of the Court, especially those associated with the progressive movement (and the related Progressive Party), charged the federal courts with favoring business interests, in part due to the expansion of the courts’ diversity jurisdiction, the frequency of removal from state to federal court by corporate defendants, and the application of a substantive body of law known as “general federal common law.”[110] These critics charged the Court with deploying its power of judicial review more often and in accordance with conservative policy preferences. Chief among these preferences was the curtailing of legislation and regulations, especially those that protected workers and consumers. Between 1864 and 1895, the Court invalidated an average of three state laws each year, a sharp contrast with the pre-Civil War rate of less than one law per year.[111]
By the 1890s, what one scholar has described as a “muted fury” toward the federal courts had developed among some reformers, many of whom mobilized as the Populist and later the Progressive parties.[112] Three decisions that the Court handed down in 1895 drew particular criticism: United States v. E.C. Knight Co. (holding that the federal commerce power did not reach manufacturing);[113] Pollock v. Farmers’ Loan & Trust Co. (invaliding the federal income tax);[114] and In re Debs (upholding a labor injunction against striking railroad workers).[115]
Progressive anger at the courts became a defining issue in the 1912 presidential election. After having left office and embarked on a worldwide tour, former president Theodore Roosevelt reentered the political fray with a blistering attack on the courts, focusing his ire on the Supreme Court’s recent decision in Lochner v. New York.[116] Addressing a joint session of the Colorado legislature, as well as an audience of thousands who had gathered outside, Roosevelt decried the Court’s decisions in Lochner and E.C. Knight.[117] In print, Roosevelt argued that the Justices had “strained to the utmost (and, indeed, in my judgement, violated) the Constitution in order to sustain a do-nothing philosophy which has everywhere completely broken down when applied to the actual conditions of modern life.”[118]
Upon launching his presidential campaign in February 1912, Roosevelt proposed that state judicial decisions invalidating a statute as unconstitutional (either under the Federal Constitution or the state constitution) should be “recalled” by a vote of the citizens.[119] “[W]hen a judge decides a constitutional question, when he decides what the people as a whole can or cannot do, the people should have the right to recall that decision if they think it wrong,” Roosevelt argued.[120] The former President’s proposal focused on rulings by state courts, and he disavowed the notion that it would apply to federal courts. But one commentator notes that despite his public statements, Roosevelt “confided to [progressive journalist Herbert] Croly
