The Supreme Court opinion as institutional practice: Dissent, legal scholarship, and decisionmaking in the Taft Court

Minnesota Law Review

Volumn 85, Issue 5, 2001, Pages 1267-1382

  Post, Robert ^a  

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EID: 0347018528     PISSN: 00265535     EISSN: None     Source Type: Journal    
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References (429)

1. Writing in 1984, Margaret P. Lord noted that to the Justices who first moved into the contemporary Supreme Court building in 1935, "the spaces were too huge, the corridors were too long and cold, the rooms too formal." Margaret P. Lord, Supreme Courthouse, CONNOISSEUR, July 1984, at 61. But, she added, "[t]oday, the grandeur seems exactly appropriate." Id. Contemporary representations of the Court nearly always include images of its building.
2. CHARLES MOORE, WASHINGTON PAST AND PRESENT 126 (1929).
3. See GREGORY HANKIN & CHARLOTTE A. HANKIN, PROGRESS OF THE LAW IN THE UNITED STATES SUPREME COURT, 1929-1930, at 5 (1930); Letter from William Howard Taft to Senator Reed Smoot (July 3, 1925) (Taft Papers, Reel 275). In remarks at the laying of the cornerstone for the present Supreme Court building, Charles Evans Hughes referred to the administrative facilities of the old Court as "shockingly insufficient. . . . I doubt if any high court has performed its tasks with so slender a physical equipment."
4. Charles Evans Hughes, Address at the Laying of the Cornerstone of the Supreme Court Building (Oct. 13, 1932), in Corner Stone of New Home of Supreme Court of United States is Laid, 18 A.B.A. J. 723, 728 (1932).
5. Hughes was speaking simple truth when he later observed that "we are indebted to the late Chief Justice William Howard Taft more than to anyone else" for the construction of the contemporary Supreme Court building. Hughes, supra note 3, at 728. For a brief synopsis of Taft's intense lobbying campaign, see ALPHEUS THOMAS MASON, WILLIAM HOWARD TAFT: CHIEF JUSTICE 133-37 (1965). To get a sense of how remarkably innovative were Taft's lobbying efforts on behalf of the new Supreme Court building, consider the 1917 remarks of Representative James R. Mann, when speaking to the question of the housing of the Supreme Court: "The members of the Supreme Court of the United States can not go lobbying. They can not permit one of their employees to go lobbying. It is beneath their dignity, properly so, to even make a representation in reference to the matter." 54 CONG. REC. 1660, 1716 (1917).
6. Letter from Cass Gilbert to William Howard Taft (Jan. 16, 1929) (Taft Papers, Reel 307). Gilbert remarked that this was "a combination rather difficult to achieve, but nevertheless possible." Id. Although the classical elements of the Supreme Court are often remarked upon, it was equally important to Taft and Gilbert that "[t]he practical, working elements of the building are as simple and modest and as sanitary as a modern office should be." Letter from Cass Gilbert to James M. Beck (Nov. 28, 1933) (Gilbert Papers).
7. Hundreds File Past Taft Bier in Capitol, N.Y. TIMES, Mar. 12, 1930, at 15.
8. Hughes, supra note 3, at 728.
9. Anne O'Hare McCormick, Building the Greater Capital: A New Washington Rises As the Symbol of America's New Status, N.Y. TIMES, May 26, 1929 (Magazine), at 1. The real pressure behind the new Washington is the new America. We have heard a good deal during the past few years of the United States as a great world power, perhaps the greatest. But that conception of our place in the international scheme is new to Americans, and in the country at large has been discounted as political hyperbole. Very slowly the legend has acquired the vitality of a fact, predicated not upon a vague political pre-eminence but upon the clear evidence of our mechanistic supremacy. We begin to see ourselves first among the nations by the tangible standards the populace recognizes - wages, motor power, plumbing. Gradually our primacy has impressed ourselves. The capital, says Mr. Hoover, is "the symbol of the nation." Id.
10. See generally Emmet Dougherty, $50,000,000 To Add Beauty and Dignity to Capital's Skyline: Stately Edifices of Classic Design to Accommodate an Army of Clerks, N.Y. HERALD TRIB., Aug. 15, 1926, § 3, at 3.
11. McCormick, supra note 8, at 1.
12. Fitzhugh L. Minnigerode, Washington Doffs Its Brick for Marble: White Masterpieces of Architecture Replace Old Red Buildings as Townsmen Join the Government in Beautification Plan, N.Y. TIMES, Sept. 21, 1930 (Magazine), at 18. The most notable buildings either recently erected or soon to be erected include the Departments of Commerce, Justice, Posts and Labor. Then we shall see arise in majesty a new building for the Supreme Court, another for the Interstate Commerce Commission, the Archives Building, Independent Offices Building, House of Representatives Annex and a number of lesser ones . . . . Id.
13. Taft, who had been Chair of the Lincoln Monument Commission, initially looked to Henry Bacon, who had designed the Monument. Bacon in fact produced preliminary drawings of a Supreme Court building. See Carson C. Hathaway, At Last a Home for the Supreme Court: Highest Tribunal of Nation Never Had Its Own Building But After 136 Years Plans for One Are Now Drawn, N.Y. TIMES, Sept. 26, 1926 (Magazine), at 13; Letter from Taft to Smoot, supra note 3. Bacon died in 1924. Hathaway, supra, at 13.
14. Letter from Cass Gilbert to Benito Mussolini (Aug. 11, 1932) (Gilbert Papers). Gilbert admired Mussolini, and he actively sought the dictator's assistance in acquiring the Italian marble that Gilbert insisted be used in the courtroom. Gilbert met with Mussolini in June 1933 to discuss the situation: I said that I had thought it would interest him to know of these matters at first hand & that I wanted him to know of them from me, as I had the greatest admiration for him & for what he had done & is doing for Italy. I moved to withdraw. He put out his hand across the table & said very simply "Goodbye - Goodbye"! We shook hands & I turned & walked rapidly to the door, reaching which I turned sharply around and raised my hand in the Roman Salute - as he did the same. And I shall always think of him as standing in the somewhat dim light of that great room alone, with his hand up above his head in the most impressive of gestures, the Roman Salute, which is so characteristic of the great organization he has created - The Facisti - and which he has led so successfully for nearly eleven years. Gilbert Memorandum, "Mussolini" (June 6, 1933) (Gilbert Papers).
15. Taft's brother Henry, for example, wrote to Gilbert that the Courtroom "will be very beautiful, and the selection of the Roman feeling particularly appropriate, as the Romans were the first of the ancients who developed a system of law which has lasted down through the centuries." Letter from Henry Taft to Cass Gilbert (Feb. 15, 1932) (Gilbert Papers).
16. See Letter from Cass Gilbert to Sir Reginald Blomfield (Apr. 5, 1933) (Gilbert Papers) ("The Supreme Court Building . . . is built of white marble and it is as pure in style as I can make it. I hope it will cause some reaction against the silly modernistic movement that has had such a hold here for the last few years.").
17. DREW PEARSON & ROBERT S. ALLEN, THE NINE OLD MEN 3-4 (1937). Pearson and Allen are quite inaccurate in their account of the building. For example, they describe Stone as opposed to its construction: "Justice Stone was not impressed by the boyish pride of Mr Taft in his blueprints. 'I am very comfortable at home,' he said. 'I wouldn't move my library if you gave me the whole building to myself.'" Id. at 3. Actually, however, Taft began earnestly seeking funding for a new building only after the newly-appointed Justice Stone was unable to find an office in the Capitol. See Letter from Harlan F. Stone to William Howard Taft (May 5, 1925) (Stone Papers); Letter from William Howard Taft to Harlan F. Stone (May 26, 1925) (Taft Papers, Reel 274); Harlan F. Stone to William Howard Taft (May 27, 1925) (Taft Papers, Reel 274); Letter from William Howard Taft to Harlan F. Stone (May 28, 1925) (Taft Papers, Reel 274); Letter from William Howard Taft to Senator Reed Smoot (July 3, 1925) (Taft Papers, Reel 275). In the 1920s there was virtually no room for Justices' chambers in the Capitol; all the Justices but Sutherland and Sanford worked at home. But because Stone was in the process of constructing a house, he had no home office. Stone complained vociferously, writing to Taft that "I shall be about like a stray dog." Letter from Harlan F. Stone to William Howard Taft (Aug. 30, 1925) (Taft Papers, Reel 276); see Letter from William Howard Taft to Senator Charles Curtis (Sept. 4, 1925) (Taft Papers, Reel 276); Letter from Harlan F. Stone to William Howard Taft (Oct. 21, 1925) (Taft Papers, Reel 277); Letter from William Howard Taft to Harlan F. Stone (Oct. 22, 1925) (Taft Papers, Reel 277); Letter from Harlan F. Stone to William Howard Taft, (Oct. 23, 1925) (Taft Papers, Reel 277). Despite Taft's best efforts, Stone could in the end manage to wrangle only an ill-lighted basement room some "distance from the Law Library." Letter from Harlan F. Stone to Senator Charles Curtis (Nov. 17, 1923) (Taft Papers, Reel 277); see Letter from William Howard Taft to Elihu Root (Nov. 22, 1925) (Taft Papers, Reel 278). As a consequence Stone strongly supported Taft's proposal for a new building. He was intimately involved with Gilbert's designs, and he always expressed his approval of the plans. See, e.g., Letter from Harlan F. Stone to Cass Gilbert (Mar. 24, 1927) (Stone Papers); Letter from Harlan F. Stone to William Nelson Cromwell (Oct. 22, 1928) (Stone Papers); Letter from Harlan F. Stone to Cass Gilbert (Oct. 7, 1929) (Stone Papers) ("It seems to me you have designed a building which is, at the same time, unique and dignified, and appropriate to its setting.")
18. Hughes, supra note 3, at 728-29. Laying the cornerstone of the building, Charles Evans Hughes declared that the structure "symbolizes the national ideal of justice in the highest sphere of activity, in maintaining the balance between the Nation and the States and in enforcing the primary demands of individual liberty as safeguarded by the overriding guarantees of a written Constitution." Id. at 728.
19. Letter from William Howard Taft to Senator Reed Smoot (July 3, 1925) (Taft Papers, Reel 275); see Letter from William Howard Taft to Senator Charles Curtis (Sept. 4, 1925) (Taft Papers, Reel 276) ("We ought to have a building by ourselves and one under our control, as the chief body at the head of the judiciary branch of the Government.").
20. Herbert Little, The Omnipotent Nine, 15 AM. MERCURY 48, 50 (Sept. 1928).
21. For a discussion, see Robert Post, Judicial Management and Judicial Disinterest: The Achievements and Perils of Chief Justice William Howard Taft, 1 SUP. CT. HIST. 50, 50-70 (1998).
22. 43 Stat. 936, 936-42 (1925). For an account of Taft's tireless efforts on behalf of the Act, see MASON, supra note 4, at 107-14.
23. FELIX FRANKFURTER & JAMES M. LANDIS, THE BUSINESS OF THE SUPREME COURT 299 (1928).
24. In essence, the Act restricted the Court's mandatory appellate jurisdiction to four classes of cases: (1) cases in which a state court has upheld a state statute against claims that it is invalid under federal law, or in which a state court has held invalid a federal statute or treaty; (2) cases in which a Circuit Court of Appeals has held a state statute invalid under federal law; (3) cases coming by way of direct appeal from specially constituted federal district courts; and (4) cases certified by Circuit Courts of Appeals, the District of Columbia Court of Appeals, or the Court of Claims. 43 Stat. at 937-39. All other appellate cases could come before the Court only through petitions for a writ of certiorari, which it was within the discretion of the Court to grant or to deny. Id. at 939-42. On the grounds for granting certiorari, see Magnum Import Co. v. Coty, 262 U.S. 159, 163 (1923); Layne & Bowler Corp. v. Western Wells Works, Inc., 261 U.S. 387, 392-93 (1923).
25. For an excellent summary of the origins and justifications of the Act, see Edward A. Hartnett, Questioning Certiorari: Some Reflections Seventy-Five Years After the Judges' Bill, 100 COLUM. L. REV. 1643, 1649-57 (2000).
26. As Judge Benjamin I. Salinger testified in opposition to the bill, [T]he great function of the Supreme Court is to protect rights given by treaty, the Constitution, or other Federal law. On a proper plea set up, the citizen should be able to obtain the protection of such rights - not as a matter of grace or discretion, but as of right - as protection from the court which is specially charged with insisting upon reverence for Federal law. Hearing on H.R. 10479 Before the House Comm. on the Judiciary, 67th Cong. 5 (1922) (statement of Honorable Benjamin I. Salinger).
27. FRANKFURTER & LANDIS, supra note 22, at 260-61 (footnotes omitted).
28. William Howard Taft, Address to the New York County Bar Association 5 (Feb. 18, 1922) (Taft Papers, Reel 590); see Letter from William Howard Taft to Senator A. Owsley Stanley (Dec. 5, 1924) (Taft Papers, Reel 269) ("[The theory of the Act is] that the District Court and the Circuit Court of Appeals shall furnish all the hearings that any litigant should have, and that the business of the Supreme Court should be to consider and decide for the benefit of the public and for the benefit of uniformity of decision only questions of importance. The appeal to us should not be based on the right of a litigant to have a second appeal.")
29. Thus Taft lobbied Congress for the Act on the grounds that it was "really quite essential to our playing the part we ought to play in the administration of justice in the country." Letter from Taft to Stanley, supra note 27.
30. Gregory Hankin, U.S. Supreme Court Under New Act, 12 J. AM. JUDICATURE SOC'Y 40, 40 (1928). In the words of Peter Fish, the Act "transformed" the Supreme Court "from a forum that primarily corrected errors arising in ordinary private litigation to a constitutional tribunal that resolved public policy issues of national importance."
31. Peter G. Fish, Judiciary Act of 1925, in THE OXFORD COMPANION TO THE SUPREME COURT OF THE UNITED STATES 477 (Kermit L. Hall et al. eds., 1992). For a contemporary critique of this transformation, see Hartnett, supra note 24, at 1713-37.
32. See DAVID M. O'BRIEN, STORM CENTER: THE SUPREME COURT IN AMERICAN POLITICS 156-57 (1993).
33. See, e.g., Robert Post, Defending the Lifeworld: Substantive Due Process in the Taft Court Era, 78 B.U. L. REV. 1489 (1998).
34. Hankin, supra note 29, at 40.
35. William Howard Taft, Address to the New York County Bar Association 5 (Feb. 18, 1922) (Taft Papers, Reel 590).
36. See John F. Davis & William L. Reynolds, Juridical Cripples: Plurality Opinions in the Supreme Court, 1974 DUKE L.J. 59 (1974).
37. Taft was confirmed as Chief Justice on June 30, 1921.
38. Figures for the Supreme Court docket may be found in the annual reports of the Attorney General of the United States.
39. See FRANKFURTER & LANDIS, supra note 22; Letter from Taft to Stanley, supra note 27 ("The truth is that there is no other way by which the docket in our Court can be reduced so that we can manage it."); Letter from William Howard Taft to Major Edgar Bronson Tolman (Feb. 25, 1925) (Taft Papers, Reel 272) ("I consider [the Act] a great step in the history of the Court, and I sincerely hope it is going to enable us to catch up with our docket."). After passage of what Taft called "[o]ur great Supreme Court bill," Letter from William Howard Taft to Mrs. Frederick J. Manning (Feb. 15, 1925) (Taft Papers, Reel 271), he presciently remarked that "I shall be disappointed if we do not catch up with our docket in two or three years," Letter from William Howard Taft to Horace Taft (Mar. 1, 1925) (Taft Papers, Reel 272); see also Letter from William Howard Taft to William D. Mitchell (Aug. 12, 1927) (Taft Papers, Reel 293) ("[There is] basis for real hope that the new law of February 13th, 1925, will enable us, in the course of the next two years, to catch up and dispose of business at the term at which it has been initiated in the court. This would be a great achievement."). A second line of argument Taft advanced in support of the bill was that augmenting discretionary jurisdiction would enable the Court to concentrate on cases of truly national importance. See Letter from William Howard Taft to Robert A. Taft (Mar. 1, 1925) (Taft Papers, Reel 272) ("[The Act] will not reduce the work we have to do, but it will enable us to catch up with the docket and to give more attention to important cases."); Letter from William Howard Taft to Justice James Clark McReynolds (Jan. 29, 1924) (Taft Papers, Reel 260) (advising McReynolds, in his testimony before the Senate in favor the of the Act, "to present a table . . . showing that we are not catching up with the docket . . . I observe that the cases that we are now hearing on the regular docket are about twelve months and a half behind - that is, they were filed nearly thirteen months ago. I think emphasis might be put upon the unimportant character of the cases we get from the Court of Claims."); Colgate v. United States, 280 U.S. 43, 49 (1929); Sun Ship Bldg. Co. v. United States, 271 U.S. 96, 99 (1926).
40. HANKIN & HANKIN, supra note 3, at 2.
41. The dramatic effect on the Court's backlog is visible in Figure A. (Figures identified by letter may be found in the Appendix.)
42. See, e.g., R.E.L. Saner, Governmental Review, 10 A.B.A. J. 537, 542 (1924) ("It now takes from fifteen to eighteen months after a case is docketed before it can be heard . . . ."); Letter from Taft to Stanley, supra note 27 ("We are now a year and three months behind."); Letter from William Howard Taft to Honorable Marcus Kavanagh (Dec. 14, 1924) (Taft Papers, Reel 270) ("We are a year and three months behind and likely to grow still further into arrears unless this bill passes.");
43. GREGORY HANKIN & CHARLOTTE A. HANKIN, UNITED STATES SUPREME COURT 1928-1929, at 2, 3 n.2 (1929) ("Since the enactment of the Jurisdictional Act, the Court has made great strides in clearing its docket. . . . During the [1928 Term] the average time which elapsed between the filing of the last ten cases and their arguments was about four and a half months.");
44. Willis Van Devanter, The Supreme Court of the United States, 5 IND. L.J. 553, 560 (1930) ("[T]he Court is now more nearly current [by reason of the 1925 Act] than it has been at any time in many years. Without advancement cases are now reached for argument within about six months after they are docketed.");
45. Vinson Tells A.B.A. of Supreme Court Work; Opinion on Dissents, 29 OKLA. ST. B.J. 1269, 1269 (1949) ("The days before passage of the 1925 Act, when it took eighteen to twenty-four months for the Court to reach a case on its docket, are forgotten, and it is assumed by everyone, as it should be, that the Supreme Court is current in its work. The Court will soon have been operating under its basic jurisdictional statute for a quarter of a century, and experience has eloquently proved the wisdom of its architects.").
46. Transcript of Speech of William Howard Taft before the ALI (May 1929) (Taft Papers, Reel 590). The transcript of the speech records that Taft's remarks were met with "[a]pplause." Id.
47. See Figure A.
48. Act of Sept. 6, 1916, ch. 448, sec. 2, § 237, 39 Stat. 726, 726-27 (1916). An important effect of the Act was to establish that the Court's appellate jurisdiction over cases arising under Federal Employers' Liability Act could be invoked only by way of the discretionary writ of certiorari. See FRANKFURTER & LANDIS, supra note 22, at 210-15. For a good discussion of the obscure provisions of the 1916 Act, see Hartnett, supra note 24, at 1657-60.
49. Of the 1,554 full opinions decided by the Taft Court during the 1921-1928 Terms, see infra note 51, only 33 came from cases that the Court decided by virtue of its original jurisdiction, as distinct from its appellate jurisdiction. In the 1921-1924 Terms, 71% of the Court's opinions were written in cases that had come to the Court through its mandatory jurisdiction (24% of its opinions were written in cases that had come to the Court through the discretionary writ of certiorari). In the 1925-1928 Terms, 53% of the Court's opinions were written in cases that had come to the Court through its mandatory jurisdiction (44% of its opinions were written in cases that had come to the Court through the discretionary writ of certiorari).
50. The exact progression can be seen in Figure 1.
51. For the relevant figures, see 68 U.S.L.W. 3069 (July 20, 1999). The Court wrote full opinions in about 3.5% of the paid appellate cases on which it acted.
52. The data for the 1930-1992 Terms are from LEE EPSTEIN ET AL., THE SUPREME COURT COMPENDIUM: DATA, DECISIONS AND DEVELOPMENTS 84-85 (2d ed. 1996). Figure 2 strongly suggests that the 1925 Act was associated with a slide in the absolute number of opinions written by the Court.
53. See, e.g., Charles W. Collier, The Use and Abuse of Humanistic Theory in Law: Reexamining the Assumptions of Interdisciplinary Legal Scholarship, 41 DUKE L.J. 192, 228-32 (1991).
54. Lewis Powell, What the Justices are Saying . . . , Address Before the American Bar Association (Nov. 1976), in 62 A.B.A. J. 1454, 1454 (1976).
55. For a history of Supreme Court law clerks, see Chester A. Newland, Personal Assistants to Supreme Court Justices: The Law Clerks, 40 ORE. L. REV. 299 (1961). During the Taft Court, only Justices Holmes, Brandeis, and Stone consistently hired recently graduated law students as clerks. During the 1924-1928 Terms, Taft also hired recently graduated law students as clerks, but because of his failing health he reverted to a professional clerk during the 1929 Term.
56. (For the 1929 Term Taft hired Reynolds Robertson, author of Practice and Procedure in the Supreme Court of the United States (1928), who later continued on as a clerk for Charles Evans Hughes). For a description of how Taft used his law clerk,
57. see John T. Suter, Taft Speaks of Roosevelt Without Sign of Emotion, ALBANY EVENING NEWS (July 6, 1927) (Taft Papers, Reel 293), which quotes Taft as saying, I have a law clerk who goes over the records and the briefs. He makes a statement for me of what is in each, and then with that statement before me I read the briefs and make such references to the records as seem necessary. But I always read the briefs so as to know what the claim on both sides is and then I read the opinions of the courts below so I become familiar with the case, and know what the issues are. On selecting his first young recent graduate as a law clerk, Taft wrote Dean Thomas W. Swan of the Yale Law School, "It isn't exactly mental brilliancy that I need. What I need is plodding, thoroughness and somewhat meticulous attention to details in the matter of jurisdiction." Letter from William Howard Taft to Thomas W. Swan (May 30, 1924) (Taft Papers, Reel 265). On Taft's description of the work, see Letter from William Howard Taft to Thomas W. Swan (May 17, 1924) (Taft Papers, Reel 264). Taft explained, The work which I would expect him to do would be to prepare for me a succinct statement of the briefs and record in every application for a certiorari, and to prepare, under my direction of course, the per curiams, which include nothing but references to authorities upon which the case is disposed of. There will be of course other things I shall need him for in the running down of a list of authorities and the finding of authorities where the briefs are insufficient in this regard. Then I would wish him to correct the proofs of my opinions and to keep track of my docket and keep it up to date. Id.
58. Taft suffered a stroke and essentially ceased to participate in the workings of the Court in January 1930; he resigned on February 3, 1930. In statistically analyzing the Taft Court, therefore, I have considered only the 1921-1928 Terms.
59. See Figure 3. This difference is statistically significant at the .01 level. Figure 3 suggests that the length of Taft Court opinions was not aberrant; during the 1912-1920 Terms full opinions averaged 6.89 pages. The contrast in opinion length between the Taft Court and the modern Court remains striking, although slightly diminished, even if one considers only unanimous opinions. See Figure B. For a study of historical changes in the page lengths of court opinions, see Lawrence M. Friedman et al., State Supreme Courts: A Century of Style and Citation, 33 STAN. L. REV. 773, 775-85 (1981), which finds that the average length of state supreme court opinions increased from 3.99 pages in the decade of the 1870s to 6.02 in the decade of the 1960s. Id. at 780. The average length in the period from 1915-1925 was 4.73. Id.
60. See Figure 4. This difference is statistically significant at the .01 level. During the 1912-1920 Terms, the Court averaged 63.7 days from the argument of a case to the announcement of full opinion. On the one hand, this distinction between the modern Court and its predecessors is surprising, because during the 1920s the Court would regularly hold over cases, not announcing a decision until one or more terms after argument. During the Taft Court the most striking instance of this was McGrain v. Daugherty, 273 U.S. 135 (1927), which was a Van Devanter opinion argued on December 5, 1924, but not announced until January 17, 1927. On the other hand, Figure C indicates that during the 1993-1998 Terms the contemporary Court decided unanimous opinions almost as quickly as did the Taft Court. The contemporary Court averaged 61.8 days between oral argument and the announcement of an opinion, whereas the Taft Court averaged 55.1 days. Although this difference is statistically significant at the .02 level, the absence of unanimity nevertheless explains a good deal about the relative delay in the modern Court's announcement of opinions.
61. This difference is statistically significant at the .01 level. For purposes of this Lecture, I define a unanimous opinion as one joined by all Justices participating in the decision, without any dissenting or concurring votes, statements, or opinions.
62. ABA Canons of Judicial Ethics, Canon 19 (1924),
63. in LISA L. MILORD, THE DEVELOPMENT OF THE ABA JUDICIAL CODE 137 (1992). Taft was Chair of the committee that drafted the 1924 Canons. Before his appointment to the Court, Justice Sutherland was also a member of the committee. Canon 19 was dropped from the ABA's revised Code of Judicial Conduct in 1972.
64. See Walter P. Armstrong, Jr., The Code of Judicial Conduct, 26 SW. L.J. 708, 713-14 & n.44 (1972).
65. The Reporter explained that "[t]he Committee rejected the detailed discussion of judicial opinions, philosophy of law, and judicial idiosyncrasies and inconsistencies in old Canons 19, 20, and 21 as being neither helpful nor, for the most part, matters of ethical conduct." E. WAYNE THODE, REPORTER'S NOTES TO CODE OF JUDICIAL CONDUCT 50 (1973).
66. Letter from Edward Sanford to William Howard Taft (Sept. 8, 1925) (Taft Papers, Reel 276).
67. 268 U.S. 276 (1925).
68. Stone Papers.
69. 268 U.S. 552 (1925).
70. Stone Papers (emphasis in original).
71. Letter from Harlan Stone to William Howard Taft (Apr. 8, 1925) (Taft Papers, Reel 273).
72. 268 U.S. 111 (1925).
73. Hankin, supra note 29.
74. Id.
75. A study of state supreme courts found that "[b]etween 1940 and 1970, the supreme courts with high discretion wrote fewer opinions than the other courts. Their opinions tended to be longer and to cite more cases. They also reversed lower court decisions more often. Their opinions contained more dissents and concurrences." Robert Kagan et al., The Evolution of State Supreme Courts, 76 MICH. L. REV. 961, 999 (1978). In the 1921-1928 Terms, 57% of all opinions in cases reaching the Supreme Court by way of its mandatory jurisdiction affirmed the decision below (27% reversed), whereas only 37% of the Court's opinions in cases reaching the Court by way of discretionary certiorari jurisdiction affirmed the decision below (56% reversed).
76. Letter from John Hessin Clarke to Woodrow Wilson (Sept. 9, 1922) (Wilson Papers, Reel 122). See John H. Clarke, Carrying the Case to the United States Supreme Court, 56 AM. L. REV. 283, 284 (1922). In 1924 Justice Sutherland, testifying before the Senate in support of the 1925 Act, observed that "a very large proportion of the cases that come" to the Supreme Court "ought never to be there at all."
77. Procedure in Federal Courts: Hearings on S. 2060 and S. 2061 Before the Subcomm. of the Senate Comm. on the Judiciary, 68th Cong. 47 (1924);
78. see also Jurisdiction of Circuit Courts of Appeals and of the Supreme Court of the United States, Hearings on H.R. 8206 Before the House Comm. on the Judiciary, 68th Cong. 25 (1924) (Remarks of Justice Sutherland, noting that the Court was burdened by "a large number of trifling cases"). Nevertheless, Clarke's dark appraisal of the Court's work should be taken within the context of the depression from which he was suffering at the time of his retirement. His sister, to whom he had been very close, died in March 1922, throwing Clarke into a deep gloom from which he found it impossible to recover. See, e.g., Letter from John H. Clarke to William Howard Taft (Mar. 7, 1922) (Taft Papers, Reel 239) ("I am passing through an experience so crushing that it seems, for me, just now, the end of all earthly interests. My sister was both a sister and a brother to me all through life."); Letter from John H. Clarke to Willis Van Devanter (Mar. 7, 1922) (Van Devanter Papers); Letter from John H. Clarke to Willis Van Devanter (July 13, 1922) (Van Devanter Papers) ("The truth is, my dear friend, my situation is quite paralyzing me. I mean I find myself without initiative or desire to go anywhere or to do anything, - all interest in life has so gone out of me."); Letter from John H. Clarke to Willis Van Devanter (Aug. 23, 1922) (Van Devanter Papers) ("I have definitely decided to resign my office as of Sept 18 when I shall be 65 years old. . . . In the confidence of your friendship I may add that the death of my sisters has taken all interest out of life for me and I see no reason for going forward doing work which for the most part has become irksome in the extreme to me."). To his brother Horace, Taft summarized Clarke's retirement this way: Clarke's retirement is not altogether unexpected to me. He has been talking about it for a year. He lost two sisters in two years and he is now alone in the world so far as near relatives are concerned. He has always been very much interested in arbitration and machinery for peace between nations. He is much more of an orator than he is a lawyer. He has certain set notions against corporations and in favor of labor unions, which make him decide many cases before he hears them. Although he and Clarke often agreed, Holmes often commented to me on that feature of his judicial decisions. Clarke is a good fellow and I like him. He is a manly, generous, courageous man. The Court has not been a pleasant place for him because of the insulting and overbearing and contemptuous attitude of McReynolds toward him, because Clarke seemed to side rather with Brandeis than with McReynolds, who was Attorney General when Clarke was appointed, and who seemed to think therefore that Clarke ought to follow his leadership. Clarke is the wealthiest man on the Court and quite able to retire. I think he has had something near melancholia because of the death of his sister, who was a physician and a very public-spirited woman in Youngstown. I think the work of the Court, too, has not been agreeable to him, although he has done it promptly. He much prefers the platform, and it will be difficult for him to avoid drifting into politics. Letter from William Howard Taft to Horace Taft (Sept. 7, 1922) (Taft Papers, Reel 245).
79. Letter from John H. Clarke to Woodrow Wilson, supra note 66.
80. Id.
81. Holmes was born in 1841.
82. If only unanimous opinions are considered, the average time between argument and delivery for Holmes's opinions was 26.1 days.
83. If only unanimous opinions are considered, Holmes's opinions during this period averaged 3.3 pages in length.
84. "Writing opinions is as easy as ever." Letter from Oliver Wendell Holmes to Baroness Moncheur (Jan. 27, 1928) (Holmes Papers, Reel 27, Frame 216).
85. Holmes wrote to Frankfurter that in composing opinions he did not "search for epigrams," because "I write too rapidly to stop for phrases." Letter from Oliver Wendell Holmes to Felix Frankfurter (Mar. 21, 1924), in HOLMES AND FRANKFURTER: THEIR CORRESPONDENCE, 1912-1934, at 171 (Robert M. Mennel & Christine L. Compston eds., 1996). (On the other hand, Holmes also stressed to Frankfurter the power of "phrases - they put water under the boat and float over dangerous obstacles." Letter from Oliver Wendell Holmes to Felix Frankfurter (May 26, 1928),
86. in HOLMES AND FRANKFURTER, supra, at 228.) Taft once thanked Holmes "for the dispatch and the admirable quality" of his opinions, adding plaintively, "When I read them, I marvel. They read so well and so easily and I ask why can't I, but I can't." Letter from William Howard Taft to Oliver Wendell Holmes (n.d.) (Holmes Papers, Reel 38, Frame 345).
87. The Brandeis-Frankfurter Conversations, 1985 SUP. CT. REV. 299, 311 (Melvin I. Urofsky ed., 1985) [hereinafter Brandeis-Frankfurter Conversations]. Holmes was a prolific author of opinions. Of the 1554 full opinions announced by the Taft Court in the 1921-1928 Terms, he wrote 205. He was the second-most productive Justice of all those who served throughout these eight Terms. Despite his onerous duties as Chief Justice, Taft wrote an astonishing 249 opinions. Brandeis authored 193 opinions, McReynolds 172, and Van Devanter only 94.
88. Letter from Oliver Wendell Holmes to Felix Frankfurter (Dec. 19, 1915), in HOLMES AND FRANKFURTER, supra note 73, at 40.
89. Letter from Oliver Wendell Holmes to Harlan Stone (Aug. 7, 1926) (Stone Papers). Holmes remarked that "I should say generally . . . that I assume that I am writing for those skilled in the art and that long-winded developments of the obvious seem to me as out of place in an opinion as elsewhere." Letter from Oliver Wendell Holmes to Felix Frankfurter (July 2, 1925), in HOLMES AND FRANKFURTER, supra note 73, at 186.
90. Letter from Oliver Wendell Holmes to Felix Frankfurter (June 14, 1925), in HOLMES AND FRANKFURTER, supra note 73, at 184.
91. Letter from Oliver Wendell Holmes to Sir Frederick Pollock (Feb. 6, 1926), 2 HOLMES-POLLOCK LETTERS: THE CORRESPONDENCE OF MR. JUSTICE HOLMES AND SIR FREDERICK POLLOCK 1874-1932, at 175 (Mark DeWolfe Howe ed., 1941).
92. Letter from Harold J. Laski to Oliver Wendell Holmes (Mar. 12, 1923) in 1 HOLMES-LASKI LETTERS: THE CORRESPONDENCE OF MR. JUSTICE HOLMES AND HAROLD J. LASKI 486 (Mark DeWolfe Howe ed., 1953) [hereinafter HOLMES-LASKI LETTERS] ("The general function of committees is to take the personality out of discourse. I dare say it has been just as well to have McKenna, Day and others cut out some of my exuberances from opinions of the Court.").
93. Letter from Oliver Wendell Holmes to Felix Frankfurter (Oct. 24, 1920), in HOLMES AND FRANKFURTER, supra note 73, at 95; see also Letter Addressed to "My Dear Friend" (Dec. 24, 1920) (Holmes Papers, Reel 26, Frame 625) ("[T]he opinions that would otherwise have gone last Monday were hung up for others to write dissents and those that then fired have been more or less castrated, though not, I hope, quite deprived of their powers. It is rather an irritation to have pungent phrases cut out, but that makes for safety no doubt, and what one cares for sooner or later one gets a chance to say.") Holmes said that his "pleasure in writing" dissents was "that you can say just what you think, and don't have to cut out phrases to suit the squeams of your brethren." Letter from Oliver Wendell Holmes to Mrs. John Chipman Gray (May 5, 1928) (Holmes Papers, Reel 24, Frame 228). Taft complained that Holmes "has more interest in, and gives more attention to, his dissents than he does to the opinions he writes for the Court, which are very short and not very helpful." Letter from William Howard Taft to Henry L. Stimson (May 18, 1928) (Taft Papers, Reel 302).
94. The image of "song," for example, frequently recurs. See Letter Addressed to "My Dear Friend" (Mar. 29, 1926) (Holmes Papers, Reel 27, Frame 47) ("As I said before I think style is largely a matter of the ear. The cadences, and with some masters the undersong not always detected at first, get you without much regard to the meaning."); Letter from Oliver Wendell Holmes to Harold J. Laski (Dec. 6, 1921), in 1 HOLMES-LASKI LETTERS, infra note 82, at 709 ("I again realize that sound is the half of immortality. The song of Shakespeare's words counts, I think, as much as their meaning to keep them remembered.");
95. see also Letter from Oliver Wendell Holmes to Harold J. Laski (Jan. 13, 1923), in 1 HOLMES-LASKI LETTERS, infra note 82, at 474;
96. Letter from Oliver Wendell Holmes to Harold J. Laski (Mar. 1, 1923), in 1 HOLMES-LASKI LETTERS, infra note 82, at 486.
97. Sometimes, however, Holmes used the metaphor of the dance to describe his opinion writing process. See, e.g., Letter from Oliver Wendell Holmes to Felix Frankfurter (Dec. 6, 1921), in HOLMES & FRANKFURTER, supra note 73, at 132 ("Pouf - the sword dance is danced and I think I have kept off the blades in a case just sent to the printer."). In contrast to Holmes, Taft believed that he lacked "graceful literary style," so that "when I can write an opinion that is sound and convincing, I am happy, but beyond that I feel as if I were denied the gratification of authorship." Letter from William Howard Taft to Horace D. Taft (Dec. 14, 1926) (Taft Papers, Reel 287).
98. "I don't read what I have been obliged to put into print from time to time with any degree of real satisfaction." Id. 82. Letter from Oliver Wendell Holmes to Harold J. Laski (Nov. 21, 1924), in HOLMES-LASKI LETTERS, supra note 79, at 675. Holmes wrote to Brandeis in response to the draft opinion of United States v. Abilene & Southern Railway Co., 265 U.S. 274 (1924), "Another solid piece of work handsomely done. Though I never shall believe in footnotes in an opinion." Brandeis Papers;
99. see also Letter from Oliver Wendell Holmes to Harold J. Laski (June 16, 1928), in 2 HOLMES-LASKI LETTERS at 1066 ("I don't recognize the criticism on McReynolds for notes - that is Brandeis's specialité - which I criticised to him at the beginning, but which he sticks to and which certainly enables him to put in a lot of facts that no one but he could accumulate and which overawe me, even if I doubt the form."). Brandeis himself said to Frankfurter that Holmes "does not wholly reconcile himself to my footnotes."
100. Brandeis-Frankfurter Conversations, supra note 74, at 335. In the 205 opinions Holmes authored in the 1921 through 1928 Terms, he himself used only a single footnote. See Heyer v. Duplicator Mfg. Co., 263 U.S. 100, 100 n.1 (1923). By contrast, in the 193 opinions that Brandeis authored during those eight Terms, he averaged 2.99 footnotes per opinion. As whole, during its eight complete Terms the Taft Court averaged one footnote for every majority opinion. During the 1998 Term, by contrast, the Court's use of footnotes had increased almost sevenfold, so that the Court averaged 6.91 footnotes per majority opinion. See Figures D and E. Footnotes in modern opinions tend to be substantive and argumentative; by contrast, footnotes during the Taft Court era tended to consist of citations to authority.
101. Note from Oliver Wendell Holmes to Edward Sanford (Jan. 1, 1925) (Holmes Papers, Reel 38, Frame 405). Surprisingly, Sanford used more footnotes in his majority opinions than any other Justice on the Taft Court, averaging 3.41 footnotes per opinion. See Figure D. Holmes, however, was not the only Justice who objected to the prolific use of footnotes in opinions. In the case of Hudson v. United States, 272 U.S. 451 (1926), for example, Stone conducted original research into the origins and effects of the plea of nolo contendere, writing to Professors Joseph Beale (Harvard), Frederick Hicks (Columbia), and G.E. Woodbine (Yale), asking for help in translating Yearbook entries. He reproduced his research in the form of a long footnote. In a letter to the Court accompanying his draft opinion, Stone wrote, Owing to the unusual character of the case the result of related researches on the subject was incorporated in a long note on page 4, which I think has some utility, as the material cannot be found elsewhere in convenient form. The opinion, however, could proceed to its conclusion without the note and I have no objection to cutting it out if the Brethren feel that that should be done in the interest of brevity. Stone Papers. Butler responded that "I think I would prefer to have the note eliminated." Sutherland replied that "I was disposed to think the note should be omitted, but I leave it to you." Sanford observed that "I think the matter of including the note in p 4 is a matter of your personal choice. My own personal thought would be that as this note is not limited to question in hand - as the provision of historical notes - but is rather a collection of authorities in a cognate subject - although valuable it does not add to the opinion as an opinion." Van Devanter stated that "[personally I would omit note but leave that to you. Three out of four judges will think the court is adopting what is said in notes." He then wrote an additional memorandum to Stone, commenting, In your nolo contendere case please consider whether the long note (possibly more than one) ought to be omitted - whether it encourages an inadmissible use of notes. I thought of it when reading the opinion, but preferred to make no suggestion. Since then two of our brothers who were speaking of opinions in a general way referred to the use of notes and mentioned that opinion as going beyond what they thought proper in that regard. I merely suggest that you consider it and then do as you think best. As I recall the opinion the long note adds nothing to it. Stone Papers. Stone eventually omitted the note from the published version of his opinion. Throughout his time on the Taft Court, he remained cautious in his use of footnotes, averaging only .58 footnotes per majority opinion. See Figure D. But he no doubt carried the memory of this exchange with him some twelve years later, when he wrote footnote four of his Carolene Products decision. See United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938). For a discussion of that footnote, see J.M. Balkin, The Footnote, 83 NW. U. L. REV. 275 (1989).
102. "I am conscious of shrinking from facts - which Brandeis devours - but I shouldn't mind a speculative twister. Perhaps I will look one up - meantime I have had keen intellectual pleasure in writing opinions. Each one has had a kernel of interest. All cases do." Letter from Oliver Wendell Holmes to Mrs. John Chipman Gray (Dec. 12, 1925) (Holmes Papers, Reel 24, Frame 88); see also Letter from Oliver Wendell Holmes to Mrs. John Chipman Gray (Oct. 29, 1930) (Holmes Papers, Reel 24, Frame 391) ("I suffer as I think I always have, when a case of any complication is presented, by being in a hopeless muddle during at least the earlier part of the argument and sometimes clear through it, but after a while in one way or another it clears up and becomes merely a question of law like any other.").
103. Letter from Oliver Wendell Holmes to Felix Frankfurter (Mar. 21, 1924), in HOLMES & FRANKFURTER, supra note 73, at 170.
104. He certainly did not conceive opinions as "theoretically spoken." In oral expression Van Devanter was said to be "fluent, precise and uninhibited." Pearson & Allen, supra note 16, at 187 ("In the Court's secret deliberations none of his colleagues excel him in clarity or succinctness of expression. Even Justice Brandeis . . . once remarked that if a stenographer could be present to take down Van Devanter's words, the Court would get as able an opinion as any he takes six months to write. But when Van Devanter sits down to put his thoughts on paper he goes through weeks of mental torture. He writes and rewrites. In the end he turns out an able opinion, couched in readable literary style - but the birth pangs are prolonged and prodigious."). See Harlan Fiske Stone, Associate Justice Van Devanter: An Appraisal, 28 A.B.A. J. 458, 459 (1942) ("At the conference table he was a tower of strength. When his turn came to present his views of the case in hand, no point was overlooked, no promising possibility left unexplored. His statements were characteristically lucid and complete, the manifest expression of a judgment exercised with unswerving independence. Often his expositions would have served worthily, both in point of form and substance, as the Court's opinion in the case."); Letter from William Howard Taft to Robert A. Taft (Mar. 17, 1929) (Taft Papers, Reel 309) ("While at Conference [Van Devanter] can deliver a conclusion that could be put by stenographic announcement right into an opinion.");
105. THE AUTOBIOGRAPHICAL NOTES OF CHARLES EVANS HUGHES 171 (David J. Danelski & Joseph S. Tulchin eds., 1973) ("[H]is careful and elaborate statements in conference, with his accurate review of authorities, were of the greatest value. If these statements had been taken down stenographically they would have served with but little editing as excellent opinions."). But Van Devanter balked at reducing his speech to writing, because "he never gets done looking over the various features that he would like to consider." Letter from William Howard Taft to Robert A. Taft, supra. If the Taft Court as a whole averaged 60 days between the argument of a case and its decision by written opinion, Van Devanter took an average of 141.4 days after argument to publish his opinions. See Figure 9. Several times Taft was forced tactfully to reassign to other Justices cases originally given to Van Devanter so that they could be decided within a reasonable period of time.
106. Letter from Willis Van Devanter to John H. Clarke (June 9, 1928) (Van Devanter Papers).
107. Letter from Willis Van Devanter to John C. Pollock (June 7, 1921) (Van Devanter Papers). At the time Van Devanter believed that he had a chance to be named as Chief Justice to succeed Edward White. He had written to Pollock, a federal district judge, Confidentially, Justices McKenna, Day, McReynolds and Clarke have said to me that they would be glad to see me appointed, but I realize that an expression of their views may not be solicited and cannot with propriety be given unless solicited. Senator Kellogg has volunteered to me the statement that he intends to recommend me and to recommend that ex-Senator George Sutherland be named in my place. ExSenator Bailey seems to think I will be the man, and others have volunteered a friendly interest, but I am neither saying nor doing anything nor permitting any of these statements to bring me any sense of elation or to change the currents of my mind. Letter from Willis Van Devanter to John C. Pollock (May 26, 1921) (Van Devanter Papers). In the passage quoted in text, Van Devanter recounts his virtues to Pollock. The passage continues, People outside do not know this and in the nature of things would not be supposed to know. Again, comment on it, save by someone inside, might arouse resentment where a kindly feeling now exists. The only thing for me to do is to take my usual vacation and let come what will. Letter from Willis Van Devanter to John C. Pollock (June 7, 1921), supra.
108. 279 U.S. 73 (1929). The case involved the very important question of whether the ICC could increase the amount of compensation that railroads received for carrying the mail from the date of their filing an application for an increase.
109. Letter from Pierce Butler to Willis Van Devanter, (Mar. 6, 1929) (Van Devanter Papers). Butler continues, "But, under the circumstances, it seems to me best to let it be circulated as it is. G.S. & E.T.S. will not decline, I suspect. If vigorous dissent comes, it may be necessary to have the opinion properly expanded." In the end, there was no dissent. McReynolds, however, responded to Holmes's draft opinion with the tart observation, "If you did not have the votes, this would be wrong." Holmes Papers. Brandeis, tweaking Holmes's noted positivism, wrote, "I am glad you found it possible to yield to your desire to do justice - I acquiesce." Id. Taft joined in Brandeis's teasing: "I shall concur in this conclusion because the result is just though I could not find that the language of the act justified it. I am glad it will prevail." Id. For an earlier example of Taft's friendly jabs at Holmes's positivism, see his response to Holmes's opinion in Forbes Pioneer Boat Line v. Board of Commissioners, 258 U.S. 338 (1922): "I marvel at your bringing in a 'sense of justice.'" Holmes Papers. The following Term, Holmes retorted by commenting on Taft's draft opinion in Freund v. United States, 260 U.S. 60 (1922), "This sounds to me like the voice from the burning bush - and though it effects Justice, a ticklish thing, I rejoice at it." Taft Papers, Reel 614.
110. Letter from William Howard Taft to Charles P. Taft, 2nd (Nov. 1, 1925) (Taft Papers, Reel 277). See Letter from William Howard Taft to Clyde B. Aitchison (Dec. 4, 1925) (Taft Papers, Reel 278). I am afraid I can not guide you in the matter of judicial style. I have great difficulty myself in the matter. . . . Clarity and as much brevity as is consistent with making the case and question you are deciding understood are usually what are needed, though it is hard often to reconcile the two as objects. The more one sits where I sit, the more he realizes the need of opinions for reviewing courts to aid them to consider the cases which come before them in the same atmosphere in which they were presented and heard below. . . . Our Court used to write very long opinions - too long. But I am convinced that some of our members in their zeal to shorten what they say are not as helpful as they should be to the Bar and the Public. Our chief function in our Court is not go get rid of cases, it is to clarify the law and to be helpful in other cases. It is not a discharge of that function to be cryptical and leave the reader still guessing. Id. Taft himself confessed "to a tendency to length that I try to restrain," noting that "Judge Holmes and Judge McReynolds are very, very short." Letter from William Howard Taft to Charles P. Taft, 2nd (Nov. 1, 1925) (Taft Papers, Reel 277). See Letter of William Howard Taft to Horace Taft (Oct. 5, 1925) (Taft Papers, Reel 276) ("I have [an] important opinion still in the stocks. It is hard for me to compress it and to get it into proper shape. The strategy of framing an opinion is as difficult as anything about the work."). For all his objections, Taft nevertheless admired Holmes's power of concision, writing Holmes that "I envy your power of succinct statement." Holmes Papers (referring to North Dakota ex rel. Lemke v. Chicago & N.W.R. Co., 257 U.S. 485 (1922); see also Holmes Papers (referring to Duckett & Co. v. United States, 266 U.S. 149 (1924): "I regard your power in these taking cases to concentrate on the point in a few words with admiration and awe.").
111. Brandeis-Frankfurter Conversations, supra note 74, at 335-36. The "[t]ruth of [the] matter," Brandeis told Frankfurter, is that Holmes "takes joy in the trick of working out what he calls 'a form of words' in which to express desired result. He occasionally says, 'I think I can find a form of words,' to which I reply, 'of course you can, you can find a form of words for anything.'" Id. at 334;
112. see also Letter from Louis D. Brandeis to Felix Frankfurter (Jan. 29, 1929), in HALF BROTHER, HALF SON: THE LETTERS OF LOUIS D. BRANDEIS TO FELIX FRANKFURTER 356 (Melvin I. Urofsky & David W. Levy eds., 1991) [hereinafter BRANDEIS-FRANKFURTER LETTERS] ("[Holmes] has had quite a number of unimportant cases, but I think it also an element that he minimizes the importance of those he gets. Of course, his determination to finish the job on the Sunday following the assignment leads to this.").
113. 257 U.S. 602 (1922).
114. Memorandum from Joseph McKenna to William Howard Taft (Feb. 7, 1922) (Taft Papers, Reel 239). Eventually Taft took over the opinion and wrote it himself. Although in his Memorandum to Taft McKenna had strongly defended his view of the case, he did not dissent from Taft's opinion. Taft wrote his brother Horace, The worst and most embarrassing member [of the Court] . . . is the oldest member, McKenna. I don't know what course to take with respect to him, or what cases to assign to him. In case after case assigned to him he will write an opinion, and bring it into conference, and it will meet objection because he has missed a point in one case, or, as in one instance, he wrote an opinion deciding the case one way when there had been a unanimous vote the other, including his own. He wrote an opinion in an Oklahoma case that we let get through the other day, [Okla. Natural Gas Co. v. Oklahoma, 258 U.S. 234 (1922)] which brought a petition for rehearing that is most humiliating to the Court, and I think we shall have to grant it. I had to take back a case from him last Saturday because he would not write it in accordance with the vote of the Court on the right ground, and have taken it over to myself. . . . The difficulty is of course that McKenna's vote may change the judgment of the Court on important issues, and it is too bad to have a mind like that decide when it is not able to grasp the point, or give a wise and deliberate consideration of it. Letter from William Howard Taft to Horace Taft (Apr. 17, 1922) (Taft Papers, Reel 241). Taft labeled McKenna "a Cubist on the Bench," adding that "Cubists are not safe on the Bench." Letter from William Howard Taft to Mrs. Frederick J. Manning (June 11, 1923) (Taft Papers, Reel 254). Brandeis said of McKenna, [The] only way of dealing with him is to appoint guardians . . . . The Chief & Van D. are his guardians - McReynolds tries to handle him but does it badly. He knows he (McK) doesn't count, his suggestions are [not] taken, so every once in a while he sends up a balloon just to show that he is there. . . . His opinions are often suppressed - they are held up & held up & gets mad & throws up the opinion and it's given to someone else. Brandeis-Frankfurter Conversations, supra note 74, at 326-27. Eventually the Court decided to have Taft convince McKenna to retire.
115. The incident is movingly recounted in a memorandum by Taft that is reproduced in Walter F. Murphy & C. Herman Pritchett, COURTS, JUDGES, AND POLITICS: AN INTRODUCTION TO THE JUDICIAL PROCESS 217-19 (2d ed. 1974).
116. Letter from William Howard Taft to Charles P. Taft, 2nd (May 12, 1929) (Taft Papers, Reel 311).
117. So, for example, in December of 1928 Taft had objected to a statement in Stone's draft opinion in United Fuel Gas Co. v. Railroad Commission, 278 U.S. 300 (1929), because "[h]e does not seem to be able to get it from our cases except Brandeis's dissenting opinion and wants to get [it] into an opinion of the Court. 'Heraus mit it.'" Letter from William Howard Taft to Willis Van Devanter (Dec. 28, 1928) (Van Devanter Papers).
118. 279 U.S. 708 (1929).
119. Stone Papers.
120. 272 U.S. 465 (1926).
121. Stone Papers.
122. Van Oster concerned the constitutionality of a Kansas law authorizing the forfeiture of an automobile used in the transportation of intoxicating liquor, even as against an innocent owner. The paragraph, which Stone ultimately omitted, said, Such a law as we are now considering may be regarded harsh and unwise, but we are concerned not with its wisdom but with the power of the legislature to enact it. Where as here the challenged statute is within the sphere of legislative power and the particular legal device chosen to make effective the exercise of the power is consonant with recognized principles, the objection that it is harsh and oppressive must be addressed to the legislative and not to the judicial branch of the government. . . . Conduct itself innocuous
123. We shouldn't discount the possibility that these records are not representative. We have more or less complete case records only for Justices Holmes, Brandeis, and Stone, and very fragmentary case records for Taft.
124. In June of 1927 Taft reported to Moses Strauss, the managing editor of the Cincinnati Times-Star, We have been comparing notes in the Court over the work we do in reaching our decisions and preparing our opinions. It is thorough to the last degree, and the contrast between the rough and ready method by which state courts and some of the lower Federal courts decide their cases is very great. The amount of deliberation that we give to them, the care with which we prepare the opinions and send them about for every Judge to make himself familiar with the opinion as it is to be pronounced, and the freedom with which we criticise the opinions, all are an insurance against mistakes that so far as I know no other Court has; and yet even in spite of that we make mistakes and errors, but as far as we can exercise care, we do it. Letter from William Howard Taft to Moses Strauss (June 5, 1927) (Taft Papers, Reel 292). Four months later Taft wrote his son on the same theme: I sometimes feel that in discussing argued and submitted cases we are too much hurried because of the certioraris, but the process of discussion through which we go before and after the opinion is written, with the opinion of the opinion writer, saves us, so that I still maintain that there is no Court in this country, and I don't know whether there is a Court anywhere, that gives more careful attention to the cases we decide than we do. But it is at the cost of arduous and continuous labor. Letter from William Howard Taft to Charles P. Taft, 2nd (Oct. 23, 1927) (Taft Papers, Reel 296).
125. 270 U.S. 378 (1926).
126. Stone Papers (emphasis added).
127. Id. (emphasis added).
128. 277 U.S. 27 (1928).
129. Holmes Papers.
130. He wrote to Frankfurter, In conference today I have a decision on a point not open to doubt, which a few remarks extended to a page and a half. My brethren express doubt on what I thought obvious - and will cut it down to a page - to which I have no objection. It is like Franklin's "John Thompson Hatter makes and sells hats" with a picture - which his friends by successive eliminations cut down to his name and the picture . . . . HOLMES & FRANKFURTER, supra note 73, at 226.
131. 266 U.S. 34 (1924).
132. Brandeis Papers.
133. Taft responded to Brandeis, "I am inclined to go with you because I don't know where else to go." Van Devanter, Sanford, and Butler all suggested changes to the opinion that Brandeis subsequently made. Although it was quite unusual for Brandeis to accept revisions suggested by Sanford, he frequently accepted the proposed changes of Van Devanter. For typical examples, see Brandeis's draft opinions in West v. Standard Oil Co., 278 U.S. 200 (1929) ("I am relying upon you to protect from treacherous pitfalls a stranger ranging over rugged country."); Bank of Jasper v. First Nat'l Bank of Rome, 258 U.S. 112 (1922); Bank of Am. v. Whiney Cent. Nat'l Bank, 261 U.S. 171 (1923); Baltimore & Ohio R.R. Co. v. Parkersburg, 268 U.S. 35 (1925); Heald v. District of Columbia, 259 U.S. 114 (1922); Price Fire & Water Proofing Co. v. United States, 261 U.S. 179 (1923); St. Louis S.W. Ry. Co. v. United States, 262 U.S. 70 (1923); Tutun v. United States, 270 U.S. 568 (1926); St. Louis & S.F. Ry. Co. v. Spiller, 275 U.S. 156 (1926); St. Louis-S.F. Ry. Co. v. Ala. Pub. Serv. Comm'n, 279 U.S. 560 (1929). In fact, it was not at all uncommon for Brandeis to send his opinions to Van Devanter before their circulation to the full Court. See, e.g., Brandeis Papers (referring to Balt. & Ohio R.R. Co. v. United States, 264 U.S. 258 (1924); Taubel-Scott-Kitzmiller v. Fox, 264 U.S. 426 (1924) ("You have thought so much on kindred questions that I am venturing to ask you to let me have your suggestions before enclosed opinion goes into general circulation."); Smyth v. Asphalt Belt Ry. Co., 267 U.S. 326 (1925) ("May I trouble you to let me have your suggestions before I circulate this?"); In re Buder, 271 U.S. 461 (1926); Albrecht v. United States, 273 U.S. 1 (1927); and United States v. Cal. Co-Operative Canneries, 279 U.S. 553 (1929) ("May I have your suggestions before I circulate the opinion?")).
134. 277 U.S. 163 (1928).
135. 262 U.S. 70 (1923). A memorandum circulated by Stone reversed the judgment of the Court in Louisville & Nashville R.R. Co. v. Chatters, 279 U.S. 320 (1929) ("I voted with the majority that jurisdiction to maintain the suit against the Southern Railway Company had not been established. A study of the case and the authorities has led me to a different conclusion. At the suggestion of the Chief Justice I have embodied it in the following memorandum, so that the matter may receive the further consideration of the Court."). Stone's eventual opinion upholding jurisdiction was unanimous, even though Sanford wrote back to Stone, "Regret that I cannot agree as to the Southern." Stone Papers.
136. Brandeis-Frankfurter Conversations, supra note 74, at 335-36.
137. An exception is Taft's note to Holmes in response to the latter's suggested changes in Taft's opinion in Balzac v. Porto Rico, 258 U.S. 298 (1922): "I shall be glad go talk with you about it and see whether I can modify what is there said. The principle I state disposes of the argument of counsel so completely that I would like to retain them, but I am not an obstinate man." Letter from William Howard Taft to Oliver Wendell Holmes (March 30, 1922), quoted in David Joseph Danelski, The Chief Justice and the Supreme Court 185 (1961) (unpublished Ph.D. Dissertation, University of Chicago) (on file with author).
138. Holmes Papers (referring to a draft opinion in White Oak Transp. Co. v. Boston, Cape Cod & N.Y. Canal Co., 258 U.S. 341 (1922)).
139. 263 U.S. 149 (1923).
140. Brandeis Papers. For Taft's comments on Brandeis's opinion in Galveston Elec. Co. v. Galveston, 258 U.S. 388 (1922), see Brandeis Papers. ("This is a carefully drawn opinion and answers every contention. Much more satisfactory than what Judge Day calls a 'journal entry.'").
141. Letter from William Howard Taft to Charles P. Taft, 2nd (Nov. 1, 1925) (Taft Papers, Reel 277).
142. Sometimes Taft used his own opinions to achieve this function through the frank advocacy of explicit law reform. For example, in Irwin v. Wright, 258 U.S. 219 (1922), which concerned the question of whether suits to enjoin a state officer from enforcing a statute abated upon the death or retirement of the officer, he frankly appealed to Congress for legislative reform of an otherwise unfair situation: It may not be improper to say that it would promote justice if Congress were to enlarge the scope of the Act of February 8, 1899, so as to permit the substitution of successors for state officers suing or sued in the Federal courts, who cease to be officers by retirement or death, upon a sufficient showing in proper cases. Under the present state of the law, an important litigation may be begun and carried through to this court after much effort and expense, only to end in dismissal because, in the necessary time consumed in reaching here, state officials, parties to the action, have retired from office. It is a defect which only legislation can cure. Id. at 223-24. In the absence of such legislation, Taft candidly advised that every effort should be made so as to achieve a fair outcome. See, e.g., Gorham Mfg. Co. v. Wendell, 261 U.S. 1, 5 (1923) ("[Where] officers on behalf of State or County consent to the substitution, the federal courts need not be astute to enforce the abatement of the suit if any basis at all can be found in state law or the practice of the state courts for substitution of the successors in office."). Eventually the Court itself drafted the necessary legislation, which Congress enacted as a section of the Act of February 13, 1925. The story is fully recounted in Snyder v. Buck, 340 U.S. 15, 22-26 (1950) (Frankfurter, J., dissenting). Another example of Taft's use of opinions to provide explicit instructions to other legal actors is Hill v. Wallace, 259 U.S. 44 (1922), in which the Court struck down the Future Trading Act, 42 Stat. 187 (Aug. 24, 1921). In his opinion for the Court, Taft "hinted rather plainly" that Congress could cure the constitutional defects of the Act. Thomas Reed Powell, Umpiring the Federal System: 1922-1924, 40 POL. SCI. Q. 101, 106 (1925). When Congress promptly amended the deficiencies by enacting the revised Grain Futures Act, 42 Stat. 998 (Sept. 21, 1922), Taft cheerfully upheld the modified statute in Board of Trade v. Olsen, 262 U.S. 1, 32 (1923) ("The Grain Futures Act which is now before us differs from the Future Trading Act in having the very features the absence of which we held, in the somewhat carefully framed language of the foregoing, prevented our sustaining the Future Trading Act.").
143. 259 U.S. 285 (1922).
144. Brandeis Papers. Brandeis returned the favor the following term, responding to Taft's draft opinion in Cumberland Telephone & Telegraph Co. v. Louisiana Public Service Commission, 260 U.S. 212 (1922): "This will be of much service in clearing up a confusion quite widely experienced at the bar." Taft Papers (Reel 614).
145. 268 U.S. 169 (1925).
146. Brandeis Papers.
147. 273 U.S. 299 (1927).
148. Brandeis Papers.
149. Taft, Address to the New York County Bar Association, supra note 27, at 5.
150. The characteristic rhetoric of Supreme Court opinions was thus one of closure, as though the legal principles that both settled the case between the parties and clarified the law for the rest of the country were the only possible solution to the difficulties of the case. See Robert A. Ferguson, The Judicial Opinion as Literary Genre, 2 YALE J.L. & HUMAN. 201, 207, 210, 213 (1990). It is noteworthy that during this period Brandeis, whose emphasis on judicial abstention evidenced his belief that there might be important differences between the function of settling the disputes of litigants and offering guidance to the legal public, pioneered an idiosyncratic and distinctive style that sought to inform legal actors precisely by resisting this framework of closure. Primarily concerned with informing the institutional relationships of the emerging administrative state, Brandeis frequently used his opinions to suggest to public officials the myriad possibilities of legitimate legal action. In Missouri Pacific Railroad v. Boone, 270 U.S. 466 (1926), for example, the specific legal question for determination was whether state intrastate railway regulations that had been preempted by federal control over the railroads during World War I could be enforced without re-enactment after cessation of that control on February 29, 1920. Brandeis's opinion stresses the multiple ways that state regulations might acquire legal force after 1920: In order to remove doubts as to what tariffs were to be applicable after the termination of federal control, Congress declared that the existing tariffs, largely initiated by the Director General, should be deemed operative, except so far as changed thereafter - that is, after February 29, 1920 - pursuant to law. Such modifications of intrastate tariffs might result from action of the carriers taken on their own initiative. It might result from orders of the Interstate Commerce Commission. It might result from the making either of new state laws or of new orders of a state commission acting under old laws still in force and again becoming operative. Or such modification might result from the mere cessation of the suspension, which had been effected through federal control, of statutes or orders theretofore in force and still unaffected by any action of the authority which made them. In any of these cases, the change would be effected "thereafter;" that is, after the termination of federal control. Id. at 475-76. The rhetorical structure of this passage, its insistently reiterated conjuring of possible methods that "might result" in an effective change of law, serves to negate the closure made to seem inevitable in typical Court opinions. Instead Boone unfolds a virtual roadmap for the guidance of public officials attempting to negotiate the complex domain of federal and state railroad regulation. It is hard to imagine a sharper contrast to the typical aesthetic of a Holmes opinion, in which a "shapeless black immensity . . . shrinks . . . to an infinitesimal luminous point." Letter from Oliver Wendell Holmes to Mrs. John Chipman Gray (June 5, 1927) (Holmes Papers, Reel 24, Frame 175). In opinions like Boone, Brandeis's ambition is to illuminate the many paths available for the legal exercise of administrative and legislative discretion. See, e.g., Missouri ex rel. St. Louis, Brownsville & Mex. Ry. Co. v. Taylor, 266 U.S. 200, 208 (1924). An important and little noted dimension of Brandeis's focus on facts is that it also served to maintain this open space of potential legal action. Thus in Hammond v. Schappi Bus Line, 275 U.S. 164 (1927), Brandeis confronted the question of whether city ordinances regulating buses were consistent with the dormant commerce clause. Instead of laying down a singular rule, he used his opinion to explain how the scope of local competence would depend upon contingent facts: The contentions made in the briefs and arguments suggest, among other questions, the following: Where there is congestion of city streets sufficient to justify some limitation of the number of motor vehicles to be operated thereon as common carriers, or some prohibition of stops to load or unload passengers, may the limitation or prohibition be applied to some vehicles used wholly or partly in interstate commerce while, at the same time, vehicles of like character, including many that are engaged solely in local, or intrastate, commerce are not subjected thereto? Is the right in the premises to which interstate carriers would otherwise be entitled, affected by the fact that, prior to the establishment of the interstate lines, the City had granted to a local carrier, by contract or franchise, the unlimited right to use all the streets of the City, and that elimination of the interstate vehicles would put an end to the congestion experienced?
151. "The right to sue and defend in the courts is the alternative of force. In an organized society it is the right conservative of all other rights, and lies at the foundation of orderly government." Chambers v. Baltimore & Ohio R. Co., 207 U.S. 142, 148 (1907); see also Int'l Textbook Co. v. Pigg, 217 U.S. 91, 112 (1910).
152. Figure 5 also illustrates that during the period from the 1912 Term to the 1920 Term, 82% of the Court's opinions were unanimous.
153. John P. Kelsh, The Opinion Delivery Practices of the United Supreme Court 1790-1945, 77 WASH. U. L. Q. 137, 178 (1999). Unanimity rates were also exceedingly high throughout the 19th Century; "[f]ew dissenting or concurring opinions were written before the turn of the century."
154. Stacia L. Haynie, Leadership and Consensus on the U.S. Supreme Court, 54 J. POL. 1158, 1158 (1992);
155. see also Gregory A. Caldeira & Christopher J.W. Zorn, Of Time and Consensual Norms in the Supreme Court, 42 AM. J. POL. SCI. 874, 882 (1998);
156. David M. O'Brien, Institutional Norms and Supreme Court Opinions: On Reconsidering the Rise of Individual Opinions, in SUPREME COURT DECISION-MAKING 91-95 (Cornell W. Clayton & Howard Gillman eds., 1999).
157. It is noteworthy that at least as of 1970 unanimity rates in state supreme courts did not seem to have fallen to anything like the low levels characteristic of the United States Supreme Court. One study finds that in the period 1915-1925, 88.9% of state supreme court opinions were unanimous, whereas in the period 1960-70, 83.5% of such opinions were unanimous. Friedman et al., supra note 52, at 787. For other studies, see Mark A. Kadzielski & Robert C. Kunda, The Origins of Modern Dissent: The Unmaking of Judicial Consensus in the 1930s, 14 UWLA L. REV. 43, 67-69 (1983);
158. Kagan et al., supra note 65, at 994 (reporting that 84.7% of state supreme court opinions in the period 1940-1970 were unanimous).
159. The data in Figure 10 for the 1912-1929 Terms are my own. I have borrowed the data for the 1930-1957 Terms from Karl M. ZoBell, Division of Opinion in the Supreme Court: A History of Judicial Disintegration, 44 CORNELL L.Q. 186, 205 (1959).
160. ALPHEUS THOMAS MASON, THE SUPREME COURT: FROM TAFT TO WARREN 60 (1968).
161. Thomas G. Walker et al., On the Mysterious Demise of Consensual Norms in the United States Supreme Court, 50 J. OF POL. 361, 380-81 (1988); cf. Caldeira and Zorn, supra note 132, at 878 ("Of the various explanations [for consensus], none has figured more prominently than the influence of the chief justice."); Haynie, supra note 132, at 1160 (speculating on the relationship between "leadership and consensus" because "[j]udicial leadership is consistently identified as one of the major influences on the court's behavior").
162. See supra notes 131-132.
163. Letter from William Howard Taft to Sir Thomas White (Jan. 8, 1922) (Taft Papers, Reel 238).
164. Taft once received an unsolicited letter from one Walter S. Whiton, an unknown attorney in Minneapolis, asking Taft if he did "not think that it would be better all round, if no dissenting opinions of any court were printed or published?" Letter from Walter S. Whiton to William Howard Taft (Apr. 16, 1923) (Taft Papers, Reel 252). Taft promptly replied, "I agree with you about dissenting opinions. I think it would be better to have none, but the custom has grown so now that it can not be eradicated, unless perhaps by act of Congress. But I am quite sure that Congress would not sustain such legislation." Letter from William Howard Taft to Walter S. Whiton (Apr. 19, 1923) (Taft Papers, Reel 252). In fact the Constitution of the State of Louisiana forbade the publication of dissents between 1898 and 1921. Art. 92, Louisiana Constitutions of 1898 and 1913, in BENJAMIN WALL DART, CONSTITUTIONS OF THE STATE OF LOUISIANA 616, 672 (1932).
165. Letter from William Howard Taft to John Hessin Clarke (Feb. 10, 1922), quoted in Danelski, supra note 116, at 184. So, for example, Taft wrote to Holmes in response to Holmes's draft opinion in New Orleans Land Co. v. Brott, 263 U.S. 98 (1923), "While I make the sign of the scissors to you, I do not intend to do so to the public. I concur." Holmes Papers. In regard to Holmes's opinion in National Ass'n of Window Glass Manufacturers v. United States, 263 U.S. 403 (1923), Taft wrote, "I come in and shut my mouth." Holmes Papers.
166. Letter from William Howard Taft to Willis Van Devanter (Dec. 26, 1921) (Van Devanter Papers). Taft continued, "[B]ut that sense of proportion is not present in the minds of some of our brethren. As to B[randeis], that sense is not lacking but his ultimate purpose is to break down the prestige of the Court." Id.
167. Letter from William Howard Taft to Warren G. Harding (Dec. 4, 1922) (Taft Papers, Reel 248). In that letter Taft also advised against the appointment of Learned Hand because "he would almost certainly herd with Brandeis and be a dissenter. I think it would be risking too much to appoint him." Id.
168. Draft of a Tribute to Edward Douglas White (May 1921), cited in Danelski, supra note 116, at 177.
169. 259 U.S. 344 (1922). The circumstances are discussed in ALEXANDER M. BICKEL, THE UNPUBLISHED OPINIONS OF MR. JUSTICE BRANDEIS: THE SUPREME COURT AT WORK 77-99 (1957). Bickel also discusses Taft's efforts to "mass the court" in the case of Sonneborn Brothers v. Cureton, 262 U.S. 506 (1923). See id. at 100-18.
170. 258 U.S. 44 (1922). The circumstances are discussed in Danelski, supra note 116, at 188-89. Danelski also discusses Taft's efforts to minimize dissents in American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184 (1921). See Danelski, supra note 116, at 180-81.
171. 264 U.S. 331 (1924). The circumstances are discussed in MASON, supra note 4, at 211-12, and in BICKLE, supra note 143, at 202-10.
172. 265 U.S. 215 (1924). See Holmes Papers
173. 274 U.S. 160 (1927). See Brandeis Papers.
174. 278 U.S. 367 (1929).
175. Letter from William Howard Taft to Pierce Butler (Jan. 7, 1929) (Taft Papers, Reel 307).
176. Figure F offers some rough measure of Taft's ability to create consensus. It examines the voting behavior of the eight Justices who both preceded Taft and served with him. Figure F divides the number of times that a Justice joined the opinion of the Court by the total number of cases in which that Justice participated. It then compares the resulting percentage for each Justice for the 1915-1920 Terms to the percentage for each Justice for the 1921-1928 Terms. Figure F indicates that Taft generally had a positive effect, particularly on Justices Van Devanter and McKenna. The data for Justices Day, Pitney, and Clarke are potentially unreliable, however, because each served for so short a period with Taft. The seemingly negative effect that Taft had on Clarke is particularly misleading; as Figure G demonstrates, the 1921 Term was for Clarke simply the last straw in a rapidly deteriorating situation that could not be attributed to Taft. It should also be noted that during the Taft years McKenna's competence was open to question. See supra note 94.
177. For each Justice in Figure 12, I have divided the total number of times he joined a Court opinion by the total number of cases in which he participated.
178. Clarke joined in the opinion for the Court 87.1% of the time, whereas Sutherland joined 96.7% of the time. Butler and Sanford joined the Court's opinions 97.8% and 97.5% of the time, respectively, while the corresponding figures for Day and Pitney were 98% and 96.4%. During the 1922 Term, Butler joined the Court 100% of the time, Sanford 99% of the time, and Sutherland 96% of the time. The sharp change between the 1921 and 1922 Terms is shown more distinctly in Figure 13, which measures dissenting votes as a percentage of total court opinions. The data for the 1916-1920 Terms in Figure 13 comes from William G. Rice, How the Supreme Court Mill is Working, 56 AM. L. REV. 763, 765 (1922).
179. For a good summary, see WILLIAM G. ROSS, A MUTED FURY: POPULISTS, PROGRESSIVES, AND LABOR UNIONS CONFRONT THE COURT, 1890-1937, at 170-78 (1994).
180. Steven F. Lawson, Progressives and the Supreme Court: A Case for Judicial Reform in the 1920s, 42 HISTORIAN 419 (1980).
181. ROSS, supra note 149, at 192-217. La Follette's proposal was contained in an address before the AFL. He proposed an amendment to the constitution providing: 1. - That no inferior Federal Judge could set aside a law of Congress on the ground that it was unconstitutional. 2. - That if the Supreme Court assumed to declare any law of Congress unconstitutional Congress could, by repassing the law, nullify the action of the court and thereafter the law would remain in full force and effect precisely as though the court had never acted on it. . . . The Senator's speech was a sizzler and he received a great ovation. Delegates applauded, shouted and pounded the tables for several minutes. . . . His first reference to Chief Justice Taft was greeted with hisses from all parts of the hall. . . . After the hisses had subsided La Follette said: "Ex-President Taft was appointed Chief Justice by President Harding. Thus a man was invested with the prestige and influence of Chief Justice who had been repudiated by the voters on his record. . . . "No one will contend that he could have been elected Chief Justice by a vote of the people. And yet Chief Justice Taft wrote the opinion that annulled the child labor law. He wrote the opinion in the Coronado Coal Company case." Earl L. Shaub, Labor Plans for Slash of Court Power: Federation Convention Spends Day Denouncing Decisions Made by U.S. Supreme Court, S.F. EXAMINER, June 15, 1922, at 11. For La Follette's proposal, see 62 CONG. REC. 9074-82 (1922). For a proposed constitutional amendment, see H.R.J. Res. 436, 67th Cong. (1923); 64 CONG. REC. 2607-15 (1923).
182. For press reactions to La Follette's proposal, see Is the Supreme Court Too Supreme?, LITERARY DIGEST, July 1, 1922, at 21. Taft was distressed by the attack. When Sutherland was confirmed to replace Clarke, Taft wrote him, I write to congratulate you from the bottom of my heart on your appointment to the Bench, and upon the reception which your nomination and confirmation have had by the American people. . . . I should judge that the Court is about to enter upon another period of agitation against its powers, such as it had in the period before Marshall came onto the Bench; again after he locked horns with Jefferson and Jackson; again during the period of the Fugitive Slave law; again during the reconstruction days when Thad Stevens and the radical Republicans defied the Court; and again when Bryan and the income tax decision were made a part of the 1896 campaign. La Follette's overwhelming victory in Wisconsin will put great confidence into the hearts and souls of all who are opposed to property rights and the support which the Constitution gives to them, and who are radically hostile to the existence of the Supreme Court. . . . While it is unpleasant, I think perhaps it is well to fight out this issue and develop in its clear and unmistakable features what the labor unions and La Follette have in mind with respect to the Government and the change of its constitutional structure. When that issue arises, I can not believe that there is any doubt of the strength of the conservative element in the Republic. It may for the time throw Republicans and Democrats together, as I hope it will. Of course were we to have a radical Congress and a radical Senate, they might take steps either to abolish or to practically destroy much of the useful jurisdiction of the inferior Federal courts. We could be certain that the minute they had power, they would frighten the country into a reaction, which would teach a permanent lesson, but meantime the cause of justice in the country would suffer. Of course we may count on a lot of weak-kneed people who are conservative when conservatism seems to be strong, and are radical when radicalism seems to be sweeping the country; but there are many elements who do not manifest themselves superficially and seem to remain inert until they are startled by a danger that ought to have been long foreseen. And it is upon those elements that the hope and confidence in the preservation of our institutions must be based. Meantime there is nothing for the Court to do but to go on about its business, exercise the jurisdiction it has, and not be frightened because of threats against its existence. It is most interesting, in view of what we may anticipate, to read the history of the Court just published by Warren. I do not agree with a good many of his statements, nor do I subscribe to some of his conclusions, but he has massed together in historical form the history of the Court to show that, with some periods of quiet, its whole history has been one of threat, attack and defeat of its enemies, and it is a proud record that on the whole the Court never bowed its head for motives of political expediency, to yield its conscientious views and convictions to assaults, of which it has had to meet so many in its life of more than a century and a quarter. I don't know why I have fallen into this disquisition, except that I note in the press a good deal of excitement over the La Follette election and the attacks of labor organizations upon our Court, and I could not refrain from discussing the situation with you as you now come into the Court with a general opinion as to the functions of the Court similar to my own. Letter from William Howard Taft to George Sutherland (Sept. 10, 1922) (Sutherland Papers).
183. Ross, supra note 153, at 218-32; see also S. 4483, 67th Cong. (4th Sess. 1923). Borah's bill was just one of a rash of proposed legislation. See, e.g., H.R. 14209, 67th Cong. (4th Sess. 1923); H.R. 697, 68th Cong. (1923); H.R. 721, 68th Cong. (1923).
184. Ross, supra note 153, at 254-84; see also KENNETH CAMPBELL MACKAY, THE PROGRESSIVE MOVEMENT OF 1924, at 11, 143 (1947).
185. Jackson Harvey Ralston, Shall We Curb the Supreme Court?, 71 FORUM 561, 565 (1924). Charges that dissents undermined the Court's claim to speak with the authority of law were common during the tumultuous period.
186. See, e.g., Albert J. Beveridge, Common Sense and the Constitution, SATURDAY EVENING POST, Dec. 15, 1923, at 25 ("[W]hen five able and learned justices think one way, and four equally able and learned justices, all on the same bench, think the other way and express their dissent in powerful argument, sometimes with warm feeling, is it not obvious that the law in question is not such a plain infraction of the Constitution as to be unconstitutional 'beyond all question'?"). Even John W. Davis, in his presidential address to the ABA, was moved to observe that much of the current discontent is caused perhaps by the publication of dissenting opinions which serve to fan the flame of public distrust. Certainly, it is not edifying to the lay mind that an opinion representing the considered judgment of the majority of any court should be accompanied at the moment of deliverance by an effort to prove its manifest error.
187. Hon. John W. Davis, Present Day Problems, 9 A.B.A. J. 553, 557 (1923);
188. see also John K. Shields, Senator Condemns Legislative Efforts to Curb Supreme Court, N.Y. TIMES, Apr. 15, 1923, § 8, at 10 ("It will not be improper here to suggest the impropriety of these dissenting opinions for the bad effect they have upon the public mind concerning the wisdom of the court and the certainty of the law. It has been urged, with much force, that when a majority of the court come to a conclusion and solemnly declare the law, its action is as binding upon the minority as upon the parties and the public and the minority by express dissent ought not to challenge the soundness or justice of the judgment but yield to it the obedience and respect that is due the decisions of the court.").
189. Letter from William Howard Taft to Gus Karger (Aug. 30, 1924) (Taft Papers, Reel 267).
190. Brandeis-Frankfurter Conversations, supra note 74, at 328. Figure 20 provides some support for Brandeis's assertion. It demonstrates that the Court augmented its efforts to produce unanimous judgments during the 1923 Term. For an explanation of Figure 20, see infra note 205.
191. Brandeis-Frankfurter Conversations, supra note 74, at 330.
192. Letter from William Howard Taft to Willis Van Devanter (June 19, 1925) (Van Devanter Papers). As I look back over the Term it seems to me we got through very well. . . . We have had no unseemly dissensions among our members. I think the result of the last election does not show that the Court stands any better than it always has with the people but it shows to a great many who were convinced that they could profit by abusing it that they should look for some other field for their demagoguery more profitable. I don't think I am mistaken in thinking that Borah and that ilk are losing interest in efforts to change the Court. Id. Taft wrote to his brother Horace that "[t]he greatest failure of La Follette was his attack upon our court. He confessed his failure in his effort to minimize the issue after the campaign was well on." Letter from William Howard Taft to Horace Taft (June 20, 1925) (Taft Papers, Reel 275).
193. ROSS, supra note 153, at 285; see, e.g., The Supreme Court's New Term, CHRISTIAN SCI. MONITOR, Oct. 3, 1927, at 16 ("In 1801, the Court was suffering from attacks in the press, and from suspicion from the other departments of the National Government. Now it is the most honored branch of the federal institutions. Qualms as to its impartiality and apprehensions regarding its political prejudice have long since vanished. Attacks upon its decisions are rare, and questions of its integrity do not exist."). Indeed, as late as February 1930, and just before the controversy over Hughes' nomination, so astute a public observer as Mark Sullivan could comment on the present and recent high public satisfaction with the Supreme Court. . . . In the 1928 Presidential campaign the Supreme Court never was mentioned even faintly as even the most minor kind of an issue. The last occasion when dissatisfaction with any aspect of the court expressed itself in politics was in 1924. . . . The movement came to nothing.
194. Mark Sullivan, Public Esteem For Court Called Aid to Hughes, N.Y. HERALD TRIB., Feb. 6, 1930, at 9.
195. Figure 12 illustrates that while Justice McKenna joined in opinions of the Court 97.3% of the time, Stone joined only 94.0%.
196. For the attitude of The New Republic toward Stone before his appointment to the Bench, see Legal Orthodoxy, 11 NEW REPUBLIC 227 (June 23, 1917) (Review of Stone's LAW AND ITS ADMINISTRATION): This . . . book . . . is devoted to the . . . pious aim of "contributing to the cause of good citizenship" by strengthening the traditional American faith that God can govern his chosen people only through a constitution, courts and lawyers. In recent years shameless scepticism in regard to this faith has raised its head; and this has brought forth a large number of devotional books which, like the one before us, contain just enough information to justify the ways of the Law and the Lawyers to man. Though perfectly decorous and unexciting, these books thus belong to revivalistic literature. . . . The noble purpose of these books does not call for much original knowledge or novelty; and Dean Stone has in that respect wisely followed the pattern set by ex-President Taft . . . . As the dean of one of our large law schools, however, he has felt peculiarly called upon to rebuke the adherents of sociologic jurisprudence who would make judicial decisions in regard to large public questions depend upon the fallible and sometimes hasty human sciences of sociology and economics, instead of recognizing that a training in the law and elevation to the bench must be sufficient if we are to maintain our system of government. Id.
197. Alfred McCormack, A Law Clerk's Recollections, 46 COLUM. L. REV. 710, 710 (1946).
198. Id. at 714. There is some indication that the feeling was mutual. On February 3, 1926, the New Republic, apropos of Connolly v. General Construction Co., 269 U.S. 385 (1926), noted that "Mr. Justice Stone was with the majority. This is the third time since Mr. Justice Stone's accession to the Bench that Mr. Justice Holmes and Mr. Justice Brandeis have expressed views different from the majority. Apparently Mr. Justice Stone does not find it congenial to shiver with Holmes and Brandeis; he prefers the warmth of the solid majority." 45 NEW REPUBLIC 280 (Feb. 3, 1926). Brandeis wrote to Frankfurter, A passage in Feb 5 N.R. which I attribute to you suggests: "Du bist am Ende was du bist. Setz dir Perucken auf von millionen Locken, Setz deiner Feuss auf ellen hohen Socken, Du bleibst am Ende was du bist." (You are in the end what you are Put on wigs of millions of locks Put on your feet very high socks You remain in the end what you are)
199. BRANDEIS-FRANKFURTER LETTERS, supra note 92, at 229.
200. Letter from Harlan Fiske Stone to Irving Dilliard (Oct. 1941) (Stone Papers).
201. Throughout the 1920s, Stone never expressed the support for civil liberties one would expect from the author of footnote 4 of Carolene Products. He joined speech-repressive opinions for the Court in Whitney v. California, 274 U.S. 357 (1927), and United States v. Schwimmer, 279 U.S. 644 (1929), despite strong dissents by Brandeis and Holmes. See Thomas Reed Powell, The Supreme Court and State Police Power, 17 VA. L. REV. 765, 788-89 (1931) ("[T]hus far at least, Mr Justice Stone is like the former Mr. Justice Clarke in breaking with Justices Holmes and Brandeis on issues of freedom of speech and association, though otherwise they are usually found in the same camp.").
202. During World War I, Stone was on the Board of Inquiry that determined whether draftees could claim conscientious objector status. See Harlan Fiske Stone, The Conscientious Objector, 21 COLUM. U. Q. 253 (1919).
203. For an unflattering description of his demeanor in office, see ERNEST L. MEYER, "HEY! YELLOWBACKS!": THE WAR DIARY OF A CONSCIENTIOUS OBJECTOR 89-95 (1930). On Stone's lenient attitude toward legal discriminations against minorities, see Gong Lum v. Rice, 275 U.S. 78 (1927); Corrigan v. Buckley, 271 U.S. 323 (1926); Cockrill v. California, 268 U.S. 258 (1925); and compare Ohio ex rel. Clarke v. Deckebach, 274 U.S. 392, 396-97 (1927) (upholding a Cincinnati ordinance prohibiting aliens from obtaining licenses for pool halls), with Jordan v. Tashiro, 278 U.S. 123, 128-30 (1928) (striking down as inconsistent with a treaty a California prohibition on Japanese citizens creating a hospital corporation).
204. So, for example, during the 1925 Term Stone wrote to Taft about the latter's draft opinion in Myers v. United States, 272 U.S. 52 (1926): You know I am a team player and I should not have kicked over the traces if you had not accepted any of my views. . . . I have only been longing to be helpful in the way which I believe we should all be, in carrying on the difficult work of the Court - without . . . pride of opinion or over insistence on anything. Letter from Harlan Fiske Stone to William Howard Taft (Dec. 7, 1925) (Taft Papers, Reel 278).
205. For important decisions marking Stone's transition, see Di Santo v. Pennsylvania, 273 U.S. 34 (1927); Tyson & Bro. v. Banton, 273 U.S. 418 (1927); Fairmont Creamery Co. v. Minnesota, 274 U.S. 1 (1927). By 1929 the Chicago Tribune could write that "in virtually every case of major importance involving constitutional or economic issues in the last three years, Justices Oliver Wendell Holmes, Louis Brandeis, and Harlan F. Stone have stood together in the minority . . . ." 3 'Liberals' in Supreme Court Again Dissent to Rail Ruling, CHI. TRIB., May 22, 1929, at 4.
206. Letter from Harlan Fiske Stone to Milton Handler (Feb. 17, 1929) (Stone Papers). From Taft's point of view, however, "Stone has become entirely subservient to Holmes and Brandeis. I am very much disappointed in him. I urged Coolidge to appoint him but he hungers for the applause of the law school professors and the admirers of Holmes." Letter from William Howard Taft to Horace Taft (June 8, 1928) (Taft Papers, Reel 302). Compare Letter of William Howard Taft to Charles P. Taft (Mar. 1925) (Taft Papers, Reel 272) ("We . . . are very much delighted with our new member Stone. He is a real Judge, a real lawyer and a hard worker."). Stone also recalled that Taft's enthusiasm for me seems to have waned after my opinion in the Bedford Stone case, in which I expressed the view that under the provisions of the Clayton Act labor unions could not be held to violate the Sherman Anti-Trust law by merely refusing to work on non-union material which had been the subject of interstate commerce. After that he seems to have thought that, like Holmes and Brandeis, I was "hopeless." Letter from Harlan Fiske Stone to Thomas Reed Powell (Jan. 30, 1940) (Stone Papers) (referring to Bedford Cut Stone Co. v. Journeymen Stone Cutters' Ass'n., 274 U.S. 37 (1927)).
207. Letter from William Howard Taft to Horace Taft (Feb. 6, 1924) (Taft Papers, Reel 261). I had an attack of palpitation of the heart this morning . . . I sent for the Doctor and he found what I had already found, that my pulse was running fast and irregularly. He said that what I needed was rest, and that I could not go to Woodrow Wilson's funeral this afternoon, where I had intended to go as a pall bearer. I would have given anything to go, not alone to pay a tribute to a deceased President, but also to avoid the circulation against alarming reports as to my illness. I explained that to the Doctor and the Doctor seemed to realize the awkwardness of it, but it did not abate his insistence that I should be quiet and run no risk. There is only one living ex-President, and I don't care to reduce that number, so I obey orders. Id.
208. Letter from William Howard Taft to Horace Taft (Feb. 16, 1924) (Taft Papers, Reel 261); see Letter from William Howard Taft to James Gregg (Taft Papers, Reel 261). The truth is I have had a pretty close call to a breakdown. I hope, however, to go back to Court on Monday, with a warning that I can not do all the work there is to do. I was treating myself as I might have treated myself thirty years ago. There is no fool like an old fool. There is some hope, however, if he mends his ways. Id.
209. Memorandum from William Howard Taft to members of his family (June 8, 1924) (Taft Papers, Reel 265) ("The trouble with me is febrilation of the auricle.").
210. Letter from William Howard Taft to Horace Taft (Oct. 10, 1924) (Taft Papers, Reel 268). The first day of the Court was a pretty exciting one, and I ate some roast pork, something I rarely do, although I love the meat. I had a heavy cold, waked up in a sweat about one o-clock, and found my heart going as it did last January . . . . Visions of a recurrence of the trouble and of my having to stay home from Court came over me, and I was a good deal alarmed. Indeed it seemed to me as if I might have to give up the office and spend my time trying to live. Id. "If I am not going to be able to do my work (I was not able to go to Conference yesterday), I have got to resign." Letter from William Howard Taft to Mrs. Frederick J. Manning (Oct. 12, 1924) (Taft Papers, Reel 268).
211. Letter from William Howard Taft to Henry E. Coe (Jan. 7, 1925) (Taft Papers, Reel 270).
212. Taft suffered the attack after serving as a judge of a national oratory contest on "The Constitution." The contest was an effort to encourage "Americanization." I had to go out last night to be one of the judges in the National Oratorical constitutional discussion, where seven contestants, representing two million applicants, were to be judged. The management was not properly attentive to my needs, and in order to get to the place I had to walk clear up to the top of the theater and then down. After I got to bed, and had been in bed about twenty minutes, this thing came on and it is still on. Letter from William Howard Taft to Horace Taft (June 5, 1926) (Taft Papers, Reel 283). Other judges at the contest included Justices Van Devanter, Sutherland, Sanford, and Butler. Los Angles Boy First in Contest of School Orators, N.Y. TIMES, June 5, 1926, at 1. The winning oration, which the New York Times reproduced in full, featured passages like the following: Only an American, one who knows our history, can feel the sacred symbolism of that Constitution; only one whose soul is steeped in the spirit of the far-off days when the old meeting-house in Philadelphia felt the throb of the great hearts of the constitutional fathers can understand. What solemn obligation is ours, to teach those who come among us from foreign shores, and who often, all too often, come to scoff because they do not understand. And here is our duty, here is our obligation, too, for those who do not know must be enlightened; and those who do not care must be taught to love our institutions, and the Constitution by which they live. And for those who come with hatred in their hearts, ladies and gentlemen, no words of mine could fully express the indignation that should rouse every true American heart to stand on guard as they did on Concord Bridge, who gave to us our flag, our country, our Constitution. Id.
213. "I have had, as you know, trouble with my heart for now more than two years. It is recurrent. . . . I haven't succeeded as yet this summer in getting back to normal regularity. . . . I don't like it, and I think it may interfere more or less with my work." Letter from William Howard Taft to Mrs. Charles D. Norton (Aug. 10, 1926) (Taft Papers, Reel 284).
214. "I am as careful as I can be. I am trying to see if I cannot hold myself in such way as to continue work. My fibrillation continues but it is not excessive and I am hopeful that by care, I may avoid its being so." Letter from William Howard Taft to Henry D. Taft (Sept. 30, 1926) (Taft Papers, Reel 285).
215. Letter from William Howard Taft to Mrs. Frederick J. Manning (Oct. 23, 1927) (Taft Papers, Reel 296). Taft continued, "However, I have to stay on the Bench until 1931 in order to earn my pension, and that I must struggle to do, unless I am so weakened that I can not do the work." Id. Taft wrote to his son Robert, I sometimes feel that I do not have time enough in making ready for Conferences to examine with the closeness they deserve the argued and submitted cases, but they are examined by the Court with care. They have more time than I have, and sometimes they humiliate me with their pointing out matters that I haven't given time enough to the cases to discover. The familiarity with the practice and the thoroughness of examination in certain cases that Van Devanter is able to give makes him a most valuable member of the Court, and makes me feel quite small, and as if it would be better to have the matter run by him alone, for he is wonderfully familiar with our practice and our authorities. Still I must worry along until I get to the end of my ten years, content to aid in the deliberations when there is a difference of opinion. Letter from William Howard Taft to Robert Taft (Oct. 23, 1927) (Taft Papers, Reel 296).
216. Letter from William Howard Taft to J.M. Dickinson (Dec. 12, 1928) (Taft Papers, Reel 306). "The work of the Court not so much in writing opinions as in getting ready for Conferences grows heavier and heavier. I feel tired over it and suffer from a lack of quickness of comprehension, which has not heretofore troubled me much." Id. Writing in February 1929, Van Devanter observed that "[t]he Chief Justice's health is such that he will retire when he can, which will be in 1931." Letter from Willis Van Devanter to Mrs. John W. Lacey (Feb. 12, 1929) (Van Devanter Papers). In that same letter, Van Devanter reports that Mr. Justice McReynolds will certainly retire when he can, which will be in 1932. He would retire now if he could. Mr. Justice Sutherland is not in good health and will certainly retire when he can which will be in 1932. I will be 70 in April and unless there is a great change for the better in Dollie's [his wife's] condition I shall retire during the year. I am making no public announcement but my mind is becoming pretty well fixed on retirement. Id. The history of the New Deal would no doubt have been considerably different were Van Devanter's predictions to have proved accurate. One must wonder exactly why Van Devanter, McReynolds, and Sutherland chose to remain on the Court.
217. 259 U.S. 344 (1922); see also supra note 143.
218. Letter from William Howard Taft to Horace Taft (Nov. 14, 1929) (Taft Papers, Reel 315).
219. See supra note 172 and accompanying text. A good example of this factionalism may be found in the correspondence surrounding Stone's opinion in United Fuel Gas Co. v. Railroad Commission, 278 U.S. 300 (1929), an "important" case "dealing with the problem of valuation of a natural resource." Letter from Harlan Fiske Stone to Milton Handler (Jan. 22, 1929) (Stone Papers). After Stone circulated his opinion, he received the following letter from Van Devanter: I looked over your opinion in No 1 and found myself quite reluctant to accept it as written. Accordingly I made various changes which to me seemed desirable. Since then I have shown them to the Chief Justice and Justices Sutherland, Butler and Sanford. These being all that it was convenient to see. They authorize me to say they approve the changes and join me in asking their adoption. Letter from Willis Van Devanter to Harlan Fiske Stone (n.d.) (Stone Papers). For Taft's reaction, see note 96 supra. A glimpse of how this factionalism infected the everyday operations of the Court can be seen in George Sutherland's preparations for a European vacation. Sutherland had been quite sick with "chronic colitis" during the Fall of 1927, missing nearly three months of the Term. See Letter of Dr. Thomas R. Brown to William Howard Taft (Dec. 22, 1927) (Taft Papers, Reel 297); Letter of William Howard Taft to Charles P. Taft Jr. (Apr. 1, 1928) (Taft Papers, Reel 300). Sutherland planned to leave for Italy "for his health" on May 19th, before the end of the 1927 Term. See Letter of George Sutherland to Dr. Thomas R. Brown (Mar. 16, 1928) (Sutherland Papers); Letter of William Howard Taft to Robert A. Taft (Apr. 15, 1928) (Taft Papers, Reel 301); Letter of William Howard Taft to George Sutherland (May 17, 1928) (Sutherland Papers) ("I was humiliated not to have called to say good bye to you and Mrs. Sutherland but a chapter of accidents interfered with a well laid plan . . . . I am hoping that this will reach you before you leave these shores for a real cure. I have been delighted with how strong you are now; and how much work you have done of the hard kind of opinion writing that consumes thinking energy. I am looking forward with satisfaction to greeting you both in the full bloom of youthful health. And what pleasure you will have in the consciousness that you are not a slave to a lot of opinions the thought of which would continue to cloud your summer. . . . [K]now too you carry with you the loving thoughts and hopes of all your colleagues. They are real and sincere and awaken fervor."); Letter from George Sutherland to William Howard Taft (May 18, 1928) (Taft Papers, Reel 302) ("That was a very sweet going away letter . . . . I shall think of you always as my good Chief for whom my admiration and affection run a close race."). In preparation for his journey, Sutherland sent a memorandum to Taft on May 15, 1928, instructing the Chief Justice on Sutherland's votes in pending cases. Sutherland Papers. Concerning Quaker City Cab Co. v. Pennsylvania, 277 U.S. 389 (1928), for example, Sutherland announced, "[I]f Van Devanter writes the opinion I shall unhesitatingly agree to it. If written by anybody else, I will agree to what you and he accept." Id. Concerning National Life Insurance Co. v. United States, 277 U.S. 508 (1928), Sutherland wrote, "An opinion satisfactory to you will be satisfactory to me." Id. The political alignments in the memorandum bear out Taft's prescience when, speculating to Van Devanter in August 1922 on Sutherland's "doubtless" nomination to the Court, he had correctly conjectured that Sutherland "will be one of our kind I think." Letter from William Howard Taft to Willis Van Devanter (Aug. 19, 1922) (Taft Papers, Reel 244). By contrast, in National Life Insurance Co. v. United States, 277 U.S. 508 (1928), a dissenting Harlan Stone had written to Oliver Wendell Holmes on June 7, 1928, that "I think it is good for the dissenters to stand together when they can." Stone Papers.
220. Letter from William Howard Taft to Horace Taft (Dec. 1, 1929) (Taft Papers, Reel 316). Aware of his own ill health, and aware also of Stone's ambitions to succeed him, Taft continued, Should Stone ever have the administration of the Chief Justiceship, he would find himself embarrassed in respect to a good many principles that we have declared as the result of a great many years of careful consideration. However, the only hope we have of keeping a consistent declaration of constitutional law is for us to live as long as we can, because should Hoover's administration continue, I do not doubt there will be an attempted revolution. . . . I don't think that Hoover knows as much as he thinks he does, and that it is just as well for him to remember the warning in the Scripture about removing landmarks. The truth is that Hoover is a Progressive, just as Stone is, and just as Brandeis is, and just as Holmes is, but should the change take place, they will find themselves in a situation full of difficulties in determining how far they are going, especially when they have made the change and don't realize how far it will carry them. Id. Taft's brother wrote back remarking on Taft's "pessimism," and advising that "[y]ou and I have got to get used to the fact that we belong to the former generation and that things are sliding along." Letter from Horace Taft to William Howard Taft (Dec. 2, 1929) (Taft Papers, Reel 316). Taft answered, You speak of my pessimism. I suppose it must have had reference to the situation in the Court. My feeling with respect to the Court is that if a number of us die, Hoover would put in some rather extreme destroyers of the Constitution, but perhaps we are unduly exercised, because of the conservative members of the Court we have six, and two of the remainder are Brandeis and Holmes. Brandeis is 73 and Holmes is 89. He enters his ninetieth year next month. I have no doubt there is persistent hope, especially by the younger crowd of college professors, that in some way or other Holmes will be continued on the Court while the rest of us die off. . . . I think the Court on the whole stands very well. Of course there are quite a number of extremists and we are likely to hear a good deal more from them than from the other side, and it is the dissenters who make the loudest noise. I think that Hoover is a new man and thinks that everything ought to be new. He will learn a good deal before he gets through. I think he is trying to do the best he can, and we can probably solve everything if we can only live, because delay makes for conservatism. Letter from William Howard Taft to Horace Taft (Dec. 8, 1929) (Taft Papers, Reel 316).
221. 281 U.S. 276 (1930).
222. United States v. Adams, 281 U.S. 202 (1930).
223. Missouri ex rel. Mo. Ins. Co. v. Gehner, 281 U.S. 313 (1930).
224. Memorandum from Harlan Fiske Stone to James McReynolds (Apr. 3, 1930) (Stone Papers). Unfortunately I have been unable to locate the McReynolds memorandum to which Stone is responding.
225. If one looks at the cases cited by Stone in his memorandum, for example, Nos. 281 and 282 were decided on April 14, 1930 as United States v. Adams, 281 U.S. 202 (1930), in a unanimous opinion by Oliver Wendell Holmes. Patton v. United States, 281 U.S. 276 (1930), also decided on April 14, 1930, features Holmes, Brandeis, and Stone concurring in the result, but not writing a separate opinion. Only in No. 222, Missouri ex rel. Missouri Insurance Co. v. Gehner, 281 U.S. 313 (1930), also decided on April 14, 1930, did Stone, joined by Holmes and Brandeis, dissent.
226. Indeed, Figure 20 suggests that the Court responded to increased factionalism by redoubling its efforts to achieve unanimity. For an explanation of Figure 20, see infra note 205.
227. See, e.g., Sun Ship Bldg. Co. v. United States, 271 U.S. 96, 99 (1926) ("Valuable time was taken in hearing these cases. After arguments on behalf of the claimants, we declined to hear the other side because the correctness of the judgments of the Court of Claims was clear. It is fortunate for all that under the Act of February 13, 1925, judgments of the Court of Claims entered after May 13, 1925, can only be reviewed here after a showing of merits."). Figure 22 graphically illustrates the effect on unanimity rates of the disappearance of these cases. After the 1925 Act, cases reaching the Court through its mandatory appellate jurisdiction tended to consist primarily of those posing difficult constitutional issues. See supra note 23. Unanimity rates in opinions for these cases plunged from 92.4% in the 1921 Term to 64.7% in the 1928 Term.
228. See, e.g., Stephen C. Halpern & Kenneth N. Vines, Institutional Disunity, the Judges' Bill and the Role of the U.S. Supreme Court, 30 W. POL. Q. 471, 480-81 (1977) ("Eliminating the right of appeal in many minor and uncontroversial cases freed the court to concentrate in obligatory appeals on only those cases raising salient national issues. Granting the justices much wider discretion to choose from among the cases appealed to them, the number and nature of those they wished to decide, provided greater opportunity to choose difficult and disputatious cases. Greater dissent was made more likely not only by the specific reforms of the Act but by the expectation as to how the justices would utilize their new powers. The Act's supporters advanced a conception of the Court as an institution which should reserve its judgments only for the most important national policy questions."). In 1949 Chief Justice Vinson made this point by way of explaining the decreasing rates of unanimity in Supreme Court opinions: [T]he very nature of the Supreme Court's jurisdiction is such that the easy cases, the clear and indisputable cases, very seldom come before the Court. Our discretionary certiorari jurisdiction encompasses, for the most part, only the borderline cases - those in which there is conflict among lower courts or widespread uncertainty regarding problems of national importance. . . . Considering, therefore, the importance and difficulty of the cases which the Court must decide, it is not strange that there is some of the same disagreement on the Court as exists among others of the bench and bar concerning the questions decided. Vinson, supra note 40, at 1273;
229. see also Ben W. Palmer, Supreme Court of the United States: Analysis of Alleged and Real Causes of Dissents, 34 A.B.A. J. 677, 679 (1948) ("Under the certiorari system the Court now picks out for adjudication cases involving the most difficult questions of constitutional law and statutory construction; cases of the utmost public or political importance; cases that bring to focus the interests of pressure groups - the claims and contentions of vast social, economic, political, religious and ideological forces that engage the deepest passions and the most aggressive loyalties of minority millions of men and women.").
230. By contrast, 92% of all full opinions issued by the Court in the 1993-1998 Terms were issued in cases that came to the Court by way of the discretionary writ of certiorari. For purposes of this discussion, I have defined the Court's "mandatory" jurisdiction as appellate cases that have reached the Court by way of appeal, writ of error, or certification. The Court's "discretionary" jurisdiction, by contrast, is defined as cases that have reached the Court by way of the writ of certiorari. All remaining cases, whether appellate or original, are included within the category of "other." On the contemporary erosion of the distinction between mandatory and discretionary jurisdiction, an erosion that began at the end of the 1927 Term, see Hartnett, supra note 24, at 1708-12.
231. Walker et al., supra note 135, at 365. "[T]He discretionary share of the Court's docket rose dramatically immediately following the [1925] Act and remained relatively stable thereafter . . . . However, . . . significant escalation in both the dissent and concurrence rates did not occur until almost fifteen years later." Id.
232. The docket books are located in the office of the Archivist of the Supreme Court. For a discussion of the reliability of docket books, see Forrest Maltzman & Paul J. Wahlbeck, Inside the U.S. Supreme Court: The Reliability of the Justices' Conference Records, 58 J. POL. 528 (1996).
233. Justice Butler joined the Court in January 1923, and so his docket book for the 1922 Term does not contain any cases before that time. There are also a number of cases that simply do not have docket book entries. This could be for any number of reasons, ranging from the fact that either Butler or Stone had recused himself in the case or had failed to attend conference or had omitted to record the votes of the conference.
234. "When I was a law clerk . . . I had access to the docket book of Justice Brandeis. It was burned with the others at the end of the term, and I hope that custom still obtains." Remarks of Paul A. Freund, A Colloquy, Proceedings of the Forty-Ninth Judicial Conference of the District of Columbia Circuit (May 24, 1988), reprinted in 124 F.R.D. 241, 347 (1988).
235. I include within this category cases in which the votes of one or more Justices are not recorded.
236. The unanimity rate was 60% if one counts as unanimous those cases in which Justices explicitly express uncertainty in conference. These results are represented in Figure 18. The raw data are these: The set of conference cases consists of 1,200 decisions. Of these 1,028 were ultimately decided unanimously. Of these, 601 were also unanimous in conference; 304 had dissenting votes in conference; and 123 had no dissenting votes but did have Justices who registered uncertainty in conference. If one considers the entire set of 1,200 cases, 670 (56%) had the same vote in conference as the ultimately published opinion; in 358 (30%), one or more Justices switched his conference vote to join the court opinion; and in 129 (11%), there were no dissenting votes in conference, but one or more Justices ultimately resolved an uncertainty expressed in conference in order to join the Court opinion. In 18 cases (2%), one or more Justices who voted with the Court in conference refused to join the published Court opinion; in 11 cases (1%), one or more Justices switched their conference vote away from the Court's opinion; in 6 cases, one or more Justices expressed uncertainty in conference, but resolved their uncertainty by dissenting from the Court's opinion; in 5 cases, one or more Justices voted against the Court's judgment in conference, but ultimately switched their vote to support the Court's judgment while refusing to join the Court's opinion; and in 3 cases there were switches of votes in both directions, both for and against the Court's ultimate opinion.
237. This conclusion is confirmed by a forthcoming article in the American Journal of Political Science that analyzes conference voting during the period of Chief Justice Morrison R. Waite. Using Waite's docket books, the article analyzed 2,863 cases and found that while only 9% of these decisions had one or more dissenting votes when published, 40% did within the conference. See Lee Epstein, Jeffrey A. Siegal & Harold J. Spaeth, The Norm of Consensus on the U.S. Supreme Court, 45 AM. J. POL. SCI. 362 (2001).
238. Taft changed his vote to join the Court opinion 48 times; McKenna, 38 times; Holmes, 80 times; Van Devanter, 45 times; McReynolds, 99 times; Brandeis, 95 times; Sutherland, 87 times; Butler, 60 times; Sanford, 93 times; and Stone, 35 times. Figure H represents these numbers as a percentage of the total number of cases in which each Justice participated. Figure H shows that McKenna was the Justice most likely to switch his conference vote, doing so in 10.3% of all cases in which he participated. Justice McReynolds was the next most likely, switching his vote in 9.3% of all cases in which he participated. Justices Van Devanter and Taft, by contrast, switched their conference vote in only 3.9% and 4.7% of the cases in which they participated. This is a bit misleading, however, because Taft and Van Devanter so rarely differed from the Court in conference. Figure I therefore calculates the percentage of all a Justice's dissenting votes in conference that are switched to join a Court opinion. It indicates that Taft and Van Devanter were actually quite willing to change their votes in order to display judicial solidarity, switching (respectively) 80.0% and 83.3% of their dissenting votes in order to join the opinion of the Court. By this measure, Justices Stone (50%) and Brandeis (57.2%) were the least pliable of the all the Justices, with McReynolds (59.3%) and Holmes (60.6%) close behind them. Figure J represents the converse of Figure H. It shows the ability of a Justice to attract votes. For each Justice, Figure J divides the total number of votes that changed to join a Justice's opinion by the total number of the Justice's opinions. Figure J allows us to see why McKenna was such a weak Justice. Not only did he change his vote to join the opinions of other Justices in 10.3% of his cases, but other Justices only infrequently changed their votes to join his opinions. McKenna attracted votes at the rate of only 28 for every 100 opinions. McKenna's performance can be contrasted with that of Van Devanter, who attracted votes at the rate of 74 for every 100 opinions. Figure J gives us some measure of the authority wielded by Van Devanter within the Court. It also demonstrates why Butler was such a powerful Justice - in Brandeis's assessment "one of the most powerful on [the] Bench" - as were Sutherland and Holmes. Brandeis-Frankfurter Conversations, supra note 74, at 336. Saford, on the other hand, was quite weak. (Brandeis said of him that "Sanford ought never to have been above D.J. - a dull bourgeois mind - terribly tiresome." Id.) Figure K, which displays the percentage of a Justice's unanimous opinions that were without dissenting or uncertain votes in conference, shows the relative success of different Justices in achieving unanimity. Thus 76% of McKenna's unanimous opinions were already unanimous in conference, whereas only 47% of Butler's unanimous opinions were unanimous in conference. Figure K confirms the internal authority carried by Justices Butler, Holmes, Sutherland, and Van Devanter. Figure L illustrates how these differences affected Taft's assignment of opinions. Figure L calculates the number of a Justice's cases that had a unanimous vote in conference (without dissenting or uncertain votes) as a percentage of the Justice's total number of opinions (in the set of conference cases). Not surprisingly, 69% of the cases McKenna wrote were already unanimous in conference, whereas only 38% of the cases written by Butler were unanimous in conference.
239. See supra note 139.
240. Figure 19 compares for each Term between 1922 and 1928 the percentage of conference cases that were decided by a unanimous published opinion, the percentage of conference cases that were unanimous in conference (without dissenting or uncertain votes), and the percentage of conference cases ultimately decided unanimously that had uncertain but no dissenting votes in conference. The percentage of published opinions that are unanimous can be expressed as a multiple of the percentage of cases that are decided unanimously within conference. The greater the multiple, the more the Court has succeeded in transforming private disagreement in conference into public unanimity. Figure 20 displays these multiples for each Term between 1922 and 1928. It shows that the Court made especially concerted efforts to maintain the unanimity of its published opinions during the 1923 and 1928 Terms.
241. See supra Figure 5.
242. This difference is not statistically significant at the .05 level.
243. This difference is statistically significant at the .01 level. These figures define a unanimous conference vote as one without dissenting or uncertain votes. If a unanimous conference vote is defined as one merely without dissenting votes, cases reaching the Court through its mandatory jurisdiction were 64% unanimous in conference; cases reaching the Court through the discretionary writ of certiorari were 53% unanimous in conference. Figure 22 shows the percentage of conference cases both decided unanimously at conference (without dissenting and uncertain votes), and decided by a unanimous published opinion, term by term and disaggregated by jurisdiction. It shows that the cases reaching the Court through its discretionary certiorari jurisdiction were less unanimous at conference than were cases that reached the Court through its mandatory jurisdiction, although the margin between the two began to lessen after the Judiciary Act of 1925 took effect, and by the 1928 Term cases reaching the Court through its certiorari jurisdiction were actually more unanimous in conference than were cases that had reached the Court by way of its mandatory jurisdiction. This was probably because the "trifling" controversies that could previously have been brought to the Court through writ of error and appeal were eliminated from the Court's docket. See supra note 193. The increasing dissensus associated with the Court's mandatory docket after the 1925 Act is striking; no such trend is discernable in the cases that came to the Court through certiorari. Figure 23, which displays the same multiples as those illustrated in Figure 20, see supra note 205, but disaggregated by jurisdiction, shows that the Court made significantly greater efforts to achieve unanimity in opinions published in cases reaching the Court through certiorari than in cases reaching the Court through its mandatory jurisdiction. The difference is in fact quite striking. In opinions written in cases that had reached the Court through its mandatory jurisdiction, the percentage of published opinions that were unanimous ranged from 1.4 to 1.8 times the percentage of cases that were unanimous in conference. Multiples for cases that reached the Court through the discretionary writ of certiorari, by contrast, were higher in every single Term, ranging from 1.8 to 2.7. It is almost as if the decision to use the writ of certiorari to hear and decide a case carried within it an implicit commitment especially to strive to decide it unanimously. This may reflect the fact that in such cases the Court felt particularly obligated to provide clear and unambiguous guidance to the legal public.
244. But see supra Figure 22 and note 193.
245. We cannot know the full extent of the difference, because we do not know the conference voting records of the contemporary Court. It might be that the Court's current 27% unanimity rate, which is largely obtained in cases coming to the Court through certiorari, overstates the spontaneous cohesion of the contemporary Court.
246. At an early stage of my research, I had attempted to classify the Court's opinions by their subject matter. Although I ultimately classified all the opinions decided during the Court's 1923 Term, I discontinued the effort because I found the process of classification to be too arbitrary to provide reliable data. Nevertheless, for what it is worth, of the 47 opinions in the 1923 Term that I classified as dealing with "constitutional law" (which included issues of Due Process, Equal Protection, interstate commerce, both dormant and plenary, and the Contracts Clause), 74% were decided unanimously. This is less than the 86% unanimity rate for all opinions decided that Term. The unanimity rate at conference for the 45 such opinions of which we have conference records was 47%, which equals the rate of unanimity at conference for all cases during the 1923 Term. See Figure 19. Forty-three of these 45 opinions had come to the Court through its mandatory jurisdiction. Of these, 49% were decided unanimously at conference, compared to a 54% conference unanimity rate for all cases in the 1923 Term coming to the Court through its mandatory jurisdiction. See Figure 22. If instead of subject matter we view the certification process as a proxy for difficult cases, since lower federal courts would likely certify only especially significant or especially divisive questions of law, we can say that during the 1921-1928 Terms, the Court published 56 full opinions in cases coming to the Court by way of certification from lower federal courts. Of these, 80% were unanimous. Of the 43 of these opinions for which we conference records, 51% were unanimous in conference. For discussions of certification, see REYNOLDS ROBERTSON & FRANCIS R. KIRKHAM, JURISDICTION OF THE SUPREME COURT OF THE UNITED STATES §§ 112-19 (1936); Hartnett, supra note 24, at 1710-12.
247. O'Brien, supra note 132, at 101.
248. I should note, however, that, as Figure 22 illustrates, the unanimity rate in conference for opinions in cases that reached the Court through its mandatory jurisdiction in the 1928 Term was only 35.3%, while the unanimity rate in conference for opinions in cases that reached the Court through its discretionary jurisdiction was only 38.6%. These figures come very close to the unanimity rate of the published opinions of the contemporary Court. Figures 19 and 23 indicate, however, that the Taft Court took extraordinary pains during the 1928 Term to maintain a relatively high rate of unanimity in its published opinions.
249. See supra text accompanying note 55; Lee Epstein et al., supra note 202.
250. Justice Willis Van Devanter, The Supreme Court of the United States, 5 IND. L.J. 553, 560 (1930). Van Devanter continued, "Whatever may be the effect upon public opinion at the moment, freedom to dissent is essential, because what must ultimately sustain the court in public confidence is the character and independence of the judges." Id.
251. In 1923 Brandeis commented to Frankfurter apropos of Butler, Referring to a writer in June 1923 Journal of Am Bar Assoc. who would suppress all dissenting opinions as "vanity of dissent," [Brandeis] said "he isn't alone in that view. P. Butler rather regards dissents as vanity of dissenters & would like not to have them. He himself rarely dissents - partly because of newness, partly because of disbelief in them." Brandeis-Frankfurter Conversations, supra note 74, at 313-14.
252. Stone Papers (referring to France v. French Overseas Corp., 277 U.S. 323 (1928)). Butler was so pleased with his disquisition that he sent it under separate cover to Taft. Letter from Pierce Butler to William Howard Taft (May 19, 1928) (Taft Papers, Reel 302). In that same case, Taft wrote to Stone, "I suppose I ought not to dissent. I think we dissent too much especially when a principle has once been decided." Stone Papers. Stone himself refused to join Brandeis's dissent in Cudahy Packing Co. v. Hinkle, 278 U.S. 460 (1929), claiming that he had a "general disposition not to dissent unless I feel strongly on the subject." Letter from Harlan Fiske Stone to Louis D. Brandeis (Feb. 16, 1929) (Brandeis Papers).
253. Holmes Papers (referring to Nashville, Chattanooga & St. Louis Ry. Co. v. White, 278 U.S. 456 (1929)). In that same case, Butler wrote privately to Van Devanter, You and I voted to reverse. The opinion does not change my view of the matter. I still think the ordinance as applied here unreasonable & arbitrary. I also think . . . that evidence was erroneously excluded. But it is doubtful whether dissenting opinion or the mere noting of disagreement would do any good; and, unless you incline the other way, I am disposed to acquiesce. What say you? Letter from Pierce Butler to Willis Van Devanter (Jan. 22, 1929) (Van Devanter Papers). Van Devanter wrote Holmes, "I do not agree. But as the matter is open to discussion, I shall not object, but acquiesce." Holmes Papers. In another Holmes opinion, Butler wrote to Holmes, "I voted the other way; but yielding to the weight of reason and votes, I acquiesce." Id. (referring to W. Union Tel. Co. v. Georgia, 269 U.S. 67 (1925)).
254. Stone Papers (referring to Standard Oil Co. v. Marysville, 279 U.S. 582 (1929)). To the draft of a Brandeis opinion, he replied, "I voted & still prefer to reverse, but I shall acquiesce unless one protests." Brandeis Papers (referring to St. Louis-San Francisco Ry. Co. v. Ala. Pub. Serv. Comm'n, 279 U.S. 560 (1929)). In this same case, Sutherland wrote to Brandeis, "Not for, but shall not be 'agin.'" Id. McReynolds wrote, "I am not wholly in accord with this but do not care to say anything." Id.
255. Stone Papers (referring to Heiner v. Tindle, 276 U.S. 582 (1928)). In that same case, Holmes commented, "My inclination is the other way . . . . But I don't intend to say anything if you can get a majority." Id. In response to the draft of Taft's unanimous opinion in Chicago & Northwestern Ry. Co. v. Nye Schneider Fowler Co., 260 U.S. 35 (1922), Brandeis wrote, "I still think the reasoning as to $100 fee wrong. But the opinion handles the matter so deftly that I think there will be no such lasting harm done as to require dissent. So as our Junior says: 'I'll shut up.'" Taft Papers (Reel 614). Although Holmes acknowledged that the opinion was "plausibly reasoned," he added, "but as I voted the other way and still have some misgivings I retain them to see if any dissentis written. It would not be by me." Id.
256. Holmes Papers (referring to Atl. Coast Line R.R. Co. v. Southwell, 275 U.S. 64 (1927)). Brandeis joined Holmes's opinion in A.G. Spalding & Bros. v. Edwards, 262 U.S. 66 (1923), even though Brandeis thought that Holmes's "construction of this Constitutional provision is wrong." Holmes Papers. Holmes, in turn, responded to the draft of Brandeis's unanimous opinion in Taubel-Scott-Kitzmiller v. Fox, 264 U.S. 426 (1924), with the observation that "I am unconvinced. I think the other interpretation more reasonable." Brandeis Papers. To that same opinion, McReynolds wrote, "I shall not object." Id. Butler wrote, "I think you make a strong argument for the result & it is likely you are right. As you know I inclined the other way. I am cotent - & concur." Id. And McKenna answered, "This leaves me no excuse not to be right so I say Yes." Id.
257. Stone Papers (referring to Seeman v. Phila. Warehouse Co., 274 U.S. 403 (1927)). Brandeis had written to Stone, "I shall probably acquiesce & await Conference before deciding." To the draft of Stone's unanimous opinion reversing a criminal conviction in Brasfield v. United States, 272 U.S. 448 (1926), Holmes wrote, "I shall not dissent . . . . But I would not reverse for what the Judge did." In that same case, Sanford wrote Stone, "I regret that I cannot concur except in the result. . . . But I shall not dissent or express any separate opinion." Stone Papers. To Taft's draft opinion in Continental Insurance Co. v. United States, 259 U.S. 156 (1922), Holmes responded, "Where reason totters on the throne, Faith takes my hand and leads me on." Taft Papers (Reel 615). In response to Taft's draft opinion in United States v. Rider, 261 U.S. 363 (1923), Holmes wrote, "I defer humbly to the Commander in Chief. What he says goes." Taft Papers (Reel 615).
258. Brandeis Papers (referring to United States v. Ludey, 274 U.S. 295 (1927)). In this same case, Taft wrote, "I concur but these discussions always make my head buzz." Id. Sanford wrote, "While I voted to 'reverse' with some doubt, this doubt has been removed by your clear and strong presentation of the case-and I unreservedly concur." Id.
259. Stone Papers (Fox River Paper Co. v. R.R. Comm'n, 274 U.S. 651 (1927)). Butler commented, "I voted the other way in this and will withhold further expression until I hear what others say at the Conference." Id.
260. Holmes Papers (referring to United States v. Sischo, 262 U.S. 165 (1923)).
261. Holmes Papers (referring to Mercantile Trust Co. v. Wilmot Rd. Dist., 275 U.S. 117 (1927)). To this same opinion, Brandeis responded, "I do not assent to your interpretation of the statute, but I 'shut up.'" Id. To the draft of another unanimous Holmes opinion, Sanford responded, "I regret that I do not see my way clear to concurring in this view (albeit most persuasively stated), but do not expect to dissent." Holmes Papers (referring to United States v. Cambridge Loan & Bldg. Co., 278 U.S. 55 (1928)). To that same opinion, Sutherland wrote, "I give up. You are very persuasive, tho I still "have my doubts.'" Id. Butler wrote, "Doubtfully yes. I shall be glad to consider opposing views if any are expressed." Id. And Taft answered, "I concur. I don't like to do so to do so because the result should be different but if Congress wishes it different let it draft the law accordingly."
262. Holmes Papers (referring to Am. Ry. Express Co. v. Levee, 263 U.S. 19 (1923)). To the draft of a unanimous Brandeis opinion, Sanford wrote, "I still have great doubt, but shall not dissent." Brandeis Papers (referring to Napier v. Atlantic Coast Line R.R. Co., 272 U.S. 605 (1926)). To the draft of a Stone opinion, Sanford wrote, "Regret that I cannot agree, but do not expect to dissent." Stone Papers (referring to N.Y. Cent. R.R. Co. v. Johnson, 279 U.S. 310 (1929)).
263. Brandeis Papers (referring to W. & Atl. R.R. Co. v. Hughes, 278 U.S. 496 (1929)). To that same opinion, Butler responded, "I voted to reverse, but I acquiesce in the views of the majority as attractively put by you." Id. Sutherland returned simply, "I yield." Id. To another unanimous Brandeis opinion, McReynolds answered simply, "Sorry but I cannot agree." Brandeis Papers (referring to United States v. Ill. Cent. R.R. Co., 263 U.S. 515 (1924)); see also Brandeis Papers (referring to Davis v. Cornwell, 264 U.S. 560 (1924), a unanimous Brandeis opinion to the draft of which McReynolds had responded, "Sorry but I cannot agree").
264. Holmes Papers (referring to Jackman v. Rosenbaum Co., 260 U.S. 22 (1922)). To another Holmes opinion, McReynolds wrote, "Maybe it should be as it seems destined to be. But yr humble servant has something rather deeper than a doubt." Id. (referring to Diaz v. Gonzalez Y Lugo, 261 U.S. 102 (1923)).
265. Id. (referring to Gardner v. Chicago Title & Trust Co., 261 U.S. 453 (1923)). To that same opinion, Sutherland responded, "I am sorry not to agree with you, at least, for the present." Butler answered, "I still have grave doubt as to the result." Brandeis wrote, "I think you are wrong . . . - But I . . . shall 'shut up' unless others make a stir." Id. In another case, Van Devanter wrote to Stone, "I do not agree but shall submit." Stone Papers (referring to Raffel v. United States, 271 U.S. 494 (1926)). In that same case, Sanford wrote, "This is a strong presentation and while my doubt in the question is not entirely removed, I shall acquiesce in silence unless some one else dissents." Butler wrote, "In Silentio." Id.
266. Brandeis Papers (referring to Int'l Ry. Co. v. Davidson, 257 U.S. 506 (1922)). In that same case, Pitney wrote, "I say nothing." Id.
267. Holmes Papers (referring to First Nat'l Bank of Aiken v. J.L. Mott Iron Works, 258 U.S. 240 (1922)).
268. Holmes Papers (referring to Fed. Baseball Club of Baltimore v. Nat'l League of Prof'l Baseball Clubs, 259 U.S. 200 (1922)). To this draft opinion, Brandeis responded, "I have grave doubt, but shall acquiesce." Id.
269. Holmes Papers (referring to Stevens v. Arnold, 262 U.S. 266 (1923)). To that same opinion, Brandeis wrote, "I take your word for it." Id. McReynolds answered, "I shan't row with you tho I was inclined to agree with the Dist. Court." Id. And Taft commented, "I concur, though it is only because of my blind faith in you . . . ." Id.
270. Brandeis Papers (referring to Nashville, Chattanooga & St. Louis Ry. v. Tennessee, 262 U.S. 318 (1923)).
271. Brandeis Papers (referring to United States v. Pa. R.R. Co., 266 U.S. 191 (1924)). To the draft of this unanimous Brandeis opinion, McReynolds responded, "I hold a different view." Id. Sutherland commented, "Shall acquiesce." Id.
272. O'Brien, supra note 132, at 111.
273. Thus Holmes consistently averred that "I rather shudder at being held up as the dissenting judge and more or less contrasted with the Court." Letter from Oliver Wendell Holmes to Felix Frankfurter (Nov. 22, 1929), in HOLMES & FRANKFURTER, supra note 73, at 244-45. "I dislike even the traditional 'Holmes Dissenting.'" Letter from Oliver Wendell Holmes to Harold J. Laski (Nov. 10, 1923), in 1 HOLMES-LASKI LETTERS, supra note 82, at 560; see also Letter from Oliver Wendell Holmes to Miss Little (Feb. 4, 1929) (Holmes Papers, Reel 35, Frame 368) ("I rather grieve to be made to appear as chiefly occupied in dissenting. That is not my main business."); Letter from Oliver Wendell Holmes to Mrs. John Chipman Gray (Nov. 22, 1929) (Holmes Papers, Reel 24, Frame 339) ("I do not like being made to appear as a dissenting judge, though no doubt I have dissented more than some because I represent a minority on some very fundamental questions, upon which both sides should be heard.").
274. LEARNED HAND, THE BILL OF RIGHTS 72-73 (1958). Thus Canon 19 of the 1924 Canons of Judicial Ethics exhorted "judges constituting a court of last resort" to "use effort and self-restraint to promote solidarity of conclusion and the consequent influence of judicial decision." Canon 19, supra note 55.
275. A dissenting Justice, Brandeis told Frankfurter, doesn't "want to vent feelings or raise rumpus." Brandeis-Frankfurter Conversations, supra note 74, at 309.
276. Id. at 317. Brandeis added that "there may not be time, e.g. Holmes shoots them down so quickly & is disturbed if you hold him up." Id. For an example, see id. at 327.
277. Id. at 309. At another point Brandeis observed to Frankfurter, [T]here are reasons for withholding dissent, so that silence does not mean actual concurrence. (1) All depends on how frequent one's dissents have been when the question of dissenting comes, or (2) how important case, whether it's constitutionality or construction. So that I sometimes endorse an opinion with which I do not agree, "I acquiesce"; as Holmes puts [it] "I'll shut up." Id. at 328.
278. Letter from Louis D. Brandeis to William Howard Taft (Dec. 23, 1922) (Taft Papers, Reel 248). The case was FTC v. Curtis Publishing Co., 260 U.S. 568 (1923), and Brandeis ended up joining Taft's opinion, perhaps because the stakes were high enough. The majority opinion was by McReynolds, and, as Brandeis wrote to Taft, I differ widely from McReynolds concerning the functions and practices of the Trade Comm'n. . . . I think the Court's treatment of the Federal Trade Comm'n - is much like that given the I.C.C. in its early years - and I fear that the fruit of our action may again be bitter. It is not good statesmanship to clamp down safety valves. Id. Existing documents show Taft negotiating through Van Devanter to effect changes in the McReynolds opinion, even as he determined to write separately, "dubitante."
279. Working relationships among members of the Taft Court should thus be compared with those among members of the contemporary Court as described by Justice Scalia. See Antonin Scalia, The Dissenting Opinion, 1994 J. SUP. CT. HIST. 33, 40-41 (1994) (asserting that dissents "do not, or at least need not, produce animosity and bitterness among the members of the Court. . . . [D]issents are simply the normal course of things. Indeed, if one's opinions were never dissented from, he would begin to suspect that his colleagues considered him insipid, or simply not worthy of contradiction.");
280. see also Stanley H. Fuld, The Voices of Dissent, 62 COLUM. L. REV. 923, 928-29 (1962) ("In conference, each of the judges expresses himself frankly as he believes the law and the facts require and, when it comes time to publish his opinion, whether for majority or for minority, his writing reflects his actual thinking, with no punches pulled, though stated in reasoned and temperate tones. The personal atmosphere of the court is today, as it has ever been, instinct with a feeling of friendliness and good will.").
281. Canon 19, supra note 55.
282. Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429, 608 (1895) (White, J., dissenting).
283. Stone sometimes represented his practice of dissent in exactly these terms. So, for example, he once wrote to T.R. Powell, "One of my colleagues was once greatly surprised when I told him that I did not write a dissent to convince him. He then asked, "What do you write it for?' I replied: 'So that others will not think that I agree with you, and of course I have to sleep with myself every night and I like to rest well.'" Letter from Harlan Fiske Stone to T.R. Powell (Dec. 16, 1935) (Stone Papers).
284. Canon 19, supra note 55.
285. William A. Bowen, Dissenting Opinions, 17 GREEN BAG 690, 693 (1905). Obviously, if the Dissenting Opinion is injurious at all, it will be most unfortunately so in those cases which are of the greatest public moment. Yet it is the almost unbelievable fact, that it is the uniform justification of dissenting judges that the importance of the case warrants and demands their dissent. Id.
286. Evils of Dissenting Opinions, 57 ALB. L.J. 74, 75 (1898).
287. Id.
288. Id. at 74. The article adds, "The decision should be that of the court, and not of the judges as individuals. The judges should get together and render a decision settling the points in controversy." Id. Dissenting opinions may be as pleasant to the minority judge as it is for a boy to make faces at a bigger boy across the street, whom he can't whip. They give a judge an opportunity of exhibiting his individual views and opinions. But what good does that do? What cares the public for the judge's individual views, except in so far as, by reason of his position, they assume the force of law? The only concern of the public is with the decision of the court as a court, so that they may know what it is, and know how to govern themselves. Id. at 75. From this perspective, dissent was not only useless, it was also destructive of the law itself.
289. Brandeis-Frankfurter Conversations, supra note 74, at 330; see also N. Sec. Co. v. United States, 193 U.S. 197, 400 (1904) (Holmes, J. dissenting) ("[I]t is useless and undesirable, as a rule, to express dissent . . . .")
290. FTC v. Beech-Nut Packing Co., 257 U.S. 441, 456 (1922) (Holmes, J., dissenting).
291. Holmes was careful, however, to cast his dissent as a disagreement of legal principle rather than as a quarrel with the Court. Just as he frequently regarded opinions as expressions of "pure principle," Letter from Oliver Wendell Holmes to Felix Frankfurter (Nov. 6, 1926), in HOLMES & FRANKFURTER, supra note 73, at 206, so he stressed that in writing dissents "[w]e are giving our views on a question of law, not fighting with another cock," Letter from Oliver Wendell Holmes to Harold J. Laski (Nov. 10, 1923), in 1 HOLMES-LASKI LETTERS, supra note 82, at 560. Before agreeing to join a Brandeis dissent, for example, he once insisted that Brandeis remove a sentence to the effect that "[t]he Court gives no reason for declaring [the Federal Gift Tax Act] to be unreasonable." Holmes explained, "I think it better never to criticize the reasoning in opinions of the Court and its members. I feel very strongly about this. Of course it is OK to hit them by indirection as hard as you can." Brandeis Papers (referring to Untermyer v. Anderson, 276 U.S. 440 (1928)). Holmes added, "If you will modify these expressions so as to avoid the personal touch I am with you, with delight." Id. Holmes edited another Brandeis dissent "to avoid the dogmatic air when one is in a minority." Id. (referring to United States v. Or. Lumber Co., 260 U.S. 290 (1922)). "Dissenting Judges often say This Court' etc.," Holmes observed. "It has an air of horror or contempt and I dislike the phrase extremely. I hope you will change it." Id. Thus although Holmes experienced the "pleasure in writing" dissents as flowing from the power to "say just what you think" without "having to blunt the edges and cut off the corners to suit someone else," it was a pleasure that did not derive from debating with the Court, but rather from the free pursuit of legal principles, the articulation of "some proposition broader than it is wise to attempt except in a dissent." Letter from Oliver Wendell Holmes to Mrs. John Chipman Gray (May 5, 1928) (Holmes Papers, Reel 24, Frame 228);
292. see also Letter from Oliver Wendell Holmes to Harold J. Laski (Aug. 16, 1924), in 1 HOLMES-LASKI LETTERS, supra note 82, at 646-47 (noting the advantages of dissenting); Letter from Oliver Wendell Holmes to Baroness Moncheur (Jan. 27, 1928) (Holmes Papers, Reel 27, Frame 216).
293. See, e.g., Washington v. Dawson & Co., 264 U.S. 219, 228 (1924) (Separate Opinion of Holmes, J.) ("The reasoning of Southern Pacific Co. v. Jensen, 244 U.S. 205, and cases following it never has satisfied me, and therefore I should have been glad to see a limit set to the principle. But I must leave it to those who think the principle right to say how far it extends."); Miles v. Graham, 268 U.S. 501 (1925) (Holmes had dissented in Evans v. Gore, 253 U.S. 245 (1920), the precedent applied by Miles); Thomas C. Grey, Holmes on the Logic of the Law, in THE PATH OF THE LAWAND ITS INFLUENCE 131, 141 (Steven J. Burton ed., 2000) (describing Holmes's reluctance to depart from precedent);
294. Thomas C. Grey, Molecular Motions: The Holmesian Judge in Theory and Practice, 37 WM. & MARY. L REV. 19, 27-36 (1995) (discussing Holmes's tendency to defer to precedent and legislative judgment).
295. 268 U.S. 652 (1925).
296. Id. at 673 (Holmes, J., dissenting).
297. Brandeis-Frankfurter Conversations, supra note 74, at 314.
298. Id.
299. By the 1930s, Brandeis was able to offer a clear line of demarcation. See, e.g., Comm'r v. Coronado Oil & Gas Co., 285 U.S. 393, 406-07 (1932) (Brandeis, J., dissenting). Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right. . . . This is commonly true even where the error is a matter of serious concern, provided correction can be had by legislation. But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions. Id. In the 1920s, however, Brandeis was still considerably more tentative on the point. See, e.g., Di Santo v. Pennsylvania, 273 U.S. 34, 42-43 (1927) (Brandeis, J., dissenting): It is usually more important that a rule of law be settled, than that it be settled right. Even where the error in declaring the rule is a matter of serious concern, it is ordinarily better to seek correction by legislation. Often this is true although the question is a constitutional one. The human experience embodied in the doctrine of stare decisis teaches us, also, that often it is better to follow a precedent, although it does not involve the declaration of a rule. This is usually true so far as concerns a particular statute whether the error was made in construing it or in passing upon its validity. But the doctrine of stare decisis does not command that we err again when we have occasion to pass upon a different statute. In the search for truth through the slow process of inclusion and exclusion, involving trial and error, it behooves us to reject, as guides, the decisions upon such questions which prove to have been mistaken. This course seems to me imperative when, as here, the decision to be made involves the delicate adjustment of conflicting claims of the Federal Government and the States to regulate commerce. The many cases on the Commerce Clause in which this Court has overruled or explained away its earlier decisions show that the wisdom of this course has been heretofore recognized. Id. (footnotes omitted). For a good discussion of Brandeis's approach to precedent, see Morton J. Horwitz, Foreword: The Constitution of Change: Legal Fundamentally Without Fundamentalism, 107 HARV. L. REV. 32, 53 n.99 (1993). For an example of a similar perspective to Brandeis's, see Letter from Harlan Fiske Stone to John Bassett Moore (Apr. 10, 1929) (Stone Papers) ("[O]rdinarily I do not record dissents in matters of statutory interpretation.").
300. Evils of Dissenting Opinions, supra note 250, at 75.
301. Olmstead v. United States, 277 U.S. 438, 472 (1928) (Brandeis, J., dissenting).
302. Brandeis Papers (draft of Brandeis's dissent in United States v. Moreland, 258 U.S. 433 (1922)).
303. Taft wrote, I am very pleased with your opinion . . . except the last four or five sentences in respect to the growth of the Constitution. I object to those words, because they are certain to be used to support views that I could not subscribe to. Their importance depends, as old Jack Bunsby used to say, on their application, and I fear that you and I might differ as to their application. . . . Now it is possible - I have felt that way myself sometimes - that these particular sentences constitute the feature of the opinion that you most like, and therefore that you don't care to eliminate them. If not, I can write a short concurring opinion, avoiding responsibility for those words . . . . Letter from William Howard Taft to Louis D. Brandeis (Mar. 30, 1922) (Taft Papers, Reel 240). Brandeis replied, "I believe strongly in the view expressed in the last five sentences but I agree with you that they are not necessary and I am perfectly willing to omit them." Letter from Louis D. Brandeis to William Howard Taft (Mar. 39, 1922) (Taft Papers, Reel 240).
304. Truax v. Corrigan, 257 U.S. 312, 338 (1921).
305. Taft's perspective might be said to reflect the received wisdom of the time. For a good example, see, e.g., South Carolina v. United States, 199 U.S. 437, 448-49 (1905). The Constitution is a written instrument. As such its meaning does not alter. That which it meant when adopted it means now. Being a grant of powers to a government its language is general, and as changes come in social and political life it embraces in its grasp all new conditions which are within the scope of the powers in terms conferred. In other words, while the powers granted do not change, they apply from generation to generation to all things to which they are in their nature applicable. This in no manner abridges the fact of its changeless nature and meaning. Those things which are within its grants of power, as those grants were understood when made, are still within them, and those things not within them remain still excluded. Id.
306. For good discussions of the transition in American jurisprudence to the Brandeis view of constitutional law, see Howard Gillman, The Collapse of Constitutional Originalism and the Rise of the Notion of the "Living Constitution" in the Course of American State-Building, 11 STUD. AM. POL. DEV. 191 (1997);
307. Barry Friedman, The History of the Countermajoritarian Difficulty, Part Four: Law's Politics, 148 U. PA. L. REV. 971, 1019 (2000);
308. G. EDWARD WHITE, THE CONSTITUTION AND THE NEW DEAL 198-239 (2000). Gillman, Friedman, and White date the demise of the Taft view to about the time when Figure 10 suggests that unanimity rates began to collapse.
309. CHARLES EVANS HUGHES, THE SUPREME COURT OF THE UNITED STATES 68 (1928).
310. See Evils of Dissenting Opinions, supra note 250, at 75. If a dissenting opinion is well written it impresses not only the particular litigant, but all who read it, with the idea that injustice has been done by the courts; a feeling of dissatisfaction arises, a feeling of great wrong is cast broadcast. The court has been weakened in popular esteem, for in the opinion of the reader of the dissenting opinion it has lent itself to injustice and inflicted wrong. Id.
311. "Even where the theory of the dissent does not ultimately prevail, its expression is no futile gesture. The law is not a dead or static mechanism. It is a living organism which grows and develops to meet the ever-shifting panorama of life." Joseph M. Proskauer, Dissenting Opinions, 160 HARPER'S MONTHLY MAG. 549, 554 (April 1930). To Frankfurter, Stone commented that Proskauer's article was "good and very instructive to a lot of people who think law, especially in our Court, is a system of mathematics. Sometime, though, I think if it were applied with scientific precision, that we might come out better than we do now." Letter from Harlan Fiske Stone to Felix Frankfurter (Apr. 4, 1930) (Stone Papers). On the relationship between Brandeis's view of law to Stone's own practice of dissent, see Letter from Harlan Fiske Stone to Felix Frankfurter (June 8, 1928) (Stone Papers): I always write a dissent with real reluctance, and often acquiesce in opinions with which I do not fully agree, so you may know how strongly I have really felt in order to participate in so many dissents as I have recently. But where a prevailing view rests upon what appears to me to be false economic notions, or upon reasoning and analogies which will not bear analysis, I think great service is done with respect to the future development of the law, in pointing out the fallacies on which the prevailing view appears to rest, even though the particular ruling made should never be reversed. Id. Frankfurter answered this letter by affirming, "I also share your conviction as to the 'great service' which is rendered by dissenting opinions for the future development of the law." Letter from Felix Frankfurter to Harlan Fiske Stone (June 11, 1928) (Stone Papers). By the 1930s, Stone had become entirely comfortable with this position.
312. See Harlan F. Stone, Dissenting Opinions Are Not Without Value, 26 J. AM. JUDICATURE SOC'Y 78, 78 (1942) [hereinafter Stone, Dissenting Opinions] ("While the dissenting opinion tends to break down a much cherished illusion of certainty in the law and of infallibility of judges, it nevertheless has some useful purposes to serve. . . . Its real influence, if it ever has any, comes later, often in shaping and sometimes in altering the course of the law."); Letter from Harlan Fiske Stone to T.R. Powell (Dec. 16, 1935) (Stone Papers) ("Of course I agree with you that no amount of criticism will affect the courts today, but it is likely to have a profound effect on the courts of the next generation.").
313. Washington v. W.C. Dawson & Co., 264 U.S. 219, 236 (1924) (Brandeis, J., dissenting). There is clearly no necessary or logical relationship between this jurisprudential account of law and the role of the Court envisioned by the 1925 Act. That is why Justices like Taft and Van Devanter could simultaneously support the Act and advocate a jurisprudence that emphasized stability and certainty. But in the long run there might be a natural affinity between envisioning the Court as akin to a "ministry of justice" and envisioning the law as evolving continuously to adjust to a changing social environment.
314. William O. Douglas, The Dissent: A Safeguard of Democracy, 32 J. AM. JUDICATURE SOC'Y 104, 105 (1948). Douglas continued, Certainty and unanimity in the law are possible both under the fascist and communist systems. They are not only possible; they are indispensable; for complete subservience to the political regime is a sine qua non to judicial survival under either system. . . . When we move to constitutional questions, uncertainty necessarily increases. A judge who is asked to construe or interpret the Constitution often rejects the gloss which his predecessors have put on it. . . . And so it should be. For it is the Constitution which we have sworn to defend, not some predecessor's interpretation of it. Stare decisis has small place in constitutional law. The Constitution was written for all time and all ages. It would lose its great character and become feeble, if it were allowed to become encrusted with narrow, legalistic notions that dominated the thinking of one generation. So it is that the law will always teem with uncertainty. Id. at 105-06.
315. Ralston, supra note 158, at 565.
316. Letter from William Howard Taft to Willis Van Devanter (Dec. 26, 1921) (Van Devanter Papers); see also supra note 158.
317. Canon 19, supra note 55.
318. 347 U.S. 483, 486 (1954).
319. "Being out-voted the minority does not accept the judgment of the majority, but appeals to the judgment of the profession and to the lay public for vindication, thereby sowing the seeds of discontent." J.W. Sturgis, Majority Abdication, 9 A.B.A. J. 815, 815 (1923).
320. Letter from William Howard Taft to Henry L. Stimson (May 18, 1928) (Taft Papers, Reel 302).
321. Evils of Dissenting Opinions, supra note 250, at 75.
322. Fuld, supra note 244, at 928.
323. For a discussion of the dialectical relationship of the Court to the popular will that sustains law, see Robert C. Post & Reva B. Siegel, Equal Protection by Law: Federal Antidiscrimination Legislation After Morrison and Kimel, 110 YALE L.J. 441, 513-517 (2000).
324. Douglas, supra note 273, at 105-06.
325. See, e.g., Jesse W. Carter, Dissenting Opinions, 4 HASTINGS L.J. 118, 118 (1953) ("The right to dissent is the essence of democracy."); Id. at 123 ("Freedom of speech is one of the greatest rights guaranteed to the individual by the Bill of Rights and is an essential ingredient of any democracy. It applies no less to the dissenting judge than it does to the average citizen. . . . [T]he same right to freedom of expression should be accorded judges as is accorded legislators or the executive in their respective fields.").
326. See, e.g., Richard B. Stephens, The Function of Concurring and Dissenting Opinions in Courts of Last Resort, 5 U. FLA. L. REV. 394, 400 (1952) ("Freedom of expression for the appellate judge is closely related to the constitutional guarantee of freedom of speech.").
327. William J. Brennan, Jr., In Defense of Dissents, 37 HASTINGS L.J. 427, 435 (1986).
328. O'Brien, supra note 132, at 107.
329. Although Brandeis was widely rumored to be La Follette's first choice for a Vice Presidential running-mate, see La Follette To Run For Presidency As Progressive; Brandeis May Be Choice for Vice Presidential Nomination at Cleveland Conference. Offer To Be Made Today, N.Y. TIMES, July 3, 1924, at Al, even Taft believed that despite Brandeis's manifest sympathy for La Follette, Brandeis "would not go so far as La Follette with reference to the abolition of the power of the Court," Letter from William Howard Taft to Max Pam (Sept. 12, 1924) (Taft Papers, Reel 267). Brandeis seems to intimate as much in his letter to Felix Frankfurter of June 16, 1922.
330. See BRANDEIS-FRANKFURTER LETTERS, supra note 92, at 103.
331. Stone, Dissenting Opinions, supra note 271, at 78.
332. To which Stone added, "But that is sufficient justification for me." Letter from Harlan Fiske Stone to Felix Frankfurter (Jan. 16, 1930) (Stone Papers).
333. Id.
334. So, for example, the editors of the American Law Review argued in 1886 that "the practice of writing dissenting opinions" ought not to be prohibited by legislation, because [i]t has always been recognized that judicial decisions which merely announce conclusions of law, without either referring to authority for such conclusions or offering reasons in support of them, carry little weight. If mere legislation is the office of the courts, they would carry the weight which an act of legislation carries. Experience, we take it, shows that judicial decisions which are neither founded on authority nor on sound reasoning are never allowed to remain unquestioned by the profession. Cases are known where such decisions, always unsatisfactory to the profession, have been constantly assailed and finally overthrown after the lapse of many years. It is the office of the judge who writes a judicial decision to give the reasons upon which the court proceeds. The proper administration of justice is not satisfied with anything else. If these are omitted, the judgment becomes a mere arbitrary exercise of power. If it is the office of the judicial courts to furnish the reasons which the court gives for its decision, it cannot be affirmed with any show of logic that it is not equally their office to furnish the reasons which a portion of the court may give for the opposing view. Dissenting Opinions, 20 AM. L. REV. 428, 429 (1886).
335. On the tension between the judiciary and the new profession of legal academia, see JEROLD S. AUERBACH, UNEQUAL JUSTICE: LAWYERS AND SOCIAL CHANGE IN MODERN AMERICA 91-92 (1976).
336. Benjamin N. Cardozo, Introduction, SELECTED READINGS ON THE LAW OF CONTRACTS FROM AMERICAN AND ENGLISH LEGAL PERIODICALS vii, viii-ix (Ass'n of Am. Law Schs. ed., 1931).
337. Id. at ix.
338. Learned Hand, Have the Bench and Bar Anything to Contribute to the Teaching of Law?, 24 MICH. L. REV. 466, 468 (1926).
339. Charles E. Hughes, Foreword, 50 YALE L.J. 737, 737 (1941). When Stone circulated the draft of his opinion in Raffel v. United States, 271 U.S. 494 (1926), Holmes remarked on Stone's citation of a Harvard Law Review note: "If this is one of those editorial notes, I should not cite it." Stone Papers. Stone, however, refused to remove the citation. 271 U.S. at 499.
340. Hughes, supra note 297, at 737.
341. Id.
342. BRANDEIS-FRANKFURTER LETTERS, supra note 92, at 121. Brandeis continued, [I]t is, in the main, inaccessible to the bench and the bar. Now that the law journals have become an incident of the law schools of the Universities, the number of valuable contributions should increase rapidly. Would it not be desirable that the Law Schools should cooperate in publishing an Index covering all valuable articles, which have appeared during the last 35 years . . . and arrange for supplements to be published annually thereafter? The fact that articles would be thus made accessible should tend to encourage production. Id. at 121-22.
343. The Brandeis-Frankfurter Conversations, supra note 74, at 309. Brandeis emphasized to Zechariah Chafee "the value of a Law School professorship, as a fulcrum in efforts to improve the law and through it, society."
344. IV THE LETTERS OF LOUIS D. BRANDEIS 564 (Melvin I. Urofsky & David W. Levy eds., 1975).
345. Washington v. W.C. Dawson & Co., 264 U.S. 219, 236, n.18 (1924) (Brandeis, J., dissenting). Fifteen years after Dawson & Co., Brandeis's dissenting appeal to the usefulness of law review literature would evolve in the hands of his protégé Frankfurter into a Court opinion that could overrule a precedent (Evans v. Gore, 253 U.S. 245 (1920)) on the basis of a frank avowal that "[t]he decision met wide and steadily growing disfavor from legal scholarship and professional opinion." O'Malley v. Woodrough, 307 U.S. 277, 281 (1939). In dissent, Butler grumbled that as against "the deliberate judgments of this Court" Frankfurter could adduce only the "selected gainsaying writings of professors, - some are lawyers and some are not - but without specification of or reference to the reasons upon which their views rest. And in addition it cites notes published in law reviews, some signed and some not; presumably the latter were prepared by law students." Id. at 298 (Butler, J., dissenting).
346. Letter from Oliver Wendell Holmes to John Henry Wigmore (May 17, 1906) (Holmes Papers, Reel 39, Frame 15).
347. A.W.B. Simpson finds an analogous tension between "a concept of law rooted in reason, and one rooted in authority" in the genre of the legal treatise. A.W.B. Simpson, The Rise and Fall of the Legal Treatise: Legal Principles and the Forms of Legal Literature, 48 U. CHI. L. REV. 632, 665 (1981). Simpson associates the latter view of law with "the spirit of positivism." Id. at 668; see also Collier, supra note 48, at 215-23 (distinguishing "institutional authority from intellectual authority").
348. Stone, Dissenting Opinions, supra note 271, at 78.
349. See Figures 26-28.
350. Letter from Harlan Fiske Stone to Hessel E. Yntema (Oct. 24, 1928) (Stone Papers).
351. "It helps the cause of justice, and it helps the courts; and while there may be differing opinions as to the particular criticism and its soundness, this does not in the slightest degree detract from its usefulness." Letter from William Howard Taft to A.G. Gulliver (Feb. 6, 1922) (Taft Papers, Reel 239).
352. Letter from William Howard Taft to Horace Taft (Jan. 7, 1929) (Taft Papers, Reel 307). The oddly disjunctive relationship between Taft and the legal academy is nicely captured by the occasion when Roscoe Pound asked Taft to consent to be interviewed by Pound's student Olson for the purpose of legal research. Taft graciously accepted, and then wrote Pound this account of the interview: Mr. Olson presented your letter of introduction of December 24th. I am afraid I was not very helpful to him. I don't quite understand what his particular purpose was. You describe it and he describes it as the investigation of the psychology of judicial decisions. So far as he developed it to me, it was
353. 272 U.S. 52 (1926). Letter from James M. Beck to William Howard Taft (Oct. 24, 1929) (Taft Papers, Reel 315). Beck observed, "As often, the College Professors attempt to reverse the Supreme Court." Id.
354. Letter from William Howard Taft to James M. Beck (Oct. 25, 1929) (Taft Papers, Reel 315). When Milton Handler, fresh from his clerkship with Stone, sent Taft a copy of Handler's article that had just appeared in the Columbia Law Review, he evinced full awareness of the strained relationship between legal academia and the Court: I suppose that the chief raison d'etre of an article is the sublimation of the ego of the writer, and how else can this be done but by a restrained criticism of Judicial opinion. Only by showing the Courts to be wrong can the author display his own unparalleled wisdom. I fear that in this paper I fall into this pattern of law writer. While somewhat critical of the work of the Court, I have tried to approach the problem in a truly impartial and scientific way and I hope that my study will be of some value in this field. Letter from Milton Handler to William Howard Taft (Nov. 19, 1928) (Taft Papers, Reel 306). Taft replied graciously thanking Handler for the article, adding that "[w]e are always glad to be advised by academic leaders." Letter from William Howard Taft to Milton Handler, November 23, 1928 (Taft Papers) (Reel 306).
355. Letter from William Howard Taft to Horace Taft (June 8, 1928) (Taft Papers, Reel 302).
356. 277 U.S. 438, 471 (1928).
357. Letter from William Howard Taft to Horace Taft (June 8, 1928) (Taft Papers, Reel 302). Four days later, Taft confided to his brother that "I shall continued to be worried by attacks from the academic lawyers who write college law journals but I suppose it is not a basis for impeachment." Letter from William Howard Taft to Horace Taft, June 12, 1928 (Taft Papers, Reel 302).
358. Letter from William Howard Taft to Horace Taft (Dec. 1, 1929) (Taft Papers, Reel 316).
359. It was a noteworthy occasion when every so often an article favorable to the majority appeared in the law journals. See, e.g., Letter from William Howard Taft to Willis Van Devanter (Jan. 12, 1929) (Taft Papers, Reel 307) ("I call your attention to the fact that once in a while even the Yale Law Journal thinks that the opinion of the majority of the Court should be sustained."); see also Letter from Dean Joseph R. Long to William Howard Taft (Dec. 10, 1922) (Taft Papers, Reel 248) (enclosing article praising Taft's opinion in Baily v. Drexel Furniture Co., 259 U.S. 20 (1922) (commonly known as the Child Labor Tax Case)); Letter from William Howard Taft to Dean Joseph R. Long (Dec. 12, 1922) (Taft Papers, Reel 248) ("I appreciate much your article."); Letter from Henry St. George Tucker to William Howard Taft (Dec. 11, 1922) (Taft Papers, Reel 248) (calling Taft's "attention" to the "very interesting" Long article).
360. Thus when Taft began a campaign to persuade Yale to grant Willis Van Devanter an honorary degree, praising Van Devanter as "one of the ablest Judges that we have ever had on the Court," Taft was forced to explain Van Devanter's relative public obscurity by the fact that "[h]e has not what some of our Judges have by reason of their relations to Law Schools - a claque who are continually sounding their praises, but when it comes to keeping the Court straight and consistent with itself, he is the man who does it." Letter from William Howard Taft to William Phelps (May 30, 1927) (Taft Papers, Reel 292).
361. Jerold S. Auerbach has written that "[i]n the two decades preceding World War I a sense of public responsibility and an identification with political reform provided law teachers with their special identity." AUERBACH, supra note 293, at 81; see also Jerold S. Auerbach, Enmity and Amity: Law Teachers and Practitioners, 1900-1922, 5 PERSP. AM. HIST. 551 (1971) (reviewing the teaching of law as a profession). Taft was particularly outraged by mobilization within the law schools over the Sacco and Vanzetti case. He wrote an unsolicited letter to the President of Yale University complaining of the involvement of the law faculty in protesting the convictions: I don't know how much influence you can exercise with respect to the Yale Law School, but I am a good deal troubled in respect to something I have seen in the newspapers. The Harvard Law School is suffering from the exercise of influence upon it by Felix Frankfurter. He seems to be closely in touch with every Bolshevistic communist movement in this country. I know him very well. He is a man of ability and can be in certain directions quite useful, but for some reason or other he is against courts and recognized authority, a very bad tendency in a college law professor. I don't know anything about this criminal prosecution of two Italians . . . . I have no objection to the criticism of judicial opinions or judicial judgments - That is necessary. Nor have I any objection to this by professors of law schools, because they are competent men and may often exercise a very useful influence upon judges to help the science of the law, but I think it quite unwise for a law school of Connecticut, far removed from the situation, to have its Dean and Professors join in a public meeting and protest against the conduct of litigation in another State and second an article by Frankfurter, I don't know that anything can be done about the further activities of Dean Hutchins in this matter, but I think it would be wise to talk to him on the subject and say that as the Dean of the Law School he should restrain himself and not rush in, as he evidently has, and put the Law School, of which he is the head, in such a movement which involves the weighing of facts as well as of law, and relates to a trial which took place when Hutchins must have been a boy. . . . [M]y interest in Yale makes me feel that I am justified in suggesting to you that you restrain Hutchins . . . . Letter from William Howard Taft to James R. Angell (May 1, 1927) (Taft Papers, Reel 291);
362. see also Yale Liberals Defend Sacco and Vanzetti; Review of Conviction Urged by Dean Hutchins, Professor C.B. Clark and Others, N.Y. TIMES, April 30, 1927, at 23;
363. cf. Robert M. Hutchins, Cross-Examination to Impeach, 36 YALE L.J. 384, 385-88 (1927). For Angell's cool reply, see Letter from James R. Angell to William Howard Taft (May 3, 1927) (Taft Papers, Reel 291). The following week Taft complained to Elihu Root, I think our Law Schools might be about better business than attempting to decide how trials ought to be conducted in capital cases in old Massachusetts, without other knowledge of the record than that derived from a magazine article by Prof. Felix Frankfurter, who has become an expert in attempting to save murderous anarchists from the gallows or the electric chair. I don't like to characterize any great profession, but I think the profession of law teacher, as well as the clerical profession, does not always exercise the best judgment in keeping out of fields in which they are apt to make egregious mistakes. Letter from William Howard Taft to Elihu Root (May 12, 1927) (Taft Papers, Reel 291). After Sacco's and Vanzetti's executions, Taft wrote to one of Massachusetts Governor Fuller's advisors in the case that [i]t is remarkable how Frankfurter with his article was able to present to so large a body of readers a perverted view of the facts and then through the world wide conspiracy of communism spread it to many many countries. Our law schools lent themselves to the vicious propaganda. The utter lack of substance in it all is shown by the event. It was a bubble and was burst by the courage of the Governor and his advisors. Letter from William Howard Taft to Robert Grant (Nov. 4, 1927) (Taft Papers, Reel 296).
364. Letter from William Howard Taft to Horace Taft, December 8, 1929 (Taft Papers) (Reel 316). In 1930, Van Devanter's intimate friend, federal district Judge John C. Pollock, wrote him that I notice in a recent Law Review very high commendation of the legal opinions, more especially dissenting opinions, of a couple of gentlemen, you will readily realize to whom I refer. I cannot understand this and do not appreciate the viewpoint from which they are written. I apprehend you have seen the same. I begin to think every once in a while that as we grow older we grow out of touch with a lot of ideas that some people appreciate very highly, but which will not work out in practice. Letter from John C. Pollock to Willis Van Devanter (Apr. 17, 1930) (Van Devanter Papers).
365. Letter from William Howard Taft to Moses Strauss (Feb. 19, 1929) (Taft Papers, Reel 308). Taft brushed off Edward Corwin's criticisms of Taft's opinion in Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922), characterizing them as the objections "of the class not of lawyers but of government philosophers who think that the Constitution ought to be moulded to suit their particular sociological views as they may vary from time to time." Letter from William Howard Taft to Horace Taft (Sept. 7, 1922) (Taft Papers, Reel 245).
366. 273 U.S. 70 (1927).
367. Id. at 76.
368. See, e.g., EDWIN M. BORCHARD, DECLARATORY JUDGMENTS (1919);
369. Edwin M. Borchard, The Declaratory Judgment - A Needed Procedural Reform, 28 YALE L.J. 1, 105 (1918);
370. Edwin M. Borchard, The Declaratory Judgment, NEW REPUBLIC, Jan. 12, 1921, at 192.
371. Letter from Edwin M. Borchard to Harlan Fiske Stone (Feb. 4, 1927) (Stone Papers). Grannis was decided on January 3, 1927.
372. Id.
373. Letter from Harlan Fiske Stone to Edwin M. Borchard (Feb. 7, 1927) (Stone Papers). For Borchard's reply, see Letter from Edwin M. Borchard to Harlan Fiske Stone (Feb. 9, 1927) (Stone Papers). At the time, Stone was writing the Court's opinion in Fidelity National Bank & Trust Co. v. Swope, 274 U.S. 123 (1927), in which the Court in effect upheld federal jurisdiction of a state declaratory judgment. Stone had been assigned Swope at the end of January when Taft, "[i]n the redistribution of cases to help out our dear friend Van, because of his near breakdown," asked that Stone take over the case. Letter from William Howard Taft to Harlan Fiske Stone (Jan. 26, 1927) (Stone Papers). Taft added, "All the members of the Court voted to reverse the case except McReynolds, who was passed. Your forced familiarity with questions of this kind in the St. Louis case [Missouri v. Pub. Serv. Comm'n, 273 U.S. 126 (1927)], which you were not able to use in the opinion handed down recently, may prove to be of use to you in this case. I hope so." Id. Swope issued on April 11, 1927. See 274 U.S. at 123. Van Devanter adjudged it "a fine opinion, judicial through and through. Enriches straight from the beginning to the conclusion." Stone Papers. Taft also thought it "a good opinion." Id. On April 29, Walter Wheeler Cook wrote Stone to congratulate him on the Swope opinion, confessing that Grannis had "alarmed me greatly. I feared the court was getting into a position where it would find itself bound to hold a federal declaratory judgment statute unconstitutional as giving non-judicial power." Letter from Walter Wheeler Cook to Harlan Fiske Stone (Apr. 29, 1927) (Stone Papers). Stone replied to Cook that "I was not a little troubled when I came to write" Swope "about some of the things that had been said about what is a 'case' or 'controversy' or 'judicial power' within the meaning of the Constitution." Letter from Harlan Fiske Stone to Walter Wheeler Cook (May 2, 1927) (Stone Papers).
374. See Edwin M. Borchard, Declaratory Actions as "Cases" or "Controversies," 36 YALE L.J. 845 (1927).
375. Letter from Edwin M. Borchard to William Howard Taft (Apr. 15, 1927) (Taft Papers, Reel 290). In full, the letter said, I venture to ask your consideration of this Comment, which deals with the decision of the Supreme Court in the case of Liberty Warehouse Co. v. Grannis . . . . In that case, the Court, speaking through Mr. Justice Sanford, held, or intimated that the declaratory judgment procedure, now adopted by statute in some twenty-one states, was unconstitutional, because it did not present a "case" or "controversy". This conclusion is not, I respectfully venture to think, justified by the facts, and I have, in the Comment referred to, expressed the opinion that the question was not adequately argued before the Court. I would not dare trouble you with my views on this matter, but for the fact that I believe that the opinion of the Court, which may or may not have been dictum, threatens with extinction, on insufficient grounds, what, in my opinion, is one of the most useful procedural reforms of recent years . . . . I trust you will be kind enough to give this matter your consideration, and perhaps take some occasion, if you find it consistent, to prevent the unfortunate result to which the Court's opinion in the Liberty Warehouse case may easily lead. I beg also to call your attention to the April (1927) Harvard Law Review (page 903), in which the editor appears to share the subscriber's view of the effect of the Court's decision in the Liberty Warehouse case. Id. We have extant the letters that Borchard sent to Van Devanter, Taft, Sanford, and Sutherland. They are identical. Taft's copy is marked "No ans." Id.
376. Letter from Edwin M. Borchard to Harlan Fiske Stone (Apr. 15, 1927) (Stone Papers).
377. Letter from Harlan Fiske Stone to William Howard Taft (Apr. 18, 1927) (Taft Papers, Reel 290). On Taft's daily memorandum of things to do for April 21, 1927, the fourth item on the list reads, "Take up Borchard's letter." Taft Papers (Reel 290).
378. Taft held very definite views of Borchard prior to this incident. In 1924, Nicholas Murray Butler had written Taft asking for recommendations for an international law scholar to replace John Bassett Moore at Columbia. Taft replied in most unpleasant terms: There is a man who has had a good deal of experience in international matters, who is now the Law Librarian at Yale. His name is Edwin Borchard. He has gotten up a compendium on a phase of international law which I think has been well regarded. But I think he has reddish tendencies and I doubt if you would wish to take him over. He is Hebraic in look, and I have no doubt in fact. He is always for the Brandeis view of every constitutional question. I lodged a complaint with Swan against having him instill in the minds of the Yale Law School men that spirit of constitutional construction, for I believe that they have been using him on the subject of Federal Constitutional Law. Letter from William Howard Taft to Nicholas Murray Butler (Dec. 30, 1924) (Taft Papers, Reel 270).
379. Letter from William Howard Taft to Harlan Fiske Stone (Apr. 24, 1927) (Taft Papers, Reel 291) (emphasis added). The following year the Court decided Willing v. Chicago Auditorium Ass'n., 277 U.S. 274 (1928), in which Brandeis, in his opinion for the Court, offhandedly remarked (citing Grannis) that a declaratory judgment "is beyond the power conferred upon the Federal judiciary." Id. at 289. Taft responded to Brandeis's draft opinion, "Borchard will moan but he can not by tears change our jurisdiction." Brandeis Papers. On Brandeis's personal dislike of declaratory judgments and campaign against them, see EDWARD A. PURCELL, JR., BRANDEIS AND THE PROGRESSIVE CONSTITUTION: ERIE, THE JUDICIAL POWER, AND THE POLITICS OF THE FEDERAL COURTS IN TWENTIETH-CENTURY AMERICA 124-32 (2000). Curiously enough, Taft had another run-in with Borchard at the end of the 1926 Term. In June 1927 Taft wrote the opinion for the Court in an obscure case, Weedin v. Chin Bow, 274 U.S. 657 (1927), which concerned the citizenship status of the children of American citizens who did not reside in the United States.
380. Taft's published opinion, which was released on June 6, 1927, deliberately and specifically criticized a passage from Borchard's book, The Diplomatic Protection of Citizens Abroad (1915), charging that it relied on evidence that "does not bear out the conclusion to which it is cited." Taft Papers (Reel 292). Borchard instantly telegraphed Taft at his summer residence in Murray Bay, Canada, to explain that Taft's charge rested on an apparent confusion regarding the reference of various footnotes. See Telegram from Edwin M. Borchard to William Howard Taft (June 9, 1927) (Taft Papers, Reel 292). He also sent a letter worrying that Taft's accusation, which was based on "an inadvertent mistake," "might by the profession be deemed to impugn my reliability." Letter from Edwin M. Borchard to William Howard Taft (June 9, 1927) (Taft Papers, Reel 292); see also Letter from William Crosskey to William Howard Taft (June 9, 1927) (Taft Papers, Reel 292). After consulting with his law clerk, William Crosskey, Taft removed the offending passages. See Weedin, 274 U.S. at 673-74; Letter from William Howard Taft to Charles Cropley (July 5, 1927) (Taft Papers, Reel 292); Letter from Charles Cropley to William Howard Taft (June 30, 1927) (Taft Papers, Reel 292); Telegram from William Howard Taft to Charles Cropley (June 10, 1927) (Taft Papers, Reel 292).
381. Letter from Harlan Fiske Stone to William Howard Taft (Apr. 25, 1927) (Taft Papers, Reel 291). But Stone added, My experience, however, in writing the opinion in the Swope case convinces me that we ought to approach this type of question when it comes up again with the greatest caution, and that we ought not to follow some of the things that have been said in earlier cases, although quite possibly we can follow what was actually decided. Id.
382. Id.
383. Id. Borchard clearly had no idea of the hornet's nest he had aroused. He wrote Stone again in 1928, affirming that "the law journals . . . have agreed that Judge Sanford made a mistake" in Grannis, and complaining of further dicta damaging to a potential federal declaratory judgment statute in Liberty Warehouse Co. v. Burley Tobacco Growers' Co-Operative Marketing Ass'n, 276 U.S. 71 (1928). Letter from Edwin M. Borchard to Harlan Fiske Stone (Mar. 1, 1928) (Stone Papers). He asked Stone to "to talk this matter over with the Chief Justice" and perhaps to arrange "a meeting with Judge Sanford or any of the other Judges who would aid in preventing a further disaster to the declaratory judgment." Id. In December, ignorant of Brandeis's personal opposition to declaratory judgments, see supra note 332, and crediting Brandeis's public professions of respect for scholarly opinion, Borchard wrote Stone once again, enclosing Borchard's latest article responding to Willing. See Edwin M. Borchard, The Supreme Court and the Declaratory Judgment, 14 A.B.A. J. 633 (1928). Borchard wrote, Justice Brandeis has, on numerous occasions, praised the function of the Law Journals in exercising a critical function upon the work of the Court. I trust he still adheres to that view. At all events, I endeavored to indicate in the article the utmost respect for the Court and its judges, but to suggest that the random remarks made concerning the declaratory judgment, being unnecessary in each of the three cases in which such remarks were uttered, were not necessarily as well considered as they might have been. Letter from Edwin M. Borchard to Harlan Fiske Stone (Dec. 21, 1928) (Stone Papers). Borchard noted that he had not sent a copy of his article "to any member of the Court," and he asked Stone whether it would "hurt the cause of the declaratory judgment if I sent it to [Brandeis]. Or would you hand it to him if I sent it to you?" Id. Stone advised Borchard that "[b]y all means I would send a marked copy of your article to each member of the Court without any comment." Letter from Harlan Fiske Stone to Edwin M. Borchard (December 24, 1928) (Stone Papers) (emphasis added).
384. 274 U.S. 112 (1927). The draft opinion is located in the Stone Papers. It seems to have circulated April 11, 1927.
385. See Young B. Smith, Frolic and Detour, 23 COLUM. L. REV. 444, 716 (1923). As it happens, Stone wrote the frontpiece of the issue in which Smith's article appeared.
386. See Harlan F. Stone, Charles Thaddeus Terry, 23 COLUM. L. REV. 415 (1923).
387. Stone Papers. For a subsequent and very public attack on the Court's consideration of "unknown, unrecognized and nonauthoritative text books, Law Review articles, and other writings of propaganda artists and lobbyists" in the field of antitrust law, see the remarks of Representative Wright Patman, 103 CONG. REC. 16159, 16160 (Aug. 27, 1957).
388. Stone Papers.
389. Id.
390. Letter from Harlan Fiske Stone to Y.B. Smith (Apr. 15, 1927) (Stone Papers). Eventually Stone got the message. In 1928, he wrote his friend Hessel Yntema, about the latter's project to organize academic inquiry in a way that would be useful to courts, that "[t]he problem of how to make use of your studies in the most effective way so that they will be of assistance to courts is not as easy as might first appear." Letter from Harlan Fiske Stone to Hessel E. Yntema (Oct. 24, 1928) (Stone Papers). Ordinarily, where a brief is filed amicus curiae, it is filed in behalf of someone who has a similar case and who will therefore be directly affected by the determination of the court. The fact that there are those who have a scientific interest in the law would seem to me to be equally good ground for getting their idea before the court, and for the court's welcoming any assistance which they will be able to give. As a matter of fact, I am bound to say that I think there are many judges who distrust all such assistance, and hesitate to use or cite it. This is based partly on the kind of self confidence which leads a certain type of mind to reject ideas that it has not evolved itself, or which do not fall within the range of its own experience, and partly on the fact that in recent years there have been some rather unpleasant examples of men who have written what purported to be scientifically inspired articles in law journals who were actually secretly serving the interests of clients. There are also judges who firmly believe that "academic" persons who have devoted their talents to research in the investigation of particular fields cannot possibly know as much about a subject as those who have had a lifelong judicial and professional experience. Of course, there are some courts which know better. The Court of Appeals, headed by Judge Cardozo, and possibly some other courts, have reached that happy stage, but that attitude is, I am convinced, not a general one among judges the country over, despite the fact that because of faulty presentation, pressure of work, etc., they have little opportunity to go into questions as thoroughly and as scientifically as can those engaged in research in the universities. Id.
391. Wes Daniels, "Far Beyond the Law Reports": Secondary Source Citations in United States Supreme Court Opinions, October Terms 1900, 1940, and 1978, 76 LAW LIBR. J. 1, 4 (1983).
392. For a sampling of the very large literature studying this phenomenon, see, e.g., Michael D. McClintock, The Declining Use of Legal Scholarship by Courts: An Empirical Study, 51 OKLA. L. REV. 659 (1998);
393. Louis J. Sirico, Jr. & Jeffrey B. Margulies, The Citing of Law Reviews by the Supreme Court: An Empirical Study, 34 UCLA L. REV. 131 (1986);
394. Neil N. Bernstein, The Supreme Court and Secondary Source Material: 1965 Term, 57 GEO. L.J. 55 (1968);
395. Chester A. Newland, Legal Periodicals and the United States Supreme Court, 7 U. KAN. L. REV. 477 (1959);
396. Douglas B. Maggs, Concerning the Extent to Which the Law Review Contributes to the Development of the Law, 3 S. CAL. L. REV. 181 (1929);
397. cf. Friedman et al., supra note 52; Michael I. Swygert & Jon W. Bruce, The Historical Origins, Founding, and Early Development of Student-Edited Law Reviews, 36 HASTINGS L.J. 739 (1985);
398. William H. Manz, The Citation Practices of the New York Court of Appeals, 1850-1993, 43 BUFF. L. REV. 121 (1995) (reviewing citation in New York state cases).
399. Michael McClintock argues that "[t]he number of judicial citations of law reviews . . . declined dramatically from 1975 to 1996." McClintock, supra note 342 at 684. The decrease in the Supreme Court was 58.6 percent. Id. at 685. Given this decline, the contrast with the Taft Court revealed by Figure 24 is all the more stark.
400. There were 41 citations to law review articles in the 1,554 court opinions published in the Terms between 1921 and 1928. By contrast, there were 57 such citations in the 96 court opinions in the 1997 Term. A study of state supreme courts has found a similar change in citation practices. In the decade between 1915 and 1925, .5 percent of state supreme court opinions cited law review articles, a figure that had increased by more than twentyfold by the decade between 1960 and 1970, when 11.9 percent of state supreme court opinions cited law review articles. Friedman et al., supra note 52, at 811. In the New York Court of Appeals, the number of citations to legal periodicals increased about tenfold in the period between 1920 and 1990. Manz, supra note 342, at 157.
401. See, e.g., John W. Johnson, Adaptive Jurisprudence: Some Dimensions of Early Twentieth-Century American Legal Culture, 40 HISTORIAN 16, 24 (November 1977);
402. Chester A. Newland, Innovation in Judicial Technique: The Brandeis Opinion, 42 SW. SOC. SCI. Q. 22, 24-26 (1961).
403. Cf. JOHN W. JOHNSON, AMERICAN LEGAL CULTURE: 1908-1940, at 41 (1981) (observing that Brandeis referred to social scientific studies in his dissents, but not his opinions).
404. Cardozo, supra note 294, at ix.
405. Id. at x. Cardozo continued, "Under the drive of this impulse, the law teacher and the law reviews are coming to their own." Id.
406. During the 1921-1928 Terms, the Taft Court cited treatises and encyclopedias at the rate of .16 citations per majority opinion, as compared to a rate of .03 citations per majority opinion for law review articles. See, e.g., Max Radin, Sources of Law-New and Old, 1 S. CAL. L. REV. 411, 416 (1928) ("If we place the authorities cited in the order of apparent importance, we should find the following series: first, reported cases of the same jurisdiction; second, reported cases of outside jurisdictions; third, cyclopedias and repertories; fourth recent treatises; fifth, old treatises; and sixth and last, articles in legal periodicals. Citations of the last class are very few indeed, although they are increasingly slightly."). Figure M illustrates that during the Taft Court era law review articles were more than twice as likely to be cited in dissents than in Court opinions, while legal treatises and encyclopedias predominated in Court opinions. If the 1997 Term is at all representative, Figure N indicates that law review articles have lost their distinctive association with dissent, while legal treatises and encyclopedias have remained somewhat more likely to be cited in Court opinions than in dissents. Between the Taft Court and the 1997 Term, the rate of citations to legal treatises and encyclopedias in Court opinions has increased almost sevenfold, from .16 to 1.1 citations per majority opinion. By contrast, a study of state supreme court opinions found a decrease in the citation of legal treatises and encyclopedias; in the period 1915-1925, 44.1 percent of state supreme court opinions cited these sources, whereas in the decade between 1960 and 1970, these sources were cited in only 39.2 percent of opinions. Friedman et al., supra note 52, at 811. In the New York Court of Appeals, William H. Manz has counted 73 references to legal treatises in 1920, which modestly increased to 98 citations in 1990. Manz, supra note 342, at 157.
407. Cardozo, supra note 294, at viii.
408. But see Simpson, supra note 304, at 670 ("From Story's time onwards, the production of treatises was associated with organized, systematic legal education . . . . This does not mean that the typical treatise writer was a cloistered academic, as the law schools until Langdell's time employed practitioners as professors.").
409. PAUL D. CARRINGTON, STEWARDS OF DEMOCRACY: LAW AS A PUBLIC PROFESSION 184 (1999). Treatises and encyclopedias tended to perform the function that Harvard President Eliot imagined would be served by law professors; they would, he said, function "as expounders, systematizers, and historians" of the law.
410. Quoted in ARTHUR E. SUTHERLAND, THE LAW AT HARVARD: A HISTORY OF IDEAS AND MEN, 1817-1967, at 184 (1967).
411. See JOHNSON, supra note 346, at 19, 55-58; Friedman et al., supra note 52, at 811 ("[M]ost older treatises did no more than compile cases; they wrapped the confusion of prior case law into a convenient package, usually in the form of black letter rules.").
412. AUERBACH, supra note 293, at 76.
413. Roscoe Pound, The Need of a Sociological Jurisprudence, 19 GREEN BAG 611 (1907);
414. see also Law as a Social Instrument, NEW REPUBLIC, Mar. 27, 1929, at 158 (highlighting the importance of understanding the impact of law on society).
415. See WILLIAM E. NELSON, THE LEGALIST REFORMATION: LAW, POLITICS, AND IDEOLOGY IN NEW YORK, 1920-1980, at 143-44 (2000);
416. LAURA KALMAN, THE STRANGE CAREER OF LEGAL LIBERALISM 16 (1996).
417. For a discussion, see Robert Post, Theories of Constitutional Interpretation, REPRESENTATIONS, Spring 1990, at 13, 19-21, 27-28.
418. Courts will undoubtedly mediate these tensions differently in different substantive areas of law. And, if the radically dissimilar rates of unanimity as between the United States Supreme Court and state supreme courts remains true, see supra note 132, different courts will also resolve these tensions differently, depending upon their distinct conceptions of the roles they are to perform in the legal system.
419. See, e.g., Frank I. Michelman, Constitutional Authorship, in CONSTITUTIONALISM: PHILOSOPHICAL FOUNDATIONS 64 (Larry Alexander ed., 1998).
420. PHILIPPE NONET & PHILIP SELZNICK, LAW AND SOCIETY IN TRANSITION: TOWARD RESPONSIVE LAW 15 (1978).
421. Id. at 54.
422. Id.
423. Id. at 64.
424. Id. at 68.
425. Id. at 78.
426. Id.
427. Id. at 83.
428. Id. at 86.
429. Id. at 78.