| 202105 3Senate Progressives vs. the Federal Courts
May 3, 2021
In the early 20th century, a group of progressive senators from midwestern and western states arrived in Washington committed to expanding the role of the federal government to address the economic and social challenges of industrialization. To accomplish these goals, they had to tackle another challenge—the power of the federal judiciary.
In the early 20th century, a group of progressive senators from midwestern and western states arrived in Washington committed to expanding the role of the federal government to address the economic and social challenges of industrialization. To accomplish these goals, they had to tackle another challenge—the power of the federal judiciary. Senate progressives like Robert La Follette of Wisconsin, William Borah of Idaho, George Norris of Nebraska, and Robert Owen of Oklahoma viewed the federal courts as a growing obstacle to their reformist agenda and worked to limit their power.1
Their top target was the United States Supreme Court. Under a broad interpretation of the Fourteenth Amendment to the Constitution and its guarantee of “due process of law,” the Supreme Court, beginning in the 1890s, used judicial review to an unprecedented extent in order to declare state laws unconstitutional. The Court weakened the power of state governments to regulate the rates of railroads and other public utilities. It struck down state laws regulating the wages and hours of workers, most famously in the 1905 case Lochner v. New York, in which the Court ruled that a law limiting the number of hours a baker could work was an infringement on a worker’s “liberty of contract.”2
The Supreme Court struck down federal laws as well. When Congress passed a law in 1916 banning child labor—a bill co-sponsored in the Senate by Robert Owen—the Court declared it unconstitutional two years later in the case of Hammer v. Dagenhart. In 1923 the Court also invalidated a federal law establishing a minimum wage for women in the District of Columbia.3
The progressives also had concerns about the actions of lower courts. When corporations challenged state regulations, federal district judges issued injunctions barring state officials from enforcing the laws. Federal judges handed down injunctions to stop labor unions from engaging in boycotts and certain strike tactics. District judges ordered the arrest of those who violated their injunctions for contempt of court. Labor leaders and progressive politicians denounced “government by injunction” and what they saw as an abuse of judicial power.4
Progressives, including those in the Senate, responded with proposals to make federal judges more accountable to the people. In 1911 Robert Owen proposed that a majority of both houses of Congress have the power to recall a judge and remove him from office. “The Federal judiciary has become the bulwark of privilege,” he stated in a 1911 speech, “and ought to be made immediately subject to legislative recall by the representatives of the people.” In 1918, after the Court struck down the federal ban on child labor in a 5-4 decision, Owen rejected the notion that a single judge could be the determining factor in nullifying “the matured public opinion of the country as expressed by Congress.” He introduced a new bill to reinstate the ban and included a provision to ban the Court from striking it down.5
Owen was not alone in his attacks on the Court. Similarly, William Borah saw closely divided decisions as “a matter of deep regret.” He introduced legislation in 1923 that would have required the support of at least seven of the nine justices on the Court to invalidate a statute. When the Court once again struck down a federal anti–child labor law in 1922, Robert La Follette condemned these “judicial usurpations” and called for a constitutional amendment to allow Congress to override the Supreme Court by simply re-passing any laws declared unconstitutional.6
Progressives made up a small coalition within the Senate in the 1920s, and while they did not have enough congressional support to pass their court proposals, they asserted what power they could. Progressive Republicans like Senators La Follette, Borah, and Hiram Johnson of California represented a small portion of the Senate’s Republican caucus and were often at odds with the caucus’s more powerful Old Guard members. This division became apparent by 1921 in the relationship between Senate progressives and Chief Justice William Howard Taft.
La Follette had already battled with Taft while he was president and had helped to defeat Taft’s campaign for a second term in 1912. Subsequently, La Follette, Borah, and Johnson were three of the four senators to vote against Taft’s appointment to the Court in 1921. Along with Progressive Democrats like Owen and Thomas Walsh of Montana, they continued to frustrate Taft during his tenure as chief justice.
Taft, who had served as a federal circuit judge in the 1890s and later defended the power of the courts as president of the American Bar Association in 1914, had his own goals for the federal judiciary. In his view, the problem with the courts was not judicial review or injunctions—he praised both as indispensable tools to protect property rights from political majorities. Rather, he believed that the federal courts needed to become more efficient in handling their rising caseloads, and this meant giving the chief justice “executive authority” over the lower courts. In 1922 Taft drafted a bill with Attorney General Harry M. Daugherty, introduced in the Senate by Taft ally Albert Cummins of Iowa, to create a conference of federal circuit judges headed by the chief justice that would gather caseload information from the lower courts. The legislation also proposed appointing a new group of at-large judges and giving the conference the power to send them to districts across the country with backlogs of cases.7
Progressive Republicans, along with many Democrats, were in no rush to strengthen the power of the chief justice over the judiciary, especially not that of the conservative Taft. George Norris even opposed the idea of judges gathering in Washington to be influenced by the chief justice. Norris used his time during the Senate debate over Taft’s bill to call for abolishing the lower federal courts altogether and returning jurisdiction to the state courts.8
The progressive Republicans joined forces with southern Democrats to oppose Taft’s plan. Senators jealously protected the influence they had in presidential nominations of district and circuit judges who would preside in their states. Southern senators argued that the chief justice would have power to send northern “carpet-bagging” judges to southern courts, possibly to enforce a proposed federal anti-lynching law under consideration in 1922. Tennessee Democrat John Shields—who resented Taft’s role in drafting the legislation in the first place—argued that the creation of at-large judges and the power to assign them to any district represented an infringement on the independence of district courts. Thaddeus Caraway of Arkansas objected to “giving to the Chief Justice the power to send out a horde of judges all over this country to designated places, concentrating in his power the whole judiciary system.” In the end, Taft got his Conference of Senior Circuit Judges but not the power to reassign what he called a “flying squadron” of judges.9
Taft chafed at Senate opposition, especially from those opponents who were members of his own party. He bemoaned that “being attacked by progressives” was “the penalty one has to pay for trying to reform matters.” Taft went so far as to lobby Republican Leader Henry Cabot Lodge to get senators more sympathetic to his proposals onto the Senate Judiciary Committee to counter Borah and Norris. He wrote to a fellow judge that the “yahoos of the West . . . were Republicans in getting on committees but not Republicans after they have succeeded.” Lodge, while sympathetic to the challenges posed by insurgents within the Republican ranks, politely rebuffed Taft.10
Senate progressives continued their efforts to curb the courts into the 1920s and even after Taft left the Court in 1930, winning victories with anti-injunction laws and defeating or delaying other elements of Taft’s plans. Norris was able to exert particular influence when he became chairman of the Judiciary Committee in 1926. Progressives also succeeded in defeating the nomination of Judge John J. Parker to the Supreme Court in 1930 after raising objections to his anti-labor rulings and to his opposition to African American voting rights. Such victories were short-lived, however, as the flurry of legislation passed during the Great Depression ensured that the battle between Congress and the courts would continue for years to come.
1. William G. Ross, A Muted Fury: Populists, Progressives, and Labor Unions Confront the Courts, 1890–1937 (Princeton, NJ: Princeton University Press, 1994).
2. Paul Kens, The Lochner Era: Economic Regulation on Trial (Lawrence: University Press of Kansas, 1998).
3. Adkins v. Children’s Hospital, 261 U.S. 525 (1923).
4. William Forbath, Law and the Shaping of the American Labor Movement (Cambridge, MA: Harvard University Press, 1991).
5. Judicial Recall, Address by Senator Robert L. Owen, S. Doc. 62-249, 62nd Cong., 2nd sess., January 11, 1912; Congressional Record, 65th Cong., 2nd sess., June 6, 1918, 7432–33.
6. William E. Borah, “Five to Four Decisions as Menace to Respect for Supreme Court,” New York Times, February 18, 1923, 21; Report of the Proceedings of the 42nd Annual Convention of the American Federation of Labor (Washington, D.C.: Law Reporter, 1922), 234–43; Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922).
7. William Howard Taft, “The Selection and Tenure of Judges,” Report of the 36th Annual Meeting of the American Bar Association (1913), 420–26; Daniel S. Holt, ed., Debates on the Federal Judiciary: A Documentary History, Volume 2, 1875–1939 (Washington, D.C.: Federal Judicial Center, 2013), 180–96.
8. Congressional Record, 67th Cong., 2nd sess., April 6, 1922, 5107–14.
9. Congressional Record, 67th Cong., 2nd sess., March 31, 1922, 4848–49, 4855–65,; William Howard Taft, “Possible and Needed Reforms in Administration of Justice in Federal Courts,” American Bar Association Journal 8, no. 10 (October 1922): 601.
10. Taft to Hiscock, April 12, 1922, Taft to Lodge, January 17, 1922, Taft to Judge Baker, January 22, 1922, Taft to Robert Taft, April 5, 1924, Lodge to Taft, January 18, 1922, William Howard Taft Papers, Series 3: General Correspondence, 1877–1941, Manuscript Division, Library of Congress.