John B. Winslow


John Bradley Winslow was an American jurist.
Winslow was born in Nunda, New York as the only son of Horatio G. Winslow and Emily Bradley Winslow. He was a direct descendant of Kenelm Winslow, brother of Edward Winslow, a Mayflower colonist and a governor of Plymouth Colony. He moved with his parents to Racine, Wisconsin in 1855. Winslow graduated from Racine College in 1871 and received his law degree from the University of Wisconsin Law School in 1875. He married Agnes Clancy on January 19, 1881. 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.
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.

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.

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. 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.
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.
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 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.” Winslow continued his campaign and gained a national audience through speeches and articles in popular magazines and law journals. He was several times considered for nomination to the U.S. Supreme Court but was not nominated.

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 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.” Winslow and Marshall continued their debate in a series of cases in which Winslow’s philosophy ultimately prevailed:
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.”