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Bench over Ballot: The Fight for Judicial Supremacy and the New Constitutional Politics, 1910–1916

Published online by Cambridge University Press:  03 August 2020

Logan Stagg Istre*
Louisiana State University
*Corresponding author. E-mail:


The nature of American constitutional politics was forever changed during the Progressive Era. In the nineteenth century, the process of constitutional interpretation was a vague and decentralized enterprise balanced between the courts and the public square. The meaning of the Constitution was decided as much at the polls or on the battlefield as in court opinions. This balance started to give way at the turn of the century as federal courts began asserting greater authority in the definition of constitutional bounds. “Bench over Ballot” illustrates how the assertion of judicial supremacy in the Progressive Era precipitated a fight that upended the traditional dynamic of American politics. Populist-progressives championed the people's ultimate right to correct judicial decisions while traditionalist-conservatives stood for judicial supremacy to ensure a “government of laws.” The outcome of the political battle in 1912 was a consensus between Wilsonian progressives and Taftian conservatives in favor of judicial supremacy that banished the notion of popular supremacy and transformed the nature of constitutional politics from a popular, decentralized process to a vicious battle over the personal composition of the bench—a phenomenon deeply familiar over a century later.

© The Author(s), 2020. Published by Cambridge University Press on behalf of the Society for Historians of the Gilded Age and Progressive Era (SHGAPE)

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1 Mark Hanna famously referred to Roosevelt as “that damned cowboy” in remarking of the latter's succession to the presidency.

2 For the Progressive agenda, see Progressive Party Platform, 1912; Roosevelt's full quotation, referring to constitutional limitations as enforced by the present judiciary, reads, “We cannot permanently go on dancing in fetters.” Theodore Roosevelt to Herbert Croly, Feb. 29, 1912, found in Stagner, Stephen, “The Recall of Judicial Decisions and the Due Process Debate,” The American Journal of Legal History 24:3 (July 1980): 257CrossRefGoogle Scholar.

3 Woodrow Wilson, “Chapter I: The Old Order Changeth” in The New Freedom, 1913.

4 The Socialist Party's Platform, 1912.

5 Republican National Platform, 1912.

6 For a study of the “language of conservatism” in the mid-nineteenth century, see Smith, Adam I.P., The Stormy Present: Conservatism and the Problem of Slavery in Northern Politics, 1846–1865 (Chapel Hill: University of North Carolina Press, 2017)CrossRefGoogle Scholar.

7 Words like “safe,” “sane,” “moderation,” and “conservative” were invoked throughout the turn of the century to appeal to conservative candidates. For a few examples, see C. Vey Holman to Alton B. Parker, June 26, 1912, Alton B. Parker Papers, box 3, Library of Congress Manuscript Division; or the Udo Keppler cartoon, “Landed,” from Puck, July 27, 1904, Library of Congress, Prints and Photographs division.

8 Root, Elihu, “The Lawyer of Today,” Addresses on Government and Citizenship (Cambridge, MA: Harvard University Press, 1916), 506Google Scholar.

9 Inaugural Address of James A. Garfield, Mar. 4, 1881; for a recent interpretation of the long Civil War as a process of extrajudicial constitutional redefinition, see Gregory Downs, P., The Second American Revolution: The Civil War-Era Struggle over Cuba and the Rebirth of the American Republic (Chapel Hill: University of North Carolina Press, 2019)CrossRefGoogle Scholar.

10 For an articulation of the popular nature of constitutional politics in the Gilded Age, see Benedict, Michael Les, “Constitutional Politics in the Gilded Age,” The Journal of the Gilded Age and Progressive Era 9:1 (Jan. 2010): 735 CrossRefGoogle Scholar.

11 See Brutus XI, Jan. 31, 1788, as found in The Anti-Federalist: Writings by the Opponents of the Constitution, ed. Herbert J. Storing, selected by Dry, Murray from The Complete Anti-Federalist (Chicago: University of Chicago Press, 1985), 162–67CrossRefGoogle Scholar.

12 For a sample of the work on conservative Republicans, see O'Neill, Johnathan, “The Idea of Constitutional Conservatism in the Early Twentieth Century,” Constitutionalism in the Approach and Aftermath of the Civil War (New York: Fordham University Press, 2013)Google Scholar; Schambra, William, “The Election of 1912 and the Origins of Constitutional Conservatism” in Toward an American Conservatism: Constitutional Conservatism during the Progressive Era, eds. Postell, Joseph and O'Neill, Johnathan (New York: Palgrave Macmillan, 2013), 95120 CrossRefGoogle Scholar; Sidney M. Milkis, “William Howard Taft and the Struggle for the Soul of the Constitution” in Toward an American Conservatism, 63–94.

13 Belief in an essential human nature and the existence of natural law are commonly accepted as fundamental to the conservative disposition; see Russell Kirk, “Chapter I: The Idea of Conservatism” in The Conservative Mind: From Burke to Santayana (1953); Rossiter, Clinton, “Chapter II: The Conservative Tradition, or Down the Road from Burke to Kirk” in Conservatism in America: The Thankless Persuasion, 2nd ed. (New York: Random House, 1962)Google Scholar; Harbour, William R., The Foundations of Conservative Thought: An Anglo-American Tradition in Perspective (Notre Dame, IN: University of Notre Dame Press, 1982)Google Scholar.

14 For a concise explanation of the progressive mindset, see Pestritto, Ronald J., “Introduction,” Woodrow Wilson and the Roots of Modern Liberalism (Lanham, MD: Rowman & Littlefield, 2005)Google Scholar.

15 Wolfe, Christopher, The Rise of Modern Judicial Review: From Constitutional Interpretation to Judge-Made Law (Lanham, MD: Rowman & Littlefield, 1994), 15 Google Scholar.

16 Stoner, James R., “Natural Law, Common Law, and the Constitution” in Common Law Theory, ed. Edlin, Douglas E. (Cambridge: Cambridge University Press, 2007)Google Scholar.

17 Wolfe, Rise of Modern Judicial Review, 4–7; for the classic treatment of the two conservative schools of thought, see Paul, Arnold M., Conservative Crisis and the Rule of Law: Attitudes of Bar and Bench, 1887–1895 (Ithaca, NY: Cornell University Press, 1960)Google Scholar; for a progressive take on the jurisprudential conflicts at the turn of the century, see Purcell, Edward A. Jr., “Chapter I: The Premise of an Age: Law, Politics, and the Federal Courts, 1877–1937” in Brandeis and the Progressive Constitution: Erie, the Judicial Power, and the Federal Courts in Twentieth-Century America (New Haven, CT: Yale University Press, 2000), 1138 Google Scholar.

18 “Denver Shouts Wild Welcome for Roosevelt,” Los Angeles Herald, Aug. 30, 1910; “The Law's Delays,” The Outlook 100:1 (Jan. 6, 1912): 13–15; Lochner v. New York, 198 U.S. 45 (1905).

19 Theodore Roosevelt, “A Charter of Democracy,” delivered at Columbus, Ohio, Feb. 21, 1912; and Roosevelt, Theodore, “Judges and Progress,” The Outlook 100:1 (Jan. 6, 1912): 4048 Google Scholar. In a March speech titled “The Right of the People to Rule,” Roosevelt criticized warnings of “tyranny of the majority” and decried judicial overemphasis of property rights; see Roosevelt, “The Right of the People to Rule,” The Outlook 100:12 (Mar. 23, 1912): 618–26.

20 Bryan, William Jennings, The People's Law, as delivered on Mar. 12, 1912 (New York: Funk & Wagnalls Company, 1914), 6–8, 19–25, 55Google Scholar.

21 Elihu Root to William Howard Taft, Oct. 14, 1910, Elihu Root Papers, Library of Congress, Manuscript Division.

22 William Howard Taft to Elihu Root, Oct. 15, 1910, Root Papers; Taft, William Howard, “Recent Criticism of the Federal Judiciary,” The American Law Register and Review 43:9 (Sept. 1895): 576610 CrossRefGoogle Scholar.

23 Springville Journal (New York), Mar. 21, 1912.

24 Henry W. Taft to William H. Taft, May 8, 1912, Taft Papers.

25 “Flays Teddy,” The Manning Times (South Carolina), Jan. 31, 1912.

26 He would later defend himself against charges of reaction with his decision; see Speech at the New York State Democratic Convention as Permanent Chairman, Saratoga, NY, Oct. 2, 1912, Parker Papers, box 13.

27 The lengthiest scholarly treatment of Parker, a master's thesis from 1983, sought to explain why he was forgotten. Though it made much of his obscurity, it restrained its coverage to his 1904 candidacy and re-created the progressive image of a man out of step with his times; see Fred C. Shoemaker, “Alton B. Parker: The Images of a Gilded Age Statesman in an Era of Progressive Politics,” MA thesis, The Ohio State University, June 10, 1983; the most recent study of Parker occurred in a law journal and dwelt on the novelty of his candidacy, his obscurity, and the significance of his court decisions; see Southwick, Leslie, “A Judge Runs for President: Alton Parker's Road to Oblivion,” Green Bag 5 (2001–2): 3750 Google Scholar.

28 O'Brien, Morgan J., “Alton Brooks Parker,” American Bar Association Journal 12:7 (July 1926): 453–55Google Scholar; Mandelbaum, Robert M., “Alton Brooks Parker,” The Judges of the New York Court of Appeals: A Biographical History (New York: Fordham University Press, 2007)Google Scholar.

29 Alton B. Parker, responding to the toast, “The Importance of the Judiciary in Our System of Government,” at a dinner of the New Jersey Bar Association, Jan. 19, 1907, Parker Papers, box 12.

30 The Vinita Daily Chieftain (Oklahoma), Oct. 28, 1910.

31 Democrat and Chronicle (Rochester, NY), Sept. 30, 1910.

32 The Democratic State Committee had Parker open the campaign and then placed him on a busy speaking tour; see Chairman of Democratic Speakers’ Bureau to Alton B. Parker, Oct. 12, 1910, Parker Papers, box 3.

33 T.E. Gibbons to Alton B. Parker, Nov. 10, 1910, Parker Papers, box 3.

34 James Galloway to Alton B. Parker, Nov. 9, 1910, Parker Papers, box 3.

35 Norman E. Mack to Alton B. Parker, Nov. 12, 1910, Parker Papers, box 3.

36 William Vanamee to Alton B. Parker, Nov. 22, 1910, Parker Papers, box 3; in 1910 Wilson was still viewed as somewhat conservative, though he was rapidly becoming more progressive.

37 Judge Charles B. Howry to Alton B. Parker, Nov. 14, 1910, Parker Papers, box 3; there was a boom among New York Democrats in early 1912 to nominate Parker for the presidency; see The Buffalo Commercial (New York), Jan. 19, 1912.

38 Lurie, Jonathan, William Howard Taft: The Travails of a Progressive Conservative (Cambridge: Cambridge University Press, 2012), ixGoogle Scholar; for a more obscure yet important study, see Barbara C. Steidle, “Conservative Progressives: A Study of the Attitudes and Role of Bar and Bench, 1905–1912,” PhD dissertation, Rutgers University, 1969.

39 For a prime example of progressive conservative rhetoric, see Hughes, Charles Evans, “Address Delivered at Youngstown Ohio, September 5, 1908,” Addresses of Charles Evans Hughes, 1906–1916, 2nd ed. (New York: G.P. Putnam's Sons, 1916), 299330 Google Scholar.

40 Lodge, “The Compulsory Initiative, Referendum, and Recall of Judges.”

41 For a concise articulation of the values of Republican conservatives at the time, see Wilensky, Norman M., “Conservatives in the Progressive Era: The Taft Republicans of 1912,” University of Florida Monographs: Social Sciences 25 (Winter 1965)Google Scholar.

42 Pringle, Henry F., The Life and Times of William Howard Taft, Vol. II (New York, 1939), 765–66Google Scholar.

43 Theodore Roosevelt to Augustus Everett Wilson, Feb. 14, 1912, as found in The Letters of Theodore Roosevelt, ed. Morison, Elting E., Vol. II (Cambridge, MA: Harvard University Press, 1954), 503–4Google Scholar.

44 Alton B. Parker, “Speech of Hon. Alton B. Parker as Permanent Chairman of the Convention,” delivered at the Democratic State Convention, Syracuse, NY, Oct. 2, 1912, Parker Papers, box 13.

45 C. Vey Holman to Alton B. Parker, June 26, 1912, Parker Papers, box 3.

46 Alton B. Parker, “Address of Notification to Hon. Lewis Stuyvesant Chanler,” delivered Oct. 1, 1908, Parker Papers, box 13.

47 Alton B. Parker, “Annual Address before the South Carolina Bar Association,” delivered Jan. 25, 1912, Columbia, SC, Parker Papers, Box 13.

48 New York Tribune, Jan. 21, 1912, 1, 6; Elihu Root, “The Independent Bar,” delivered Jan. 20, 1912, Addresses on Government and Citizenship (1916), 463.

49 Elihu Root, “Judicial Decisions and Public Feeling,” delivered Jan. 19, 1912, Addresses on Government and Citizenship (1916), 445–49.

50 Another nonpartisan, though more scholarly, organization was the National Association for Constitutional Government; see O'Neill, Johnathan, “Constitutional Maintenance and Religious Sensibility in the 1920s: Rethinking the Constitutionalist Response to Progressivism,” Journal of Church and State 51:1 (2009): 2451 CrossRefGoogle Scholar.

51 Ross, William G., “The Judicial Recall Movement” in A Muted Fury: Populists, Progressives, and Labor Unions Confront the Courts, 1890–1937 (Princeton, NJ: Princeton University Press, 1994), 124–25CrossRefGoogle Scholar.

52 Brockman, Norbert C., “The History of the American Bar Association: A Bibliographic Essay,” The American Journal of Legal History 6:3 (July 1962): 270–73CrossRefGoogle Scholar.

53 William Howard Taft to Elihu Root, May 1, 1913, Root Papers; Parker, Alton B., “The Common Law Jurisdiction of the Courts,” The Yale Law Journal 17:1 (Nov. 1907): 120 CrossRefGoogle Scholar; Elihu Root, “Preface to the Stafford Little Lectures at Princeton University,” delivered Apr. 15 and 16, 1913, Addresses on Government and Citizenship (1916), 78.

54 Taft was referring to Charles Beard and An Economic Interpretation of the United States (1913); see William Howard Taft to Elihu Root, May 5, 1913, Root Papers; Taft and Root studied each other's lectures and Taft's colorful commentary on current events is a joy to read.

55 Report of the Committee to Oppose the Judicial Recall, presented to the American Bar Association at Montreal, Canada, Sept. 1–3, 1913, 1–3.

56 Steidle, “Conservative Progressives,” 342, as found in Ross, A Muted Fury, 124–25.

57 Lewis L. Gould has done a fine job displaying the pivotal nature of the elections of 1912 and 1916 throughout his several books that cover the period, but has not generally dwelt upon the significance of the fight over the judiciary; see Gould, , Four Hats in the Ring: The 1912 Election and the Birth of Modern American Politics (Lawrence: University Press of Kansas, 2008)Google Scholar; Gould, , The First Clash over Federal Power: Wilson versus Hughes in the Presidential Election of 1916 (Lawrence: University Press of Kansas, 2016)Google Scholar.

58 William H. Taft to Charles Evans Hughes, Apr. 11, 1912, Charles Evans Hughes Papers, Library of Congress, Manuscript Division; Republicans had long associated Democrats with ineptitude, criminality, disunion, and “the dead past”; see Gould, Lewis L., The Republicans: A History of the Grand Old Party (Oxford: Oxford University Press, 2014), 68, 144–45CrossRefGoogle Scholar; for a detailed account of the Republican reign from 1897 to 1913, see Merrill, Horace Samuel and Merrill, Mario Galbraith, The Republican Command, 1897–1913 (Lexington: University Press of Kentucky, 1971)Google Scholar.

59 For an excellent account of the ideological nature of the Republican split, see Murphy, Gary, “‘Mr. Roosevelt Is Guilty’: Theodore Roosevelt and the Crusade for Constitutionalism, 1910–1912,” Journal of American Studies 36:3, Part 1 (Dec. 2002): 441–57CrossRefGoogle Scholar.

60 See Brutus XI, Jan. 31, 1788.

61 William H. Taft to William Worthington, May 29, 1812, Taft Papers, as found in Murphy, “‘Mr. Roosevelt is Guilty,’” 455.

62 Wilensky, “Conservatives in the Progressive Era,” 12–38. Wilensky observes that Roosevelt and Taft men had similar socioeconomic statuses, but were divided by age, with Taft men usually being older; Gould, Four Hats in the Ring, 45–48, 64–69, 72–73. Gould draws well-deserved attention to the critical role La Follette played in frustrating a Roosevelt nomination

63 Elihu Root to William H. Taft, May 15, 1912, Root Papers.

64 William H. Taft to Elihu Root, Jun. 19, 1912, Root Papers.

65 Official Report of the Proceedings of the Fifteenth Republican National Convention (New York: Tenny Press, 1912), 97–98 .

66 Official Report of the Proceedings of the Fifteenth Republican National Convention, 97–98.

67 The Tacoma Times (Washington), June 25, 1912; the cartoon can also be seen in The Detroit Times, June 26, 1912; Bryan attended both conventions and did much to link the perceived Wall Street influence in both. As for the Democratic convention, he only saw delegates as progressives or reactionaries and mocked Parker's keynote address as being written in Wall Street language unintelligible to the common Democrat; see Bryan, William Jennings, A Tale of Two Conventions, ed. McNitt, Virgil V. (New York: Funk & Wagnalls Company, 1912)Google Scholar.

68 “Bryan, Repulsed, to Open Bitter Fight in Democratic Convention Today,” New York Times, June 25, 1912; Arthur S. Link, “The Baltimore Convention of 1912,” The American Historical Review L:4 (July, 1945): 693–96; Official Report of the Proceedings of the Democratic National Convention (Chicago: Peterson Linotyping Co., 1912), 3–19.

69 Official Report of the Proceedings of the Democratic National Convention, 20–29.

70 Gould, Four Hats in the Ring, 80.

71 For an account of the protracted horse trading that went into that victory, see Link, The Baltimore Convention of 1912, 697–710.

72 Udo Keppler, “And the Waters Were Divided,” Puck, Jul. 31, 1912, Library of Congress, Prints and Photographs Division.

73 Pestritto, Donald J., Woodrow Wilson and the Roots of Modern Liberalism (Lanham, MD: Rowman & Littlefield, 2005), 124 Google Scholar.

74 Woodrow Wilson, “An Address to the Jefferson Club in Los Angeles,” May 12, 1911, as found in Pestritto, Woodrow Wilson, 6.

75 Wilson, Woodrow, Congressional Government: A Study in American Politics (1885; Boston: Houghton Mifflin Co., 1913), 311Google Scholar.

76 Wolfe, Christopher, “Woodrow Wilson: Interpreting the Constitution,” The Review of Politics 41:1 (Jan. 1979): 121–42CrossRefGoogle Scholar.

77 Brutus XV, Mar. 20, 1788, as found in The Anti-Federalist, 183.

78 Federalist 78.

79 Brooklyn Daily Eagle, Jan. 4, 1914; Elihu Root, “The Layman's Criticism of the Lawyer,” Addresses on Government (1916), 479–97; Alton B. Parker, “Address Before the Ohio State Bar Association,” delivered July 9, 1913, at Cedar Point, OH, Parker Papers; for examples of Parker's efforts to recruit ABA members, see his correspondence for 1913, Parker Papers, box 3.

80 “Annual Address of President Wm. H. Taft of the American Bar Association,” delivered in Washington, DC, Oct. 20, 1914, as found in Harvey S. Hoshour and Arthur O. Lee, Vote “No (X)” on the Proposal (No. 10): First Prize Arguments by Students of Minnesota Law Schools and High Schools Against Recall of Judges (1914), 21.

81 The Oshkosh Northwestern (Wisconsin), Aug. 3, 1916, 4.

82 William H. Taft to Elihu Root, Sept. 2, 1914, Root Papers.

83 The Buffalo Commercial (New York), Mar. 14, 1916.

84 Copy of letter to Woodrow Wilson, Jan. 11, 1916, Parker Papers, box 4.

85 The Kingston Daily Freeman (New York), Mar. 24, 1916, 4.

86 Hughes, Charles E., “Address Delivered at Youngstown, Ohio, September 5, 1908,” Addresses of Charles Evans Hughes, 1906–1916, 2nd ed. (New York: G.P. Putnam's Sons, 1916), 299330 Google Scholar.

87 For the most recent book on the Election of 1916 (the first in about four decades); see Gould, Lewis L., The First Modern Clash over Federal Power: Wilson versus Hughes in the Presidential Election of 1916 (Lawrence: University of Kansas Press, 2016)Google Scholar.

88 William H. Taft to Charles E. Hughes, Apr. 11, 1916, Hughes Papers.

89 William H. Taft to Charles E. Hughes, Apr. 13, 1916, Hughes Papers.

90 The Buffalo Commercial (New York), May 3, 1916, 7.

91 Charles E. Hughes, “Telegram of Acceptance” in Republican Campaign Text-Book, 1916, 30; Hughes, “Speech of Acceptance at Carnegie Hall, New York, July 31, 1916,” Republican Campaign Text-Book, 1916, 3–15; The Morning Post (New Jersey), June 14, 1916.

92 Gould, The First Modern Clash over Federal Power, 90–95.

93 William Borah (Rep.) and John W. Davis (Dem.) made fine representatives of the declining traditions in both their parties.