"Stay Wrong": When State Supreme Courts Fought Back

[Nevilledog]

https://ballsandstrikes.org/legal-culture/when-state-supreme-courts-fought-back/

Left-leaning lawyers confront a daunting future in America’s new Gilded Age. Federal courts are firmly under conservative control, allowing the right to entrench existing racial, gender, and economic hierarchies. No left-wing judicial recruiting system exists that can match the reach of the right’s Federalist Society. And the left lacks a succinct progressive legal philosophy that can challenge the dominance of the conservatives’ textualism and originalism.

America faced these problems more than a century ago, too, when legal power was in the hands of reactionary federal courts that proudly championed plutocracy, segregation, and gender discrimination. During this period, known as the Lochner Era after one infamous decision, the Supreme Court invalidated child-labor bans, minimum wage laws, sixty-hour work week caps, and union protections.

Faced with this forbidding reality, legal reformers turned to state courts to fight back. Many of the era’s most prominent reformers—the white, male, upper-middle-class ones—largely ignored segregation and gender discrimination. But by working through state courts, particularly in Washington state, some of these reformers articulated a popular, widely-understood legal philosophy that rejected the dominant conservative philosophy of the day. Reformers then used this philosophy—legal realism—to champion workers’ rights, challenge the pro-corporate bias of federal courts, create a strong progressive legal bench, and lay the legal foundation for the New Deal.

This is a picture of Benjamin Cardozo, NOT Bradley Whitford in a wig (Bettmann / Getty Images)
Today, there are hints that some progressives are turning toward state courts, particularly as the end of Roe v. Wade elevates state constitutions and courts to the forefront of the struggle for abortion access. But even at the state court level, left-leaning lawyers have made few attempts to lay the foundation for a popular alternative to conservative legal philosophy.

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