Many accounts of federal judicial politics during the Progressive era – the 1890s through 1930s – note how Republican hold on the Senate and presidency allowed near total control over judicial appointments. Candidates were vetted for “their devotion to party principles and ‘soundness’ on major economic questions of the day.” Judges protected corporate interests against state and federal regulation of workplace conditions, wages, and hours. Judges gave constitutional interpretation a Republican cast, shorthanded by the economic doctrine of laissez-faire and its legal counterpart, liberty of contract. Federal courts are thereby depicted as countermajoritarian. By resisting popular support for workplace and wage regulation, rulings fomented anti-judge hostility that culminated in Franklin Roosevelt's seemingly Jeffersonian attack in 1937, that is, his proposal to stack the Supreme Court and enlarge the lower federal judiciary to prevent judicial nullification of New Deal policy. The failure to pass various Progressive measures, including FDR's Court-packing proposal, are understood to be evidence of popular and elite acceptance of judicial independence if not outright supremacy. This chapter challenges this account by focusing attention on assessments of whether, how, and why Progressive proposals failed. Progressives took an inconsistent stance toward federal judicial authority. While some offered the most virulent anti-Court rhetoric since the Jeffersonian years, Progressives proved unable to construct a single solution to the problem of legitimate judicial authority. This failure stemmed from a muddled tradition drawing on incongruent Jeffersonian and Lincolnian strands of Republicanism.

American Politicians Confront the Court: Clashing Progressive Solutions to the Political Problem of Judicial Power

https://onlinelibrary.wiley.com/doi/pdf/10.1111/socf.12568

Reputation in Rupture: Broken Alliances and Relational Politics in the Roosevelt‐Taft Split

Harnessing judicial power and the political idiom of liberal pluralism

The American State from the Civil War to the New Deal: The Court Fight

Politics, according to conventional wisdom, is the art of the possible. It is also characterized as a game, played by skilled experts who are its main beneficiaries. If so, it is a singular kind of game, "slightly squalid, all too human, and played for stakes which none of the participants could afford if others did not pay the bills." It is, to be sure, a game requiring skill, an acute sense of timing, and as much technique as any sport. According to one U.S. senator, politics resembles a man on roller skates: usually he goes where he wants to go, but sometimes he goes where the roller skates take him. Another senator used stronger terms: "This is a filthy game, and that is why men who have little to recommend them beside a certain obstinacy and courage can occasionally rise to the top."i An interesting case study illustrating the intricacies of this fascinating phenomenon is the leadership role assumed by Montana Senator Burton K. Wheeler, who clashed head-on with President Franklin D. Roosevelt over his judiciary reform proposal of 1937. Wheeler contributed substantially to the plan's defeat in Congress later that year. The series of setbacks experienced by the Democrats throughout that famous 168 days,

Marian C. McKenna

Papers

Prelude to Tyranny: Wheeler, F.D.R., and the 1937 Court Fight