Comments on Robert Post’s Supreme Court History of the Taft Court, Part IV, The Taft Court as an Institution
For the Balkinization symposium on Robert Post, The Taft Court: Making Law for a Divided Nation, 1921–1930 (Cambridge University Press, 2024).
Stephen Breyer - Guest Blogger
Robert Post has written a magisterial account of the Supreme Court during the near decade (1921 to 1930) when former President, William Howard Taft, served as Chief Justice. Here I shall focus upon one section, the chapters discussing institutional characteristics of that Court. I shall compare them to somewhat analogous characteristics of the recent Roberts Court (and the earlier Rehnquist Court) on which I have served.
First, Members of both Courts differed strongly among themselves about the proper way to decide legal questions. Post finds the 1920’s Court divided into four camps. Justice James McReynolds believed that law was “not a body of commands imposed upon society” by a democratically-elected legislature. Rather, law “exists at all times as one of the elements of society springing directly from habit and custom.” Robert Post, The Taft Court: Making Law for a Divided Nation, 1921–1930, at xxvii (forthcoming 2024). To McReynolds, law represented the “spontaneous self-ordering of society itself.” Ibid. Hence judge-made law was viewed as typically more important than legislation, which judges should read accordingly.
Justice Oliver Wendell Holmes Jr., by contrast, was a legal positivist. He did not believe the law privileged custom, tradition, and “fundamental” rights to property and contract but, rather, reflected a legislative expression of the will of the people. “Legislation, like law itself, was an alternative to war.” It was the productive channel through which social conflict is rendered peaceful and orderly. Id. at xxviii. “The function of law was to express the will of the group able to dominate society, and the function of the courts was to apply that will.” Ibid.
Taft’s views were somewhere between those of McReynolds and Holmes. Taft derived constitutional rights, not from custom alone, “but instead from a pragmatic calculation of economic incentives,” including rights to property and contract. Law was an “instrument of policy” that enabled the accumulation of wealth. And that to Taft was a hallmark of progress. Id. at xxviii–xxix.
Justice Louis Brandeis held yet another view of law. He saw “the purpose of the American Constitution” as creating “a successful democracy.” Id. at xxix. He agreed with Holmes that the judicial attitude towards legislative work should be deferential, for that work embodied the output of a democratic process. But Brandeis hesitated less to find that the protection of constitutional rights counseled in favor of judicial intervention, at least where intervention was necessary to maintain a democratic system.
Members of present Courts also divide into factions in respect to the proper way for judges to interpret the language of statutes and the Constitution. A majority follows a theory of “textualism” or of “originalism.” These approaches ask judges to look almost exclusively to language. The words mean what a reasonable person would have taken them to mean at the time they were written. Stephen Breyer, Reading the Constitution: Why I Chose Pragmatism, Not Textualism 16 (forthcoming 2024). Justice Scalia some years ago defined “textualism” as emphasizing that words in a statutory phrase in “their full context” and with few exceptions “mean what they conveyed to reasonable people at the time they written.” He added that the interpreting judge should “reject judicial speculation about both the drafters’ extratextually derived purposes and the desirability of the fair reading’s anticipated consequences.” Id. at 16–17. Other contemporary Justices have written approximately the same thing. See id. at 16; see also, e.g., N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 36–37 (2022) (Thomas, J., for the majority of the Court); Bostock v. Clayton County, 140 S. Ct. 1731, 1755 (2020) (Alito, J., dissenting) (statutory words “mean what they conveyed to reasonable people at the time they were written” (citation omitted)); Kisor v. Wilkie, 139 S. Ct. 2400, 2442 (2019) (Gorsuch, J., concurring in the judgment) (the proper approach to legal interpretation is “elucidat[ing] the law’s original public meaning”).
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