Calvin Coolidge and the Supreme Court

Calvin Coolidge andthe Supreme Court

RUSSELL FOWLER

When any presidency is studied, an understandable emphasis is placed on the President’srelationship with Congress, for the Constitution compels these overtly political branches tocontinually interact. The success of a presidency can depend on this relationship. In contrast, in-teraction is intermittent between the chief executive and the third branch, the judiciary. There-fore, this relationship is often overlooked unless a dramatic conflict arises—such as Franklin D.Roosevelt’s ill-fated Court-packing plan—or, more commonly, a Supreme Court decision im-pacts presidential actions.

Due to their separate duties and daily functions, and the Supreme Court’s traditional andconstitutional isolation, the dealings between the President and the Court are seldom character-ized by active cooperation in pursuit of common goals. As Alexander Hamilton explained, thisis because the Court has no “will,” only “judgment.”1 Nevertheless, because of the interest andefforts of President Calvin Coolidge, one of the most unusual yet productive periods of interac-tion between the two branches occurred during his presidency from 1923 to 1929.

The study of this phenomenon also servesto refute the myth that Coolidge was a“do-nothing” President who snoozed away histenure in the White House, only occasionallywaking to proclaim that “[t]he business ofAmerica is business.” First, these famouswords—often all too conveniently used tosummarize the man, his presidency, and histimes—are misquoted and taken out of con-text. Coolidge really said, “After all, the chief

business of the American people is business”2

at the beginning of an address asserting ahigher idealism characterizing America. Hewent on to say, “Of course the accumulationof wealth cannot be justified as the chief endof existence,”3 and he added:

We make no concealment of the factthat we want wealth, but there aremany other things that we want

much more. We want peace andhonor, and that charity which is sostrong an element of all civilization.The chief ideal of the American peo-ple is idealism. I cannot repeat toooften that America is a nation of ide-alists. That is the only motive towhich they ever give any strong andlasting reaction.4

More importantly, Coolidge was an ableand active administrator uniquely interestedin the development of law, individual liberty,racial and religious tolerance, and the chal-lenges confronting the courts. And importantchallenges they were. During Coolidge’spresidency, American law was experiencingtension and change—philosophical, struc-tural, and political—rarely witnessed sincethe nation’s founding. Compounding the ur-gency, the Supreme Court was undergoingunprecedented attacks and reforms. Duringthis critical period, Coolidge unexpectedlybecame the Court’s greatest champion.

Finally, the study of this facet of theCoolidge presidency takes another step to-ward answering a general lack of scholarshipon the administrations of the 1920s. Althoughthe recent works on Coolidge by Robert H.Ferrell and Robert Sobel have made signifi-cant contributions,5 there is still much to bedone. As has been said, “[w]e know moreabout the Socialists and Communists in the1920s than we do about the Republicans.”6

Coolidge and the Law

As a lawyer, it was only natural that the lawand the administration of justice fascinatedCoolidge. In fact, he originally entered poli-tics only to further the development of his lawpractice.7 As he said of his days of learning“the highest profession”8 in Northampton,Massachusetts,

I was devoted to the law, its reason-ableness appealed to my mind as the

best method of securing justice be-tween man and man. I fully expectedto become the kind of country lawyerI saw all about me, spending life inthe profession, with perhaps a finalplace on the Bench.9

Although Coolidge’s career did not endwith a place on the Bench but with one in theWhite House, his interest in law never dimin-ished. Admitted to the Massachusetts bar in1897,10 he developed a “sincere love for theprofession,”11 grounded in a well-developedphilosophy: the jurisprudence, eloquently ex-pressed in speeches and writings, of theso-called formal or declarative theory. Ac-cording to Coolidge, this traditional theory,which was the dominant theory of the nine-teenth century, goes to the very root of humanexistence individually and as a community.As he said at Amherst in 1920,

The process of civilization consistsof the discovery by men of the lawsof the universe, and of living in har-mony with those laws. The most im-portant of them to men are the lawsof their own nature.12

Coolidge explained that “[m]en do not makelaws. They do but discover them . . . That thestate is most fortunate in its form of govern-ment which has the aptest instruments for thediscovery of laws.”13 He believed the Ameri-can people had found the “aptest instruments”in their state and federal constitutions.

Through the means of a constitutionalsystem of checks and balances, Coolidge andother traditionalists contended, it is the origi-nal province of the legislature, reflecting thewisdom and will of the people, to find “natu-ral laws.”14 These laws are then reflected inman’s statutes, what Coolidge described as“supplement[al] artificial laws.”15 These sup-plemental, artificial standards are indispens-able, eternal, and even sacred, for they are areflection of higher universal truths. As Cool-idge stated:

272 JOURNAL OF SUPREME COURT HISTORY

The law represents the voice of thepeople. Behind it, and supporting it,is a divine sanction. Enforcement oflaw and obedience to law, by thevery nature of our institutions, arenot matters of choice in this republic,but the expression of a moral re-quirement of living in accordancewith the truth.16

In the context of courts, the declarativetheory is that law is composed of preexistingprinciples found and logically and impartiallyapplied by the judge to the question at hand.These principles are found through legal rea-soning guided by constitutionally derivedstatutes, precedent, and the development ofthe common law. It is never appropriate forthe judge to “make law” or seek a result seenas desirable in accordance with the jurist’svalues. To do otherwise will sometimes pro-duce a just result and often an unjust, but willalways subject society to the unbridled andunelected will and prejudices of the personpresiding at the moment. Thus, declarative ju-dicial reasoning—strictly confined and chan-neled by legal, ethical, and constitutional con-straints—is envisioned as a process calculatedto reach the just conclusion objectively dis-covered by the judge, a judge divorced fromthe subjective political and policymaking pro-cess. In other words, the judge is not a law-maker, but an unbiased and even mechanicalspokesman of the law who does not form oreven—in the most extreme application—fa-cilitate implied policy. This classical theorywas seen by Coolidge and others as support-ive of separation of powers and a measure ofpredictability and finality.17 It also had theweight of history on its side, for it was the ap-proach expounded by giants of Anglo-Ameri-can jurisprudence such as William Black-stone, James Kent, and Joseph Story.

Notwithstanding the deference accordedto legislation by those adhering to declarativetheory, there were limits. With the progres-sive movement came all sorts of regulatory

legislation affecting social, economic, labor,and business activity like never before. Con-servatives viewed the wave of regulation as adangerous intrusion into individual and prop-erty rights.18 By the 1920s, Chief Justice Wil-liam Howard Taft warned that the worldwould not be saved by this “overwhelmingmass of ill-digested legislation.”19 In the samevein, then–Vice President Coolidge con-cluded that “[b]ehind very many of these en-larging activities lies the untenable theory thatthere is some short cut to perfection.”20

Coolidge had been rather progressivewhile a member of the Massachusetts legisla-ture,21 having earnestly supported women’ssuffrage22 and bills helping workers and thepoor.23 Yet by the early 1920s his growingconcern about the direction of the law was ap-parent—a direction he viewed as not just in-vading property rights but also perilouslystriving to regulate morals and personal con-duct. As Vice President he expressed his mis-givings in a speech entitled “The Limitationsof the Law,” delivered before the AmericanBar Association convention at San Franciscoon August 10, 1922. After praising earliermeasures and motives, he warned of excesses:

But there is another part of the greataccumulating body of our laws thathas been rapidly increasing of late,which is the result of other motives.Broadly speaking, it is the attempt toraise the moral standard of society bylegislation.

The spirit of reform is altogetherencouraging. The organized effortand insistent desires for an equitabledistribution of the rewards of indus-try, for a wider justice, for a moreconsistent righteousness in humanaffairs, is one of the most stimulatingand hopeful signs of the present era.There ought to be a militant publicdemand for progress in this direc-tion. The society which is satisfied islost. But in the accomplishment of

CALVIN COOLIDGE AND THE SUPREME COURT 273

these ends there needs to be a betterunderstanding of the province of leg-islative and judicial action. There isdanger of disappointment and disas-ter unless there be a wider compre-hension of the limitations of the law.

The attempt to regulate, control,and prescribe all manner of conductand social relations is very old. Itwas always the practice of primitivepeoples. Such governments assumedjurisdiction over the action, property,life, and even religious convictionsof their citizens down to the minutestdetail. A large part of the history offree institutions is the history of thepeople struggling to emancipatethemselves from all this bondage.24

The law, changed and change-able on slight provocation, loses itssanctity and authority. A continua-tion of this condition opens the roadto chaos.

These dangers must be recog-nized. These limits must be observed. . . It is time to supplement the ap-peal to law, which is limited, with anappeal to the spirit of the people,which is unlimited.25

In the 1920s, with Coolidge’s approval, aconservative Supreme Court struck downmuch regulation using a newly aggressiveversion of the declarative theory, chiefly tofind prolabor legislation—such as statutesconcerning minimum wage and work condi-tions—unconstitutional. By the end of the de-cade, Harvard Law Professor Felix Frank-furter observed that “[s]ince 1920 the Courthas invalidated more legislation than in fiftyyears preceding.”26 Taft reasoned that “theConstitution was intended, its very purposewas, to prevent experimentation with the fun-damental rights of the individual.”27

The primary method of preventing thisexperimentation was a refined interpretationof due process and equal protection in order to

encompass property and “liberty of contact”rights. In reviewing the constitutionality ofstatutes, the meaning of the Constitution wasonly to be directly found in the words of thedocument and, if necessary, from the originalunderstanding of the Framers. It was arguedthat to do otherwise endangered the stabilityand purpose of the Constitution. If the Consti-tution, so strictly construed, did not specifi-cally grant government the power to imposethe restraint on contract and property rights,the restraint must fall. Hence many regulatoryenactments were required to yield to thehigher law of a timeless, changeless Constitu-tion, unmodified and never reinterpreted toserve or conform to social conventions orpublic policy of the moment.28 In a defense ofthe Court’s actions, Coolidge stated in May of1923:

The authority of the law here is notsomething which is imposed uponthe people; it is the will of the peoplethemselves. The decision of the courthere is not something which is apartfrom the people; it is the judgment ofthe people themselves. The right ofthe ownership of property here is notsomething withheld from the people;it is the privilege of the people them-selves. Their sovereignty is absoluteand complete.29

Like Coolidge, most conservatives sawnothing truly new in the Court’s jurispru-dence. It was the legislative power, not the ju-dicial one, which had overreached its domain.The Court’s application of declarative theorywas seen as the only legitimate means of de-ciding cases. And it had been made all themore relevant and appealing, with its comfort-ing links to the past and stability, by all theunsettling changes America was experienc-ing. Still, many pronounced declarative juris-prudence a fiction and claimed that the Courtwas simply protecting the existing politicaland economic order, and even making policychoices of its own, under the guise of an im-


partial methodology. Early on, Justice OliverWendell Holmes, Jr. alleged that the Courtwas really legislating by reading laissez-faireeconomic philosophy into the Constitution.30

It was charged that the Court was negating so-cial policy that should be allowed expressionin legislation.

In the ultimate rejection of declarativetheory, many began to espouse sociologicaljurisprudence, which contended that judgesmake law as opposed to simply finding it. Thisnew reform-minded jurisprudence openly en-couraged judges to craft decisional law in re-sponse to social pressures. It saw the law asdeveloping through experience, not logic orreasoned historical development, and main-tained that at the core of adjudication thereshould be a consideration of expediencyrather than any romantic pretense of an objec-tive, timeless justice or constitutional will. In-stead of being bound to what were perceivedas the intentions of dead Framers and petrifieddefinitions, judicial progressives argued thatcourts should continually reinterpret the Con-stitution to keep pace with current societalneeds and customs.31 Thus judicial conserva-tives viewed the Constitution as a rock of so-cial stability, while liberals viewed it as anevolutionary organ of social progress andeven experimentation.

The battle lines were drawn. With his un-expected elevation to the presidency in Au-gust of 1923, Calvin Coolidge was placed atthe center of the storm, for he would be ap-pointing the judges who would in turn decidewhich method of interpretation prevailed. Asthe first lawyer President since Taft, he under-stood the stakes as well as anyone, but he hadeven higher priorities.

Coolidge, Taft, and the Judiciary

Leading the conservative cause on the Su-preme Court was Chief Justice Taft.32 Hefound his way on the Bench as a result of thevictory of the Harding-Coolidge ticket in1920. Warren Harding met Taft shortly after

that election and offered him the first avail-able seat. Taft—who always wanted to beChief Justice more than President—declined,reasoning that only the top position befitted aformer chief executive. He could not tolerateequality with Woodrow Wilson’s appointees,such as Louis D. Brandeis, a Justice he hadpublicly criticized.33 Besides, he had beenplanning to be Chief Justice for years. Aspresident, Taft had appointed Chief JusticeEdward Douglass White in 1910, partly be-cause White’s advanced age increased theodds that the position would become availablein the near future.34 With White’s timelydeath, Taft won his prize in 1921.

The new Chief moved to alter the liberaldirection of the law, and—as he saw it—“pre-serve the form of government prescribed byour fathers.”35 Reflecting his humor and pas-sion, he said that his mission was “to preventthe Bolsheviki from getting control” of theCourt.36 On convening his first conference ofthe Justices, Taft later recalled how he an-nounced that he “had been appointed to re-verse a few decisions,” and with his engagingchuckle said, “I looked right at old manHolmes when I said it.”37 With Harding’sthree subsequent appointments, on which Taftexerted great influence, an invincible conser-vative majority set about what Taft calledending “socialistic raids on property rights.”38

Prior to becoming President, Coolidgehardly knew the Chief Justice, but had been astrong supporter of Taft’s doomed 1912re-election bid.39 Upon Coolidge’s elevationto the presidency, Taft moved swiftly to es-tablish a relationship and influence, evenbeing so bold as to approach him on Har-ding’s funeral train to influence a lower courtappointment.40 He found the new President“very self-contained, very simple, very direct,and very shrewd in his observations”; he waspleased to conclude that Coolidge would de-fend “the institutions of the country againstwild radicals,” and was “very much pleasedwith his views of things and his attitudes.”41

As evidence of Coolidge’s interest, Taft


soon obtained the President’s assistance in“suppressing” a bill that would limit federaljudges’ latitude in charging juries, but foundthe frugal Coolidge less receptive to a mea-sure increasing judges’ salaries. However,Taft did succeed in securing White Houseneutrality and agreement not to veto the in-crease, which was enough to achieve pas-sage.42

Of greater importance, Coolidge’s “directinvitation to Congress” on behalf of the“Judges’ Bill” in 1925 proved indispens-able.43 As the President stated to Congress ina formal message of December 3, 1924:

The docket of the Supreme Court isbecoming congested. At the openingterm last year it had 592 cases, whilethis year it had 687 cases. Justicelong delayed is justice refused. Un-

less the court be given power by pre-liminary and summary considerationto determine the importance of cases,and by disposing of those which arenot of public moment reserve its timefor the more extended considerationof the remainder, the congestion ofthe docket is likely to increase. It isalso desirable that the SupremeCourt should have power to improveand reform procedure in suits at lawin the Federal courts through theadoption of appropriate rules.44

Along with other major procedural andjurisdictional reforms making the systemmore efficient and fair, this monumental actgranted the Supreme Court wide discretion re-garding the cases it accepted for review. AsCoolidge had explained, freed from the bur-


Former President and now Chief Justice William H. Taft (in judicial robe at left) swore in President CalvinCoolidge (right) at his inauguration in 1925. Taft was aggressive in advocating judicial appointments, butCoolidge soon grew tired of his interference and proved sufficiently self-assured and competent to choose ablejudges on his own.

den of routine appeals, justices could concen-trate on important constitutional and federallaw questions. Recognizing that greater effi-ciency throughout the judiciary afforded bythe reforms did not just benefit judges andlawyers, Taft argued that “[a] rich man canstand the delay . . . but the poor man alwayssuffers.”45 Crafted and tirelessly pushed byTaft, this modernization effort won him rec-ognition as a master architect of judicial ad-ministration, but the proposals could not haveovercome congressional objections withoutCoolidge’s intervention.

As demonstrated by his lobbying on thefuneral train, Taft was particularly aggressivein advocating judicial appointments, but sadlyconfessed that “I don’t know that Coolidgewill follow my advice.”46 Although he wasconcerned about judicial competence, Taft’schief aim was political. He saw his unprece-dented lobbying as part of his mission to re-

verse “radical” currents. He claimed to be re-moving politics from the appointment pro-cess, particularly senatorial influence, butwhat he was doing was replacing it with hisown. Historian Robert Ferrell has reasonedthat the Chief Justice really wanted to circum-vent the traditional political process and itscompromising ways because those producedby it might compromise with labor.47 WithHarding’s lack of interest or Taft’s intimida-tion of Harding,48 Taft had simply conveyedhis choices to Attorney General Harry M.Daugherty, and those choices were acceptedwithout hesitation. Hoping to maintain this in-fluence, Taft wrote Coolidge:

I hope you will permit me to writeyou on questions of this sort, where Ihave any means of information, be-cause of my intense interest in secur-ing a good judiciary, and my earnest


Chief Justice Taft was so eager to influence Coolidge that he even approached him about a lower courtappointment on former President Warren Harding’s funeral train (pictured).

desire to help you in your manifoldlabors where I think I can be of assis-tance in a field like this one.49

Coolidge did not follow Taft’s advice onthis first appointment, but gave assurancesthat “he was prepared to draw a rigid line onsome subjects and ignore political consider-ations in matters like judicial appointments,”and he “did not expect to be embarrassed bythe attitude of Senators on the subject ofjudgeships.”50 For the first six months ofCoolidge’s presidency, Taft maintained sig-nificant influence on appointments.51 ThePresident, however, soon proved to be lessmalleable than Harding and Daughtery, prob-ably because he grew tired of Taft’s interfer-ence, was never intimidated, and felt quite ca-pable of handling the task without assistance.

Unlike Harding and most other Presi-dents, Coolidge was greatly interested in ap-pointments at all levels and spent an extraor-dinary amount of time evaluating potentialjudicial nominees. As he stated in his autobi-ography, “One of the most perplexing and atthe same time most important functions of thePresident is the making of appointments.”52

Reflecting the seriousness he gave such ap-pointments, he was very secretive, not evendiscussing them with his closest advisors.53

His method was to consider views slowly andcarefully, particularly those of bar and politi-cal leaders in the jurisdiction of the vacancy,and then make the decision himself.54 AsTaft’s influence faded, however, Taft la-mented that Coolidge was considering Sena-tors’ wishes:

The President has not consulted meso much about the judges as he did. Ithink my constant interest and my at-titude of opposition to Senators havetired the appointing power. [ThePresident] is a singularly unsatisfac-tory person with whom to deal in re-spect to judges. He will rememberthe recommendations of the Sena-

tors, because there is a political bondthere, but I doubt if he has in mindanything that I tell him, unless Imake it almost a personal matter.55

Although thrilled with Learned Hand’s ap-pointment to the circuit court, Taft wroteHand a message reflecting his frustration:“[I]n our criticism of the selection of judgeswe must bear in mind that we have succeededin getting some good ones from Calvin after awhile.”56 More negatively, Taft later com-plained that “[i]t seems now that we have gotto rejoice if we don’t have a bad appointment.We can’t aspire to good ones.”57

This criticism was unfair. On a number ofoccasions Coolidge resisted heavy politicalpressure, and he never adhered to the traditionand deference of senatorial courtesy.58 Onehistorian has noted that “[f]ew Presidentshave set for themselves higher standards forappointees or acted more independently of so-licitors”59 and concluded that “[i]n choosingmen for important positions, Coolidge seldomplayed politics, but tried honestly to select thebest available candidate. A careful study ofhis appointments will show that he was sel-dom influenced by partisan motives, partyman though he was.”60 As far back as his fa-mous “Have Faith in Massachusetts” speechof 1914, given on his election as President ofthe Massachusetts Senate, Coolidge extolledthe virtues of courts free of politics:

Courts are established, not to deter-mine the popularity of a cause, but toadjudicate and enforce rights. No lit-igant should be required to submithis case to the hazard and expense ofa political campaign. No judgeshould be required to seek or receivepolitical rewards. The courts of Mas-sachusetts are known and honoredwherever men love justice. Let theirglory suffer no diminution at ourhands. The electorate and the judi-ciary cannot combine. A hearing


means a hearing. When trial ofcauses goes outside the courtroom,Anglo-Saxon constitutional govern-ment ends.61

Coolidge’s convictions resulted inhigh-quality appointees, with legal qualifica-tions overriding political pull or ideologicalpurity. For example, Coolidge’s circuit courtjudges included legal giants such as ThomasW. Swan (formerly dean of Yale LawSchool), John J. Parker, and Learned and Au-gustus Hand.62 As Coolidge said, “The publicservice would be improved if all vacancieswere filled by simply appointing the best abil-ity and character that can be found. That iswhat is done in private business. The adoptionof any other course handicaps the governmentin all its operations.”63 Concerning Coo-

lidge’s method of governance, Court historianHenry J. Abraham wrote:

Shy and retiring yet stubborn and oc-casionally mercurial in temper, thehard-working, scrupulously honest,colorless, and moral President,known affectionately as “SilentCal,” was astonishingly popular. Thetimes were tailor-made for his con-servative businessman’s approach togovernment.64

In contrast to Franklin D. Roosevelt, whoused district court judgeships to reward localpoliticians, Coolidge’s selections were law-yers of merit. Tellingly, New Deal agencylawyers confessed that they preferred Cool-idge’s judges to FDR’s: as a legal historianobserved, “[t]he former might be politically


Unlike Harding (standing between Taft and Robert Todd Lincoln), his predecessor Coolidge was interested inappointments at all levels and spent an extraordinary amount of time evaluating potential nominees.

conservative, but more of a true lawyer, andhence more willing to accept a reasoned argu-ment and enforce the law.”65

Accordingly, it was Coolidge, not Taft,who made the greatest headway in removingpolitics from the appointment process. Whatupset Taft was that by 1925 his political influ-ence regarding appointments was all but non-existent. By the end of Coolidge’s presidency,Taft sighed that “[t]hey pay no attention to meat the White House.”66 However, as Robert H.Ferrell has pointed out, Taft should have con-soled himself with the knowledge that Cool-idge’s appointees were mostly judicial con-servatives.67 They were also 94.1 percentRepublican.68 These appointees would per-meate the federal judicial system for decades;more importantly, they staffed the Bench withcompetence and fairness.

It should not be assumed from Taft’s de-jection that he disliked Coolidge. Indeed, heliked him very much. Ironically, it was theCoolidge traits Taft most liked which pre-vented Taft’s domination: self-confidence,sureness of purpose, and political savvy. AsTaft confessed, “He is nearly as good a politi-cian as Lincoln.”69

Coolidge, the Court, and the Electionof 1924

Coolidge’s immense popularity and politicalshrewdness became apparent to most observ-ers in 1924. Between becoming President andthe time of the Republican National Conven-tion, he purged from the government the rem-nants of the discredited Harding regime, dis-associated the GOP from the scandals, andassumed complete control of the party appara-tus. The party happily surrendered to Cool-idge’s dominance, for he was all that stood be-tween it and oblivion. In an odd way, hisaccessibility and skillful use of thepress—through such means as regular pressconferences, colorful photo opportunities, andradio addresses—made him the first mediaPresident. Not only did he contain the damage

from Teapot Dome, he also swiftly managedhis policies, pronouncements, and publicimage in such a way as to become the politicalpersonification of integrity and prosperity. Inhis taciturnity, he seemed to hover above thehubbub of petty politics; the less he said, themore authoritative were his words. Taft, whosecretly helped to draft the Republican plat-form,70 frantically urged as many people as hecould to support Coolidge.71 He wrote An-drew Mellon “that the welfare of the countryis critically dependent upon the success ofPresident Coolidge. The Republican Party hasno chance without him. I don’t remember acase in which a party is so dependent on aman.”72

Even Democratic leaders, such as AlfredE. Smith, Franklin D. Roosevelt, and presi-dential nominee John W. Davis, prefaced crit-icism with praise. In fact, the conservativeDavis—a stellar lawyer but a disappointingpolitician—was nominated in an attempt toout-Coolidge Coolidge. However, as Roose-velt admitted of the task confronting Davis,“[t]o rise superior to Coolidge will be a hardthing . . . ”73 The Democratic nominee provedunable to meet the challenge and became ir-relevant as the President, press, and public ig-nored him. By the summer of 1924, “the QuietPresident” could survey the American politi-cal landscape and see no real threats to his Re-publican order. The same was not true for Taftand his Court.

The aging and ailing Senator Robert“Fighting Bob” La Follette of Wisconsin ac-cepted the Progressive nomination and sum-moned the energy to wage an energetic cam-paign. Although La Follette attackedadministration farm and labor policies, andeven called for the nationalization of rail-roads, his most radical proposals concernedthe judiciary, a crusade that had become anobsession. Enraged over injunctions againststrikers and Supreme Court rulings findingprolabor laws unconstitutional, La Follettecalled for the election of federal judges,74 theprohibition of inferior federal courts from de-


claring acts of Congress unconstitutional, andthe empowering of Congress to overturn deci-sions of the Supreme Court,75 or what hecalled “the Supreme rulers.”76 As La Follettedecried:

Thus property rights are made su-preme over human rights. Thus capi-tal is exalted over labor. I offer thischallenge to all those who regardjudges as the sole defenders of ourliberties: Show me one case in whichthe courts have protected humanrights and I will show you twenty inwhich they have disregarded humanrights to protect property.77

Described by Elliott Roosevelt as politi-cally “cool [and] cunning,”78 Coolidge in-stinctively wanted to ignore not only Davisbut also La Follette. Furthermore, he did littlecampaigning, partly due both to the inevitabil-

ity of his victory and to the death of his son.Nevertheless, Taft and Vice President CharlesG. Dawes sought to make the defense of thejudiciary the chief issue of the campaign,79 themore so after the suggestions for amendingthe Constitution seemed to catch the imagina-tion of liberal reformers and labor activists.Coolidge finally determined that respondingto La Follette was politically expedient, espe-cially considering the conservative temper ofthe times. In addition, riding to the defense ofthe Constitution and the Court, with the oddsweighted so heavily in his favor, appealed tohis mischievousness. Also certainly importantin Coolidge’s calculations was his reverencefor the Court and his sincere belief that it wasacting properly. In any event, to Taft’s glee,two corresponding themes of Coolidge’slow-key campaign were unveiled: the rule oflaw and the sanctity of the judiciary.

Both Coolidge and Taft shared profound


Progressive Senator Robert La Follette (right) called for the election of federal judges, the prohibition of infe-rior courts from declaring acts of Congress unconstitutional, and the empowerment of Congress to overturndecisions by the Supreme Court. These radical proposals stemmed from La Follette’s rage over injunctionsagainst strikers and over Supreme Court rulings holding prolabor laws unconstitutional.

concerns about what they felt was a generallack of respect for the law,80 but Coolidge’sinterest in the subject was much deeper andbroader. “He thought the essence of the re-public was not so much democracy itself asthe rule of law,” observed British historianPaul Johnson, “and that the prime function ofgovernment was to uphold and enforce it.”81

As Coolidge himself said, “But in resisting allattacks upon our liberty, you will always re-member that the sole guarantee of liberty isobedience to law under the forms of orderedgovernment.”82 Or, as he stated in his 1925 in-augural address, “In a republic the first rulefor the guidance of the citizen is obedience tolaw.”83 He believed this to be the key princi-ple distinguishing America from the “forcesof darkness.”84 Yet Coolidge’s rule of lawtheme was more than patriotic platitudes: itincluded his longstanding concern for thecivil and economic rights of African Ameri-cans. As Robert Sobel has noted, “ . . . fewpresidents were as outspoken on the need toprotect the civil rights of black Americans asCalvin Coolidge.”85

There was nothing new about Coolidge’sinterest in human rights and his intertwiningof those rights with the rule of law and democ-racy. As early as 1914, he urged the Massa-chusetts Senate to “[r]ecognize the immortalworth and dignity of man . . . Such is the pathto equality before the law. Such is the founda-tion of liberty under the law. Such is the sub-lime revelation of man’s relation toman—Democracy.”86 During his vice presi-dency, he warned that “[w]e need to learn andexemplify the principle of toleration. We are anation of many races and of many beliefs.”87

In his first message to Congress, in Decemberof 1923, he stated:

Numbered among our population aresome twelve million colored people.Under our Constitution their rightsare just as sacred as those of anyother citizen. It is both a public andprivate duty to protect those rights.

The Congress ought to exercise allits powers of prevention and punish-ment against the hideous crime oflynching . . . ”88

During the 1924 campaign Coolidgespoke at Howard University and, in obviouscriticism of the Ku Klux Klan, denounced“the propaganda of prejudice and hatred” andpraised the contributions of black Americansin the recent war effort.89 As in his first mes-sage to Congress, he called for tough federalantilynching laws in the GOP platform so that“the full influence of the federal governmentmay be wielded to exterminate this hideouscrime.”90 The platform went on to state hiswish that a federal commission be created toinvestigate the “social and economic condi-tions” of African Americans and promote“mutual understanding and confidence.”91

Coolidge personally urged black Repub-licans to run for public office, provided exten-sive party patronage to their political organi-zations and leaders in the South (such asRobert Church, Jr.’s Lincoln League in Mem-phis),92 and repeatedly called for federal fund-ing of medical school scholarships for blackstudents.93 He was “much troubled by insis-tent discrimination” against black Justice De-partment employees, calling it “a terriblething,” and pointedly instructed AttorneyGeneral John G. Sargent at a cabinet meeting“to find a way to give them an even chance.”94

Although these stands may have been “politi-cally imprudent”95 considering the times, henever wavered in his commitment to civilrights and used the 1924 campaign to advancethis cause.

On Saturday, September 6, 1924, at thededication of a monument to Lafayette at Bal-timore, Coolidge—the last President not touse a speechwriter—launched the other legaltheme of his campaign, a passionate defenseof the Supreme Court from La Follette’s at-tacks. Coolidge declared that

[o]ne of the greatest contributionswhich America made to the science


of government was the establishmentof an independent judiciary depart-ment under which this authority re-sides in the Supreme Court. That tri-bunal has been made as independentand impartial as human nature coulddevise. This action was taken withthe sole purpose of protecting thefreedom of the individual, of guard-ing his earnings, his home, his life.

It is frequently charged that thistribunal is tyrannical. If the Constitu-tion of the United States be tyranny;if the rule that no one shall be con-victed of a crime save by a jury of hispeers; that no orders of nobility shallbe granted; that slavery shall not bepermitted to exist in any state or ter-ritory; that no one shall be deprivedof life, liberty or property withoutdue process of law; if these andmany other provisions made by thepeople be tyranny, then the SupremeCourt when it makes decisions in ac-cordance with these principles of ourfundamental law is tyrannical. Oth-erwise it is exercising the power ofgovernment for the preservation ofliberty. The fact is that the Constitu-tion is the source of our freedom.Maintaining it, interpreting it, anddeclaring it are the only methods bywhich the Constitution can be pre-served and our liberties guaran-teed.96

Coolidge went on to explain why judicialpower should not be “transferred in whole orin part to the Congress” because of its acqui-escence to “popular demand” and “partisanadvantage.”97 He concluded that these influ-ences would endanger minority rights:

Some people do not seem to under-stand fully the purpose of our consti-tutional restraints. They are not forprotecting the majority, either in orout of the Congress. They can pro-

tect themselves with their votes. Wehave adopted a written constitutionin order that the minority, even downto the most insignificant individual,might have their rights protected. Solong as our Constitution remains inforce, no majority, no matter howlarge, can deprive the individual ofthe right of life, liberty or property,or prohibit the free exercise of reli-gion or the freedom of speech or ofthe press. If the authority now vestedin the Supreme Court were trans-ferred to the Congress, any majorityno matter what their motive couldvote away any of these most preciousrights.98

The President returned to Baltimore thefollowing month and defended the Court witheven stronger language at a Chamber of Com-merce gathering:

It is not necessary to prove that theSupreme Court never made a mis-take. But if this power is taken awayfrom them, it is necessary to provethat those who are to exercise itwould be likely to make fewer mis-takes.

It is proposed to place thispower, which it must be rememberedis that of life and death, in the handsof the Congress. That would give tothat body power to violate all therights which I have just mentioned,the power to destroy the states, abol-ish the Presidential office, close thecourts, and make the will of the Con-gress absolute. Is it supposed that inthe exercise of this power they wouldbe more impartial, more independentthan the judges of the SupremeCourt? It seems to me that this wouldbe a device more nearly calculated totake away the rights of the peopleand leave them subject to all the in-fluences which might be exerted on


the Congress by the power andwealth of vested interests on one dayand the passing whim of popular pas-sion on another day. The poor andthe weak would be trampled underfoot. Under such a condition, life,liberty, and property, and the free-dom of religion, speech, and thepress, would have very little secu-rity. In time of national peril ourGovernment would have no balancewheel. If this system should beadopted and put into effect, the histo-rian would close the chapter with thecomment that the people had shownthey were incapable of self-govern-ment and the American Republic hadproved a failure. If we are unable tomaintain the guarantees of freedomin this land, where on earth can theybe maintained?99

In the wake of the Red Scare of 1919 and1920, Republican functionaries had little dif-ficulty in making La Follette seem like the ad-vance guard of communism, while the edito-rial pages and cartoons portrayed Coolidge asthe selfless champion of constitutionalism.On election day, the size of the President’slandslide stunned even his most ardent sup-porters. Attorney General Harlan Fiske Stoneproclaimed it “a triumph of decency andstraightforwardness.”100 Taft jubilantly wrote,“It was a famous victory and one most usefulin the lessons to be drawn from it, one ofwhich is that this country is no country forradicalism. I think it is really the most conser-vative country in the world.”101

Coolidge’s Justice

Between the election and the inaugural, Cool-idge was presented with his only opportunityto name a Supreme Court Justice. The dodder-ing Joseph McKenna of California, a McKin-ley appointee, had finally been persuaded toretire by Taft, Holmes, and other members of

the Court.102 On January 25, 1925, brushingaside expectations that another Westernerwould be chosen as a replacement103 and em-phasizing lawyering skills over political con-siderations (as with lower court appoint-ments), Coolidge nominated Attorney GeneralHarlan Fiske Stone, a former dean of Colum-bia Law School and Wall Street lawyer.

Chiefly known in the worlds of law andeducation, the robust Stone had been ap-pointed Attorney General in 1924 to replacethe scandal-plagued Harry Daugherty, whohad been forced from office by Coolidge aspart of his government house-cleaning. Con-gressman and Amherst alumnus BertrandSnell originally recommended Stone to Cool-idge.104 Naturally, many believed that Stonewas selected because he attended Amherstwith Coolidge, but, as Stone explained, “Wewere not of the same class and therefore werenot intimates, although I doubt if many wereintimate with him. His extreme reticencemade that difficult.”105 Once installed at theJustice Department, Stone rebuilt morale106

and became a vital part of Coolidge’s missionto restore trust in government, soon proving tobe one of the nation’s greatest Attorneys Gen-eral. Nevertheless, his investigations of cer-tain business activities and trust-busting dis-turbed some in conservative circles, causingthe suggestion that he was being promoted toput an end to his antitrust efforts.107 Yet hisdedication and directness impressed many,most importantly the President. He was alsoloyal to Coolidge, campaigning vigorouslyfor him in 1924108 and joining in the denunci-ation of La Follette’s proposals regarding theCourt.109 Taft, who had grown to admireStone—albeit temporarily—wrote that “[t]hePresident was loath to let him go, because heknew his worth as Attorney General.”110

Despite his qualifications and support,Stone’s nomination encountered a small butdetermined opposition campaign in the Sen-ate. The most vocal objections came fromSenator Burton K. Wheeler of Montana andSenator George W. Norris of Nebraska.


Wheeler was angry over the Attorney Gen-eral’s refusal to end a prosecution against himbrought by Daugherty. Norris incorrectlyfeared that Stone was a puppet of big businessdue to his Wall Street connections. Togetherwith a handful of “insurgent” Republicans,they presented real problems for the WhiteHouse. However, Coolidge fought back. Afterflatly rejecting suggestions that he withdraw

the nomination, he applied maximum pressureon the Senate. Stone aided the effort when hebroke precedent by being the first SupremeCourt nominee to appear before the JudiciaryCommittee. After undergoing grueling ques-tioning with dignity, he was recommended bythe committee and confirmed by the Senate onFebruary 5 by a vote of seventy-one to six.111

Sixteen years later, Senator Norris would


Coolidge appointed Harlan Fiske Stone Attorney Gen-eral in 1924 to replace the scandal-plagued HarryDaugherty (above right, with President Harding atleft). Some surmised that Stone was selectedbecause he had attended Amherst College with Cool-idge, but Stone (pictured at left in 1893 while ajunior in college) demurred that they had not been inthe same class and were not intimates.

take the Senate floor to express regret for hisopposition.112 The reason for Norris’s changeof heart soon became apparent. With his in-vincible conservative majority, Taft thoughthis struggle for control of the heart and soul ofthe Court was won, and all he had to do wasawait the march of time to silence the dissent-ing but aging voices of Holmes andBrandeis.113 He saw Stone as simply a safeand necessary replacement in his conservativeline. However, within a year of Stone’s arrivalon the Bench, the new Justice was increas-ingly found in the dissident camp, especiallyin civil rights and liberties cases.114

Stone’s separation from Taft’s majorityarose from his ideals of tolerance and belief inthe dignity of man. This spurred him to strikedown perceived threats to individual liberty.Furthermore, his belief in self-governmentand the doctrine of judicial restraint com-pelled him to defer to legislative power, evenwhen personally disagreeing with the policygoals.115 This is similar to Coolidge’s reason-ing on prohibition: while enforcing it vigor-ously as the law of the land, he thought it animpractical policy and an improper intrusioninto private lives.116 Perhaps Stone’s jurispru-dence is best described as simply an honest,nonpolitical application of declarative theory.In any event, he subsequently ruled to upholdNew Deal legislation and was appointedChief Justice by Franklin D. Roosevelt in1941.

Some historians, such as Henry J. Abra-ham, have surmised that Coolidge’s death inJanuary of 1933 spared him the “disappoint-ment” of witnessing Stone’s liberal judicialcareer.117 However, Stone’s tendency to sidewith the dissenters was clear long before theNew Deal, and there is no evidence that Cool-idge was dismayed by it. It is probably a safeguess that Coolidge would have opposed NewDeal regulation and government growth. Hedid live to see the Great Depression, the elec-tion of Roosevelt, and the call for expandedgovernment intervention. Evidencing his de-spair at the turn of events, he confessed to a

friend, “I feel I no longer fit in with thesetimes.”118 However, the fact that his conser-vatism included a libertarian or “live and letlive” streak and a sincere belief in civil rightsand liberties is often overlooked. He was anidealist, not an ideologue.

Although in different classes at Amherst,Coolidge and Stone shared and often ac-knowledged a great influence on their socialand legal philosophies: both were devotedstudents of the renowned Charles EdwardGarman, who taught philosophy there.119 Itwas often said “that if you scratch an Amherstman who graduated just before or after theturn of the century, you will find the quicken-ing spirit of Garman.”120 Coolidge calledGarman “one of the most remarkable menwith whom I ever came in contact.”121 Chiefamong the values Garman explored, extolled,and instilled through the Socratic methodwere independence of thought, skepticism ofauthority, rejection of materialism and in-equality, economic justice, tolerance, humanprogress, spiritualism, and “stewardship” orservice to society and man. Coolidge remem-bered that:

Above all we were taught to followthe truth whithersoever it might lead.We were warned that this would of-tentimes be very difficult and resultin much opposition, for there wouldbe many who were not going thatway, but if we pressed on steadfastlyit was sure to yield the peaceablefruits of the mind. It does.122

In ethics he taught us that there is astandard of righteousness, that mightdoes not make right, that the enddoes not justify the means and thatexpediency as a working principle isbound to fail. The only hope of per-fecting human relationship is in ac-cordance with the law of serviceunder which men are not so solici-tous about what they shall get as theyare about what they shall give. Yet


people are entitled to the rewards oftheir industry. What they earn istheirs, no matter how small or howgreat. But the possession of propertycarries the obligation to use it in alarger service. For a man not to rec-ognize the truth, not to be obedient tolaw, not to render allegiance to theState, is for him to be at war with hisown nature, to commit suicide.123

Garman’s philosophy permeated Coolidge’spronouncements and policies.124 AlpheusThomas Mason, Stone’s principal biographer,has noted that, “Stone’s motivating philoso-phy in mature years reflected Garman’s teach-ings.”125 The professor’s notoriety derived notso much from his theories as from his teach-ing methods.126 Stone said:

The student’s critical faculties werestimulated; he was required to weighevidence, to draw his own conclu-sions and defend them. This methodwas, I think, the ultimate secret ofGarman’s profound influence withhis students. For the first time intheir daily lives they were made torealize that they possessed a thinkingapparatus of their own. It was onlyby the use of it that they could be-come masters of their own moral andintellectual destiny.127

Coolidge similarly recalled Garman’s teach-ing:

Our investigation revealed that manis endowed with reason, that thehuman mind has the power to weighevidence, to distinguish betweenright and wrong and to know thetruth. I should call this the centraltheme of his philosophy. While thequantity of the truth we know may besmall it is the quality that is impor-tant. If we really know one truth thequality of our knowledge could notbe surpassed by the Infinite.128

Considering the men, Coolidge and Stoneeach gave Garman their highest praise. Cool-idge said, “We looked upon Garman as a manwho walked with God.”129 Stone said, “Whata lawyer Garman would make!”130 With theircommon belief in the teachings of CharlesGarman, perhaps Coolidge and Stone agreedmore than they disagreed. Their approach tothe world and their view of personal dutywere in tandem. Speculations as to disagree-ment and disappointment aside, most wouldagree with Henry Abraham that in StoneCoolidge gave America one of its greatestJustices.131

Coolidge, the Court, and PresidentialPrerogatives

Many Presidents have encountered the Su-preme Court through litigation. Coolidge wasno exception. What is exceptional is the waysin which the cases touching the Coolidgepresidency show extraordinary resourceful-ness in protecting and expanding presidentialprerogatives against both coordinate branchesof government.

Coolidge was creative at using his pardonpower. On a number of occasions, he declinedto issue a full pardon but “remitted” or “com-muted” sentences under this power.132 In thisway, he slyly sought to foreclose any argu-ment, since refuted by the Court in 1927,133

that a pardon must be accepted to be effectual.He regularly took this course for a couple ofreasons. Sometimes he simply wanted to savethe cost of jailing a prisoner who presented nothreat to society, such as in criminal contemptof court matters, or for punitive purposes.134

For example, in 1925 Coolidge commuted thesentence of the notorious criminal and poetGerald Chapman to time served. This openedthe door for Connecticut to try and executeChapman on state murder charges. Predict-ably, the defense argued that the federal pris-oner could not be turned over to state authori-ties on the grounds that the commutation wasa pardon and thus not effective since it was


not accepted. Coolidge’s strategy worked: thefederal court rejected Chapman’s argumentand found no “right to incarceration,” and theSupreme Court rejected his appeal.135

However, Coolidge’s use of the power inconnection with contempt of court sentencesdrew the Court’s attention in 1925. A persis-tent Chicago liquor dealer, Philip Grossman,was held in criminal contempt due to his vio-lation of a district court restraining order is-sued in an effort to enforce the Volstead Act.President Harding twice rejected applicationsfor pardon. When a third application reachedCoolidge in December of 1923, he wroteacross the bottom, “I do not wish pardon. Fineshould be paid and sentence commuted.”136

Grossman promptly paid the fine.137 The dis-trict court and prosecutors took umbrage atCoolidge’s actions, pronouncing it an invalid

breach of the principle of separation of pow-ers on the basis that the Constitution onlygrants the President power to pardon “of-fenses against the United States,” meaning vi-olations of criminal statues, and contempt ofcourt is not such an offense. It was further as-serted that contempt is in the inherent jurisdic-tion of courts to uphold their orders and dig-nity, and thus the extension of pardons tocontempt citations would devolve supreme ju-dicial power onto the executive and under-mine the ability of courts to function.138

Therefore, despite Coolidge’s pardon,Grossman was incarcerated139 and in Decem-ber of 1924 his cause reached the SupremeCourt.

Attorney General Stone appeared for thePresident and argued against his own prosecu-tors. Writing for the Court the following year,


After President Harding hadtwice rejected the applicationsfor pardons of Philip Grossman(right), a Chicago liquor dealerheld in criminal contempt dueto his violation of a district courtrestraining order, Coolidge, in acreative use of his pardonpower, wrote on a third pardonapplication in 1923: “I do notwish pardon. Fine should bepaid and sentence commuted.”Grossman paid the fine but wasincarcerated nonetheless whenthe district court challengedCoolidge’s pardon as a breachof separation of powers. Gross-man’s case went to theSupreme Court.

Chief Justice Taft accepted Stone’s argumentsthat Coolidge’s commutation did not violateseparation of powers but was a permissible im-plementation of checks and balances, a presi-dential check on the judicial branch.140 Afterdiscussing the wide scope of the pardoningpower back to English common law and thedeliberations of the founders, Taft discountedthe dangers foretold by the lower court:

Our Constitution confers this discre-tion on the highest officer in the na-tion in confidence that he will notabuse it. An abuse in pardoning con-tempts would certainly embarrasscourts, but it is questionable howmuch more it would lessen their ef-fectiveness than a wholesale pardonof other offenses. If we could con-jure up in our minds a President will-ing to paralyze courts by pardoningall criminal contempts, why not aPresident ordering a general jail de-livery?141

With this case, Coolidge successfully ex-panded presidential power as a check on thejudiciary. The case also demonstrates the TaftCourt’s willingness to assist in the assertion ofpresidential authority, even at the expense ofthe judicial branch. The Court proved equallydecisive in supporting the President in de-fending his authority against legislative en-croachment. This was particularly importantsince, unlike his relationship with the Court,Coolidge’s relationship with Congress wastroubled. His vetoes and the Senate’s rejectionof his nominee to replace Stone as AttorneyGeneral evidences this hostility.

A confrontation that did not go unnoticedby the Court took place in 1924. The Senatepassed a resolution that it was the sense of thechamber that the President should request theresignation of the Secretary of the Navy.Coolidge fired back a formal reply stating:

No official recognition can be givento the passage of the Senate resolu-

tion relative to their opinion con-cerning members of the Cabinet orother officers under Executive con-trol . . . The dismissal of an officer ofthe government, such as is involvedin this case, other than by impeach-ment, is exclusively an Executivefunction. I regard this as a vital prin-ciple of our Government.142

With this statement the President threw downthe gauntlet regarding removal power, and heproved rather devious in efforts to circumventstatutory constraints on the power to removeofficials without congressional approval. Ontwo known occasions, he unsuccessfully triedto get prospective appointees to sign undatedletters of resignation taking effect on the Pres-ident’s acceptance.143

In 1926, with Coolidge’s certain approvaland with Justice Stone’s drafting assis-tance,144 Taft waded in on behalf of the Presi-dent with characteristic enthusiasm. In thecase of Myers v. United States,145 arising fromPresident Wilson’s removal of a Portlandpostmaster, the Court addressed the removalof executive branch officers without Senateconsent, even when law required advice andconsent to appoint and remove. As inGrossman, Taft exhaustively traced the his-tory of the executive prerogative and theviews of the Framers. He even approvinglyincluded reference to Coolidge’s denunciationof the Senate’s request that the Secretary ofthe Navy be discharged.146 In the sweepingsix to three decision, the Court upheld thePresident’s removal power and declared therestrictions unconstitutional. Taft later con-fessed, “I never wrote an opinion that I felt tobe so important in its effect.”147

Conclusion of the Coolidge Era

William Howard Taft served as Chief Justiceuntil his death in 1930. True to form, he usedthe opportunity of President Hoover’s visit tohis deathbed to urge the appointment of for-


mer Associate Justice and Secretary of StateCharles Evans Hughes as his successor andhopefully to forestall the elevation of Stone, aclose Hoover friend.148 Convinced thatHughes would decline the offer, Hoover de-cided to make the gesture and called Hugheson the telephone. As an aide watched, he sawthe expression on the President’s face turn toone of horror. When the conversation ended, adevastated Hoover exclaimed, “Well, I’ll bedamned, he accepted.”149 Taft had won hislast lobbying campaign.

Interestingly, in his deliberations, Hooverconsidered offering a future Court seat toCoolidge but was dissuaded by Stone.150

Once when rumors reached Taft of Cool-idge’s possible future appointment, he wrote,“There is one difficulty about it, and that isthat there is no vacancy on the Bench, and thesecond is I don’t think he would regard him-self as quite prepared for that place, though hecertainly would make as good a Judge assome he has appointed.”151 If offered the posi-tion, Coolidge certainly would have declinedit: why would he accept a final place on theBench after declining certain re-election asPresident?

It looked safe for Taft to depart. He couldnot have predicted that his conservative blockwould crumble in 1937 following a titanicstruggle with Franklin D. Roosevelt, in vividcontrast to the cooperation of the Coolidgeyears. Perhaps it is fortunate that Taft died be-fore the Court’s confrontation with FDR.Compromise with the New Deal would nothave been an option.

Declarative jurisprudence, classical andconservative, would also be a casualty,eclipsed by the methods of liberal judges whohonestly admitted that they made law or—likethe conservatives—used the terminology oftradition, the mystery of legalese, and preten-sions of scientific objectivity to cloak theirlawmaking and make it more acceptable. Re-sult-oriented jurisprudence did not die; it justchanged its name and party. The succumbingto temptation by the right and left not only

achieved imposition of political agendas, italso discredited true declarative adjudicationas practiced for ages and the value in at leastthe attempt to “find law” or the goal of neu-trality.

Taft’s procedural improvements werepermanent and just, but his restructuring of thejudiciary ironically aided access to the systemby the liberal causes he worked so hard to hin-der.152 In succeeding decades, litigation ratherthan legislation became the avenue of choicefor those seeking social change, and theircases provided the forum for the destruction ofmany of the precedents and policies of Taft’sCourt. This reversal of outlook even extendedto precedents unrelated to social conditions,such as major backtracking in 1935 on thescope of removal power established in Myersv. United States.153 As argued by Stanley I.Kutler, Taft’s rulings “ultimately—and deci-sively—helped weigh the balance toward na-tional power and supremacy” to the benefit ofthe movements his rulings sought to inhibitwhen the national government began to sur-pass the states in social experimentation.154

Coolidge left office amid overwhelmingpopularity. On his last day in office, he toldJustice Stone that “It is a pretty good idea toget out when they still want you.”155 The for-mer President did not live to witness the con-flict between the Court and the New Deal, buthe experienced the vanquishing of the partyhe had done so much to save and the prosper-ity he had come so much to represent. Hisusual optimism gone, he sadly commented,“In other periods of depression, it has alwaysbeen possible to see some things which weresolid and upon which you could base hope,but as I look about me I see nothing to giveground for hope—nothing of man.”156 As theDepression deepened and Republican for-tunes fell, Coolidge’s popularity never dimin-ished as many nostalgically longed for a re-turn to the days of the Coolidge prosperity.There was even talk of drafting him for theRepublican nomination in 1936,157 as if re-trieving its symbol could revive an era.


The passage of time and its toweringevents have obscured President Coolidge’slegal legacy. His defenses of a philosophy oflaw, the rule of law, and a Supreme Court thatimplemented these values still contain wis-dom worth retrieving. His emphasis on quali-fications over politics in the appointment pro-cess had beneficial effects for decades. Theimpartiality and ability of his judges, includ-ing Justice Stone, modernized and opened the

courts as much as did the structural innova-tions he supported. His process of selectionseemed only natural to him, but unfortunatelyit was an anomaly. This practical example canand should be emulated.

Coolidge’s judicial appointments, his up-holding of the judiciary, and the SupremeCourt decisions in favor of executive preroga-tives are examples of how cooperation be-tween branches of government can be impor-


President Coolidge (with hat on heart at his inauguration in 1925) emphasized qualifications over politics inthe judicial appointment process and selected judges of impartiality and ability.

tant in assisting the system as a whole. This isthe positive side of Madisonian checks andbalances, and the good will that is as essentialto democracy as the institutionalized circum-spection of men and motives. Considering therewards to society, cooperation by leaders ispossibly as admirable, if not as colorful, as theacts of defiance that are often cited as thesigns of strong leadership.

Franklin D. Roosevelt, an excellent judgeof politicians, attested to the political dexter-ity of Coolidge, his former rival for the vicepresidency, saying, “To stick a knife intoghosts is always hard.”158 In the same way,Coolidge’s legacy has proven difficult to cap-ture. Although recognized by the people of histime, why have his contributions in so manyareas escaped notice today? Perhaps hisagenda, marbled with traditional ideals ofgovernance, institutions, and law, is not com-patible with the agenda of many historians.And perhaps Coolidge himself is partly toblame. He made his evaluation too simple. Heforged his image too well. His genuine per-sonality and managed persona have hiddenmore important truths.

Coolidge was quiet yet eloquent, remoteyet accessible, idealistic yet practical, a sym-bol of rural simplicity yet intellectual, the par-agon of the private sector yet the consummatepolitician who held more public offices thanany other President. Admittedly, he was acombination of contradictions—but perhapsgreatness demands the depth of contradic-tions. Historians view the backdrop of greatevents—wars and revolutions—as a prerequi-site for affixing greatness, and Coolidge’spresidency, a respite of peace and plenty, fellbetween the dramas of world war and depres-sion. His mission, for which no one was bettersuited, was of restoration and respectability,and his vision of the law and its administrationwas an important part of that mission. Maybethere are times when healing is as great a vir-tue as reform. Maybe providing a nation withtranquilly and trust in the wake of war, corrup-tion, and change is an ingredient of greatness.

ENDNOTES1Federalist 78.2Calvin Coolidge, address, “The Press Under a Free Gov-ernment.” Given before the American Society of News-paper Editors, Washington D.C., January 17, 1925. InCalvin Coolidge, Foundations of the Republic:Speeches and Addresses 187 (1926).3Id. at 188.4Id. at 190.5The two most recent works on Coolidge are Robert H.Ferrell, The Presidency of Calvin Coolidge (Lawrence,KS: University Press of Kansas, 1998) and Robert Sobel,Coolidge: An American Enigma (Washington D.C.:Regnery, 1998).6Comment of Howard Quint in Paul A. Carter, TheTwenties in America 38 (1968).7Calvin Coolidge, The Autobiography of Calvin Coo-lidge 96 (1929).8Id. at 84.9Id. at 79.10Id. at 78.11Id. at 83.12Calvin Coolidge, address, “The Supports of Civiliza-tion.” Given at the Amherst College Alumni Dinner, NewYork City, November 27, 1920. In Calvin Coolidge, ThePrice of Freedom: Speeches and Addresses 3 (1924).13Calvin Coolidge, address, “Have Faith in Massachu-setts.” Given before the Senate of Massachusetts on beingelected its president, Boston, January 7, 1914. In CalvinCoolidge, Have Faith in Massachusetts: A Collectionof Speeches and Messages 4 (1919).14Cf. Grant Gilmore, The Ages of American Law 14 (1977).15Calvin Coolidge, address, “The Things that Are Un-seen.” Given at Wheaton College, Norton, MA, June 19,1923. In Coolidge, The Price of Freedom, supra note 12at 390.16Calvin Coolidge, address given at the Governor’s Con-ference, The White House, Washington, D.C., October20, 1923. In The Mind of the President: As Revealedby Himself in His Own Words 241 (C. Bascom Slemp,ed., 1926).17See, e.g., Alfred H. Kelly, Winfred A. Harbison, andHerman Belz, The American Constitution: Its Originsand Development 465–466 (6th ed., 1983); see alsoGilmore, supra note 14 at 14–15.18See, e.g., id. at 457–463.19William F. Swindler, Court and Constitution in theTwentieth Century: The Old Legality, 1889–1932 225(1969).20Calvin Coolidge, address, “The Limitations of theLaw.” Given before the American Bar Association, SanFrancisco, August 10, 1922. In Coolidge, The Price ofFreedom, supra note 12 at 206.21E.g., Sobel, supra note 5 at 62.


22E.g., id.23E.g., id. at 68.24Coolidge, “The Limitations of the Law” in Coolidge,The Price of Freedom, supra note 12 at 196.25Id. at 207–208.26Mary Ann Harrell and Burnett Anderson, Equal Jus-tice Under Law: The Supreme Court in American Life79 (6th ed., 1994).27Truax v. Corrigan 257 U.S. 312, 338 (1921).28See, e.g., Swindler, supra note 19 at 234.29Calvin Coolidge, address, “The Destiny of America.”Given at Memorial Day Services, Northampton, MA,May 30, 1923. In Coolidge, The Price of Freedom,supra note 12 at 333.30Lochner v. New York, 198 U.S. 45, 75 (1905).31See, e.g. Kelly, et al., supra note 17 at 467–468.32The members of the Supreme Court at the beginning ofCoolidge’s presidency were Chief Justice WilliamHoward Taft of Ohio (appointed by Warren G. Harding in1921), Joseph McKenna of California (appointed by Wil-liam McKinley in 1898), Oliver Wendell Holmes of Mas-sachusetts (appointed by Theodore Roosevelt in 1902),Willis Van Devanter of Wyoming (appointed by WilliamHoward Taft in 1911), James Clark McReynolds of Ten-nessee (appointed by Woodrow Wilson in 1914), LouisD. Brandeis of Massachusetts (appointed by Wilson in1916), George Sutherland of Utah (appointed by Hardingin 1922), Pierce Butler of Minnesota (appointed by Har-ding in 1923), and Edward T. Sanford of Tennessee (ap-pointed by Harding in 1923).33Alpheus T. Mason, “William Howard Taft: President byChance, Chief Justice by Choice,” in The SupremeCourt and Its Justices 90–92 (1987).34Id. at 89–90.35Id. at 90–91.36Peter Irons, A People’s History of the Supreme Court286 (1999).37Mason, “William Howard Taft: President by Chance,Chief Justice by Choice,” supra note 33 at 93.38Id. See also G. Edward White, The American JudicialTradition: Profiles of Leading American Judges184–185 (1976).39Donald R. McCoy, Calvin Coolidge: The Quiet Presi-dent 46 (1967).40Alpheus T. Mason, William Howard Taft: Chief Jus-tice 185 (1964).41Id. at 142.42Id. at 143.43Id. at 113; Bill Severn, William Howard Taft: ThePresident Who Became Chief Justice 178 (1970).44Coolidge, The Mind of the President, supra note 16 at84.45Harrell and Anderson, supra note 26 at 77.46Mason, William Howard Taft: Chief Justice, supra

note 40 at 186.

47Ferrell, supra note 5 at 78.48Henry J. Abraham, Justices and President: A PoliticalHistory of Appointments to the Supreme Court 21(1974).49Mason, William Howard Taft: Chief Justice, supranote 40 at 186.50Id.51McCoy, supra note 39 at 173.52Coolidge, The Autobiography of Calvin Coolidge,supra note 7 at 225.53Claude M. Fuess, Calvin Coolidge: The Man fromVermont 366 (1940).54McCoy, supra note 39 at 173.55Mason, William Howard Taft: Chief Justice, supranote 40 at 187.56Id.57Id. at 187–188.58McCoy, supra note 39 at 173.59Fuess, supra note 53 at 366.60Id.61Coolidge, “Have Faith in Massachusetts.” In Coolidge,Have Faith in Massachusetts, supra note 13 at 4–5.62McCoy, supra note 39 at 174.63Coolidge, The Autobiography of Calvin Coolidge,supra note 7 at 227.64Abraham, supra note 48 at 181.65Charles Rembar, The Law of the Land: The Evolu-tion of Our Legal System 254 (1980).66Mason, William Howard Taft: Chief Justice, supranote 40 at 187.67Ferrell, supra note 5 at 79.68Abraham, supra note 48 at 60.69Fuess, supra note 53 at 481.70David M. O’Brien, Storm Center: The SupremeCourt in American Politics 86 (1986).71McCoy, supra note 39 at 238.72Id. at 243.73Elliott Roosevelt and James Brough, The Roosevelts ofHyde Park: An Untold Story 211 (1973).74McCoy, supra note 39 at 255.75Kirk H. Porter, et al., eds., National Party Platforms:1840–1972 254 (1973).76Mason, William Howard Taft: Chief Justice, supranote 40 at 92.77Robert S. Maxwell, La Follette 82 (1969).78Roosevelt and Brough, supra note 73 at 126.79McCoy, supra note 39 at 255.80Swindler, supra note 19 at 225.81Paul Johnson, A History of the American People 713(1997).82Calvin Coolidge, address, “The Title of American.”Given at the Convention of the American Legion, KansasCity, MO, October 31, 1921. In Coolidge, The Price ofFreedom, supra note 12 at 93.83Calvin Coolidge, address, “Inaugural Address.” Given


at the Capitol, Washington D.C., March 4, 1925. In Coo-lidge, Foundations of the Republic, supra note 2 at 203.84Calvin Coolidge, address, “Authority and ReligiousLiberty.” Given at the Holy Name Society, WashingtonD.C., September 21, 1924. In Coolidge, Foundations ofthe Republic, supra note 2 at 110.85Sobel, supra note 5 at 249–250.86Coolidge, “Have Faith in Massachusetts.” In Coolidge,Have Faith in Massachusetts, supra note 13 at 9.87Calvin Coolidge, address, “The Price of Freedom.”Given before the Evanston Sunday Afternoon Club,Evanston, IL, January 21, 1923. In Coolidge, The Priceof Freedom, supra note 12 at 243.88Sobel, supra note 5 at 250.89Id. at 283.90Porter, et al., National Party Platforms: 1840–1972,supra note 75 at 265.91Id.92See Carroll Van West, ed., The Tennessee Encyclope-dia of History & Culture 160 (1998); Charles W.Crawford, Yesterday’s Memphis 118 (1976).93Sobel, supra note 5 at 250, 282–283.94John G. Sargent, “Championing the Negro,” 9 TheReal Calvin Coolidge 29 (Plymouth Notch, VT: TheCalvin Coolidge Memorial Foundation, 1992).95Sobel, supra note 5 at 249.96Calvin Coolidge, address, “Ordered Liberty and WorldPeace.” Given at the dedication of a monument to Lafay-ette, Baltimore, MD, September 6, 1924. In Coolidge,Foundations of the Republic, supra note 2 at 93–94.97Id. at 94.98Id. at 94–95.99Coolidge, The Mind of the President, supra note 16 at75–76.100Alpheus T. Mason, Harlan Fiske Stone: Pillar of theLaw 179 (1956).101Fuess, supra note 53 at 355 n. 37.102Memorandum of Chief Justice William Howard Taft,November 10, 1924. On file in the papers of WilliamHoward Taft, Manuscripts Division, Library of Congress,Washington D.C.103Abraham, supra note 48 at 183.104Sobel, supra note 5 at 266.105Mason, Harlan Fiske Stone, supra note 100 at 54.106Swindler, supra note 19 at 232.107Abraham, supra note 48 at 183; Mason, Harlan FiskeStone, supra note 100 at 183; McCoy, supra note 39 at276; Fred Rodell, Nine Men: A Political History of theSupreme Court from 1790 to 1955 225–226 (1955).108Abraham, supra note 48 at 182.109Alpheus T. Mason, The Supreme Court: Palladiumof Freedom 123 (1962).110Mason, Harlan Fiske Stone, supra note 100 at 184.111Id. at 194–199; McCoy, supra note 39 at 277; Abra-ham, supra note 48 at 183–184.

112Abraham, supra note 48 at 184.113Swindler, supra note 19 at 250.114See White, supra note 38 at 205.115See Abraham, supra note 48 at 184–185.116See Sobel, supra note 5 at 4, 254–255, 280.117Abraham, supra note 48 at 182.118Edward C. Lathem, ed., Meet Calvin Coolidge: TheMan Behind the Myth 213–214 (1960); Sobel, supranote 5 at 410.119For detailed reviews of Garman’s influence on Coo-lidge, see John Almon Waterhouse, Calvin CoolidgeMeets Charles Edward Garman (1984) and Sobel,supra note 5 at 35–39, 120. Coolidge discusses Garman’sinfluence in Coolidge, The Autobiography of CalvinCoolidge, supra note 7 at 63–70. For a discussion ofGarman’s influence on Stone, see Mason, Harlan FiskeStone, supra note 100 at 56–61, 69, 807–808.120Mason, Harlan Fiske Stone, supra note 100 at 56.121Coolidge, The Autobiography of Calvin Coolidge,supra note 7 at 63.122Id. at 65.123Id. at 67–68.124Sobel, supra note 5 at 39.125Mason, Harlan Fiske Stone, supra note 100 at 58.126Sobel, supra note 5 at 36.127Mason, Harlan Fiske Stone, supra note 100 at 59.128Coolidge, The Autobiography of Calvin Coolidge,supra note 7 at 65.129Id.130Mason, Harlan Fiske Stone, supra note 100 at 59.131Abraham, supra note 48 at 181.132Edward S. Corwin, The President: Office andPowers, 1787–1984 182–183 (5th rev. ed., 1984).133Biddle v. Perovich, 274 U.S. 480 (1927).134Corwin, supra note 132 at 184–185.135Id. at 183.136Mason, Harlan Fiske Stone, supra note 100 at 167.See also Corwin, supra note 132 at 184.137Id.138United States v. Grossman, 1 F.2d 941 (N.D. Ill. May15, 1924).139Ex parte Grossman, 267 U.S. 87 (1925); Corwin,supra note 132 at 184.140Mason, Harlan Fiske Stone, supra note 100 at167–168.141Ex parte Grossman, supra note 139 at 121.14265 Cong. Rec. (Feb. 13, 1924) 2335.143Corwin, supra note 132 at 425–426 n. 87.144Mason, Harlan Fiske Stone, supra note 100 at 232.145Myers v. United States, 272 U.S. 52 (1926).146Id. at 170.147Mason, Harlan Fiske Stone, supra note 100 at 222.148Irons, supra note 36 at 295.149Mason, William Howard Taft: Chief Justice, supranote 40 at 297.


150Id. at 298.151Fuess, supra note 53 at 441.152Mason, William Howard Taft: Chief Justice, supra

note 40 at 16.153Humphrey v. United States, 295 U.S. 602 (1935).154Carter, supra note 6 at 42.

155Mason, Harlan Fiske Stone, supra note 100 at 263.156Lathem, ed., Meet Calvin Coolidge, supra note 118 at216; Geoffrey C. Ward, Before the Trumpet 5 (1985).157Lathem, ed., Meet Calvin Coolidge, supra note 118 at214; Sobel, supra note 5 at 411.158Roosevelt and Brough, supra note 73 at 211.


Calvin Coolidge and the Supreme Court

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