Inside the Taft Court: Lessons from the Docket Books

Barry Cushman, Notre Dame Law School


For many years, the docket books kept by certain of the Taft Court Justices have been held by the Office of the Curator of the Supreme Court. Though the existence of these docket books had been brought to the attention of the scholarly community, access to them was highly restricted. In April of 2014, however, the Court adopted new guidelines designed to increase access to the docket books for researchers. This article offers a report and analysis based on a review of all of the Taft Court docket books held by the Office of the Curator, which are the only such docket books known to have survived.

For the years of Chief Justice Williams Howard Taft’s tenure, the Office of the Curator holds Justice Pierce Butler’s docket books for the 1922 through 1924 Terms, and Justice Harlan Fiske Stone’s docket books for the 1924–29 Terms. Each of these docket books records the votes that each of the Court’s Justices cast in cases when they met to discuss them in conference. Justice Stone’s docket books also contain occasional notes of remarks made by colleagues during the conference discussion. Unfortunately, Stone’s handwriting frequently is quite difficult to decipher, and as a result the content of these notes too often remains obscure. Justice Butler’s handwriting is more readily understood, however, and fortunately he often used the pages of his docket books to keep remarkably detailed and informative notes of the conference deliberations.

These docket books have been examined and reported on before, but for limited purposes and therefore to a limited extent. Dean Robert Post, who has been commissioned to write the volume on the Taft Court for the Oliver Wendell Holmes Devise History of the Supreme Court of the United States, has presented an illuminating statistical analysis of the aggregate conference vote data. Yet Dean Post’s scholarship addresses the particular and qualitative dimensions of the conference records for only a relatively small number of cases. This article seeks to improve our qualitative understanding of the Taft Court by examining and analyzing the votes and conference discussions in cases of particular interest to legal and constitutional historians.

This article examines the available docket book entries relevant to what scholars commonly regard as the major decisions of the Taft Court. This examination includes 117 cases concerning areas of law as diverse as the Commerce Clause, the dormant Commerce Clause, substantive due process, equal protection, the general law, antitrust, intergovernmental tax immunities, criminal procedure, civil rights, and civil liberties. The information in the docket books sheds particularly interesting new light on decisions such as Whitney v California, Village of Euclid v Ambler, Adkins v Children’s Hospital and its successor minimum wage cases, Pierce v Society of Sisters, Buck v Bell, Frothingham v Mellon, Wolff Packing v Court of Industrial Relations, Fiske v Kansas, Tyson & Brothers v Banton, Coronado Coal v United MineWorkers, Corrigan v Buckley, Miles v Graham, Brooks v United States, and Radice v New York. In addition, for these and the many other cases examined, this article reports on whether a unanimous decision also was free from dissent at conference or became so only because one or more Justices acquiesced in the judgment of their colleagues, and on whether non-unanimous decisions were divided by the same vote and with the same alliances at conference. The docket books also provide records of instances in which a case that initially was assigned to one Justice later was reassigned to another. These records afford us some insight into the kinds of cases in which this tended to occur, and provide an opportunity to document for the first time the long-held suspicion that the notoriously slow-writing Justice Willis Van Devanter frequently was relieved of his opinions by the Chief Justice.

An examination of the docket books yields a series of interesting and often surprising revelations. Among them, we learn that by 1925 five of the sitting Justices believed that the 1923 decision of Adkins v Children’s Hospital invalidating a minimum wage law for women had been wrongly decided, and the precedent survived challenge only because four of those Justices continued to adhere to it as a matter of stare decisis. We discover that Justice Brandeis D. Brandeis initially was disposed to dissent from rather than to file his landmark concurrence in the First Amendment case of Whitney v California. We are informed that the Justices regarded as uncontroversial foundational decisions laying the constitutional groundwork for the modern welfare state. We learn that the Court’s published opinions present Chief Justice Taft and Justices Oliver Wendell Holmes and James Clark McReynolds as more favorably inclined toward the protection of civil rights and civil liberties than their votes in conference would indicate. The docket books also help to resolve a set of lingering questions concerning the behind-the-scenes deliberations in the landmark zoning case of Village of Euclid v Ambler.

A review of the Taft Court docket books also makes possible two contributions to the political science literature on judicial behavior. The first is to the scholarship on vote fluidity and unanimity norms in the Supreme Court. It is widely agreed that the period from the Chief Justiceship of John Marshall through that of Charles Evans Hughes was characterized by a “norm of consensus,” “marked by individual justices accepting the Court’s majority opinions.” It is generally believed that this norm of consensus collapsed early in the Chief Justiceship of Harlan Fiske Stone, though some scholars have pointed to causes that antedate Stone’s elevation to the center chair. Still others have suggested that there may have been “an earlier, more gradual change in norms” on the late Taft and Hughes Courts. Political scientists who have had access to the docket books of various Justices have demonstrated that much of the consensus achieved by the Court throughout its history has resulted from the decision of Justices who had dissented at conference to join the majority’s ultimate disposition. A large body of literature shows that Justices commonly have changed their votes between the conference and the final vote on the merits.

Of the different types of vote fluidity between the conference vote and the final vote on the merits in major Taft Court cases, by far the most common was for a Justice to move from a dissenting or passing vote to a vote with the ultimate majority. An examination of the docket books permits us to illuminate several features of this phenomenon: the major cases in which it occurred; how frequently it occurred; its comparative frequency in major cases as opposed to those of lesser salience; the frequency with which each of the Justices did so, and the comparative frequency with which they did so in non-salient cases; and the comparative success of Taft Court Justices in preparing majority opinions that would either enlarge the size of the ultimate winning coalition or produce ultimate unanimity from a divided conference. Among the more interesting findings here is that the member of the Court who most commonly acquiesced in major decisions that he had declined to join at conference was the famously irascible Justice McReynolds.

The second contribution concerns the behavior of newcomers to the Court. In 1958, Eloise C. Snyder published an article in which she concluded that new members of the Court tended initially to affiliate with a moderate, “pivotal clique” before migrating to a more clearly ideological liberal or conservative bloc.25 Seven years later, J. Woodford Howard argued that Justice Frank Murphy’s first three terms on the Court were marked by a “freshman effect” characterized by an “instability” in his decision making that rendered the Justice “diffident to the point of indecisiveness.” These studies in turn spawned a literature on the “freshman” or “acclimation” effect for Justices new to the Court. These studies generally characterize the freshman effect “as consisting of one or more of the following types of behavior: (1) initial bewilderment or disorientation, (2) assignment of a lower than average number of opinions to the new justices, and (3) an initial tendency on the part of the new justice to join a moderate block of justices.” While some studies have confirmed the existence of some feature or another of the freshman effect, others have cast significant doubt on the hypothesis, maintaining that it is either nonexistent or confined to limited circumstances. Studies of the freshman period for individual Justices on the whole have not lent much support to the hypothesis.

Professor Howard suggested that the freshman effect might also be manifested by a tendency of new Justices to change their votes between the conference vote and the final vote on the merits. Howard listed a number of considerations that might prompt a Justice to shift ground in this manner, but first among them were “unstable attitudes that seem to have resulted from the process of assimilation to the Court.” For instance, he remarked, “Justice Cardozo, according to one clerk’s recollection of the docket books . . . frequently vot[ed] alone in conference before ultimately submerging himself in a group opinion.” Howard reported that Justice Murphy exhibited “a similar instability” during his freshman years on the Court. Subsequent studies from the Vinson, Warren, and Burger Court docket books have produced divergent conclusions with respect to this reputed feature of the freshman effect.

A review of the voting behavior of newcomers to the Taft Court does not disclose any appreciable freshman effect with respect to voting fluidity. Instead, one finds that in the major cases examined here, those who were early in their judicial tenures were not more likely than were their senior colleagues to change their positions between the conference vote and the final vote on the merits.

This article proceeds as follows. Part I briefly introduces the Taft Court Justices and their voting practices. Part II discusses the major Taft Court cases that were unanimous both at conference and in the published report of the decision. Part III examines cases that were not unanimous at conference but became unanimous by the time the Court announced its decision. Part IV analyzes the Court’s non-unanimous cases. Part V reports on the Taft Court’s opinion reassignment practices. Part VI concludes.