History of the courts
Articles on Wisconsin legal history
Great Wisconsin judges: John B. Winslow, a "constructive conservative"
Written by Joseph A. Ranney, Attorney at Law
Phone: (608) 283-5612
John Winslow (1851-1920) was a justice and chief justice of the Wisconsin Supreme Court. He was a self-described "constructive conservative" who played a very important role in reconciling conservatives to the dramatic changes which Governor Robert LaFollette and the Progressives made in Wisconsin.
Winslow grew up in Racine and practiced law there. He was elected circuit judge for the Racine area in 1883. The most famous case Winslow had as a trial judge was brought in 1887 by Olympia Brown, a Racine minister and leader of the early Wisconsin women's rights movement.
Brown asked Winslow for the right to vote in a local election under a limited women's voting rights law which the Legislature had recently passed. Winslow agreed with Brown that the law should be interpreted broadly and that she should have the right to vote. But the next year the Supreme Court overturned Winslow's decision, and it was many years before women were allowed to vote again.
In 1891 Winslow was appointed to the Supreme Court. Winslow was a Democrat in a time when the Republicans dominated Wisconsin. Even though Winslow was well liked and respected, because he was a Democrat he faced a tough battle for reelection and won only by a narrow margin.
As a result of the contest, Winslow for the rest of his life tried to persuade Wisconinites that judges should be chosen on the basis of ability, not what party they belonged to. He was successful in his crusade: party nominations for judgeships largely ended in Wisconsin after 1900.
During Winslow's time on the Supreme Court the Progressives, led by President Theodore Roosevelt, mounted a heavy attack on conservative judges. Starting in the 1890s judges on many American courts struck down reform legislation -- pure food and drug laws, workplace safety laws, tax reform laws and the like -- under a doctrine called "substantive due process." Under this doctrine, the judges essentially said that if a law interfered with manufacturers' and employers' rights to use their property and make contracts with workers in any way they saw fit, it would be struck down.
Roosevelt and his supporters became increasingly angry and at one point proposed laws which would allow Congress to override the courts and would make it easier to remove judges who made unpopular decisions. Winslow became very worried this would happen in Wisconsin. He made a series of speeches and wrote many magazine articles emphasizing that judges were "constructive conservatives." He reminded reformers that judges had a duty to make sure they did not violate other people's rights in their zeal to correct social problems. But he also warned conservatives that judges could not oppose laws simply because they did not like them, and that the law sometimes had to change to fit new social conditions. He pointed out:
As individual life has more and more given place to crowded community life, 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.
As a result of Winslow's leadership, the Wisconsin Supreme Court struck down very few reform laws and the Progressives never seriously tried to change Wisconsin's judicial system. Winslow became one of the most beloved judges in Wisconsin history.
Note: The views expressed in this article are the author's alone. Distributed as a public service by the Wisconsin Supreme Court in honor of the state's sesquicentennial.