John B. Winslow

John Bradley Winslow (October 4, 1851 – July 13, 1920) was an American jurist.

John Bradley Winslow

Winslow was born in Nunda, New York as the only son of Horatio G. Winslow and Emily Bradley Winslow.[1] He was a direct descendant of Kenelm Winslow, brother of Edward Winslow, a Mayflower colonist and a governor of Plymouth Colony.[1] He moved with his parents to Racine, Wisconsin in 1855.[1] Winslow graduated from Racine College in 1871 and received his law degree from the University of Wisconsin Law School in 1875.[1] He married Agnes Clancy on January 19, 1881.[1] He was elected a Wisconsin Circuit Court judge and in 1891 was appointed to the Wisconsin Supreme Court. From 1907 until his death, Winslow served as Chief Justice of the court.[2][3]

His former home in Madison, Wisconsin is located in what is now the Langdon Street Historic District.

Winslow and Women's Suffrage

In 1887, when Winslow was a circuit judge, Wisconsin law permitted women to vote but only in elections “pertaining to school matters.”  At the spring election that year Racine officials rejected the ballot cast by Olympia Brown of Racine, the leader of Wisconsin Women’s Suffrage Association, because she had voted for all municipal offices.  Brown argued that her ballot should be counted because all municipal offices pertained to schools.  Winslow agreed but the Wisconsin Supreme Court reversed his decision, holding women could not vote except on ballots limited to school offices.  The state legislature did not authorize special ballots until 1901.[4]

Winslow and Judicial Non-Partisanship

Winslow was a Democrat in a predominantly Republican state.  Wisconsin judicial elections were officially non-partisan but judges’ political affiliations were well known.  Even though Winslow was well respected he faced Republican opposition in every election and was sometimes reelected by narrow margins.  He consistently urged greater separation of judicial elections from partisan politics.[5]

Winslow and Progressive Attacks on Judges

Winslow served on Wisconsin’s Supreme Court throughout the Progressive era.  During the Progressive era many state courts struck down reform laws sponsored by the Progressives, using the substantive due process doctrine.  Under the doctrine, courts gave little deference to legislative policy decisions:  they protected individual liberty and property rights and individuals’ rights to contract freely against governmental interference and interpreted government’s power to promote the public welfare narrowly.[6] Between 1902 and 1908 Wisconsin’s Supreme Court struck down several reform laws including a law prohibiting “yellow dog” contracts requiring workers to agree not to join a union as a condition of employment and a law to improve tenement housing in Milwaukee.[7]

Progressives became increasingly angry at courts that struck down reform laws.  Beginning about 1910 they advocated changes to the judiciary, including recall of judges by popular vote.  Theodore Roosevelt made judicial recall a central part of his 1912 presidential campaign.[8]

After Winslow became Wisconsin’s chief justice in 1907, he became concerned about the growing hostility toward judges.  In 1909 he began a campaign to educate Progressives about judges’ behavior and to persuade conservatives that Progressive calls for reform deserved serious consideration.  In a 1909 address to the Milwaukee Loyal Legion, Winslow explained that judges “are sworn to protect and support both the federal and state constitutions as they are, not as [Progressives] would like to see them.”  He also urged conservatives to consider that “the rights and privileges once deemed essential to the perfect liberty of the individual are often found to stand in the way of the public welfare, and to breed wrong and injustice to the community at large.”[9] Winslow continued his campaign and gained a national audience through speeches and articles in popular magazines and law journals.[10] He was several times considered for nomination to the U.S. Supreme Court but was not nominated.[11]

Winslow's Contributions to Progressivism

Winslow and his fellow justice Roujet Marshall engaged in a continuing debate over the proper interpretation of the federal and state constitutions in light of changing social needs.  Marshall argued that “preservation of liberty is given precedent [even] over the establishment of government” and that courts must ensure that reform laws did not infringe it.  A reform law, he said, cannot “be conclusively legitimate merely because it promotes, however trifling in degree, public health, comfort, or convenience.”[12] Winslow and Marshall continued their debate in a series of cases in which Winslow’s philosophy ultimately prevailed:

  • In Borgnis v. Falk Co. (1911), the Supreme Court upheld Wisconsin’s new workers compensation law over objections that it violated employers’ liberty and property rights by forcing them to pay benefits even where they were not at fault.  Winslow argued that constitutions must be interpreted flexibly in order to meet changing social conditions: “When an eighteenth century constitution forms the charter of liberty of a twentieth century government must its general provisions be construed and interpreted by an eighteenth century mind in the light of eighteenth century conditions and ideals?  Clearly not. This were to command the race to halt in its progress, to stretch the state upon a veritable bed of Procrustes.”[13]
  • Marshall agreed that the workers compensation law was unconstitutional but he disagreed with Winslow’s philosophy:  “If the constitution is to efficiently endure, the idea that it is capable of being re-squared, from time to time, to fit new legislative or judicial notions of necessities … must be combated whenever and wherever advanced.”c[14]
  • In the Forestry Case (1915) , the Court struck down a law that authorized the state to spend money to acquire land in northern Wisconsin, once the site of a huge white-pine forest that had been cut down by loggers during the nineteenth century, and turn it back into forest. Marshall held that the law violated a clause in Wisconsin’s constitution that prohibited state financing of “works of internal improvement,” and he argued that the law impermissibly interfered with private property and liberty rights.  Winslow believed the law was invalid because of technical defects but he disagreed with Marshall that reforestation was an “internal improvement,” and affirmed that land conservation was a matter of public welfare that the state could undertake.[15]
  • In 1911 Wisconsin Progressives enacted a law creating an Industrial Commission and giving it comprehensive power to regulate workplace conditions affecting safety.  The law was the first in the nation to create an agency with such broad powers.  In State v. Lange Canning Co. (1916), the Supreme Court struck down a portion of the law directing the agency to establish maximum working hours for women; it reasoned that the legislature had impermissibly delegated its policymaking powers to unelected agency officials.  Winslow dissented, and when the state asked for a rehearing he was able to persuade his colleagues to change their minds.  They now upheld the law, agreeing with Winslow that the legislature had set policy by requiring that workplaces be safe, and that when the Commission set women’s working hours it was merely making a determination of fact as to what hours best promoted safety.[16]

Marshall was defeated for reelection in 1917 largely because his decision in the Forestry Case was unpopular.  By the time Winslow died in 1920, his philosophy of flexible constitutionalism and adaptation to modern conditions was generally accepted in Wisconsin.  Several years later Walter Owen, the justice who replaced Marshall, stated for the Supreme Court that “It is thoroughly established in this country that the rights preserved to the individual by … constitutional provisions are held in subordination to the rights of society.”[17]

Notes
  1. "Madison Regrets Winslow's Death". Oshkosh Daily Northwestern. July 14, 1920. p. 5. Retrieved July 8, 2015 – via Newspapers.com.
  2. John Winslow, Wisconsin Historical Society
  3. "Chief Justice John Winslow, Wisconsin Supreme Court". Archived from the original on 2010-06-09. Retrieved 2011-09-02.
  4. 1885 Wis. Laws, chapter 211; Genevieve McBride, On Wisconsin Women (1993), 118-21; Brown v. Phillips, 71 Wis. 239, 36 N.W. 242 (1888).
  5. See John B. Winslow, The Story of A Great Court (1912); letter, Gerry W. Hazleton to Winslow (May 10, 1912) and letter, Fred Peterson to Winslow (April 12, 1913), both in John B. Winslow Papers, Wisconsin Historical Society.
  6. Owen M. Fiss, History of the Supreme Court of the United States, Vol. 8:  Troubled Beginnings of the Modern State, 1888-1910 (1993); Alfred H. Kelly and Winfred A. Harbison, The American Constitution:  Its Origins and Development (4th ed. 1970), pp. 525-26; Edward Keynes, Liberty, Property and Privacy:  Toward a Jurisprudence of Substantive Due Process (1996), pp. 97-115.
  7. State ex rel. Zillmer v. Kreutzberg, 114 Wis. 530, 90 N.W. 1098 (1902); Bonnett v. Vallier, 136 Wis. 193, 116 N.W. 885 (1908); Joseph A. Ranney, Wisconsin and the Shaping of American Law (2017), pp. 130-38.
  8. Sidney M. Milkis, Theodore Roosevelt, the Progressive Party, and the Transformation of American Democracy (2009), pp. 56-63, 89-97; Edith M. Phelps, ed., Selected Articles on the Recall:  Including the Recall of Judges and Judicial Decisions (1915), pp. 179-84.
  9. John B. Winslow, “The Patriot and the Courts,” Address to Loyal Legion of Milwaukee, Wis., February 3, 1909, p. 9, in Winslow Papers, Wisconsin Historical Society.
  10. See John B. Winslow, “An Understanding Heart: Does the American Judge Possess It?,” Survey, vol. 31, p. 17 (October 4, 1913);  Winslow, “The Judicial Recall:  Is It a Remedy or a Nostrum?,” speech to Kansas Conference on Charities and Correction (no date, probably 1914), in John B. Winslow Papers, Wisconsin Historical Society; Winslow, “The Courts and the Papermills,” Illinois Law Review, vol. 10, p. 157 (1915).
  11. See letters, Senator Robert M. La Follette to Roujet D. Marshall (January 2, 1910); Marshall to La Follette and Senator Isaac Stephenson (December 10, 1910); Senator Albert Cummins to Marshall (March 13, 1911); Judge Andrew Bruce to Woodrow Wilson (August 13, 1914), all in Winslow Papers, Wisconsin Historical Society.
  12. State v. Redmon, 134 Wis. 89, 109, 114 N.W. 137 (1907).
  13. Borgnis v. Falk Co., 147 Wis. 327, 347-48, 133 Wis. 209 (1911).
  14. Borgnis, 147 Wis. at 375.
  15. State ex rel. Owen v. Donald, 160 Wis. 21, 151 N.W. 331 (1915).
  16. State v. Lange Canning Co., 164 Wis. 228, 157 N.W. 777 (1916).
  17. State ex rel. Carter v. Harper, 182 Wis. 148, 151-53, 196 N.W. 451 (1923).
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