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Jeffrey Rosen, William Howard Taft (2018).

A bellicose politician is on the warpath. His target: the judiciary. On the stump, he mocks individual judges by name and castigates their rulings. The courts, he declares, should not stand in the way of the needs of the public, much less the energetic executive committed to bringing those needs to fruition. Faced with a hostile Congress, a shortage of judges, and no traditional avenue for self-advocacy, the courts are poorly equipped to respond to these attacks on their own. They need a champion on the outside who can make a case against popular passion and for the rule of law.

The story feels conspicuously modern, but it dates back more than a century. The populist demagogue? Theodore Roosevelt. The champion of the judiciary and the rule of law? William Howard Taft.

Jeffrey Rosen’s new biography of Taft, part of the Times Books “American Presidents” series, is a well-timed salve for our unsettling era. As Rosen explains, unlike Roosevelt—and more recent Presidents—Taft embraced “a constitutional rather than a popular conception of the presidency,” and approached his executive responsibilities with a “judicial temperament.” He showed deep-seated respect for the constitutional prerogatives of the coordinate branches, deferring to Congress on legislative priorities and advocating for judicial independence. That reverence for the rule of law fueled Taft’s judicial career before and after his presidency, helping him to modernize the federal courts and bolster their legitimacy. Rosen’s book introduces us to a figure of dual importance: a humble, thoughtful, and constitutionally principled hero in the White House, and a transformative leader on the Supreme Court.

Taft is the only man to serve as both President and Chief Justice, the culmination of a lifetime of public service across two branches of government. The son and grandson of Ohio state judges, Taft was appointed to the Ohio Superior Court in 1887, at the age of twenty-nine. Two years later he became Solicitor General of the United States; three years after that, a judge on the Sixth Circuit. At the insistence of his wife, Nellie, Taft answered the call of politics, serving in rapid succession as Civil Governor of the Philippines, Secretary of War, Provisional Governor of Cuba, and, after the 1908 election, President of the United States.

Nellie reveled in the hurly-burly of political life and the material trappings of political success. Her husband, by contrast, was never fully comfortable in the political arena, where success increasingly depended on one’s willingness to blur constitutional boundaries. Roosevelt had ushered in a new presidential era, energetically introducing reforms without sweating the constitutional details. This greatly distressed Taft, who believed executive power was necessarily tempered by the limits of the Constitution and respect for the rule of law. For his presidency, Taft adopted a much more circumscribed view of his own powers. He approached Congress with “suggestions” on tariff reform, trust-busting, and environmental protection, but refused to interfere with Congress’s power to legislate. And far from bashing judges, he repeatedly stressed the importance of an independent judiciary, including it as a central theme in his inaugural address in 1909 and on the campaign trail in 1912.

Taft’s constitutional humility in the Oval Office proved too much for Roosevelt, who saw it as a virtual abdication of executive power. Their relationship quickly deteriorated, culminating in Roosevelt’s entry into the 1912 presidential election. Unable to draw attention away from Roosevelt’s dramatics and Woodrow Wilson’s message of economic reform, Taft finished a distant third, with only eight electoral votes.

Leaving the White House after electoral defeat might have depressed others, but it came as a relief to Taft. He had always been happier as a judge than as a politician. Moreover, his lifelong ambition—to be Chief Justice—remained within reach. For the next eight years, Taft worked to stay in the public eye (teaching at Yale, leading the ABA) while his allies lobbied successive presidents to place him in the center chair. Their tenacity paid off. In June 1921, Warren Harding nominated Taft to be Chief Justice. The Senate confirmed him the same day.

Taft’s second act as a chief executive was as lively and inspired as his first had been muted. The new Chief Justice encountered a federal court system that was heavily backlogged and under attack. Using his political skill and the prominence of his new office, Taft immediately set about improving the courts’ operations, public legitimacy, and institutional self-awareness. Free from the constitutional restrictions on lobbying that he had faced as President, Taft personally pressed Congress for legislation to modernize the federal court system. He procured more judges, ended the Supreme Court’s mandatory jurisdiction, advocated for judicial power to make procedural rules, secured funding for a freestanding Supreme Court building, and created the predecessor to the Judicial Conference of the United States. A century later, the federal courts still bear the stamp of Taft’s organizational genius.

Reflecting on these developments, Rosen observes that “Taft chafed as a judicial president and thrived as a presidential chief justice.” This is no contradiction, given that Taft was guided by respect for constitutional government and the rule of law in both executive and judicial life. Fealty to the design of the Constitution restricted Taft’s actions as President, and that same fealty energized him as head of the federal court system. And while Rosen portrays Taft’s devotion to these principles as near-religious at times, at no point does Taft’s commitment feel anything less than genuine, heartfelt, and sincere.

We could use a healthy dose of that commitment today. Our last two presidents have chosen to pursue their agendas largely through executive orders, agency regulations, and pointed political attacks, rather than engaging in the hard work of negotiating with Congress. A disquieting number of legislators and interest groups treat judges as politicians in robes and assail judicial nominees for the sin of having privately held opinions. And cynicism about lawmakers, law enforcement, and the law itself is growing. In an age in which the rule of law is increasingly equated with politics, power, and privilege, Taft’s lived experience and fidelity to deliberative democracy and constitutional government remind us that these ideals are worth defending.

The judiciary, too, can learn from Taft’s example. The Chief Justice was keenly aware that courts cannot function without public legitimacy—legitimacy that in our day (if not Taft’s) is rooted in transparency. Today’s federal courts, however, remain curiously uninterested in making their work broadly accessible to the general public. Electronic court documents hide behind the PACER paywall. The Judicial Conference recently shelved a successful pilot program for videotaping civil proceedings. And with rare exceptions, the Supreme Court will not release same-day audio of oral arguments, let alone allow video-recording. It is hard for the public to build confidence in the rule of law when it cannot readily observe the judicial process or the procedural safeguards that public adjudication provides. A modicum of transparency would yield disproportionately positive returns.

Sensing the moment, Rosen writes that “all three branches today are institutionally equipped, if they choose, to resist these populist threats and defend the rule of law.” Taft’s enduring example, and Rosen’s crisp and engaging depiction of it, remind us that the core values of American democracy remain within our civic grasp, if we allow ourselves to embrace them.

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Cite as: Jordan Singer, Hail to the Chief Justice, JOTWELL (June 15, 2018) (reviewing Jeffrey Rosen, William Howard Taft (2018)),