{"id":31309,"date":"2024-01-25T12:42:08","date_gmt":"2024-01-25T20:42:08","guid":{"rendered":"https:\/\/occupysf.net\/?p=31309"},"modified":"2024-01-25T12:42:09","modified_gmt":"2024-01-25T20:42:09","slug":"the-architect-of-our-divided-supreme-court","status":"publish","type":"post","link":"https:\/\/occupysf.net\/index.php\/2024\/01\/25\/the-architect-of-our-divided-supreme-court\/","title":{"rendered":"The Architect of Our Divided Supreme Court"},"content":{"rendered":"\n<p><strong>Jill Lepore\/The New Yorker<\/strong><\/p>\n\n\n\n<p><img decoding=\"async\" src=\"https:\/\/www.rsn.org\/images\/001\/055423-taft-012424.jpg\" alt=\"The Architect of Our Divided Supreme Court\"><strong>A new book by Robert C. Post details denunciations, dissents, proposals, and power plays from an era previously lost to obscurity. (photo: Bettmann Archive)<\/strong><\/p>\n\n\n\n<p><strong>24 january 24<\/strong> (RSN.org)<\/p>\n\n\n\n<blockquote class=\"wp-block-quote\">\n<p><strong><em>A hundred years ago, Chief Justice William Howard Taft made the Court more efficient and more powerful. His interventions marked a turning point whose effects are still being felt.<\/em><\/strong><\/p>\n<\/blockquote>\n\n\n\n<p>\u201cMrs. Justice Holmes died on Tuesday night,\u201d the Supreme Court\u2019s Chief Justice, William Howard Taft, reported on May 5, 1929. Mr. Justice Holmes\u2014Oliver Wendell Holmes, Jr.\u2014had relied on his wife, Fanny Bowditch, for nearly everything. They\u2019d been married for fifty-seven years. Her death \u201cseems like the beginning of my own,\u201d Holmes wrote. And yet, on the very day of her death, Holmes, eighty-eight, drafted an opinion for the Court and sent it to the Chief. \u201cI suppose there are a good many who are counting on his retirement,\u201d Taft mused. \u201cIf so, they miss their guess.\u201d In the end, it was Taft who went first, dying less than a year later, at the age of seventy-two.<\/p>\n\n\n\n<p>William Howard Taft is the only Chief Justice of the United States to have served as its President. If he cannot be said to have had the keenest legal mind, he had the strong and steady arm of an experienced executive. He ran the Court for only nine years, but during that time he ushered in sweeping reforms, changing not only how many cases the Court hears but also where it operates, elevating its power, its prestige, and, not least, its mystique. Originally, the Supreme Court heard essentially every case that reached its chambers; it had little choice. \u201cQuestions may occur which we would gladly avoid; but we cannot avoid them,\u201d John Marshall, the longest-serving Chief Justice, wrote in 1821. A century later, in a country whose population had grown tenfold, the Court, still obliged to hear most cases brought before it, was overwhelmed by its backlog. Taft convened a committee that he charged with drafting legislation that would rationalize the Court\u2019s docket. In what became known as the Judges\u2019 Bill, the Justices proposed the certiorari system, by which they would, in most areas of law, be able to exercise their discretion to choose which cases they deemed worthy of their attention. Taft went before the House Judiciary Committee to explain the importance of \u201cletting the Supreme Court decide what was important and what was unimportant.\u201d Congress passed the bill in 1925. \u201cEasily one-half of certiorari applications now presented have no justification at all,\u201d Taft reported in the&nbsp;<em>Yale Law Journal<\/em>&nbsp;nine months later.<\/p>\n\n\n\n<p>The executive branch had the White House and the legislature the Capitol, but the Court had no home of its own and had long met in a cramped room, the old Senate chamber. Taft persuaded Congress to authorize funds for the construction of a building for the Court alone, befitting the status of the judiciary. Taft himself chose the seven-acre site. The new building was touted as having more marble than any structure in the world, an austere and imposing monument to the rule of law. It looks like a Grecian temple, restored.<\/p>\n\n\n\n<p>Taft, in short, got things done. In May, 1929, when Holmes\u2019s wife died, Taft wrote to his son, \u201cI have had really to take charge of the funeral arrangements, because Holmes can not attend to anything of that sort with any comfort.\u201d But Taft also had the good sense to know that Holmes, however distraught, wasn\u2019t helpless, and that what he needed most was something to do. He\u2019d already assigned Holmes at least one opinion that term, but Taft told his son, \u201cI don\u2019t know but I shall give him another one before the month ends.\u201d<\/p>\n\n\n\n<p>In an age of efficiency, Taft made the Supreme Court more efficient, and mightier, but it remains the most secretive branch of the federal government. When it grants or denies cert, it offers no explanation; it simply follows a \u201crule of four\u201d\u2014if at least four Justices want to hear the case, the Court takes it. This past December, the special counsel Jack Smith asked the Court to grant cert in a case concerning the question of whether Donald Trump, as a former President, is&nbsp;<a target=\"_blank\" href=\"https:\/\/www.newyorker.com\/magazine\/2023\/12\/11\/what-happened-when-the-us-failed-to-prosecute-an-ex-president\" rel=\"noreferrer noopener\">immune from prosecution for actions undertaken during his Presidency<\/a>. In January, Trump asked the Court to grant cert to hear an appeal of a decision by the Colorado Supreme Court which&nbsp;<a target=\"_blank\" href=\"https:\/\/www.newyorker.com\/news\/q-and-a\/colorados-top-court-kicked-trump-off-the-ballot-will-the-supreme-court-agree\" rel=\"noreferrer noopener\">banned him from the Republican primary ballot<\/a>. The Court said no to the first, for now, and yes to the second. No word or hint as to its motivations is ever offered. Supreme Court deliberations are held behind closed doors. Its sessions are not broadcast. The Justices are expected to avoid the glare of public attention. They don\u2019t campaign, or at least they\u2019re not supposed to. They don\u2019t write tell-alls. No law requires them to preserve their papers or, if they do preserve them, to make them available to the public. So tight-lipped is the Court that, in 2022, when someone&nbsp;<a target=\"_blank\" href=\"https:\/\/www.newyorker.com\/news\/daily-comment\/what-an-unprecedented-supreme-court-leak-says-about-the-future-of-abortion-and-about-precedent-itself\" rel=\"noreferrer noopener\">leaked a draft<\/a>&nbsp;of the Court\u2019s decision in&nbsp;<a target=\"_blank\" href=\"https:\/\/www.newyorker.com\/magazine\/2022\/07\/04\/we-are-not-going-back-to-the-time-before-roe-we-are-going-somewhere-worse\" rel=\"noreferrer noopener\">Dobbs v. Jackson Women\u2019s Health Organization<\/a>, an internal investigation was unable to identify the leaker. The Supreme Court is at once the most closely scrutinized branch of the federal government and the least. It makes its own rules, like the Code of Conduct it released last fall, and, in a sense, it also writes its own history: the accumulation of its opinions. Most other accounts of the Court\u2019s history are written by lawyers, a litany of cases with the occasional vivid portrait of a Justice or, less often, a litigant. Much that lies within the Court\u2019s history remains unknown, partly because it\u2019s never been known outside the Justices\u2019 chambers, and partly because even what\u2019s known is quite often entirely forgotten. The law writes over itself, like an old floppy disk.<\/p>\n\n\n\n<p>\u201cTaft\u2019s presidential perspective forever changed both the role of the chief justice and the institution of the Court,\u201d Robert C. Post argues in his landmark two-volume study, \u201c<a target=\"_blank\" href=\"https:\/\/www.amazon.com\/Taft-Court-Hardback-Set-1921-1930\/dp\/1009336215\/\" rel=\"noreferrer noopener\">The Taft Court: Making Law for a Divided Nation, 1921-1930<\/a>\u201d (Cambridge). The book is an attempt to rescue the Taft years from oblivion, since, as Post points out, most of its jurisprudence had been \u201cutterly effaced\u201d within a decade of Taft\u2019s death, and was soon engulfed by \u201can obscurity so deep that most law students cannot now name more than ten Taft Court decisions.\u201d But, if Marshall\u2019s Chief Justiceship established what the Court would be in the nineteenth century, Taft\u2019s established what it would be in the twentieth, and even the twenty-first.<\/p>\n\n\n\n<p>William Howard Taft was a lawyer and a judge before he became President, and he was a lawyer and a judge after he was President. He was born in Ohio in 1857, the year the Supreme Court decided&nbsp;<a target=\"_blank\" href=\"https:\/\/www.newyorker.com\/news\/our-columnists\/the-importance-of-teaching-dred-scott\" rel=\"noreferrer noopener\">Dred Scott<\/a>, and went to Yale before studying at the Cincinnati Law School. He\u2019d served three years on Ohio\u2019s superior court when, in 1890, he became the youngest ever U.S. Solicitor General. He argued eighteen cases before the Supreme Court, and won fifteen. In 1892, he was appointed as a federal judge for the Sixth Circuit. While serving as governor of the Philippines, he was twice offered a position on the Supreme Court; he declined both times. Elected President in 1908, he failed to win re\u00eblection in 1912, after which he joined the faculty of Yale Law School. His best-known academic work is a series of lectures published, in 1916, as \u201cOur Chief Magistrate and His Powers,\u201d a critique of the Presidencies of Theodore Roosevelt and Woodrow Wilson masquerading as what Taft described as a \u201ccareful study from an unbiased standpoint of the historian and the jurist.\u201d<\/p>\n\n\n\n<p>Taft had long wanted to restructure the federal judiciary, and he was also keen to defend the Constitution from what he considered to be the excesses of Progressivism. In 1913, when Charles Beard published \u201cAn Economic Interpretation of the Constitution of the United States,\u201d arguing that the Framers had, in 1787, crafted a system of government designed to protect their own property interests, Taft denounced this interpretation as both preposterous and dangerous. And when Wilson nominated the nation\u2019s leading Progressive lawyer, Louis Brandeis, to the Court, in 1916, Taft vigorously opposed the nomination. \u201cIt is one of the deepest wounds that I have had as an American and a lover of the Constitution and a believer in progressive conservatism, that such a man as Brandeis could be put on the Court,\u201d Taft wrote, calling Brandeis a muckraker, a hypocrite, and a socialist. He solicited the signatures of six other former presidents of the American Bar Association for a letter that he wrote opposing Brandeis\u2019s nomination. (Much of the objection to Brandeis was antisemitic; much was political.) \u201cI think as ill of WHT\u2019s morals now as of his intellect,\u201d Brandeis wrote to his wife in 1910. Privately, Brandeis referred to the walrus-mustached Taft, who tipped the scales at about three hundred pounds, as \u201cthe fat man.\u201d<\/p>\n\n\n\n<p>In 1921, Taft delightedly accepted an invitation from Warren G. Harding to serve as Chief Justice. He joined a Court that, beginning with its decision in Lochner v. New York, in 1905, had struck down as unconstitutional state and federal laws regulating labor. Most notoriously, from the vantage of Progressives, the Court had, in 1918, declared an act of Congress that regulated child labor unconstitutional. Taft, seated in 1921, navigated by these same stars. On May 15, 1922, in Bailey v. Drexel Furniture Co., the Court issued Taft\u2019s majority opinion, striking down a federal law that had attempted to restrict child labor through a punitive tax. Weeks later, in a speech before the American Federation of Labor, the Wisconsin senator Robert La Follette, decrying what he called \u201cjudicial oligarchy,\u201d proposed a constitutional amendment that would grant Congress the right to nullify Supreme Court opinions. La Follette had campaigned against Taft\u2019s bid for re\u00eblection in 1912, and had voted against his confirmation to the Court. He was also a close friend of Louis Brandeis\u2019s. The Court had repeatedly defied the will of the people, expressed through state legislatures and through congressional action, La Follette said. \u201cWe should not have to amend the Constitution every time we want to pass progressive laws,\u201d he argued.<\/p>\n\n\n\n<p>Progressives called for all manner of remedies, including a child-labor amendment and an amendment that would require Justices to be elected and to hold office for ten-year terms. The Idaho senator William Borah, pointing out that roughly forty \u201cexceedingly important\u201d cases had been decided by a 5\u20134 majority in the last thirty years, proposed that any decisions that would overturn an act of Congress ought to require a seven-Justice majority. Taft was distressed, but confident. \u201cMeantime,\u201d he wrote to a fellow-Justice, \u201cthere 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.\u201d<\/p>\n\n\n\n<p>The historian Charles Warren came to the Court\u2019s defense. \u201cThere is no novelty in these attacks,\u201d Warren declared of the criticisms advanced by men like La Follette and Borah, insisting that \u201cno functioning body under our Government has been more subjected to continuous assault than the Supreme Court.\u201d Warren, a former Assistant U.S. Attorney General who had co-founded the Immigration Restriction League\u2014and a Boston Brahmin who was so dedicated to Harvard that he was rarely seen without a crimson bow tie\u2014agreed with Taft\u2019s denunciation of Charles Beard\u2019s interpretation of the Framers. \u201cYoung men must be taught that America is much more than the result of class interests and sectional influences,\u201d Warren maintained. \u201cThey must learn that the men who made America had aspirations and beliefs apart from their personal fortunes.\u201d In 1922, he published a three-volume book called \u201c<a target=\"_blank\" href=\"https:\/\/www.amazon.com\/Supreme-United-States-History-Volumes\/dp\/1616405198\/\" rel=\"noreferrer noopener\">The Supreme Court in United States History<\/a>.\u201d \u201cNo one can read the history of the Court\u2019s career without marveling at its potent effect upon the political development of the Nation, and without concluding that the Nation owes most of its strength to the determination of the Judges to maintain the National supremacy,\u201d he argued. In 1923, the book won the Pulitzer Prize.<\/p>\n\n\n\n<p>Every history of the Supreme Court takes a position on the nature of its authority. Warren\u2019s work not only placed the Court at the center of American history but also defended it against Progressive critics. \u201cThe Taft Court\u201d is a search for the origins of the Court\u2019s current divisions. Post, a professor of constitutional law who has a Ph.D. in American Civilization and is a former dean of Yale Law School, argues that the Taft Court wrestled with four different ways of interpreting the Constitution and exercising judicial review. The most conservative theory granted the Court authority to overrule legislation in order to make sure the law accorded with custom and tradition. Holmes\u2019s intellectual commitments limited judicial review to cases where it was required by \u201cthe literal meaning and plain intent of a constitutional text\u201d: \u201cThe justification of a law for us cannot be found in the fact that our fathers have always followed it,\u201d he wrote. \u201cIt must be found in some help which the law brings toward reaching a social end which the governing power of the community has made up its mind that it wants.\u201d Taft\u2019s rule for whether a law could be declared unconstitutional had to do with his equation of progress with the accumulation of wealth\u2014property and contracts had to be protected at all costs. The fourth theory was the most progressive and, in the nineteen-twenties, advanced only by Brandeis, who, as Post puts it, \u201cheld that the purpose of the American Constitution is to create a successful democracy.\u201d This appears to be Post\u2019s position, too.<\/p>\n\n\n\n<p>Rich with close readings of cases that rely on sources scarcely ever used before\u2014including docket books only recently discovered in a locked trunk\u2014and benefitting from deep and fruitful quantitative analysis absent in most studies of the Court, \u201cThe Taft Court\u201d restores the nineteen-twenties as a turning point in the Court\u2019s history, the hinge between laissez-faire conservatism and the duel between the Court and the New Deal in the nineteen-thirties. The luminaries on Taft\u2019s court were Holmes and Brandeis. Holmes described Taft\u2019s opinions\u2014between 1921 and 1928, there were two hundred and forty-nine of them, compared with two hundred and five by Holmes and a hundred and ninety-three by Brandeis\u2014as \u201crather spongy.\u201d Brandeis, with a nod to the abolitionist Wendell Phillips\u2019s description of Abraham Lincoln (a \u201cfirst-rate second-rate man\u201d), said that Taft had \u201ca first-rate second-rate mind.\u201d But Taft\u2019s opinions were the Court\u2019s opinions. Post reports that Taft \u201cauthored or joined the opinion for the Court in 98.7 percent of its decisions.\u201d<\/p>\n\n\n\n<p>Taft ran an amiable bench. Once he\u2019d joined the Court, he took the initiative of forging a peace, and even a friendship, with Brandeis. \u201cI\u2019ve come to like Brandeis very much indeed,\u201d he wrote to his daughter, and Brandeis, for his part, was charmed. That didn\u2019t mean they agreed. Post\u2019s data reveals that, with one exception, Brandeis was the least likely member of the Court to agree with the majority, his dissents nearly always informed by his commitment to democracy over prosperity.<\/p>\n\n\n\n<p>Taft spoke for the majority, Holmes and Brandeis for the minority. \u201cIf Holmes\u2019 dissents in constitutional cases had been followed,\u201d Taft wrote to his brother, \u201cwe should have no Constitution.\u201d Holmes was a better writer than Taft; one measure of this is that he was briefer. Taft\u2019s opinions averaged nearly nine pages, Holmes\u2019s just over three. (\u201cStrike the jugular and let the rest go,\u201d Holmes said.) In May of 1929, right after his wife died, Holmes wrote one of his most blistering dissents. The majority had ruled in favor of denying citizenship to a Hungarian-born pacifist and feminist named Rosika Schwimmer, deeming her insufficiently \u201cattached to the principles of the Constitution\u201d to be naturalized. Holmes wrote, \u201cIf there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought\u2014not free thought for those who agree with us, but freedom for the thought that we hate.\u201d Amen.<\/p>\n\n\n\n<p>Post\u2019s analysis\u2014along with his amazing data\u2014reveals the depth of Taft\u2019s disagreements with Holmes. It also captures the distance between Holmes and Brandeis. Holmes \u201capproved progressive legislation only because he believed that a judge should defer to legislative judgments,\u201d Post writes, but Brandeis advocated for economic reform in the interest of social justice. \u201cHe bullies me a little on that from time to time,\u201d Holmes once said. Post is subtle on this distinction. \u201cHolmes never developed any comparable concept of the public good,\u201d he writes, contrasting him with Brandeis. \u201cHolmes sought only to&nbsp;<em>channel<\/em>&nbsp;social contestation by subjecting it to orderly processes of law.\u201d<\/p>\n\n\n\n<p>Taft tried to rein Brandeis in. \u201cOur Constitution is not a strait-jacket,\u201d Brandeis wrote in the draft of a dissent in United States v. Moreland, in which he was joined by Holmes. \u201cIt is a living organism. As such it is capable of growth\u2014of expansion and of adaption to new conditions. Growth implies changes political, economic and social. Growth which is significant manifests itself rather in intellectual and moral conceptions than in material things. Because our Constitution possesses this quality of adaption, it has endured as the fundamental law of an ever developing people.\u201d Taft asked him to take these sentences out because \u201cthey are certain to be used to support views that I could not subscribe to.\u201d To secure the Chief Justice\u2019s concurrence in his opinion, Brandeis omitted them, with regret.<\/p>\n\n\n\n<p>This was exceptional; Taft hated dissents and, Post reports, \u201chimself dissented less than any chief justice except John Marshall.\u201d In 1924, when La Follette ran for President on a Progressive ticket whose platform included Supreme Court nullification, the Chief Justice wrote wryly to a friend that the Wisconsin senator \u201ccould find a good deal of material in Brandeis\u2019s dissenting opinions.\u201d And, as Post suggests, the attacks on the Taft Court likely contributed to a diminishing number of dissents in the first half of the decade.<\/p>\n\n\n\n<p>Taft led the Court to the right, especially after La Follette lost his bid for the Presidency. \u201cTaft allowed conservatives on the Court to overplay their hand,\u201d Post concludes. \u201cThe result was an ever-growing if unexpressed anger at the Court\u2019s increasingly aggressive conservative agenda. There would eventually be the devil to pay for such overreaching decisions.\u201d But that devil would come dunning in the nineteen-thirties, during the battles between New Dealers and the Court led by Charles Evans Hughes. On May 27, 1935, in one of its last sessions in the old Senate chamber, the Hughes Court struck down the most important elements of the New Deal in three unanimous decisions that F.D.R. described as the most fateful decisions the Court had made since Dred Scott. When the Court moved into its new building\u2014a building so ostentatiously self-important, down to the last trimmings, that reporters likened it to an icebox decorated by a mad upholsterer\u2014the Justices struck down more than a dozen laws in eighteen months. F.D.R., pledging \u201cto save the Constitution from the Court, and the Court from itself,\u201d proposed enlarging the Court by naming one new Justice for every sitting Justice older than seventy, which described six of them, including the Chief.<\/p>\n\n\n\n<p>It\u2019s hard to say quite how much responsibility Taft bears for the Court crisis of the thirties. The Hughes Court was in crucial ways a product of the Taft Court, and especially of Taft himself: Taft, as President, had appointed Hughes to the Court, in 1910; Hughes had resigned in 1916, to run for President, but Taft urged Herbert Hoover to name Hughes as the new Chief Justice. If Taft hadn\u2019t seized so much power for the Court in the twenties, it would have had less to exert in the thirties. And the Taft years also focussed public attention on the age and diminishing capacity of the Justices. Taft, never in good health, had a heart attack in 1924 and another one in 1926. In 1927, the year he turned seventy, he confided to his daughter, \u201cMy mental faculties are dulling a bit.\u201d Less able to think independently, he deferred to the more conservative Justices on the Court, Willis Van Devanter and Pierce Butler. Very precipitously, Taft slipped into dementia. \u201cThe truth is that Taft for some time had really lost his grip,\u201d Brandeis wrote to a friend and colleague. \u201cThe fear was entertained that unless he resigned at once he might lapse into a mental condition which would make it impossible for him to resign and in which he might continue for an indefinite period,\u201d Hughes wrote; he was nominated for Chief Justice on the very day that Taft resigned. The former Chief died only weeks later, on March 8, 1930, on Holmes\u2019s eighty-ninth birthday. Weirdly, another Justice on the Taft Court, Edward Sanford, only sixty-four, collapsed and died that same day. \u201cSuch events,\u201d Holmes said, \u201cmust be accepted in silent awe.\u201d<\/p>\n\n\n\n<p>\u201cThe Taft Court\u201d exists because of a decision that Holmes made near the end of his life. On March 8, 1931, on his ninetieth birthday, he spoke on the radio for the first and only time. Talking into a microphone on the desk in the study of his red brick house in Washington, D.C., he coughed and then proceeded slowly and precisely. \u201cTo express one\u2019s feelings, as the end draws near, is too intimate a task,\u201d he began, sounding something like John Barrymore if Barrymore were playing King Lear. Rosika Schwimmer sent him a telegram wishing him a happy birthday. (After the Court\u2019s decision in U.S. v. Schwimmer, she\u2019d written to thank him for restoring her faith in \u201cthe inherent idealism\u201d of the nation to which she\u2019d hoped to belong, and they\u2019d struck up a friendship.) Not long after that birthday, Holmes retired. He remains the oldest person ever to sit on the U.S. Supreme Court. Schwimmer visited him and sent him a copy of Erich K\u00e4stner\u2019s best-selling mystery \u201cEmil and the Detectives.\u201d Holmes loved mystery novels. \u201cThis fellow is the best of them all,\u201d he wrote on his copy of a Nero Wolfe mystery, by Rex Stout. Asked whether he\u2019d read any Supreme Court decisions lately, he said, \u201cNot a damn one.\u201d<\/p>\n\n\n\n<p>Meanwhile, Holmes wrote a new will. He had no heirs, and, although he bequeathed small gifts here and there, he left about half of his considerable estate\u2014some two hundred and sixty thousand dollars, or nearly six million dollars today\u2014to a single beneficiary, the United States, in what was the largest unrestricted gift ever made to the federal government. Holmes died of pneumonia in 1935, two days before his ninety-fourth birthday. F.D.R. called on Congress to assign the bequest to \u201csome purpose worthy of the great man who gave it.\u201d It took twenty years, but eventually a congressionally appointed Oliver Wendell Holmes Devise committee determined that the money should be used to prepare a definitive history of the Supreme Court. Robert Post\u2019s book on the Taft Court is the last of the originally planned volumes to be published. Writing the Holmes Devise History of the Supreme Court of the United States has taken nearly a century.<\/p>\n\n\n\n<p>\u201cHistory sets us free,\u201d Holmes once wrote. One day, if the Holmes Devise committee assigns scholars to write volumes on the Rehnquist and Roberts Courts, they\u2019ll have to examine those Courts\u2019 inventions of some brand-new theories about the relationship between history and the law, a text-history-and-tradition test that is far more reactionary than any custom-and-tradition notion used by the conservatives on the Taft Court. \u201cIt is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV,\u201d Holmes wrote. \u201cIt is still more revolting if the grounds upon which it was laid down have vanished long since and the rule simply persists through blind imitation of the past.\u201d History in the guise of originalism is a tyrant.<\/p>\n\n\n\n<p>In February of 1930, during Taft\u2019s last illness, the Justices sent him a letter of thanks, composed by Holmes. \u201cWe call you Chief still,\u201d Holmes wrote, expressing affection for the man by way of his title. \u201cWe can not let you leave us without trying to tell you how dear you have made it.\u201d Taft almost certainly never read it. He was already gone.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Jill Lepore\/The New Yorker A new book by Robert C. Post details denunciations, dissents, proposals, and power plays from an era previously lost to obscurity. (photo: Bettmann Archive) 24 january 24 (RSN.org) A hundred years ago, Chief Justice William Howard Taft made the Court more efficient and more powerful. His&#8230; <a class=\"continue-reading-link\" href=\"https:\/\/occupysf.net\/index.php\/2024\/01\/25\/the-architect-of-our-divided-supreme-court\/\"> Continue reading <span class=\"meta-nav\">&rarr; <\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"_links":{"self":[{"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/posts\/31309"}],"collection":[{"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/comments?post=31309"}],"version-history":[{"count":1,"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/posts\/31309\/revisions"}],"predecessor-version":[{"id":31310,"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/posts\/31309\/revisions\/31310"}],"wp:attachment":[{"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/media?parent=31309"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/categories?post=31309"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/tags?post=31309"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}