After a series of life-changing decisions by the United States Supreme Court, we were grateful last week to talk to Bruce Dearstyne of Guilderland about his new book on our state’s highest court in the Progressive Era.

With a carefully researched perspective, Dearstyne quoted Charles Evans Hughes from a speech he made in 1907 when he was New York’s governor: “We are under the Constitution, but the Constitution is what the judges say it is, and the judiciary is the safeguard of our liberty and of our property under the Constitution.”

Hughes of course went on to become chief justice of the United States Supreme Court.

“We have to keep in mind that the judges have profound power,” said Dearstyne. “They also have, I would say, a profound responsibility.”

The nut of what Hughes said in the Progressive Era — the Constitution is what the judges say it is — is not all that different from what the late Judith Kaye, New York’s chief judge from 1993 to 2008, said in our era: “I think it clear that common-law courts interpreting statutes and filling the gaps have no choice but to ‘make law’ in circumstances where neither the statutory text nor the ‘legislative will’ provides a single clear answer.”

Kaye gave the example of the Court of Appeals decision interpreting the term “family member”  in a 1946 New York City rent-control statue to include the deceased tenant’s homosexual partner.

Only months after that decision, regulations were enacted to enlarge the definition of “family member” to include “[a]ny other person residing with a tenant … who can prove emotional and financial commitment and interdependence [with] the tenant.”

Kaye wrote that legislatures “not only accept such judicial decision-making as entirely legitimate, but also expect that within defined boundaries courts will make such choices, which can of course then be embraced, enlarged, or entombed.”

The problem with our current Congress is a severe lack of legislative will.

In his book on New York’s top court, Dearstyne time and time again chronicles the essential interaction between the judicial and legislative branches of government. A democracy cannot function without that balance.

One of the cases that shows this interplay, Roberson Vs. Rochester Folding Box Company, was discussed at length by Dearstyne. A 17-year-old Rochester woman, Abigail Roberson, was stunned to the point of a nervous collapse — sending her to bed under a doctor’s care — after a studio portrait of her showed up on advertising posters without her permission.

The portrait, a profile showing her head, neck, and shoulders, was printed by the Rochester Folding Box Company to advertise Franklin Mills Flour under the title “Flour of the Family.”

Dearstyne, who believes Roberson was an orphan, said she suffered “acute mental distress” and took the matter to court through her aunt.

This was soon after cameras became widely available and there were public concerns about privacy. “By the turn of the century, people could snap other people’s photos surreptitiously,” said Dearstyne. And commercial studios could sell their prints without the subject’s permission; women in particular were exploited.

“Maybe the most extreme example was the president’s wife, Frances Folsom Cleveland. Advertisers got hold of her image and used it in ads for food products, medicines, and the like.”

The first two courts in New York’s three-tiered system ruled in favor of Roberson. Then, in 1902, the Court of Appeals, in a close 4-to-3 ruling, reversed the lower courts’ decisions.

Summarizing the case, the chief judge, Alton B. Parker, soon to be defeated in his run for the presidency, wrote, “Such publicity, which some find agreeable, is to plaintiff very distasteful, and thus, because of defendants’ impertinence in using her picture without her consent for their own business purposes, she has been caused to suffer mental distress where others would have appreciated the compliment to their beauty implied in the selection of the picture for such purposes ….”

“The so-called ‘right of privacy’ has not as yet found an abiding place in our jurisprudence,” wrote Parker, for the majority. He feared a flood of litigation.

What followed was a flood of criticism from the public and the press — and a call for legislation that the state’s top court had said was lacking. Dearstyne notes that the legislature had taken up the matter several times in the late 1890s without results.

Often, he said, legislatures, including Congress, hope courts will deal with difficult issues so they “will take the heat.”

This time, the New York State Legislature acted and passed the nation’s first privacy law in 1903. When that law was later challenged in court, “The court ruled that’s fine. It’s the law. We approve it. No problem, ” said Dearstyne.

Other states soon followed suit. That law is still on the books in New York State.

The problem at the national level, with the recent Supreme Court rulings, is that Congress is so deeply divided, it is unable to act.

In the 6-to-3 decision limiting the Environmental Protection Agency’s ability to control power-plant emissions, for example, the Supreme Court said “clear congressional authorization” is needed.

None will be forthcoming.

Abuse of the filibuster by Republican senators has hamstrung Congress from acting on behalf of the majority of the public.

We agree with the three dissenting justices who wrote “the power to respond to the most pressing environmental challenge of our time” has been hamstrung. The Biden administration’s goal of halving our greenhouse gasses in a decade will fall by the wayside if Congress doesn’t act.

A study from Yale Law School shows that “overrides are a critical component of the Congress-Court dialogue in statutory interpretation cases.”

It shows how for decades, just as in the Progressive Era privacy case in New York State, an interplay between courts and legislatures is essential to carry out the will of the people.

The majority of overrides of 275 Supreme Court decisions, from 1967 to 2011, were “motivated not by a desire to rebuke an errant Supreme Court decision, but instead by the perceived need to update public policy,” the study found. 

The authors argue that “congressional overrides serve valuable public purposes, for they represent democratically legitimate policy updates and contribute to both good public policy and even the predictable operation of the rule of law.”

We can all see the threat that climate change poses not just to the United States but to the world. Every day, in places around the globe, we read the news of melting glaciers and rising sea levels, of drought and the famine that follows, of violent storms and wildfires and the destruction they wreak.

If the majority of our current Supreme Court justices do not believe that Congress’s passage of the Clean Air Act in 1970 gave the Environmental Protection Agency the broad authority it needs, then Congress should act to create that authority.

At least we New Yorkers live in a state with a history of the legislature reacting to court rulings.

We commend Governor Kathy Hochul and the state legislature for the work done in their extraordinary session, called in the wake of the Supreme Court striking down New York’s sensible century-old law, which had required those who wanted to conceal guns to have a reason, and in overturning Roe v. Wade.

Enacting gun-safety legislation and giving New Yorkers the chance to vote on an amendment to solidify the right to abortion in the state constitution reflects the will of the majority of New Yorkers — which is precisely what an elected legislative body should do.

Of course the third branch of our government can weigh in, as President Joe Biden did last Friday, reacting to the Supreme Court overturning Roe v. Wade, with an executive order meant to insure access to emergency contraception and abortion medication. But, as Biden himself said, the court’s majority in the decision “practically dares” women to assert their political power to put in place laws that restore abortion rights permanently.

Biden went on to quote from the majority decision, “Women are not without electoral or political power. It is noteworthy that the percentage of women who registered to vote and cast a ballot is consistently higher than the percentage of the men who do so.”

Most Americans want to protect our planet from the ravages of climate change. Most Americans want an end to gun violence. Most Americans did not want to see the half-century precedent set by Roe v. Wade overturned.

“We are under the Constitution, but the Constitution is what the judges say it is ….,” said Charles Evans Hughes well over a century ago. With the radical majority now on our Supreme Court, we need our legislators to enact the will of the majority.

And we need votes in November that reflect the majority. We hope, just as the midterm elections in 1866 turned on the issue of adopting the 14th Amendment, the midterm elections of 2022 will turn on making the needed legislative changes to stem climate change, reduce gun violence, and restore women’s rights.

We need now, in this Regressive Era, to return to the spirit of the Progressive Era of a century ago when constructive debate, compromise, and bipartisan solutions led to much needed reforms that carried our nation forward. Our democracy depends on it.