Senator Rand Paul (R-KY) is an odd place to seek counsel on the Constitution. As a Senate candidate in 2010, Paul told a Louisville editorial board that he opposed the federal ban on whites-only lunch counters, claiming that the right of “private ownership” should trump the right to be free from racist discrimination. Opposing a core protection for racial minorities, according to Paul, is “the hard part about believing in freedom.” He later suggested that civil rights laws targeting private businesses may exceed Congress’s power under the Constitution’s Commerce Clause — a view the Supreme Court unanimously rejected in 1964.
Yet the Heritage Foundation, one of the backbones of the conservative movement in Washington, DC, invited Paul to speak at length on the Constitution and the role of the judiciary earlier this week. If the audience was upset that voters sometimes elect leaders who disagree with the Heritage Foundation, they were no doubt enraptured by Paul’s vision for the courts. Senator Paul’s speech was a repudiation of democracy, and he called for the Supreme Court to assume a dominant role in setting American policy that it abandoned three generations ago. Under Paul’s vision, the minimum wage is forbidden and union busting is constitutionally protected. The New Deal is an illegitimate expansion of federal power, and more recent efforts to ensure that no one dies because they cannot afford health care are an abomination.
“I’m a judicial activist,” Paul proudly proclaimed.
At first glance, Paul’s speech seems extraordinarily ambitious. The Supreme Court undoubtedly took a sharp right turn as soon as Justice Samuel Alito became the fifth member of its conservative bloc, but it has a long way to go before it repeals the twentieth century. Though Justice Clarence Thomas authored multiple opinions revealing his belief that the New Deal and the Civil Rights Act are unconstitutional, no other justice has ever joined one of these opinions.
Nevertheless, Paul’s speech to the Heritage Foundation is worth watching in its entirety. It lays out a vision that is closer than the Court’s current precedents suggest, and that could easily become a reality if the Court’s older members are replaced by younger conservatives. Moreover, as I explain in my book, Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted, a Supreme Court committed to Paul’s economic agenda would hardly be unprecedented in American history. If anything, Paul is asking the Court to return to its self-appointed role as the vanguard against democracy.
Thrown To The Wolves
Paul’s remarks to Heritage are refreshingly candid. He does not simply embrace the banner of judicial activism, he explicitly presents such activism as the antidote to democracy. “Does anyone know why Justice Roberts did not strike down Obamacare?” he asks the audience, before answering his own question with “judicial restraint.” To the members of the audience who are inclined to oppose judicial activism — and he begins his talk with an informal poll of the audience which suggests that that could include all of them — he quips that their support for a restrained judiciary must indicate that “everybody here is for Obamacare.”
This quip is, of course, rooted in a fallacy. Some examples of policies that do not violate the Constitution include the Iraq War, the Bush tax cuts, and the federal ban on marijuana. But the fact that someone recognizes Congress’s legitimate power to set tax rates or to ban sales of a particular product hardly means that they endorse the specific policies that elected officials write into the law. A democratic republic, by its very nature, gives elected officials discretion to govern — and that means that they will sometimes govern very badly without exceeding their lawful authority. As Chief Justice John Marshall explained in 1824, “[t]he wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections . . . are the restraints on which the people must often rely solely, in all representative governments.”
Paul, however, sees things differently. The problem with judicial restraint, he claims, is that it permits the legislature to do “bad things.” (In fairness to Paul, one “bad thing” that he singles out is public school segregation. The courts do have a legitimate role to play in striking down unconstitutional laws, even if Paul wants them to exceed that role.)
Lest there be any doubt that Senator Paul, himself an elected official, believes that the problem with American government is that it gives the people too much say over how they are governed, Paul endorses the Supreme Court’s long-ago overruled decision in Lochner v. New York. Lochner, which Paul has also praised on the Senate floor, invented a so-called “right to contract” that employers could use to resist laws protecting their workers. The idea was that the Constitution places strict limits on any laws that interfere with people’s ability to enter into contracts. So if an employer wants their employees to work 18 hours days, or if it wants them to sign away their right to unionize, or if it wants to pay them just a few pennies an hour, then the workers who agree to do so cannot seek refuge in the law even though they were forced into these jobs by desperate circumstances.
For decades, the Supreme Court wielded Lochner to strike down minimum wage laws, laws protecting the right to organize, and similar protections for workers. Lochner is now taught in many law schools as an example of how judges should never, ever behave.
Paul credits an attorney named Timothy Sandefur during his speech laying out his own vision of the Constitution. Sandefur, a lawyer with the conservative Pacific Legal Foundation, may seem like an unusually obscure source for a United States Senator to seek out for guidance, but Sandefur is also one of the nation’s most vocal and straightforward proponents of the idea that America has too much democracy. Writing for the Volokh Conspiracy, a popular libertarian legal blog, Sandefur compared the notion that elected officials may enact laws that bind others to predators stalking and eating their prey. “[T]he central value of the U.S. Constitution,” he writes, “is to protect individual liberty—the ‘sheep’s view’ of freedom—and not, as the consensus of today’s lawyers, judges, and law professors seems to hold, the ‘wolfish’ notion that people have a basic right to control the lives of others.”
In a subsequent post, Sandefur argues for constraints on democracy that are so rigid that they would even prevent the American people from amending the Constitution to permit many policies that Sandefur opposes. The Constitution, he argues, cannot be amended to abridge “natural rights.” Indeed, Sandefur claims, any government that abridges these rights is “illegitimate.” That may seem like an uncontroversial point — if the Constitution were amended to reestablish slavery, for example, most people would agree that such an amendment violates basic human rights — but Sandefur isn’t just concerned about slavery when he speaks of natural rights. To the contrary, in a 2010 book, Sandefur describes one of the Court’s most aggressive cases applying the Lochner decision as “firmly grounded” in “natural rights tradition.”
The man Senator Paul cites in his speech, in other words, believes that no government is legitimate if it has a meaningful ability to protect workers from rapacious employers. The right to exploit your employees flows from an even higher source of law than the Constitution itself.
The Assassination of The Constitution by the Coward John Roberts
In Paul’s narrative, Chief Justice Roberts plays the role of the villain. Entrusted with defending the Constitution, Roberts was called upon to judge a law Paul views as unconstitutional. And, in an act of great betrayal, Roberts placed the democratic value of judicial restraint before his obligation to enforce the Constitution — or, at least, to enforce the Constitution as Paul understands it. In Paul’s unnuanced view of Roberts’ decision upholding most of the Affordable Care Act, “Justice Roberts laid down the gauntlet and said judicial restraint is why the majority can do whatever it wants, basically.”
If Roberts truly is democracy’s vanguard against an activist judiciary, then proponents of judicial restraint are in deep trouble. It is true that Roberts has, at times, spoken eloquently about the limited role of judges in a democracy. When a court goes beyond its limits, the man who would soon become Chief Justice of the United States warned during his 2005 confirmation hearing, “they lose their legitimacy.” He added that he would “prefer to be known as a modest judge.”
Since joining the Court, however, Roberts and his fellow conservative justices charted a very aggressive course. The Roberts Court practically declared war on campaign finance laws. Indeed, the logic of Roberts’s own opinion in McCutcheon v. FEC, if taken to its end point, could allow lawmakers to sell their time by the minute to lobbyists, so long as the lawmaker does not actually promise to cast a particular vote or take a particular action in return for the money.
Beyond the campaign finance context, in Hobby Lobby the Roberts Court gave business owners unprecedented new rights to disobey laws they object to on religious grounds. Roberts and his conservative brethern gutted a core provision of the Voting Rights Act. They’ve protected companies where bosses sexually harass their subordinates. They’ve made it easier for employers to retaliate against workers who file civil rights claims. When two school districts implemented plans intended to racially integrate their public schools, Roberts chastised these districts for considering race at all. “The way to stop discrimination on the basis of race,” the chief justice wrote, “is to stop discriminating on the basis of race.”
The arc of justice may be long, but Chief Justice Roberts is bending it towards Rand Paul.
Roberts, in many ways, straddles a generational divide among conservatives. He came of age at a time when the memories of decisions like Roe v. Wade still burned hot in the minds of the American right. And this gave him an understanding that an activist judiciary can be his ideological enemy. As a Reagan Administration attorney at the dawn of a promising career, Roberts quipped that “[t]he generally accepted notion that the court can only hear roughly 150 cases each term gives the same sense of reassurance as the adjournment of the court in July, when we know the Constitution is safe for the summer.”
For much of American history, however, the judiciary was conservatism’s greatest ally in government. As I lay out in Injustices, the notion that the Constitution hobbles government’s power to regulate business or the workplace began to gain steam shortly after the Civil War. In the 1890s, the Court imposed strict limits on the federal government’s power to rein in harmful business practices or to tax the income derived from amassed wealth. One of the principal architects of this effort to shield capital from democracy, Justice Stephen Field, claimed towards the end of his life that a federal income tax law was an “assault upon capital” that would lead to “a war of the poor against the rich . . . constantly growing in intensity and bitterness.”
Lochner came in 1905, and it similarly hobbled state governments’ power to protect the weak and the unfortunate. Though Lochner was overruled in 1937, the Lochner Era was hardly replaced with an age of judicial liberalism. Indeed, if anything, the judiciary was far too restrained in enforcing individual rights explicitly protected by the Constitution in the years immediately following the demise of Lochner. This was the era that included the Korematsu decision, which upheld Japanese American detention camps. Before Chief Justice Earl Warren joined the Court in 1953, one of the Court’s own members claimed that there were probably five votes to uphold public school segregation.
Warren, however, helped breathe new life into the Constitution’s protections for racial minorities, dissenting voices and the criminally accused. Even after Warren retired, the Court embraced equality for women and the right to choose to have an abortion. This later decision, along with Warren era criminal justice decisions, enraged conservatives when Roberts began his formative years as an attorney. When the young Roberts spoke of the Court as a threat to the Constitution, he no doubt was echoing the views of his conservative mentors who’d lived through the Warren era and still smarted from the experience.
As time creates more distance between the present and the Court’s brief flirtation with liberalism, however, more and more conservatives are likely to realize something that Paul has already learned — the Supreme Court can be a powerful force for conservatives, enabling them to enact an agenda that they are unable to advance in the elected branches of government. Indeed, for much of the period between the Civil War and the New Deal, Supreme Court litigation was the most powerful tool in the right-wing arsenal, a weapon that could sweep aside the collective will of the American people based on the command of just five men in robes.
Roberts’ flirtations with judicial modesty grew out of an anomalous period in Supreme Court history, when the Court thought very differently than it does today. There is no longer much strategic reason for conservatives to embrace judicial restraint.
The Board of Censors
Lest there be any doubt, decisions like Lochner — and much of the jurisprudence from the Lochner Era — had little grounding in objective law. The hallmark of the Lochner Era was the completely arbitrary nature of the Supreme Court’s decisions. The justices forbade many laws preventing employers from overworking men, for example, but it permitted similar laws prohibiting employers from overworking women (although they eventually rethought this arrangement and forbade laws protecting women in the workplace as well). Similarly, when unions sought protection from Congress, the Supreme Court cut them off, claiming that Congress is powerless to act because “labor organizations have nothing to do with interstate commerce.” Yet when a mining company sought assistance in handling an overly aggressive union, the Court suddenly decided that it was perfectly fine for the federal government to regulate unionized workers — at least when the regulation benefited management.
The justices of this era, in other words, based their decisions less on neutral legal principles and more on their ideology, judgment or whims. In effect, they appointed themselves America’s censors, empowered to invent new doctrines and to ignore existing ones at will. And in that self-appointed role they could and did veto decisions made by the people’s elected representatives.
A case currently pending before the Court will reveal whether the current justices are willing to do the same. On the surface, King v. Burwell and Lochner have little in common. King is primarily a statutory interpretation case asking how the Affordable Care Act should be read (although there is a constitutional issue in King that could save Obamacare if the justices choose to misread the statute). Lochner, by contrast, was a landmark constitutional decision that read new rights into the Constitution primarily protecting employers from attempts to better the lives of their workers.
The King plaintiffs, however, share a very Lochnerian desire to advance their legal arguments regardless of what the law actually says. Under the Affordable Care Act, states may elect to set up their own exchanges where people can buy subsidized health plans or they can elect to have the federal government run their exchange for them. The King plaintiffs argue that tax credits, which help exchange customers afford their health plans, are only available in states with state-run exchanges.
To press their argument, the plaintiffs rely on a passage of the law which, if read out of context, suggests that tax credits are only available “through an Exchange established by the State.” Yet the Affordable Care Act is much longer than just seven words, and the rest of the statute makes quite clear that tax credits should be available in all 50 states. Among other things, another provision of the law provides that any exchange, whether state or federally-run, “shall be” an “entity that is established by a State.” The law, in other words, defines all exchanges as “an Exchange established by the State,” even if they are operated by the federal government.
King comes down to whether the justices of the Supreme Court of the United States are capable of reading more than seven words. If they follow their own precedents, which provide that “a reviewing court should not confine itself to examining a particular statutory provision in isolation” as the “meaning—or ambiguity—of certain words or phrases may only become evident when placed in context,” then the King plaintiffs will lose their case. Most cases that reach the Supreme Court are difficult. This case is easy.
The Court will most likely announce its decision in King this June. When they do so, the rest of the nation will learn whether five justices have taken up Paul’s cry for more judicial activism, or whether a glimmer of the judicial restraint that conservatives embraced after the Warren era remains alive on the Supreme Court. At this stage, it is anyone’s guess whether objective principles of law will actually matter in King.