Ian Millhiser on Clint Bolick: a chilling appointment


Ian Millhiser at Think Progress has a report on Clint Bolick that you did not read in your GOP-friendly newspapers in Arizona today (it’s good to control the news). The Most Chilling Political Appointment That You’ve Probably Never Heard Of:

BolickUnless you’re unusually familiar with libertarian legal activists (or you are a Republican presidential candidate) you probably have never heard the name “Clint Bolick.” But Mr. Bolick has spent the last quarter century working — at times quite successfully — to make the law more friendly to anti-government conservatives. Thanks to an appointment, announced Wednesday by Arizona Gov. Doug Ducey (R), Bolick will now bring this agenda to his state’s supreme court.

For people who care about the rights of workers in the workplace, this should be a chilling development, not just because of what incoming Justice Bolick is likely to say in his opinions, but because of what his appointment portends if Republicans have the opportunity to make appointments to the federal bench and, ultimately, the Supreme Court of the United States.

In 1991, Bolick co-founded the Institute for Justice (IJ), possibly the most savvy anti-government litigation shop in the country. One of IJ’s core strategies is to find genuinely sympathetic plaintiffs who are harmed by economic regulations that sound ridiculous on their face, and then use them as vehicles to push sweeping changes to legal doctrine that mirror limits on state power repudiated during the New Deal. As Bolick notes in his not-so-subtly named book Death Grip: Loosening the Law’s Stranglehold over Economic Liberty, one of his early cases involved a businessman who tried to start a cab company that served a low-income neighborhood, but then got tripped up by licensing regulations that are hard to defend as good policy.

Yet these sympathetic plaintiffs are often cat’s paws for a much more sweeping agenda seeking to invalidate much of American law. In Death Grip (which, it’s worth noting, Bolick published after leaving IJ), the incoming justice praises the U.S. Supreme Court’s decision in Lochner v. New York, a 1905 case that is often taught in law schools as an example of how judges should never behave. “Lochner,” Bolick writes, “is a celebration of freedom of enterprise and freedom of contract, and a repudiation of government paternalism and excessive regulation. It reflects a careful and proper balancing of freedom and the state’s power.”

Lochner struck down a New York state law limiting bakery workers’ hours to 10 hours a day — prior to that law, the average workday was 13 to 14 hours, and some bakers worked even longer hours. As I chronicle in my own book, Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted, one shop required its workers to work 16 hours a day five days a week, plus an additional 24-hour shift every Thursday. Another imposed a 126-hour workweek, leaving the workers with only 6 hours a day to sleep — or do anything else, for that matter, besides bake bread.

The majority opinion in Lochner claimed that the Constitution protects an implicit “right of contract between the employer and employes [sic],” and thus there are strict limits on the state’s power to enact laws regulating the workplace. If a worker agrees to work 16 hour days in a sweltering basement bakery, that is their “right,” under Lochner, regardless of whether they had the bargaining power to seek better working conditions. Later decisions relied on Lochner‘s so-called right to contract to strike down minimum wage laws and laws protecting the right to organize.

Notably, a 1908 Supreme Court decision also explained that Lochner‘s right to contract does not permit the government “to compel any person, in the course of his business and against his will, to accept or retain the personal services of another, or to compel any person, against his will, to perform personal services for another.” So, had Lochner remained good law into the Civil Rights Era, bans on employment discrimination or whites-only lunch counters would also be unconstitutional.

So that’s the agenda that incoming Justice Bolick is likely to bring to his state’s Supreme Court.

Arizona is, of course, only one state, and Bolick will be only one justice on a five member court. So, at least in the short term, his impact is likely to be limited. Nevertheless, there is good reason to be concerned that Bolick’s views could spread beyond this one seat on this one court.

I posted about George Will’s radical ‘litmus test’ for a return to the Lochner era earlier this year. This is where Ayn Rand worshiping Libertarians want to take us, back to the dark ages. But they will call it “economic liberty.”


  1. There is a perfect example of pure libertarian governance in action: an entire culture, unencumbered by all government regulation but one: “Don’t get caught”

    The Mob. Now THERE is a workable solution for a just and free society, right?

    When you read actual libertarian political philosophy, you realize that Pol Pot was sane in comparison. Seriously. Murray Rothbard argues that it’s perfectly consistent for someone in a libertarian society to sell themselves and their family into slavery, and that children depending on their parents is a coercive relationship that a true libertarian should be free to ignore.

    Hell, he makes Ayn Rand look sane, let alone Pol Pot….

  2. thats like pointing out the cattle cars are heading for auschwitz. are their any plans to derail the train?

  3. Workers of all classes, blue and white collar alike, have had it too good for too long in this country. The lack of proper knowledge on the history of both labor and our economic past from the industrial revolution forward, will cost the middle class down the line. Just like the anti-vaccine movement of today, workers have been without the diseases of the past for so long that why would they need to be vaccinated (defend themselves) from nonexistent or purely percived threats?

    • I consider myself a recovering libertarian. When I was in my 20’s, leaving me alone seemed like a reasonable thing. But that’s not actually what they’re selling, and I didn’t learn enough about it to know better.

      After I lived some life and grew up and learned some history and learned how the world actually works, I found out you’re right, we don’t know how good we’ve had it, and we don’t know that it should have been even better.

      And since people don’t know these things they’re prey for Libertarians and all sorts of right wing con artists.

      What I learned from life, and what made me a progressive, is that Libertarians and conservatives don’t actually care about the country or making the economy work for everyone and for sure they don’t want to do any work.

      They want to take what my tax money and my parents and grandparents tax money built and keep it for themselves.

      “Nice freeway system, you should gimme it so I can charge tolls”
      “Nice bridge you built, so, pay me tolls”
      “Nice public lands you slaughtered native people’s for, gimme them, Ima build a casino on the Grand Canyon”
      “Everyone needs an education, you should let me have all the monies for my charter school. We don’t do any better than public schools, often worse, but it’s easier for me to siphon off your monies this way”

      Eventually you privatize everything and then wonder why the private police force only works for the Libertarian superman dudes and the private army is invading France because “Nice coastline and manifest destiny says gimme a villa there”.

      It’s a scam run by degenerate con artists.

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