Vol. 10 No. 1 (January 2000) pp. 27-30.

TAFT, HOLMES, AND THE 1920s COURT by David H. Burton. Madison, N.J.: Fairleigh Dickinson University Press, 1998. 174 pp. Cloth $33.50.

Reviewed by David G. Barnum, Department of Political Science, DePaul University.

William Howard Taft (1857-1930) and Oliver Wendell Holmes, Jr. (1841-1935) served together on the U.S. Supreme Court for a period of nine years. Taft was appointed Chief Justice in 1921 and served until 1930. Holmes during this time was in the third decade of his lengthy tenure (1902-1932) as an Associate Justice.

David Burton's TAFT, HOLMES, AND THE 1920s COURT is a slim volume intended to examine in juxtaposition the two men's lives and careers in the years leading up to their service on the Court as well as their years together on the Court. The book is based on sources that include Burton's previous work on the two men -- POLITICAL IDEAS OF JUSTICE HOLMES (1993), HOLMES-SHEEHAN CORRESPONDENCE (1993), WILLIAM HOWARD TAFT IN THE PUBLIC SERVICE (1986), and OLIVER WENDELL HOLMES, JR. (1980) -- as well as other biographies and studies. Extensive reliance is also placed on Taft and Holmes' Supreme Court and pre-Supreme Court judicial opinions and various extra-judicial writings (i.e., books, articles, and published lectures and

The book is organized chronologically into chapters that examine (1) Taft and Holmes' social and geographical origins, (2) the two men's pre-Supreme Court careers, (3) the two men's careers in Washington, which in Holmes' case consisted exclusively of his tenure as an Associate Justice but in Taft's case was more varied and consisted of four years as President (1908-1912), preceded and followed by various federal administrative appointments, and finally (4) the nine-year period during which Taft and Holmes served together on the Court. An introductory chapter examines main currents of American intellectual and cultural history in the 19th Century.

A brief final chapter summarizes Burton's conclusions.

Professor Burton devotes approximately the first half of each chapter to discussing Taft, turning in the second half of the chapter to Holmes, and, on occasion, alternating his discussion of the two men more frequently. The decision to discuss Taft "first" and Holmes "second" is deliberate. As Burton explains in his preface, "By cutting across the grain -- in other words, by writing about Taft and Holmes rather than Holmes and Taft, and given the aim of this study (namely, an analysis of the 1920s court, a Taft court) -- I am asking the reader to put aside the image of Holmes as the grand panjandrum of the law" (p. 10).

What immediately follows this assertion, however, is an example of one of the weaknesses of Burton's study. The author's specific point, I believe, is that although Holmes' reputation as a great jurist is not undeserved, Taft's record of public service was exceedingly rich and varied and in this sense the role that Taft played in

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shaping the content of American public policy was arguably more significant than that played by Holmes. The way that Burton makes this point in his preface, however, is as follows:

In fact, to do so [i.e., "to put aside the image of Holmes as the grand panjandrum of the law"] requires little more than reading history and biography forward, not backward, always the best way to proceed. The pertinence of this caveat is made more explicit by pointing out [that?] in the year Taft was Solicitor General of the
United States, Holmes was best known for his scholarly book, THE COMMON LAW, not for his interpretations of the Constitution of the United States. Or again, when Holmes was a member of the Supreme Judicial Court of Massachusetts, William Howard Taft was serving as a federal circuit judge in Ohio. The reader must be reminded of such considerations to explain, if not to justify, the emphases that obtain in approaching Taft, Holmes, and the 1920s Court. (p. 10)

I confess that when I first read this passage, I struggled to understand the point that Prof. Burton was trying to make. Something more is needed, such as a reference to the fact that Holmes was born in 1841 and Taft in 1857, a fact of which the reader has not yet been apprised (and indeed never is directly apprised), or perhaps a sentence that explicitly rather than implicitly makes the point that publication of a "scholarly book" such as THE COMMON LAW should not uncritically be equated to governmental service in either the executive or the judicial branch of the federal government. In the meantime, of course, Burton's purpose in writing the book is not remotely revisionist. That is, his goal is not to debunk Holmes' reputation or resurrect Taft's. There is a suggestion in the Preface, however, that this is what the reader should expect. I found that the net effect of the sentences of which this and several other paragraphs in the book were comprised was to leave me at least temporarily puzzled about the specific point that the author was trying to make or the direction in which he intended to take his analysis.

Some of the difficulty that I had with Professor Burton's book is attributable to the fact that, as the author cautions in his Preface, "[m]uch biographical detail is presumed" (p. 10). I learned from the book that William Howard Taft was President of the United States, which I knew, but I had to look to other sources to learn that Taft was President from 1908 to 1912, a fact of which, I confess, I was not sure. I also learned from Burton's book that Taft was at one time Solicitor General, which I did not know, but again, nowhere in the book is there a clear statement of precisely when Taft occupied this office (it was 1890-1892). The presumption of a significant amount of elementary but important biographical information may impair the usefulness of the book to students and others for whom it might
otherwise serve as a succinct and authoritative examination of the intersecting careers of two major figures in American political and legal

A substantial proportion of the book consists of Professor Burton's interpretive summaries of Taft and Holmes' judicial opinions and other writings. The summaries are ordinarily a paragraph or two in length, although sometimes rather longer, and most are self-contained and offered in sequence. This avoids potential confusion about which

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particular cases and other writings are being discussed, but it also imbues the analysis with a somewhat mechanical quality. In this connection, Professor Burton himself seems almost defensive in introducing his discussion of the cases decided by Taft and Holmes while they were serving together on the Taft Court:

Friendship notwithstanding, no sooner had the fall 1921 term gotten underway than Taft and Holmes disagreed with one another. It might be a technical point of law, a provision of the Constitution when interpreted, or a fundamental of jurisprudence that brought them into opposition. No matter, the divergence was there, and cases argued and decided by the Court would make it evident. It may appear gratuitous to refer to examples of Chief Justice Taft's constitutional conservatism and Justice Holmes' liberalism as stated in their Court opinions of the 1920s. Nevertheless, it can prove useful within this context to cite such views so forthrightly expressed, because they appear to be definitive statements of their philosophies. And they are -- but only to a point, as a case-by-case analysis is designed to
point out (p. 129).

The summaries of individual cases and other published materials are succinct and for the most part, to the best of my knowledge, accurate. They are, however, only summaries -- and interpretive summaries at that. As such, their usefulness to students and others may lie primarily in the fact that they can lead the interested reader expeditiously to the documents on which they are based.

The value of Professor Burton's book for students and others will depend on how much merit individual readers discern in the interpretive conclusions the author draws from the sources on which he relies. The author is not shy about drawing such conclusions, or about attaching to Taft and Holmes labels that subsume -- and assume -- a great deal of complex information. "Taft, by 1908," Burton writes, "could well be defined as a conservative Progressive in matters of both law and politics" (p. 80) (n. b., Burton also quotes Taft as once describing himself as "a lover of the Constitution and a believer in progressive conservatism") (p. 127). "Whether Taft is best categorized as a Reform Darwinist or Holmes as a practicing pragmatist makes little difference," Burton later writes, "when it comes to
the control man could exercise over environment to attain not the heavenly city of the eighteenth-century philosophers but the brave new world of science regnant" (p. 146). And again, "To understand Holmes in relation to Taft, it is important to appreciate both the pragmatist and the ethical relativist in his dealing with the law, both constitutional and statute. It must be added that Holmes was at least one part Social Darwinism [Darwinist?] and one part Malthusian" (p. 147). It seems to me that judgments such as these should represent the culmination of a scrupulous process of scholarly research and argumentation and should not be offered too freely. Speaking for myself, I found that in Professor Burton's book the lack of adequate groundwork for presentation of several such sweeping conclusions frequently
deprived the conclusions themselves of much of their potential persuasiveforce.

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Burton, David H. 1993. POLITICAL IDEAS OF JUSTICE HOLMES. Madison, N.J.:
Fairleigh Dickinson University Press.

Krieger Publishing Company.

______. 1980. OLIVER WENDELL HOLMES, JR. New York: Twayne Publishers.

______. (Ed.). 1993. HOLMES-SHEEHAN CORRESPONDENCE. Bronx, N.Y.: Fordham
University Press.

Holmes, Oliver Wendell, Jr. 1881. THE COMMON LAW. Boston: Little Brown and