Monday, April 14, 2014

Spitzer on the Washington State Supreme Court in the Progressive Era

Hugh D. Spitzer, University of Washington School of Law, has posted Pivoting to Progressivism: Justice Stephen J. Chadwick, the Washington Supreme Court, and Change in Early 20th-Century Judicial Reasoning and Rhetoric, Pacific Northwest Quarterly, Vol. 104 (Summer 2013):107-21 (published in 2014).   Here is the abstract:    
Relatively little attention has been paid to the part played by state judges in upholding progressive legislation in the early twentieth century in a period when the United States Supreme Court often overturned reform measures on constitutional grounds. In contrast, between 1910 and 1913, the Washington State Supreme Court rapidly changed its doctrinal analysis and its stance on judicial deference to elected lawmakers, aligning the state’s constitutional law with the public’s new views on the responsibility of government in addressing social and economic challenges. A fascinating window on the progressive period and changes in judicial reasoning and rhetoric is provided by focusing on a single member of the Washington Supreme Court, Stephen J. Chadwick, who sat on that court between 1908 through 1919. Chadwick was in many respects typical of his Washington Supreme Court colleagues: educated, publicly-involved and politically ambitious. But Chadwick played the leading role in conceptualizing and communicating the Washington Supreme Court’s new approach to progressive legislation. Chadwick’s legal opinions are striking for their cogent reasoning and clarity. They are also striking for their honesty about the forces that were causing him, as a judge, to look at things in a fresh way. There were three key reasons for the turnaround in his court’s philosophy: First, the judges were sophisticated, pragmatic and politically-experienced leaders whose feet were “on the ground” in their communities. Second, as educated and economically comfortable elites, their personal views changed along with those of other middle class Washingtonians — i.e., those who formed the backbone of the progressive movement. Finally, the altered philosophy about the role of the courts, i.e., the shift from the practice of ruling many regulatory and worker protection statutes unconstitutional to a more hands-off deferential approach to policy decisions by elected lawmakers, was directly influenced by Oliver Wendell Holmes, Jr. Justice Chadwick was clearly influenced by Holmes, and on the Washington court he anticipated the “legal realist” approach to legal theory and judicial decision-making that gained dominance nationally in the following decades.
When the comparison is the U.S. Supreme Court, Professor Spitzer is surely right that “[r]elatively little attention has been paid to the part played by state judges in upholding progressive legislation in the early twentieth century.”  But see Carol L. Chomsky, “Progressive Judges in a Progressive Age: Regulatory Legislation in the Minnesota Supreme Court, 1880-1925,” Law and History Review 11 (1993): 383-440.