The Invention of the Judicial Administrative State

Marin K. Levy* April, 2025

The Taft Court: Making Law for a Divided Nation, 1921–1930. By Robert C. Post. Padstow: Cambridge University Press. 2024. Pp. xlii, 1608. $250.

Introduction

After being introduced at a recent event at the Library of Congress, Justice Elena Kagan quipped, “I’ve had a lot of jobs . . . it would be so clear that I would change my job[] every four years that I would say, ‘Well, now you know the secret about me: I can’t keep a job.’”¹ If ever there was a Justice who could make a similar witticism, it would undoubtedly be William Howard Taft. Indeed, looking back on his career, he once famously remarked, “[w]henever an office fell . . . my plate was up.”² And what a plate it was—this single person served as Solicitor General of the United States, Judge of the United States Court of Appeals for the Sixth Circuit, Governor-General of the Philippines, Provisional Governor of Cuba, Secretary of War, and President of the United States.³

But the role in which he had the greatest influence on this country was as the tenth Chief Justice of the United States. At a crucial time in America’s history, amidst the Roaring Twenties and the Great Depression, Chief Justice Taft transformed the federal judiciary. Relying on his political skills (and ties), he oversaw the creation of the Conference of Senior Circuit Judges⁴—today termed the United States Judicial Conference⁵—the policymaking body for the federal courts.⁶ He also reshaped the Supreme Court, inside and out. As to the latter, it was Taft who persuaded Congress to authorize the construction of a permanent home for the Court, and chaired the United States Supreme Court Building Commission, which ultimately led to the construction of One First Street.⁷ And as to the former, it was Taft who championed the Judiciary Act of 1925 (known to us as the “Judges’ Bill”), which converted the Court from a standard appellate body to one with almost complete control over its docket and oversight of the lower federal courts.⁸

Despite these substantial contributions, Taft has become an oft-overlooked figure. As Professor Robert C. Post⁹ opens in his searing new history, The Taft Court: Making Law for a Divided Nation, 1921–1930, “[a]lthough Taft is now all but forgotten, in his time he was a commanding figure” (p. xxxv). Over the course of 1600 pages (written over three decades), Post sets out to remind us who, precisely, Taft was and how he commanded the Court at a critical time in its history and the nation’s history. More broadly, as part of the famed “History of the Supreme Court of the United States” series supported by the Oliver Wendell Holmes Devise, The Taft Court offers a definitive account of the Court in its fourteenth decade, including the various jurisprudential turns it took and the Justices who helped take them.

This Review seeks to provide not a traditional review or critique as much as a meditation on Post’s contributions to the history of the judiciary, and through it, Taft’s contributions to the judiciary itself. I leave to others The Taft Court’s discussion of the Court’s key players (among them, Justices Holmes and Brandeis), and the Court’s key cases (including Myers v. United States,¹⁰ Adkins v. Children’s Hospital,¹¹ and Olmstead v. United States¹²).¹³ Instead, Part I of this Review focuses on the primary ways in which, as Post has the telling of it, Taft refashioned not just the Supreme Court but the whole judicial branch. This Part also engages with other scholarship and historical artifacts to emphasize Taft’s particularly nationalist vision of the judiciary. It concludes with how this overlooked Chief Justice invented judicial administration as we know it. In Post’s words: “Taft felt himself responsible for the functioning of the Article III branch of government. This role and this responsibility are among Taft’s most enduring legacies” (p. 458).

Part II then grapples with the “administrative state” of justice in the modern age. Post’s observation about Taft’s legacy sets up a critical question: How effective is that system of judicial administration today? Specifically, the Judges’ Bill of 1925 famously gave the Justices the power to decide what the Court would decide;¹⁴ this seemed necessary to Taft at a time when the Court was in arrears, but how should it be assessed now when the Court is hearing fewer cases than it has since the Civil War?¹⁵ The Judicial Conference today is tasked with formulating rules and policies on myriad topics, from codes of conduct and financial disclosures to court administration and case assignment.¹⁶ From an institutional design perspective, we may ask whether the Conference has an ideal organizational structure and whether its agenda-setting captures the most pressing issues facing the judiciary today. More broadly, we may ask about the Conference’s role, particularly after its recent attempt to curb the practices of district courts that can lead to “judge shopping,”¹⁷ and the resistance of some in response.¹⁸ On this theme, this Part concludes by considering the extent to which the judiciary should be viewed as a singular, national institution—as Taft saw it—or a composition of courts with their own local and regional interests.

Ultimately, this Review examines not just a great work in Post’s The Taft Court, but also the great judicial reformer himself—assessing what Chief Justice Taft accomplished in his day and how much of his legacy, his devise, endures a century later.

I. Refashioning The Judiciary

At the outset, it is important to situate Post’s The Taft Court within a larger history—a history of the history of the Supreme Court. The book is part of the famed Oliver Wendell Holmes Devise, the origins of which can be traced back to a gift of $263,000 bequeathed to the United States upon the Justice’s death.¹⁹ Congress used the funds to establish the Permanent Committee on the Oliver Wendell Holmes Devise,²⁰ which sought to provide the definitive history of the Supreme Court through 1941, with eleven planned volumes assigned to various authors (the so-called “granddaddy of modern constitutional memory-recovery”).²¹ The Taft Court is Volume X in this collection, sitting shoulder to shoulder with Professors Alexander Bickel and Benno Schmidt’s Volume IX: The Judiciary and Responsible Government, 1910–1921,²² and Professor Mark Tushnet’s Volume XI: The Hughes Court: From Progressivism to Pluralism, 1930 to 1941.²³ Among these others works, The Taft Court has its own storied past. The project was first assigned to Bickel, who worked on it for many years before his death.²⁴ Writing the history of the Taft Court then fell to Robert Cover, who also worked on it for many years before his death.²⁵ Then in 1988, Post assumed the writing assignment.²⁶

And what an assignment it has been. The source materials alone are staggering. In addition to all of the many Supreme Court opinions from this decade, there are the writings of the Justices themselves (Taft, ever busy, wrote dozens of letters each week, creating a total of 600,000 that are housed in the Library of Congress).²⁷ What Post has managed to do with all of this raw material feels herculean—over eight parts spanning forty-three chapters and some 1,600 pages, he has charted an orderly path for moving through this period of the Court’s history. From Taft’s colleagues on the bench to Taft’s role as Chief Justice to the Court as an institution even to federalism and then to equal protection, Post paints a vivid picture of the central players from this time, and how they changed the Court, its jurisprudence, and the country.

This Review will not attempt to do justice to the volume in its entirety. Instead, to borrow the words of Justice Stephen Breyer in his recent consideration of the volume, “[h]ere I shall focus upon one section.”²⁸ Specifically, this Part will focus on the heart of Taft’s contributions to the federal judiciary. As The Taft Court chronicles, those contributions include ensuring that the Supreme Court would have a new (and permanent) home, lobbying for the Judges’ Bill of 1925, and overseeing the creation of a policymaking body for the federal courts.

The Supreme Court Building

Let us begin with One First Street. It is hard to imagine today, but for nearly the first one hundred and fifty years of its life, the Supreme Court wandered from home to home (and even state to state). It first heard cases in 1790 in, as Professor John Fabian Witt styled it, “hastily arranged rooms” in the Royal Exchange Building of New York.²⁹ But when the national capital moved to Philadelphia that same year, the Court followed.³⁰ It first decamped to Independence Hall and, soon after, the Old City Hall, located just across the street. ³¹ But the Justices were not done with their peregrine ways. The federal government moved in 1800 to the District of Columbia and once again the Court followed, meeting in “ill-adapted rooms in the perpetually unfinished Capitol Building.”³² By the time William Howard Taft became Chief Justice in 1921, the Court was housed in what today is known as the “Old Senate Chamber”—a space Justice Felix Frankfurter called “small,” with a conference room that Chief Justice Charles Evans Hughes (Taft’s successor) later remembered could “overheat[]” and result in “foul” air that was “not conducive to good humor.”³³

So how did the Court come to occupy the “marble palace” on Capitol Hill? ³⁴ As Post reminds us, much of the credit belongs to Taft. To be sure, part of the rationale was practical; inhabiting a hand-me-down space with a library collection that legislators made use of—and picked over!—was far from ideal.³⁵ But Taft recognized that something larger was at play (even if several of his colleagues did not)³⁶—as Post puts it, “Court management mattered to Taft in ways that it had not mattered to his predecessors . . . Taft was determined to provide for the administrative necessities of the Court.”³⁷ And he was willing to fight for it.

For years, Taft engaged in what Post describes as a “campaign” for a new Supreme Court building (p. 553). Calling on his political experience, Taft had a hand in all respects of the construction of a new Court building—including the appropriations bill,³⁸ the siting of the Court across from the Capitol,³⁹ and the selection of its architect, the famed Cass Gilbert⁴⁰ (below is the “Study sketch elevations and plans” by Gilbert of the Court, dated April 5, 1931).

A drawing of a building
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Cass Gilbert’s “Study sketch and elevation plans” of the United States Supreme Court⁴¹

Taft never saw the physical realization of those plans—he died two and a half years before the building’s cornerstone was laid.⁴² As Post poignantly tells it, Taft only just missed Gilbert’s last note to him, which read: “I shall always think of you as the real author of the project and the one to whose vision we shall owe a suitable housing for the Supreme Court of the United States.”⁴³ It is because of Taft that the Court “could fully control its own space” and be seen as an independent, coequal, branch of government (p. 564). In recognition of all that Taft did to secure the Court’s standing through its building, his likeness graces it. On the West Pediment—visible as one enters the main entrance to the Supreme Court building—there are nine figures, representing various virtues within the law.⁴⁴ Among them, at the far right, is Chief Justice John Marshall, representing Research Past.⁴⁵ And at the far left, one will see a young William Howard Taft, memorialized for the future as Research Present.⁴⁶

Carved Figure of Willian Howard Taft on the West Pediment⁴⁷

B. The Judges’ Bill

Just as Taft remade the outside of the Court—the physical structure visible to the public—he remade its inner workings as well. Students of the federal courts no doubt know that “[t]he appellate jurisdiction of the Supreme Court has two branches, mandatory and discretionary.”⁴⁸ But it was not always thus. Before Taft’s time, the mandatory branch overtopped the discretionary one.

Indeed, for its first hundred years, the Court had no formal say over which cases it would hear⁴⁹—a state that became increasingly problematic in the 1880s when the Court had fallen a full three years behind on its caseload (p. 477). Relief came in the form of the Circuit Court of Appeals Act of 1891 (generally known to us as the Evarts Act), which created the modern-day courts of appeals and then authorized the Court to decide (via the discretionary writ of certiorari) which cases to decide from the newly formed appellate courts.⁵⁰ The Court’s docket crisis quickly abated, but the equilibrium was short lived (p. 477). In the words of Taft himself, “[a]fter thirty-five years . . . [the Supreme] Court’s business had again grown beyond its capacity, and a hearing could not be had for cases not advanced out of their order until more than a year after their filing.”⁵¹ This was the state of the Court that Taft inherited when he became Chief Justice in the summer of 1921.

As Post describes in his chapter “Reshaping the Supreme Court,” Taft quickly sprang into his “judicial reformer” mode (p. 477). No sooner had the Justices come together for the new term than Taft created a committee composed of Justices William Day and James Clark McReynolds (and soon after Willis Van Devanter) to draw up a bill to “reform” the Court’s jurisdiction.⁵² By the spring of 1922, that committee had drafted what would become known as the Judges’ Bill (on account of its authorship). Taft, himself, presented this bill to the House Judiciary Committee.⁵³ The Judges’ Bill was ultimately signed into law in February of 1925, transforming the Court’s docket by authorizing the Justices to largely decide what to decide.⁵⁴ The majority of cases would come to the Court only after a party had successfully petitioned for review (via a writ of certiorari), with the Court’s discretionary jurisdiction now far exceeding its mandatory jurisdiction.

Although any one of the judicial reforms that Taft helped usher through would be considered a significant legacy, it is hard to overstate the import of this one. As then-Chief Justice Earl Warren wrote of Taft in 1958: “His outstanding contribution is, perhaps, his constant advocacy of judicial reform and Court reorganization, giving it discretionary power to take up only the most important cases. The calendar becomes manageable. The two-year backlog is wiped out, and the foundation laid for current calendars to this day.”⁵⁵

But as Post lays out, the Judges’ Bill did far more than enable the Supreme Court to keep pace with its caseload. By giving the Justices discretion over what cases to take up, the Bill transformed the Court from a standard appellate tribunal to an institution at the apex of the federal judiciary with the ability to oversee those courts below it.⁵⁶ In an address delivered over a decade before becoming Chief Justice, Taft likened the Supreme Court to state courts of last resort—“It is to be presumed that the Supreme Courts in the course of their decisions on general law will lay down with reasonable accuracy principles with sufficient clearness to enable the inferior courts to dispose of cases involving similar principles.”⁵⁷ But that was not all; Taft had more to say about the Court’s “important jurisdiction”: “The highest function of the Supreme Court of the United States is the interpretation of the Constitution of the United States, so as to guide the other branches of the Government and the people of the United States in their construction of the fundamental compact of the Union.”⁵⁸ The Judges’ Bill operationalized this idea, transforming the Court from an appellate body that wrote opinions for the parties appearing before it to one that wrote opinions for the nation (pp. 665–66). This transformation, which took the Court from resolving individual disputes to acting as the “proactive supervisor of federal law” prompted fundamental questions about the institution’s authority and legitimacy—questions we have continued asking ever since.⁵⁹ The “foundation laid” for the Court to this day.

C. The Conference of Senior Circuit Judges (the Judicial Conference of the United States)

Taft had a strong hand in remaking the federal judiciary vis-à-vis the High Court’s supervisory role over the law (and therefore lower courts), but he also refashioned the federal judiciary from an administrative perspective. The court system that Taft had been a part of when a judge on the Sixth Circuit Court of Appeals was fragmented. There was no consistent way of bringing together judges to solve common problems⁶⁰—problems that, at the time, often related to caseloads.

As I have detailed elsewhere, early on the federal courts experienced difficulties with judges falling behind on their work (say, due to illness or an increase in filings), which was quite serious in a district of only one or two judges.⁶¹ Over time, Congress authorized the practice of “sitting by designation”—that is, permitting a judge of one district or circuit to visit a court in another to provide caseload relief—but there were limits on when visits could happen and who could be “borrowed.”⁶² Specifically, federal judges could sit by designation on other courts in the event that a judge was ill or facing disability, but the matter was more complicated if the court was simply overworked—only judges within the same circuit could take up that task.⁶³ In short, this was not a fully united judiciary.

Taft sought to change that. Concerns about the state of the judiciary—in particular, a disorganized and overburdened judiciary—were with him when he left the White House. Back in 1914, Taft laid out his vision for a reformed federal judiciary which included, inter alia, that authority:

be conferred upon the head of the Federal judicial system, either the Chief Justice, or a council of judges appointed by him . . . to consider each year the pending Federal judicial business of the country and to distribute Federal judicial force of the country through the various districts and intermediate appellate courts.⁶⁴

Taft eventually got much of what he wanted. A mere three days after his confirmation in 1921, Taft outlined legislation to the Attorney General to further unify the federal courts (p. 449). What eventually passed into law—the Act of September 14, 1922⁶⁵—was “a major triumph” (p. 451). It formally created the “Conference of Senior Circuit Judges,” over which the Chief Justice would preside.⁶⁶ It further permitted the Chief Justice to “transfer district judges to where they were most needed”—on account of illness or an overabundance of judicial business, thus fully expanding the use of visiting judges.⁶⁷ Post, quoting then-Professors Felix Frankfurter and James M. Landis, writes that “[i]t marked . . . ‘the beginning of a new chapter in the administration of federal courts.’”⁶⁸

There is just one detail to add to Post’s telling of the origins of the Conference of Senior Circuit Judges. As Taft’s new vision for the federal judiciary was coming into focus, he took to one idea that proved unworkable.⁶⁹ In addition to wanting to increase the ease with which judges could visit other courts, Taft thought that there should be “judges at large,”⁷⁰ or what he termed a “flying squadron of judges.”⁷¹ These judges, untethered to a particular district, would be “assigned by the senior circuit judge” (today the Chief Judge⁷²) to “any district in the circuit where needed and by the Chief Justice to any district in any other circuit.”⁷³ In this vision, federal judges would be completely fungible—and national (as opposed to local) in nature.

Taft never did get his “flying squadron of judges”—the proposal was a political non-starter as it threatened to “upset established patronage arrangements”⁷⁴ and there were concerns about “carpetbag judges.”⁷⁵ (Behind that, there were concerns that the out-of-town judges would have differing views on matters such as prohibition and segregation⁷⁶). Nevertheless, Taft’s proposal is an important part of the record. Post writes that “[i]n less than nine years, Taft changed the nature of federal courts, transforming them from a collection of independent judges into a coherent branch of the federal government overseen by the chief justice” (p. xxxv). This is certainly true, and yet it is worth appreciating that Taft’s vision was not only of a unified court system but also of unified and interchangeable judges to populate it. It is also worth appreciating not just how much of his extraordinary vision was realized, but also the few ways in which his efforts fell short.

II. Assessing the Judiciary Today

Having laid out three of Taft’s most significant reform efforts, which together transformed the federal judiciary, we may ask how the courts are faring today. Specifically, looking at the central contributions of Taft’s a century on, this Part considers, inter alia, (1) access to the Supreme Court’s building and proceedings, (2) the success of the Court’s near complete control over its own docket, and (3) the functioning of the judiciary’s policymaking structure. At each turn, The Taft Court proves a valuable reference point for these considerations. Finally, this Part takes up Taft’s larger vision—the federal judiciary as a national entity—and how much it holds today.

The Supreme Court Building

At first blush, it would seem that there is little to say about the Supreme Court building in the present day. Excepting some renovations—including the restoration of the famed West Pediment—the building at One First Street remains essentially the same structure that was erected nine decades ago.⁷⁷ But we can conceive of the building in larger terms, and consider access and transparency around court proceedings, as well as the ways in which the Justices have increasingly become cloistered in modern times.

By these lights, the Court has made some important gains. Again, as students of the federal courts no doubt know, there has long been a debate about whether the Court is sufficiently transparent—including whether there should be “cameras in the courtroom.”⁷⁸ (Who can forget Justice David Souter’s line—“I can tell you the day you see a camera come into our courtroom, it’s going to roll over my dead body.”⁷⁹) And while cameras have not made their way in, live audio feeds have made their way out. Starting in May 2020 when the Court shifted to telephonic proceedings during the pandemic, livestreamed oral arguments have replaced the earlier practice of posting argument recordings at the end of each week.⁸⁰ There have been yet additional innovations. Two decades ago, transcripts of oral argument were posted to the Supreme Court’s website ten to fifteen days after they were complete;⁸¹ today, transcripts of oral argument are posted on the same day the argument is heard by the Court.⁸² This is not to say that there are no gains that could be made—indeed, there has been a recent push for livestreaming opinion announcements.⁸³ But the larger point is that this relatively conservative institution has recently shifted some of its practices in significant ways to increase the public’s visibility of its proceedings—a shift that seems largely to the good.⁸⁴

But there have also been some losses—ways in which the present moment has caused what feels like a distancing between the Justices and the public. There is the indelible image, following the leak of the majority opinion in Dobbs v. Jackson Women’s Health Organization,⁸⁵ of the Court with metal fencing around the building.⁸⁶ And while the Justices already had been given security details, that security increased in the wake of the Dobbs leak.⁸⁷ In an interview with the Wall Street Journal in the spring of 2023, Justice Samuel Alito said that he is “driven around in basically a tank, and [he’s] not really supposed to go anyplace by [him]self without the tank and [his] members of the police force.”⁸⁸ The article then added that Deputy U.S. Marshals “guard the justices’ homes 24/7.”⁸⁹ Congress further authorized protection of immediate family members of the Justices and other officers of the Court.⁹⁰

Post recounts that while still housed in the Old Senate Chamber, the justices “often strolled through the public halls, and the procession from the robing room to the courtroom proper was a twice-daily spectacle which tourists always tried to see” (pp. 564–65). By contrast, in the new building, the Justices were “screened off”—Gilbert ensured that the Justices’ comings and goings were beyond public view (p. 565). Post distills this change by observing that “[i]n the new courthouse, law became spectacle, detached from ordinary human interaction” (p. 565). Today we may well worry that the present moment has caused the Justices to become too removed, too cloistered, and about the effect that this has all had on them and their work.

B. The Judges’ Bill

Turning now to the Judges’ Bill, we can start by observing that when enacted and soon thereafter, the move to hand the Justices control over their docket was generally successful. As noted earlier, the Court was quickly able to become “current” with its cases, and has remained so ever since.⁹¹ And Congress made further inroads in this direction in 1988 by doing away with appeals as of right from state court decisions, leaving the Court with very little in the way of cases they must decide.⁹² Again, this Taft reform would seem to have achieved its aim.

But the picture may look somewhat different today, when the caseload is at its lowest point in modern times. By one account, the Roberts Court averaged seventy-six decisions (including per curiam opinions) from the 2005 to 2017 terms—that is “less than one-third the decisional average for the 1926 and 1930 Taft Courts.”⁹³ The Court’s most recent term ended with opinions in only sixty cases.⁹⁴ To be sure, scholars and commentators have been drawing attention to the Court’s “shrinking docket” for some time.⁹⁵ But the trendline has been steady, and the current low water mark is striking.

Moreover, this trend is linked to a more recent phenomenon—though the Court is hearing fewer cases, more opinions are coming down at the very end of the term.⁹⁶ As Adam Liptak noted in June 2024, “[t]he court’s pace has slackened even as the size of its docket in argued cases has dropped to levels not seen in many years.”⁹⁷ This bunching led to concerns, among them that mistakes could more easily find their way into opinions.⁹⁸ (And it is not for nothing that the Court made corrections to four sets of opinions on one of the final days of the term.⁹⁹).

So, what should be done about the Court’s docket? Some say nothing—that the Court is exercising a kind of judicial minimalism (if not in outcomes, in number of areas of law affected).¹⁰⁰ Perhaps. But if we return to Taft’s vision of the Court—as the body at the apex of the judiciary, interpreting the Constitution and providing guidance to the courts below—we should be concerned that some areas of law seem neglected.¹⁰¹ At the very least, there should be conversations about the Court’s docket one hundred years after the Judges’ Bill—particularly to consider whether it is taking “enough” cases and of the right sort.¹⁰²

Finally, there is something to be said about hearing directly from the Court on this matter. When the Court parts ways with a prior decision, we generally hear why (in the form of an opinion).¹⁰³ We may wish for the same when it comes to judicial administration. Are the justices making a conscious decision to contract the docket, and if so, why? Taft was not only a great reformer of the judiciary but a great communicator about the judiciary as well.¹⁰⁴ It is perhaps time for the justices to take another page from his book and speak directly about the decisions they are making about what cases to take up.

C. The Conference of Senior Circuit Judges (the Judicial Conference of the United States)

The Judicial Conference of the United States has grown up considerably from the Conference of Senior Circuit Judges that was born a century ago. The early Conference was composed of just nine judges—one from each circuit—who came together to report on the “judicial business” of their courts and to advise the Chief Justice on possible improvements in judicial administration.¹⁰⁵ But the Conference quickly experienced significant changes, including to its membership. New circuit judges were added to the Conference as new circuits were added to the federal judiciary.¹⁰⁶ And then, in 1957, district judges joined the Conference for the first time.¹⁰⁷ A few decades later, the Chief Judge of the Court of International Trade followed suit.¹⁰⁸ Today’s Conference has grown to twenty-six judges who sit alongside the Chief Justice as the presiding officer.¹⁰⁹ But that is not all—acting as the secretary of the Conference is the Director of the Administrative Office of the U.S. Courts—the agency within the judiciary, formed in 1939,¹¹⁰ that supports and provides counsel to the Conference and its many committees.¹¹¹

Those committees have changed significantly in the last hundred years as well. Post notes that at its first meeting (a mere three months after the 1922 Act was passed), the Conference began dividing its work into various committees (p. 453). After discussing the marked increase in cases before the federal judiciary (largely due to a flood of new prohibition cases),¹¹² five committees were authorized, including the “Committee on Need and Possibility of Transfer of Judges” and the “Committee on Recommendations to District Judges of Changes in Local Procedure to Expedite Disposition of Pending Cases and to Rid Dockets of Dead Litigation.”¹¹³ (Apparently the Conference favored descriptive over concise committee names.) More committees were added over time and some existing committees died out.¹¹⁴ Today, the Judicial Conference has twenty committees in all (not including its advisory, ad hoc, and sub-committees), covering such topics as the budget, codes of conduct, court administration and case management, financial disclosure, information technology, and security.¹¹⁵

Much has changed in the intervening years, including the challenges the Court faces. Gone are the days when prohibition filings were the most pressing matter across the judiciary. Today’s third branch faces scrutiny over the handling of judicial misconduct complaints,¹¹⁶ and the lack of a binding code of conduct for the Supreme Court.¹¹⁷ Given such changes and challenges, one may wonder if the Conference’s current structure is best. On this point, it is worth noting that in December of 1986, the Chief Justice created a committee to study the operation of the Conference and its committees.¹¹⁸ The work of that group resulted in a “major restructuring” of the Conference committees.¹¹⁹ Perhaps it is time—one hundred years after Taft set the Conference in motion, and nearly forty years after its last major “tune-up”—to see if the Conference’s administration can be improved again.

Apart from its organizational structure, there are questions about the Conference’s authority. In 2024, the Conference attempted to tackle one of the most significant policy questions facing the federal judiciary in modern times—how to curb “judge shopping” or the ability of litigants to file in certain divisions within districts, knowing that their case will be assigned to a particular judge. The Conference tried to solve the problem by announcing a policy in March, which told district courts that they “should apply district-wide” (as opposed to division-wide) assignment of certain kinds of cases, including civil actions that are seeking to bar or mandate nationwide enforcement of a federal law.¹²⁰ While some courts quickly sought to follow the letter of the policy, just as quickly others pushed back. The Chief Judge of the Northern District of Texas stated in a letter later that month: “The district judges of the Northern District of Texas met on March 27, 2024, and discussed case assignment. The consensus was not to make any change to our case assignment process at this time.”¹²¹ Any stronger solution will now have to come from the Rules Committee or from Congress. This is not the national system that Taft envisioned.

Stepping back, Taft, even before holding the Office of Chief Justice, saw the federal judiciary as a single entity, with judges who were—or should be—national officers. Indeed, the premise of his proposed “flying squadron of judges” was that judges need not be tied down geographically—a judge from New York could just as easily decide a case by designation on the Ninth Circuit Court of Appeals as he could on the Second. In the words of Taft, each judge was a “cog in the machine” that is our federal court system.¹²²

Yet also plainly present in the federal judiciary are geographically based districts and circuits with geographically tied judges. They have their own local and circuit rules, and even their own cultures.¹²³ Some may feel that they have needs when it comes to how cases should be assigned—needs based upon the geography of where they sit—and so far, they can follow those preferences. Ours is also very much a system of judicial federalism.¹²⁴

It is worth appreciating these tensions between the national and local and considering whether the current arrangement, one hundred years on, has struck the right balance. For The Taft Court is not only a book about making law for a divided nation; it also raises fundamental questions about how to create a system of administration over different—and sometimes divided—courts.

Conclusion

Ultimately, and in the words of Robert Post, “[w]e do not tend to remember great judicial reformers, but instead to honor judges who craft striking opinions or who convey deep jurisprudential vision” (pp. 7–8). The Taft Court proves why we should improve our collective memory, as it simultaneously helps us do just that. It reminds us how one man reshaped the Supreme Court, inside and out, and reshaped the federal judiciary along with it. A century after so many of Taft’s accomplishments, Post’s own triumph offers a fitting occasion to reflect on all that the Chief Justice did and consider what work remains for the judicial reformers of today.

* Professor of Law, Duke University School of Law. With thanks to Robert Post and Thomas Schmidt for insightful comments on earlier drafts. Thanks as well to Elena Schultz, Grace Vedock, and the other wonderful editors of the Michigan Law Review for exceptional editorial assistance. Any errors and solecisms are, of course, my own.