The Supreme Court's 1925 makeover

Bettmann

The Supreme Court and US attorney general on January 1, 1925, photographed after the court’s annual visit to the president. Chief justice William Howard Taft, Yale Class of 1878, is fourth from the right. View full image

The Supreme Court isn’t what it used to be. Before the passage of the Judiciary Act of 1925, SCOTUS served primarily as a court of last resort, the body which heard disputes appealed from lower courts, and it was inundated with the “bone-crushing labor of deciding endless trivial mandatory appeals,” according to former Yale Law School dean Robert Post ’77JD, in a paper presented at Notre Dame Law School in February. By the 1920s, the court was somewhere between 15 and 18 months behind on its docket, which already included hundreds of cases. Nearly all the cases the court heard, it decided unanimously. Hearing all of them was the issue.

That changed after the passage of the Judiciary Act. The act limited the ability of litigants to automatically appeal to SCOTUS and gave the justices discretion over what cases they heard. “It transformed the court from a final appellate tribunal into an institution that makes law independently from its dispute settlement function,” says Post. The court, with its “democratically unaccountable” structure, was now making law in a democratic society where lawmaking was meant to be “responsive to the views of citizens,” adds Post. In crafting judgments, it had to take those views into account or risk losing the country’s faith. The Judiciary Act, Post wrote, “has over time contributed to changes in the court’s own self-understanding, which have facilitated a profound crisis of the court’s authority.”

Post says he became interested in this aspect of the court’s evolution while writing his most recent book, The Taft Court: Making Law for a Divided Nation, 1921–1930, published last year. Chief Justice William Howard Taft ’78 instigated the change soon after he joined the bench in 1921. “I had written about it historically,” Post says, “but what I had not written about was the implications of the profound changes which the Judiciary Act of 1925 makes in the nature of the court or the court’s authority.”

Now, Post writes, a crisis is brewing. Instead of acknowledging its role in “making” law, he maintains, the court under John Roberts insists it is “finding” law consistent with the original meaning of the constitution. SCOTUS, says Post, is still making law, no matter claims to the contrary. And by claiming not to be making law, it has rejected wholesale the idea that it is accountable to citizens, which has been the basis of its authority since 1925. Post thinks this can’t go on for much longer.

“Originalism has to give way to legitimacy,” he says, “because that’s the foundation of the ability of any court to function and of any law to be made.”