The Full Taft

By some estimates, William Howard Taft weighed nearly 350 pounds at 5 foot, 11 inches. At the Sixth Circuit courthouse in Cincinatti, Taft’s chair is on display. Is has the diameter of a barrel. In 1909, Taft was riding a horse at the Grand Canyon. The poor horse “appeared to be unequal to the President’s bulk” and gave way. (It seems the horse broke an ankle or leg.) Chief Justice William Howard Taft also wrote the most robust conception of presidential power in Myers v. United States.

This history brings me to the oral argument in Trump v. United States. There were extended discussions of what process is due when the President seeks to fire an FTC Governor “for cause.”

Paul Clement, who represented Cook, used a very memorable phrase to describe the process afforded by President William Howard Taft:

JUSTICE THOMAS: With that said -with that said, what would the hearing look like and what would the review look like?

MR. CLEMENT: So I agree with General Sauer that the president would have a fair amount of discretion in how he or she wanted to fashion that hearing. I mean, one example we have historically is President Taft, and he sort of gave the removed officials the full Taft, and it was notice, opportunity for a hearing before an impartial tribunal that, you know, serendipitously included future-Justice Frankfurter, and then he –I mean, so that’s kind of the maximum that the president could give. But we’re not suggesting that you need to give the full Taft. The president would have a lot of flexibility on that.

The “Full Taft.” What a perfect line. It wasn’t a forced attempt at humor, as we’ve seen elsewhere. It was a very subtle way to describe what Taft did, and it was also memorable allusion to Taft’s girth.

Clement leveled up, and invoked Roberts Rules of Order, a nod to another Justice!

MR. CLEMENT: And, look, I –I –I agree with General Sauer. This Court is not going to dictate, like, you know, here is Roberts Rules, you know, have at it. But I think this Court can do something useful, which is essentially to create an incentive for the executive to provide something that’s a little bit more protective, a little bit closer to Taft than something incredibly informal. That’s -JUSTICE

By the end of this term, Paul Clement will have argued six cases–roughly ten percent of the merits docket. I think this is a modern record for a lawyer not in the SG’s office. (During OT 2023, SG Prelogar argued ten cases.)

Even where I disagree with Clement (which seems to be happening more and more of late), I still marvel at his advocacy skills. And on that point, it is a credit that Clement can argue cases on both sides of the aisle. Progressive litigators are less likely to take that path. I still have a hard time accepting with Neal Katyal’s defense of the non-delegation doctrine in the tariffs case.

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