An ahistorical critique of “judicial activism”

February 9

Cato Unbound is hosting an online discussion on “judicial restraint,” with the lead essay by recent VC guest blogger Tim Sandefur. Sandefur’s essay is entitled “It’s Time to Ditch ‘Judicial Restraint.’ ” This provoked a thoughtful response from lawprof Kermit Roosevelt III, and a problematic one from Sandhya Bathija of the Center for American Progress.

In particular, Bathija relies on historical argument, but her knowledge of the relevant history seems superficial at best. Let’s go right to my area of expertise, the so-called Lochner era and the right to liberty of contract.

Bathija, undoubtedly knowing that Sandefur thinks Lochner v. New York was correctly decided, writes, “This Lochner era of jurisprudence has already come and gone.[4] The Supreme Court’s activism during this era significantly hindered the ability of the government to meet the ever-changing needs of society. Any laws Congress passed addressing sweatshop conditions, ending child labor, setting maximum numbers of working hours, or securing a minimum, fair, and livable wage were struck down under the fabricated ‘right to contract’ legal theory.”

Put aside the question of whether the “right to contract,” recognized unanimously the by the Supreme Court in the 1890s, was “fabricated.” Bathija’s explanation of the consequences of the Court’s enforcement of that right is just wrong.

First, the liberty of contract doctrine was primarily applied to state laws (as in Lochner itself), not Congress. Even taking the states and federal government together, I can’t think of a single Supreme Court case decided under the right to contract that invalidated a law regulating working (“sweatshop”) conditions; such laws were considered to be well within the government’s inherent “police power”, and even Lochner , which invalidated the New York Bakeshop Act’s maximum working hours provision, didn’t question the Act’s working conditions and sanitary rules.

Regarding child labor, as I’ve pointed out before the Supreme Court actually unanimously upheld state child labor regulations against a liberty of contract challenge.  The Court did invalidate federal laws regulating child labor, but because they were beyond the scope of Congress’s regulatory authority, not because they violated the right to contract.  In fairness, Bathija is hardly the first one to conflate liberty of contract with federalism arguments. This is, however, a rather basic and important distinction, given that every single state adopted child labor laws during the “Lochner era,” and none were invalidated as a violation of liberty of contract by the Supreme Court–nor, near as I have been able to determine, by any court.

The Court did invalidate the maximum hours law at issue in Lochner under a liberty of contract theory, but upheld about a dozen or so other maximum hours laws, including federal laws. The Supreme Court invalidated two women-only minimum wage laws that came before it, but also upheld the 1916 Adamson Act. The Act not only provided an eight-hour-day for railroad workers but required that their wages not be reduced in tandem with the reduced hours, providing a substantial government-dictated raise for the workers. The 1931 Davis-Bacon Act, which set a prevailing wage for federal construction contractors, was seen as sufficiently uncontroversial constitutionally that it did not even provoke a court challenge.

In short, to say that the judicial recognition of the right to contract inevitably led to the invalidation of laws regulating working conditions, hours of labor, child labor, and wages is just plain incorrect.

Even worse is Bathija’s footnote 4, which states, “for more than 30 years, the Supreme Court followed this misguided [liberty of contract] jurisprudence, striking downs laws regulating labor conditions as a violation of the 14th Amendment (except, of course, when it came to sexist and racist practices that prevented women and African Americans equal ‘rights of contract’).” The Court did, in fact, uphold sexist working hours laws, though it’s worth emphasizing that the leading attorney defenders of such laws, Louis Brandeis and Felix Franfkurter, were fierce opponents of liberty of contract.

The Court did invalidate women-only minimum wage laws, a category of laws about which Bathija appears dyslexic. Should the Court have invalidated them because they were sexist, or upheld them because they sought to increase wages? In any event, Adkins v. Children’s Hospital, a 1923 case invalidating the District of Columbia’s women-only minimum wage law, had the most pro-women’s rights rhetoric of any Supreme Court decision through the 1960s, and was written by Justice George Sutherland, a longstanding supporter of women’s rights as well as a supporter of liberty of contract. Progressive opponents of liberty of contract attacked Adkins (and Sutherland) vigorously, and more generally supported the sexist “family wage” policy, which sought to use the law to exclude women and others from the workplace to increase the wages of working class white men.

As for race, there were two categories of cases that directly raised the issue of African-Americans’ right to liberty of contract. The first involved southern Jim Crow laws that sought to restrict African Americans’ labor mobility. When the first of these laws reached the Supreme Court, a state law that provided criminal penalties for breach of a labor contract, the Court invalidated the law as a violation of the Thirteenth Amendment’s right to be free from involuntary servitude. Justice Oliver Wendell Holmes, the Court’s leading opponent of liberty of contract since his famous Lochner dissent, vigorously dissented.

The other category consisted of a series of local residential segregation laws. In the first case to reach the Supreme Court, Buchanan v. Warley, decided in 1917,the Court ruled that even though Kentucky had provided some viable police power explanations for Louisville’s segregation law, it was unconstitutional because it violated the rights of both whites and blacks to buy and sell property and to contract freely. This provoked a draft dissent from (you guessed it!) Holmes, who ultimately chose not to deliver it, probably because his draft failed to attract a second vote. While Holmes remained publicly silent, Progressive opponents of contract and property rights took to the law reviews to lambaste the Court’s invalidation of residential segregation laws. In short, while the Court certainly had its shortcomings on race and sex, from a modern perspective the pro-liberty of contract side tended to be more enlightened than were its opponents, especially when it came to protecting women’s and African Americans’ contract and property rights.

Instead of relying on bogus history, Bathija could have reasonably argued that the Court’s protection of liberty of contract was improper as a matter of constitutional interpretation, that the Court should have been more deferential to elected officials, or that as a practical matter it did more harm than good. She also could have pointed out that whatever one thinks of Lochner, if the Court were to adopt Sandefur’s constitutional philosophy, it would have to go significantly further than Lochner and its progeny, even while most people today think Lochner itself went way too far. But she instead succumbed to the temptation, common to at least one other employee of the Center for American Progress, of treating Supreme Court history as a morality play that just-so-happens to track modern liberal ideology.

David Bernstein is the George Mason University Foundation Professor at the George Mason University School of Law in Arlington, VA.
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Kenneth Anderson | February 9