Courts persevere in tumultuous times

The leak of the U.S. Supreme Court’s draft opinion overturning Roe v. Wade and recent judges’ decisions on COVID and other hot-button issues have stoked criticism of the courts. They are becoming politicized, sidestepping precedent, and misinterpreting the Constitution, say their critics.

Criticism of courts is not new. History suggests that attacks on courts intensify in times of political stress and social change when the courts wrestle with profound, unsettled issues and their decisions have broad ramifications.

New York’s Court of Appeals, arguably the nation’s most important state court, presents historical examples of how courts can persevere in tumultuous times.

■ Shift responsibility to the Legislature: The advent of inexpensive cameras and commercial photography at the end of the 19th century introduced unprecedented privacy concerns. People could be photographed without their consent. Photo studios sold individuals’ pictures for use in advertising. The state Legislature shied away from the issue — defining “privacy” was difficult — hoping the courts would address it.

In 1900, a woman asked the courts to protect her privacy by ordering companies to discontinue unauthorized use of her photo in their ads. The court declined (Roberson v. Rochester Folding Box Company, 1902). Use of the photo might be “very distasteful” to the woman but the constitution, law and previous court decisions did not protect the right to privacy. That is up to the Legislature, said the court.

Some newspapers and politicians heaped scorn on the judges for not protecting the woman’s privacy. But the Legislature, acknowledging the court’s tagging it with responsibility and the public’s growing impatience for privacy protection, passed one of the nation’s first privacy laws in 1903.

■ Support regulatory legislation: In 1904, in People v. Lochner, the Court of Appeals upheld a pioneering state law to regulate the working hours and conditions of bakery workers. The law protected workers’ health and, the court said, was constitutionally permissible. “The courts are frequently confronted with the temptation to substitute their judgment for that of the legislature” wrote the court, but whether the legislation is wise “is not for us to consider.”

The next year, the U.S. Supreme Court, in those days very conservative and inclined to protect business from government interference, reversed the decision and declared the New York law an unconstitutional interference with personal liberty (Lochner v. New York, 1905). The Supreme Court’s narrow view of legislative authority to regulate the economy prevailed for the next couple of decades. But since the late 1930s, the Supreme Court (and state courts) have been more inclined to endorse the New York Court of Appeals’ more expansive view of government regulatory authority.

■ Amend the constitution: New York passed the nation’s first worker compensation law in 1910. The Court of Appeals struck it down as “plainly revo

lutionary” and unconstitutional. The judges endorsed the law’s intent to protect injured workers but pointed out that the state constitution did not authorize it. The Legislature quickly passed, and voters approved, an amendment to provide that authority. The Legislature then approved a new compensation law, stronger than the earlier one, and the Court of Appeals cheerfully validated it (Matter of Jensen v. Southern Pacific Company, 1915).

■ Change opinions based on new evidence and perspectives: Sometimes, the court changed its views based on new evidence of need and justification. A 1903 state law aimed at protecting women workers forbade employing them at night in factories. A 1907 court decision declared that unconstitutional. Women, the court said, are not “wards of the state.” (People v. Williams, 1907). Advocates got a new law passed in 1913. It was again challenged in court. This time, though, proponents submitted massive evidence, including the report of a legislative commission’s investigation of factory conditions and a detailed brief from an advocacy coalition, documenting the harmful effects of night work on women.

The court approved the law this time around. Acknowledging the investigation and evidence, it called the law “reasonable and just and appropriate” and said it will promote “the betterment of public health and welfare.” (People v. Charles Schweinler Press, 1915).

■ Rebuff critics: Sometimes, the courts and their allies pushed back against critics. President Theodore Roosevelt, seeking the Republican nomination for another term in 1912, criticized several courts for their “foolish and iniquitous decisions.” He denounced the Supreme Court’s 1905 Lochner opinion, declaring that “such decisions, arbitrarily and irresponsibly limiting the power of the people are of course fundamentally hostile to every species of real popular government.” He called the 1911 Court of Appeals decision striking down the workers’ compensation law “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 judges and override state court decisions that declared laws unconstitutional.

The courts did not directly respond to this radical proposal, but their allies did. The state Bar Association explained that judicial recall “would destroy the independence of the judiciary and the impartial administration of justice” and subject constitutional law to “public clamor, agitation and constantly varying opinions of voters overruling the judgments of the courts and punishing judges for unpopular decisions.”

Roosevelt failed to get the Republican nomination and ran as head of the new Progressive Party in 1912. He called for reining in the courts and pushed an unprecedented social reform agenda. His candidacy represents “frightful danger” said The New York Times. He was decisively defeated. The judicial recall proposal fizzled after that.

Courts play a powerful role in society. “We are under a constitution, but the constitution is what the judges say it is,” Charles Evans Hughes, Chief Justice 1930-1941, remarked earlier in his career. That gives them strong authority, but also profound responsibility, to make wise decisions.

▶ Bruce W. Dearstyne is a historian in Guilderland. He is the author of “The Spirit of New York: Defining Events in the Empire State's History” and his new book, “The Crucible of Public Policy: New York Courts in the Progressive Era.”