The Declaration of Independence proclaims that governments derive “their just powers from the consent of the governed.” In his latest column, conservative writer George Will boldly rejects this founding principle. In the process, he also takes sides in a battle within the Republican Party over just how much power the Supreme Court should have to strike down laws the party disapproves of. Should one of these candidates win temporary residence in the White House, moreover, the question of whether that candidate agrees with Will could have longer reaching implications than any other issue facing the voters this election.
The premise of Will’s column is that a long-overruled Supreme Court decision which drastically limited lawmakers’ ability to make law — especially when those laws were enacted to protect workers — was correctly decided and should be reinstated. Will calls upon the next Republican elected to the White House to ask their potential judicial nominees whether they agree that the Court’s 1905 decision in Lochner v. New York “correctly reflected the U.S. natural rights tradition and the Ninth and 14th amendments’ affirmation of unenumerated rights.” He also suggests that Texas Supreme Court Justice Don Willett, who recently outed himself as sympathetic to a revisionist history attractive to Lochner‘s supporters, should be that president’s first nominee.
Taken on its own, Will’s column could be dismissed as the idiosyncratic views of a man who, having been granted tenure by a major newspaper, now feels comfortable offering opinions with little or no constituency. Will’s repudiation of democracy, however, aligns him with a small but vocal movement within the conservative legal community that supports a wholesale transfer of power from the people’s representatives to conservative justices on the United States Supreme Court. Will, in other words, is speaking on behalf of an important faction within the Republican Party. And should this faction gain control of the White House and, ultimately, the Supreme Court, it could profoundly alter the nature of American government.
It is a testament to the Washington Post opinion page’s tolerance for a diversity of viewpoints — even when those viewpoints are offensive or rooted in objectively false claims — that the paper continues to publish Will’s column. Last year, Will wrote a column claiming that college women seek out the “coveted status” of being a rape victim — at one point suggesting that women who claim to have been raped are “delusional.” At the height of the panic over Ebola, Will told Fox News that the disease may “in some instances be transmitted airborne,” a claim that is simply not true. And, of course, Will is the original gangsta of climate change denial.
Will’s Lochner column is of a piece with his columns rejecting climate change and claiming that rape victimhood is a “coveted status.” Lochner is widely viewed as part of the Supreme Court’s “anti-canon,” a series of decisions that also includes the pro-slavery decision in Dred Scott and the Court’s decision upholding Japanese American detention camps in Korematsu, which are taught in law schools primarily as examples of how judges should not behave. Until recently, Lochner was widely rejected by liberals and conservatives alike. Chief Justice John Roberts, who belongs to a more moderate conservative tradition than the forces seeking to reinstate Lochner, labeled the decision “discredited” in a dissenting opinion. His opinion was joined by Justices Antonin Scalia and Clarence Thomas, both of whom belong to much more conservative traditions that Roberts.
Lochner rested on a fabricated constitutional “right to contract,” which a majority of the justices found implicit in the Fourteenth Amendment’s promise that no state shall “deprive any person of life, liberty, or property, without due process of law.” In essence, the case stands for the proposition that workers have a broad “right” to agree to oppressive working conditions, low pay, and long hours. The law stuck down in Lochner limited bakery workers’ work days to 10 hours a day — prior to that law, the average baker worked between 13 to 14 hours a day — but Lochner‘s so-called right to contract was also wielded to strike down other progressive labor laws such as the minimum wage or laws preventing union busting.
Will’s column, however, touts a libertarian alternative history of Lochner, which claims that the law struck down in this case “actually was rent-seeking by large, unionized bakeries and their unions” who wanted to “crush their small, family-owned, nonunionized competitors that depended on flexible work schedules.” This alternative history, however, is doubtful for several reasons. For one, there is no evidence in the Lochner opinion itself that the justices were concerned about such “rent-seeking,” or even that they believed that such a thing existed in this case. For another, even if it were true that the specific law at issue in Lochner was passed due to the nefarious work of anti-family unions, that still does not explain why other progressive legislation, such as the minimum wage, needed to be caught up in the sweeping constitutional rule announced in Lochner.
The libertarian version of Lochner‘s history, moreover, is a minority view among scholars. As Paul Kens, a leading scholar of the case, explains, “[i]n reading everything I could find on the statute’s enactment, I found no evidence that ‘powerful unions’ or ‘big bakeries’ took part in passing the bakeshop law.”
Nevertheless, Will insists, judges should be skeptical of the “right of a majority to embody their opinions in law,” and instead should apply Lochner-like reasoning “to closely examine and forthrightly invalidate laws that . . . arise from disreputable motives and have unjust consequences.” Will’s own willingness to embrace an alternative history of the motivations behind the law invalidated in Lochner, however, emphasizes the very reason why this approach to judging was rejected and why Lochner is now held to be anti-canon.
It is convenient that, in contradiction to most scholars and despite no evidence in the Lochner opinion supporting his argument, Will embraces a narrative that just happens to comport with his political preferences.
Judges are no more immune to this kind of motivated reasoning than George Will is, so current doctrine normally does not allow judges to dig into the motives of lawmakers to determine whether the judges think a law is unwise. As the Supreme Court explained, some years after Lochner was overruled, “[t]he day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought.” Unwise laws are an inevitable consequence of government. Given this reality, however, modern doctrine recognizes that it is most often better to have these laws be made by elected officials who can be held accountable if they govern poorly than to have our laws set by unelected judges who serve for life.
Will, however, would upend this doctrine and restore a line of cases that rendered much of the web of laws protecting workers in the workplace impossible. Nor would Will’s project stop by invalidating laws such as the minimum wage or protections for unionized workers. As I explain in my book, Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted, the Supreme Court read the so-called freedom to contract embraced by Lochner to establish that the law may not “compel any person in the course of his business and against his will to accept or retain the personal services of another.” Thus, laws banning race, gender or other forms of discrimination in the workplace would also be invalid under the long dead Supreme Court case Will cherishes.
Nevertheless, Will’s embrace of Lochner is increasingly common in conservative legal circles, and Will’s views are shared by several sitting judges, members of Congress and even presidential candidates. Sen. Rand Paul (R-KY), for example, has delivered multiple speeches praising Lochner. Former Texas Gov. Rick Perry (R), while not explicitly embracing Lochner, has claimed that laws like Social Security and Medicare are unconstitutional, a view that is often shared by proponents of Lochner.
George Will, in other words, is a kind of canary in American democracy’s coal mine. His column is a warning that the pro-Lochner movement has grown large enough to capture one of the nation’s most visible political columnists, and he speaks for a movement that could potentially win the White House in 2016. Should this happen, that Lochnerite president could change the Supreme Court very quickly. Three of the Court’s current members will be over the age of 80 on Inauguration Day 2016, and one justice will be not far behind. Moreover, should this movement succeed in capturing a majority of the Supreme Court, they could render many subsequent elections irrelevant in many respects. What use is controlling the lawmaking process when the Supreme Court will not let you make laws?
So, while Will concludes his column with a question — imploring the next Republican president to ask their judicial nominees whether they concur with Lochner, his column should tee up a similar question from political reporters. Every presidential candidate should be put on the record explaining whether they agree with Will’s view that government’s derive their just powers from a conservative judiciary.