Muted Fury: Populists, Progressives, and Labor Unions Confront the Courts, 1890-1937.

Muted Fury, William Ross's new account of insurgent critiques of the courts, adds to the growing literature which tries to connect larger structures to the lives of ordinary Americans, shedding new light on how judicial power operates in America. In recent years, state-centered theorists and critical legal scholars have given the social historian much to ponder about the relationship among the state, legal process, political power and the citizen. The state, as a historical subject, is now firmly on the agenda of social historians and like it or not, we must learn how to study it properly.(1) Ross's account offers us a glimpse of the opportunities - lost and found - of this important arena.

William Ross, associate professor of law at the Cumberland School of Law at Samford University, is a careful student of the judicial reform efforts of the 1890s through the courts' acceptance of the New Deal - and the courts' reorganization - in 1937. His work represents a much needed interdisciplinary exploration. In those nearly fifty years our legal system was vastly transformed. During these years our nation witnessed loud protests and strong reforms. Yet, as Ross reminds us, the courts sadly lagged behind. As our nation attempted to reform its economic system, the courts, holding on to a nineteenth-century lassez faire attitude, often stood in the way. To many, the courts were the enemy. For western farmers, labor unions, immigrant workers and progressive reformers the courts were obstacles. Judge-made law favored money "interests" over the people. Ross's intriguing work sheds light on the legal aspects of this struggle. The central question that Ross asks is why after forty-seven years of protracted assaults did the court system remain so resilient? Why where these three major reform impulses unable to dramatically transform the courts or judicial review?

The answers are as complex as the questions. The fury of populists, progressives and labor unions, he argues, was muted by a number of factors. Ross gives us six reasons why these challenges to the court did not hold: public respect for the courts; institutional obstacles; internal movement disputes and a lack of a clear unified directive; the availability of moderate plans to counter more radical ones; the prevalent belief that the courts could some day be an ally; and the flexibility of the courts - reform swings in state and federal courts. Taken together these forces muted the fury of the reform movements.

What was the root of this massive discord? Ross believes it was the courts' strict interpretation of due process at a time when our nation was moving toward a more realist legal framework. Between 1880 and 1900 state courts invalidated almost five dozen labornsocial welfare laws. Many of these hard-fought-for laws were aimed at rounding off some of the rough edges of modern capitalist society. And many had broad support.

The first challenges to the courts came from Populist James B. Weaver, the People's Party Presidential Candidate in 1892. The populist movement, whether we see it as a social or economic movement or a combination of both, provided one of the first modern attacks on judicial power. Weaver was a harsh critic of the courts. He argued that they were dominated by business interests and the large corporations - and he was right. He feared that judge-made rule was quickly supplanting legislative power which, as he said in 1892 "dethrones the people who should be sovereign and enthrones an oligarchy." (Weaver quoted on page 27)

Weaver's, and other populists', solution for this vexing problem was more democracy in the judicial system. He called for the direct election of judges and the removal of lifetime tenure for most judgeships. Weaver's strongest ally on this issue was Associate Justice Walter Clark of North Carolina (served from 1889 to 1924). By the turn of the century the populist demand for a more democratic and humane legal system meshed with the rise of progressive legal reform efforts. While the populists offered a total attack on the courts, the progressives' objections were of a more limited scope: individual cases and the 5-4 decisions of the court were the subject of their scorn. Ross suggests "that most of the critics of the judiciary opposed the way Judicial power was exercised rather than the power itself." (p. 70)

Progressive picked up on the populists' recall idea. In 1911, Arizona enacted a recall provision in their new state constitution. While Taft vetoed it, Arizona was later admitted in 1912 without recall, but amended its constitution to include it. By 1912, five states amended their constitutions to include recall. As Ross states, "recall ... provided a potent reminder to judges that they were responsible to the citizens. Although widespread opposition to recall demonstrated that Americans cherished judicial independence, the strength of the recall movement indicated that there were limits to public tolerance of judges...." (p. 128)

The issue that brought this movement to the fore was the court's invalidation of a number of progressive acts. Typical of these cases is Lochner v. New York, the 1905 decision which struck down the ten hour day for bakers because, as the court saw it, it violated liberty of contract guaranteed by the 14th amendment. This 5-4 finding showed that progressive legislation (social and labor) were at the mercy of a handful of judges - or one judge. Ross fails to fully understand the thrust of recent legal research. In studying laws and legal issues one is not studying isolated intellectual matters. At least not anymore. One is studying a social process. Laws are made in a social context as well as a legal one. If one looks at the labor movement and its relationship to the courts one sees that Samuel Gompers - as much as one might like to dismiss him - was aggressive in working for his membership. In Ross's work, Gompers appears lost amid the true genesis of the legal profession. Gompers' philosophy of volunteerism called for an independent economic policy that avoided the legal and political systems. In a rough world, Gompers argued, workers had only one thing going for them: skill. Skilled workers, as they learned how to play the game, could do well. In economic matters they might successfully strive for equality. But in the legal and political realm they were doomed. Ross misinterprets the AFL's motivations. The AFL might have loudly protested the reversal of key hours and wage legislation. But as a member of New York's Factory Investigating Committee from 1911 to 1914 Gompers opposed all such coverage, except for "dependent" workers - women and children. The reversal of these court cases only served to validate Gompers' fears and beliefs. It also boded well for his followers. It showed, without a doubt, that labor could not count on the legislatures or the courts, only themselves.(2)

The 1920s saw the critiques of the court being carried forward by Senators LaFollette and Borah. LaFollette's plan was to introduce an amendment whereby Congress could reenact legislation invalidated by the courts and prohibit any federal lower court judges from nullifying an act of congress. LaFollette's plan seemed too radical. Borah's plan called for seven judges to concur before an act of congress was invalidated. Two reasons explain why these initiatives never took off. In the 1920s the courts received a strong ally in conservatives who were more vocal in supporting judicial review. But, much more importantly, while the court continued to strike down state and federal laws dealing with social legislation, the courts were supporting ethnic and religious identities. During the 1920s the court upheld parochial schools and religious freedom, and struck down a movement to make English the official language. Here Ross takes the words of the Catholic leadership as representative for all Catholics. Catholic immigrants were divided. Socially they saw the courts as an ally in an era of Americanization. But economically the courts still opposed them. Ethnicity was a powerful force in the 1920s, which Ross sees, but it was much more complex than he admits.

The period from 1925 to 1937 saw criticisms of the courts "muted, not only by the triumph of Coolidgeon conservatism, but also by a lack of leadership in the anticourt movement, a renewed pragmatism among critics of the courts, and changes in the direction of the courts themselves, especially the Supreme Court itself." (p. 284) Between 1924-25 four of the greatest critics of the courts' power died or retired: Walter Clark, Robert LaFollette, Samuel Gompers, and Senator Robert Owen. As Ross states, these men's departure left a void in the movement:

No prominent judge or tireless polemicists emerged to take the place of Clark. No AFL leader could pummel the judiciary as Gompers did in his last years without fearing stigmatization as a 'radical.' And no progressive other than LaFollette was able to muster so much support for a plan to abrogate Judicial power significantly ... no person of national stature emerged to challenge Judicial power until Roosevelt announced his court packing scheme. (p. 286)

The court continued to strike down important legislative acts in the late 1920s into the 1930s.

In 1935 the Supreme Court invalidated three New Deal acts: NRA, the Frazier-Lemke Emergency Farm Mortgage Act, and FDR's right to replace independent members on regulatory boards. In 1936 the court invalidated three more pieces of legislative initiative: AAA, the Bituminous Coal Act, and the Municipal Bankruptcy Act. The public's reaction was a renewed outcry against the court. The New DealnFDR response was the court packing scheme. As Ross tells it, the court packing plan seems realistic. Most historians have seen the scheme as a threat. Ross sees it as part of the reality of the anticourt movement. It came from a tradition - the tradition he traces. It also was the most radical because the court's actions in 1937 seemed even more obstructionist. The court stood in the way of FDR's antidepression policies and therefore a quick radical proposal was justified. The court's restructuring and the real threat of the court packing scheme had its desired effect. With the Supreme Court's 1937 decisions validating the Wagner Act and the Social Security Act, Ross states, "one of the most ferocious and sustained periods of hostility to the judiciary had ended." (p. 311)

Ross's real focus is on the legal challenges brought by these movements. He spends little time trying to understand the dynamics of these separate movements. Instead, he offers up a small sampling of their legal leadership and hints that taken together they made up a continuum of anticourt activists. He might be right, but often these activists had separate agendas, which were based on their sperate movements. Because of this focus, Ross misses several opportunities to see fully the complexities of the legal battles he discusses. Ross is quite right that the courts are of great importance in the twentieth century and that they have been long ignored. But by only focusing on lawyers and leadership he misses just how important his subject truly is. How did these laws impact on Americans? What was the relationship between these legal spokesmen and their movements? Lawyers didn't work in a vacuum, what about their clients? It is my belief that mass political movements - which these three movements most certainly were - have a lasting, if somewhat unintentional impact on government. These movements participated in making laws in many extralegal ways: political protesting either in the streets or through public discourse. Ross, by solely focusing on court decisions, fails to see the importance of larger social forces on the institution of the law. By studying legal arguments in complete isolation his findings are not as full as they could be. In the end, Ross's work is an excellent starting point for social historians because it shows the strengths and weaknesses of legal studies.

Ross provides an excellent basis for the study of social forcesnmovements and the state. The law is a political discourse on power relationship. In Muted Fury we see the continuities between generations and movements in American reform. We learn that FDR's court scheme was a realistic attempt to counteract what was seen as the courts' unnatural power. Despite flaws, Ross' work is important because it is one of the few studies of political power which uses legal functions in a serious way. While social history is floundering for a synthetic linchpin, Ross's work might help point the way.

ENDNOTES

1. Witness the recent International Labor and Working Class History Symposium and Roundtable on Ira Katznelson's thoughts on liberal theory and state centered approaches to working-class studies: "Ilwich Roundtable: What Next for Labor History," Fall 1994.

2. See Victoria C. Hattam, Labor Visions and State Power: The Origins of Business Unionism in the United States (Princeton, 1993).

Richard Alan Greenwald New York University