In an interview with the New York Times’ Adam Liptak, Justice Ruth Bader Ginsburg offered a grim assessment of the Court where she so often finds herself leading a four justice dissent — the Roberts Court is “one of the most activist courts in history.”
As an historic matter, this is a pretty staggering claim. The Supreme Court in 1905 handed down a decision called Lochner v. New York that is now widely taught in American law schools as an example of how judges should never, ever behave. Lochner treated any law improving workplace conditions or helping workers to obtain an adequate wage as constitutionally suspect. And Lochner was hardly an anomalous moment in the Court’s history.
Thirteen years after Lochner the Supreme Court struck down federal child labor laws in a decision that is also widely taught as an example of inexcusable judicial activism. In 1895, the Supreme Court rendered the country virtually powerless against monopolies and other powerful combinations of corporate power, and then it held an income tax on the wealthiest Americans unconstitutional just a few months later. The Supreme Court has, with rare exception, been a largely malign force in American history.
There is, however, one important way in which the Roberts Court is distinguishable from the Courts that decided cases such as Lochner. Laws such as the Sherman Antitrust Act and the first federal ban on child labor arose as lawmakers with struggling with many of the negative side effects of the Industrial Revolution. The birth of the railroad and the dawn of mass production massively improved the American standard of living, but they also enabled monopolists to thrive and they resulted in mass exploitation of the working class. The Supreme Court in this era did not so much tear down established rights as it stood for a status quo that favored capital over labor and the rich over the rest of the nation.
The Roberts Court, by contrast, has actively rolled back existing laws protecting workers, women and people of color. The Nineteenth Century Supreme Court blocked America’s first meaningful efforts at racial equality, but the Roberts Court stole from minority voters rights that they had enjoyed for decades. The Lochner Court strangled basic protections for workers in their crib, but the Roberts Court takes fully matured protections for workers and carves them up a piece at a time. And, while Lochner Era courts acted out in the open, undermining human rights in published opinions. The Roberts Court pushes an alternative, corporate-run arbitration system that operates largely in secret.
None of this is to say that the world we live in now is worse than the world our great-grandparents lived in under the Lochner Court — if the Roberts Court’s goal is to bring us back to this era, they are currently shy at least one vote. Nevertheless, the Roberts Court is unusually willing to take from ordinary Americans rights they have enjoyed for a very long time. The Supreme Court has a long history of standing athwart history yelling stop. This Supreme Court, however, wants to shift history into reverse.