Friday’s landmark victory for marriage equality was handed down over the dissents of four justices, each of whom wrote their own dissenting opinion. Of these, by far the most thoughtful and the most significant was Chief Justice John Roberts’s dissent. Roberts rejected the Constitution’s promise of marriage equality — a view which The Onion quipped will someday lead to him being a villain “in an Oscar-winning film about the fight for marriage equality.” Yet, in the process of reaching his conclusion, Roberts also rejected a particularly aggressive brand of judicial conservatism that is rapidly becoming ascendant in conservative legal circles.
Obergefell v. Hodges, in other words, is a double defeat for conservatives. At the same moment that a majority of the Court declared the United States to be a marriage equality nation, Chief Justice Roberts announced to his fellow conservatives that their most ambitious legal cases are doomed to failure.
Roberts’s Obergefell dissent, moreover, needs to be read alongside the decision he handed down just one day earlier — his remarkable majority opinion in King v. Burwell, which appeared to scold his fellow conservative lawyers for using the courts as a tool to fight political battles. “In a democracy,” Roberts wrote in that opinion, “the power to make the law rests with those chosen by the people.” He then added language that will render the Affordable Care Act unusually resistant to legal challenge.
“Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,” Roberts wrote in King, before delivering instructions to every judge in the country that they should view future efforts to undermine to Obamacare with skepticism — “If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.”
Read together, Roberts’s King and Obergefell opinions may mark a turning point in American law. They suggest that the chief justice has grown tired of efforts to politicize the judiciary, and that he is particularly annoyed with his fellow conservatives for trying to achieve through litigation what they could not win in elections. If this interpretation of Roberts’s actions proves true, then the chief justice’s dissent from a decision bringing the blessings of equality to all 50 states may, ironically, be one of the most positive developments for liberals in the last several Supreme Court terms.
Roberts’s Obergefell dissent is, at its heart, an attack on the method Justice Anthony Kennedy used to reach the majority’s conclusion that the Constitution forbids states from denying equal marriage rights to same-sex couples. Kennedy held that marriage is a fundamental right, and that this right extends to same-sex couples. Roberts offers a harsh response:
Stripped of its shiny rhetorical gloss, the majority’s argument is that the Due Process Clause gives same-sex couples a fundamental right to marry because it will be good for them and for society. If I were a legislator, I would certainly consider that view as a matter of social policy. But as a judge, I find the majority’s position indefensible as a matter of constitutional law.
This is not a frivolous critique, as the Court’s fundamental rights jurisprudence has long been one of the most rudderless and unbounded areas of the law. As Roberts explains, the Obergefell plaintiffs’ “’fundamental right’ claim falls into the most sensitive category of constitutional adjudication.” This claim does not rest upon a right that is specifically mentioned in the Constitution. Rather, the plaintiffs argued that marriage discrimination violates “a right implied by the Fourteenth Amendment’s requirement that ‘liberty’ may not be deprived without ‘due process of law.’”
This method, of implying rights from the Fourteenth Amendment’s vague promise that liberty shall not be denied without due process — otherwise known as “substantive due process” — has a dark history. As I explain in my book, Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted, conservatives used this doctrine to hobble laws intended to benefit workers in the early twentieth century. The Supreme Court used it to strike down laws establishing a minimum wage, ensuring that laborers would not be overworked, and protecting workers’ right to organize.
(Substantive due process also formed the basis of a decision conservatives love to hate — Roe v. Wade — although, as Justice Ruth Bader Ginsburg has explained, a Supreme Court decision abolishing substantive due process would not necessarily mean the end of the right to choose.)
Roberts’s Obergefell dissent lays out much of the worst history of the Supreme Court’s substantive due process cases, and he pays particular attention to “discredited decisions such as Lochner v. New York.”
Lochner is a 1905 Supreme Court case that, more than any other decision, is held up as symbolic of the kind of judicial overreach that pervaded the Court in the early twentieth century. Indeed, it is frequently taught in law schools as an example of how judges should not behave.
As I explain in Injustices, bakers in Lochner era New York worked brutal hours in squalid conditions. Often, sewage pipes leaked raw contents on bakery workers, while roaches lined bakery walls. The bakeries themselves were hot dungeons heated by lit ovens, and many lacked any flooring to speak of. Those that did often had rotten floors riddled with rat holes. The average bakery employee worked between 13 and 14 hours a day in these conditions. Indeed, the bakery hours were so long that, in 1881, striking bakery workers demanded that their work day be reduced to just 12 hours a day.
Lochner struck down a New York law that limited bakery workers’ hours to ten a day and reduced the overall work week to sixty hours. It did so based on a fabricated “right to contract” that the Court held to be implicit in the Fourteenth Amendment’s requirement that liberty cannot be restricted without due process of law.
Roberts refers to Lochner sixteen times in his Obergefell dissent, and his descriptions of this case are absolutely scathing. Lochner’s “error,” according to Roberts, was that it converted “personal preferences into constitutional mandates.” Its approach is “discredited” and “unprincipled.” And Lochner confused past justices’ “naked policy preferences” with the actual Constitution.
Of Cowboys and Pioneers
None of Roberts’s statements disavowing Lochner are particularly controversial. Indeed, they were considered orthodoxy by most liberal and conservative lawyers alike until shortly after President Obama first took the oath of office.
Yet, while supporters of Lochner remain a small minority within the legal profession, some members of this minority have risen to positions of great prominence in recent years. A few years ago, for example, Judge Janice Rogers Brown, a judge on a federal appeals court that is widely viewed as the second most powerful court in the nation, called upon the Supreme Court to re-embrace Lochner and reject rule by the people’s representatives. “America’s cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers,” Judge Brown wrote, adding that this supposed disarmament is “particularly troubling in light of the pessimistic view of human nature that animated the Framing of the Constitution — a worldview that the American polity and its political handmaidens have, unfortunately, shown to be largely justified.”
Democracy, to Lochnerian judges such as Brown, is the enemy. And it must be checked through aggressive judicial action.
Brown wrote these words in a concurring opinion joined by one other member of a three-judge panel. The third member of the panel was Judge Thomas Griffith, who did not join her call for a new birth of Lochnerism because “I am reluctant to set forth my own views on the wisdom of such a broad area of the Supreme Court’s settled jurisprudence that was not challenged by the petitioner.” Nevertheless, Griffith added that he was “by no means unsympathetic” to Brown’s views.
Two years later, Griffith handed down his court’s decision in Halbig v. Burwell, an opinion which single-handedly granted legitimacy to the anti-Obamacare legal argument the Supreme Court rejected in King.
On Friday, the same day that Roberts handed down his Obergefell dissent, three justices of the Texas Supreme Court joined an opinion embracing much of the revisionist scholarship which argues that Lochner’s status as anti-canon is undeserved. “A wealth of contemporary legal scholarship is reexamining Lochner, its history and correctness as a matter of constitutional law, and its place within broader originalist thought, specifically judicial protection of unenumerated rights such as economic liberty,” wrote Justice Don Willett. Later in the same opinion, Willett one-upped Judge Brown’s appeal to “cowboy capitalism” with his own appeal to pioneers. “The Court today rejects servility in the economic-liberty realm . . . There remains, as Davy Crockett excitedly wrote his children, ‘a world of country to settle.’”
At the Federalist Society, often the incubator for lawsuits like King v. Burwell and the locus of conservative legal thought, Georgetown law professor Randy Barnett has obtained a kind of rock star status. Barnett was a member of the legal team that challenged the Affordable Care Act the first time Chief Justice Roberts saved it from destruction, and he is one of the nation’s most prominent proponents of the notion that the Constitution enacts Ms. Ayn Rand’s Atlas Shrugged.
Two years ago, Barnett spoke to a mostly-adoring crowd at the Federalist Society’s national convention, where he laid out a vision of the Constitution that is quite similar to Lochner. Indeed, Barnett has written that he “would prefer that courts adopt a ‘presumption of liberty’ of the sort the Court seemed to employ in Lochner,” but restoring one of the Supreme Court’s most widely criticized anti-precedents is only one of a long list of ways that he would declare war on the twentieth century if he were empowered to do so. Barnett has suggested, for example, that Social Security violates “the original meaning of the Constitution” (although, in an apparent act of moderation, he has also proposed allowing “Congress to honor its outstanding financial commitments to living persons, such its promise to make Social Security payments” before this program is phased out).
The significance of Roberts’s Obergefell dissent was not lost on Professor Barnett. In an angry blog post directed at Republican presidential candidates, Barnett cited King and the fact that Roberts “cited Lochner v. New York 16 times” before urging his fellow conservatives to “learn from the recent past what not to look for in a justice.”
Nor is Barnett alone in expressing this view. Barnett’s blog post echoed a column by the influential political columnist George Will, who blamed conservatives’ “decades of populist praise of judicial deference” for the outcome in King. Jonathan Adler, a law professor who was one of the leading evangelists for the anti-Obamacare arguments presented in King, suggested that the next Republican president could appoint Senator Mike Lee (R-UT), a man who thinks that Social Security, Medicare and federal child labor laws are unconstitutional, to the Supreme Court.
What The Future Will Bring
Roberts, who is sufficiently well-connected in conservative legal circles that he received a Supreme Court appointment from the most recent Republican president, is undoubtedly aware that this vision is gaining force among Federalist Society loyalists. Yet his King opinion actually placed the Affordable Care Act on stronger legal footing than it would have rested on if conservatives have never brought this lawsuit seeking to destroy it. And his Obergefell dissent is almost gratuitous in its dismissive approach to Lochner. It is difficult not to read both opinions as a rejection of the views expressed by men like Barnett and Will.
The Chief Justice of the United States, in other words, sent a clear message to the increasingly vocal forces that wish to use the Supreme Court to enact a sweeping economic agenda — not on my watch. His Obergefell dissent explicitly disavows the new Lochnerian evangelism that captured much of the Federalist Society. And his King opinion shows them that further efforts to politicize the judiciary may lead to punishment — in the same way that King punished conservatives by rendering Obamacare immune to many future legal challenges.
That does not mean that the Obergefell dissent was entirely correct on the law. Though its warnings about the dangers of substantive due process are well-grounded in the Supreme Court’s history, its analysis of the strongest argument for marriage equality — the argument that denying equal rights to LGBT Americans violates the Constitution’s promise that no one shall be denied “the equal protection of the laws” — barely even qualifies as cursory. Roberts’s discussion of equal protection spans less than two pages of his opinion, and it does not grapple at all with the Court’s precedents establishing that groups that have historically faced discrimination that bears “no relation to ability to perform or contribute to society” are entitled to heightened protection under the Constitution.
Similarly, Roberts is broadly skeptical of efforts to use the law to foster racial or other forms of equality, and it is likely that he will continue to advance longstanding conservative orthodoxy on subjects such as campaign finance and the workplace.
But Roberts also began his career in the Reagan administration, at a time when conservatives were far more confident of their ability to win political battles through the ordinary political process. Though Reagan did seek to move the law in a more conservative direction, he also pledged to appoint judges who support “judicial restraint” and his administration explicitly repudiated the approach to judging that drove Lochner. Compared to the aggressive judicial activism favored by people like Brown, Barnett and Will, Reagan’s approach to the judiciary was the picture of judicial modesty.
This vision of the judiciary — a vision that called for conservative changes around the margins while also placing the democratic branches very much in the driver’s seat of American government — also dominated groups like the Federalist Society until shortly after Barack Obama became president. Indeed, during the Bush years, the Federalist Society’s brand was so closely associated with judicial restraint that then-Secretary of Homeland Security Michael Chertoff told the conservative legal group in 2006 that “in large part because of the work that the Society and others have done, the claim for judicial modesty is sufficiently well-established that everybody understands, even the critics of that claim, that they have to take it seriously and they have to address it.”
The Federalist Society, and the conservative legal movement that it helps convene, has changed a lot in the last seven years, but Chief Justice Roberts has not changed nearly as much. Roberts will eagerly give the Federalists everything they asked for up until 2009, but his King and Obergefell opinions suggest that he may give them no more.
On Twitter, Adler says that his suggestion that Senator Lee could be appointed to the Supreme Court is “descriptive” not “prescriptive.” This post has been updated slightly to reflect this statement.