Posted by David Bernstein:
Judge Alton Parker Responds to Theodore Roosevelt:
http://volokh.com/archives/archive_2009_01_04-2009_01_10.shtml#1231375262
In 1910, Theodore Roosevelt, preparing for his Progressive Party
candidacy for the presidency, attacked the Supreme Court in a speech
before the Colorado legislature. He singled out two cases for
criticism, one of which was Lochner v. New York. Judge Alton Parker,
the Democratic nominee for president in 1904, and author of the New
York Court of Appeals majority opinion in Lochner reversed by the U.S.
Supreme Court, responded:
It is safe to assert that the attack upon the Supreme Court of the
United States by Mr. Roosevelt in his address to the legislature of
Colorado will not be approved by the bench and bar and the
thoughtful people of this country, who appreciate the importance of
the Judiciary in our governmental system and the necessity for a
continuance of the existing public confidence in and affection for
our courts. It happens that in the case of the People v. Lochner,
referred to in his address as the 'bakeshop case.' the prevailing
opinion of the Court of Appeals of this state was written by
myself, with concurring opinions by Judges Gray and Vann. Judges
O'Brien and Bartlett wrote dissenting opinions, so that in all five
opinions were written in the Court of Appeals, showing the full
appreciation by that court of the fact that the question was a very
close one about which minds must differ. Indeed, this fact was made
very prominent in the interesting debates around the consultation
table as well as in the opinions written.
The history of this case indicates how narrow was the dividing line
between upholding and rejecting the statute. The trial judge held
the statute constitutional. The Appellate Division affirmed his
decision bya vote of three to two. And the Court of Appeals
affirmed the Appellate Division by a vote of four to three. The
Supreme Court of the United States reversed the Court of Appeals by
a vote of five to four.
Every Judge in every court gave to this important question his best
effort, willed is strongly evidenced by the differences of view of
the members in the several courts. That fact should be quite
sufficient to protect the greatest court in the world from
offensive criticism from any source, and especially from one who
heretofore manifested his dissatisfaction with a department of
government which was performing the independent function conferred
upon it by the Constitution so as to neither encroach upon its
coordinate departments of government nor to allow them to encroach
upon it.
Source: New York Tribune, Sept. 1, 1910, at 2.
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