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My Observations of the Following article:
ARTICLE: THE TAFT COURT (1921-1929) By: Russell W. Galloway Santa Clara Law Review, Volume 25 Pages 1-51 From roughly 1890 to 1937, the Supreme Court was usually dominated by conservative justices that opposed large scale government regulation of business and economic practices. During this period, several liberal justices were appointed. Teddy Roosevelt appointed Oliver Wendell Holmes. William Howard Taft appointed Charles Evan Hughes. Woodrow Wilson appointed Louis D. Brandeis and John H. Clark (Galloway, 1985: 2). During Taft’s administration, he appointed several other Supreme Court justices. The first was Horace H. Lurton who served from 1910 to 1914. Lurton was a conservative who had served on the Sixth U.S. Circuit Court of Appeals with Taft. As mentioned, Charles Evan Hughes was appointed an associate justice and was elevated to chief justice upon the death of Taft in 1930. Hughes turned out to be a liberal on the bench who was active in civil liberty issues. The first being Bailey v. Alabama in 1911. Hughes left the bench in 1916 to run against Woodrow Wilson as president. The third Supreme Court appointment by Taft was Edward B. White of Louisiana. White served from 1894 to 1910. In 1910, Taft appointed him the chief justice. White served until 1921. White was the first associate justice in the history of the Supreme Court to be elevated to chief justice. The fourth appointment to the Supreme Court by Taft was Willis Van Devanter. He served on the bench from 1911 to 1937. He previously had been a federal circuit court judge. Van Devanter wrote very few Supreme Court opinions himself. Taft served his entire period on the Supreme Court with Van Devanter. The fifth Supreme Court associate justice appointed by Taft was Joseph R. Lamar. He served on the bench from 1911 to 1916. He died while in office. The sixth Supreme Court appointment to associate justice was Mahlon Pitney, who served on the bench from 1912 to 1922. He had served on the New Jersey Supreme Court, voted with the conservatives and was especially hostile to organized labor. Taft did not favor him as an associate justice (DeGregorio, William A., Complete Book of U.S. Presidents, 4th Edition, 1993, New York: Wings Books). All of Taft’s appointments other than Hughes turned out to be conservative and mainly voted with Taft during his term as chief justice of the Supreme Court. Along with the appointment of Taft as chief justice, Harding filled two other seats on the Supreme Court. That of George Sutherland, who had been Harding’s campaign manager, and railroad attorney, Pierce Butler. This began the court’s second age of laissez faire, a conservative era that prevailed throughout the 1920’s and up to the time of the constitutional resolution of FDR in the mid-1930’s (Galloway, 1985: 3). The Taft court’s conservatism was timed very well with what was going on in the nation. World War I had ended putting the country in a very conservative mood and the hallmarks of this period were anti-subversive witch hunting, racial persecution, America first isolationism, prohibition, economic conservatism, and strong anti-labor sentiment (Galloway, 1985: 3). The decade began with typical post-war economic problems to include strikes and social unrest. However, before long the roaring 20’s were underway. Taft’s arrival to the Supreme Court bench did not change the balance of power. Taft, although conservative, was considered a moderate conservative. That would change by the end of the late-20’s. At the time of Taft’s arrival, the liberal wing was made up of Brandise, Holmes and Clark. The right wing conservative was made up of McReynolds and Van Devanter, who were the first of what would become known as the conservative “four horsemen” which would become the court’s strongest block in the later-20’s (Galloway, 1985: 5). In 1922, John H. Clark, who was a liberal Wilson appointee, resigned. In his place was appointed George Sutherland, a very conservative Republican from Utah who had served in the senate from 1905 to 1917. Sutherland was known to consistently oppose the progressive policies of both Roosevelt and Wilson. This appointment also caused a sharp swing to the right in the court’s balance of power. The liberal wing was reduced to Holmes and Brandise, who usually joined together for purposes of dissenting (Galloway, 1985: 8). Sutherland became the third of the to be “four horsemen” of the court and became the court’s best writer. In late 1922, the moderate William R. Day resigned and Harding made his appointment of the fourth “horseman”, Pierce Butler, who was an extremely conservative railroad attorney from Minnesota. Taft had actually made the recommendation for Butler’s appointment (Galloway, 1985: 9). Butler was among the most rigid of the justices who rejected New Deal legislation. His philosophy was that of laissez faire. Before Butler could be seated, Mahlon Pitney, a moderate conservative appointed by Taft, resigned. Harding chose conservative Edward Sanford as his fourth and last appointee. Although Sanford was less reactionary than the four horsemen, Sanford brought to the court the very powerful six vote conservative wing. By the end of 1922, Taft had realized his long cherished ambition to preside over a court that could be counted to quell any “socialistic raids on property rights” (Galloway, 1985: 10). By the time the October 1922 term of the Supreme Court began, the dissent rates of the court fell to some of its all time lows. For example, Sutherland dissented in 8 out of 22 cases; Taft dissented in 2 out of 223 cases; and, Butler did not dissent one time in the 149 cases he heard. Taft used strong persuasion to dissuade dissenting opinions, encouraged and used strong personal pressure on his colleagues to join the court’s decision (Galloway, 1985: 10). It was extremely hard to determine what influenced the court to vote in 1922. The disagreement rates between Taft and Brandeis was 1.4% and between Taft and Holmes 2.2%. The highest disagreement rate in the term of 1922, was between Sutherland and Sanford at 5.8%, who were the two rookie members of the conservative wing. The case that gave the greatest view as to the court’s position in that term was Adkins v. Children's Hospital, 261 US 525 (1923), which landmark decision and marked the beginning of the court’s second age of laissez faire. Adkins concerned the constitutionality of Washington’s minimum wage statute for women and children. The court ruled that minimum wage legislation was an unconstitutional infringement on the liberty of employers and employees to negotiate employment contracts. Interestingly, Taft joined Holmes and Sanford in dissenting on the court’s ruling. The vote was 5-3. Brandise did not participate. The 1923 term found the court being very clearly conservative with Brandise and Holmes making up the liberal wing. Brandise was the only political liberal on the court. In the cases that were decided that year, there was only one dissent in every five cases. Taft dissented once in 210 cases; Sutherland, Butler and Sanford each dissented twice; McReynolds – who was known to be notoriously cantankerous – cast a total of eight dissents in the 212 cases he heard that year. The highest dissent rate of 4.2% was posted by Brandise, who dissented more than Taft, Sutherland, Butler and Sanford combined. The phrase “Holmes and Brandise dissenting” was not of import in the October 1923 term. They dissented a total together of six times in the term’s 213 cases. Many times, the joined the conservative majority, especially in the area of civil liberties in voting against civil liberties activism. The October 1924 term saw a fifth change since the start of the decade in the Supreme Court make up. Joseph McKinna retired at the insistence of Taft in November 1924. Taft bluntly told the senior justice that he had been carrying him by assigning him only simple cases and it was time for him to retire. His retirement became effective January 15, 1925 (Galloway, 1985: 16). This brought President Coolidge to appoint – who would become another outstanding Supreme Court justice – by the name of Harland Fisk Stone, who was a former New York City lawyer and dean of Columbia Law School. Stone would become a member of the liberal wing, an opponent of the four horsemen and an advocate of judicial restraint in economic cases. Franklin Delano Roosevelt would appoint him chief justice in 1941. In Stone’s first term, he aligned himself closest with Holmes – agreeing with Holmes in 84 out of the 85 cases in which both participated. With the appointment of Stone, the court became very strongly aligned, with the liberals being Brandise, Holmes and Stone, and the right being McReynolds, Butler, Sutherland, Van Devanter, Sanford and Taft. There was no middle/center ground upon the Supreme Court. The most important case on the 1924 term was Gitlow v. New York, 268 US 652 (1925), which was a 7-2 (Brandise and Holmes dissenting) vote. This was a civil liberties case discussing the First Amendment’s guarantee of freedom of expression. The question is whether the due process clause of the Fourteenth Amendment made those guarantees applicable to the states. Gitlow is often called the first incorporation case which means that through the Fourteenth Amendment, the states were incorporated into the requirements of the constitutional amendments. Interestingly, the court used what was known as the remote bad tendency test which said that if the speaker intended to encourage conduct that the government may ban and the speech had any tendency to produce such conduct, the government could punish that speaker (Galloway, 1985: 19). The most important criminal case of this term and for the entirety of the Taft court was Carroll v. United States, 267 US 132 (1925) (7-2 decision: McReynolds and Sutherland dissented; while Brandise and Holmes joined Taft’s majority opinion). This case would become a landmark case known as the Carroll Doctrine which deals with an automobile exception to the Fourth Amendment requirement of a warrant. This case probably came to tremendous prominence because it was in response to prohibition and concerned agents’ ability to stop a car suspected of transporting bootleg liquor. The legal concept that came out of this case was the mobility of the car which would lead to exigent circumstances which would justify a warrantless search. The Carroll Doctrine frustrates the law and order conservativism of the Taft court and remains good law to date (Galloway, 1985: 20). Out of the 231 cases cited during the 1924 term, Gitlow, Carroll and a third case, Pierce v. Society of Sisters, 268 US 510 (1925) (9-0 decision), were the only noteworthy cases. But, this term was also known for the enactment of the Judges Act of 1925. This revolutionary statute did away with the Writ of Errors and restricted the cases in which appeals as of right were allowed to be brought before the Supreme Court. This made more powerful what is known as a Writ of Certiorari which requires four of the nine justices to vote on a case to be brought before it. This would allow the justices to pick and choose those cases they felt important enough to merit the court’s attention (Galloway, 1985: 21). In the October 1925 term, Taft’s ability to get the court to go along with majority decisions with little dissenting continued – 192 of the 209 cases heard that year were unanimous decisions. The liberal block of Holmes, Brandise and Stone dissented as a block only twice. The conservative four horsemen, McReynolds, Butler, Sutherland and Van Devanter, dissented as a block only once. There was not a single landmark case of last significance decided during the 1925 term (Galloway, 1985: 23). The 1926 term began what would be recognized as a philosophical split as to how the Supreme Court would vote. It was generally considered that the left consisted of Holmes, Brandise and Stone. The center consisted of Taft and Sanford. The four horsemen (Sutherland, McReynolds, Butler and Van Devanter) were on the right. Of the 69 dissents cast during this term of court, the liberals – Brandise, Holmes and Stone – cast 34 dissenting votes. Two civil liberties cases of importance in this term were Whitney v. California, 274 US 357 (1927) (9-0 decision), which upheld a criminal syndicalism conviction and Butt v. Bell, 274 US 200 (1927) (8-1 decision with Butler dissenting), which upheld the sterilization of a mentally retarded inmate (Galloway, 1985: 27). By 1927, Taft’s policy of enforced unanimity began to fade more rapidly. The liberals stepped up their protests and dissent rates went to the highest levels of the decade. The left being Brandise, Holmes and Stone; the right being Sutherland, McReynolds, Sanford, Butler, Van Devanter and Taft, was commonly referred to 6-3 alignment in the 1925 – 1930 period of Supreme Court history which reflects the real balance of power on the later Taft court. Brandise, Holmes and Stone were responsible for 47 of the 72 dissents on that term’s calendar; while Taft and Van Devanter did not dissent for any of the cases heard. This is where the term “Holmes and Brandise dissenting” became well known. Holmes and Brandise dissented together 16 times during the term; Stone joined them 10 times. In contrast, the four horsemen did not dissent as a block once during the entire term. The most visible and conservative of the criminal cases decided that term was Olmstead v. United States, 277 US 438 (1928). This is a 5-4 decision where Holmes, Brandise, Stone and Butler dissented. Olmstead was overruled 40 years later by the Warren court in Katz v. United States, 389 US 347 (1967). Olmstead was the electronic interception of oral communications where it was found the Fourth Amendment search and seizure issue was not violated in that it was not a search or a seizure and, therefore, the Fifth Amendment right against self-incrimination did not apply (Galloway, 1985: 30). The October of 1928 was the last full term that Taft would serve as chief justice of the Supreme Court. Herbert Hoover, a moderate conservative, was elected president of the United States and the Supreme Court remained as aligned the previous year. This was the fourth straight term that no personnel changes had been made and the cases of that term were lacking in interest and long term importance. This year of Supreme Court history is seen as being very unproductive. The alignment of the court remained the same. Holmes and Brandise disagreed with each other in only 3 of 129 cases which was a very low number of decisions handed down by the Supreme Court. The peak number of cases heard by the Taft court was the October 1924 term where there were 231 cases. This clearly shows that Taft’s Judges Act of 1925 was taking effect and the justices had increased control over the court’s docket. But it also points out that the court’s concept of expecting an increase in the number of important cases did not develop – at least by this year (Galloway, 1985: 33). During that term, the four horsemen did not dissent even once as a block. The October 1929 term saw two personnel changes. Ironically, both Chief Justice William Howard Taft and Justice Edward Sanford died on the same day, March 8, 1930. Charles Evan Hughes was elevated to the chief justice position on February 24, 1930. Justice Owen J. Roberts was seated to replace Sanford. In October 1929, which was the first month of Taft’s final term, the stock market crashed and the nation began its plunge into the Great Depression. The full Taft court, which included Taft and Sanford, participated only in the first 34 cases of the October 1929 term. The conservatives as previously discussed dominated this stretch of cases. During that period of time, Holmes and Brandise dissented together in 5 cases which involved the government’s effort to regulate the economy. In contrast, neither Taft, Sanford nor McReynolds had cast a single dissent in those 34 cases. The other three conservatives dissented only once (Galloway, 1985: 35). Historically, the Taft court is broken into two blocks. The first period was October 1921 through the October 1924 terms, where the court underwent a series of personnel changes and it was hard to determine what the voting blocks were. The second period from October 1925 through the October 1929 terms, where it was readily identifiable as to a vivid liberal wing of Holmes, Brandise and Stone against a very conservative block known as the four horsemen of McReynolds, Sutherland, Van Devanter and Butler. The first block is known as the period when Taft tried to suppress dissent and to emphasize the importance of harmonious relations on the court. Generally, Taft and Sanford had the controlling votes between the four horsemen and the three liberals. Generally, Taft and Sanford leaned to the right – living up to the conservative reputations that lead President Harding to appoint them. In striking contrast to the Taft court’s activism in economic cases, Taft courts showed remarkable restraint in enforcing constitutional prohibitions designed to protect civil liberties (Galloway, 1985: 47). As compared to the post-1937 Supreme Court, the Taft court is historically considered to be completely passive in the main civil liberties areas of freedom of expression, race relations and criminal law. It is pointed out there was only one significant development in the First Amendment law and that was Gitlow v. New York. The most noticeable landmark case in dealing with racial minorities which would become the basis of post-1937 decisions was Moore v. Dempsey, 261 US 86 (1923), which reversed the mob dominated convictions and death sentences of blacks in a shoot out in Arkansas. The other race related case was Nixon v. Herndon, 273 US 536 (1927), which found unconstitutional Texas’ whites only primaries. Generally, where the Taft court used the equal protection clause to enforce governmental regulation of business, it refused to enforce protection along race lines under that same equal protection clause (Galloway, 1985: 48). The Taft court decided in Gonglum v. Rice, 275 US 78 (1927), that the government could require children to attend racially segregated schools. The court also decided Corrigan v. Buckley, 271 US 323 (1926), where the court held that courts could enforce restrictive covenants banning the sale of real property to racial minorities. The court also held that an equal protection clause allowed states to ban aliens from owning property in Terrance v. Thompson, 263 US 197 (1923) (Galloway, 1985: 49).
A number of
criminal cases were decided by the Taft court. However, the most famous of the
landmark decisions went against the defendants. They were generally associated
with prohibition, which was a major concern of the Taft court. Additionally, to
the Olmstead and Carroll cases discussed above, Hester v. United States,
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