OUR JUDICIAL OLIGARCHY
Roe, Gilbert E.
Our Judicial Oligarchy I.— POPULAR DISTRUST OF THE COURTS A few of the evidences of the sober and conservative public opinion regarding the usurpation of power by the courts, showing that we are...
...The platform of the People's Party, adopted at St...
...Antiquated Views Recognized by Scholars PRESIDENT HADLEY of Yale University in a recent article entitled, "The Constitutional Position of Property in America" had this to say: "The general status of the property owner under the law cannot be changed by the action of the legislature or the executive, or the people of a State voting at the polls, or all three put together...
...Roosevelt is right or wrong, is not the question...
...Prominent among its exhibits was a quotation from an opinion of the Court of Appeals of the State of New York...
...For example, the Oklahoma constitution provides for a jury trial in cases of contempt of court...
...at will any expression of the people's will made through an Act of Congress or a State Legislature...
...8) The history of the case is as follows: In 1884 the Legislature of the State of New York passed an Act entitled "An Act to Improve the Public Health by Prohibiting the Manufacture of Cigars and the preparation of Tobaccos in any form in Tenement Houses in certain cases," etc...
...Judges appointed for life, having no fear of power of the people or of the executive to rebuke them, are likely to interpret the law according to their own interests and sympathies, whatever they may be...
...and popular discontent with the judiciary must indeed have become formidable in order to have penetrated the ranks of lawyers and even of the judges themselves...
...Roosevelt's position by plain citizens shows that, as usual, he read aright the popular mind...
...We must make it so that the poor man will have as nearly as possible an equal opportunity in litigating as the rich man...
...I, Declaration of Rights, forming part of the Constitution of the State of Wisconsin...
...Walter Clark, Chief Justice of the Supreme Court of North Carolina, recently said: "At the present time the supreme power is not in the hands of the people, but in the power of the judges, who can set aside (1) Sec...
...The Judge and Jury in this class of cases mutually distrust each other and the result is, since the power is with the Judge, that Juries have ceased to be independent tryers of the facts...
...and the remarks that I heard made by those who read the placard, were not less so...
...For a case in which an attorney was disbarred for a criticism of a judge who was a candidate for reelection, see in re Thatcher...
...he ought to obtain justice freely and without being obliged to purchase it...
...I give in a foot note the material provisions of the Republican and Democratic platforms on this subject...
...Roosevelt upon the courts in his speeches during the last few months as published in the press of the country (4) is of great significance, as indicating the esteem or lack of esteem the people at the present time have for the courts...
...Roosevelt has...
...By GILBERT E. ROE (Copyright 1911, The Robert M. La Follette Co...
...Experience has proved the necessity The Socialist Party, casting half a million votes, in its platform for 1908, declared "our Courts" are "in the hands of the ruling classes...
...Eminent Men Criticise Judiciary PRESIDENT TAFT, in a speech delivered in Chicago on September 16, 1909, and reported in the public press of that city, said: "Of all the questions that are before the American people, I regard no one as more important than this...
...It is now nearly seven hundred years since the principle of this declaration took concrete form in Magna Charta...
...The platform of the Independence Party, adopted at Chicago July 28, 1908, contains this: "The Independence Party condemns the arbitrary use of the writ of injunction and contempt proceedings as a violation of the fundamental American right of trial by jury...
...9) Concerning President Hadley's article, The Independent in the same issue by the way of editorial comment said: "Among the multiplying signs of change, President Hadley's keen analysis in The Independent of this week of the constitutional position of property in America is one that cannot pass unnoticed...
...I have carefully refrained from referring to the open hostility existing at the present time between the courts and organized labor...
...80 Ohio St...
...and we reiterate the pledge of our National Platforms of 1896 of a modification of the present law relating to injunctions, and 1904 in favor of tne measure which passed the United States Senate in 1896, but which a Republican Congress has ever since refused to enact...
...Our Judicial Oligarchy I.— POPULAR DISTRUST OF THE COURTS A few of the evidences of the sober and conservative public opinion regarding the usurpation of power by the courts, showing that we are in the dilemma suggested by president hadley of yale:—is the work of the courts to be undone by constitutional amendments, or by the courts t hemselves overturning their own decisions, or by a revolution...
...It will not be ignored by the beneficiaries of privilege, nor by plain man who is allowed to vote so long as we have supreme courts to prevent his vote from doing harm to property rights...
...State the proposition, that every person has a certain remedy in the law for any injury or wrong that he may suffer, and scores of instances will come to your mind of wrongs wholly unredressed...
...To be continued...
...Party Platforms Condemn Judicial Usurpation ALL POLITICAL PARTIES in the campaign of 1908, recognized in their platforms the necessity for condemning the recent usurpation of power by the courts...
...I have not referred to the many attempts made by Congress and State Legislatures in recent years to correct by statute the injustice of judicial decisions, nor to the fact that such attempts have been largely rendered abortive by the action of the Courts in declaring such laws invalid...
...8) Matter of Application of Jacobs, 98 N. T. 98, 113...
...Whether Mr...
...It has been established and defended at the cost of bloody revolutions on two continents...
...The same Appellate Court, a short time before, had, according to the syllabus of the case, thus characterized a trial Court: "Where the Court, upon the trial of a cause therein, quarrels with the counsel for the defendant, gives him no opportunity to interpose objections to questions asked witnesses by the Court, characterizes his objections as ridiculous, refuses to note an exception he has taken, assumes to deny a motion to strike out testimony taken upon the examination of a witness by the Court before the counsel had made such a motion, and threatens to commit him for contempt in the presence of a Jury, such conduct on the part of the trial Court calls for a reversal of a judgment entered upon a verdict in favor of the plaintiff...
...9, Art...
...It was a most conservative and benevolent undertaking, conducted by most conservative and benevolent people...
...It is peculiarly dear to the people of the United States...
...I am informed that the Legislature subsequently reinstated Mr...
...Thatcher...
...These judges are not chosen by the people, nor subject to review by them...
...3) It is not surprising, therefore, that neither lawyers nor laymen are anxious to remind courts of their mistakes...
...A state of affairs which plain men have felt the increasing pressure of, without being able to understand why, in a republic, the task of contending against it should turn out to be almost hopeless, President Hadley has explained so simply and so clearly that no citizen with any intelligence at all can fail to see precisely what it is that democracy in America is up against...
...Roosevelt Voices Popular Distrust THE RECENT co-called "attacks" of Mr...
...the Supreme Court of the United States acts...
...the language is as follows: "It cannot be conceived how the Cigar maker is to be improved in his health or his morals by forcing him from his home and its hallowed association and beneficient influences to ply his trade elsewhere...
...It is the foundation of government for all English-speaking people...
...It is never for the interests of a lawyer to tell a judge that his decisions are popularly regarded with disfavor, nor is it always safe for him to do so even in the line of his duty...
...The universal approval of Mr...
...We deem that the parties to all judicial proceedings should be treated with rigid impartiality, and that injunctions should not be issued in any cases in which injunctions would not issue if no industrial dispute were involved...
...Who are these judges who may not be criticized by the humble citizens from whom in theory all the powers of government, judicial as well as legislative and executive, emanate...
...Yet this paper's campaign for subscriptions and popular support is based practically upon the savage attacks it is making upon the Federal judiciary...
...Questions of Judicial practice have arisen, especially in connection with industrial disputes...
...The Appeal to Reason is a newspaper published in Girard, Kansas...
...I have not referred to the fact that in a large class of cases of individuals against corporations, the whole struggle of the defendant is to have the case taken from the Jury by the Judge, while the plaintiff asks no more than that the Jury be given a chance to pass upon facts...
...That the decision of its highest court should be held up to the scorn and contempt of the people of the State by the exceedingly conservative and philanthropic persons managing this Exhibit is very significant...
...The foregoing, I think is a fair statement of the attitude of the courts toward criticism of its members...
...But it is not to be forgotten that the readers and supporters of such publications are numbered by the millions...
...Every person is entitled to a certain remedy in the law for all injuries or wrongs which he may receive in his person, property or character...
...What millions of plain men have inarticulately felt, President Hadley has turned into clean-cut phrases that will live for many a day...
...1) THE ABOVE QUOTED DECLARATION is found in substance in the constitution or bill of rights of every State in the Union...
...The Court of Appeals, in the case cited, held this law unconstitutional, and in the opinion used the language prominently displayed in letters nearly a foot long, in the Child's Welfare Exhibit...
...Is it to be Revolution...
...4) See New York Times under date of Aug...
...Moreover, this is not a prosecution for criminal libel...
...In his Message to the Sixty-first Congress, under date of December 17, 1909, President Taft substantially repeats the above quoted statement, and further says that the deplorable conditions in the administration of the law are— "receiving the attention of the Committee of the American Bar Association and of many State bar associations, as well as the considered thought of judges and jurists...
...Its list of subscribers already amounting to about half a million, according to the paper's statement of its circulation, has been increasing with greater rapidity than any other publication in the country...
...In a speech before the Colorado Legislature, as reported, Mr...
...Louis, April 3, 1908, contained this: "We condemn all unjust assumption of authority by inferior Federal Courts in annuling by injunction the laws of the States, and demand legislative acts by Congress which will prohibit such usurpation and will restrict to the Supreme Court of the United States the exercise of power in cases involving State Legislation...
...In commenting on the sentence, President Taft, as reported in the public press at the time, is stated to have said: "The District Court evidently looked beyond the record of the evidence in this case and pound that Warren was the editor and publisher of a newspaper engaged in a crusade against society and government...
...Hon...
...Social Workers Question Judicial Integrity MISS JANE ADDAMS, the great sociological authority, who certainly is conservative in act and speech, says: "From my experience I should say perhaps that one symptom among working men which most distinctly indicates a class feeling is a growing distrust of the integrity of the courts, the belief that the present judge has been a corporation attorney, that his sympathies and experience and his whole view of life is on the corporation's side...
...Since 1908, State platforms of political parties have in many instances gone further in condemning the usurpation of power by the courts than those above quoted...
...these men talk...
...6) Republican Platform: "We believe, however, that the rules of procedure in the Federal Courts with respect to the issuance of the writ of injunction should be more accurately deflned by the statute, and that no injunction, or temporary restraining order, should be issued without notice except where irreparable injury would result from delay, in which case a speedy hearing thereafter should be granted...
...D., in The Independent of October 22, 1908, referring to the Hadley article said: "As a matter of fact it is not Bryan or Roosevelt or Lincoln Steffens or Charles Edward Russell that is the revolutionist...
...No man in this country has the genius for detecting public sentiment that Mr...
...Recently I heard a Federal Judge say from the bench, that in all his years of service as a Judge, there had never been but one verdict rendered in his Court contrary to his views...
...while the conviction by a large number of our people that it was being disregarded would be a menace to existing institutions...
...Under this quotation in the Child's Welfare Exhibit was the statement, in equally large letters: "THIS DECISION HAS BLOCKED EFFECTIVE TENEMENT HOUSE LEGISLATION UP TO THE PRESENT...
...3) Bennett v. Harris, 68 Misc...
...We assert that in all actions growing out of a dispute between employers and employees concerning terms or conditions of employment, no injunction should issue until after a trial upon the merits, that such trial should be held before a jury, and that in no case of alleged contempt should any person be deprived of liberty without a trial by jury...
...30, 1910 and other papers...
...6) The platform of the other political parties condemned the Republican and Democratic parties on this subject as not going far enough...
...9) "The Independent" of April 16, 1910...
...To visit such an offense with a severe punishment is likely to appear to the public to be an effort to punish the defendant for something that could not be charged in the indictment...
...ICOULD FILL many pages of La Follette's Weekly Magazine with quotations such as the foregoing from the most thoughtful and intelligent men and women of the country...
...2) Judges Sensitive to Criticism IT IS TO BE REMEMBERED that the last person to hear of hostile criticism of the courts is the judge, and next to the judge, the lawyer...
...7) 13 "American Journal of Sociology," page 772...
...A suspicion in the popular mind that this great declaration was being violated, either in its letter or its spirit, would be a cause for alarm...
...Roosevelt speaking of two recent decisions of the Supreme Court said: "If such decisions as these two indicated the court's permanent attitude, there would be really a grave cause for alarm, for such decisions if consistently followed up, would upset the whole system of popular government...
...5) See press reports of the pardon under date of February 2, 1911...
...I have quoted none of the denunciations of the courts with which, what are called class or radical publications are filled...
...I have merely gathered together a few of the evidences of the sober and conservative public sentiment on this question which shows us to be in the dilemma suggested by President Hadley, where the work of Courts must be undone either by constitutional amendments or by the Courts themselves overturning their own decisions, or finally, as President Hadley suggests,—a revolution...
...From that report it appears that a reputable attorney, of many years practice at the bar, filed a brief, in which he said: "Simply because he (the opposing council), before a young judge who rules sometimes erroneously, and has been, so appellant has been informed, reversed by this court many times, some of his rulings being very flagrant," and so forth...
...Tremendous crowds were in attendance upon it constantly for weeks...
...This is well illustrated by an incident which occured in an Appellate Court in New York City recently, and is reported in the public press of that city under date of February 4, 1911...
...and under present conditions, ashamed as we may be of it, this is not the fact...
...From the foundation of our government down to 1872 the Federal judiciary act prohibited the use of any injunction without reasonable notice, usually after a hearing...
...and the proposed Constitution in Arizona accepted by the people by an overwhelming majority contains a clause providing for the "recall" of judges...
...The new States recently admitted to the Union and the Territories now asking for admission evidence the same thing...
...it is a prosecution for what at best is the violation of a regulation as to the use of mails...
...That such a conviction does exist today in the minds of millions of our citizens, and that the ranks of those so believing are being constantly augmented, is a fact easy of proof...
...and no man believes less in the utility of taking a position unsupported by public sentiment...
...completely and without denial, promptly and without delay, conformably to the laws...
...The truth is that all kinds of men occupy the bench, among them men who secured their positions through all the different degrees of political chicanery practiced in American politics...
...5) There are no doubt some who will consider the language of the President above quoted as a more severe criticism of the court than anything ever said of it by the editor of the Appeal to Reason, and its weight is not lessened by the fact that it obviously was not ntended as a reflection upon the court...
...to wit: The improvement of the administration of justice...
...You can gain nothing by criticising the court...
...It cannot be changed without either concensus of opinion among judges which should lead them to retrace their old views, or an amendment of the Constitution of the United States by the slow and cumbersome machinery provided for that purpose, or, last—and I hope most improbable—a revolution...
...Y.) 503...
...The sentence of the editor lately imposed by the Federal District Court and affirmed by the Circuit Court of Appeals, to six months imprisonment and the payment of a fine of $1,500.00 for violation of a postal law, was commuted on February 1st, last by President Taft, to a fine of $100.00 to be collected only in a civil suit...
...relating to contempts in Federal courts and providing for trial by jury in cases of indirect contempt...
...For this statement he was arraigned at the bar of the court for contempt, and to him the presiding judge said: "Your being a man of mature years makes your offense more aggravating...
...7) In the City of New York during the early months of 1911 there was held what is called a Child's Welfare Exhibit, meaning an exhibit which shows the conditions under which the children of the less fortunate classes live...
...The Democratic Platform...
...In this brief you have, without cause, unjustly assailed a justice of a court...
...2) "The Arena" for November, 1907...
...He further refers to such decisions as being "flagrant and direct contradictions to the spirit and needs of the times...
...This is arbitrary power, and the corporations have taken possession of it simply by naming a majority of the judges...
...The time has come when notice will be served upon lawyers that every judge of every court must be respected...
...As far as I am concerned I think you have made no excuse whatever for this unwarranted attack...
...Delos F. Wilcox, Ph...
...In the first place they are lawyers, though not always good ones...
...That one may obtain justice freely, or promptly, or accordng to the rules of law, rather than according to the will of a Judge is not likely to be asserted today by any one familiar with the operation of our Courts...
Vol. 3 • June 1911 • No. 24
