Book Review

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Book Review | The Journal of American History, 86.3 | The History Cooperative

Taft, Holmes, and the 1920s Court: An Appraisal. By David H. Burton. (Madison, N.J.: Fairleigh Dickinson University Press, 1998. 174 pp. $33.50, isbn 0-8386-3768-X.)

Keeping the Faith: A Cultural History of the U.S. Supreme Court. By John E. Semonche. (Lanham: Rowman & Littlefield, 1998. x, 499 pp. $34.95, isbn 0-8476-8985-9.)

At a recent conference on teaching constitutional history, my assignment was to explain how the field had changed over the past fifty years. The biggest difference, I noted, involved the plethora of literature now available. Shortly after World War II one could find a few biographies—of John Marshall and Oliver Wendell Holmes Jr. and the brand new biography of Louis D. Brandeis, Brandeis, a Free Man's Life (1946), by Alpheus T. Mason. There were relatively few books on the history of the Supreme Court and only one textbook on constitutional development. Today judicial biographies abound, including some on sitting members of the Court, and the Court itself has become an object of obsessive attention from historians and journalists alike. Unfortunately, quality does not always run in tandem with quantity. 1

Of the two books under discussion, David H. Burton's effort to make Holmes and William Howard Taft brothers under the robes misses the mark completely. While no one questions that Holmes personified New England, making out Taft as a "fellow New Englander" imbued with the same life view and moral assumptions will strike many as a bit farfetched. Compounding the problem is Burton's misunderstanding of some basic issues. "Guided by the thought processes of the Puritan divines," he writes, "Holmes had encased morality in a legal system as a matter of necessity, and thus imparted to the law a moral quality." This will come as quite a surprise to many people, especially those who have studied Holmes's The Common Law (1881), which very specifically removed moral issues from the law, especially in tort liability. . . .

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