WaPo | Brian Beutler has an important piece in which he raises an unsettling question:
Could the next Republican president nominate one or more Supreme Court
justices who would seek to restore a pre-New Deal judicial conception of
liberty of contract, with the goal of undermining much of the
regulatory state that many Americans take for granted today?
Beutler reports on a movement among legal-minded libertarians to rehabilitate the Lochner
decision, the notorious 1905 Supreme Court ruling that invalidated a
state law limiting the working hours of bakers, giving its name to the
“Lochner era” of Supreme Court rulings in which economic regulations
established by popularly elected officials were struck down as
unconstitutional. The Lochner era is widely seen to have ended during
the New Deal, when the Court upheld (among many other things) a state
minimum wage law, concluding that liberty of contract is not an
“absolute” right.
Sam Bagenstos, a liberal constitutional scholar at the University of Michigan, tells Beutler
that “a full fledged return to Lochner” could ultimately undermine a
whole host of economic regulations, including minimum wage, overtime,
and worker safety laws and even possibly laws protecting customers from
discrimination based on race.
One leading libertarian lawyer
tells Beutler frankly that the goal is to invalidate much social welfare
legislation “at the federal level,” though I would add that a Lochner
restoration might invalidate a fair amount of it at the state level as
well. Libertarians are frustrated with the Roberts court for its rulings
preserving Obamacare — decisions that have been widely interpreted as a
sign of Roberts’ judicial restraint and deference to the elected
branches — and the hope is that a Republican president will appoint more
unabashedly activist judges when it comes to placing limits on federal
power to regulate the economy:
