CHAPTER SEVEN
The Triumphant Mr. Taft
THE LONG DECADES of conservative domination of government were interrupted not by an electoral upset but by a sudden and shocking death—the assassination of William McKinley in September 1901—that propelled Theodore Roosevelt into the White House. With his bravado, bellicosity, and impatient, reformist energy, TR was a dramatic departure from the long line of Republican medioc rities in the presidency, an instinctive antagonist to the party’s Old Guard, who would never have put such a man into the office. But of course they had nominated him only for the vice presidency. Running for reelection in 1900, McKinley had picked Roosevelt as a sop to the small but growing progressive wing of the GOP. Six months into his second term, McKinley was killed by an anarchist’s bullet, and TR burst onto the stage determined to make the presidency the center of action “in a strong and efficient National Government” and to drag the Republican party into the modern age. He declared war on the monopolistic trusts that dominated the industrial landscape and offered a “Square Deal” to Americans, a promise that their government would serve not the “malefactors of great wealth” but the average citizen. At a time of intensifying clashes between the forces of progress and the armies of reaction, TR, personally and politically, embodied reform.
As what he called “chief lawmakers” in “the final seat of authority,” the justices of the Supreme Court had the duty, in Roosevelt’s view, to serve as allies in that cause of reform, to act as “great constructive statesmen” in bringing the law into harmony with the progressive political and economic forces of the day. Instead, the Fuller Court was reaction’s citadel—the stronghold, TR wrote in his Autobiography, of “negative action against the interests of the people, ingeniously devised to limit their power against wrong, instead of affirmative action giving to the people power to right wrong.” Roosevelt knew he could not change the court by force of will. He would have to wait the turning of the roulette wheel until he could put on it men of his own mind.
His first opportunity came in 1902, when Justice Gray retired, and he nominated Oliver Wendell Holmes, Jr. If Roosevelt was a professional politician and impassioned reformer, Holmes was nearly his opposite. He was nominally a Republican but lacked any interest in party politicking. He was an accomplished lawyer and judge—chief justice of the Massachusetts Supreme Judicial Court—but also a scholar, the author of The Common Law, a pioneering study of the formation of law. Even more, Holmes was a kind of Enlightenment philosopher, son of an eminent man of letters, acquainted with such literati as Emerson and Longfellow, one of the few Americans who could converse on easy terms in London with both John Stuart Mill and Prime Minister William Gladstone.
Though Holmes lacked the party standing and political connections usually needed to reach the high bench, Roosevelt admired his Civil War sacrifices—he had been wounded three times in the desperate early battles of the war. Moreover, the Bostonian was, in TR’s eyes, “one of us”—a fellow Harvard man and member of the university’s elite Porcellian Club. It helped that Roosevelt’s close adviser was Senator Henry Cabot Lodge of Massachusetts, another Porcellian and a friend of Holmes.
But perhaps most appealing to the president was Holmes’s icon oclasm, his rejection of judicial shibboleths and dogmas. “The life of the law has not been logic,” he wrote in The Common Law; “it has been experience,” responses to “the felt necessities of the time.” Though Holmes’s modernizing pragmatism cloaked a temper that, so unlike TR’s, was essentially conservative, even pessimistic—he was emphatically not a “goo-goo” reformer—Holmes promised a strong challenge to the outdated theories and prejudices that dominated the Fuller Court.
Roosevelt believed that Holmes met his elevated standard for Supreme Court appointments. “In the ordinary and low sense which we attach to the words ‘partisan’ and ‘politician,’ ” TR wrote Lodge, a Supreme Court justice should be neither. “But in the higher sense, in the proper sense, he is not in my judgment fitted for the position unless he is a party man, a constructive statesman.” The Supreme Court of the 1860s, TR added, “was good exactly in so far as its members fitly represented the spirit of Lincoln.” “I should hold myself as guilty of an irreparable wrong to the nation,” he concluded grandly, if he appointed “any man who was not absolutely sane and sound on the great national policies for which we stand in public life.”
Yet Roosevelt’s next appointment would seem to fall well short of such lofty standards. William Day was in the familiar grain of Republican justices, a railroad lawyer and McKinley’s longtime ally in small-town Ohio. Steady and unspectacular, he rose through the ranks as a party fund-raiser, Ohio governor, and McKinley’s secretary of state. TR appointed him in 1903 mainly to appease Old Guardists ahead of the next year’s presidential election. Day might have been, as Roosevelt believed, free of reactionary dogmas, but his long experience in local politics and state government had made him so wary of federal power that he became a reliable ally of the court’s conservative phalanx.
Roosevelt’s third and last appointment, in 1906, was cut from a different cloth. William H. Moody, a Harvard man and protégé of Lodge from north of Boston, was a fighting progressive who served two frenetic years as Roosevelt’s attorney general and point man in the fight against the trusts, taking on monopolies in tobacco, lumber, drugs, fertilizer, paper, and groceries. He personally prosecuted the Beef Trust and targeted Standard Oil. He pushed through the Hepburn Act in 1906, which resurrected the Interstate Commerce Commission after the Supreme Court had stripped it of its regulatory powers. TR truly could say, “Moody is entirely our kind of judge. If they were all like him we would have no trouble.”
BUTTHEY WERE NOT all like Moody, not even Holmes. Shortly after Roosevelt took office in September 1901, his Justice Department brought an antitrust suit to block the merger of two big railroad companies. The Northern Securities case became a spearhead in TR’s war on the trusts. By the time it reached the Supreme Court in late 1903, that battle was in full swing, getting a tremendous boost when the court, by the narrowest margin, 5-4, upheld the government. While Justice Day voted with the majority, the critical swing vote was not Holmes, but, surprisingly, David Brewer, who had come to fear that immense industrial empires threatened to crush individual liberty. In his concurrence, Brewer foresaw a time when “a single corporation whose stock was owned by three or four parties would be in practical control . . . of the whole transportation system of the country.” Holmes disagreed. He thought too much was being made of trust-busting, creating a “kind of hydraulic pressure” before which “even well settled principles of law will bend.” Chief Justice Fuller heartily assented. TR was furious. “Theodore went wild about it,” Roosevelt’s friend the historian Henry Adams wrote an acquaintance.
But trust-busting was about as far as the Fuller Court would go in acquiescence to reform. Confronted with demands to accommodate the modern economy, and especially when it came to the rights of workers, the Supreme Court continued to rely on what TR would call “a long outgrown philosophy, which was itself the product of primitive economic conditions.” During his second term, the court, in Lochner v. New York, struck down a state law that limited working hours in the bakery industry. Reformers had in 1897 persuaded the New York legislature to pass the law as a health measure, to protect bakers from the effects of long days working in hot, dusty conditions. Joseph Lochner, owner of a bakeshop in upstate Utica, was twice convicted of forcing his bakers to work more than sixty hours a week. After two New York appeals courts ruled against Lochner, he turned to the Supreme Court in 1905, where he won full vindication. In the state law, Justice Rufus Peckham, writing for the majority, discerned the threat of the “all-pervading power” of legislative majorities that if left unchecked could make “wards of the State” of workers in every trade. What was really at stake in Lochner, Peckham wrote, was liberty of contract—the “freedom of master and employee to contract with each other” on equal terms, without go
vernment interference.
Actually at stake in Lochner was the baker’s “treasured freedom” to work as many hours as his employer demanded. In a pithy dissent, Justice Holmes noted that “this case is decided upon an economic theory which a large part of the country does not entertain,” charging the majority with writing private opinions into constitutional law. Law professor and reformer Ernst Freund bashed the court for overriding the judgment of the legislature, to which “the choice between the comparative benefits of the public welfare and private liberty of action” had constitutionally been committed. But the Lochner precedent would remain essentially intact for three decades.
So too would the court’s decision three years later in Adair v. U.S., when it rejected Congress’s attempt to outlaw “yellow-dog” contracts that railroads forced on workers with the threat of being fired if they joined a union. Once again, liberty of contract was the issue, with the justices imagining that employer and employee could be on equal footing in negotiations. And in Loewe v. Lawlor, also decided in 1908, the court deployed the Sherman Anti-Trust Act against union organizers who orchestrated a boycott to pressure a company to accept unionization. This was a conspiracy in restraint of trade.
The one exception to the Supreme Court’s hostility to workers’ rights came three weeks after Loewe, when it upheld an Oregon maximum-hour law for women. What helped to make the difference in Muller v. Oregon was a novel presentation by the attorney defending the law, Louis D. Brandeis. The Bostonian prepared a one-hundred-page sociological treatise that demonstrated the ill effects of long hours on the well-being—moral as well as physical—of working women. But chivalry—or sexism—too played a part in the court’s abandonment of the “liberty of contract” shibboleth in this case. The justices bowed to “the inherent difference between the sexes,” conceding that “a female in a laundry” needed special legislation to rescue her “from the greed as well as the passion of man.”
Apart from this single chink in its anti-labor armor, as well as a tolerance for trust-busting, the Supreme Court proved obdurate, still solidly stacked against progressive forces, impervious to TR’s condemnations and insults, even when he publicly damned the court’s rejection of a congressional attempt to increase employers’ liability for injuries on the job as “a very slovenly piece of work.” While Moody was almost always “safe and sound” in his votes on cases, as was Holmes usually and Day occasionally, the Supreme Court remained wedded to its long outgrown economic philosophy.
A CENTURY LATER historians still cannot fully explain the most fateful of Theodore Roosevelt’s decisions—not to run for a second full term as president in 1908. It seemed to defy human nature—or at least TR’s. He loved being president. He reveled in both the trappings and the essence of power. He believed he had been strikingly successful in the White House and knew that millions of Americans agreed. He had more work to do, more bills to be passed, still an array of enemies to be thwacked hip and thigh. Would he win again? He could have few doubts. William Jennings Bryan—who had been beaten twice by McKinley—again would be the Democratic nominee.
But, if not TR, who? This was no problem for the president—indeed, it was an advantage. He had already picked his successor, William Howard Taft. TR seemed almost in love with his plump, genial, comradely secretary of war. Writing to him once as “you beloved individual,” he went on to say that he admired Taft more than any public man of past or present, excepting Washington and Lincoln. Repeatedly Roosevelt offered him a seat on the Supreme Court, almost begging him to take it. But while Taft always maintained that the court was his highest ambition, he had his eye on a bigger prize—the presidency. And Roosevelt in effect gave it to him.
Rarely has a benign presidential choice, though, ended up more personally destructive and politically catastrophic. For a time President Taft appeared to be carrying on TR’s Square Deal, especially in antitrust actions that outnumbered Roosevelt’s. But Roosevelt grew more and more disillusioned—even apocalyptic—as his successor turned to the right on key appointments, tariff revisions, and conservation. It became clear that Taft’s presidency meant a restoration of the Old Guard conservatism Roosevelt had sought to banish from the Republican party. By midterm, TR was openly opposing his old friend, and in 1912 he plunged into the presidential race. When conservative Republicans controlling the GOP renominated Taft, Roosevelt led his “Bull Moose” faction out of the party and ran on a third-party Progressive ticket.
TR’s platform was a ferocious onslaught against laissez faire and its defenders, especially Supreme Court justices whom he termed “a menace to the welfare of the Nation.” At a time when criticism of the judiciary was reaching new intensity, no major political figure outdid Roosevelt in heat and radicalism. Central to his crusade was an inflammatory proposal for the popular recall, via referenda, of judicial decisions. Voters were to be empowered to strike down court rulings with which they disagreed. TR called on the states to enact such a measure, though he thought it should be extended to the federal judiciary and the interpretation of the national Constitution. Accepting the Progressive party’s presidential nomination in August 1912, Roosevelt declared that the “people themselves must be the ultimate makers of their own Constitution.”
Critics were quick to assail TR’s recall proposal as dangerous, even revolutionary. Taft warned that it would permit “a suspension of the Constitution to enable a temporary majority of the electorate to enforce a popular but invalid act.” The New York Times called it a “wild scheme” that, taken to its logical conclusion, could lead to the overturning of all Supreme Court decisions, beginning with Marbury—“the cause of all the trouble”—and then to the court’s abolition and “the transfer of its business to the town meeting.” The Journal of Commerce claimed it raised a “serious question” of the former president’s “mental balance.”
Yet Roosevelt strenuously defended his plan as a reasonable solution to the growing crisis created by a reactionary judiciary’s contempt for popular legislation. Citizens, he said, could not be denied the means to “effectively control the mighty commercial forces which they have themselves called into being.” Recall of judicial decisions was a safer course than either the recall of judges themselves, which would threaten their independence, or a piecemeal amendment of the Constitution. It was, he argued, a less radical alternative than proposals advocated by labor activists and others on the left to abolish judicial review, which TR saw as a needed check on legislative excesses. The problem was to check the extremism of the courts. Roosevelt maintained that his plan was soundly in the American vein—it would restore “the ultimate sovereign power—the people—to a position where it can decide” between the legislature and the judiciary.
Roosevelt’s defeat in the 1912 election took the steam out of his drive for judicial reform. With Republicans bitterly split, Woodrow Wilson, an avowed progressive, became the second Democrat elected to the presidency since the Civil War. Outdoing Taft in the electoral vote, 88 to 8, was a small consolation to TR. There was little to show for his campaign against the courts. Only Colorado enacted a law modeled on Roosevelt’s proposal—approved in a popular initiative in the November 1912 election. But no recall vote was ever held, and in 1920 the Colorado Supreme Court declared the law unconstitutional, giving the lie to TR’s hopeful claim that “it is the people, and not the judges, who are entitled to say what their constitution means.”
THE SUPREME COURT that Roosevelt had so savagely denounced was to a striking degree Taft’s court. During his four years as president, Taft had had a remarkable streak of luck at the judicial roulette wheel—six appointments—and he exploited his good fortune to the hilt. His was a long-range strategy—to pack the court with relatively young conservative attorneys who would serve for decades. Even more, if he played his cards right, he might end up among them.
Melville Fuller’s chief justiceship ended with his death in July 1910. Many had expected that Taft would offer the prize to Charles Evans Hughes
, whom he had placed on the court as an associate justice two months earlier. Hughes had all the credentials—reform Republican, noted attorney, governor of New York. And Hughes had accepted the associate’s spot in part because Taft dangled the top job in front of him. Indeed, until the last minute Hughes expected to succeed Fuller. But something seemed to stall the nomination. The president was doing some recalculating. Taft himself had long hungered for the chief justiceship. If he chose the forty-eight-year-old Hughes, the post might be filled for decades. Taft’s own chance to reach the judicial pinnacle would be blocked. Better to pick an older man, and he did—the undistinguished, but sixty-six-year-old, Edward D. White, a sitting justice appointed by Grover Cleveland back in 1894. Hughes resigned from the court six years later to run for the presidency—unsuccessfully as it turned out—against Woodrow Wilson. Rarely has one man’s age made so much judicial and presidential history.
In addition to Hughes and White, Taft had a bonanza of four more appointments. They formed a rough pattern: born in rural America, attended good colleges and law schools, started work as small-town lawyers, moved easily into party politics, and ultimately flourished in urban America. Most were brought up in strongly religious families, Catholic or Protestant. And they were all stout conservatives.
Horace H. Lurton, Taft’s friend from Ohio, was a traditionalist like the president who saw the Supreme Court as the guardian of “the fundamental law which conducts and controls the otherwise uncontrollable legislative power,” a check to “hotfooted action” by “impulsive majorities.” Willis Van Devanter, a Wyoming railroad attorney, would serve on the court until 1937, becoming what a fellow justice called the commander-in-chief of judicial reaction. Joseph Rucker Lamar, born of a patrician family and another railroad lawyer, served only five years and somewhat indistinctly as a reliable part of the Taft “unit.” Taft’s last pick, Mahlon Pitney, a New Jersey railroad attorney and politico, was noted for his consistently anti-labor positions.
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