Throughout the election season of 1912, the future of American constitutional government was up for grabs. Of the four significant candidates vying for the presidency, three had leveled open challenges against the constitutional status quo. “That damned cowboy,” Theodore Roosevelt, was seeking a promise-breaking third term under the banner of the Progressive “Bull Moose” Party after bolting the Republican National Convention.Footnote 1 Col. Roosevelt advocated a novel “pure democracy”: a new political settlement that included a more expedient constitutional amendment process; the use of the popular initiative and referendum; and the popular recall of judges and judicial decisions, referring to constitutional limitations on democracy as “fetters.”Footnote 2 Woodrow Wilson, who thought that America's foundational texts “read now like documents taken out of a forgotten age,” carried the Democratic nomination and planned on transforming American government.Footnote 3 Eugene Debs, an ardent socialist and “Wobbly,” stood atop a platform that called for a convention to rewrite the Constitution and made war on the capitalist system.Footnote 4 Only the incumbent president, William Howard Taft, and the rump of the bruised Republican Party defended an “independent judiciary” and a reverence for the Constitution, under which “the United States has grown to be one of the great civilized and civilizing powers of the earth.”Footnote 5
What had happened? Never had the state of constitutional government itself met such frustration. In fact, one of the few things that remained above reproach throughout the tumultuous nineteenth century was the Constitution itself. Citizens and their elected representatives had always debated what the document really meant, but, barring a few radicals, the public man ever sought to identify himself and his beliefs as faithful to the framers’ legacy.Footnote 6 Given this fundamental agreement, the politically suitable disposition was conservative. The proper statesman was “sane,” “safe,” and “conservative,” and sought to maintain and safeguard traditional rights, whatever those happened to be.Footnote 7 By century's end, however, large cracks emerged in this conservative consensus. First populists in the West and South, and then progressives across the nation, asserted that the old forms and strictures of government were no longer adequate to meet the needs of an industrialized economy. Old-school conservatives were flummoxed. “The foundations upon which we builded are questioned,” lamented the venerable statesman, Elihu Root.Footnote 8 By 1912, it was clear that both the traditional Republican and Democratic Parties were divided between progressive and conservative factions, or “radical” and “reactionary” elements, in a way that threatened to upend the existing political order.
Chief among the causes of this rupture were the nation's courts. No institution polarized conservatives and progressives in either party as profoundly as did the nation's judiciary. Judges owed their importance to their role in interpreting the nation's laws—including the highest law, the Constitution. To make a claim about the authority and function of judges in the United States was to make a fundamental claim about the nature of American constitutional government. But the precise meaning of this sacred task had never been sharply defined in the nineteenth century. Most constitutional battles were fought in the political arena, or even at times “in the high court of war,” as President Garfield called it, “a decree from which there is no appeal.”Footnote 9 The federal judge's power of judicial review—the power to strike down unconstitutional laws—remained seldom exercised and only partly articulated since the days of Justice Marshall.Footnote 10 This vague distribution of interpretive authority that hovered between the ballot and the bench had left the question as to a judge's full power untried and unanswered. Judicial deference to popular verdicts declined throughout the Gilded Age as the people began to demand more economically responsive government and as judges took to applying the Fourteenth Amendment's expansive language to create new protections for private property. Rather than the constitutional vetoes of Presidents Jackson or Cleveland, the people began to encounter the vetoes of Justices Field, Fuller, and Peckham. To many observers at the turn of the century, it seemed clear that the federal courts were interpreting the Constitution in a decidedly pro-business direction—a perception given loathsome shape in the decision of Lochner v. New York in 1905, the case that gave its name to the Lochner era. Increasingly, populist and progressive politicians began to raise the long dormant question: Whose word is final on the Constitution, the court or the people?
The fundamental difference that emerged between conservatives and progressives was their commitment to judicial authority—a matter that only became relevant and divisive as the court became more assertive in the early Progressive Era. Though populists and progressives had been developing a critique of the federal judiciary for some time, progressive attacks on the courts reached their zenith with the movement in favor of the recall of judges and judicial decisions by popular vote from 1910 to 1912. Many progressives had come to identify the federal judiciary's ability to rule laws unconstitutional as a perversion of democratic principles and an obstacle to national progress. Thus, they conceived of making judges subject to popular review as a means of making them responsive to “the people,” and as necessary to secure popular government—an argument many Anti-Federalists of 1788 might have recognized.Footnote 11 To conservatives, the threat of judicial recall represented an attack on the rule of law and the road to the sort of majoritarian tyranny described by James Madison in Federalist 10. The conservative image of the federal judge was the Hamiltonian judge of Federalist 78. If a judge could be removed for an unpopular opinion, or his ability to enforce constitutional limitations be subjected to popular will, then constitutionally limited government—a government of laws, not of men—ceased to exist. The question was not merely over whether a judge could review a law—all parties vaguely agreed on this—the question was whether the judge's word was final or if the people could challenge his judgment, not merely correct it by amendment. The question raised by judicial recall was between judicial and popular supremacy over the matter of constitutional interpretation.
The fight over judicial supremacy in 1912 shattered what had remained of the vague nineteenth-century constitutional consensus and upended the uneasy balance between conservatives and progressives in the Republican and Democratic Parties. Push was coming to shove, and the judge's power under the American Constitution demanded a clear definition. This essay seeks to illustrate how the fight over the judiciary divided the two major parties into conservative and progressive factions over their view of judges and the Constitution; how decisions in both parties resulted in the triumph of judicial supremacy in 1912; and how the debate between progressives and conservatives changed from one over the supremacy of judicial review to one over the power's proper exercise. Conservatives attacked one threat only to meet a crafty new one. Specifically, this essay looks at the conservatives who, bewildered by the perceived heresy of judicial recall, struggled to change targets in the wake of Woodrow Wilson's ascent to the presidency. I argue that, while Wilson promoted a progressive vision of judicial supremacy informed by legal realism, conservatives countered with a more traditional, limited role of the judge's function that attained its political form in Republican “Americanism” after 1916. Finally, this essay brings much needed emphasis to the constitutional battle within the Democratic Party. While the story of Taft's stand for Republican conservatism is well-documented, the long defeat of constitutionally conservative Democrats is often forgotten.Footnote 12 The real losers, however, were the populist-progressive advocates of popular review, whose bold claim for popular sovereignty was strangled between the fists of Taftian conservatives and Wilsonian progressives. The year 1916 was the beginning of a new constitutional politics predicated on judicial supremacy and pointed toward a future that pit constitutionally traditionalist-conservative Republicans against increasingly realist-progressive Democrats. In this new era of constitutional politics—the one in which we still live—the doctrine of judicial supremacy is presumed in the power of judicial review.
At the outset, I think it necessary to delineate the terms and scope of this essay's purview. First, this is a study of the role judicial power played in shaping the politics of the Progressive Era and how divergent understandings of the American judge's function and its relation to constitutional government drew lines that remain familiar today. This is a study in constitutional politics, not a discussion of jurisprudence, but it must be read with some basic understanding of the jurisprudential climate at the turn of the century. Second, my use of the term “judicial review” refers broadly to the power of a judge or court to assess the constitutionality of a law or act, which was a contentious matter in the Progressive Era, but which is now commonplace. Third, the use of the terms “conservative” and “progressive” must be understood in the context of the time. The labels “conservative” and “progressive” were not inherently contradictory, as shall be discussed. More than anything, they are here used to express an individual's primary attitude toward political change. Conservatives tended to view themselves as sharing the philosophical perspective of the founders and strived to apply constant principles to changing material circumstances. Human nature, for a conservative, was unchanging and political principles were, too.Footnote 13 Progressives tended to be pragmatists who did not consider moral principles in constant, absolute terms. Political principles, like biological organisms, evolved and adapted to new conditions—success was the test of truth. Still, almost everyone I call a “conservative” would have affirmed their belief in “progress,” though usually only in terms of efficiency or material progress, and “progressive” figures like Woodrow Wilson or Theodore Roosevelt would have preferred to be called “conservative,” not “radical.” But whereas in the nineteenth century any respectable politician had to be “conservative,” that is, they had to argue that their beliefs were the correct interpretation of the founders’ vision, many politicians in the Progressive Era felt emboldened to speak of “progress” beyond the founders’ Constitution rather than continuity with it.Footnote 14
The turn of the twentieth century was a transitional time in constitutional law. At the center of this transition were competing notions of what the power of judicial review entailed and what it meant for constitutional government. The traditional view, which was the view of the founding generation and the view of most of the conservatives discussed below, was that the power of judicial review, as theorized (if not named) by Alexander Hamilton in Federalist 78 and applied by Chief Justice Marshall in Marbury v. Madison (1803), was a simple power of interpretation that upheld a law or act if it was in conformity with constitutional limitations and struck a law or act down if it violated them. The judge's task was to “discover” the law, not “make” it. This view also presumed the existence of a natural law—a law independent of human contrivance—which meant that first principles, and law predicated on them, did not change over time.Footnote 15 The Constitution was the supreme rule against which acts were tested, but interpretation through the common law tradition of “discovered” law gave meaning to concepts like “due process,” “trial by jury,” and “ex post facto.”Footnote 16 Traditional jurisprudence tended to be deferential to the democratic process except in extreme cases, as when the court would be asked to enforce a law, like the repudiation of existing contracts, that would cause it to assume unconstitutional authority. This view could be regarded as the most traditionally conservative in attitude.
The next view, which one might call the “natural law activist” view, believed that the judge's job was to “discover” the law, but did not feel confined to constitutional language or common law tradition to make judgments. Increasingly, these judges believed they could interpret the natural law itself and incorporate it into the Constitution. During the Progressive Era, this view often held a narrow majority on the Supreme Court and interpreted the due process clause of the Fourteenth Amendment to protect the “liberty of contract.” The natural law activist view is the one which most angered reformers and earned federal courts a reputation for “laissez-faire” jurisprudence. Many would call this view “conservative” because of its belief in natural law and commitment to property rights, but its development of economic substantive due process was highly innovative. The tragic irony of constitutional politics in the Progressive Era was that judicial traditionalists were pressed to defend the power of judicial review against progressive criticism despite its commonly perceived misuse by natural law activists.
The emergent progressive view, which became influential in law schools by the turn of the century, was the “realist” or “positivist” school. Realists believed that judges “made” law, did not believe in a natural law, and believed the law should adapt to the needs of the times.Footnote 17 Law in the realist tradition, like humanity, was an evolutionary enterprise. Some democratically minded progressives, like William Jennings Bryan or Theodore Roosevelt, argued in favor of a popular check on judicial decisions, but these men were not usually legal scholars. Progressive jurisprudents, ranging from personalities as diverse as Oliver Wendell Holmes Jr. and Louis Brandeis, typically urged a broader power of judicial review in the progressive direction: one that could be used to regularly reinterpret the Constitution to suit the needs of the day. In practice, distinctions in progressive thought were often blurred in the heat of battle.
Admitting such ambiguities, jurisprudential debate in the Progressive Era took place between at least three broad factions: traditionalists; natural law activists; and realists, both deferential and activist. A key feature of practical political conflict, however, was that prominent politicians only argued from traditionalist or realist positions. None of the figures discussed below defended the natural law activist interpretation represented in Lochner or like decisions. Instead, they argued about whether it was wiser to permit the people to right judicial wrongs directly through recall or to let the battle take place in the courtroom—at least until after 1912. As this essay argues, in the era that followed 1912, debate over constitutional problems occurred between traditionalists and realists who agreed on the principle of judicial supremacy but disagreed on whether judicial review ought to be a progressive or conservative instrument. While all factions party to the great constitutional debate of the Progressive Era are important, the present study expressly seeks to elucidate the efforts and the fates of those traditionalist-conservatives in both parties as they struggled to defend in the public square those principles that they had always taken for granted.
Battle Commences
On August 29, 1910, two days before his more famous “New Nationalism” address in Osawatomie, Kansas, Col. Roosevelt delivered five speeches in Denver to “wild” crowds. At one of the speeches, before the Colorado State Legislature, Roosevelt commenced an attack on the actions of the Supreme Court that foreshadowed the tone of political debate over the next few years. In reference to the court's decision in Lochner v. New York (1905), which denied the police power of the state of New York to regulate working hours for bakers, he stated that the regulation had been declared unconstitutional by the court on the grounds that “men must not be denied their ‘liberty’ to work under unhealthy conditions.” The former president found this reasoning absurd and related that all reformers “know the type of mind (it may be perfectly honest, but is absolutely fossilized) which declines to allow us to work for the betterment” of social conditions. The speech was well received, and its logic would animate progressive rhetoric in the next several election cycles. In progressive circles, “fossilized judges” became common objects of scorn and the motivation behind efforts to implement the recall of judges and their decisions in the elections of 1910, 1912, and beyond.Footnote 18
Over the next two years Roosevelt further developed his position and tested its political viability in the public sphere. His critique of the fossilized judiciary reached its fullest expression in his famous speech before the Ohio Constitutional Convention on February 21, 1912, entitled “A Charter of Democracy.” In it, while ostensibly making recommendations to the delegates at the Columbus convention, he advocated his brand of “pure democracy” while identifying his own beliefs with Lincoln and the Constitution. “I am emphatically a believer in constitutionalism,” he asserted, “and because of this fact I no less emphatically protest against any theory that would make of the Constitution a means of thwarting instead of securing the absolute right of the people to rule themselves.” Roosevelt felt that it was “a false constitutionalism, a false statesmanship, to endeavor by the exercise of a perverted ingenuity to seem to give the people full power and at the same time to trick them out of it.” But, as he had earlier made clear through an article in The Outlook, a New York weekly magazine for which Roosevelt was an associate editor, he took issue not with the “ordinary judicial function as performed by judges in all lands,” but with the “peculiar function of the American judge, the function of no other judge in the world, the function of declaring whether or not the people have the right to make laws for themselves on matters which they deem of vital concern.” Roosevelt's grievance, which he branded “the highest and wisest kind of conservatism,” was with judicial supremacy—the power of judges, not the people, to define the Constitution.Footnote 19
While Roosevelt remains the most famous speaker at the Columbus convention, he was by no means alone. A few weeks later, the old populist prophet and staunch Democrat William Jennings Bryan delivered a speech to the convention entitled “The People's Law.” Bryan echoed many of Roosevelt's concerns, which would have been unimaginable just four years earlier. Though he upheld a “written constitution” as “an American institution” and believed that “its hold upon the people is not likely to be shaken,” Bryan bemoaned the lengths the Federal Constitution took toward “restraining the public will and in compelling a majority to submit to the rule of the minority.” Amendments required an overwhelming majority for ratification and the entire mechanism was geared against change. Accordingly, he endorsed an amendment “making it easier for a majority to change the Constitution.” In the meantime, however, the Commoner hoped that the Ohio delegates would make their own constitution more responsive to the people's will. He urged the implementation of the popular initiative, referendum, and the recall as methods for securing democratic government. In defending the recall, which he regarded as “an evolution rather than a revolution,” Bryan saw no reason to make a distinction between the recall of a standard political official and a judge. In response to concerns that judges might be wrongfully removed, he maintained that “society can better afford to risk such occasional injustice than to put the judge beyond the reach of the people.” In Bryan's America, the law was to submit to the people, not the inverse.Footnote 20
Roosevelt's public criticism of the judiciary troubled orthodox Republicans like President Taft and Senator Elihu Root as early as 1910. Root, who had worked with Taft in Roosevelt's administration and maintained an admiration for the Colonel and his policies, was at first only bothered by Roosevelt's use of “new” in his newly branded “New Nationalism.” Root considered himself and the Republican Party as loyal to a long-standing nationalist tradition reaching back to Alexander Hamilton; what could be wrong with the old faith? Perhaps owing to his friendship, he tried to rationalize Roosevelt's remarks about the court, hoping that the ex-president had “said more than he really meant.” Root did not fault Roosevelt for disagreeing with Supreme Court decisions like Lochner; he felt the same. But he trusted that the Court would work the matter out over time and was uneasy about a figure of authority criticizing it in public. Still, Root wanted “to know whether [Roosevelt] really meant that he would, if he could, deprive the Courts” of the power of judicial review. Root had “always considered that the most valuable contribution of America to political science.”Footnote 21
Taft was less optimistic. He agreed that the Court had made poor rulings at times, but detected that Roosevelt was exploiting a regional “bitterness of feeling against the Federal Courts.” Taft had been a federal judge during the 1890s when populists made frequent attacks against the federal judiciary and had written at length in defense of the bench. When Roosevelt attacked the Court's “power to set aside statutes,” Taft felt that it “was an attack upon our system at the very point where I think it is the strongest” and further suspected that the Colonel “simply spoke the truth as to his own view.”Footnote 22 When Roosevelt commenced his campaign for the Republican nomination in 1912, Taft and his fellow Republicans were disturbed. Longtime Roosevelt allies like Root, and even his lifelong friend, Senator Henry Cabot Lodge, were compelled to disavow the Colonel's new direction. Of the judicial recall, Lodge said that “no graver question has ever confronted the American people.”Footnote 23 The president's brother, Henry W. Taft, believed Roosevelt's candidacy stood alone on “the promise of the great benefits to flow from the Recall of Judicial Decisions,” and deemed it “the most dangerous proposition ever enunciated by a public man since the days of nullification.”Footnote 24
Conservative Republicans were not the only ones outraged. In a withering speech before the South Carolina Bar Association shortly after the start of Roosevelt's 1910 offensive, the Democrat and prominent judge, Alton Brooks Parker, opined that “never before, I think, in the history of civilization has any blind leader of the blind advocated as progressive a return to the chaotic conditions inherent in administration of justice by caprice rather than by the rules of law.” Roosevelt's policies, if carried to their “inevitable conclusion,” would result in the “substitution of popular opinion for legal procedure,” thus making “public sentiment” the final arbiter of justice. Though part of Parker's criticism was partisan (he felt Roosevelt was scapegoating the courts for the plutocratic state of the economy when Republican policy was the real culprit), his central thrust was that demagogues and “would-be usurpers of power,” like Roosevelt, were attempting to delegitimize the court's role in enforcing the Constitution under the nearsighted guise of the “‘needs of the times.’”Footnote 25
Judge Parker's disagreements with Roosevelt on constitutional government were not new. In 1904 he was drafted from his position as chief judge of New York's highest court by conservative Democrats to silence the twice-defeated William Jennings Bryan and challenge the incumbent Roosevelt for the presidency. As a judge, he is notable for having written the state-level decision upholding the Bakeshop Act in Lochner v. New York in 1904 that was reversed by the Supreme Court in 1905.Footnote 26 His 1904 campaign aimed to “save the Constitution” from Roosevelt's perceived effort to break down the separation of powers in favor of executive authority. Parker lost in a landslide and has since all but vanished from the historical record. No treatment of him as ventured beyond 1904.Footnote 27 To his contemporaries in 1912, however, Parker was regarded as a leading conservative Democrat and as a possible presidential contender or Supreme Court nominee. Shortly after his defeat in 1904, he began private practice as an attorney in New York City and was made president of the American Bar Association from 1906 to 1907. Later, he defended the labor leader Samuel Gompers in court and served as president of the National Civic Federation from 1919 until his death in 1926. He was a prominent leader of the conservative faction at both the 1908 and 1912 Democratic National Conventions and bore an active role in campaigning for the party in the elections of 1908 and 1910. Though he would remain a committed Democrat for the rest of his life, Parker's civic preoccupations retained a highly bipartisan character, especially after the events of 1912.Footnote 28
The Meaning of Conservative Progress
By 1907 Judge Parker had found the language he would carry into battle in 1912. “A government of laws, not of men,” he often said in reference to John Adams's words in the 1780 Constitution of Massachusetts, “was the shibboleth of the fathers of this republic.” The Constitution that the “fathers” had given the nation was the culmination of a long tradition that began with “that palladium of English liberty, the Magna Charta” and that prized “a love of the liberty and of the equality before the law.” Their goal was to secure for themselves and their posterity “the full benefit of that vast treasure-house of legal principles and precedents of both common law and equity … principles upon which they erected a system of law that protected alike the rich and the poor … and secured both against official tyranny.” The judiciary was tasked with “preventing violations of constitutional provisions,” and Parker praised Chief Justice John Marshall, “the great expounder of the Constitution,” for his opinion in Marbury v. Madison that granted “firm foundations” to “the supremacy of the law and the people as the source of the law.” For Parker, as it was for Taft and Root, the final authority of judicial review was the Court's greatest power in enforcing constitutional limitations, albeit one that should be used sparingly. The safeguard of judicial restraint was the “ligament which binds civilized beings and civilized nations together.” Parker felt that recent progressive attacks, from Republicans and Democrats alike, endangered this constitutional inheritance—long before Republicans identified Roosevelt as a danger.Footnote 29
Parker spoke out against Roosevelt throughout the 1910 midterm election season. In one speech, he held that Roosevelt desired that “the government of laws should give way to a government of strong men … with the executive as steward of the public's welfare,” stressing the importance of an independent judiciary in precluding tyranny. Parker was a leader of the Democratic campaign in New York that year, presiding as temporary chairman of the Democratic state convention while Roosevelt was the temporary chairman of the Republican convention just two days earlier. Parker went off script to call Roosevelt an “usurper” who, with his “progressive” allies, had suppressed all dissent in his party.Footnote 30 Leading conservative Democrats, like Norman E. Mack, considered Parker a senatorial possibility in 1910 and a presidential one in 1912, feeling “that a man taken from the bench would make a strong candidate” because New York was a conservative state. The platform would emphasize that “this is a government of law” and that “denunciation of the courts and disregard of the Constitution,” as Roosevelt had promoted, “breed disrespect for the law” and weaken “democratic institutions.”Footnote 31
Ultimately, Parker was not selected as a gubernatorial candidate, but he did manage the campaign of the actual nominee, John A. Dix. Parker stumped across the state and, when Democrats stormed into control of the New York legislature and governor's mansion, much of the credit went to the once-failed candidate of 1904.Footnote 32 With the statehouse in Democratic hands, Parker was congratulated on the “magnificent democratic [sic] victory” and widely considered the obvious choice for the state's vacant U.S. Senate seat at a time when senators were selected by state legislatures.Footnote 33 “[Roosevelt's] ‘New Nationalism’ is smashed,” wrote one Georgia Democrat, “you are avenged!”Footnote 34 Parker declined to seek the seat, citing familial concerns, much to the disappointment of his friends and admirers.Footnote 35 One “old-time” friend understood Parker's choice to “voluntarily renounce” the opportunity, but nonetheless wished to see him become a “Senator, Governor, or President,” and observed that “your action is tantamount to a waiver of that leadership in favor of Woodrow Wilson,” who had only gained prominence that year with his “brilliant campaign” for the New Jersey governorship.Footnote 36 Though it seems more likely that Parker was angling for a seat on the Supreme Court, to which at least one of his judge friends hoped President Taft would appoint him, it is important to appreciate that, to many of his Democratic contemporaries, Parker seemed a conservative alternative to the likes of a Bryan or Wilson heading into 1912.Footnote 37
With the existence of prominent conservative factions in both parties during the struggle of 1912 established, it is important to identify two factors beyond opposition to the recall movement that linked conservatives across party lines: philosophical outlook and organizational comity. Each major conservative figure discussed above would not only have described himself as “conservative,” but also as “progressive.” Taft plainly called himself a “progressive conservative.”Footnote 38 More often, such progressive conservatives referred to “constructive progress” or “conservation” and “progress.”Footnote 39 “Progress,” as Senator Lodge noted in one Princeton address, was a vague, abstract word that, while most men agreed that it was a good thing, few men could agree on what it meant.Footnote 40 Conservative Democrats and Republicans alike labored to articulate their own sort of “progress.”Footnote 41
Taft argued from a progressive conservative position throughout the 1912 primary season. Rather than pitting conservation against progress, he believed that “progress” was only real if it conserved what was tested and good in society and built upon it. In addressing the full-blown progressivism that was everywhere ascendant in 1912, Taft attacked those who would “pull down those things which have been regarded as the pillars of the temple of freedom and representative government, and to reconstruct our whole society on some new principle” that lacked any “intelligible forecast of the exact constitutional or statutory results.” Their movement smacked of the French Revolution. “Such extremists,” an incensed Taft charged, “are not progressives—they are political emotionalists or neurotics” who had lost touch with those who “drafted the Constitution.”Footnote 42 Progress, as represented by “pure democracy,” the judicial recall, and the referendum threatened to ignore the lessons of history and to disregard the warnings and concerns of the fathers of the republic. Roosevelt, however, considered himself the true heir to “Lincoln Republicanism” and saw Taft as the descendant of Honest Abe's “cotton whig” opponents.Footnote 43
Throughout 1912, though called a “reactionary” by his enemies and a “conservative” by his friends, Parker proudly called himself “a progressive Democrat.” But, he believed, there was “more than one highway” to progress. He identified Bryan and Roosevelt as progressives who attacked the wisdom and legitimacy of the court. As for himself, Parker believed “in sane progress and in working all the while and all the time in a governmental way for the rights of the people as a whole,” but he believed “in doing it under the Constitution which our fathers gave us, as we shall amend it from time to time.”Footnote 44 When Parker was elected temporary chairman of the 1912 Democratic National Convention, a supporter assured him that “this is the time for safe, sane moderation of thought and speech and conservative action on the part of truly progressive Democrats.”Footnote 45 The ideal statesman of conservatives like Parker was one who was “both constructive and conservative,” a man who knew how to “conserve and maintain the dignity and the authority of the state.”Footnote 46 The progressive conservative felt an abiding loyalty to the work of his forefathers, which was most clearly expressed in the Constitution. Progressive change was possible, but it must build on the work of the “fathers” and remain faithful to first principles. Because of man's innately flawed nature, restraints were needed on popular government: the most important restraint of which was “the supremacy of law” as safeguarded by “its proper ministers—the judges.” Parker consistently emphasized that the rule of law was not to be taken for granted; it was the precious product of human striving from the “Magna Charta” to the “Constitution,” which limited arbitrary and illiberal rule. All new progress must respect limits on what mortal government could do. In Parker's eyes, then, the judicial recall was not progress but a regression to ancient despotism. To enthrall the courts to the people was to unbind Prometheus.Footnote 47
Parker's Republican counterparts like Taft and Root felt much the same. Over the course of several days in January 1912, the New York State Bar Association held its largest annual gathering on record, with at least 1,500 jurists present. Root presided over the affair. Seated beside him at the table of honor in the Grand Ballroom of the Waldorf-Astoria were President Taft and Judge Parker.Footnote 48 Root delivered several speeches. His opening address on “Judicial Decisions and Public Feeling” echoed many of Parker's own views and typified the traditionalist position, but he also expounded on the need for social reform. “The real difficulty,” Root observed, “appears to be that the new conditions incident to the extraordinary industrial development of the last half-century are continuously and progressively demanding the readjustment of the relations between great bodies of men and the establishment of new legal rights and obligations not contemplated when … existing limitations upon the powers of government were prescribed in our Constitution.” He understood that “the old individual independence of life” had given way to remarkable new kinds of social “interdependence.” These conditions required government “intervention.” What made him a progressive conservative, however, was that he felt “such a readjustment must of necessity be a gradual process. It cannot be produced at a single blow from the mind of any one or of any group or interest or class.” Careful, advance-and-consolidate, “step by step” reform to meet new circumstances was desirable.Footnote 49
Conservative Democrats like Parker and conservative Republicans like Root and Taft were not united in sentiment alone. Increasingly for these men in 1912, the most pressing political division was not between Democrat and Republican but between constitutional conservative and constitutional progressive. Responding to progressive agitation, the lawyer-statesmen worked together in several nonpartisan organizations to achieve conservative progress. Two of the most notable organizations were the American Bar Association (ABA), which dwelt on legal and constitutional issues, and the National Civic Federation, which focused on social and labor policy.Footnote 50 Nearly all the leading opponents of the recall movement were lawyers or judges by trade and were members of both their state bar associations and the national ABA.Footnote 51 During the Progressive Era, the Association's chief efforts were channeled against the popular initiative, referendum, and the dreaded judicial recall—ideas that were finding currency among progressives in both parties—but its members also grappled with the competing theories of constitutional interpretation, which placed the Association at the nexus between the academic debates over constitutional law and the political battles for the future of the body politic.Footnote 52
Accordingly, jurist-politicians like Taft, Root, and Parker all participated in the scholarly debate concerning the proper function of American government and the judiciary. Taft taught law and government at Yale in his post-presidency where he castigated “modern sociological jurists” who “shake the foundations of law as I have been trained to know it”; Parker warned that Americans had forgotten lessons learned centuries ago and were overlooking their common law “inheritance” in the Yale Law Journal; Root lectured at Princeton to address the fact that Americans were “denouncing … essential principles embodied in the Federal Constitution of 1787” and that “the wisdom of the founders of the Republic is disputed,” and that “the political ideas which they repudiated are urged for approval.”Footnote 53 Taft might have spoken for them all when he confided in horror that “a man named [Charles] Beard at Columbia,” who championed the referendum, had “attacked the Constitution of the United States in what he calls an Economic Interpretation of the Constitution … by muckraking the fathers.”Footnote 54 Whether from the college lectern or the bully pulpit, it seemed the wave of progressive criticism was unrelenting.
Beginning with a resolution in 1911, the ABA formed the Committee to Oppose Judicial Recall to “expose the fallacy” of the recall movement, which operated for the better part of the ensuing decade. Its chief goals were to conduct a national education campaign and to “direct or assist … the various local campaigns, in different states and their legislatures, in opposition to these measures.”Footnote 55 The new committee was formed alongside a resolution authored by six former presidents of the Association, including Parker, that categorically denounced the recall, with only three of six hundred delegates dissenting.Footnote 56 Though they were on the political back foot, constitutional conservatives in 1912 were far better organized across party lines than were their respective progressive opponents and their logic, if less popular, was more consistent. Therefore, it was with a heightened consciousness of the significance of the approaching conflict, and a keen sense of duty, that the conservatives entered the summer of 1912.
“A Tale of Two Conventions”
After the midsummer national conventions of 1912, the Republican and Democratic Parties would never be the same.Footnote 57 The caucuses of both parties had existed for some time in a state of uneasy tension between conservative and progressive factions. In the Republican Party, factional tension combined with a confidence in victory had historically manifested itself in the sort of progressive conservatism reflected in the Roosevelt and Taft presidencies, while the Democratic Party had seesawed between Bourbons and Bryanites only to be frustrated at the polls time and again. Since the Civil War, the Republicans had viewed themselves as the only legitimate stewards of the country and found unity against an image of the Democratic Party as the “organized incapacity of the country,” as Taft called it.Footnote 58 Now it appeared that Taft and Roosevelt were set on tearing the GOP apart while Democrats salivated over the opportunity.
It should be emphasized, contrary to one long-standing interpretation of the 1912 Republican split as a battle of egos, that at the center of both Taft and Roosevelt's actions were two competing understandings of constitutional government.Footnote 59 Though the disputes of 1912 took place over the future of the world's mightiest democracy, not that of a fledgling and unproven republic, the battle between Roosevelt and Taft (or Bryan and Parker, for that matter) echoed the fight over constitutional ratification in 1788. In essence, Roosevelt expressed the classic Anti-Federalist concern (though toward thoroughly nationalist ends) that under a popular government it is the people, not a few men in robes, who must have the final word on what is constitutional and unconstitutional.Footnote 60 Conversely, men like Taft and Parker believed, as Publius had expounded in Federalist 78, that an independent judiciary must be the final decider in what is and is not constitutional if there is to be constitutionally limited government, and that “the people” could only amend their own fundamental law through the amendment process. Taft believed that if he could save the GOP from Roosevelt it would ensure there remained a voice in defense of the founders’ Constitution in the years to come.Footnote 61
As has been well-documented elsewhere, control of party machinery resulted in a narrow hold over the 1912 Republican National Convention by Taft forces.Footnote 62 Taft's choice for temporary chairman of the convention was Elihu Root. Root, out of a respect for his relationship with Roosevelt, had declined to campaign actively against the Colonel, but agreed in saving the party from the “vital and destructive nature” of Roosevelt's new constitutional views.Footnote 63 In his address, which Taft declared “worthy of a great crisis,” Root characterized the Republican Party as a fundamentally conservative party.Footnote 64 Republicans, he asserted, would “maintain the power and honor of the nation,” but they would “observe those limitations which the constitution sets up.” He warned that well-intentioned lawmakers and executives must be careful not to usurp power, that “there can be no free government in which official power is not limited,” which required “rigorously insisting upon” the observance of constitutional limits.Footnote 65
To spell out his position, Root concluded with a firm rebuke of the recall movement. “The limitations of arbitrary power and the prohibitions of the Bill of Rights which protect liberty and insure justice,” he thundered, “cannot be enforced except through the determinations of an independent and courageous judiciary.” To reinforce his point and finish his speech, Root invoked the wisdom of his ideological forefathers in a series of “we stand with” statements. He quoted Alexander Hamilton in the Federalist: “there is no liberty where the power of judging be not separate from the legislative and executive powers.” He quoted John Marshall from Marbury v. Madison: “to what purpose are powers limited … if these limitations may, at any time, be passed by those intended to be restrained?” And, finally, he quoted the party's father, Abraham Lincoln, from his first inaugural: “a majority held in restraint by constitutional checks and limitations and always changing easily with deliberative changes of popular opinion and sentiment, is the only true sovereign of a free people. Whoever rejects it does of necessity fly to anarchy or despotism.”Footnote 66 His piece spoken, the old man of the party retired to the chairman's seat.
The line was drawn. The Republican Party had been defined as a constitutionally conservative party and Roosevelt's signature campaign issue repudiated. In the following days, Roosevelt would bolt the convention to form his own party and Taft would win the nomination of a rump convention. The GOP was split between those who placed more value in Roosevelt's “New Nationalism” and those who were tied to Taft and Root's old-school constitutionalism. Ironically, the party that had best maintained a policy of “progressive conservatism” since the Civil War was broken into two parties that appeared to represent extreme progressivism and extreme conservatism, which gave the Democratic Party an unprecedented opening.
The Democratic Convention in Baltimore from June 25 to July 2 resulted in an upset of its own. At the start of June 1912, it seemed that moderate and conservative Democrats would carry the nomination with Champ Clark, the Speaker of the House since 1911. By the end of July 1912, the progressive Woodrow Wilson was leading the Democrats into battle under the banner of the “New Freedom.” Several factors conspired to earn Wilson the nomination, among which were his own shrewdness, Democratic nomination rules, and the fact that the Republicans convened before and not after the Democrats did. Regardless of its causes, Wilson's nomination would be transformative for the Democratic Party and, combined with Taft's Republican re-nomination, decisive in shaping the dynamic of the American party system in the twentieth century.
Clark had made an alliance with the conservative Democrats. When time came to select a temporary chairman to deliver the keynote address, the conservatives nominated Alton Brooks Parker. William Jennings Bryan, who was no longer a viable candidate but still held great clout within the party, was outraged. Even though Parker had always bitten his tongue and supported Bryan when he was the nominee, speaking extensively for him in 1908, Bryan now attacked him as the tool of “Wall Street” and “predatory wealth.” “We know who the candidate is as well as the men behind him,” Bryan declared, “he is the man chosen eight years ago when the Democratic party, beaten in two campaigns, decided it was worthwhile to try to win a campaign under the leadership of those who had defeated us in the campaigns before.” Judge Parker was smeared in the papers and at the convention as a “reactionary” and called variously a “liar,” “thief,” and “traitor.” Bryan linked Parker with the same “Wall Street” forces that controlled the Republican convention. One progressive political cartoon, entitled “The National Ventriloquist,” depicted a troglodytic J. P. Morgan controlling two puppets, labeled “Root” and “Parker,” thereby making “the voice of Wall Street speak through two party conventions.”Footnote 67 Bryan challenged the nomination and, when his own nominee, Senator John W. Kern, stepped aside in the interest of party unity, stood himself against Parker. Though Bryan was respected, many delegates, including Kern, thought his personal attacks went too far. Parker managed to best the Commoner in a final tally of 579 to 508, mirroring Root's victory the previous week.Footnote 68
Early in the convention, Wilson sided with Bryan against Parker in hope of marking himself as the truly progressive candidate, though Bryan remained hesitant to bestow his endorsement. Rather than drawing a sharp line as Root had done at Chicago, however, Parker gave a conciliatory and unifying speech, even urging Bryan be elected permanent chairman. He drew attention to the raucous division of the Republican Party. He lambasted the tariff, an issue he had stressed since 1904 and the only one sure to rouse no dissent. But he also echoed Root. Judge Parker spoke of “the fundamental ideas that underlie our society,” and stressed the need to “preserve undiminished the heritage bequeathed us and add to it those accretions without which society would perish.” He prepared his fellow Democrats to “do battle against the unfaithful guardians of our constitution.” Still, unity was the ticket. “There is not a reactionary among us,” he insisted, “all Democrats are Progressives.”Footnote 69 Why would he do anything else? It appeared likely that Clark would win the nomination and, even if someone like Wilson did win, Roosevelt was clearly the gravest threat to constitutional government from Parker's perspective. In contrast to Roosevelt, Wilson had staked out a corner as a reasonable progressive, supporting the initiative and referendum, but holding off on judicial recall.Footnote 70
Wilson, of course (to the surprise of many), did win the nomination.Footnote 71 Now the Democratic Party, which had not won a presidential election since 1892, was led by an ideological progressive against a hopelessly split field of opposition. One political cartoon issued a few weeks after the convention, entitled “And the Waters Were Divided,” depicted Wilson as Moses leading Democrats through a parted sea. The opposite waves were labeled “Republican Split,” and the caption read “the walking is good to the Promised Land.”Footnote 72 Like its biblical inspiration, the cartoon was prophetic.
The Politics of Judicial Supremacy
Few at the time could appreciate the full constitutional implications of Wilson's success. After all, Wilson appeared far less revolutionary than Roosevelt at first glance, which enabled him to claim the middle ground and win an electoral landslide in November 1912. Wilson's thought was quietly revolutionary—he gave old words new meanings. When he swept into government, it was alongside solid majorities in the House and Senate composed largely of Democrats unused to power. In this way, he exercised more authority over his party than any Democrat since Andrew Jackson. Understanding Wilson, then, is essential to understanding what the Democratic Party became after 1912.
Traditional American constitutionalism was founded on three basic precepts: one, that there is an eternal natural law which ascribes to men certain unalienable rights; two, that the role of government is to secure these rights; and, three, that human nature is permanent, deeply flawed, prone to violate the rights of others, and requires constant restraint to preserve a free society. In his distinguished career as a political scientist-made-statesman, Woodrow Wilson rejected each of these tenets. Wilson, like many progressives, was influenced by German historicism. This historical understanding meant that Wilson did not merely believe human institutions evolved and developed over time; rather, he believed that human morality, ethics, and political principles were dictated by their historical epoch and circumstances. Furthermore, historicists thought that history and humanity were headed somewhere—that they were progressing toward some end. This end was doubtlessly harmonious and superior to the ages before.Footnote 73 In short, Wilson disagreed with nearly everything the founders claimed to have believed. He rejected an abstract moral order, at least in the construction of government. Of the Declaration of Independence, he said in a 1911 speech, the “rhetorical introduction” is the least important part; “if you want to understand the real Declaration of Independence, do not repeat the preface.”Footnote 74 He rejected the separation of powers. As early as the 1880s, Wilson decried the “too tight ligaments of a written fundamental law,” and endorsed the “absolute supremacy” of the “representative body.”Footnote 75
Though at the beginning of his career Wilson was content to criticize the limiting and impractical nature of the Constitution, by 1908, just before he entered politics, he had changed his tune markedly. In Constitutional Government, he characterized the Constitution as “a vehicle of life,” or a living document. He linked it to the Magna Carta as a purely “practical” device, devoid of any “theories.” It was free to grow and adapt to new historical circumstances. In a turn that would have horrified traditional conservatives like Parker or Root, Wilson identified the mechanism for constitutional change and adaptation as the courts, which were “the instruments of the nation's growth.” “Each generation of statesmen,” Wilson wrote, “looks to the Supreme Court to supply the interpretation which will serve the needs of the day.” Ironically enough, he identified Root and Parker's hero, Justice Marshall, as the founder of this tradition. Judicial review in Wilson's constitutionalism was a tool by which judges—not the people—could adapt the meaning of the Constitution to meet present needs.Footnote 76
In this key reconstruction of the traditional concept of judicial review, Wilson subtly took the debate over court power far beyond the bounds set by Federalist and Anti-Federalist precedent and must be distinguished from more democratic progressive court critics. Critiques of the court from men like Roosevelt or Bryan were primarily a reaction against the new laissez-faire jurisprudence that was itself a departure from traditional constitutional reasoning. They opposed the increased curtailment of democratic power in the name of the absolute rights of property. On this score, Taft, Root, and Parker all agreed with Bryan and Roosevelt; they merely differed on whether the people should have a direct check against the courts or if the courts should remain independent and amend their jurisprudential errors over time and with studious consideration.
Though the broadly democratic language of the Progressive Era might have shocked a Publius or Brutus, the basic contours of the court power-popular sovereignty debate would have been familiar to them. Brutus, an Anti-Federalist, felt that absolute judicial independence was dangerous, especially combined with an unchallengeable ability to decide what was and was not constitutional. Judges thus empowered would “soon feel themselves independent of heaven itself.”Footnote 77 Brutus believed there needed to be some sort of popular fail-safe against the court, legislative or otherwise. The Hamiltonian Publius defended judicial independence, or “the firmness of the judicial magistracy,” as necessary to ensuring the Constitution, or the people's fundamental law, was obeyed. But his counter to the warning of judicial tyranny was to suggest it was improbable, perhaps impossible, because the judges would be “bound by strict rules and precedents.”Footnote 78 Both constitutional configurations had their respective difficulties; one was theoretically unbound and, thus, unlimited so long as a simple majority endorsed a change, while the other risked the sort of judicial tyranny many progressives thought was being enacted by the Lochner court. One could argue that Roosevelt and Bryan made a conservative case, albeit from a dormant tradition, in favor of making the court answerable to the people.
Wilson was different. Through his withholding support for the judicial recall, Wilson appeared a moderate. In fact, he advocated a judiciary that held all the powers of the Federalist judge but behaved in all the ways feared by Anti-Federalists. Federal judges were to remain supremely independent but were to understand their role as the generational reinterpreters of the Constitution. Not only did this arrangement exclude the possibility of a popular check on the court, the court did not need to be bound philosophically either; it was responsible for reading the Constitution to reflect the spirit of the age. In the short term, Wilson sought most of the same aims as Roosevelt or Bryan in permitting democratic government to do more to meet the “needs of the times,” which makes his significance more difficult to perceive. But, theoretically speaking, his construction removed constitutional interpretation from popular politics and confirmed judicial supremacy. Unbound by a traditional philosophy of restraint and textual precedent, and unthreatened by popular recall, the Wilsonian judge emerges as a sort of progressive philosopher-king. He preserved the authority and outward sanctity of the court but reinvented its purpose and its philosophical self-understanding.
Thus, while conservative attention in 1912 was directed at Roosevelt's colorful campaign, the Democratic Party (and the federal government) came under the control of a man whose progressivism helped remove constitutional debate from the public square. Wilson's endorsement of many progressive proposals and rejection of judicial recall robbed the Progressive Party of much of its broad appeal and left it astride its most controversial plank; the Bull Moose and the judicial recall were felled by the same bullet. Wilson's maneuver ensured that in the new era of constitutional politics, judicial supremacy would be accepted by both progressives and conservatives alike. Conservatives were lulled into a false sense of security and only awoke to the new form of constitutional battle gradually. The new field of debate would be over the personal composition of the bench and tension would lie less between the people and the bench and more between progressive judges and conservative judges.
In the years immediately following the 1912 election, conservatives like Taft, Root, and Parker organized to fight what remained of the judicial recall movement. Taft taught government at Yale, Root delivered speeches and opposed the administration in the Senate, and Parker was active in recruiting new ABA members.Footnote 79 Their efforts, coupled with the collective influence of the ABA, met with success. By October 1914, Taft, as president of the Association, could boast that “there had been a distinct falling off in the support of these fundamentally unwise and dangerous proposals.” He remarked, perhaps with some glee, that while judicial recall “had been the rock on which it [the Progressive Party] was founded,” it now seemed to be “the rock on which it founders.” Chastened by public opinion, the Progressive Party was forced to confine “its appeal to the voters to a declaration against boss rule,” and no longer took up “the divine right of fossilized judges.” Noting that the single state to adopt the recall of judicial decisions was Colorado, Taft wryly observed that “the present condition of that state with reference to governmental authority is not such as to commend those who have formulated its policies in the recent past.”Footnote 80 Roosevelt himself was more fixated on the war in Europe than domestic reform after 1914. Bryan was mothballed in Wilson's cabinet. By 1916, however, it seemed the threat to law and order came draped in the ermine itself. Conservative papers warned of new progressive judges that were calling a judge's ability to declare laws unconstitutional “an ‘usurped’ power.”Footnote 81 The nature of the game was changing, though it would take time and defeat before conservatives realized it.
Though by 1914 it seemed to conservatives that the menace of judicial recall had subsided, they increasingly recognized Wilson and progressive judges as a threat to traditional constitutionalism. In a letter to Root, Taft cheered the Progressive Party's apparent “lapse toward conservatism” while excoriating “Wilson's paternalism and subordination to labor unions.” Taft felt it was imperative that Republicans retake the House in the midterm elections to forestall “any further hysterical projects by Wilson under the academic conception that the Government can do everything and relieve everybody and make everybody happy.”Footnote 82 Nor was this sentiment a merely Republican phenomenon. Parker joined Taft, Root, and other members of the ABA in opposition when, in early 1916, Wilson moved to appoint Louis Brandeis to fill the vacancy left by Justice Joseph R. Lamar on the Supreme Court.Footnote 83 In fact, Parker drew up and attempted to personally deliver a letter signed by the ABA Executive Committee to Woodrow Wilson in January 1916 that urged Wilson to appoint Taft to the vacant seat.Footnote 84 Brandeis, Wilson's friend and famous progressive lawyer-advocate, shared many of Wilson's constitutional beliefs. The fight over his nomination presaged the rapidly approaching nature of constitutional politics to come: a battle over court composition played out in the Senate fueled by outside interest groups.
Though traditional conservatives united in opposition to Wilson's promotion of a progressive constitutionalism through Brandeis's nomination, Wilson was unfazed. Instead, the Democratic Party completely turned against Parker. One Democratic paper called Parker's opposition the strongest “evidence as could be cited in support of the president's nominee,” while another noted that not a single Democrat had come to Parker's defense.Footnote 85 Parker still maintained his support for Wilson as president—Wilson had succeeded in tearing down the tariff and opposed monopoly, after all—but the Judge's brand of conservative constitutionalism was a dead letter in the party he had stood for not twelve years earlier. It was becoming clear that the only viable institutional home for constitutional conservatism was the Republican Party. The Progressive vote failed to materialize in the 1914 House elections and the Republicans made solid gains, which filled the party with optimism for the upcoming presidential contest. But the GOP was still split, and many feared Roosevelt would attempt another run in 1916. If there was to be any successful advocate of the Constitution as traditionally understood, he would have to “bridge the chasm” of 1912 and bring the proponents of the “New Nationalism” back under the same tent as the Taft conservatives. There was only one man who Republicans believed could do this. He was the same man that many had hoped would be the compromise choice in 1912. That man was Supreme Court Associate Justice Charles Evans Hughes.
Hughes first emerged on the national scene when he defeated William Randolph Hearst in the 1906 New York gubernatorial election as a sane, honest reformer. In 1908, he thrilled Republicans across the nation with his Taft campaign speech at Youngstown, Ohio. There he had defined the Republican Party as “the most important political agency for conservation and for progress,” identifying it with “the National cause.” Hughes emphasized the importance of the Supreme Court, “that august body,” and warned that the next president would likely select four new justices (in the event, Taft made five appointments, including Hughes himself). He noted that Taft had been a judge who “commanded the respect and esteem of the entire bar of the country.” In contrast to the Democracy under Bryan, which he characterized as reckless and incompetent, Hughes championed a party of progressive conservatism: a party whose “progress” avoided “false steps” and was “clear-eyed, calm, patient, and steadfast.” He was a progressive reformer, but, as a conservative, he understood that “we cannot change human nature or bring about a state of society … which does not reflect its failings.”Footnote 86 The address was so successful that it was still used as campaign literature in 1916. Since 1910 he had been safely ensconced on the supreme bench, from where he had avoided all the controversy of 1912.
There was a thoroughgoing Hughes boom among Republicans by the spring of 1916.Footnote 87 He was Taft's pick for the nomination. In April, the former president sent Hughes two sprawling letters encouraging him to accept should the party draft him. Taft asserted that the country's “great need” was for the “restoration of the Republican party to power” so that it could resume “constructive work” and that Hughes was the only man who appealed to both “Republicans and Progressives in their hearts.” Taft admired Hughes for dismissing efforts to draft him, but said that his nomination, barring a flat rejection, was inevitable. Because of his conduct, the Court would be spared any politicization. In concluding his first letter, Taft told the Justice that, should he accept, “you will certainly be elected” and that “you will reunite the only party from which constructive progress can be expected.”Footnote 88 Though Taft worried on account of the Brandeis nomination that Hughes's replacement would not “strengthen the Bench,” he felt leaving Wilson in office could free him to appoint other judges “of the Pennsylvania Law School, supporters of the recall of judicial decisions.” Hughes was the man to restore sound, conservative leadership.Footnote 89 For his part, Parker felt that it would be Hughes’ “duty to accept” should he be nominated.Footnote 90 In the emerging constitutional politics of judicial supremacy, control over the court's composition was imperative. The ironic situation of the conservatives who sought to preserve judicial independence from politics during the Progressive Era is that from 1904 to 1916, they consistently turned to judges for presidential candidates: to save the bench, they ran from it.
Hughes won the 1916 Republican nomination without serious contest and secured Col. Roosevelt's grudging endorsement. In his telegram of acceptance, Hughes promised “a dominant, thorough-going Americanism,” while in his speech of acceptance the next month, he declared that “the party of Lincoln is restored.” He meant for the Republican Party to be “the organ of the effective expression of dominant Americanism.” His precise policy goals were vague and wrapped in the language of flag and country, except for his emphatic and pointed endorsement of “the protective principle.” He summed up his position in the phrase “America first and America efficient,” which would later be expressed as “undiluted Americanism.”Footnote 91 Hughes was attempting to weld together the values of Roosevelt nationalist-progressives with Taft conservatives. Conversely, the Democratic Party, for the first time in its history, did not include the word “Constitution” in its platform. Hughes, however, was not a good campaigner. Perhaps his time on the bench had dulled his stumping abilities. He failed to develop far beyond the themes of his initial speeches. Flanking Wilson's popular neutrality stance on the Great War was difficult, especially when Roosevelt's pro-Hughes speeches led many to think a Republican victory would mean war. But he did manage to reunite the party on a conservative-progressive basis that endorsed a traditional constitutionalism. This effort included a Roosevelt-Taft handshake dinner in October that helped to put 1912 in the past.Footnote 92 In the end, Wilson eked out a close victory.
Despite this immediate conservative electoral failure, the new pattern of constitutional politics had begun. The Republican Party was reconsolidating as an increasingly constitutional conservative force, while the Democratic Party was tilting in the progressive direction. Of course, conservatives and progressives remained in both parties, but the dominant trends were clear.Footnote 93 The reunited and constitutionally conservative Republican Party built under Hughes, combined with the postwar collapse of Wilson's popularity, would propel Republicans to a decade of victory in which the GOP stacked the Supreme Court with traditionalist judges. Fittingly, both Taft and Hughes, one after the other, would be appointed Chief Justice of the Supreme Court by the succeeding Republican administrations. They would oversee the planning and construction of the marble “Temple of Justice” where the Court resides today. The next serious constitutional clash would come in the late 1930s during Franklin Roosevelt's fight with the Supreme Court, in which debate centered not around court accountability but court composition. Conservatives won judicial supremacy, but the victory was pyrrhic, perhaps even fatal. Constitutional interpretation could be de-popularized, but it could not be de-politicized. Future fights over the Constitution's meaning would no longer take place in the public square; instead they would be fought from atop the bench.
