Split Decisions

William Howard Taft: Chief Justice

by Alpheus Thomas Mason
Simon & Schuster, 354 pp., $6.50

Felix Frankfurter: The Judge

edited by Wallace Mendelson
Reynal, 285 pp., $7.50

Justice Rutledge and the Bright Constellation

by Fowler V. Harper
Bobbs Merrill, 406 pp., $6.95

In a nation which allows its judges to create its constitutional law the boundary-line between judicial biography and constitutional history is not easily traced. Each of the five volumes under review is concerned with one or more phases of the career of powerful members of the Supreme Court of the United States. The succession of portraits provides something more than a gallery of Justices. It produces a picture of the Court and its functioning from 1921 when William Howard Taft became its Chief Justice, to 1962 when Felix Frankfurter resigned his post as Associate Justice.

The portrait that takes us back farthest in time—Professor Mason’s essay on Taft—is a mere miniature: all that it endeavors to reveal is the contribution which Taft made to the post for which he had always longed, that of Chief Justice of the United States. The work is evidently part of a larger study on which Professor Mason is engaged—a general review of the office and the powers of the Chief Justice. This segment of that larger whole provides a lively chapter in American constitutional history. Professor Mason valiantly seeks to subordinate his distaste for Taft’s political and constitutional convictions to a moderate regard for his administrative competence as Chief Justice. Building upon the Taft papers in the Library of Congress, the study not only reveals the effective use which Taft made of the quiet competence of Justice Van Devanter, the Court’s principal technician in matters of Federal jurisdiction, but exposes the exuberant, indiscreet, and misguided zeal with which the Chief Justice, as counsellor to his Republican successors to the office of President and as lobbyist before the Congress, pressed his advice upon the political agencies of government. It is at once an amusing and a scandalous chapter in constitutional history.

Professor Danelski’s monograph tells an even smaller story. It is, in a sense, an appendix to the account of Taft’s Chief Justiceship, for it describes the series of events and combination of influences which came together in 1922 to produce President Harding’s selection of Pierce Butler—Minnesota Democrat, Roman Catholic, staunch defender of the established order—as Associate Justice of the Supreme Court. The heavy hand of the Chief Justice pulled upon every strand of power that was within its reach, and if Taft achieved the worthy objective of keeping a less admirable Democratic Roman Catholic—Judge Manton—from securing a seat on the Supreme Court, the blessings that accompanied Butler’s integrity were not unmixed. The story of the processes by which Pierce Butler of the Ramsey County bar became Mr. Justice Butler of the Supreme Court of the United States provides such a revealing display of low politics in high places that one can only regret that Professor Danelski felt compelled by some academic impulse to provide an absurdly pedantic explanation of the appointment, in which “self-actional and interactional explanations” of Harding’s decision to nominate Butler to the Court are put aside …

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Letters

Law & Justice September 30, 1965