Judgment (#27)

by Colin Rafferty

Bench

On days that opinions are announced by the Court from the bench, the text of each opinion is made available immediately to the public and press in a printed form called a “bench opinion.”
                                                        —“Information About Opinions,” supremecourt.gov

If you know anything about William Howard Taft, it’s probably his weight. He did get stuck in the White House bathtub; that’s not a legend. Maybe you know the story that his presidency so disappointed Theodore Roosevelt (his mentor, who had chosen him as his successor) that Roosevelt ran against him in the next election. Maybe you know that he joined the Supreme Court after the presidency, but that already feels like pushing the boundaries of common knowledge.

Slip

Several days after an opinion is announced by the Court, it is printed in a 6” x 9” self-cover pamphlet called a ‘slip opinion’…in the case of discrepancies between the bench and slip opinions, the slip opinion controls.
                                                        —“Information About Opinions”

He was a man with a legal mind, and his early days show a man setting himself toward the bench. Attended Yale, Skull and Bones, Linonian Society. Secrecy and debate. He wrestled, too, as big men often do, and as big men often do, he understood how his body worked. He could dance, could negotiate spaces around him. Power and grace—that sort of thing. And the career moves steadily forward—Judge of the Superior Court of Cincinnati, then the Harrison Administration’s Solicitor General, the youngest ever at just 32 years old, the lawyer who stands in front of the Supreme Court on the government’s behalf, in the chambers of Congress where the Court meets, as it has no home of its own. Then the Court of Appeals, and a professor of constitutional law at Cincinnati—he is moving up. He is an Ohio Republican when being an Ohio Republican means entry into the halls of power.

It’s not fair, our reduction of him. But how else do we judge a man? The complexity of the question is impossible, like trying to imagine how a man might fall upwards.

Preliminary Print

The preliminary prints of the U.S. Reports are the third generation of opinion publication and dissemination. These are brown, self-cover “advance pamphlets” that contain, in addition to the opinions themselves, all of the announcements, tables, indexes, and other features that make up the U. S. Reports…in case of discrepancies between the slip opinion and preliminary print version of a case, the preliminary print controls.
                                                                    —“Information About Opinions”

What changes our minds? How do we form opinions? How do we decide? President McKinley, an Ohio Republican, asks Taft to govern the new American territory of the Philippines, to leave the judgment of the law to foster its execution. Taft had opposed annexation, and McKinley knows his ambition is for the Court, but Taft says yes. His commitment to his decision is such that when, three years later, Roosevelt offers him an Associate Justice’s seat on the Court, Taft turns it down, because in his opinion, the Philippines cannot yet govern itself.

Ambitions at play: Roosevelt, who sees Taft as a trusted figure, one he names Secretary of War and grooms for the presidency; Helen Taft, politically ambitious in a time when women cannot vote, who pushes her husband farther into politics; and Taft himself, who knows that what he really wants is not any seat on the Court, but the seat on the Court. He is aimed for Chief Justice, and he will find his way there somehow.

He runs for president, reluctantly, but how can he say no to Roosevelt when he could not say no to McKinley? He is the Party’s available man. But as President, he falters. He cannot charm the press or the public, as Roosevelt could do so masterfully. Devotion to the law and precedent makes being a Progressive difficult. Yet, he files anti-trust lawsuits and submits the first modern presidential budget. He is President when a constitutional amendment creates the federal income tax. He makes changes that endure. Not enough. His friend Roosevelt turns on him, forming a third party, and the vote is split, and the Democrat, Wilson, a Southerner relocated to New Jersey, becomes President.

So Taft is done. We can close the books on him. Most surveys rank him near the middle: not good, not bad. Impartial. He leaves, loses weight (stress and worry make a man eat), and we can suppose that’s all.

Then, in 1921, Edward Douglass White, Chief Justice of the Supreme Court, dies. The president, Warren G. Harding, is an Ohio Republican.

Bound

The fourth and final generation of opinion publication is the casebound set of law books entitled United States Reports. The opinions and other materials contained in the preliminary prints are republished in this series of books…in case of discrepancies between the preliminary print and bound volume versions of a case, the bound volume controls.
                                                                    —“Information About Opinions”

Justice Frankfurter tells Justice Brandeis that he cannot understand “why a man who is so good as Chief Justice…could have been so bad as President.” But we can speculate, can talk about a devotion to law, an ambitious wife, an overpowering boss, a tendency to say yes when he should say no, a tendency to say no when he should say yes, and maybe generously, a foresight to see a winding path to his ultimate goal—after all, Taft was the one who appointed the aged White to the Chief Justice’s seat. He understood legacy. In 1929, as Chief Justice, he convinces Congress to build the Court its own home, a permanent building for the bench. As a young man, he stood on one side. A presidency later, he sat on the other. There is one room in which the Supreme Court has met since Taft’s building was dedicated, five years after he died, and it is where the twentieth century was shaped, where the current century is being shaped. There is one bench and nine seats, one podium from which every case is argued—Brown vs. Board, Roe vs. Wade, Bush vs. Gore, Citizens United vs. Federal Election Commission, Obergefell vs. Hodges, all of them—spoken and argued and judged in a space made possible by Taft, whom we judge as an average President: not good, not bad.

Colin Rafferty is the author of Hallow This Ground, a collection of essays about monuments and memorials. He teaches nonfiction writing at the University of Mary Washington in Fredericksburg, Virginia.

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