Liberals and the Supreme Court:
Making Peace with the "Nine Old Men"
One consistent thread in the pattern of American liberalism since the founding of the republic has been—at least until recently—hostility to the Supreme Court. In 1810, Jeffersonians protested against the Justices for being “sappers and miners” of republican government. Good Jacksonians in the 1830’s held a similar view. In the 1850’s, abolitionists and anti-slavery elements denounced the Supreme Court’s Dred Scott decision for entering the Constitution into a “covenant with hell.” In the 1896 presidential election, Democrats and Populists alike campaigned against the Supreme Court’s pro-property and anti-labor rulings, and applauded their jointly nominated candidate, William Jennings Bryan, as he thundered against “government by injunction” as well as the “cross of gold.” In 1912, the reformer found his voice in Theodore Roosevelt who, in the name of “direct democracy,” called for a system of popular referenda to allow the overturning of Court decisions. And in the 1930’s few things seemed so clear to the liberal as the fact that five elderly “anachronisms” were threatening the entire New Deal program. As one liberal spokesman wrote during Franklin Roosevelt’s “Court-packing” fight in 1937, “Democracy must curb the Supreme Court or the Supreme Court, instrument of our great concentrations of economic power, will destroy democracy.” “Judicial supremacy,” the same liberal declared, “is the most important problem of our time” (Isidor Feinstein, The Court Disposes).
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