Ask Burt Likko Anything, 2.4

Will H. solicits my opinion on William Howard Taft, both as President and Chief Justice. Briefly: he had a solid procedural and administrative approach to both jobs, but he made a number of decisions which I find substantively unpalatable. He was a man of his time, but not ahead of it. The Court and the modern justice system owes him a large debt. And he’s an example of why I probably ought not to be President myself.

William Howard Taft was a supremely skilled lawyer, but only a mediocre politician. He had all the right advantages: money, blue blood, a good education, and connections. He was a product of the early systematized law school curriculum still evolving in the late nineteenth century, taking a master of law degrees from Cincinnati Law School in 1880 when he was twenty-two years old. Ten years later, he got his third major political appointment, being made Solicitor General of the United States.

Taft had pretty much always aspired to serve on the Supreme Court, but declined several offers from President Theodore Roosevelt, on the basis that the positions Roosevelt had carved out for him (in particular Governor-General of the Philippines, then Secretary of War and acting Secretary of State) were too pressing and his personal involvement necessary if they were to be successful. He was not particularly keen on the idea of running for President in 1908, and in fact had done poorly as a ticket-prop speaker on tour in the midterm elections of 1906.

Taft’s Presidency is filled with examples of principled decisions, made in pursuit of policies with which I would fundamentally agree (freeing up trade, using economic development aid to build bridges to emerging nations, opposing prohibition, and paying close attention to ability and merit in making appointments), but which were the wrong policies for the times and the political climate in which they were introduced. Taft had a tin ear for the desires of the population as a whole and the other elites with whom he shared power. Good ideas, poorly executed.

Taft’s rudderless domestic policy and repeated failures to cultivate political support for tough moves before making them resulted in the Republicans losing their majority in Congress in 1910 and fragmenting completely in 1912 as Theodore Roosevelt and Robert Lafollette split to form a third party. This wound up siphoning enough votes away from the Republicans that Woodrow Wilson took the plurality of votes and unseated what should have been a dominant Republican party.

The stress of the job was more than he could bear; Taft was always heavyset but gained nearly eighty pounds of weight as President. At a time that men were supposed to be big, this much weight gain alarmed Taft’s doctors and family and Taft himself — and was almost certainly an outgrowth of the fact that Taft was doing poorly at a job he never particularly wanted in the first place. One suspects that he was secretly relieved when Wilson took the reins from him in 1913.

But his meritocratic and intellectually principled ways proved much better fits when he became Chief Justice. He made a point of studying the British legal system personally in 1922 and from his experiences successfully advocated for system judicial reform in 1925. The three-tiered Federal court system, optional certiorari system for the Supreme Court choosing the cases it will take itself, the position of Chief Justice as ultimate administrator of the entire Federal judiciary, the re-organization of the various Federal circuits into their current form, the recruitment of full-time law clerks to assist the Justices, and the creation of an independent building to house the Supreme Court (which was created ahead of schedule and under budget, albeit not having been completed until after Taft’s death) all are the product of Taft’s administrative abilities.

The work agreed with Taft, and he lost the eighty pounds he put on while President, dropping to a weight of 240 pounds and by his death looked positively trim, at least when compared to the more famous images of him as an obese President. His personal style on the bench was genial and substantively deferential to his colleagues; it helped that as President he had appointed nearly half of his colleagues, but his primary strength as a jurist was intellectual engagement rather than relying on old political favors. His colleagues spoke well of him personally and as a leader for the courts.

Substantively, his more prominent opinions are of his time and not ahead of them, and there is little for the modern civil libertarian to admire. He took an approach to new issues heavily reliant on historical study and precedent, and he was reluctant to overturn cases or strike down laws even when strong cases were presented to him. He would not apply the Bill of Rights’ procedural due process guarantees to cases arising out of Federal possessions, was highly deferential to police authorities in searches of things like telephone wiretaps and automobile stop-and-searches, upheld legal racial segregation in public schools, and found reasons to overrule taxes and regulations meant to deter exploitative labor practices. These were considered mainstream sorts of decisions at the time.

Taft had good administrative skills and an eye for talent. He did not often have any sort of vision for how he wanted things to be; he was essentially reactive. He must have been able to project personal charisma and an aura of competence. Sadly, he seems to be most famous for having been obese, which is unfair to the man: he gained nearly all of the excess when he started working in the White House and lost it when he stopped having to fill roles for which he was basically unsuited. While his legacy is ambiguous, on balance, I find him worthy of more admiration than criticism.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.


  1. Burt, I think that Taft would have lost in 1912 even if Theodore Roosevelt did not run. Woodrow Wilson won 40 states and had 435 electoral votes. Taft won two states and got 8 electoral votes. Theodore Roosevelt carried six states and got 88 electoral votes. Assuming that Taft carries all of the states that Roosevelt did, its still only eight states and 96 votes in the Electoral College. Wilson still carried the majority of the states and one the lions’s share of the Elecotral College, so he gets to be President. Taft would have received more of the popular vote but would have still lost to Wilson in the electoral college and thats what counts in our system.

    And this is assuming that Taft would carry all of TR’s states. Wilson could have won some of TR’s states if TR did not run. I can see Wilson winning in California and maybe Washington. The result might be Wilson winning the popular vote and the electoral vote.

    • Wilson won a lot of those states on a plurality, though, right? It seems more likely than not that either WHT or TR would have won some of those states, had they not been taking votes from one another.

      That’s one of the prohibitive things about the electoral college and third parties. Even if the third party candidate doesn’t actually win any states, he can throw winnable states to the other candidate.

      • Roosevelt and Taft together got over 50% of the popular vote. The states in which Wilson beat the two combined add up to only 152 of the 523 electoral votes cast. Without Roosevelt running, Taft would have won easily.

        • It’s more than fair to wonder how many Roosevelt votes would have gone to Wilson rather than Taft. TR and Wilson both had progressive policy platforms; to the extent a voter wanted to enact progressive ideas, Wilson would have been the next-best option as opposed to Taft. Query as to the number of voters who were actually thus motivated, but that’s a query in nearly any election. I’d stipulate that the number was greater than zero, but I think that I’d resist the notion that it would have been a decisive margin.

          Contra LeeEsq above, my opinion is that Taft would have had the upper hand in a two-way race, although “having the upper hand” is not the same thing as “would have won.” I also think Taft on a personal level wanted to lose, despite loyally going through the motions, because the man really didn’t enjoy being President.

    • Entirely possible, Lee; Republicans had been running the show for a while, there was something of an economic hiccough going on, and Taft lacked both TR’s charisma and Wilson’s innovative appeal. Taft was a technocrat, not a leader, as President.

      That said, in that era it was systemically better to be a Republican than a Democrat. The machinery was better, the votes were there, the McKinley realignment was mostly working out well. Of course, we’ll never know for sure, because TR did run again.

      • Except that as you noted, the Democratic Party won big in the 1910 Congressional Elections. This implies that American voters were undergoing one of their periodic needs for change. I think that factors showed that 1912 would be a good year for the Democratic Party.

        • LeeEsq,

          I tend to side with the “TR was Taft’s spoiler” view of things, but I think you also have a strong point here. Both parties, as you know, had strong “progressive” factions,* and if TR hadn’t run, then LaFollette might have and he might have been the spoiler.

          I still think, as Burt said above, that the GOP had the better electoral machinery, and in my view, the Dems, with Wilson no exception, were probably still too tied to the Dem Party’s segregationist constituencies to have the mass appeal necessary to win a clear majority. (I’m not saying that non-southern whites were necessarily anti-Jim Crow or anti-racist–I think most of them were not and in fact in some cases probably even wanted something like Jim Crow in their own localities–but in my view, the Dems were still a regional party in 1912.)

          At the same time, you’re right: more people in more places were starting to vote Democrat. And Cleveland had won in 1884 and 1892, albeit with the help of GOP dissenters and other 3rd parties (Mugwumps, Populists). So counterfactuals being counterfactuals and untestable, you might very well be right.

          *I generally think the idea that there was a “progressive movement” or such a thing as early 20th century “progressivism” is a mistaken one. I just don’t see anything like a “movement.” The period 1910-1912/1914 was a slightly different animal, in my opinion, because then we had short-lived political “movements” that I could feel comfortable calling “progressive,” both because their members called themselves that and because these movements had somewhat clear programs.

  2. I find it not a coincidence that the only two men that came to the Presidency without neither holding previous elected political office nor a General’s rank, but with a (deserved) reputation as uber competent administrators – Taft and Hoover – were both utterly incapable of handling the indispensable political aspects of the job and thus doomed their Presidencies.

  3. Thanks for answering this one, Burt.

    As you know, I’ve been particularly interested in the impetus behind the enactment of the Federal Rules in 1938. It stands to reason that something big happened. From what I’ve seen, it was a combination of things.
    The code pleading and the common law system were highly structured, and pleadings could be dismissed for misplacement of a fact.
    But there were quite a few things happening in the American system around that time; and one of the big things was the enactment of the United States Code.

    Federal statutes were previously codified as the Revised Statutes of the United States of 1878 (a revision and correction of the first codification of federal statutes, the Revised Statutes of 1873). Cohen & Berring, How to Find the Law 189 (8th ed.1983). The United States Code was first adopted in 1926, replacing the Revised Statutes. Id. at 191.
    Kettner v. Compass Group USA, Inc., 570 F.Supp.2d 1121, n. 4 (D.Minn. 2008).

    That was while Taft was Chief Justice. He presided over early years of the transition period.

    The other huge thing was the merger of the courts of law and equity in the federal system. I haven’t been able to pinpoint a date for that.

    Now, Taft did preside over Gitlow v. United States, which extended First Amendment free speech protections to the states– and this on the wake of Debs trial and others under the Espionage Act (though Holmes was backpedaling after the first few cases, and Brandeis was steady dissenting).

    He was also the one who wrote these words:

    Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means–€” to declare that the Government may commit crimes in order to secure the conviction of a private criminal–€” would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.
    Olmstead v. United States, 277 U.S. 438, 485, 48 S.Ct. 564, 72 L.Ed. 944 (1928).

    These too are Taft’s words:

    Having thus established that contraband goods concealed and illegally transported in an automobile or other vehicle may be searched for without a warrant, we come now to consider under what circumstances such search may be made. It would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search. Travellers may be so stopped in crossing an international boundary because of national self protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in. But those lawfully within the country, entitled to use the public highways, have a right to free passage without interruption or search unless there is known to a competent official authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise. Section 26, Title II, of the National Prohibition Act, like the second section of the Act of 1789, for the searching of vessels, like the provisions of the Act of 1815, and Section 3061, Revised Statutes, for searching vehicles for smuggled goods, and like the Act of 1822, and that of 1834 and Section 2140, R.S., and the Act of 1917 for the search of vehicles and automobiles for liquor smuggled into the Indian Country, was enacted primarily to accomplish the seizure and destruction of contraband goods; secondly, the automobile was to be forfeited; and thirdly, the driver was to be arrested.
    Carroll v. United States, 267 U.S. 132, 153-54, 45 S.Ct. 280, 69 L. Ed. 543 (1925)

    Taft never envisioned the sort of “sobriety checkpoints” that we see these days– in fact, he specifically stated that such things are unacceptable.
    But the idea of searching cars without warrant came from the idea of searching boats.

    And the other big high point that I see from his tenure as Chief Justice was Wisconsin v. Illinois, in the finding that a state could be compelled to positive action. That’s really huge.

    Although, like you, I find Taft to be a much better Chief Justice than President, in his defense, I would say that he came from a time where the prevalent thought was one of “He who governs least, governs best” (TR being a clear outlier).

    Nonetheless, as President, Taft was fairly progressive in a number of ways.
    He supported education for blacks (albeit it separately, as he felt the time wasn’t right for an integrated education system), and supported entrepreneurship for blacks as well; even meeting with Booker T. Washington on those matters.
    He opposed literacy tests for union membership, which was something of an anti-immigrant measure proposed by the unions at the time. You still see something of this, with literacy programs available in many areas to assist disadvantaged persons in qualifying for apprenticeship programs.
    And he also formed the national Chamber of Commerce to counteract the increasing influence of the unions.
    Yet he also made corporations subject to income tax.
    His administration filed twice as many antitrust suits in one term as TR’s did in two.
    He enacted the first presidential budgets, which were later required by law (based primarily on his recommendations).

    So, while he wasn’t pro-labor (as much as unions can be considered to reflect the interests of all labor), he wasn’t avidly pro-business either. The impression of the total that I get is that he was more concerned with fairness and a balanced approach.
    Of course, this gave both sides plenty to gripe about; which I take as an indicator of a president doing a good job. (and Obama is no exception to this general rule)

    Toward his non-progressive policies, he opposed prohibition (the abortion debate of its day).
    I don’t see much other than that.

    But thanks again for giving Taft some virtual ink.
    Much appreciated.

    • I had thought the merger of courts of law and equity in the federal system dated back to article III, which says the “the judicial Power shall extend to all Cases, in Law and Equity,….” Perhaps that doesn’t necessarily mean that you couldn’t have two types of courts, but I imagine that in practice it came to mean that.

      Also, my understanding is that few states–to my knowledge, only Delaware–even maintain such a distinction now.

      I’ll admit I’m on thin ground, because I’m not a legal expert, but that’s my understanding.

      • I don’t believe so.
        The notes in the Federal Rules make mention of the old Equity Rules.
        I believe the merger may have been completed at the time of the enactment of the Federal Rules. My belief is that the transition took place within a few years of the Rules, though I have yet to find any evidence of it.
        Rule 59 (new trial, and amendment of judgment) still mention equity courts:

        (a)(1) The court may, on motion, grant a new trial on all or some of the issues— and to any party— as follows:
        (B) after a non-jury trial, for any reason for which a rehearing has heretofore been granted in a suit in equity in federal court.

        While chancery courts have been subsumed into courts of general jurisdiction in most places, there is still some distinction.
        If I’m not mistaken, family law courts and the divisions set up specifically for landlord-tenant disputes are courts of equity.

        • By the “merging” of law and equity, were you indicating the same court acting sometimes in an equitable capacity and sometimes in a law capacity? That’s how I understood it.

          But….I’ll have to bow out. I don’t really know what I’m talking about.

          • It depends on the rules of the court; either the supreme court rules or the local rules.
            Sometimes the same judge can hear either case. Other places, there are divisions for equity set apart.
            Really, this goes all the way back to Lord Coke and his mission to make the courts of common law supreme above all the other courts of the King’s Bench; courts of equity, admiralty courts, ecclesiastical courts, etc.
            The courts of equity didn’t operate by statute (those are courts of law). They went by maxims, much the same as the canon law of the ecclesiastical courts. (and they were really much the same, though actual practice varied widely)
            Some of the distinctions seem rather odd as we would think of them, but they made sense in the backdrop of the progression of the development of the law.
            Check this out, from Gibson v. Shufeldt, 122 U.S. 27 (1887):

            When a suit is brought by two or more plaintiffs, or against two or more defendants, or to recover or charge property owned or held by different persons, (which more often happens under the flexible and comprehensive forms of proceeding in equity and admiralty, than under the stricter rules of the common law,) the question what is the matter in dispute becomes more difficult.

            What they’re talking about is joinder; either joinder of parties or joinder of claims. Under the federal rules we have now? Easy. (Rule 19, I believe) No one thinks much of it. But at one time, that could make or break the case, depending on what the plaintiff was asking for.
            Another big difference was that there were no juries in courts of equity. Juries come from the common law.

            These two passages are cited in In re Lockwood, a case from 1995 which cites much older cases explaining the difference:

            The phrase “common law,” found in [the Seventh Amendment], is used in contradistinction to equity, and admiralty and maritime jurisprudence…. By common law, [the Seventh Amendment’s framers] meant what the constitution denominated in the third article “law;” not merely suits, which the common law recognized among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized, and equitable remedies were administered; or where, as in admiralty, a mixture of public law, and of maritime law and equity, was often found in the same suit…. In a just sense, the amendment then may well be construed to embrace all suits, which are not of equity and admiralty jurisdiction, whatever may be the peculiar form which they may assume to settle legal rights.
            Parsons v. Bedford, (1830)

            To determine whether a statutory action is more similar to cases that were tried in courts of law than to suits tried in courts of equity or admiralty, the Court must examine both the nature of the action and of the remedy sought. First, we compare the statutory action to 18th-century actions brought in the courts of England prior to the merger of the courts of law and equity. Second, we examine the remedy sought and determine whether it is legal or equitable in nature.
            Tull v. United States, (1987) (citations omitted)

            Also, I’ve seen a number of comparisons of bankruptcy courts with the courts of equity.
            I believe probate law is derived from the courts of equity.

            But while looking around, I found this from Baez v. United States Dept. of Justice, (1982) (yes, that Joan Baez):

            When law and equity merged in 1937 the Federal Rules of Civil Procedure adopted both equity’s discretionary standard for awarding costs24 and the common law presumption favoring the award of litigation costs to the prevailing party. Thus Federal Rule of Civil Procedure 54(d) provides,
            Except when express provision therefor is made either in a statute of the United States or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs

            I also saw one where televangelist Robert Tilton appealed (and lost) an award of costs on motion for summary judgment, for >$1 million for transcription & copy fees in a failed libel suit against ABC.

            So, the merger took place in 1937, but the new Federal Rules went into effect in 1938.
            1937 must have really sucked to be an attorney, I’m thinking.

            Anyway, here’s a short history (beginning at the end of p. 529) on some of the wrangling of the courts of the King’s Bench; and just to prime the pump a bit . . .

            A brief excursion into common-law history helps to explain the relevance . . .

            Personally, I find the history aspect of it fascinating.
            I would go so far as to say that the history of the law is the most interesting history that I’ve studied. I wish they would have had a course available to all students at my college (or even high school– I probably would have paid more attention; in the same way that I really began to learn chemistry by brewing, but that’s another matter . . .).

    • For all of Taft’s noble words, Olmstead ultimately found that a warrantless wiretap did not implicate either Fourth or Fifth Amendment rights, and Carroll substituted the arresting officer’s assessment of probable cause for a warrant. Carroll makes sense to me as a practical matter even if theoretically it’s troubling, but Olmstead is flat-out contrary to basic notions of privacy and constraints on governmental power.

      • Frankly, that troubles me as well.
        However, both of these were bootlegger cases. At the time, no one knew how long prohibition would last (or that the organized crime it spawned would outlive it).
        Those were dangerous days.

        Also, these were the days of party lines and switchboard operators.
        I remember finding an old phonebook years ago, where all of the numbers listed were 5 numbers.
        I think the notion of expectation of privacy in a telephone call was at base a technological development which simply hadn’t arrived by that time.

        But maybe I’m being overly generous.

  4. I wonder how a second term Taft would have handled World War I? I imagine TR would have gotten the U.S. involved, somehow, early on in a quasi-official capacity. I have a little hope that Taft might have kept the U.S. out (after all, Wilson kept the U.S. out of the war during his first term). I just wonder if Taft would have handled it differently.

    • I rather doubt it. Taft would not have relished war as a bully adventure the way TR did and his experience in the Philippines was of governing a foreign people who were unready for self-government (in his opinion). Europeans would have been a different matter altogether and sonthe chance to expand overt power would have been small, at a very dear price. Taft had no feel for what we call “soft power” today.

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