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January 05, 2022


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Joshua Kastenberg

Taft is not, in my opinion, a particularly good example of "safeguarding" the Court's independence. Perhaps it was difficult for a former president to do so, but he enmeshed himself into the nation's political activities. He advocated for signing into the Washington Naval Conference, he advised three presidents on matters outside of the judiciary (in a manner which may have exceeded that of Fortas), and his conduct during the aftermath of the Teapot Dome Scandal - including speaking with Coolidge on the two presidential investigators - "was beyond the pale" of appropriate conduct. He referred to Senator Borah and Senator Walsh (investigating the corruption of Harding, Fall, Daugherty and others) of being a danger to the country.

I acknowledge that he was instrumental in the publication of the first judicial ethics code. And he authored Tumey v. Ohio. I write about this in Chief Justice William Howard Taft's Conception of Judicial Integrity: The Legal History of Tumey v. Ohio, 65 Cleveland St. L. Rev 317 (2017). But he also served as a foreign policy instrument at times. Perhaps, this is why after his appointment, another judge observed - “the cause of constitutional government in this country is advanced, and our influence upon other nations is promoted by the appointment[,]."

I am reticent to trumpet anything I have published but I detail this in an Elon University Law Review Article

Senator George Norris accused Taft of not removing himself from Carnegie's interests and there seems plausibility to this accusation.

I have a law review article coming out about how Taft helped "slow-roll" the issuance of McGrain v. Daugherty. The record for this is in his personal collections as well as those of his sons Robert and Charles - and Elihu Root - in which he made no pretense about his trust of not only Harding and Attorney General Daugherty (the brother of the Daugherty named in the case). In between the Senate's subpoena to Daugherty and the Court's decision, there was a presidential election where Taft openly supported Coolidge, and a midterm election in which he made clear his desire to have the conservatives maintain a hold on Congress.

And here is the biggest faux pax of all on Taft's part - in my opinion. Harry Daugherty managed Taft's political campaign for the presidency in Ohio. Daugherty had a deep relationship with the Tafts dating to 1902. This information is available in Taft's papers. Not once did Taft appear to think recusal was necessary in any of the five Teapot Dome Scandal cases.

All of this makes the case that Dean Acheson once testified to in 1968 that Congress should undertake efforts to impose a code on the highest court.

Chief Justice Roberts is a very bright person. But history matters, and I wish he would make a more detailed examination of any predecessor he would hold up as a model.

Steven Lubet

Thanks, Joshua. I am sure you are right about Taft. CJ Roberts's annual report is far from his worst rendition of law office history.

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