"Administration of Justice Is Archaic"-The Rise of Modern Court Administration: Assessing Roscoe Pound' s Court Administration Prescriptions (original) (raw)
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American constitutional politics reached a crisis point during the Progressive Era. At the center of the crisis was the question as to what the Constitution meant and who had the final word in interpreting it: The Supreme Court or the People of the United States. That fundamental question came to a head in the presidential election of 1912. The result of that contest was the confirmation of judicial supremacy in constitutional interpretation and a mortal blow the nation's traditional popular constitutional politics. The ensuring consensus of judicial supremacy has defined the nation's constitutional politics since, which has resulted in the meaning of the Constitution being determined by battles over judicial appointments and the individual wills of the nation's judges. This study examines the causes that led to the crisis in constitutional politics, the chief players and their views on American constitutionalism at the height of the Progressive Era, and the dawn of the era of judicial supremacy that is still regnant. The result is a history that pits the advocates of a popular Constitution, men like Theodore Roosevelt and William Jennings Bryan, against the advocates of a judge-defined Constitution, men as diverse in temperament as William Howard Taft and Woodrow Wilson. Special attention is paid to the traditionalist advocates of an independent judiciary who prevailed in the short term by securing judicial supremacy but whose success was ultimately doomed by the Wilsonian-progressive vision of an active and supreme high court. In short, this study offers a revision of the traditional narrative of Progressive Era politics and presents the unexpected discovery of "The Strange Death of American Democracy." 2 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. 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. 7 Cultural elites thought in conservative terms. Prudent conservatism was preached in the leading newspapers and journals, from the Times to Harper's or The Nation. This broad conservatism contained many separate traditions, which varied by geography and party, but there was general agreement on the virtue of government under the Constitution. Law and order were sacred. Anarchy was the bugbear. But this agreement depended upon ambiguity. By century's end large cracks emerged in this conservative consensus. People were asking questions. First populists in the West and South, labor in the cities, 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. The law and Constitution established to make the American people free now seemed to imprison them. 8
Hertz or Avis? Progressives' Quest to Reclaim the Constitution and the Courts
Social Science Research Network, 2011
detailing reports produced by Reagan's Justice Department specifying existing Supreme Court precedents considered by the authors to have been wrongly decided, and outlining the direction of corrective decisions). On May 11, 2001, in an unprecedented move to highlight his political investment in judicial nominations, President Bush introduced his first eleven appellate nominees to the media as a group in person. Neil A. Lewis, Bush to 1203 20111 OHIO STATE LA WJOURNAL Third, the composition of the federal judiciary has a pronounced right-ofcenter tilt, which is likely to persist for the foreseeable future. Even if President Obama wins a second term, the chances appear better than even that all five members of the current Republican majority will be on the Court when his successor takes office in January 2017. During his first two years in office, with a 60-40 Democratic majority in the Senate, Obama was able to moderate the substantial Republican imbalance at the federal appellate level left by President George W. Bush. In January 2009, nine of the thirteen circuits had Republican majorities, two were even, and two (the Second and Ninth) had Democratic majorities. Two and one-half years later, Democrats held majorities on three additional circuits (the Third, Fourth, and Federal) and the circuits on which Republicans outnumbered Democrats had shrunk from nine to seven. 4 But of course, going forward, Obama has a much slimmer Democratic Senate majority in the current Congress. In 2012, the chances appear better than even that Republicans will win the Senate. In sum, any progressive agenda aimed at achieving actual outcomes in the federal judiciary will have to (a) focus significantly on preserving established principles and precedents essential for important progressive priorities, and (b) attempt, where possible, to frame issues in terms that resonate with some members of the conservative majorities on the judiciary, and especially, of course, on the Supreme Court. Fourth, in the last year, conservatives have, at least for the moment, shifted sharply rightward the thrust of their constitutional agenda and intensified the aggressiveness with which they are pursuing it. They are no longer attacking only, or mainly, the Warren Court, and incanting that "activist" justices will create new "rights" important mainly to minorities or liberal "elites." The health reform challenges take dead aim at the New Deal/Carolene Products footnote four regime of judicial deference to legislatures on economic and social regulation. 5 Mirroring the Tea Party insurrection within Republican political ranks, libertarian legal theorists and advocates, who had been marginalized for over a quarter century, have seized control of the conservative and Republican constitutional agendas. Leading Republican politicians are emphasizing the need for courts that will check "government overreach" (code for alleged
Toward a Revisionist History of the Supreme Court
Cleveland State Law Review, 1988
I. INTRODUCTION T he bicentennial year provoked a reconsideration of not only the era of the framing but of constitutional history as a whole. 1 At one point I thought that I might participate in that effort by writing a history of the Supreme Court, updating Robert McCloskey's classic book in light of recent scholarship. 2 It turned out that that project was too daunting for me. There was too much material to assimilate before I could feel comfortable in trying to present or even develop a history of the Supreme Court. This essay is, therefore, only a sketch of a revisionist history of the Supreme Court. It is extremely abstract, eliminates a lot of detail and
THE STORM BETWEEN THE QUIET: TUMULT IN THE TEXAS SUPREME COURT, 1911-21
The Texas Supreme Court from 1911–1921 is best known not for the law it made or the opinions it wrote, but for its failure to decide cases. Although the supreme court’s difficulty in clearing its docket existed before 1911, the number of outstanding cases exploded during the second decade of the twentieth century. Arguably, the issue of statewide prohibition and the divergent views held on that issue by members of the Texas Supreme Court was the driving force behind the disharmony and dysfunctionality of the court during this decade. Statewide prohibition explains why elections of candidates to the court were so fiercely contested, explains how the court’s membership was shaped, and suggests why the court was unable to properly perform its work. The internal divisions of the court, exemplified by the inability of the members to work together to reduce the court’s docket, and by their differences in legal thought, contributed substantially to the view that the Texas appellate judicial system was broken. The eventual result of this tumultuous period of the Texas Supreme Court was the legislature’s creation of the Committee of Judges in 1917 and the Commission of Appeals in 1918 in an attempt to reduce the multi-year backlog of cases. That Commission, designed to exist for just two years, remained in existence until the expansion of the membership of the Texas Supreme Court from three to nine in 1945.