Perhaps no Supreme Court Justice has been caricatured as unfairly as Justice Rufus Peckham, author of Lochner v. New York, among other opinions. Consider the closing lines of the Peckham biography on oyez.org:
Peckham took as his mission the separation of state powers from national powers and the separation of all government from individual rights. His was a daunting task, for as his colleague, Oliver Wendell Holmes observed, the major premise of Peckham’s jurisprudence was “God damn it.” Peckham wrote frequently while he was on the bench but modern students of constitutional law find his reasoning “unfathomable” and the results reached by that reasoning “insupportable.”
I was asked to author a Peckham biography for a forthcoming reference book, and managed to write something a bit more nuanced:
Born in Albany, New York, Peckham was the son of Rufus Peckham, Sr., a prominent Albany attorney, politician, and judge. After being admitted to the bar in 1859, Peckham practiced law with his father’s firm Peckham was active in upstate New York Democatic politics, aligning himself with anti-Tammany forces. Through his political activities, Peckham became friendly with important New York Democrats, most importantly Grover Cleveland. In 1883, Peckham won a trial court seat on the New York Supreme Court. In 1886, he was elected to a seat on the New York Court of Appeals.
Peckham proved a reliable foe of the nascent regulatory state. See, for example, Peckham’s influential opinion in People v. Gilson, 109 N.Y. 389 (1888). His opinions arguing in favor of limited government power to regulate the economy combined a Jacksonian hostility to “class legislation”; a classical liberal natural rights philosophy; sophisticated political-economic analysis; and a bold willingness to disregard common law doctrines in favor of what Peckham considered more modern and liberty-enhancing ideas. In People v. Budd, 22 N.E. 670 (N.Y. 1889), and People ex rel. Annan v. Walsh, 22 N.E. 682, 687 (N.Y. 1889), Peckham dissented from majority opinions upholding the power of the state to fix maximum charges for grain elevators. Peckham attacked the longstanding common law doctrine, consitutionalized by the United States Supreme Court, that states may regulate prices charged by “businesses affected with a public interest.” Peckham spoke of “the absolute liberty of the individual to contract regarding his own property,” but he also provided a penetrating critique of the view that grain rate regulation served the public interest.
President Cleveland appointed Peckham to the Supreme Court in 1896. By this time, an emerging consensus on the Court held that unreasonable uses of the police power violated fundamental rights–especially liberty of contract–protected by the Fourteenth Amendment’s Due Process Clause. In 1897, Peckham helped cement this consensus with his opinion for a unanimous Court in Allgeyer v. Louisiana, 165 U.S. 578 (1897). Allgeyer involved a relatively narrow issue, but Peckham included pro-liberty of contract dicta in his opinion that would be cited by attorney and judicial foes of government regulation for the next forty years. Nevertheless, for the rest of Peckham’s tenure, the Court as a whole was rather deferential to states’ claims that they were acting within their legitimate police powers. The Justices upheld all manner of novel regulatory schemes, often over the dissents of Peckham and his consistent ally, Justice David Brewer.
A rare Peckham victory came in Lochner v. New York, 198 U.S. 45 (1905). Peckham wrote an opinion for a bare five-Justice majority invalidating a New York law forbidding bakery owners from employing bakers for more than sixty hours per week. A great deal of mythology surrounds this opinion, much of it arising from Justice Oliver Wendell Holmes’s famous dissent; in particular, there is little support for the commonly held views that Peckham’s decision is “formalistic” or that it was based on “Social Darwinism.” Rather, Peckham sought to differentiate between legitimate “health laws” and illegitimate “labor laws” that intefered with the right to liberty of contract without a valid police power justification. Peckham concluded first that common knowledge did not suggest that baking was unhealthful. Moreover, statistics from Lochner’s brief, obliquely referenced by Peckham, showed that bakers’ mortality rates were similar to those of clerks, attorneys, physicians, and other unregulated professionals. These statistics, combined with poor briefing by New York, likely account for Peckham’s ability to win a majority. By contrast, three years later Peckham joined the rest of his colleagues in upholding a maximum hours law for women workers. Both common experience and “sociological” evidence supplied by attorney Louis Brandeis suggested this was a legitimate health law.
Beyond his infamous Lochner opinion, Peckham is perhaps best known for his expansive interpretation of the Sherman antitrust law, which he saw as protecting sturdy small businessmen against unfair corporate competition. His opinions on civil rights for African Americans are remarkable only for the apparent ease in which he abandoned his usual antistatism in voting to uphold Jim Crow laws. On the other hand, he, along with Justice Brewer, were far more likely than any of their colleagues to vote in favor of Chinese litigants in the many immigration cases that came before the Court.
Justice Peckham served on the Court until his death in 1909.
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