagreement. Taft, however, wanted near-constant unanimity, and this Brandeis would not and could not give him. Perhaps worst of all, Taft understood that Brandeis’s dissents posed a great danger to the legal classicism that the chief justice believed to be the heart of constitutional jurisprudence. In cases involving property rights, labor, and civil liberties, Brandeis did in fact undermine legal classicism, setting up its ultimate demise in the 1930s.