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A Muted Fury

A Muted Fury: Populists, Progressives, and Labor Unions Confront the Courts, 1890-1937

William G. Ross
Copyright Date: 1994
Pages: 352
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    A Muted Fury
    Book Description:

    For half a century before 1937, populists, progressives, and labor leaders complained bitterly that a "judicial oligarchy" impeded social and economic reform by imposing crippling restraints on trade unions and nullifying legislation that regulated business corporations.A Muted Fury, the first study of this neglected chapter in American political and legal history, explains the origins of hostility toward the courts during the Progressive Era, examines in detail the many measures that antagonists of the judiciary proposed for the curtailment of judicial power, and evaluates the successes and failures of the anti-court movements.

    Tapping a broad array of sources, including popular literature and unpublished manuscripts, William Ross demonstrates that this widespread fury against the judiciary was muted by many factors, including respect for judicial power, internal divisions among the judiciary's critics, institutional obstacles to reform, and the judiciary's own willingness to mitigate its hostility toward progressive legislation and labor. Ross argues that persistent criticism of the courts influenced judicial behavior, even though the antagonists of the courts failed in their many efforts to curb judicial power. The book's interdisciplinary exploration of the complex interactions among politics, public opinion, judicial decision-making, the legislative process, and the activities of organized interest groups provides fresh insights into the perennial controversy over the scope of judicial power in America.

    Originally published in 1993.

    ThePrinceton Legacy Libraryuses the latest print-on-demand technology to again make available previously out-of-print books from the distinguished backlist of Princeton University Press. These paperback editions preserve the original texts of these important books while presenting them in durable paperback editions. The goal of the Princeton Legacy Library is to vastly increase access to the rich scholarly heritage found in the thousands of books published by Princeton University Press since its founding in 1905.

    eISBN: 978-1-4008-6357-0
    Subjects: Law

Table of Contents

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  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
    (pp. ix-xii)
    (pp. 1-22)

    THE PROPER SCOPE of judicial power in America is a source of perennial controversy. During every period of the Republic’s history, critics of the courts have assailed the judiciary with invective and have proposed measures to curtail the institutional prerogatives of the courts.¹ Many periods of acute conflict have received careful scholarly attention. Indeed, the Jeffersonian antagonism toward the Marshall Court, the firestorm over theDred Scottdecision, the controversies of the Reconstruction era, Franklin Roosevelt’s Court-packing plan, and the bitter reactions to the Warren Court’s activism have become staples of the lore of American legal history.

    One period of...

    (pp. 23-48)

    IN NOVEMBER 1911, as the progressive movement was reaching its crest, Senator Henry Cabot Lodge of Massachusetts expressed regret that reverence for the Constitution and the Founding Fathers had diminished during the quarter century since the Republic had celebrated the centennials of the Constitution’s adoption and ratification: “Instead of the universal chorus of praise and gratitude to the framers of the Constitution the air is now rent with harsh voices of criticism and attack.” Although Lodge averred that the vast mass of Americans continued to respect their Constitution, he observed with sadness that “every one who is in distress, or...

    (pp. 49-69)

    THE RISING TIDE of criticism of the judiciary that followedLochnerwas accompanied by increasingly radical demands for the curtailment of judicial power, including the abrogation of judicial review. By challenging one of the principal foundations of the American constitutional system, opponents of judicial review manifested the intensity of their frustration with judicial hostility toward reform legislation and organized labor and demonstrated their impatience with all constitutional orthodoxies, including the Constitution itself. Although demands for abrogation of judicial review would recur throughout the period studied by this book, the early proposals that are the subject of this chapter are worthy...

    (pp. 70-85)

    DESPITE THE GROWING dissatisfaction with the courts and the recrudescence of attacks on judicial review from 1906 to 1912, many critics of the courts continued to prefer to circumvent judicial obstruction of social legislation without challenging judicial power. Accordingly, many advocated procedural reforms that would not alter any institutional aspect of the courts or curtail any fundamental element of their jurisdiction. While this failure to advocate fundamental constitutional changes reflected in part a pragmatic recognition that such efforts would fail, it also suggests again that most critics of the judiciary opposed the way judicial power was exercised rather than the...

    (pp. 86-109)

    IN ADDITION TO advocating procedural reforms that did not deprive the judiciary of any fundamental powers, progressives also tried to transform the character of the bench by influencing the selection of new judges and the judicial philosophy of incumbent judges. Like the movement for procedural reform, attempts to influence the judicial selection process and judicial thought were more serious and more successful than attempts to curb judicial power. Ultimately, however, the selection of some progressive judges and the inculcation of certain progressive ideas in conservative judges failed to prevent judicial obstruction of progressive programs, just as procedural reforms had proved...

    (pp. 110-129)

    THE CONTROVERSY OVERStandard OilandIvesoccurred at the very time many critics of the courts were beginning to advocate and implement a specific measure—the judicial recall—designed to make the courts more responsive to the popular will. Unlike other plans that critics had propounded during recent years, the recall enjoyed widespread support and was enacted into law by a number of state legislatures. Like other proposals for judicial reform, however, the recall ultimately failed to provide progressives with significant relief from judicial hostility to reform legislation. Assiduous and organized opposition from conservatives prevented more than six states...

    (pp. 130-154)

    ALTHOUGH PUBLIC DISCONTENT with the judiciary gathered much momentum between 1906 and 1910, criticism of the courts remained diffuse. The emergence of the judicial recall issue during 1911 provided a remedy many critics of the courts were able to support, but effective reform also required national leadership. Even though many critics of the courts were nationally prominent, none was in a position to lead a politically potent reform movement: Walter Clark’s judicial duties circumscribed his political role; Robert L. Owen’s political base was too narrow; and Robert M. La Follette was too distracted by other issues.

    A national spokesman finally...

  11. SEVEN EBB AND FLOW, 1913–1921
    (pp. 155-178)

    THE FUROR OVER judicial power abated for several years after the election of Wilson in 1912. Although many progressives and trade unionists continued to advocate limitations on judicial power, their voices were muted, and their arguments received less attention from politicians and the press. This period of calm, however, proved to be a lull in a continuing tempest. Events from 1913 to 1921 precipitated a sharp revival in the controversy over the courts from 1922 to 1924. When widespread protests over judicial power began to erupt again in 1922, critics of the courts propounded reforms that were different and in...

    (pp. 179-192)

    FACED WITH increasing hostility from the courts and decreasing political influence, the progressives and trade unionists became more strident in their denunciations of the judiciary after 1920. In contrast to the willingness of prewar critics to explore various methods for mitigating state and federal judicial hostility toward social and labor legislation, the critics of the courts during the 1920s were more inclined to advocate dramatic but ultimately chimerical proposals to curtail judicial power. Progressive proposals more often involved only the Supreme Court and ignored the possibility of reform at the state or lower federal levels.

    The growing conservatism of the...

    (pp. 193-217)

    THE COURT’S RULINGS in theBaileyandCoronadocases were handed down when the progressive movement was beginning to show signs of renewal. The prospects for a progressive revival seemed bright as the conservative Republicans who dominated the Harding administration and Congress began to lose public favor. Many Americans who had agreed with Harding’s 1920 campaign slogan that the nation needed “not nostrums but normalcy” were disappointed when Harding failed to restore a prewar normality that never really existed, and they began to wish that he would dispense some nostrums for the problems that beset postwar life. The principal cause...

    (pp. 218-232)

    THE DEBATE over judicial power grew more intense early in 1923 when Senator Borah proposed legislation to require the concurrence of at least seven members of the Court in any decision that invalidated an act of Congress.² Borah’s proposal of a remedy that rivaled LaFollette’s plan was characteristic of the disunity that hobbled progressive efforts to restrain judicial power. Like other Court-curbing measures, Borah’s proposal lacked political viability and never received serious consideration, although it stimulated much discussion.

    Borah’s proposal also lacked originality. Almost exactly one century earlier, critics of the Marshall Court had introduced analogous measures, ³ and the...

    (pp. 233-253)

    EVEN BEFORE the rage over the Court’s decision inAdkinshad subsided, there were signs that the Court would emerge from the tempest with its powers unimpaired. As in earlier and later periods of agitation against the Court, the Court demonstrated a remarkable resilience. Once again, however, the preservation of judicial power was not inevitable. Much depended upon the shrewdness of the justices and their propagandists, and the failings of their opponents. Carefully planned and vigorous defenses of the Court by lawyers, academics, and publicists were buttressed by decisions of the Court that helped to restore it to popular favor....

    (pp. 254-284)

    THE RESILIENCE of public support for the power of the Supreme Court was tested and demonstrated by the 1924 election in which Calvin Coolidge and Charles G. Dawes won a landslide victory after a shrill campaign in which they and their fellow Republicans sedulously attacked La Follette’s proposal to curb the Court’s power. Republican warnings that any diminution of the Court’s power would threaten civil liberties and prosperity helped to drain votes from La Follette, who mounted an initially formidable third-party bid for the presidency. The election helped to vindicate Taft’s belief that the nation was too conservative to countenance...

    (pp. 285-312)

    THE CONTROVERSY OVER judicial review subsided for several years after the 1924 election. Criticism of the courts was muted not only by the triumph of Coolidgean conservatism but also by a lack of leadership in the anticourt movement, a renewed pragmatism among critics of the courts, and changes in the direction of the courts themselves, especially the Supreme Court. Discontent over the judiciary continued to smolder, however, and remained close to the surface of politics during the next decade until it burst forth noisily once again when the Court began to invalidate New Deal legislation.

    The movement to curb judicial...

    (pp. 313-324)

    IN HIS 1892 populist manifesto, James B. Weaver warned that the powers of the Supreme Court would “be as chaff before the gale” if the Court encountered “the storm center of public opinion, now rapidly forming.”¹ Although Weaver’s remarks presaged a half century of widespread public hostility to the courts, Weaver and many other critics of the judiciary underestimated the resilience of the courts. Even though the protests of populists, progressives, and trade unionists concerning judicial decisions and their many challenges to judicial power during the half century prior to 1937 were “full of sound and fury,” their protests and...

  19. INDEX
    (pp. 325-339)