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On March 7, 1927, Chief Justice William Howard Taft wrote his younger brother Horace Taft, “I am going to deliver an opinion this morning in a very important alcohol prohibition act matter in Ohio.” Taft went on to explain that the Supreme Court’s decision did not address whether the so-called Volstead Act, which implemented the Eighteenth Amendment, was constitutional, but rather it addressed how Ohio’s system of prohibition enforcement violated due process. Ohio’s legislature had enacted a prohibition statute as an analog to the Volstead Act. Known as the “Crabbe Act,” Ohio’s law barred the possession of “intoxicating liquor.” After mailing his letter to his brother, Taft walked to the Supreme Court and assembled the Justices to announce the decision. Reported in newspapers across the country, the decision, captioned as Tumey v. Ohio, determined that Ohio’s downward delegation of prohibition enforcement to municipal courts failed to ensure due process. One day before writing to Horace, Taft wrote to his son Charles Phelps Taft II that the Court had unanimously determined that the Crabbe Act was “invalid under the Fourteenth Amendment” and then stressed that the Justices found the Ohio law repugnant to fundamental rights. Tumey has become a benchmark for assessing judicial impartiality, but the legal history of the decision, including how it was shaped, has hardly been written about. Professor Robert Post, in an article titled “Federalism, Positive Law, and the Emergence of the American Administrative State: Prohibition in the Taft Court Era,” placed Tumey as part of the Court’s authoritative – or “national” – expansion over the United States. Yet unlike decisions upholding Prohibition, Tumey placed restraints against its enforcement. Professor Post was not in error in analyzing Tumey in the context of Prohibition or the Court’s authoritative expansion, but to exclusively do so results in an incomplete historic analysis of the judicial intent underlying the decision. For instance, Tumey arose during Taft’s efforts to limit congressional attempts to govern the judiciary. The case was also decided at a time when Taft had been attacked as being beholden to corporate interests and therefore overly partial to wealthy litigants. Most importantly, Tumey was part of a line of cases and extrajudicial actions that Taft used to shape judicial ethics. A legal history centering on Taft’s conception of the duties and independence of judges, as well as constraints on judicial power, amplifies how he led a largely conservative, yet jurisprudentially diverse, Court to unanimously intervene in a state’s municipal court construct. While it may be correct, as legal historian Melvin Urofsky has pointed out, that during the period Taft sat as Chief Justice the justices limited their dissents in an effort to fend off Congressional efforts to narrow federal court jurisdiction, the justices did dissent in several appeals, particularly decisions involving criminal prosecutions. The unanimity underlying Tumey is also, in this light, a noteworthy element in analyzing Taft’s intent.

Chief Justice William Howard Taft's Conception of Judicial Integrity: The Legal History of Tumey v. Ohio