THE STRUGGLE FOR EQUALITY 245 



evidently most dangerous trades; effective regulation of the use of urban 

 land; and the use of the powers of taxation and eminent domain for the 

 purpose of furthering schemes to provide aid for the needy classes "" 



"18 



III 



Current discussion during the last presidential campaign centered 

 a good deal about the recall of judges and " the recall of judicial deci- 

 sions." Many high-minded and conscientious men strenuously object 

 to both of these proposals. But whether they mark so radical a depar- 

 ture from the present order as to be wholly out of the question is more 

 than doubtful. Every advance in popular government has excited the 

 fears of many God-fearing men. The abolishment of the property 

 and religious qualifications for the suffrage meant to many the speedy 

 downfall of our institutions. An electoral college merely registering 

 the will of the people seemed the height of folly to most of the fathers. 

 But a short time ago, the limitation of the veto power of the lords in 

 England seemed impracticable. These facts suggest that the recall of 

 judges and "the recall of judicial decisions" are matters which a 

 rational being may at least dispassionately consider. 



The recall of judges by legislative address already exists in several 

 of the states, but it is rarely exercised. Moreover, in the states where 

 the judges are elected and are subject to reelection at the end of their 

 term of office, one would expect to find numerous and glaring examples 

 of the evils like those which the judicial recall is supposed to invite, 

 and yet I am not aware of a popular movement in any one of these states 

 which looks towards electing judges for life or substituting an appointive 

 for an elective judiciary. 19 On the contrary, in some of these very states 

 there is a formidable movement for the judicial recall. It is true that 

 the public has now and then foolishly dispensed with the services of an 

 eminent jurist for one that is grossly incompetent. The loss of Judge 

 Cooley to the Supreme Court of Michigan is a conspicuous instance. 

 But then again, Judge Gary who presided at the trial of the Chicago 

 anarchists was repeatedly reelected. The disadvantages which attend 

 an elective judiciary are apparently more than offset in the popular 

 mind by the advantages. The actual working of the judicial recall would 

 manifestly depend very largely upon the safeguards thrown around its. 

 operation. After all, the stronghold of the judiciary does not lie in 

 its technical independence, but in the traditional respect in which it is 

 held. So great is this respect that it is probable the recall would rarely 

 be applied to judges save on the ground of malfeasance in office. Prob- 

 ably no state can boast of a more independent and upright judiciary 

 than Massachusetts, where judges can be removed by the governor and 



is Goodnow, op. cit., p. 332. 



19 In 1905, judges were elected by popular vote in thirty-three states. See 

 Goodnow, op. cit., p. 340. 



