JUDICIARY: Supreme

(See front cover)

With a gentle swishing of black robes and the slow-shuffling steps of wise old men, the Supreme Court of the U. S., august at Washington, convened for another autumn session in its semicircular little room in the Capitol.

Mr. Chief Justice (William Howard Taft) had returned to Washington early, after a frolicsome 71st birthday (with eleven grandchildren) at his summer lodge at Murray Bay, Quebec. Prior to convening his eight Supreme colleagues, he held a three-day conference with the senior judges of the U. S. Circuit Court. He informed President Coolidge that five additional Federal judges should be benched in Manhattan and Brooklyn to cope with the mounting arrears of Prohibition and tax cases.

Clerks and printers busied themselves with the Supreme Court’s weighty agenda.

Five Supreme decisions remained to be rendered after arguments heard last spring. Three of these cases were notable—1) The Great Lakes States v. the City of Chicago. Lawyer Charles Evans Hughes, a onetime member of the Supreme Court, had been appointed special master. His report upheld Chicago’s right to withdraw water from Lake Michigan, at the expense of other lake levels, for its sewage canal. 2) A test case about the Ku Klux Klan—whether it is constitutional for States to require secret organizations to put their secrets on file. 3) A test case about Shriners—whether persons founding fraternal orders may closely copy or parody the names of established orders like the Ancient Arabic Order of the Nobles of the Mystic Shrine. (Negroes substituted “Egyptian” for “Arabic.” Texans got an injunction.)

New cases looming on the calendar for argument in coming weeks included:

A boundary dispute between Louisiana and Mississippi.

The 7¢ fare fight between the New York Transit Commission and the Interborough Rapid Transit Co. (Mr. Chief Justice Taft had allowed this case to be moved ahead in the interest of millions of subway riders. It will be argued Oct. 15).

United Fuel Gas Co. v. the Public Service Commission of Kentucky—a test case on public regulation of private rates for natural gas.

The famed “StoneCutters Case”—the Journeymen Stone-Cutters’ Association of North America v. the U. S.—to determine the validity of court injunctions brought in conflict with union regulations.

St. Louis and O’Fallon v. the Interstate Commerce Commission—a railroad valuation case.

More than 300 applications were on file, beseeching the Court to admit cases for review, among them:

Cases of liquor-bearing foreign vessels, seized by the Coast Guard between the 3-mile and 12-mile limits.

The “Lake Cargo Coal Case”—between Southern coal and railroad men, Northern coal and railroad men, and the Interstate Commerce Commission, over freight rates.

The “California Deciduous Fruit Case”—90 Western railroads trying to have an I. C. C. rate-reduction on fruit set aside.

Kindly, equable gentleman that he is, Mr. Chief Justice Taft was neither vexed nor disturbed by the talk that went around Washington, as it does every year at this time, that there is certain to be a vacancy in the Supreme Court before long. Mr. Associate Justice Holmes, oldest of all the high-benchers, looked as hale and bright-of-eye as ever at 87. Even Mr. Associate Justice Sutherland, 66, who was sick and absent so much of last year, looked fit as 40.

Mr. Chief justice dropped easily back into the health-guarding routine which he follows when in Washington—up at 7 o’clock to be pummelled by a strong Swedish masseur; breakfast of hard-toasted bran bread—(oh, how different from the oranges, beefsteaks and sugary coffee which he used to swallow when he was a 332-pounder in the White House and when he said, “Things are in a sad state of affairs when a man can’t even call his gizzard his own!”) Until 11:30, he reads and dictates in his study; then by motor to the Capitol, to sit from 12 to 2; then the luncheon recess and the one real meal of the day (meat, vegetables); sitting again, until 4, and home by motor. This is the hour when children who play in the vicinity of the Connecticut Avenue bridge espy the huge old figure who chuckles with his stomach and is always willing to stop and say hello. Mr. Chief Justice walks and chuckles thus for a half hour every day.

“Dinner” is at 6—more bran toast; dictating or studying stops at 9; and so to bed. Mr. Chief Justice is not one of those septuagenarians who boast how little sleep they need. Nor does he “run upstairs.” He does, however, operate his own elevator.

They say the coming election may have a profound effect upon the future of the country’s laws. A vacancy in the Supreme Court might be filled by some one whom President Harding or President Coolidge would never have chosen. Those terrific 5-to-4 decisions might go the other way. Picture, for example, a 5-to-4 decision on Prohibition!

Perhaps, as he lies under invigorating Swedish digits of a morning, Mr. Chief Justice reflects, or talks, about past and present—perhaps somewhat as follows:

“Goodness! Nineteen-twenty-eight! [Chuckle.] Why, its half a century since I left college. I played football—and I was class salutatorian. They used to call me ‘Big Bill.’ I suppose [chuckle] all heavy Williams get called that [chuckle]. Big Bill Edwards—Big Bill Thompson [chuckle, chuckle]. . . .”

The footballer became a law student and, at $6 per week, court reporter for his half-brother’s (Charles Phelps Taft’s*) newspaper, the Cincinnati Times. Another publisher paid $25 per week to alienate his services. He shared first honors in his class at law school, practiced with his father and got on quickly—assistant prosecuting attorney, judge of the Superior Court. He was only 33 when President Harrison made him Solicitor-General of the U. S.

The seal fisheries dispute with England and defending the McKinley Tariff were his first big jobs, both successful. President Harrison made him a Federal judge in Ohio. He handed down the decision dissolving the cast-iron pipe monopoly—first vital effect of the Sherman anti-trust law. President Roosevelt, the trustbuster, offered him twice a Supreme Court appointment but he declined.

Appointments and commissions filled William Howard Taft’s years—the Philippine Commission, first Governor of the Philippines, a conference with Pope Leo XIII. President Roosevelt made him secretary of War in 1904—an amiable Mars indeed who made empiric yet cherubic sidetrips to Cuba, Panama and Porto Rico. Wherever he went, he acquired weight and respect.

Roosevelt sent him around the world and finally, in 1908—just 20 years ago—William Howard Taft found himself, at Roosevelt’s insistence, the Republican candidate for President.

If, lying back while his earthly frame is kneaded, Mr. Chief Justice thinks about 1908 in contrast to 1928, it is doubtful that his thought is political. A knowing newsman once said that the Taft bump of political sagacity was really a dent. True though that may be, there are more bumps than dents in the Taft makeup, mental as well as physical, and as he looks back from a double eminence never before achieved in the U. S., it may be that he sees far more than any politician of comparable age would see.

In 1908, Calvin Coolidge was an inconspicuous Assemblyman in Massachusetts. Alfred E. Smith was the same thing in New York. Herbert Clark Hoover had branched out independently in engineering and in 1907-08 visited England, Egypt, Burma, Australia, New Zealand, Malay, Ceylon.

Mabel Walker Willebrandt was a 19-year-old school teacher of lumberjacks’ children in Buckley, Mich., soon to marry the school superintendent and nurse him in Arizona.

Charles Augustus Lindbergh was a child of six whose father had just gone to Congress from Minnesota. The Wright Brothers were making sensational flights, staying in the air as long as 1 hr., 31 min., 25 4/5 sec. But not until the next year was Louis Blériot to astound the world by flying across the English Channel. If young Lindbergh had a hero the year Taft campaigned it was doubtless President Roosevelt, with whose son, Quentin, he used to play in the White House grounds. Legend says that “Cheese” Lindbergh was one of the boyish gang that inspired Quentin to rough-ride his pony into and through the White House.

A handsome, ursine figure from Idaho entered the Senate in 1908, William Edgar Borah.

Henry Ford brought out Model T that year, and a year later said he would make nothing else but. He also said: “Any customer can have a car painted any color he wants, so long as it is black.”

Abroad, the scene was idyllic. Edward VII of England, with two more years to reign, visited his nephew, Nicholas II of Russia, at Reval. Wilhelm of Germany, busy building warships, warmly welcomed Dr. David Jayne Hill, the new U. S. Ambassador. He explained his growing Navy as follows: “Every German warship launched is one more guarantee for peace on earth.”

Emperor Franz Joseph annexed Bosnia and Herzegovina and nearly started the War prematurely, But Wilhelm scowled down Russia and the peace was kept.

In Turkey, the “Young Turks” revolted, with Europe’s approval. In China, the Dowager Empress died, closely preceded by Emperor Kwang-su, and China passed to two-year-old Pu-yi. It was evening for the dynasts.

The President of France that year was a man named Fallières. The premier was a young man of 67 named Georges Clémenceau. . . .

Politics. Should any political thoughts stray through Mr. Chief Justice’s mind this year, it might occur to him to compare the 1908 and 1928 Republican platforms. The one Nominee Taft ran on was partly the work of a newly-eminent lawyer who had successfully prosecuted the Harriman railroad combinations and the Standard Oil Co. for the U. S.—Frank Billings Kellogg, then called “the Beau Brummel of the politicians.”

The G. O. P. platform, then as now, mentioned Progress and Prosperity:

“American manhood and womanhood have been lifted to a nobler sense of duty. . . .

“Under the guidance of Republican principles the American people have become the richest nation in the world”—richer than England and all her colonies, than France and Germany combined, . . . “onefourth of the world’s wealth.”

In 1908, the Farm Problem was solved by promising more Rural Free Delivery.

Prohibition was a reformers’ subject, not yet forced into national politics.

Snobbery was no issue, though Bryan’s origin and training were humble compared to Roosevelt of Harvard and Taft of Yale.

Not even women’s suffrage got a mention in 1908.

The great Issue was, of course, the Tariff, the politics of which Nominee Taft so miscalculated that he was astonished when the reactionary Payne-Aldrich bill, signed by him, proved unpopular.

Far more obviously than Nominee Hoover today, Nominee Taft in 1908 was a President’s hand-picked successor. Also like Hoover, he had never before run for a public executive office. With Roosevelt’s aegis over his personal distinction, he easily beat Bryan. On a blizzardy 4th of March he drove, behind four skittish bay horses, to be inaugurated in the Senate Chamber.

Roosevelt linked arms and led him in. Little old Chief Justice Melville W. Fuller, who had sworn the last five Presidents, administered the oath. Then came the historic Inaugural Ball in the cavernous Pension Building. Roosevelt slipped out a side door of the White House and soon was tracking and slaying wild animals in an Africa not yet crowded by tourist-hunters. Taft stayed behind, corpulent, just, constantly annoying his children, the citizens, by his benevolent logic. They had voted for him because the dynamic, hustle-up Roosevelt had told them to. When they found how unRooseveltian Taft was, they were vexed. Their clamor pained and confused him. The late Senator Dolliver described him as a large, amiable island surrounded by people who knew just what they wanted. “Figuratively,” as William Allen White says, “he used to come out upon the front stoop of the White House and quarrel petulantly with the American people every day.”*

When Roosevelt came home, he did not like the way his man had turned out. He tried to block his renomination and, failing in that, founded the third party that lost for them both in 1912. Soon the Yale law faculty had the distinction to include an ex-President of the U. S.

Bench. In 1921, a message pencilled on rough copy paper and signed “Gus,” reached the Hon. William Howard Taft in Canada. It was from the late Gustave J. Karger, oldtime correspondent of the Cincinnati Times-Star. “Gus” reported that President Harding had just decided “to appoint Big Bill Chief Justice.” Back to Washington he went, now far removed from the irrational bickerings of “practical men.” Looking down from the High Bench, he beheld the “Best Minds” of the Harding era on the job, many of them from his native Ohio. When the Oil Scandals broke, there were no party ties to prevent him from concurring in the scalding Supreme opinion thereon. Now the “Best Minds” are no longer referred to as such, but Mr. Chief Justice hears that his onetime party’s Nominee “probably has the largest mind in America” and is a “planetary thinker.” No opinion is required of the High Bench on these matters. When he hears of Hooverism and the Brown Derby, Mr. Chief Justice can smile, chuckle. He can point to his “dent” and lend his now almost universally admired bumps to the law, which follows sedately, a decade or more, behind politics.

*Alphonso Taft of Cincinnati married a Miss Fannie Phelps, who bore him Charles Phelps Taft and died. He then married Miss Louisa Maria Torrey, who bore him three sons, one every other year beginning in 1857—William Howard Taft, Henry Waters Taft (Manhattan lawyer) and Horace Button Taft (founder-headmaster of Taft School, Watertown, Conn.). Three of these Tafts had issue. Charles Phelps Taft’s children were Jane, David, Anna, Charles. William Howard Taft’s were Robert, Charles Phelps II, Helen. Henry Waters Taft’s were Walbridge, William Howard II and Louise. These, in turn, have produced eleven grandchildren. . . . Lorado Taft, famed sculptor, native of Illinois, is a distant, if any, relative.

*In Masks in a Pageant (Macmillan, $5), currently published.