Two Presidents, One Supreme Court Seat
By John William Sullivan
In February 1930, Chief Justice William Howard Taft resigned from the U.S. Supreme Court. The resignation did not surprise close observers. Taft’s health had been declining for some time. He would die only a month later.
Taft is better remembered today as the twenty-seventh president of the United States, a role he held from 1909 to 1913. But Taft proved a reluctant president. He preferred the law to politics, and before he turned thirty-five he had served as solicitor general of the United States and a federal judge. His goal was always to serve on the Supreme Court.
He took on administrative roles when the White House called on him, however. Under President William McKinley, Taft became the first civil governor of the Philippines. Theodore Roosevelt later made him secretary of war.
Taft fulfilled his duty again when Roosevelt chose him as his successor. Taft disliked campaigning but won the White House in the 1908 election. Roosevelt, though, grew dissatisfied with what he saw as Taft’s insufficiently progressive presidency. The former president betrayed his friend and his party with a third-party run in 1912, ensuring the victory of Democrat Woodrow Wilson with just 41.8 percent of the vote.
After leaving office, Taft lectured on law at Yale. He realized his great ambition when, in 1921, President Warren Harding appointed him chief justice of the United States.
Taft remains the only person to have served as both president and Supreme Court justice. But in 1929 and again in 1930, rumors spread that another former president might match that distinction: Calvin Coolidge.
Coolidge Buzz
On February 1, 1929, the New York Times ran a front-page story headlined “Talk of Coolidge for Supreme Bench.” The Times reported persistent rumors that Justice Oliver Wendell Holmes would soon retire. Coolidge’s successor, Herbert Hoover, would be sworn in as president in less than five weeks, and the Times cited sources saying that Hoover would “offer this place to Mr. Coolidge.”
In the event, Justice Holmes did not retire for another three years. But as Chief Justice Taft’s health worsened, the Coolidge talk picked up again.
Justice Louis Brandeis took note of the chatter. Brandeis was a leading progressive who had spent years harshly criticizing President Coolidge in private. On January 28, 1930, the justice wrote a letter to his friend and protégé Felix Frankfurter, a professor at Harvard Law School (and later a Supreme Court justice). Brandeis reported, “There is a persistently recurrent rumor…that there is a danger that Calvin Coolidge may be appointed to our Court.” He said the rumors came from well-placed sources, including Judge William Hitz.
Brandeis expressed skepticism about the claim, though he remained unnerved by the possibility of Coolidge’s appointment: “I can’t believe that there is any danger, but should anything be done about it?”
The record does not reflect what, if anything, Brandeis did to try to foil a Coolidge appointment. In the end, of course, Hoover did not choose Coolidge to fill the vacancy. But this episode reflects more than the progressive Brandeis’s distaste for the conservative Coolidge. One can see in Taft’s career and the conflict between Coolidge and Brandeis’s legal philosophies a pivot point in American legal and judicial history.
Was Coolidge qualified to serve on the Supreme Court?
A Vanishing Breed
Was Coolidge qualified to serve on the Supreme Court? He might not seem so to modern observers, given that he had never served as a judge and had not even attended law school. But more than forty justices joined the Supreme Court with no prior judicial experience. Brandeis, for example, had not served as a judge before. Such appointments proved relatively common until the 1970s. As recently as 2010, Elena Kagan was appointed to the Court without experience on the bench.
Nor was it uncommon in the Coolidge era for Supreme Court justices not to have law degrees. Up through the late nineteenth century, people typically became lawyers not by attending law school but by “reading law”—that is, by apprenticing in law offices. Coolidge read law at the Northampton, Massachusetts, office of Hammond and Field.
Judge Edith Jones has described Coolidge’s legal education: “To gain a license, he assisted in the preparation of various legal documents, attended court sessions, and studied the law of Massachusetts. Most important, his required reading included Blackstone’s Commentaries on the Laws of England, which predated the American Revolution, and Chancellor James Kent’s Commentaries on American Law, first published in 1838.”
Eighteen other presidents had read law, including John Adams, Thomas Jefferson, and Abraham Lincoln. But Coolidge became the last president to follow this path. As Jones notes, “Coolidge matured at the fulcrum of American legal history.” As he came of age, she writes, “the Founders’ view of law was being challenged by the ‘scientific’ approach spreading among law schools from its home base at Harvard.” This new approach embraced “progressive theories about direct democracy and active government regulation in economic affairs,” which pressed “constitutional change largely outside the formal amendment process.” Coolidge, by contrast, “derived his ideas and ideals from the common law tradition and homage to the written Constitution.”
In a 1929 letter, Taft wrote, “I must stay on the court in order to prevent the Bolsheviki from getting control.”
Brandeis vs. Coolidge and Taft
Brandeis, a Harvard Law graduate, embodied the progressive mindset. Thus it comes as no surprise that he savaged Coolidge in private letters to Frankfurter and other close associates.
Taft, for his part, “bitterly hated” Brandeis at first, according to biographer Henry Pringle. The problems began when Taft was president and Brandeis practiced law. In 1910, Brandeis argued against the Taft administration during the congressional investigation into the Ballinger-Pinchot affair. In this political battle over whether federal lands could remain open to commercial developers, Brandeis made embarrassing revelations about President Taft’s handling of the matter. This case led to Roosevelt’s split from Taft.
In destroying Taft’s presidency, then, Brandeis made his career.
Once on the Supreme Court, Taft came to respect Brandeis’s intellect. Yet he rejected his fellow justice’s progressivism. “I must stay on the court in order to prevent the Bolsheviki from getting control,” he wrote in a 1929 letter. In another letter that year, he said, “The truth is that Hoover is a Progressive…just as Brandeis is.” Taft saw his role as standing for “a consistent declaration of constitutional law.”
The chief justice feared Brandeis’s undue influence on the octogenarian Holmes. In 1928, Taft wrote that Holmes was “so completely under the control of Brother Brandeis that it gives to Brandeis two votes instead of one.”
Meanwhile, Taft lamented the progressive legal community’s undue influence on Brandeis. He saw Frankfurter and the Harvard progressives as the main source of trouble. In a letter to his brother, Taft said Brandeis had signaled he would join the chief justice in a Prohibition opinion. But then Brandeis “went up to Cambridge and must have communed with Frankfurter and that crowd, and now he came back with a notice to me that he was going to change his vote.”
Taft held Coolidge in higher esteem. In 1914, Taft praised the speech Coolidge gave on becoming president of the Massachusetts state senate, known to history as “Have Faith in Massachusetts.” The former president wrote, “It strikes a chord in my heart that responds to every word.” He sent Coolidge a collection of his legal lectures and other addresses, saying, “There is nothing in them which says as well as you have said it the truth with respect to government, but…there is also nothing in them which differs in spirit.” Taft and Coolidge shared an appreciation for America’s political and constitutional tradition.
When Coolidge assumed the Oval Office, Chief Justice Taft repeatedly praised him, as biographer Walter Stahr discovered in the Taft papers. In a 1924 letter to his brother, Taft wrote: “I share your amazement at the development of Coolidge’s character. His capacity for cogent, brief statement, the quickness with which he acts, the hardheadedness that he displays, and the confidence that he is stirring in the people are all gratifying.”
Rallying behind the Coolidge banner in that year’s presidential election, Taft wrote: “The welfare of the country is critically dependent upon the success of President Coolidge. The Republican party has no chance without him. I don’t remember a case in which a party is so dependent on a man.”
After Coolidge won a commanding victory, Taft said one important lesson to be drawn from the election was that “this country is no country for radicalism.” Rather, he wrote, “I think it is really the most conservative country in the world.”
Turning Point
When Taft resigned as chief justice, President Hoover named as his successor not Coolidge but another former Republican presidential nominee, Charles Evans Hughes.
What, then, to make of the Coolidge Supreme Court rumor? It is tempting to wonder about the precedent that such a selection would have set: two Republican presidents, experienced elder statesmen who became more conservative over time, consecutively leading the nation’s highest court. Coolidge would have denied Taft his unique status as the only president-justice.
Instead, we see that period as a turning point in American legal and political history. The law school model and the type of legal education championed by Brandeis, Frankfurter, and their fellow progressives now reign supreme in the American legal profession. The last Supreme Court justice who read law, Robert Jackson, took the bench just a decade after Coolidge’s death, and even he had briefly attended law school.
Today, the entire Supreme Court is made up of justices of Brandeis’s sort: law school graduates who never held political office. Sandra Day O’Connor, who died in 2023, was the last justice to hold elective office.
Calvin Coolidge would have brought to the Supreme Court extensive experience as a legislator and executive as well as his practical education in common law and the constitutional tradition. But the political battles over the judiciary have grown fierce in the decades since. Now, the idea of appointing any former politician, let alone a former president, to the Court seems unthinkable.
And the country might suffer for it.
John William Sullivan, a political consultant based in Washington, D.C., served for two years as a Coolidge Foundation associate.