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Judge Alton Parker Responds to Theodore Roosevelt:

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 Lochner v. New York for criticism. 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.

Wings:
Seems weak to me. He's saying that just because a bunch of (potentially very foolish and misguided) people disagreed among themselves, the Court's decision (and the Court itself) was protected from criticism?
1.7.2009 7:58pm
Nunzio:
Teddy was a good politician. That's why he beat Parker's sorry ass in the 1904 election.
1.7.2009 8:27pm
guy in the veal calf office (mail) (www):
Wings: The very first line says It is safe to assert that the attack upon the Supreme Court of the United States.... . He's plainly not addressing criticism of the decision.
1.7.2009 8:46pm
therut (mail):
I try not to vote for good "politicians". Means nothing.
1.7.2009 8:46pm
Sarah (mail) (www):
I'm curious as to what percentage of the voting population in 1910 was capable of understanding that last sentence.

(I'd also be curious to read exactly what TR said about the Court.)
1.7.2009 9:08pm
Burt Likko (mail) (www):
Parker's argument is, "Hey, give us a break. That was a really tough case and the vote was really close and we all tried really hard."

Roosevelt's argument is "You threw out a minimum wage law that enables people to make a decent living!"

Roosevelt wins.
1.7.2009 9:20pm
stombs (mail):

Parker's argument is, "Hey, give us a break. That was a really tough case and the vote was really close and we all tried really hard."

Roosevelt's argument is "You threw out a minimum wage law that enables people to make a decent living!"


I'd say TR's argument was closer to "Never mind what the Constitution says, we know what's right." Whatever you think of Lochner, that's not an argument with which we today -- having seen the consequences of such reasoning -- should sympathize. --
1.7.2009 9:29pm
D.O.:
A big point also is that Parker values institution before politics (at least in this case). After all his opinion lost in SC.
1.7.2009 9:50pm
Bob from Ohio (mail):

I'm curious as to what percentage of the voting population in 1910 was capable of understanding that last sentence.


I'm curious as to what percentage of the voting population in 2008 was capable of understanding that last sentence.
1.7.2009 10:13pm
MarkField (mail):
I'd be more interested in who understands the first sentence of the final paragraph in the quote. I think there are words missing....

Fun trivia fact: from 1864 through 1904 (11 presidential elections), the Democrats ran a New Yorker 7 times, eight if you count 1880 (Hancock, who was in the Army but stationed in NY at the time). Grover Cleveland was the only successful candidate. William Jennings Bryan was the exception.
1.7.2009 10:26pm
Buck:
Roosevelt's argument is "You threw out a minimum wage law that enables people to make a decent living!"

The case was actually a freedom of contract case that rejected a restriction on the number of hours bakers could work in a week.
1.7.2009 11:06pm
J. Aldridge:
Wasn't People v. Lochner reversed in Lochner v. New York?
1.7.2009 11:36pm
David M. Nieporent (www):
Roosevelt's argument is "You threw out a minimum wage law that enables people to make a decent living!"

Roosevelt wins.
Roosevelt is an idiot who didn't even read the opinion; Lochner was a maximum hours case, not a minimum wage case.

(And minimum wage laws do not "enable people to make a decent living"; they price unskilled people out of the market, preventing them from earning a living.)
1.8.2009 1:07am
Katl L (mail):
Roosevelt's argument is "You threw out a minimum wage law that enables people to make a decent living!"
And makes many people unemployed,.
The decent living is only for those who dont loss their job thanks to mini un wages laws
1.8.2009 8:27am
Voorhies (mail):
As James J Hill told Teddy in response to his criticism "I have built a railroad- all you have doe is pose for photographs' ". The Jingo did not even read Lochner.
1.8.2009 8:28am
Voorhies (mail):
doe =done
1.8.2009 8:29am
Bill N:

I'm curious as to what percentage of the voting population in 1910 was capable of understanding that last sentence.

You are probably right about that last sentence being incomprenesible to readers (both then and now), but this battle over the courts was a huge issue in the election of 1910. Teddy's attack on Lochner and E.C. Knight launched a firestorm, not just over the decisions, but over whether or not people should criticize courts ("bulwark of our liberties," "defenders of the Constitution," etc. etc. etc). The battle drew in John Dix and Simeon Baldwin (running as Democrats for governor of NY and Conn. respectively), who harangued TR for bringing disrepute to the courts, thus contributing to a perceived climate of lawlessness that was sweeping the country. In the days before the election, this controversy over criticizing the judiciary dominated headlines across the country. Indeed, it was quite controversial at the time to criticize judges, even from the stump. At about this time, a Toledo labor lawyer and editor were cited for contempt for criticizing judges, the former disbarred. The lawyer attempted to exact revenge by running on a "free speech" platform for a seat on the Ohio Supreme Court in 1912; he likely would have won had it not been for the popularity of the Socialist and Progressive Party candidates, the latter of whom won a seat. Crazy times....
1.8.2009 10:41am
FlimFlamSam:
Alton Parker = TTT.
1.8.2009 11:24am
CJColucci:
Without knowing what, exactly, TR said -- and he was certainly given to extravagant and intemperate talk -- it's hard to know what to say about Parker's response.
It's a good guess, however, that whatever else TR said, he said that Lochner was wrong. On Parker's own evidence, 13 of the 24 judges who looked at the question agreed with TR. While it's doubtful that TR had much of substance to say about why he thought Lochner was wrong, and he may well have been ill-mannered in his utterances, that doesn't seem to have been Parker's point. So what was his point?
1.8.2009 12:21pm
Sol:
Point:

"[Roosevets criticism should] 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 is gennerally agreed, I think, that there is a proper bound to criticism, it usually is refered to as 'constructive.'
1.8.2009 1:05pm
CJColucci:
Point:

"[Roosevets criticism should] 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 is gennerally agreed, I think, that there is a proper bound to criticism, it usually is refered to as 'constructive.'


I don't think it is "generally agreed" at all. Politicians of all stripes, from every point on the political spectrum, vigorously denounce judicial decisions they disagree with all the time, rarely in terms that would please the more fastidious among us, and even more rarely in terms that anyone would call "constructive."
All I can tease out of the actual quotation is that Parker got a case of the vapors after TR let loose some strong language. That's probably one of the reasons Parker lost. If you won't even say what you're denouncing and say why it is bad, you can't expect much of a response.
1.8.2009 1:13pm
Bill N:
CJColucci:

I haven't found a complete text of TR's speech, but as William Ross has noted, only the part of the speech attacking the courts was released early to the press, falsely leading commentators to believe the entire speech attacked the courts. That is one reason for the anger. But much of the anger was directed merely at TR's criticism of the Court.

According to the New York Times, "The main proposition of [TR's Denver] speech was that the Supreme Court of the United States had undertaken, by its decisions, 'to leave a neutral ground in which neither state nor nation can exercise authority, and which would become a place of refuge for men who wish to act criminally, and especially for the very rich men who wish to act against the interests of the community as a whole.'" These would seem like pretty tame words, but I've read numerous stump speeches by Progressive Era politicians who carefully tapdanced around such criticism, fearing either a contempt citations or a backlash by the "law and order" voters, who were concerned that criticism of the courts would weaken the judiciary as a bulwark against violence.

Alton's response is not a case of the vapors from one judge embittered by criticism of his decision. The opinion was widespread at the time that criticism of the courts would lead to loss of faith in the courts at a time when violence (strikes, lynching, murder and other violent crime) were believed to be rampant.

The Times editorial, echoing this belief, condemned TR's words, saying that the "effect [of the speech] must be to undermine the authority of law, to create suspicion and distrust of the judiciary, to promote the rule of irresponsible passion, and to strengthen the impulses of the unthinking toward disorder." This sentiment was echoed all across the country in numerous editorials.
1.8.2009 2:25pm
Patrick D. Moran (mail):
Some commenters seem to have missed the point that Judge Parker didn't write Lochner v New York, Parker's opinion was the one overturned by Lochner v New York. Parker and Roosevelt were therefore in agreement that the Supreme Court's decision in Lochner was wrong. Parker was therefore not upset about what Roosevelt said about the decision, he was instead upset about Roosevelt's criticism of the Supreme Court, on the ground that the members of the Supreme Court should not be criticised for doing their job by honestly calling the case the way they saw it. Even if they were wrong.
1.8.2009 4:29pm

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