Unless you’re unusually familiar with libertarian legal activists (or you are a Republican presidential candidate) you probably have never heard the name “Clint Bolick.” But Mr. Bolick has spent the last quarter century working — at times quite successfully — to make the law more friendly to anti-government conservatives. Thanks to an appointment, announced Wednesday by Arizona Gov. Doug Ducey (R), Bolick will now bring this agenda to his state’s supreme court.
For people who care about the rights of workers in the workplace, this should be a chilling development, not just because of what incoming Justice Bolick is likely to say in his opinions, but because of what his appointment portends if Republicans have the opportunity to make appointments to the federal bench and, ultimately, the Supreme Court of the United States.
In 1991, Bolick co-founded the Institute for Justice (IJ), possibly the most savvy anti-government litigation shop in the country. One of IJ’s core strategies is to find genuinely sympathetic plaintiffs who are harmed by economic regulations that sound ridiculous on their face, and then use them as vehicles to push sweeping changes to legal doctrine that mirror limits on state power repudiated during the New Deal. As Bolick notes in his not-so-subtly named book Death Grip: Loosening the Law’s Stranglehold over Economic Liberty, one of his early cases involved a businessman who tried to start a cab company that served a low-income neighborhood, but then got tripped up by licensing regulations that are hard to defend as good policy.
Yet these sympathetic plaintiffs are often cat’s paws for a much more sweeping agenda seeking to invalidate much of American law. In Death Grip (which, it’s worth noting, Bolick published after leaving IJ), the incoming justice praises the U.S. Supreme Court’s decision in Lochner v. New York, a 1905 case that is often taught in law schools as an example of how judges should never behave. “Lochner,” Bolick writes, “is a celebration of freedom of enterprise and freedom of contract, and a repudiation of government paternalism and excessive regulation. It reflects a careful and proper balancing of freedom and the state’s power.”
Lochner struck down a New York state law limiting bakery workers’ hours to 10 hours a day — prior to that law, the average workday was 13 to 14 hours, and some bakers worked even longer hours. As I chronicle in my own book, Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted, one shop required its workers to work 16 hours a day five days a week, plus an additional 24-hour shift every Thursday. Another imposed a 126-hour workweek, leaving the workers with only 6 hours a day to sleep — or do anything else, for that matter, besides bake bread.
The majority opinion in Lochner claimed that the Constitution protects an implicit “right of contract between the employer and employes [sic],” and thus there are strict limits on the state’s power to enact laws regulating the workplace. If a worker agrees to work 16 hour days in a sweltering basement bakery, that is their “right,” under Lochner, regardless of whether they had the bargaining power to seek better working conditions. Later decisions relied on Lochner’s so-called right to contract to strike down minimum wage laws and laws protecting the right to organize.
Notably, a 1908 Supreme Court decision also explained that Lochner’s right to contract does not permit the government “to compel any person, in the course of his business and against his will, to accept or retain the personal services of another, or to compel any person, against his will, to perform personal services for another.” So, had Lochner remained good law into the Civil Rights Era, bans on employment discrimination or whites-only lunch counters would also be unconstitutional.
So that’s the agenda that incoming Justice Bolick is likely to bring to his state’s Supreme Court.
Arizona is, of course, only one state, and Bolick will be only one justice on a five member court. So, at least in the short term, his impact is likely to be limited. Nevertheless, there is good reason to be concerned that Bolick’s views could spread beyond this one seat on this one court.
Shortly after Gov. Ducey announced Bolick’s appointment, presidential candidate Jeb Bush tweeted out high praise for the incoming justice:
Gov Ducey made a fantastic appt. Clint’s respect for the Constitution & commitment to federalism is second to none. https://t.co/OFpkpNilga
— Jeb Bush (@JebBush) January 6, 2016
Bush, who also coauthored a book on immigration policy with Bolick, is a fading establishment candidate who, if elected, is expected to take a more measured approach in the White House than the Republican Party’s frontrunners. As a sign of who he would appoint to the federal bench, national polling leader Donald Trump named Justice Clarence Thomas, who has suggested that federal child labor laws are unconstitutional, as his favorite justice.
Meanwhile, Iowa polling leader Ted Cruz pledged to appoint justices well to the right of Chief Justice John Roberts, the author of the Court’s opinions neutering much of the Voting Rights Act and legalizing certain forms of money laundering by campaign donors.
So the closest thing this Republican field has to a moderate thinks that Bolick is a “fantastic” appointment — and as many as four justices could retire in the next president’s term due to their advanced age. If a Republican wins the race for the White House, men like Bolick could soon fill the U.S. Supreme Court.