How Bad Will Things Become? Part Four: The New Supreme Court Majority Brings Back Lochner -- and More

by Neil H. Buchanan

In my latest Verdict column, "What Kavanaugh Could Have Said, But Didn’t: 'I Honestly Don’t Know What Happened, and I’m Willing to Accept the Senate’s Judgment'," I offer a suggestion about how Brett Kavanaugh could have responded to the sexual assault and attempted rape allegations against him in a way that would have been humane and honest and that might have actually won over some skeptics.  I then note that he went in exactly the opposite direction, proving even more emphatically that he should not be on the bench.

I continue to be puzzled by the Republicans' strategy here.  As Professor Dorf ably explained yesterday, even though Republicans are acting as if they absolutely must rush Kavanaugh through as quickly as possible, the odds that they will somehow fail to fill this Supreme Court seat with either Kavanaugh or another hard-line movement conservative are essentially one in a gazillion.  That is my characterization, not Professor Dorf's, but the point is that the Republicans have -- at a minimum -- the luxury of the lame-duck session in which to do the deed.  Taking an anti-woman stance now is an unforced political error on the Republicans' part.

In the end, we will have a 5-4 majority of hyper-conservatives on the Supreme Court.  Perhaps the fifth vote will be Kavanaugh's, perhaps not.  Either way, winter is coming.  The question is how bad it will be.

Therefore, it is now time to add to my series of columns in which I have discussed how bad things might become under a post-Kennedy court.  In Part One, I focused on the potential damage to women's reproductive rights.  Parts Two and Three focused on the question of whether the new hyper-conservative bloc would have any hesitation in remaking the law in their own image and whether they would bother to be at all subtle about it.  Here, I will focus on how the new Roberts Court might change some substantive areas of the law.

In order to make any such predictions about what the new majority might do, does it matter whether the fifth voter is Kavanaugh or someone else?  After all, in my Dorf on Law column two days ago, I wrote that "there is plenty of reason to believe that Kavanaugh's substantive views are not the norm within the Republican Party."  And in other columns, I have argued that even the Senate's Republicans are not all as conservative as Kavanaugh and might well have wanted to find someone less extreme for the open seat.

On Tuesday, I wrote that "[t]here is a separate question about whether any such differences [between Kavanaugh and potential replacements] would matter on the Court -- whether a Justice Kavanaugh would actually be worse than anyone else that the Federalist Society might put forward for Trump and the Republicans to rubber-stamp."  The answer to that question is that any differences will not matter.

Even though Kavanaugh's record to date is identifiably distinct in its conservative extremism, at least as a matter of degree, it ultimately will make no difference in terms of how things proceed on the Court.  If not Kavanaugh, the newest justice will almost certainly be one of the small group of justices-in-waiting who have agreed with Kavanaugh-like extremism all along.  Kavanaugh has not been the norm, but he has not been lonely.

In addition, just as Senate Republicans who had not seemed to be as extreme as Kavanaugh quickly recast themselves as Kavanaugh fans who have always loved his extremist views -- in exactly the way that these same people found themselves suddenly enamored of Donald Trump after working against his nomination and disparaging him again and again -- the newest justice will quickly assimilate.  He or she will not be there to strike an independent course but to deliver the reactionary legal revolution that the conservative movement has been setting up for half of a century.

So, other than eviscerating women's rights to control their own bodies, what will the new majority do?  In The New York Times, Adam Liptak summarized the views of some legal scholars by suggesting that the new Court will "limit the use of race-conscious decisions in areas like college admissions, uphold voting restrictions, expand gun rights, strike down campaign finance regulations and give religion a greater role in public life."

There is no reason to doubt any of that.  Liptak's colleague Linda Greenhouse has suggested that the limiting language from Antonin Scalia's infamously ahistorical rewrite of the Second Amendment in Heller -- "... nothing in our opinion should be taken to cast doubt on longstanding prohibitions of the possession of firearms" -- was inserted to gain Kennedy's vote.  Even if that is not true, I can see little reason why Roberts, Gorsuch, Alito, and Thomas would not welcome a fifth vote to make virtually all gun-control laws unconstitutional (perhaps excepting gun bans in courthouses, hypocrisy being what it is).

As much as those hot-button areas are likely targets of the turbo-charged majority, I think this misses a large part of what the conservative movement is all about.

Up until now, the movement to bring back the Lochner era has been a non-majority position in Republican circles, even though it has been a pet project among some conservative judges and legal theorists.  Although I have seen one or two mentions of this idea in the time since Kennedy announced his retirement, it has received far too little attention.

For those readers who are blissfully unaware of this entire area of ideological warfare, Lochner v. New York was a 1905 U.S. Supreme Court case that struck down a law regulating the maximum hours that bakery employees could be required to work.  There, the Court's five-justice majority read a "freedom of contract" requirement into the Due Process Clause of the Fourteenth Amendment, thus holding that no government can undo or prevent what two private parties would have agreed to do under a voluntary contract.

This completely invented and atextual reading of the Constitution essentially elevated the most crude form of market fundamentalism into holy writ.  Everyone is free to choose, in conservative economist Milton Friedman's famous words, and the market is always right.  Permitting "whatever the market will bear" was deemed to be not merely good economic policy advice but a constitutional requirement.  The Lochner era (usually dated from 1899 through 1937) saw 184 different laws invalidated.

The Lochner era has long been deeply disparaged by legal scholars.  When I was a 1L in 1999, I ended up in an argument with a liberal classmate when I predicted that conservatives would try to bring back Lochner-like reasoning to reintroduce their concept of "economic efficiency" into the law.  My classmate, who had read the supplementary scholarship about Lochner, objected that Lochner is now almost always embedded in phrases like "the much-reviled Lochner era," or "the now-rejected Lochner reasoning."  His point was that there is no way that a theory with so much baggage could ever be brought back into acceptability.

Welcome to the world of second chances, even for damaging economic/legal theories!  Even without an explicit exhumation of Lochner, the Court's conservatives have already redefined the Commerce Clause in a way that can easily be used to challenge laws governing economic behavior that have never before been in question.  Similarly, what I recently referred to as "complicity jurisprudence" allows conservative justices to say that people's religious (read: conservative Christian) views allow them to avoid regulations of general applicability.

Those examples, moreover, are merely the obvious points of departure from what the conservative movement was able to pull off with an occasional apostate like Kennedy on the bench.  I continue to believe that the new Court will be ever more brazen in simply reading their policy preferences into the Constitution, precedent (or text or originalism) be damned.

This puts consumer protection legislation, workplace safety regulations, environmental regulations, and everything else in extreme peril.  In her dissent in Hobby Lobby, Justice Ginsburg negatively cited a case in which a person challenged the minimum wage as a violation of his religious beliefs.  The only question going forward might be whether the new conservative majority on the Court will use that daft theory or something more explicitly Lochnerian to declare minimum wages illegal.

In a column this past June discussing the Court's recent Janus case, in which the conservative majority struck down a 40-year-old judicial compromise allowing public labor unions to collect fees for non-political activities that benefit all workers, Professor Dorf described the potential stakes arising from a logical error in Justice Alito's opinion.  Alito had claimed that union activities involve "speech," and thus being required to have anything to do with a union constitutes compelled speech.

How might that apply to my concerns here?  Professor Dorf points out:
"Although collective bargaining involves speech, it is hardly pure speech. It is fundamentally an economic transaction facilitated by speech. Consider by analogy the purchase of a big-ticket item like a home or a car. Buyer and seller will negotiate using spoken words. They will sign many forms containing written words. Speech permeates the transaction ..."
But it is the end of the sentence after that ellipsis that brings it home: "... yet we rightly allow pervasive regulation of car and home sales."

Will we continue to do so?  One might argue that the political system will put limits on what Republicans will dare to do, both on the bench and through legislation.  Yet even with midterm elections staring them in the face, the Republicans have not objected to the Trump EPA's recent decision to weaken the rules on methane emissions by oil and gas companies.  As I have argued many times before, Republicans are not known for their restraint when it comes to taking what they want.

Whereas Professor Dorf was using the example of regulating car and home sales to rebut the idea that there is anything unusual or objectionable about regulating "speech" in the expansive sense that Justice Alito used that word, there is every reason to suspect that conservatives would simply say, "Right, and that is why we should strike down those regulations, too.  After all, if the freedom of contract means anything, it must mean that a person should be allowed to buy or sell anything under whatever terms that he finds acceptable."

The larger point is that we are not looking at a future in which the new conservative majority busies itself only with the big-ticket issues like ending affirmative action and enabling voter suppression.  There is a potentially much larger agenda that could see the Court systematically remaking the country's economy into a Wild West of exploitation and opportunism.

The genius of constitutional democracy has been that it limits what the most powerful interests are allowed to do.  Those limitations have long angered business interests, and those interests will soon have five very sympathetic justices listening to their pleas for relief.  The rest of us will pay the price.