In this episode, Robert Post, Sterling Professor of Law at Yale Law School, delves into his newly released and highly anticipated volumes from the Oliver Wendell Holmes Devise History of the Supreme Court, The Taft Court: Making Law for a Divided Nation, 1921–1930. Post explores the history of the Taft Court and the contrasting constitutional approaches among its justices, including Louis Brandeis and Oliver Wendell Holmes, Jr., among others. Jeffrey Rosen, president and CEO of the National Constitution Center, moderates. This program was originally streamed live as part of our America’s Town Hall series on December 11, 2023.
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Today’s episode was produced by Tanaya Tauber, Lana Ulrich, and Bill Pollock. It was engineered by Kevin Kilbourne and Bill Pollock. Research was provided by Cooper Smith and Yara Daraiseh.
Participants
Robert Post is Sterling Professor of Law at Yale Law School, where he served as the School’s 16th dean. Post has written and edited numerous books, including The Taft Court: Making Law for a Divided Nation, 1921-1930; Citizens Divided: A Constitutional Theory of Campaign Finance Reform; Democracy, Expertise, Academic Freedom: A First Amendment Jurisprudence for the Modern State; For the Common Good: Principles of American Academic Freedom; and Prejudicial Appearances: The Logic of American Antidiscrimination Law.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also a professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
Additional Resources:
- Robert Post, The Taft Court: Making Law for a Divided Nation, 1921–1930
- Meyer v. Nebraska, 262 U.S. 390 (1923)
- Chas. Wolff Packing Co. v. Court of Ind. Relations, 262 U.S. 522 (1923)
- Whitney v. California (1927)
- Brandenburg v. Ohio (1969)
- Gitlow v. New York (1925)
Excerpt from Interview: Robert Post on national power versus states' rights.
Robert Post: So there was national corporations, which were of course, highly Republican, always wanted federal courts to have more jurisdiction because they created a jurisprudence which was very friendly to the national market. On the other hand, the Democratic Party, which was the party of the South, was very states rights, and it was opposed to nationalism.
But think of TR as a characteristic Republican. And then along comes World War I. For World War I it really has not been theorized in the history of American constitutional law, but it had a massive, massive, massive impact on the way in which the court and the way in which the country regarded economic regulation and regarded the federal government in particular.
So, World War I comes along, it's the country's first encounter, really, with total war with international total war. And in 1912, you know, it was intensely controversial every time Congress passes a regulatory statute because it should be in the states and it's laissez-faire and it was a time of Lochner. And along comes World War I and the federal government takes over the railroads. It takes over the telegraphs. It takes over the telephones. It sets prices for food. It sets prices for energy. It regulates what you can and cannot consume.
It recognizes unions. It sets labor prices. It creates arbitration for labor disputes. I mean, total control of the economy more than has ever existed since then, actually. And it's a total shock to everyone. Everyone recognizes that you cannot win a total war in the 20th century, unless the federal government can completely control the economy, because that's what Germany is doing. Because war in the 20th century is a question of national production.
And the war ends. And as Leuchtenburg, a famous historian, put it, Woodrow Wilson ends his administration in a riot of reaction. He dissolves every federal agency which had been controlling every aspect of the economy, leading to the huge inflation and the huge crisis of 1919. But it's because the country was horrified at what it had done to itself. And that leads to a massive election of Harding and this theme of normalcy. And the court is now to erase the impact of World War I.
But that had a lot of implications for federalism too. So, the Taft Court is actually quite discombobulated on the question of federalism when it comes to, say, national congressional power. On the one hand it understands, for example it takes the lesson of World War I that the railroads are a national transportation system and they can only be regulated at the national level.
It had never existed before. Before that, the ICC was there basically to protect shippers farmers in states. And afterwards the ICC, the Interstate Commerce Commission, is tasked with this, with a, a revolutionary statute, the Transportation Act of 1920, with creating an efficient national transportation system. So, antitrust considerations with respect to railroads are put to one side and the function of the ICC is to keep rates high so the railroads have enough capital to create an adequate system. And the whole of the rate structure of the railroad system in the United States is now in the hands of the ICC.
This couldn't have happened before World War I. Before World War I America did not keep statistics economic statistics with it didn't have enough information to do this form of regulation. Suddenly, in World War I, when it had transformed the economy into a war economy economists flocked to Washington DC. I statisticians were hired by the federal government for the first time. And this is the first time we created a National Statistics Bureau. We created econometric knowledge that would set prices in the United States and direct production to war.
It's this expertise, which is now applied to the ICC after, after the war. Couldn't have happened. And the Taft court is fully in support of that because they understand that the railroad system is a national system. On the other hand, they pass a statute which bans child labor and they pass a statute which taxes child labor. And the Taft court strikes it down on the grounds that we're a federalist country and this is beyond the taxing power and the interstate commerce power of the federal government. So totally inconsistent views.
Excerpt from Interview: Robert Post discusses Justice Brandeis’ vision of democracy
Robert Post: Well, it's very interesting because he writes almost no memorable court opinions during the 1920s. Taft gives him, he creates the rudiments of administrative law. Taft calls him in the intra court correspondence, the Pope of interstate commerce, because he gave them all the ICC cases, very complex. No one knew how to handle this new ICC and how to figure out what the administrative law. There was no administrative law at the time and Brandeis invents it, but it's very rudimentary by modern standards, so we've lost all these decisions, but that's where he chiefly wrote opinions.
And everything he does is in the dissent. So for example one of the things I should say is that, and a way in which we've lost track of it, the war between labor and capital was central to American identity in the, first 30 years, 40 years of the 20th century and especially in the '20s, because in 1919, it exploded in the worst kind of industrial warfare…
And these four decisions included striking down the Child Labor Tax Act, and it included decisions about when people can pick it and how they can pick it. And it included decisions about the application of the antitrust law to labor et cetera. But the most interesting of these is a case called Truex. So Arizona, well, I should go back and say, when the Clayton Act was enacted in 1914, the Clayton Act said basically that federal courts couldn't issue injunctions to intervene into labor disputes because the labor injunction was killing strikes.
Federal courts were very favorable toward capital. And so when there was a strike, they would go into court and they would injure the court. So labor mobilized and under the Wilson administration, which was very friendly to labor, they passed the Clayton Act, which seemed to say that they couldn't issue an injunction. Well it turns out it was very weaselly, the words, and the Supreme Court holds in 1920 that yes actually didn't mean what it says. And they can issue injunctions. And in fact, not only can they issue injunctions, but they can issue more and better injunctions than they could before the Clayton Act…
And this decision comes to the Supreme Court of the United States during Taft's first term. It comes in December. His first term starts in September of '21. This decision is in December of 1921. And Taft holds five, this is a five to four decision. Taft holds that, first of all, it violates due process to ban any remedy for the property of the employer, which is a really interesting decision because it implies that the constitution gives affirmative rights. If you ban all remedy, then you've lost the constitutional rights, what's exactly opposite the modern court, which holds negative rights. You have rights to prevent government from doing something.
Here, Taft is holding the government has to intervene to protect your right. Otherwise, it's unconstitutional. So it's one of the few decisions that have held that there's an affirmative constitutional right to a remedy to, to have the federal government intervene to protect you. So that's one holding. But then he says, suppose that Arizona only banned injunctions as a remedy. They allowed other remedies like damages. He said that would be a protection of equal protection law because it doesn't treat other disputes between employers and other people the same as it treats disputes between employers and employees.
It was a very bizarre argument, but actually it kind of anticipates modern narrow tailoring. It basically, basically argued it was under inclusive. No one at the time understood that argument. They viewed it as like this crazy pro-capital decision by a conservative court. Brandeis dissents in that, and it's one of the most profound dissents that he writes ever. And in this dissent, he says, "Well how are we to understand whether it's constitutional or not?" He says the problem with constitutional with constitutionally setting aside of legislation, like, Arizona's legislation is you're setting aside the results of democratic deliberation…
And Brandeis is articulating this idea that you never really know an answer, so you have to trust the people in doing it. And, to know that, you have to have respect for the outcome of the democratic process. And you have to have experimentation, you have to allow them to try different things. Otherwise, we'll never know what the solution to this is. This is a very profound understanding of the role of judicial review, which I think most moderns just take that for granted, what I just said to you. No one had ever said it before, Brandeis, in this dissent.
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