Judicial lobbying and the politics of judicial structure: An examination of the Judiciary Act of 1925*

Justice System Journal, 2003 by Buchman, Jeremy

In summary, Taft was careful to portray the bill as the product of a Supreme Court responding to the call of the Senate, and not as part of the Chief Justice's drive to strengthen the Court's hand. Taft did testify before the House Judiciary Committee in December 1924, thus lending credence to the claim that his decision not to appear before the Senate reflected concern with the expected response of particular individuals in that body. Taft's fears seem ill-founded, however, given how these Progressives ultimately voted or abstained from voting on the final bill. With such a lopsided margin of victory in the Senate, a legislator who wanted to oppose the bill just to spite Taft would have a free vote with which to do so.

Another aspect of Taft's strategy was to garner support from the justices and present a unified front to Congress. Taft did not have unanimous support from his colleagues, as Justice Brandeis expressed misgivings about the bill and advocated a more piecemeal approach to reform (Murphy, 1964:141). This opposition led Taft not to ask Brandeis to testify regarding the bill, despite his ties to Progressives in the Senate. Brandeis, however, made Taft's job easier by volunteering to stay on the sidelines. In a November 24, 1924 letter to Taft, Brandeis stated that "in relation to proposed legislation directly affecting the Court, the Chief Justice, when supported by a clear majority, should be permitted to speak for it as a unit; and differences of view among its members should not be made a matter of public discussion" (Taft Papers: Reel 269). As a result of Brandeis's acquiescence, Taft was able to use the Court's consensus to bolster the perception that the proposal's thrust was technical and apolitical.

Still another strategic element was to enlist the lobbying assistance of the American Bar Association. The ABA was a natural ally for Taft in his crusade for judicial reform, as he had served as the organization's president from 1913 to 1914. Dominated by corporate lawyers drawn from elite law schools, the organization viewed federal courts as a rationalizing force needed to counteract the tendency of legislatures to pander to the masses by regulating business (Purcell, 2000:15-17). Support for the Judiciary Act of 1925 was consistent with the ABA's broader goal of reinforcing the strength and independence of the national judiciary. As Mason (1965:129) puts it, "Among the stabilizing forces in the United States, none was so powerful, so disposed to uphold the Federal courts, or so receptive to appeals from their distinguished former president, as the American Bar Association."

At its 1922 annual meeting, the ABA threw its support behind Taft's proposal, and its Committee on Jurisprudence and Law Reform shortly thereafter began to lobby Congress on behalf of the measure. The ABA's lobbying strategy, as described by Thomas Shelton, an important policymaker within the organization, was straightforward: Convince key legislators that the bill was so technically complex that even the ABA felt itself unqualified to take a position, and encourage Congress to pass the legislation and then make any alterations as circumstances dictated, rather than risk embarrassing itself by tinkering with the measure.9 This approach proved successful, in both forestalling opposition and enabling the bill to pass in the form Taft had envisioned.