Introduction

Judicial President and Presidential Chief Justice


In 1905, as secretary of war, William Howard Taft set out on a diplomatic mission to the Far East. Stopping off at the Imperial Palace in Tokyo, Taft received from the empress of Japan an elaborate tapestry for his wife, Nellie, a copy from the Gobelin original, showing the meeting of Columbus and Isabella. When Taft brought the gift home, Nellie protested that it was too large to be of use. “Oh well, never mind,” Taft declared. “I’m going to present it to the Smithsonian Institute anyway, because you know, my dear, it is against the Constitution for an official in the United States government to accept any kind of favours from foreign courts.” Nellie had often “met the Constitution face to face,” she recalled, but had previously accepted “its decrees with what I had hoped was patriotic resignation.” This time, however, she changed her mind. Nellie decided she wanted to keep the tapestry after all.1

Mrs. Taft then tried to persuade her husband, a former judge, that she was not an official of the United States government and therefore was not bound by the foreign emoluments clause of the Constitution. Taft “stood firmly by the Constitution, as usual,” Nellie recalled with bemused exasperation, “and eventually I had to submit the question for arbitration to President Roosevelt, who agreed with me that I was a private citizen and had a perfect right to accept the gift.” After Taft became president, she hung the tapestry in the state dining room of the White House, where she took pleasure in watching guests attempt in vain to decipher its meaning.2

Nellie Taft’s verdict about her husband’s judicial scruples—“he stood firmly by the Constitution, as usual”—serves as a fitting epitaph for his entire career. William Howard Taft, the only president who went on to serve as chief justice of the United States, devoted his leadership of the executive and judicial branches to defending the U.S. Constitution above all. Earlier in his career, Taft had served as solicitor general in the U.S. Department of Justice, representing the United States before the Supreme Court. The experience quickened his judicial ambitions. His next appointment was to the U.S. Court of Appeals for the Sixth Circuit, which he found a kind of heaven; after eight years, President William McKinley persuaded him to resign to become governor-general of the Philippines, another appointment that delighted him because it cast him as Solon, a constitution maker applauded by a grateful people. He declined President Theodore Roosevelt’s repeated offers of a Supreme Court seat with the greatest reluctance and agreed instead to serve as secretary of war, a position once held by his revered father, where he endeared himself to the president for his deference and administrative efficiency. Yearning as always for the bench, he was persuaded by his wife to run for president in 1908, and his victory fulfilled her ambition while thwarting his own.

In the White House, Taft approached the presidency not as a politician but as a judge. He pledged to put Roosevelt’s policies, many of them enacted by executive order, on firm constitutional grounds by persuading Congress to endorse them. And he approached each presidential decision by asking whether it comported with the Constitution. Unlike Roosevelt, who declared that a president could do anything the Constitution didn’t forbid, Taft insisted that he could do only what the Constitution explicitly allowed. This caused a dramatic breach with Roosevelt, leading to the historic election of 1912, which Taft viewed as a crusade to defend the Constitution against what he considered the demagogic populism of Roosevelt and Woodrow Wilson. The people disagreed, and Taft was defeated.

Nine years later, Taft fulfilled his lifelong dream when President Warren Harding appointed him chief justice. And he achieved on the Court many of the remaining constitutional goals he had set for himself as president, promoting consensus among the justices and establishing the federal judiciary as a modern, strong, and fully equal branch of government, ready to defend constitutional rights and liberties against the encroachments of the political branches and against new populist threats. To emphasize the independence of the judicial branch, he oversaw the construction of a new Supreme Court building, which allowed the Court to move from its cramped headquarters in the basement of the Capitol to a majestic Temple of Justice across the street. If Taft had chafed in the White House as a judicial president, he thrived on the Supreme Court as a presidential chief justice.

Taft is remembered today as an average president, and most ratings of presidential historians place him in the middle. The 2017 C-SPAN Presidential Historians Survey, for example, ranks Taft overall at twenty-fourth—just below Ulysses S. Grant and Grover Cleveland, but substantially below his rivals in the election of 1912, Theodore Roosevelt and Woodrow Wilson, who rank fourth and eleventh, respectively.3 As chief justice, by contrast, Taft ranks much higher. A 1993 survey of judicial historians ranked him fifth among the sixteen chief justices who had served to that date, trailing only John Marshall, Earl Warren, Charles Evans Hughes, and Harlan Fiske Stone.4

When Taft’s constitutional achievements as president and chief justice are viewed of a piece, his significance comes into proper focus. As Judge Douglas Ginsburg of the U.S. Court of Appeals for the D.C. Circuit told me, “William Howard Taft is the most underappreciated constitutional figure since George Mason, who refused to sign the original Constitution because it didn’t have a Bill of Rights.” As judge, colonial governor, cabinet secretary, president, and chief justice, Taft had a clear and consistent constitutional vision, and he achieved nearly all of the constitutional goals he set for himself, even if as a politician he often fell short. A disciple of John Marshall and the authors of the Federalist Papers—James Madison, Alexander Hamilton, and John Jay—Taft believed that the presidency, the Congress, and the judiciary should be strong and independent branches, each exercising broad but limited powers within clearly defined constitutional boundaries. And he insisted that constitutional filters on the direct expression of popular passion were necessary to promote the “wise deliberation … which may constitute the salvation of the Republic.”5 Without these filters, he feared, America would degenerate from a representative republic into a direct democracy, and populist demagogues would flatter the people into subverting the constitutional order.

This short book offers an interpretation of William Howard Taft’s presidency as he himself understood it: in constitutional rather than political terms. There are many fine political biographies of Taft, and many reach an ambivalent verdict. Henry Pringle, Taft’s first biographer, wrote of his subject in 1939 with stylish condescension, concluding accurately but waspishly that Taft “had a thorough mind rather than a facile or brilliant one” and that his judicial opinions, like his letters and presidential speeches, were “too verbose and rarely had charm.”6 Twenty-five years later, Alpheus Mason, in the most comprehensive study of Taft’s Supreme Court career, began by noting:

For Americans of my generation, the conventional image of William Howard Taft is unflattering. It pictures him as a stubborn defender of the status quo, champion of property rights, apologist for privilege, inveterate critic of social democracy—the gigantic symbol of standpattism. Weighing well over three hundred pounds, avoirdupois alone made him a cartoonist’s model of the bloated capitalist or political boss.7

Mason does not entirely dispel this caricature.

More recent studies—including superb books by Judith Anderson (on Taft’s psychology and character), David H. Burton (on his foreign policy), Doris Kearns Goodwin (on his relationship with Theodore Roosevelt and the press), Lewis L. Gould (on his presidency), and Jonathan Lurie (on his progressive conservatism)—view Taft as a man of rectitude who lacked political skills. “Widely admired in his day for his integrity and strong sense of morality,” Lurie writes, “Taft seems to have set a standard for personal conduct that later presidents have had, to put it mildly, some difficulty in attaining.”8 These biographers recognize that Taft had a judicial temperament that was ill equipped for the political demands of the twentieth-century presidency. But they take him to task for refusing to engage in popular leadership—precisely the kind of leadership that Taft’s constitutional vision of the presidency forbade.

Taft, however, was unapologetic about his embrace of a constitutional rather than a popular conception of the presidency. “I will not play a part for popularity,” he told his military aide Archie Butt, who served and admired both Roosevelt and Taft and whose letters provide the most intimate and balanced contemporary account of Taft’s presidency and character. “If the people do not approve of me or of my administration after they have had time to know me, then I shall not let it worry me, and I most certainly shall not change my methods.”9 And Taft was more successful in achieving his goals than many observers have recognized. He extended federal environmental protection to more land than Roosevelt and brought more antitrust suits in one term than Roosevelt brought in nearly two. Slashing federal expenses, he turned a budget deficit of $89 million in 1909 into a budget surplus of $11 million in 1911. As a moderate free trader, he passed the first reduction in the federal tariff since the 1890s, a political third rail Roosevelt had avoided. He persuaded Congress to pass a landmark Canadian free trade agreement (although Canadian voters ultimately rejected it), and he maintained peace with Mexico by refusing to send troops over the border despite cries in his own party to start a war. He defended judicial independence against the demagogic attacks of Roosevelt, who assailed individual judges by name and sought to overturn judicial decisions by popular vote.

Throughout his career, Taft’s abiding goal was to perfect the administration of what he called “the machinery of government with a view to increasing its efficiency and decreasing its cost.”10 Henry Stimson, who served as secretary of war under Presidents Taft, Franklin Roosevelt, and Harry Truman, and as secretary of state under Herbert Hoover, said that Taft was the finest administrator of them all.11 Taft’s talent for administration allowed him to fulfill his campaign promise to oversee a government that was constitutionally limited and economically efficient. And as chief justice, Taft deployed his gifts as an administrator and mediator to achieve many of his remaining goals, reforming the federal rules of judicial procedure and establishing the federal judiciary as a strong and independent branch of government, ready to check the excesses of the political branches in the face of new populist threats.

For all Taft’s judicial virtues—his devotion to constitutional limitations, his scrupulous honesty, his skill as an administrator, and his respect for the prerogatives of Congress and the courts—he cannot be considered an entirely successful president, because successful presidents need to exercise the popular leadership Taft disdained. Instead of trying to persuade Congress to adopt his proposed tariff reform, for example, Taft simply sent a 340-word legalistic message and left it at that, because he believed the Constitution allowed the president to recommend laws but not to lobby for them. (As chief justice, he took a different view of lobbying for judicial reform.) Devoted to party unity above all, Taft put too much trust in the Republican leaders known as “standpat conservatives,” led by Speaker Joe Cannon, who watered down his proposed tariff reforms and refused to endorse the international courts that he considered necessary for global peace. Moreover, because of his thin-skinned sensitivity to criticism, Taft impetuously fired those he considered disloyal, with disastrous political consequences, culminating in his rift with Theodore Roosevelt and the fracturing of the Republican Party.

Still, it is important to understand Taft’s refusal to exert popular leadership as part of his constitutional conception of the presidency. Like the Framers, Taft saw the president’s role as that of a kind of chief magistrate who would promote thoughtful deliberation among the people’s representatives without directly representing the people’s momentary passions. Seen in this light, Taft’s political vice was a constitutional virtue, better suited to the bench than to the White House, no doubt, but based on principle and not personality.

Taft’s principles, in turn, led to his rift with Roosevelt, which continues to define our modern debates over the constitutional powers of the president. “The thing which impresses me most is not the power I have to exercise under the Constitution, but the limitations and restrictions to which I am subject under that instrument,”12 Taft declared in 1909, a year after his election as president. Taft was appalled, therefore, the following year, when Theodore Roosevelt delivered his famous “New Nationalism” speech in Osawatomie, Kansas, in which Roosevelt declared, “This New Nationalism regards the executive power as the steward of the public welfare.” In his autobiography, published in 1913, Roosevelt elaborated on his view: “My belief was that it was not only [the president’s] right but his duty to do anything that the needs of the Nation demanded unless such action was forbidden by the Constitution or by the laws.” As he dramatically concluded, “I did not usurp power, but I did greatly broaden the use of executive power.”13

Taft strongly disagreed with Roosevelt’s “stewardship” vision. “The true view of the Executive functions is, as I conceive it, that the President can exercise no power which cannot be fairly and reasonably traced to some specific grant of power,” Taft wrote in Our Chief Magistrate and His Powers, published in 1916. Anticipating the position of strict constructionist Republicans today, Taft continued, “Such specific grant must be either in the Federal Constitution or in an act of Congress passed in pursuance thereof.”14 Taft was similarly appalled by Roosevelt’s populist attacks on judges—in particular, by his proposal to allow Americans to overturn judicial decisions by popular vote—and he decided that the central question in the election of 1912 was judicial independence.

Taft viewed the election of 1912 as a choice between the Founders’ conception of the presidency as a constrained office, defined and limited by the Constitution, and the views of his progressive rivals Theodore Roosevelt and Woodrow Wilson, who, in different ways, viewed the presidency as a popular office, directly accountable to the people. While Roosevelt saw the president as a “steward” of the people, Wilson criticized the separation of powers and natural rights as an eighteenth-century anachronism, insisting that the twentieth century demanded a large, energetic federal government overseen by a president directly responsive to the people’s will.15 Taft, like the Founders, rejected the idea of popular leadership by the president, but Roosevelt and Wilson insisted on it. For Taft, the president’s authority came from the Constitution; for Roosevelt and Wilson, it came directly from the people. Although Roosevelt and Wilson believed in rule by experts who were accountable to the president, they championed reforms like the initiative, referendum, and direct primary that would limit the ability of representatives and independent judges to filter popular passions. They also criticized judges for checking progressive legislation and thwarting the immediate expression of the people’s will.

Taft, by contrast, insisted that the Founders intended to create a republic rather than a pure democracy, and that direct communication between the people and their representatives could lead to the rule of demagogues and the mob. He agreed with James Madison that wise presidents should refine public opinion and promote thoughtful deliberation among the people and their representatives, rather than reflect the passions of the moment. Taft defended this view extensively in his collection of lectures, Liberty Under Law: An Interpretation of the Principles of Our Constitutional Government (1922). He emphasized that the Constitution included structural mechanisms, such as an independent judiciary, designed to slow the pace of direct democracy and to check “every temporary wind of popular passion.”16 As Taft emphasized,

We are not a pure democracy governing by direct action, and the great men who framed our fundamental law did not intend that we should be.… The people do rule and always have ruled in the United States. They have their will but they have it after a wholesome delay and deliberation which they have wisely forced themselves to take under the restrictions of a Constitution which, adopted by however small popular vote, they have fully approved by more than one hundred and thirty years of acquiescence. It is this voluntary self-restraint that has made their Government permanent and strong. It is a fundamental error to seek quick action in making needed changes of policy or in redressing wrong.17

Taft inherited his devotion to constitutional fidelity over political expedience from his father, Alphonso Taft, who revered judges over politicians. After President Abraham Lincoln nominated Salmon Chase to be the sixth chief justice in 1864, Alphonso Taft told Chase, “To be Chief Justice of the United States is more than to be President, in my estimation.”18 Similarly, while signing Edward Douglass White’s commission to become the ninth chief justice in 1910, President Taft lamented with characteristic honesty, “There is nothing I would have loved more than being Chief Justice of the United States. I cannot help seeing the irony in the fact that I, who desired that office so much, should now be signing the commission of another man.”19

Both father and son served on the Ohio Superior Court and then achieved a series of increasingly high appointments at home and abroad. Alphonso Taft served as President Grant’s secretary of war and President Benjamin Harrison’s attorney general, as well as minister to the courts of Austria-Hungary and Russia. He was also a devoted party man who helped to found the modern Republican Party in 1856 on the principle of preserving the Union and the Constitution.

William Howard Taft passed on the same constitutional vision to his own children. Taft’s oldest son, Robert Alphonso Taft, became one of the leading conservative senators of the twentieth century, celebrated as “Mr. Republican” for his advocacy of non-interventionism in foreign policy and his attempts to curb the power of labor unions. (The Taft-Hartley Act of 1947, which Robert Taft sponsored, outlawed the secondary boycott, or strikes by unions against companies that did business with other companies engaged in labor disputes, which William Howard Taft had fervently opposed as a lower court judge, as president, and as chief justice.) Robert Taft founded the modern limited-government wing of the Republican Party, in opposition to the big-government conservatism of President Dwight D. Eisenhower. William Howard Taft’s daughter, Helen Taft Manning, distinguished herself as an American history professor, dean, and acting president at Bryn Mawr College. And his son Charles Phelps Taft II, known as “Mr. Cincinnati,” served as Republican mayor of the Taft family’s hometown.

If Americans today remember Taft for anything, it is likely for his weight: he is indelibly defined in the public mind as our largest president. The most famous photograph associated with Taft doesn’t even include him: it’s the one of four workers sitting in a giant bathtub that weighed a ton and was specially installed for Taft’s use on the USS North Carolina during the president-elect’s visit to the Panama Canal in January 1909. Taft had similarly large tubs installed on other battleships during his presidential excursions, although the claim that the president “would stick” in the bath and each time had to be “helped out,” offered up by the White House usher Ike Hoover in his 1934 memoir,20 has not been confirmed by any other contemporary source.21 Still, cruel jokes about Taft and bathtubs abounded. The Los Angeles Herald ridiculed Taft by imagining that “some disrespectful, utterly mean person were to steal his clothes” while he was bathing and the president had to make his way home in an oversized barrel. The Chicago Day Book invited readers to give thanks Taft didn’t take a bath with them.22 The public’s desire to observe Taft bathing became so irresistible that thrill-seeking citizens in Glenwood Springs, Colorado, in 1909 reportedly invited the president to wear a “specially constructed bathing suit” and to immerse himself in the public bath, an invitation Taft wisely declined.23 Nevertheless, according to a report in the New York Times headlined “Taft Causes Hotel Deluge,” Taft did, in fact, overflow a bathtub in Cape May, New Jersey, in 1915. “When he got into the tub the water overflowed and trickled down upon the heads of the guests in the dining room” below, according to the Times. “The entire resort, including Mr. Taft, laughed at the incident,” and as Taft boarded the train the next morning, “he glanced at the ocean and said: ‘I’ll get a piece of that fenced in some day and then when I venture in there won’t be any overflow.’”24

Taft’s weight continues to be an object of public fascination: the Washington Nationals recently added Taft to the pantheon of “racing presidents” who scamper about to entertain the crowd, because he is credited with having started the tradition of the seventh-inning stretch as well as throwing out the first pitch in 1910. The Taft mascot was nicknamed “Big Chief,” according to the Washington Post, and was made “a bit larger” than his polyurethane colleagues.25 And yet, like many of his achievements, Taft’s girth is taken out of context: for much of his life, Taft controlled his weight through impressive self-discipline. Taft was tall and large from youth—his nickname was not “Big Chief” but “Big Lub.”26 At his college graduation, he stood half an inch short of six feet and weighed 243 pounds, a weight that he carried gracefully.27 (Taft was always an excellent dancer and sometimes waltzed alone on the White House veranda.) But he ate compulsively in times of stress, and by fall of 1905, when he was serving as secretary of war, he weighed 326 pounds.

Taft proceeded to lose 76 pounds in less than a year by rigorously following an Edwardian version of the Paleo diet, prescribed by the British physician Nathaniel Edward Yorke-Davies.28 This remarkably effective diet forbade sugar, starch, dairy, and processed food while allowing unlimited quantities of green vegetables as well as small portions of lean meat or fish. By restricting himself to six hundred calories a day, Taft lost about 3 pounds a week between October 1905 and May 1906,29 at which point he weighed 250 pounds.30

Having more or less starved himself for eight months, Taft ate his feelings in the stressful year that followed. He had abandoned his diet by 1907 and weighed 300 pounds during the presidential campaign of 1908. By the time he left the White House in 1913, he had ballooned to 340 pounds, his highest weight ever.31 But after leaving the presidency, with contentment and relief, he resumed his Paleo diet and lost 75 pounds between March 1913 and March 1914. And he kept his weight down for the rest of his life, including his happy years as chief justice.32 When he died in 1930 at the age of seventy-two, he weighed 244 pounds, only a pound more than he had weighed at his Yale graduation fifty years earlier.33

When Taft weighed over 300 pounds, in the Philippines and the White House, he likely suffered from obstructive sleep apnea, a disorder that jarred him awake every few minutes during slumber and made it impossible for him to enjoy a peaceful night’s sleep. The result was somnolence throughout the day—he called it “that tendency to sleepiness which made me think of the fat boy in Pickwick”34—causing him to fall asleep on the campaign trail, during White House meetings with the chief justice and the wife of the French ambassador, at the opera, while playing cards, and even while standing at public events.35 (Taft would snore loudly during these public naps, prompting Nellie and Archie Butt to awaken him with a kindly prod.) The disorder may have affected his ability to work for sustained periods during his presidency, leading to allegations of laziness among those who failed to appreciate its cause. Even Senator James Watson, who linked Taft’s overeating and sleepiness in public with lack of executive focus, joked, after Taft jolted awake in his presence, “Mr. President, you are the largest audience I ever put entirely to sleep in all my political experience.”36 But after Taft’s final Paleo diet at the end of his presidency, the sleep apnea disappeared, and he remained alert, focused, and remarkably productive for the rest of his happy career as a law professor and as chief justice.37

Taft was candid about his struggles with weight, and he responded to the relentless jokes with endearing good humor. He entertained crowds by telling stories on himself, including Secretary of War Elihu Root’s famous telegram when Taft reported he was feeling fine in the Philippines after a long ride on horseback: HOW IS THE HORSE?38 Most striking of all, the president who viewed everything through a constitutional lens saw a connection between an unrestrained appetite for food and an unrestrained appetite for power. He gave a memorable speech as president comparing the struggle for self-control over one’s diet to the struggle of popular majorities to exercise self-control in a democracy.39 In the speech, titled “He Who Conquers Himself Is Greater Than He Who Taketh a City,” Taft cited this proverb as an inspiration for men who struggled to control “the taste for strong drink” or “the appetite for food.”40 He went on to say that popular government, like personal fitness, is impossible unless the majority can muster self-control. In a true popular government, Taft declared, the people voluntarily embrace constitutional restraints on the expression of their will “to enable them to govern themselves, so that the first wave of popular will should not find immediate expression in legislation, but that the people should take time, should discuss the matter, and should have several delays before they accomplish their entire purpose with respect to the Government.”41

“Taft will never be regarded as a great president, or even a good one,” one commentator concludes, “but perhaps some day his obesity may cease to be his legacy.”42 In fact, Taft’s ultimate success in mastering his own weight exemplified the self-discipline that he believed citizens in a constitutional republic had to find in themselves, in order to promote thoughtful deliberation rather than short-term gratification. This determination to use his leadership of the executive and judicial branches to promote thoughtful public deliberation and to protect the rule of law is, in fact, Taft’s greatest legacy.

As I write, democracies around the world, including the United States, are engaged in a vigorous debate about whether populism—characterized by leaders who claim that they alone speak for the people—is consistent with constitutionalism—characterized by allegiance to representative government, checks and balances, individual rights, and the rule of law. New media technologies are enabling the rise of populist and nationalist political movements that threaten core constitutional values. Taft’s legacy, therefore, is especially relevant today: as the only president to approach the office in constitutional terms above all, he provides a model for how presidents and justices can resist these pressures, which threaten judicial independence and the rule of law. Like the Framers of the Constitution, and like his heroes Hamilton and Marshall, Taft believed fervently that there is a tension between populism and constitutionalism. Like the Framers, he had studied failed democracies, such as Athens and Rome, and understood that direct democracy could lead to tyrants or demagogues who play on the passions of the mob.

Taft believed that democracy would perish if the people could express their preferences in initiatives and referenda, the precursors of today’s Twitter polls or Brexit votes, rather than having their views filtered through constitutional structures and enlightened representatives, checked by independent judges to ensure thoughtful deliberation. And today, as populist politicians attack judicial independence, progressives are joining conservatives and libertarians in rediscovering the dangers of demagogic leaders who rule by executive order or pander to popular whims. In anxious times, Taft offers an unexpected and appealing model of a chief executive who took seriously the constitutional constraints on all three branches of government and, as chief justice, enforced those boundaries with vigor.


Copyright © 2018 by Jeffrey Rosen