The Supreme Court in a Divided Nation

Roger Berkowitz

Back when I was a law student at UC Berkeley, I got hired to sit in a small Microfilm room in the far reaches of the Boalt Hall Law Library and pore over the letters and papers of Oliver Wendell Holmes Jr. I was looking for anything of interest–a broad ambit that allowed my imagination to run productively wild. Those laborious hours struggling over Holmes’ impenetrable handwriting and acerbic wit sparked an early interest in Holmes and the power of judgment and led indirectly to an essay “The Judge as Captain.” Inspired by Holmes’ account of the jurisprudential lessons he absorbed during his service in the Union Army during the Civil War, I found similarities between Holmes’ jurisprudence and the fictional accounts of Captain Edward Fairfax Vere who was forced into the role of judge in Herman Melville’s legal novella Billy Budd. I explored the way that law can be understood through metaphors of war, honor and glory. Specifically, I argued that amidst the rise of legal positivism and the cleaving of law from justice, it came to be necessary for judges to imagine themselves doers of justice absent the certainty of knowing what justice required. This inquiry into the connection between judging and war is something I pursued in a series of essay, The Judge as Tragic Hero: An Arendtian Critique of Judging  and Melville’s War Poetry: The Human Form.  

My employer who sent me to explore amongst the incomprehensible scribbling of Holmes’ microfilmed papers was my Constitutional Law Professor Robert Post who has—33 years later—published the second volume of  “The Taft Court: Making Law for a Divided Nation,” the last installment of The Oliver Wendell Holmes Jr. Devise History of the Supreme Court. Jill Lepore writes about Post’s volume and, more specifically, how Chief Justice William Howard Taft presided over a divided Court at a time of great ideological ferment. There are lessons to be found in Lepore’s essay both about the Court itself and our polarized political time. As the only person to ever serve both as President of the United States and Chief Justice of the Supreme Court, Taft brought a pragmatic and political sensibility to the Court. He both made the Court more efficient and expanded its power and authority. And as a conservative amidst the Progressive Era, Taft set the Court on his path of obstructing progressive legislation. Lepore writes: 

The executive branch had the White House and the legislature the Capitol, but the Court had no home of its own and had long met in a cramped room, the old Senate chamber. Taft persuaded Congress to authorize funds for the construction of a building for the Court alone, befitting the status of the judiciary. Taft himself chose the seven-acre site. The new building was touted as having more marble than any structure in the world, an austere and imposing monument to the rule of law. It looks like a Grecian temple, restored.
Taft, in short, got things done. In May, 1929, when Holmes’s wife died, Taft wrote to his son, “I have had really to take charge of the funeral arrangements, because Holmes can not attend to anything of that sort with any comfort.” But Taft also had the good sense to know that Holmes, however distraught, wasn’t helpless, and that what he needed most was something to do. He’d already assigned Holmes at least one opinion that term, but Taft told his son, “I don’t know but I shall give him another one before the month ends.”
In an age of efficiency, Taft made the Supreme Court more efficient, and mightier, but it remains the most secretive branch of the federal government. When it grants or denies cert, it offers no explanation; it simply follows a “rule of four”—if at least four Justices want to hear the case, the Court takes it. This past December, the special counsel Jack Smith asked the Court to grant cert in a case concerning the question of whether Donald Trump, as a former President, is immune from prosecution for actions undertaken during his Presidency. In January, Trump asked the Court to grant cert to hear an appeal of a decision by the Colorado Supreme Court which banned him from the Republican primary ballot. The Court said no to the first, for now, and yes to the second. No word or hint as to its motivations is ever offered. Supreme Court deliberations are held behind closed doors. Its sessions are not broadcast. The Justices are expected to avoid the glare of public attention. They don’t campaign, or at least they’re not supposed to. They don’t write tell-alls. No law requires them to preserve their papers or, if they do preserve them, to make them available to the public. So tight-lipped is the Court that, in 2022, when someone leaked a draft of the Court’s decision in Dobbs v. Jackson Women’s Health Organization, an internal investigation was unable to identify the leaker. The Supreme Court is at once the most closely scrutinized branch of the federal government and the least. It makes its own rules, like the Code of Conduct it released last fall, and, in a sense, it also writes its own history: the accumulation of its opinions. Most other accounts of the Court’s history are written by lawyers, a litany of cases with the occasional vivid portrait of a Justice or, less often, a litigant. Much that lies within the Court’s history remains unknown, partly because it’s never been known outside the Justices’ chambers, and partly because even what’s known is quite often entirely forgotten. The law writes over itself, like an old floppy disk.

“Taft’s presidential perspective forever changed both the role of the chief justice and the institution of the Court,” Robert C. Post argues in his landmark two-volume study, “The Taft Court: Making Law for a Divided Nation, 1921-1930” (Cambridge). The book is an attempt to rescue the Taft years from oblivion, since, as Post points out, most of its jurisprudence had been “utterly effaced” within a decade of Taft’s death, and was soon engulfed by “an obscurity so deep that most law students cannot now name more than ten Taft Court decisions.” But, if Marshall’s Chief Justiceship established what the Court would be in the nineteenth century, Taft’s established what it would be in the twentieth, and even the twenty-first.