Opinion writer

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, reiterating 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:

The hope is that this anger propels a libertarian-minded president into office and inspires him to nominate less restrained judges. The next president will likely have the opportunity to appoint at least one, and possibly as many as four Supreme Court justices. Ruth Bader Ginsburg is now 82. Stephen Breyer is 77. Anthony Kennedy and Antonin Scalia are both 79. If one of these justices retires under a Republican president, who then appoints a Lochnerian to fill the vacancy, it will change the Court profoundly. If more than one of them steps down, the Court will become unrecognizable….

In July, the conservative columnist George Will made a provocative new demand of the next Republican president: “Ask this of potential court nominees: Do you agree that Lochner correctly reflected the U.S. natural rights tradition and the Ninth and Fourteenth Amendments’ affirmation of unenumerated rights?”

All of this seems very far fetched, of course, but you really never know. Liberals sometimes imagine that American history progresses seamlessly in the direction of progressive change, but that isn’t really how it has unfolded — there have at times been setbacks and reversals, sometimes substantial ones.

Meanwhile, some Republican candidates have actually passed what we might call the Lochner litmus test:

Rand Paul has praised the Lochner decision explicitly multiple times, most recently at the Heritage Action Conservative Policy Summit this January. “I’m not a judicial restraint guy,” he told an audience of avowed judicial activism foes. “I’m a judicial activist when it comes to Lochner. I’m a judicial activist when it comes to the New Deal.”

And Rick Perry has boasted that he is “proud” to have nominated a Texas judge who recently opined that a wealth of revisionist legal scholarship is reestablishing Lochner’s “correctness as a matter of constitutional law.”

What’s really refreshing about all this is that proponents of a Lochner revival are quite open about their grand project of invalidating much of the contemporary regulatory state. At least you know where libertarians stand. Republican politicians who perhaps share the view that major 20th century progressive achievements — which are now pillars of American life — should be rolled back in the name of economic liberty are sometimes politically constrained from admitting it. Senator Paul, for instance, had to backtrack after remarks surfaced in which he seemed to suggest that the Civil Rights Act infringed on private property rights. And it’s not unreasonable to speculate that Paul Ryan and some of the GOP politicians looking to undermine the Medicare coverage guarantee (in the name of “strengthening” its finances) might also have fundamental ideological objections to the whole program, which, after all, was dismissed as socialism during the battle over its creation in the 1960s.

And so, I’m all for the Lochner litmus test that George Will has proposed. For that matter, I’m genuinely curious to know where Rand Paul and some of the other more conservative Republican presidential candidates are on Helvering v. Davis, which upheld Social Security on the grounds that Congress may spend for the general welfare. I’m not a close follower of libertarian legal analysis, but some have argued for a more constrained spending power, and I assume some on the right still think the Helvering decision upholding Social Security was deeply questionable. How about Knowlton v. Moore and Brushaber v. Union Pacific, in which the Court upheld the Constitutionality of progressive taxation? I wouldn’t be at all surprised to learn that some still agree with those who argued at the turn of the (last) century that progressive taxation is an unconstitutional violation of the Uniformity Clause.

So where do the presidential candidates think Supreme Court nominees should stand on all of these? Let’s get this all debated out in the open.