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New York State's Lessons on Preventing a Crisis of Judicial Legitimacy

New York Court of Appeals, Albany. Architect Henry Rector (1842)

Public concern about recent Supreme Court decisions on abortion, religious rights and other hot button issues is on the rise. Before the court began its current term last fall, a number of its justices took the highly unusual step of pleading for public understanding. Their court is just following the Constitution, the law, and judicial precedent, they say. Angry critics are so far not mollified, calling for expansion of the court’s membership to counteract its alleged conservative biases.

History suggests that attacks on courts peak in times of stress and social change when the courts wrestle with profound, unsettled issues and their decisions have broad ramifications.  The criticisms usually fizzle as courts cautiously tack toward the center and align more closely with the perceived public consensus on key issues.

Historians’ focus on the Supreme Court has obscured the fact that most regulatory and constitutional issues were thrashed out and decided in state rather than federal courts during much of our history, including the progressive period (ca. 1890-1920).  Studying the New York Court of Appeals, the state’s highest court, arguably second in importance only to the U.S. Supreme Court in those days, provides insights into how courts balanced their obligations to the constitution and the need for new laws and regulations. The progressive period was a time of rapid population growth, economic transformation, and unprecedented government policies to regulate business and labor. Courts were panned then for striking down reform laws that judges said violated constitutional guarantees of personal liberty and due process of law.

As my forthcoming book The Crucible of Public Policy: New York Courts in the Progressive Era demonstrates, New York’s high court was more progressive than many of its state counterparts or the U.S. Supreme Court at that time. It was inclined to validate progressive legislation. But it was criticized for what it did not do, i.e., not asserting a common law right to personal privacy in the absence of a specific statutory protection in a 1902 decision,  Roberson v. Rochester Folding Box Company and the Franklin Mills Company. The  high court also took heat for what it did do, e.g., invalidating a law banning night work by women in factories in 1907 (People v. Williams) and a workers’ compensation law in 1911 (Ives v. South Buffalo Railway Company).  

Former president (and New York governor) Theodore Roosevelt, seeking the Republican nomination for another term as president in 1912, criticized several courts for their “foolish and iniquitous decisions.” He called the New York workers’ compensation decision “flagrant in its defiance of right and justice” and “shortsighted in its inability to face the changed needs of our civilization.” TR proposed giving voters the right to recall and override state court decisions that declared laws unconstitutional. Some critics went even further, advocating letting voters recall erring judges as well as their decisions. Some newspapers took up the cry: make the courts more responsive to the public.

Attacks by politicians and the media seemed for a while to threaten the Court of Appeals’ independence and authority.  But the criticism  gradually and quietly subsided through evolution and compromise. Some explanations of why this happened may provide insights for courts today:

  • When the Court of Appeals refused to assert a public right in the absence of a clear authorizing statute, the legislature took the hint and stepped up. In 1903, after the Roberson decision, it passed New York’s first right-to-privacy law. When the new law came up for review, the Court of Appeals cheerfully approved it (Rhodes v. Sperry Hutchinson, 1908).
  • Politicians, sometimes reluctantly, conceded the court’s assertion that the state constitution would not allow desirable new policies and therefore needed to be amended.  Voters approved an amendment to that constitution to authorize a workers’ compensation law in 1913. The legislature then passed a new law which was stronger than the one the court had struck down in 1911. The  Court of Appeals validated it (Matter of Jensen v. Southern Pacific Company, 1915).
  • The Court of Appeals changed its mind when presented with substantial new evidence on actual conditions and needs. In 1915, it validated a new legal ban on women’s factory night work similar to the one it had invalidated in 1907. The court was swayed by extensive new evidence on the baneful effects of night work presented by a state commission investigating factory conditions and an amicus brief prepared mostly by activist attorney (and future Supreme Court Justice) Louis D. Brandeis. The law is “within the power possessed by the legislature,” said the court. It is ”constitutional [and] in the interest of public health and welfare of the people of the state” (People v. Charles Schweinler  Press, 1915).
  • As new, more progressive-minded judges replaced more conservative ones, the Court of Appeals over time quietly backtracked and took a more relaxed, expansive view of some  government responsibilities.  In a 1905 decision, Wright v. Hart, the court struck down a law restricting bulk sale of goods as a violation of constitutional rights. But in 1916, considering a similar law passed latter, the court admitted that “it is our duty to hold that the decision in Wright v. Hart is wrong.” Back in 1905, “such laws were new and strange.” Since then, other states had enacted such regulations and their courts had mostly approved. “The needs of successive generations may make restrictions imperative today which were vain and capricious  [in] times past” (Klein v. Maravelas, 1916).
  • Sometimes, the court approved the substance of regulatory laws but struck them down on technicalities. New York’s Commission of Gas and Electricity, created in 1905, had extensive statutory authority to regulate gas and electricity companies and decide maximum rates for their services and products. The commission was forerunner of what would later be called the administrative state – powerful administrative agencies with the authority to promulgate rules with the force of law, enforce regulatory compliance, and make binding decisions about public rights and services. The Court of Appeals strongly affirmed the legislature’s authority to create such agencies with unprecedented power. But it invalidated the law because it restricted companies’ rights to appeal commission decisions (Saratoga Springs v. Saratoga Gas, Electric Light, Heat and Power Co., 1907). By then, it was moot point. The commission had been superseded by an even more powerful agency, the Public Service Commission, which supervised railroads as well as electric, gas, and other public utility companies. The PSC law, passed in 1907, included the sort of review provision that the court had found wanting in the 1905 law. The court’s strong affirmation of the principle of the administrative state in its Saratoga decision meant that the constitutionality of the PSC was not seriously challenged in court and also helped greenlight other powerful administrative agencies.
  • While judges seldom publicly responded to critics in those days, leading attorneys and the State Bar Association did. The association declared in 1913 that the courts were sound, their decisions well considered and well documented. The real problems were “misstatements and misrepresentations of the decisions and attitudes of the courts,” “fault finding of defeated litigants and their attorneys” and “abuse and misrepresentation” in the press. Recall of court decisions or judges “would destroy the independence of the judiciary and the impartial administration of justice.” It would substitute “for the training, intelligence and conscience of the judiciary, and settled rules of law, public clamor, agitation and constantly varying opinions of voters overruling the judgments of the courts and punishing judges for unpopular decisions.”

The media picked up on the Bar Association’s argument that independent courts protected the public interest. The recall proposal went nowhere in New York, though it did advance in some other states. Politicians’ criticism of the courts abated.  A 1915 state constitutional convention passed on an opportunity to rein in the court.  A 1921 legislative commission concluded that the state’s judicial system had “proved reasonably successful and satisfactory.”

The Court of Appeals’ strategies of compromise, forbearance, openness to change and good judgment combined with public support for judicial independence helped preserve the court’s integrity and role as arbiter of constitutionality.  That may be a good precedent for both the Supreme Court and its critics to consider in the months ahead.