Progressive Versus Progressive, Part 4: The Courts

One of the biggest differences between the Old Progressives and the New Progressives is their attitude toward the judiciary. The Old Progs, especially Theodore Roosevelt, hated the courts because they saw them as an obstacle to extending political control over people and enterprise. That’s why TR favored overriding court decisions by popular referendum, especially state court decisions. This was all a part of the Progressive impulse to make government more “popular” and give a larger voice to “the people” instead of party organizations, and to erode constitutional limits such as the separation of powers. The attempt to constrain the political independence of the judiciary was one of the reasons by figure such as Elihu Root broke with TR in 1912.
Today’s Progressives, by contrast, love the courts–it has been their favorite branch of government for effecting “social change” since at least the 1960s, on issue after issue where they cannot get the popular branches of government to work their will. And ironically, the one area where the Old Progressive agenda was enacted in part–the initiative and referendum process–is hated by the New Progressives. Consider an example of where the “popular recall” of a state judicial decision actually took place: California’s Proposition 8, which rolled back the state Supreme Court decision allowing gay marriage. Today’s Progressives are appalled, and think the voters shouldn’t get to vote on such “fundamental” matters. They marched straight away to federal court to get the will of the people thrown out.
Beyond this example, it is likely than an empirical assessment would show that the initiative process, designed to allow the people to get around entrenched special interests, has benefited conservatives more than liberals over the years. Certainly this is true in my home state of California, where the voters embraced tax limitation (Prop. 13) and first rolled back affirmative action (Prop. 209) and attempted to limit illegal immigration (Prop. 187, overturned in the courts, naturally), among others. There have been liberal triumphs from the initiative process in California and elsewhere, but many fewer than conservatives have enjoyed. This is why today’s Progs are not so fond of “popular” government.
COMMENT OF THE DAY comes from Daniel Lowenstein, Director of UCLA’s Center for the Liberal Arts and Free Institutions and Professor emeritus at UCLA Law School:

Not surprisingly, ideologues’ views on procedural matters tend to follow their perceptions of what procedures they think will further or frustrate their ideological goals. It Theodore Roosevelt’s time, the legal profession and the judiciary were mostly conservative. Now the legal profession is overwhelmingly progressive. Because of Republican presidents, the federal judiciary is more evenly balanced. But the legal profession tends to have more control of selection of state judiciaries, which therefore tend to be progressive. That Old Progressives opposed judicial power while New Progressives support it is probably driven not so much by inconsistency over the judiciary as by ideological consistency. The same is true of conservatives, who mostly supported an activist judiciary in TR’s time and mostly oppose it today.
One regrettable development is that both conservatives and progressives have pretty much accepted the view that judicial interpretations of the Constitution are supreme and final. This view was rejected by many in the 19th Century, including Thomas Jefferson, Andrew Jackson, and Abraham Lincoln. The judicial supremacy position was asserted in no uncertain terms by the Supreme Court (hardly a disinterested party) in the 1958 decision in Cooper v. Aaron. It is high time conservatives (and progressives) began to rethink that decision.