There is a revival of a long-discredited legal doctrine among conservatives, mostly among Libertarian lawyers, some of whom post at the Volohk Conspiracy, the Federalist Society, the so-called “Constitution in Exile movement,” and a book by David Bernstein, “Rehabilitating Lochner,”which argues that the U.S. Supreme Court decision in Lochner v. New York (1905) was correctly decided, and that the Lochner era never should have ended:
The Lochner era is a period in American legal history in which the Supreme Court of the United States made it a common practice “to strike down economic regulations adopted by a State based on the Court’s own notions of the most appropriate means for the State to implement its considered policies,” by using its interpretation of substantive due process to strike down laws held to be infringing on economic liberty or private contract rights.
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Since the 1930s, Lochner has been widely discredited as a product of a “bygone era.” Robert Bork called Lochner “the symbol, indeed the quintessence, of judicial usurpation of power.” In his confirmation hearings to become Chief Justice, John Roberts said, “You go to a case like the Lochner case, you can read that opinion today and it’s quite clear that they’re not interpreting the law, they’re making the law,” concluding that the Lochner court substituted its own judgment for the legislature’s findings.
Chief Justice John Roberts recently reaffirmed his views on Lochner by citing it 16 times in his dissent in Obergefell v. Hodges. Chief Justice Roberts’ Marriage Equality Dissent Has A Hidden Message for Conservatives:
[I]n the process of reaching his conclusion, Roberts also rejected a particularly aggressive brand of judicial conservatism that is rapidly becoming ascendant in conservative legal circles.
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Chief Justice Roberts announced to his fellow conservatives that their most ambitious legal cases are doomed to failure.
Roberts’s Obergefell dissent, moreover, needs to be read alongside the decision he handed down just one day earlier — his remarkable majority opinion in King v. Burwell, which appeared to scold his fellow conservative lawyers for using the courts as a tool to fight political battles. “In a democracy,” Roberts wrote in that opinion, “the power to make the law rests with those chosen by the people.” He then added language that will render the Affordable Care Act unusually resistant to legal challenge.
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Read together, Roberts’s King and Obergefell opinions may mark a turning point in American law. They suggest that the chief justice has grown tired of efforts to politicize the judiciary, and that he is particularly annoyed with his fellow conservatives for trying to achieve through litigation what they could not win in elections. If this interpretation of Roberts’s actions proves true, then the chief justice’s dissent from a decision bringing the blessings of equality to all 50 states may, ironically, be one of the most positive developments for liberals in the last several Supreme Court terms.
It appears that the Patrician Prevaricator For The Plutocracy, George Will, did not get the clear message sent by Chief Justice John Roberts. (It is only a matter of time until his Mini-Me at The Arizona Republic, Robert Robb, follows his lead). In his most recent column in the Washington Post, Will not only advocates for a return to the judicial activism of the Lochner era, but proposes that support for this long-discredited legal doctrine be a litmus test for presidential candidates in the 2016 GOP presidential primary, and if elected, that a Republican appoint pro-Lochner justices to the U.S. Supreme Court.
Ian Milhiser at Think Progress takes apart the radicalism of George Will. George Will Is The Canary In American Democracy’s Coal Mine:
The Declaration of Independence proclaims that governments derive “their just powers from the consent of the governed.” In his latest column, conservative writer George Will boldly rejects this founding principle. In the process, he also takes sides in a battle within the Republican Party over just how much power the Supreme Court should have to strike down laws the party disapproves of. Should one of these candidates win temporary residence in the White House, moreover, the question of whether that candidate agrees with Will could have longer reaching implications than any other issue facing the voters this election.
The premise of Will’s column is that a long-overruled Supreme Court decision which drastically limited lawmakers’ ability to make law — especially when those laws were enacted to protect workers — was correctly decided and should be reinstated. Will calls upon the next Republican elected to the White House to ask their potential judicial nominees whether they agree that the Court’s 1905 decision in Lochner v. New York “correctly reflected the U.S. natural rights tradition and the Ninth and 14th amendments’ affirmation of unenumerated rights.” He also suggests that Texas Supreme Court Justice Don Willett, who recently outed himself as sympathetic to a revisionist history attractive to Lochner‘s supporters, should be that president’s first nominee.
Taken on its own, Will’s column could be dismissed as the idiosyncratic views of a man who, having been granted tenure by a major newspaper, now feels comfortable offering opinions with little or no constituency. Will’s repudiation of democracy, however, aligns him with a small but vocal movement within the conservative legal community that supports a wholesale transfer of power from the people’s representatives to conservative justices on the United States Supreme Court. Will, in other words, is speaking on behalf of an important faction within the Republican Party. And should this faction gain control of the White House and, ultimately, the Supreme Court, it could profoundly alter the nature of American government.
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Will’s Lochner column is of a piece with his columns rejecting climate change and claiming that rape victimhood is a “coveted status.” Lochner is widely viewed as part of the Supreme Court’s “anti-canon,” a series of decisions that also includes the pro-slavery decision in Dred Scott and the Court’s decision upholding Japanese American detention camps in Korematsu, which are taught in law schools primarily as examples of how judges should not behave. Until recently, Lochner was widely rejected by liberals and conservatives alike. Chief Justice John Roberts, who belongs to a more moderate conservative tradition than the forces seeking to reinstate Lochner, labeled the decision “discredited” in a dissenting opinion. His opinion was joined by Justices Antonin Scalia and Clarence Thomas, both of whom belong to much more conservative traditions that Roberts.
Lochner rested on a fabricated constitutional “right to contract,” which a majority of the justices found implicit in the Fourteenth Amendment’s promise that no state shall “deprive any person of life, liberty, or property, without due process of law.” In essence, the case stands for the proposition that workers have a broad “right” to agree to oppressive working conditions, low pay, and long hours. The law stuck down in Lochner limited bakery workers’ work days to 10 hours a day — prior to that law, the average baker worked between 13 to 14 hours a day — but Lochner‘s so-called right to contract was also wielded to strike down other progressive labor laws such as the minimum wage or laws preventing union busting.
Will’s column, however, touts a libertarian alternative history of Lochner, which claims that the law struck down in this case “actually was rent-seeking by large, unionized bakeries and their unions” who wanted to “crush their small, family-owned, nonunionized competitors that depended on flexible work schedules.” This alternative history, however, is doubtful for several reasons. For one, there is no evidence in the Lochner opinion itself that the justices were concerned about such “rent-seeking,” or even that they believed that such a thing existed in this case. For another, even if it were true that the specific law at issue in Lochner was passed due to the nefarious work of anti-family unions, that still does not explain why other progressive legislation, such as the minimum wage, needed to be caught up in the sweeping constitutional rule announced in Lochner.
The libertarian version of Lochner‘s history, moreover, is a minority view among scholars. As Paul Kens, a leading scholar of the case, explains, “[i]n reading everything I could find on the statute’s enactment, I found no evidence that ‘powerful unions’ or ‘big bakeries’ took part in passing the bakeshop law.”
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Will’s own willingness to embrace an alternative history of the motivations behind the law invalidated in Lochner, however, emphasizes the very reason why this approach to judging was rejected and why Lochner is now held to be anti-canon.
It is convenient that, in contradiction to most scholars and despite no evidence in the Lochner opinion supporting his argument, Will embraces a narrative that just happens to comport with his political preferences.
Judges are no more immune to this kind of motivated reasoning than George Will is, so current doctrine normally does not allow judges to dig into the motives of lawmakers to determine whether the judges think a law is unwise. As the Supreme Court explained, some years after Lochner was overruled, “[t]he day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought.” Unwise laws are an inevitable consequence of government. Given this reality, however, modern doctrine recognizes that it is most often better to have these laws be made by elected officials who can be held accountable if they govern poorly than to have our laws set by unelected judges who serve for life.
Will, however, would upend this doctrine and restore a line of cases that rendered much of the web of laws protecting workers in the workplace impossible. Nor would Will’s project stop by invalidating laws such as the minimum wage or protections for unionized workers. As I explain in my book, Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted, the Supreme Court read the so-called freedom to contract embraced by Lochner to establish that the law may not “compel any person in the course of his business and against his will to accept or retain the personal services of another.” Thus, laws banning race, gender or other forms of discrimination in the workplace would also be invalid under the long dead Supreme Court case Will cherishes.
Nevertheless, Will’s embrace of Lochner is increasingly common in conservative legal circles, and Will’s views are shared by several sitting judges, members of Congress and even presidential candidates. Sen. Rand Paul (R-KY), for example, has delivered multiple speeches praising Lochner. Former Texas Gov. Rick Perry (R), while not explicitly embracing Lochner, has claimed that laws like Social Security and Medicare are unconstitutional, a view that is often shared by proponents of Lochner.
George Will, in other words, is a kind of canary in American democracy’s coal mine. His column is a warning that the pro-Lochner movement has grown large enough to capture one of the nation’s most visible political columnists, and he speaks for a movement that could potentially win the White House in 2016. Should this happen, that Lochnerite president could change the Supreme Court very quickly. Three of the Court’s current members will be over the age of 80 on Inauguration Day 2016, and one justice will be not far behind. Moreover, should this movement succeed in capturing a majority of the Supreme Court, they could render many subsequent elections irrelevant in many respects. What use is controlling the lawmaking process when the Supreme Court will not let you make laws?
Milhiser concludes with an admonishment to political reporters: “Every presidential candidate should be put on the record explaining whether they agree with Will’s view that government’s derive their just powers from a conservative judiciary.”
I have long resented the fact that George Will is treated as a conservative “intellectual” among his media peers. Why? Because he sometimes writes about obscure history and confounds his readers by whipping out “The Big Book of Adjectives and Adverbs“? When you boil down George Will to his essential arguments, he is a radical right-winger of the John Birch Society variety in his younger days, and something even more radical today. It is obscene that this man is syndicated for publication by the Washington Post in numerous newspapers, and that he is given a seat at the table on the Sunday morning bobblehead shows. George Will’s radicalism should be subjected to greater scrutiny by his peers, and he should not be shown such deference.