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Peckham, Rufus Wheeler Jr.

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Birth: November 8, 1838, Albany, New York.

Education: Albany Boys' Academy; studied privately in Philadelphia; read law privately, admitted to the bar, 1859.

Official Positions: District attorney, Albany County, 1869–1872; corporation counsel, City of Albany, 1881–1883; judge, New York Supreme Court, 1883–1886; judge, New York Court of Appeals, 1886–1895.

Supreme Court Service: Nominated associate justice by President Grover Cleveland, December 3, 1895, to replace Howell E. Jackson, who had died; confirmed by the Senate, December 9, 1895, by a voice vote; took judicial oath January 6, 1896; served until October 24, 1909; replaced by Horace H. Lurton, nominated by President William Howard Taft.

Death: October 24, 1909, Altamont, New York.

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Rufus Wheeler Peckham Jr.
Noteworthy Opinions

Rufus Wheeler Peckham Jr.

Rufus Wheeler Peckham was born in 1838 into one of New York's oldest and most prominent upstate families. Although in his later years he relished the mantle of judicial impartiality, his life was filled with intense partisan furor, and there can be little doubt that this fact exercised a tremendous influence over Peckham's judicial philosophy. His father, also named Rufus Wheeler Peckham, was a Democratic Party stalwart who served in the House of Representatives and, like his son, on the New York Supreme Court and court of appeals. The younger Peckham was strongly influenced by his father's political and philosophical views and was so similar to his father in mannerisms and appearance that the two were occasionally confused by their contemporaries. Peckham's older brother, Wheeler H. Peckham, was a president of the state bar and himself a nearly successful candidate for a seat on the Supreme Court.

Peckham's judicial philosophy was strongly shaped by the two preoccupations of his pre-judicial career, namely, struggling with Tammany Hall for control of the state Democratic Party machinery and representing major corporate interests, particularly railroads. In the political arena, Peckham aligned himself closely with Grover Cleveland, who came to view Peckham as a principal ally. On the corporate stage, Peckham developed a reputation as a zealous, if not brilliant or inventive, advocate for the captains of industry. Although Peckham himself was never the target of charges of serious corruption, there can be little doubt that his excellent political connections were useful to his clients and contributed to his success in practice—judges in New York are elected, and in the second half of the nineteenth century these elections were fiercely partisan.

As the nineteenth century drew to a close, America's tycoons were under attack from an array of groups seeking to rein in the industrialists' unfettered control over the market and the workplace. Reformers sought to bust monopolies, develop more humane working conditions, end child labor, and protect consumers. To industry's defense rose Rufus Peckham, and great titans of industry such as George F. Baker, Jim Fisk, Jay Gould, James J. Hill, J. Pierpont Morgan, William Rockefeller, James Speyer, and Cornelius Vanderbilt became his clients, friends, and confidants.

Peckham's best known Supreme Court opinion is Lochner v. New York (1905), but the views in that case are stated much more vigorously in a dissent he wrote while on the New York Court of Appeals, to which he was elected in 1886 with Cleveland's solid support. In People v. Budd (1889), New York's efforts to fix rate levels for grain elevators were attacked as unconstitutional. The court upheld the statute. Peckham's impassioned dissent contains one of the clearest and earliest statements of substantive due process. Directing stinging criticism at his colleagues for their political partisanship, he observed that “all men, however great and however honest, are almost necessarily affected by the general belief of their times.” Yet Peckham, even more than his colleagues, was driven by a political credo. He believed that allowing the government to intervene in the economy would “wholly ignore the latter and as I firmly believe the more firmly correct ideas which an increase of civilization and a fuller knowledge of the fundamental laws of political economy, and a truer conception of the proper functions of government have given us at the present day.”

Curiously, Peckham saw the political controversy in terms of an almost Marxist class struggle. In his mind, the government could not be permitted to involve itself in a struggle between one “class” (impoverished farmers) against another (capitalist grain factors), because such involvement would lead to “a new competition for the possession of the government so that legislative aid may be given to the class in possession thereof in its contests with rival classes or interests in all sections or corners of the industrial world.” For Peckham, the Constitution formed a bulwark against government interference in favor of the underprivileged: the statute was an abridgement of “the most sacred rights of property and the individual's liberty of contract” and was entitled to no presumption of validity. Freedom of contract and the takings clause invalidated such legislation, which, moreover, was “not only vicious in its nature, communistic in its tendency and in my belief wholly ineffective to permanently obtain the results aimed at, but illegal.”

In 1895 the death of Justice Howell F. Jackson created a vacancy that President Cleveland was quick to fill with the nomination of his Albany protŽgŽ, Rufus Peckham. The confirmation process was uneventful. During his thirteen-year tenure on the Court, Peckham wrote 303 opinions, 9 dissents, and 2 concurring opinions, but only one opinion is generally still reckoned to be of importance, Lochner v. New York (1905).

From his arrival on the Court, Peckham belonged to its ultraconservative wing. He joined the majority in Plessy v. Ferguson (1896)—perhaps the Court's most pernicious case after Dred Scott v. Sandford (1857)—endorsing the “separate but equal” doctrine, and he dissented in nearly all the cases, most notably Holden v. Hardy (1898) and Jacobson v. Massachusetts (1905), in which reform legislation was sustained. By 1905 Peckham was finally able to muster a 5–4 majority on the Court for his viewpoint.

In Lochner, the Court was presented with a challenge to New York's law limiting the number of hours that an employee could work in a bakery to sixty per week. Peckham declared that the right of employee and employer to contract freely for performance of labor is fundamental to the Fourteenth Amendment, and any state power of intervention narrowly circumscribed. If the state chooses to invoke its police power in a way that potentially infringes freedom of contract, the Court must inquire: “Is this a fair, reasonable, and appropriate exercise of the police power of the state, or is it an unreasonable, unnecessary, and arbitrary interference of the right of the individual to his personal liberty, or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family?” So phrased, there could be little doubt as to the anticipated outcome. The effect of Lochner was to elevate the Supreme Court to the status of a super legislature authorized to reconsider the wisdom of legislation and to strike down offensive acts as an abridgement of the “sacred freedom of contract.”

Peckham and his colleagues maintained that the Civil War amendments had one essential purpose: to further individual economic rights, particularly the freedom of contract. They simultaneously denied or undermined what clearly had been the major purpose of those amendments, to protect the fundamental civil and human rights of the recently emancipated slaves. In the hands of the Court's conservative majority, these constitutional provisions had the effect not only of frustrating the efforts of Progressive reformers to enact and enforce legislation protecting consumers, promoting health, and improving safety in the workplace, but also of offering no protection to black southerners feeling the oppressive hand of the Ku Klux Klan and its sympathizers in state government, or to individuals facing criminal procedures clearly at odds with the Bill of Rights. Peckham was forthright in acknowledging that his purpose in introducing substantive due process was to protect America's industrial sector, the mainspring of America's economy, against the regulatory barrage of the Progressive movement. Peckham acknowledged a single exception—for women. In his paternalistic view, women were the “weaker sex” and required protection from the exploitation of men (Muller v. Oregon, 1908).

Peckham was also an active writer on cases challenging the Sherman Antitrust Act. His opinions in this area reveal strong sympathies for antitrust legislation for the protection of small business. In United States v. Trans-Missouri Freight Association (1897), he wrote:

It is not for the real prosperity of any country that such changes should occur which result in transferring an independent business man, the head of his establishment, small though it might be, into a mere servant or agent of a corporation selling the commodities which he once manufactured or dealt in, having no voice in shaping the business policy of the company and bound to obey orders issued by others.

In Addyston Pipe & Steel Co. v. United States (1899), he succeeded in breathing new life into the antitrust act by rejecting the argument advanced by manufacturers that proof of total monopoly was necessary to sustain an action. Higher prices alone constituted sufficient evidence, Peckham reasoned. Still, in the most important antitrust case of the period, Northern Securities Co. v. United States (1904), he sided with the conservative majority in urging a narrow reading of the act, so that it applied only against unreasonable restraints of trade.

A significant number of Peckham's other contributions on the Court were in the area of criminal procedure. With only a few exceptions, Peckham, the former Albany County prosecutor, revealed his disdain for the “mere technicalities” of criminal procedure that are the bedrock of the Bill of Rights (White v. United States, 1896). He was vehement in the conviction that the Bill of Rights protections of the criminal justice system, while grudgingly applicable in federal courts, should not apply to the states (Maxwell v. Dow, 1900).

Today, we know Peckham principally through the devastating critique of Oliver Wendell Holmes Jr., whose Lochner dissent is a dazzling example of judicial exposition. “The Fourteenth Amendment,” he insisted, “does not enact Mr. Herbert Spencer's Social Statics”—a popular and widely read presentation of the doctrine of laissez-faire. Still, it took thirty years, the Great Depression, and the appointment of New Deal justices before the Court accepted this view and substantive due process fell into judicial opprobrium. By the 1950s it seemed that Peckham and his doctrine were useful to law professors only as an example of what the Supreme Court should not do.

In the 1960s and 1970s, however, scholars and activists looking for a creative way of addressing civil rights problems turned again to Lochner. Substantive due process, they reasoned, might be revived as a doctrinal basis for challenging state and federal laws that interfere with fundamental civil and human rights, such as the right to privacy, reproductive rights, and freedom from ethnic or religious discrimination. Reframed in this way, substantive due process continues to live as a credible constitutional doctrine, but the circumstances of the doctrine's birth under the parentage of Rufus Peckham do little to burnish it.


There is no full-scale biography of Peckham, but shorter sketches include Richard Skolnik, “Rufus Peckham” in Friedman and Israel, Justices, vol. 3, 1685 (the most exhaustive treatment of Peckham's legal career); A. Oakey Hall, “The New Supreme Court Justice,” Green Bag 8 (1896) (an interesting though somewhat fawning contemporary account of Peckham's career as a lawyer); and Proceedings of the Thirty-Third Annual Meeting of the New York State Bar Association (1910), 683–712 (professional reminiscences). A harshly critical dissection of judicial interventionism by the conservative Court of the Peckham era is Louis B. Boudin, Government by Judiciary, 2 vols. (1932), 2: 423–442. A more modern view is in Paul Kens, Lochner v. New York: Economic Regulation on Trial (1998).

Noteworthy Opinions

White v. United States, 164 U.S. 100 (1896)

United States v. Trans-Missouri Freight Association, 166 U.S. 290 (1897)

Addyston Pipe & Steel Co. v. United States, 175 U.S. 211 (1899)

Maxwell v. Dow, 176 U.S. 581 (1900)

Lochner v. New York, 198 U.S. 45 (1905)


Document Citation
Peckham, Rufus Wheeler Jr., in Biographical Encyclopedia of the Supreme Court 395 (Melvin I. Urofsky ed., 2006),
Document ID: bioenc-427-18168-979452
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