Robert Post

Digging a Hole: The Legal Theory Podcast

Welcome back, devoted listeners, and say hello to season eight of Digging a Hole, where we’ve got an extraordinarily stacked lineup just waiting in the wings. To make up for the cold, cold months where you had to get your legal theory fix from reading articles (boring) or attending faculty workshops (ugh), we’re kicking off the season with a mammoth episode about a mammoth book. Today’s guest is the former dean and current Sterling Professor of Law at Yale Law School, and Co-Reporter for the American Law Institute, Robert Post, here to talk about Volume 10 of the Oliver Wendell Holmes Devise History of the Supreme Court of the United States (aka the official biography of SCOTUS), The Taft Court: Making Law for a Divided Nation, 1921 to 1930.

From the outset, Post sets the stage for his argument that the Taft Court and the 1920s are an important but underappreciated time in American legal history. We discuss how the Taft Court grows out of and evolves according to two social questions wrenching the nation – the First World War and Prohibition. Next, we talk about the different theories of sovereignty and democracy as represented by the different wings of the court, with Taft playing counterpoint to lionized jurists Brandeis and Holmes. Sam, angling for his dream job of author of Volume 14 of the Devise, peppers Post with questions about formalism, realism, and consequentialism. We’re not kidding when we say that’s only half the episode – but, listeners, the second half is a can’t-miss if you care about Taft the master administrator, judicial politics, and the power of the Supreme Court. We hope you enjoy.

This podcast is generously supported by Themis Bar Review.

Referenced Readings

• A Muted Fury: Populists, Progressives, and Labor Unions Confront the Courts, 1890-1937 by William G. Ross