In The Taft Court: Making Law for a Divided Nation, 1921–1930, the latest addition to the Oliver Wendell Holmes Devise History of the Supreme Court of the United States, Robert Post offers a masterclass of legal analysis and historical scholarship. Admirers of Post’s scholarship will find in this book yet more evidence of his rare skill for illuminating the nuances of legal doctrine and identifying the social forces and ideas that explain and animate that doctrine. The Taft Court also gives Post an opportunity to demonstrate his equally admirable skill at synthesizing massive amounts of research material into an engaging and compelling historical narrative—no small an achievement for a volume that comes in at over 1500 pages.
How does he pull off the trick of making a lengthy, serious work of scholarship an inviting experience for the reader? It helps that Post writes so clearly, even when navigating complex areas of the law. He also leans into the biographies of the members of the Taft Court, crafting subtle, sensitive portraits of not only the famous justices, such as Holmes, William Howard Taft, and Louis Brandeis, but also the infamous (the irascible racist James McReynolds) and those who have been largely forgotten. No one is better than Post at the difficult task of connecting biography and jurisprudence.
Perhaps most importantly, Post makes creative and effective choices about organizing and presenting his material. He puts most of his discussion of scholarly debates and historiography in endnotes, allowing him to keep his prose accessible and to center the reader’s attention on the words and actions of the historical actors. The overall structure of the volume is nicely attuned to the reader’s convenience. After beginning with chapters introducing each of the Taft Court justices, Post organizes the remainder of the volume topically. Early chapters explore Taft’s contributions to modernizing the Supreme Court and the institutional character of the Court in this period. Post then breaks down the Taft Court’s cases into four broad categories: social and economic legislation; prohibition; federalism; and labor and race.
The completist will find in each of the forty-three chapters countless insights built upon exhaustive historical research. But the volume is also thoroughly rewarding for more time-pressed readers who chooses to focus their attention on particular personalities and topics.
The central theme of The Taft Court—and a central theme of Post’s scholarship across the years—is that to understand the formation and development of judicial doctrine one must pay carefully attention to cultural phenomena and political developments outside the courts. The Taft Court’s jurisprudence, Post explains, was “fashioned in continuous dialogue with the popular preconceptions of its era” (P. xxv). This fact helps explain the distinctive challenges the Court faced. It’s also why the Taft Court’s work has been misunderstood, Post argues.
For the 1920s was a period of “intense ambivalence.” It was a time of technological innovation, with radio and cars transforming American life. It was a time of artistic experimentation. It was also a time of Prohibition, harsh nativism, and resurgent religious fundamentalism. The Taft Court, Post explains, was “charged with the thankless task of constructing law for a society that was deeply confused about what it wanted” (P. xxvi).
Post illuminates these crosscurrents of culture and law by organizing the justices of the Taft Court into adherents of four “narratives” about the meaning of constitutional law. One narrative understood custom as the master principle of constitutional law. Under this approach, the task of the judge was to translate historically durable practices and commitments into constitutional principle and then apply these principles as constraints on novel government policy. As the exemplar of this approach, Post presents McReynolds, the most uncompromising of the Court’s conservatives.
Chief Justice Taft often allied with this group, but he arrived at his judicial conservatism through a vision of constitutional law as dedicated to economic prosperity. This approach elevated property rights and freedom to contract and cast a skeptical eye on regulatory policy that might constrain economic growth and investment.
Holmes, by contrast, eschewed any judicial role in discerning fundamental constitutional principles. Under this positivist approach, the primary role of the judge in constitutional cases was to defer to the laws passed by majoritarian institutions. Only in limited and extraordinary circumstances would the courts impose constitutional limitations on the will of the people.
Holmes famously stood alongside Justice Brandeis in many of the most significant constitutional disputes of the Taft Court era, but the two men brought sharply different visions of the purpose of constitutional law. In contrast to Holmes’ skepticism toward judicially protected constitutional principles, Brandeis believed the essential task of constitutional law was the promotion and protection of democracy. “Our objective,” Brandeis wrote, “is the making of men and women who shall be free, self-respecting members of a democracy” (P. 313). For Brandeis, Post writes, judicial deference derived from a “moral respect for democracy.” Post’s portrait of Holmes is sensitive and thoughtful. His portrait of Brandeis as a democratic visionary is inspiring.
As the Taft Court struggled to respond to the ambivalent historical moment in which it operated, proponents of these four narratives came together and pushed apart, leaving behind a constitutional legacy that modern scholars have too often mischaracterized or underestimated or simply forgotten. Post offers a convincing case that, taken as a whole, the Taft Court did an admirable job at this transitional moment—recognizing that old constitutional veracities were no longer tenable, but also attempting to control the pace and scope of the change that was happening. In his thoughtful and thought-provoking portrait of a Court stuck between two constitutional worlds, Post has produced a masterpiece of legal historical scholarship.
