The Volokh Conspiracy - 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.

	[David Bernstein, January 7, 2009 at 7:41pm] Trackbacks 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.