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William Howard Taft (1857-1930) Twenty-seventh President March 4, 1909-March 4, 1913 Tenth Chief Justice of the United States Supreme Court (1921-1930) Died: March 5, 1930
“The great problem of government that is never completely solved and that is changing with changing conditions is how to reconcile the protection of individual rights helpful to the pursuit of happiness and the welfare of society with the necessary curtailment of those rights and freedom, by governmental restriction, to achieve the same object.” (Taft, 1915: 22) In discussing individuals that have had a significant impact upon the twentieth century, few would mention the name of the United States’ twenty-seventh President, William Howard Taft. Historically, Taft is seen as an average president, ranking behind his immediate two predecessors and friends, McKinley and Roosevelt (Blessing,1983). As tenth Chief Justice of the United States Supreme Court, he stands in the shadows of legal scholars Oliver Wendell Holmes, Louis Brandis and Harland Stone. However, closer examination of this man’s forty plus years in public service would disclose an individual whose decisions had a tremendous impact upon public and foreign policy as well as the economic stability not only during his tenure of service, but for years to follow. This impact would be felt in the United States and throughout the world. The limitations of this paper cannot adequately justify this opinion and therefore limits its discussion to a very narrow topic: Taft’s impact upon criminal law and procedure. Although not the focus of the Supreme Court during Taft’s nine years of service from June, 1921 until February, 1930, many of the decisions made by the Supreme Court during the Taft Years still impacts how crime is treated today. This is especially true in the areas of duplicity of charges between jurisdictions, first amendment free speech and search and seizure issues. This paper will evaluate how those decisions were made, what trends occurred during Taft’s tenure in criminal law and their impact on the criminal justice system. It leaves for future research how and what led Taft and his brothers on the Court to make those decisions. Taft’s Public Service Background Taft’s career in public service began in 1881 upon his being admitted to the Ohio bar. His first job was as the assistant to the prosecuting attorney of Hamilton County, Ohio. He held several other governmental jobs before becoming a judge of the Superior Court for Cincinnati in 1887 at the age of 30. In 1890, Taft approached President Harrison for an appointment to the United States Supreme Court. Instead, President Harrison appointed Taft Solicitor-General of the United States. Taft remained in that position until being appointed to a newly created judgeship on the United States Sixth Circuit Court of Appeals in 1892 by President Harrison. He remained in that position until 1900 (Anderson, 1981). In 1900, Taft’s public career took a turn towards the executive branch when he was appointed by President McKinley to establish a civil government in the newly acquired Philippines. McKinley had made the transfer of the Philippines to the control of the United States a condition of surrender by the Spanish in the Spanish-American War. McKinley was running for president in 1900 and knew the importance of naming someone who could successfully govern the required transition from the United States’ military control of the Philippines to a democratic self-government (Burton, 1986). McKinley turned to his friend and fellow Ohioan, Taft, to handle this critical political situation. In September of 1901, President McKinley was assassinated and Theodore Roosevelt became the 26th President of the United States. Roosevelt and Taft had become good friends while Taft was in Washington as Solicitor-General. Taft had approached McKinley on Roosevelt’s behalf to have Roosevelt appointed Assistant Secretary of the Navy. In return, upon becoming President, Roosevelt appointed Taft his Secretary of War in 1904. In that position, Taft supervised the construction of the Panama Canal and became Roosevelt’s close confidant. Roosevelt made the decision to not run for president in 1908, deciding instead to have his close friend Taft run for the position. Taft was easily elected as the United States’ twenty-seventh President and Roosevelt exchanged the White House for big game hunting throughout the world. Upon Roosevelt’s return to the United States, he became disenchanted with Taft’s inability to make decisive decisions as President. This led Roosevelt to run for President on the newly formed Bullmoose Party ticket in 1912. Roosevelt’s decision effectively split the Republican Party. Taft was bitterly defeated for a second term as President by Woodrow Wilson in 1912. It destroyed the friendship of two great men and ended Taft’s thirteen years in the executive branch of government (Burton,1986). Upon leaving office, Taft became a professor of law at Yale University. While in retirement, he campaigned vigorously and contributed heavily to the election of 1920 on behalf of Republican Warren G. Harding. After Harding’s election, he questioned Taft as to whether Taft would accept a position on the United States Supreme Court. Taft answered that the only proper position for an ex-president would be that of Chief Justice. Interestingly, Harding has been recorded in history as the United States’ worst President (Blessing, 1983). On June 30, 1921, Harding nominated and the United States Senate confirmed that same day Taft as the tenth Chief Justice of the Supreme Court. Many have said that the worst President in United States’ history gave us one of our best Supreme Court Chief Justices. Taft remained Chief Justice until he resigned on February 3, 1930. He died on March 8, 1930 (Burton,1986). Taft’s Stated IdeologyImportant to understanding what led Taft to make public decisions as President and as Chief Justice is a review of what is known of his political ideology. Fortunately, Taft had many opportunities (which he exercised) while in public office and as a professor to state his opinions. One such occasion was during the time his later to be famous son, Senator Robert A. Taft, was attending Yale. As Roosevelt’s Secretary of War, Taft gave a series of speeches at Yale as a favor to his Alma Mater. At this point in his career, neither Taft, nor the rest of the United States knew that he was to become President of the United States and Chief Justice of the Supreme Court. These speeches resulted in Taft’s book Four Aspects of Civic Duty published in December of 1906. The speeches given on four consecutive nights discussed Taft’s views on four segments of civic responsibility. In the first speech Taft discussed what he felt were the responsibilities of a college graduate to his community; the second speech was as a judge on the bench discussing a citizen’s legal duty; the third speech discussed a colonial administration (foreign policy); and, the fourth speech spoke from the position of a national executive discussing a citizen’s responsibility to the nation) (Taft, 1906). Taft, now age 49, had served time in all four of these positions. Taft’s first speech outlined his believe that young people graduating from college that had wealth would be more useful to their community if they would devote their attention to politics and public matters, to assume official responsibilities, and, “to follow and preserve the public weal and to exercise the beneficent influence of disinterested patriotism and attention to public affairs” (1906:7-8). Taft argued the training a student received at universities in politics, economics, sociology and other scientific studies generally affected one’s view as to how the real world worked. These studies generally developed a cynicism and impatience with government, concluded that the government is run poorly and society had little understanding of the fundamental rules upon which all public affairs ought to be conducted (1906:9-10). Taft pointed out these ideas quickly changed when the graduate had to go into the real world and earn a living. Shortly the recent graduate would be buying where he could buy the cheapest and selling where he could sell at the highest prices. In short, the learned citizen would become motivated by purely business considerations (1906:10-11). This real life learning process introduced the graduate to a “laissez faire doctrine”. Taft would recite this economic doctrine for years to come both as President and as Chief Justice. Taft’s heritage in large part came from his unwavering position “that the least interference by legislation with the operation of natural laws in the end is the best for the public, that the only proper object of legislation was to free the pathway of commerce and opportunity from the affect of everything but competition and enlightened selfishness” (1906:10-11). The next night Taft spoke on the citizen’s responsibility to the law. Taft’s great concern was that the law be upheld. Only then would the citizen have the necessary confidence that the system was working for him. Taft stated “The great advantage of a jury trial in a popular government is that it gives the public confidence that in criminal cases which involves the liberty or life of a citizen and the public, he can be assured that there will intervene in the consideration of his cause twelve impartial and indifferent persons, selected by lot, as a tribunal to decide upon his guilt” (1906:41). Taft argued the jury system showed that the courts gave the citizen a part in the administration of justice (1906:42). It was important that the courts demonstrated to the public that they were impartial and righteous. He stated legislatures must enact laws that the public community would obey and which would be enforceable (Taft,1906:46). The constant violation or neglect of any law would lead to a demoralized view of all laws. The result would be that the “choice of laws to be enforced then becomes as uncertain as the guess of a political executive in respect to public opinion is likely to make it“(Taft,1906:48). In addressing criminal defendants, Taft stated very clearly what was to appear repeatedly in Taft’s opinions during his years on the Supreme Court. Taft supported law enforcement and stated that defendants should not be allowed to get out of convictions where the evidence was strong because of technical issues (1906:49). He stated that the “emotional and untrue doctrine that it is better that 99 guilty men should escape than one innocent man should be punished has done much to make the criminal trials a farce” (Taft,1906:50). Taft also acknowledged that the wealthy tried to evade and escape the laws of the country in their pursuit of wealth. He stated that such men do not see laws being made for the purposes of restraining them; they felt they were in a sense above the law. They had the wealth to employ able and acute counsel that could get them out of trouble with the law (Taft,1906:51). Taft advocated that the Supreme Court of the United States was the whole backbone of the government. It was the governmental body that determined whether congress had acted within its constitutional limitations; it determined whether the chief executive had exceeded his legal authority; and, it was the last resort and the final tribunal. Most importantly, its power and precedent rested upon the supremacy of the fundamental law which was its duty to declare and to preserve (Taft,1906:59). The two remaining speeches given by Taft contribute little to the discussion of this paper. However, the dialogue in these four speeches clearly demonstrates the moral, ethical and social obligations Taft felt were the responsibility of the citizen and more importantly, himself. Taft, at least at this point in his life was very clear as to his political ideology. The question for research in the future is how, when and where did these values originate? Could they be influenced to cause an ideological shift over the next twenty-four years? Did an ideological shift occur over the next twenty-four years or did Taft set the ideological course for American History? Taft’s Love for the Supreme Court Taft once declared, “I love judges and I love courts. They are my ideals on earth of what we shall meet afterward in Heaven under a just God.” It is said that Taft stated at the time he signed the commission for the appointment of Chief Justice Edward D. White “there is nothing I would have loved more than being Chief Justice of the United States. I cannot help seeing the irony in the fact that I who desired that office so much should now be signing the commission of another man.” On the last day of office as President of the United States, Taft is quoted as saying “above all other things … he was proudest of the fact that six of the nine members of the Supreme Court including the chief justice had been appointed by him. All I have said to them, Taft chuckled, “damn you, if any of you die I’ll disown you.” (McHargue, 1950: 478-479). One of the most unique aspects of Taft’s career and maybe a clue to how he viewed the responsibility of Supreme Court Justices is the fact as President he appointed a Chief Justice and five additional Justices. Nine years after leaving office as President, Taft would be appointed Chief Justice. History will prove Taft to be the only person in the history of the United States to experience these dual privileges and responsibilities. At the time Taft was inaugurated President in 1909, the following were the personnel of the Supreme Court: Chief Justice Melville W. Fuller (nominated by Cleveland in 1888), Associate Justices John M. Harlan (nominated by Hayes in 1877), David J. Brewer (nominated by Benjamin Harrison in 1889), Edward D. White (nominated by Cleveland in 1894), Rufus W. Peckham (nominated by Cleveland in 1895), Joseph McKenna (nominated by McKinley in 1897), Oliver Wendell Holmes (nominated by Theodore Roosevelt in 1902), William R. Day (nominated by Roosevelt in 1903), and William H. Moody (nominated by Roosevelt in 1906) (McHargue, 1950:480). Some two months after his inauguration, Taft wrote to Sixth Circuit Court of Appeals Judge Horace H. Lurten (Taft’s first appointment to the Supreme Court in 1909) expressing his views of the court by saying “the condition of the Supreme Court is pitiable, and yet those old fools hold on with a tenacity that is most discouraging … really, the Chief Justice … is almost senile; Harlan … does no work; Brewer … is so deaf that he cannot hear and has got beyond the point of the commonest accuracy in writing his opinions; Brewer and Harlan sleep almost through all arguments. I don’t know what can be done. It is most discouraging to the active men on the bench.” (McHargue, 1950:480). After such a discouraging evaluation, Taft would have the opportunity to appoint six justices over the next four years. What did he believe to be the necessary qualifications for the individuals to be appointed to the highest Court? Taft indicated that candidates for Justice of the Supreme Court should have demonstrated a close correlation to the political, social, and economic views of the appointer. While co-membership in a political party was a subsidiary consideration, Taft “wanted to strengthen the court by appointing men of statesman-like ability and judicial experience yet of sufficient youth to promise many years of service on the highest bench” (McHargue, 1950: 482). Did he appoint such individuals? Horace H. Lurten, Taft’s first appointment, had sat on the United States Sixth Circuit Court of Appeal as Circuit Judge with Taft. Lurten had served in the confederate army and had been a Justice of the Supreme Court of Tennessee for seven years. Lurten had served as a professor of law at Vanderbilt University from 1898 to 1910 and acted as dean of the law school for five years. Taft’s drawback was that at the time of appointment, Lurten was 65 years of age – older than the president thought a man should be at the time he ascended to the highest bench. Justice Brewer died on March 28, 1910, which brought about the appointment of Charles Evans Hughes, the governor of New York. Hughes had practiced law in New York City, taught at Cornell University and had gained popular attention as an attorney by his investigation of gas, coal and insurance businesses. He had been elected governor of New York in 1907. Taft felt that Hughes might one day be elevated to Chief Justice of the Supreme Court. That, in fact, occurred in 1930 upon the resignation of Taft as Chief Justice after Hughes had resigned from the Supreme Court to make an unsuccessful run for the presidency in 1916 against Wilson (McHargue, 1950:488). Hughes had no judicial experience and was the only Taft nominee appointed to the high court that had never sat as a judge. Chief Justice Fuller had died on July 4, 1910. On December 12, 1910, President Taft – a Republican, a northerner and a Unitarian – nominated Justice Edward B. White – a Democrat, a southerner, a confederate veteran, a Catholic – to become Chief Justice. Chief Justice White was the recommendation of the remaining Justices of the Supreme Court. White had been a member of the Louisiana Senate, a Judge of the Supreme Court of Louisiana for a short time and, a United States Senator from Louisiana from 1891 to 1894 when President Cleveland appointed him an associate justice. Taft felt that he would receive tremendous criticism for his appointment of White simply because he was a prominent Democrat, a Catholic and at one time was a soldier in the confederate army. However, Taft stated, “I feel that I must appoint him because I believe him to be the best qualified man in the country for that most important office.” (McHargue, 1950:494). Chief Justice White was the first Associate Justice elevated to the position of Chief Justice and the first Chief Justice that was not of the same political party as the president. On December 12, 1910, President Taft named Willis VanDevanter to take Justice Moody’s place. Justice Moody had resigned on November 10, 1910. VanDevanter had been a city attorney, chief justice of the Supreme Court of Wyoming; Assistant Attorney General of the United States assigned to the Department of the Interior; and, had been a United States Circuit Judge for the Eighth Circuit since 1903. Taft was told that VanDevanter had been deep in the Republican political machine early on in his career. He had been chairman of the Wyoming Republican state committee from 1892 to 1894 (McHargue, 1950:498). Taft made his fourth appointment in 1910, Joseph R. Lamar. Lamar was an attorney from Augusta, Georgia. He had written extensively on jurisprudence in Georgia, served two years on the Supreme Court of Georgia and then began private practice in Augusta in 1906. Lamar was a popular Democrat and had represented major corporations including the railroads. His nomination was confirmed by a unanimous vote (McHargue, 1950:503). Taft’s last opportunity to name a justice came upon the death of Justice Harlan on October 14, 1911. On February 19, 1912, Taft nominated Mahlon Pitney of New Jersey. Pitney had served two terms in congress, was temporary chairman of the Republican state convention of New Jersey in 1895, a member of the New Jersey senate, a judge of the Supreme Court of New Jersey from 1901 to 1908, and had been chancellor of New Jersey since 1908 (McHargue, 1950: 506). How has history viewed Taft’s appointments? From roughly 1890 to 1937, conservative justices that opposed large-scale government regulation of business and economic practices usually dominated the Supreme Court. All of Taft’s appointments other than Hughes turned out to be conservative, including the two Democrats he had appointed. These appointments generally voted with Taft during his term as Chief Justice of the Supreme Court. During this same period, several liberal justices, other than Hughes, were appointed. Teddy Roosevelt appointed Oliver Wendell Holmes. Woodrow Wilson appointed Louis D. Brandis and John H. Clark (Galloway, 1985:2). These three Justices made up the remainder of the Court when Taft was appointed Chief Justice. Taft’s Court Years: 1921-1930Along with the appointment of Taft as Chief Justice, Harding filled two other seats on the Supreme Court. The two appointments were George Sutherland, who had been Harding’s campaign manager, and railroad attorney, Pierce Butler. Historically, 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 revolution of FDR in the mid-1930s (Galloway, 1985:3). The Taft court’s conservatism was timed very well for the United States. World War I had just ended putting the country in a very conservative mood. 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 twenties” would change the mood of the country. Taft’s arrival to the Supreme Court began a change in the balance of power that had been in place for several years. Taft, although conservative, was considered a moderate conservative. That would change by the end of the late 20s. At the time of Taft’s arrival, the liberal wing was made up of Brandis, Holmes and Clark. McReynolds and VanDevanter, who were the first of what would become known as the conservative “four horsemen” was considered to be the conservative right wing. The court would move towards a stronger right wing conservative block in the later-20s while the Court became more polar with the every increasing number of dissenting opinions by Holmes and Brandis. Harland Stone would join the liberal block in 1925 (Galloway, 1985:5). In 1922, John H. Clark, who was a liberal Wilson appointee, resigned. George Sutherland was appointed in his place. Sutherland was 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 caused a sharp swing to the right in the court’s balance of power. The liberal wing was now reduced to Holmes and Brandis, who usually voted 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 Roosevelt’s New Deal legislation. His philosophy was that of “laissez faire” which was the underlying belief of Taft. 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 sixth vote to the conservative wing. By the end of 1922, Taft had realized his long cherished ambition to preside over a court that could be counted on to quell any “socialistic raids on property rights” (Galloway, 1985:10). It did not take long for the Taft Court to begin handing down opinions that to this day have a continuing impact upon many areas of law. The first such opinion was United States v. Lanza, 260 US 377 (1922). The Court held squarely for the first time that the double jeopardy clause did not prohibit consecutive trials for the same offense in state and federal courts. In Lanza, Taft wrote that, “no double jeopardy existed since there are two sovereignties deriving powers from different sources, capable of dealing with the same subject matter within the same territory and, thus, an individual could be prosecuted by either or both such jurisdictions” (Steamer, 1986:200). This became a basic principle of law that is still followed today. By the time the October 1922 term of the Supreme Court had ended, the dissent rates of the court had fallen 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). Historically, it has been extremely hard to determine what influenced the court to vote in 1922. The disagreement rates between Taft and Brandis was 1.4% and between Taft and Holmes 2.2%. The highest disagreement rate in the 1922 term was between Sutherland and Sanford at 5.8%. These were the two rookie members of the conservative wing. The case that was given the credit for the start of the court’s second age of “laissez faire” was Adkins v. Children’s Hospital, 261 US 525 (1923). Adkins addressed 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. The reason for mentioning this case is interestingly, Taft joined Holmes and Sanford in dissenting on the court’s ruling. This is the opposite as to what would be expected from Taft who voted with the liberal side of the Court. The vote was 5-3. Brandis did not participate. The 1923 Court term saw the conservative wing controlling with Brandis and Holmes occasionally dissenting on behalf of the liberal wing. Brandis was the only Democrat liberal appointment on the court. Dissenting opinions were at a minimum with only one dissent in every five opinions being rendered. 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. Brandis, who dissented more than Taft, Sutherland, Butler and Sanford combined, posted the highest dissent rate at 4.2%. The phrase “Holmes and Brandis dissenting” was not coined in the October 1923 Court term. They dissented in the same opinion a total of six times in the term’s 213 cases. Most of the time, they joined the conservative majority, especially in the 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 McKenna, who had been appointed in 1897 by McKinley, retired at the insistence of Taft in November 1924. Taft bluntly told the senior justice it was time for him to retire in that Taft could only assign him simple cases. McKenna’s retirement became effective January 15, 1925 (Galloway, 1985:16). This allowed President Coolidge to appoint Harland Fisk Stone. Stone, who would become another outstanding Supreme Court Justice, 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, his voting aligned the 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 Brandis, Holmes and Stone, and the conservatives being McReynolds, Butler, Sutherland, Van Devanter, Sanford and Taft. There was no middle/center ground upon the Supreme Court. Several important cases were decided during the 1924 Court term. The most important was Gitlow v. New York, 268 US 652 (1925), a 7-2 decision (Brandis and Holmes dissented). Gitlow is historically significant for two reasons. Most important, Gitlow is cited as being the first “incorporation” case. Through the Fourteenth Amendment, the states were now required to apply the constitutional amendments to their laws. Second, Gitlow concerned the First Amendment’s guarantee of freedom of expression. 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 famous example of shouting “fire” in a theater to cause panic when there was no fire was now against the law in all the states under a First and Fourteenth Amendment decision of the U. S. Supreme Court. Within the next fifteen years, all of the First Amendment guarantees would be incorporated through the Fourteenth Amendment as protections against state abridgement. By 1970, all of the major components of the Bill of Rights would be applicable to the States through the due process of the Fourteenth Amendment (Steamer, 1986:198). Prohibition, a result of the Eighteenth Amendment, was to be motivation for important cases brought before the Taft Court. Taft was against the amendment becoming part of fundamental law when it was enacted in 1918. Regardless, Taft made it very clear in speaking to the Yale commencement in June 1923 that prohibition was now the law and as such it must be enforced (Ragan, 1938:90). This view echoed Taft’s speech of 1906 discussed above. The first Supreme Court case to deal with the issue of prohibition was the case of Cunard Steamship Company v. United States, 262 US 100 (1922). Cunard was a 7-2 decision where the court declared that ships in American ports must have their liquor stores locked up while in port. The first real Supreme Court test of the Fourth Amendment’s search and seizure doctrine came about because of prohibition. Prohibition, along with the ratification of a Constitutional Amendment, caused legislation to be enacted that gave an unprecedented increase in power to federal criminal law enforcement agents. Increased arrests lead to a corresponding increase in important search and seizure issues that were heard for the first time in the Taft Courts (Curry, 1986:12). The first important search and seizure case concerned the “Open Fields Doctrine” decided in Hester v. United States, 265 US 57 (1924). Hester objected to evidence being introduced at trial where revenue agents had entered upon private land without permission to seize the evidence. Justice Holmes disposed of the Fourth Amendment objection in one sentence stating: “The special protection accorded by the Fourth Amendment to people in their persons, houses, papers and effects is not extended to open fields.” The “Open Fields Doctrine” remains good case law today and was reaffirmed in Oliver v. United States, 466 US 170 (1984)(Curry, 1986:12). The most important criminal case of the 1924 Court 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 Brandis and Holmes joined Taft’s majority opinion). This case concerned an agents’ ability to stop a car suspected of transporting bootleg liquor, search it and seize evidence without a warrant. This case would become the landmark decision known for the “Carroll Doctrine”. The legal concept that came out of this case was that because of mobile nature of a car, “exigent circumstances” justified a warrantless search. This warrentless search produced an automobile exception to the Fourth Amendment requirement of a warrant that opened the gates to a number of other “exigent circumstances” exceptions to obtaining a search warrant. Taft in his written majority opinion demonstrated his support of strict law enforcement when he wrote; “that when the public’s interest outweighed the interests and rights of the individual, the public’s rights under the Fourth and Eighteenth Amendment would prevail.” Carroll, supra. Out of the 231 cases cited during the 1924 term, Gitlow, Hester, Carroll and a fourth case, Pierce v. Society of Sisters, 268 US 510 (1925) (9-0 decision), were the only noteworthy cases. Taft, however, using his extensive political skills had been extremely busy over the past several years lobbying for judicial reform. The necessary legislation was enacted in 1925 as the Judges Act of 1925. This revolutionary statute did away with the “Writ of Errors” and restricted the cases in which appeals as a matter of right were allowed before the U. S. Supreme Court. The Court gained considerable power over what cases they felt important enough to merit the Court’s attention. It drastically cut the number of cases that came before the Court. A case now was required to come through a “Writ of Certiorari” which required four of the nine justices to vote in favor of a case being allowed before the Court (Galloway, 1985:21). In the October 1925 Court 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, Brandis 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 lasting significance decided during the 1925 Court term (Galloway, 1985:23). The 1926 Court 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, Brandis 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 – Brandis, Holmes and Stone – cast 34. 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 wing was clearly Brandis, Holmes and Stone; the right wing consisted of Sutherland, McReynolds, Sanford, Butler, Van Devanter and Taft. This was commonly referred to as the 6-3 alignment in the 1925 – 1930 period of Supreme Court history. This voting alignment reflected the real balance of power on the later Taft court. Brandis, Holmes and Stone were responsible for 47 of the 72 dissents on that term’s calendar; while Taft and VanDevanter did not dissent for any of the cases heard. This Court term firmly established the well-known phrase “Holmes and Brandis dissenting”. Holmes and Brandis 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 during the 1927 Court term was Olmstead v. United States, 277 US 438 (1928). This was a 5-4 decision written by Taft for the majority where Holmes, Brandis, Stone and Butler dissented. Olmstead was overruled 40 years later by the Warren Court in Katz v. United States, 389 US 347 (1967). Olmstead concern the electronic interception of oral communications (wiretaps). Taft again sided with law enforcement and held that the Fourth Amendment search and seizure issue raised was not a violation of constitutionally protected rights because there was not a search or a seizure. Therefore, the Fifth Amendment right against self-incrimination did not apply. Taft wrote, “in the absence of any controlling legislation by congress, those who realize the difficulty of bringing offenders to justice may well deem it wise that the exclusion of evidence should be confined to cases where rights under the constitution would be violated by admitting it”. (Galloway, 1985:30). The Court term 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. Holmes and Brandis disagreed with each other in only 3 of the 129 cases heard that term. The four horsemen did not dissent even once as a block. The Judges Act of 1925 was having an effect on the number of cases the Court heard. The peak number of cases heard by the Taft court was the October 1924 Court term when 231 cases were heard. What is noticeable is the court’s expectation in an increase in the number of important cases did not develop, at least by this year (Galloway, 1985:33). The October 1929 Court 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 appointed 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 Court term. The conservatives as previously discussed dominated this stretch of cases. During that period of time, Holmes and Brandis dissented together in 5 cases that involved the government’s effort to regulate the economy. Taft, Sanford and McReynolds did not 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 when discussing the decision-making process of his Courts. The first period was October 1921 Court Term through the October 1924 Court term. During this period the Court underwent a series of personnel changes. It was hard to determine what the voting blocks were in that Taft discouraged dissents and promoted a harmonious relationship on the Court. The second period included the October 1925 Court term through the October 1929 Court term. During this period a vivid liberal wing of Holmes, Brandis and Stone and a very conservative block known as the “four horsemen” of McReynolds, Sutherland, VanDevanter and Butler was readily identifiable. 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 (Galloway, 1985:37). Research Concerning Taft There are several historical writings that chronologically discuss the career of this influential and powerful individual. There is very little sociological investigation as to how Taft came to make the very important decisions he made. Harold J. Spaeth of Michigan State University has conducted the primary work in the evaluation of Supreme Court Justices’ case decisions and how they arrive at them. However, he has not included Taft’s Court in his research except for one study discussed in his book Studies in U. S. Supreme Court Behavior (Spaeth, 1990). This one study discussed Taft’s 95% ratio of assigning majority opinions among the Court. This is the highest rating of any Chief Justice and is shared with his successor, Chief Justice Hughes. Spaeth concludes this particular study and its results as an administrative style of the Chief Justice as opposed to a decision-making criterion. Spaeth’s recent research in decision-making factors of Supreme Court Justices included a study to determine if justices’ political ideology changes over time (1998). This type of study would be very beneficial in examining Taft’s career because of the unique characteristics of his having served two judgeships in the Appellate Courts sandwiched by a term as U.S. President. This paper does not have the ability of statistically applying Spaeth’s methods, but does set up such a study for the future. Historically, researchers have not looked at court decisions longitudinally to explain influences on the decision-making process of justices. They have routinely concluded most Justices vote consistently over the course of their career (e.g., Baum 1988, Schubert 1974). Spaeth’s questions whether that has actually been historically correct or whether researchers have always assumed this proposition based upon the belief that Justices would vote consistent with the party platform that put him on the Court’s bench. This type of study is important in that it may lead to a better understanding of history’s impact upon Court decisions. Spaeth’s 1998 study wanted to evaluate this potential explanation. To do this he used the career decisions of sixteen Justices who had served over tens years on the bench between the years of 1937-1993 (1998:802). To understand his findings a review of theoretical approaches to explain how decisions are reached would be beneficial. There are two types of preference based theories that dominate research in this area: 1) the social-psychological (attitudinal model), and, 2) the economic (rational choice model). The following will discuss briefly how each treats the theoretical and empirical aspects of the stability assumption of consistent voting over time. Research using the attitudinal model argues that the political actor (in our case, Supreme Court Justices) possess ideological attitudes that guide their decision-making. These interrelated beliefs describe, evaluate and advocate the actions that the political actor will demonstrate (Rohde and Spaeth 1976,75,76). Specifically as to Supreme Court Justices this model holds that justices are goal-oriented actors who want case outcomes to reflect as closely as possible their particular policy preferences. They will vote their policy preference; therefore their vote can be consistently predicted (Segal and Spaeth, 1993). Spaeth argued previous research empirically testing voting patterns by justices under this model has assumed that attitudes remain constant over time. This is primarily so because party affiliation at the time of appointment has been seen as the Justice’s preference once appointed to the non-partisan position of Justice (Spaeth, 1998:803). Spaeth argued this approach has worked well because the attitudinal model has met its required ability to accurately predict the way Justices will vote (Spaeth, 1998:803). The rational choice model is a recently developed theory. It starts with the same basic assumption that Justices are goal-directed, single-minded seekers of legal policy. The additional factors evaluated in this model hypotheses that the Justices operate in a limited strategically interdependent decision making context: The Justices realize that their fates depend on the preferences of other political actors such as congress, the president and their colleagues and the choices they expect these other actors to make, not just their own actions (Epstein and Knight, 1998; Eskridge 1991a,1991b). Spaeth argued this model is gaining ground because their assumptions seem reasonable and because it provides more powerful tools for explaining the complexities of judicial decision-making (Spaeth, 1998:804). However, this model has followed the attitudinal model in its assumption that the Justices remain constant over time in their preferences. Spaeth argued there is clear evidence that Justices’ preferences do change over time. Spaeth uses Blackmun, Black and Douglas as examples of Justices who have changed over the period they were on the bench. Several theories have been placed forward for these changes: 1) because the Supreme Court is a small group, members should conform to the will of the majority, 2) changes in the case mix of decisions decided by the Court would result in overall support for a particular type case, 3) being on the Court is a learning process, the longer one is on the Court, the more likely there will be a change, and 4) Justices will have knowledge of National trends and their behavior may be affected by those environmental factors (Ulmer, 1973:150). Spaeth’s findings in this particular study found that some Justice’s voting pattern did not change over time while others changed in linear directions and still others in nonlinear directions (Spaeth,1998:813). What is germane to my study of Taft is Spaeth’s observation that the political behavior of individuals can be characterized as contingent upon their external environment (Huckfelt and Sprague,1993). If this is so, Spaeth argued, then the preferences of the Justices are susceptible to change by the acts of other political actors such as congress and the president (Spaeth, 1998:816). Additionally, if Justices respond to their external environment, its support for such things as individual’s rights will necessarily vary over time (see Stimson, McKuen, and Erikson 1995)(Spaeth, 1998:816). Another decision-making process that a review of Taft’s Courts decisions may contribute is in use of “Stare Decisis” for Court opinions. Benjamin Cardozo began a long-standing myth that “adherence to precedent must then be the rule rather than the exception if litigants are to have faith in the even-handed administration of justice” (1921:34). Segal and Spaeth have contributed to this argument finding that while lower courts are forcefully urged to follow higher court’s opinions, “Stare Decisis” is not a factor in the decision-making process of the Supreme Court (Segal and Spaeth,1996:971,1993). Segal and Spaeth argue that stare decisis is used to legitimize the Court’s subsequent decisions and that when used, it can not be told whether the use of a particular case was precedent or preference (Segal and Spaeth,1996:975) This researcher agrees. It is believed a review of earlier Supreme Court cases can help demonstrate stare decisis to be myth at the Supreme Court’s level of decision-making. Many cases, especially early in the Supreme Court’s history are cases of “first impression”. These cases come before the Court for the first time to have either a constitutional or statutory issue resolved. It is hypothesized that preferential factors, not stare decisis, control when these cases are decided. Court Cases ReviewedIncorporating the material presented above, it should be fairly obvious as to how the Taft Courts would decide criminal law cases. The research would lead to a hypothesis that Taft led a conservative Court. A conservative decision is defined as the Court basing their decision on fundamental law, either constitutional or statutory. The court would render a strict interpretation of the constitution or statute under review. Generally, these cases are affirmed cases. A conservative Court is defined as a court making more conservative than liberal decisions. Of interest is whether a change over time would occur because of the growth of the tenured conservative block on the Court through the years. Beginning in 1925, the Court became more stable and noticeably divided – it was the “four horseman” against the very persuasive liberal wing of Holmes, Brandis and Stone. At the same time, many changes were occurring in the United States. Would the aftermath of World War I and its resulting economic impact and the roaring 20’s with its increased criminal behavior as a result of Prohibition demonstrate an impact on the Court? To answer these questions, a review of all criminal cases during the Taft years were reviewed. There were a total of seventy-eight cases. Using Spaeth’s model of longitudinal study, it would be hypothesized that a change would be expected with the Taft Court becoming more conservative simply because of the stability of the conservative voting block. Data collected will be used to evaluate what legal issue the Court was deciding. It is believed that how the legal issue was presented to the Court for resolution will help explain what factors were considered as to the decision-making process. Although this study is not designed to answer that question specifically, future studies may be impacted. The one critical criterion that can be explored is the use of stare decisis. To evaluate this factor, the cases were classified into one of three categories: 1) constitutional law – a constitutional question was presented to the Court and the Court answered it upon constitutional grounds, 2) Statutory law – the Court was asked to determine the validity or constitutionality of a Federal or State statute or 3) Case law – an issue was presented to the Court to interpret its own law or the law of lower courts. For future studies, data was collected as to the total number of cases that followed a particular Taft Court opinion both by future Supreme Court decisions and at the lower court levels. This will allow research in the future to evaluate the impact of these cases in correlation with stare decisis. The last area of data this researcher wanted to examine was for the purpose of determining the role Taft played in the decisions and control of the Court in the limited area of criminal law. To evaluate these issues data was collected to determine the vote of the Court, who wrote the opinion, whether the case was affirmed or overturned and the impact upon the Defendant(s) constitutional rights. Discussion of findingsBeginning with the 1925 Court term, the Court took a dramatic turn in the types of cases they decided. This is believed to be a result of two phenomenon occurring at that time; 1) the Judges Act of 1925 – allowing the Court to control the cases they would hear through the use of the “Writ of Certiorari”, and, 2) the increase of cases as a result of Prohibition. Before the Judges Act of 1925, thirty-three percent of the cases were either of a constitutional or statutory issue. After 1925, the shift in the Court’s power to determine what cases it would hear resulted in seventy-four percent of the cases being either a constitutional or statutory law question to be decided. Chart 1 reflects the total distribution.
Chart 1:
During this same time period the Court would grow more conservative. In the first half of the Taft years, fifty percent of the cases decided were conservative. After 1925, the Court’s shift resulted in sixty-seven percent of the cases decided being conservative. This increase was to be expected in that the Court became more stable with a strong conservative block known as the “four horseman”. Taft would usually vote with the conservative block ensuring continuing support for law enforcement. The Court affirmed forty-seven out of the seventy-eight criminal law cases reviewed. Fifteen of the twenty-two cases that resulted in decisions favoring the defendant were cases that were reversed by the Court. One of the interesting observations concerning the decisions of the Taft Court in the area of criminal law is that the Court voted unanimously in eighty-nine percent of the cases decided. Chart 2 shows the trend as to the type of cases heard by the Court and the growth of conservative decisions.
Chart 2:
Examining Taft’s role in the Court’s criminal law decisions supports what other studies suggested. Taft wrote twenty-three of the seventy-eight (29%) criminal law opinions handed down during his years on the Court. Taft’s opinions tended to be the more important decisions rendered during his service to the Court. Eighty-two percent of his opinions concerned constitutional or statutory law questions. Sixty-five percent of the opinions Taft wrote were affirmed opinions. Twenty of the twenty-three opinions were unanimous decisions. Only five of the opinions written by Taft favored the Defendant. Chart 3 reflects the distribution of the type of cases where Taft wrote the opinion.
Chart 3
One last observation of value the collected data suggests. The opinions written by the Taft Court have been cited numerous times over the years. Although several cases had portions of the case reversed, there has only been one case to be overturned. Outside the cases of Carroll, supra, and Olmstead, supra, the average cites of each criminal law case decided in Taft’s years are 218. The United States Supreme Court has cited a Taft Court opinion on the average of fifteen times per the seventy-eight cases decided. These opinions have been cited as controlling law on twenty-two occasions. Olmstead, supra, has been cited 118 times by the Supreme Court and 1358 times by courts throughout the United States. Carroll, supra, has been cited by the Supreme Court 110 times and 5462 times by courts throughout the United States. Although stare decisis may not be a criterion of the decision-making process, clearly the Taft Court had an impact in justifying opinions that were to follow. ConclusionTaft loved his job as Chief Justice. He was the leader of a conservative Court that was faced with several criminal constitutional law issues that continue to impact the American Courts. The application of the fourteenth amendment to the states (incorporation doctrine) began with the case of Gitlow v. New York, 268 US 652 (1925). The ability for the federal and state courts to punish for the same criminal activity was a result of United States v. Lanza, 260 US 377 (1922). Search and Seizure law and its resulting doctrine of “due process” began with Hester v. United States, 265 US 57 (1924). The “open fields” doctrine associated with Hester is still good law today. The “Carroll doctrine” that allows the search of an automobile under exigent circumstances originated with Carroll v. United States, 267 US 132 (1925). This case is still the existing law today and has been cited over 5,460 times in subsequent opinions. Although it is only suggested by the data collected, it is strongly hypothesized that Segal and Spaeth’s research as to the longitudinal effect of Court decisions changing over time would be find support during the Taft years. However, determining whether it was Taft that changed to become more conservative or whether the Court changed as a result of Taft’s influence merits further study. Second, the data would suggest that stare decisis did not have a significant impact upon the decisions made during Taft’s years on the Court, at least in the area of criminal law. What did impact the decision making process in this area of law is left for future studies. One concern that other research has suggested is that criminal law over time shifts between law enforcement’s and defendant’s interests. The Taft Court would definitely be a period that strongly supported law enforcement. Further studies could examine the shift, if any, by subsequent Courts. Finally, this paper has shed little light on the most interesting question posed by the Career of William Howard Taft. Who had the greater influence; Taft upon the society in which he lived and worked; or, society upon Taft to the extent it impacted how Taft made the very important decisions he made during one of the most interesting careers in American history?
Bibliography Anderson, Judith I. 1981. William Howard Taft: An Intimate History. New York: W.W. Norton & Co. Baum, Lawrence. 1988. “Measuring Policy Change in the U.S. Supreme Court.” American Political Science Review 82: 905-912. Blessing, Tim H., and Robert K. Murray. 1983. “The Presidential Performance Study: A Progress Report.” Journal of American History 70: 535-555. Burton, David H. 1986. William Howard Taft: In the Public Service. Malabar, Florida: Robert E. Krieger Publishing Co. Cardozo, Benjamin N. 1921. The Nature of the Judicial Process. New Haven: Yale University Press. Currie, David P. 1986. “The Constitution in the Supreme Court: 1921-1930.” Duke Law Journal 1986 Duke L.J. 65. Epstein, Lee, Valerie Hoekstra, Jeffrey A. Segal, and Harold J. Spaeth. 1998. “Do Political Preferences Change? A Longitudinal Study of U.S. Supreme Court Justices.” The Journal of Politics 60: 801-818. Epstein, Lee, and Jack Knight. 1998. The Choices Justices Make. Washington, D.C.: CQ Press. Eskridge, Jr., William N. 1991a. “Overriding Supreme Court Statutory Interpretation Decisions.” Yale Law Journal 101: 331-417. Eskridge, Jr., William N. 1991b. “Reneging on History? Playing the Court/Congress/President Civil Rights Game.” California Law Review 79: 613-684. Galloway, Jr., Russell W. 1985. “The Taft Court (1921-1929).” Santa Clara Law Review 25: 1-51. McHargue, Daniel S. 1950. “President Taft's Appointments to the Supreme Court.” The Journal of Politics 12: 478-510. Ragan, Allen E. 1938. Ohio Historical Collections, Volume VIII: Chief Justice Taft. Columbus, Ohio: Ohio State Archeological and Historical Society. Rhode, David W., and Harold J. Spaeth. 1976. Supreme Court Decision Making. San Francisco: Freeman. Schubert, Glendon. 1974. The Judicial Mind Revisited. New York: Oxford University Press. Segal, Jeffrey A., and Harold J. Spaeth. 1996. “The Influence of Stare Decisis on the Votes of the United States Supreme Court Justices.” American Journal of Political Science 40: 971-1003. Segal, Jeffrey A., and Harold J. Speath. 1993. The Supreme Court and the Attitudinal Model. New York: Cambridge University Press. Slotnick, Elliot E. 1979. “Who Speaks for the Court? Majority Opinion Assignment from Taft to Burger.” American Journal of Political Science 23: 60-77. Steamer, Robert J. 1986. Chief Justice: Leadership and the Supreme Court. Columbia, South Carolina: University of South Carolina Press. Taft, William H. 1906. Four Aspects of Civic Duty. New York: Charles Scribner's Sons. Ulmer, Sidney S. 1973. “The longitudinal Behavior of Hugo Lafayette Black: Parabolic Support for Civil Liberties, 1937-1971.” Florida State University Law Review 1: 131-153. United States Supreme Court Cases Cited:Adkins v. Children’s
Hospital, 261 US 525 (1923)
Other suggested Readings: Huckfeldt, Robert, and John Sprague. 1993. “Citizens, Context, and Politics.” in In Political Science: The State of the Discipline II, edited by Ada Finifter. Washington D.C.: American Political Science Association. Mason, Alpheus Thomas. 1964. William Howard Taft: Chief Justice. New York, New York: Simon and Schuster. Murray, Robert K., and Tim H. Blessing. 1983. “The Presidential Performance Study: A Progress Report.” The journal of American History 70: 535-555. Starr, Kenneth W. 1991. “William H. Taft: The Chief Justice as Judicial Architect.” University of Cincinnati Law Review 60 U. Cin. L. Rev. 963. Stimson, James A., Michael B. MacKuen, and Robert S. Erikson. 1995. “Dynamic Representation.” American Political Science Review 89: 543-565. Taft, William H. 1908. “Inequalities in the Administration of Justice.” 20 green Bag 441. Taft, William H. 1909. “Inaugural Address”. Taft, William Howard. 1915. Ethics In Service. Port Washington, New York: Kennikat Press. Taft, William Howard. 1916. Our Chief Magistrate and His Power. New York, New York: Columbia University Press. Umbreit, Kenneth Bernard. 1991. Our Eleven Chief Justices. Holmes Beach, Florida: William W. Gaunt & Sons, Inc. |
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