The Chief Justiceship of William Howard Taft, 1921–1930 by Jonathan Lurie (review)

It is easy to remember the legal groundbreakers who served as chief justice of the United States Supreme Court, such as John Marshall and Earl Warren. More difficult is considering chief justices who made substantial, if not Newtonian-like, contributions to U.S. legal history. In 1970 constitutional scholars and legal historians ranked William Howard Taft, holder of the office from 1921 through 1930, as “near great,” according to Henry J. Abraham (Justices, Presidents, and Senators: A History of the U.S. Supreme Court Appointments from Washington to Bush II [Lanham, Md., 2008], p. 374). Even so, scholars still tend to see Taft more as the reluctant United States president, not as the surprisingly crafty chief justice. This new book by Jonathan Lurie demonstrates why Taft deserves his judicial reputation, and it strikes an admirable balance between an individual assessment and an explanation of historical context.

The two major strengths of The Chief Justiceship of William Howard Taft, 1921–1930 lie in its persuasive demonstration of both Taft’s political shrewdness and his collegial stewardship of his eight fellow justices. Taft not only lobbied his fellow Ohioan and recently elected president Warren G. Harding to appoint him chief justice in 1921, but Taft also influenced Harding’s subsequent Supreme Court appointments, particularly that of Taft’s old friend (and the more legally influential justice) George A. Sutherland. In addition, Lurie shows how Taft crafted a successful strategy for the passage of the Judiciary Act of 1925, or Judges’ Bill, which granted the nation’s highest court its right to determine cases by writ of certiorari. While the bill presented no controversy, Taft carefully relied on a coalition of justices to testify before Congress how the new method could preserve principles of efficiency and equity. Moreover, despite his increasing ill health after the mid-1920s, Taft still played a considerable part in garnering federal appropriations for the current Supreme Court building. Lurie also demonstrates how Taft preserved substantial majorities for Supreme Court decisions through a mixture of outward affability and well-placed pressures. The chief justice tolerated Oliver Wendell Holmes Jr.’s penchant for dissent, in return for his colleague’s eagerness to write majority opinions, and Louis Brandeis’s legally scrupulous, if sometimes lengthily written, objections. Taft’s successful relationship with Brandeis becomes more remarkable when one considers Taft’s vociferous opposition to Brandeis’s confirmation in 1916. Taft even maintained civility with the notoriously disagreeable and inept James C. McReynolds. As Lurie shows, Taft’s great administrative successes as chief justice lay partially in his pleasure in serving as a federal judge and partially in a diverse career of legal administrative expertise, including service as the solicitor general of the United States and on a federal appellate court.

Despite the overall positive assessment of Taft’s chief justiceship, Lurie also shows how Taft adopted a King Lear–like persona in his later years on the Court, as he sensed future difficulties with his beloved conservative legal classicism. Taft privately denounced Holmes, Brandeis, and new colleague Harlan Fiske Stone in 1929 as “‘Bolsheviki,’” a sad reminder of how personal difficulties can trump professional considerations (p. 208).

This reviewer must note two caveats. Epigrammatic Holmes certainly was, but the constant use of the word becomes a bit wearying. Additionally, while the explanations of the Taft Court’s jurisprudential breakthroughs are enlightening, one sometimes feels lost in the sea of details. Still, The Chief Justiceship of William Howard Taft is an exemplary effort that demonstrates how Taft made his mark as an excellent, if not great, chief justice of the United States.