The Supreme Court (Carol Highsmith, via Library of Congress)
The Supreme Court is being drawn against its will into the chaotic 2016 presidential campaign.
Republicans Donald Trump and Ted Cruz dislike the court's decisions affirming Obamacare and gay marriage. Democrats Hillary Clinton and Bernard Sanders object to its Citizens United campaign finance decision. Senate Republicans are threatening to block President Obama's nomination to replace recently deceased justice Antonin Scalia, alleging the appointment would be better left to the next president (a Republican, they hope). Donald Trump was (probably) kidding when he said his sister, Federal Court of Appeals Judge Marianne Trump Barry, would make a credible Supreme Court nominee.
In a recent speech, Chief Justice John Roberts lamented that partisan extremism is damaging the public's perception of the court as an unbiased interpreter of the law that is above politics. People too often accuse the court of taking sides in an issue but all it is doing is objectively judging constitutional merits, he said. "We have no policy views on the matter at all," Roberts insisted.
But dragging the court into presidential politics has a long history.
Theodore Roosevelt was the first presidential candidate to assail the court, during the 1912 contest. TR, president 1901-1909, was attempting to gain the Republican presidential nomination and oust the man who had succeeded him, William H. Taft.
On a speech-making tour in the West in the fall of 1910, he attacked big business. The nation was in the midst of a struggle "between the men who possess more than they have earned and the men who have earned more than they possess."
He lambasted the federal courts for lagging behind the times and criticized them for "a series of negative decisions to create a sphere in which neither nation nor state has effective control."
He cited the 1905 U.S. Supreme Court decision in Lochner vs. New York as a prime example. By a vote of 5 to 4, the court had overturned a New York law regulating the hours and working conditions of bakeshop employees on the basis that it violated the provision of the 14th amendment to the Constitution that no state shall "deprive any person of life, liberty, or property, without due process of law." That amendment, passed in 1868, had been intended to protect the civil rights of newly-liberated African-Americans. But the courts had stretched it so that that "liberty of contract" included the right of employers and employees to work for whatever wages and hours both parties agreed to.
The courts had used this broad interpretation of the amendment to strike down a number of state regulatory statutes. TR knew the Lochner case well. As governor of New York, 1899-1901, he had enforced the bakeshop regulations. As president, he had watched the case come up through the New York State court system. In 1904, the State Court of Appeals validated the law in a decision written by its Chief Judge, Alton B. Parker, who later that same year secured the Democratic presidential nomination and ran unsuccessfully against TR. He followed the case in the U.S. Supreme Court the next year and read the decision, which was written by still another New Yorker, Justice Rufus Peckham. But the president made no public comment on it.
Roosevelt, in 1910, however, declared that the Lochner decision had been particularly egregious because it had ignored the problems that the bakeshop law was intended to address and exercised "the negative power of not permitting the abuse to be remedied." The court had demonstrated that it was "against popular rights" by asserting that "men must not be deprived of their 'liberty' to work under unhealthy conditions....Such decisions, arbitrarily and irresponsibly limiting the power of the people are of course fundamentally hostile to every species of real popular government."
Newspaper editorials and political leaders in both parties expressed outrage at the attack on the court.
Roosevelt, undeterred, went on to suggest something even more extreme, allowing voters to recall judges. He advanced a campaign platform filled with liberal proposals, including federal regulation of corporations, a national health service, and insurance for the elderly (similar to Social Security two decades later). His attack on the judiciary seemed menacing and his other proposals were ahead of their time. TR "startled all thoughtful men and women and impressed them with the frightful danger which lies in his political ascendancy," said the New York Times. Roosevelt failed to get the Republican nomination and went on to found a new party, the Progressive Party, but was decisively beaten in the 1912 presidential contest.
The Lochner decision was influential and was often cited by the courts in striking down state and federal regulatory statutes until 1937, when it was in effect repudiated in the decision of West Coast Hotel vs. Parrish.
Supreme Court Justice Rufus Peckham, in his opinion in the 1905 Lochner case, insisted, a little defensively, that "this is not a question of substituting the judgment of the court for that of the legislature." But TR lambasted the court in 1910 for doing just that. John Roberts, at his confirmation hearing to be Chief Justice in 2005, pointedly disagreed with Peckham's assertion a century earlier. Roberts said that the majority in the Lochner decision was "not interpreting the law, they're making the law...substituting their judgment on a policy matter for what the legislature had said."
Roberts was probably right. Theodore Roosevelt would certainly agree.
But Roberts probably shouldn't be surprised, then, that 2016 presidential candidates are criticizing his court, following the precedent set by TR back in 1910.
They believe the court's objectivity has been tarnished.
And, also like TR, they think they see an easy opportunity to score political points.
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Dr. Bruce W. Dearstyne's latest book is The Spirit of New York: Defining Events in the Empire State's History, published in 2015 by SUNY Press.
