The radical ideology of this Trump nominee makes even the most conservative SCOTUS justices uneasy

It's a nice government you have there. Would be a shame if someone breaks it.

Texas Supreme Court Justice Don Willett participates in a discussion during the Federalist Society's National Lawyers Convention in Washington, Friday, Nov. 18, 2016. (AP Photo/Cliff Owen)
Texas Supreme Court Justice Don Willett participates in a discussion during the Federalist Society's National Lawyers Convention in Washington, Friday, Nov. 18, 2016. (AP Photo/Cliff Owen)

Justice Don Willett is charming.

Best known outside legal circles for his Twitter feed, @JusticeWillett, the Texas Supreme Court justice — and now a Trump nominee to a federal appeals court — tweets largely apolitical commentary about Calvin and Hobbes, his children, and Oxford commas. Many of his tweets are genuinely hilarious, and Willett is equally disarming in person. When I met him a couple years ago at a gathering of the conservative Federalist Society, he was genial, thoughtful, and surprisingly familiar with my work. The man knows how to endear himself to people.

This would all be well and good, if not for one other factor. This charming, intelligent, knowledgeable man also wants to dismantle much of the last 80 years of American law.

In a 2015 opinion laden with libertarian tropes and selective history, Willett called upon his court to revive a defunct doctrine once used to strike down minimum wage laws and gut workers’ right to organize. It’s a doctrine that that three of the Supreme Court of the United States’ most conservative members recently called out as “discredited” and “unprincipled.”

The “Lochner Era”

There are a handful of past Supreme Court decisions that belong to the constitutional “anti-canon” — the pro-slavery decision in Dred Scott, the Court’s pro-segregation decision in Plessy v. Ferguson, a 1918 decision striking down child labor laws. These are the sort of cases that law students are taught never to cite favorably in a brief. When they do come up in litigation, it is typically because one party accuses the other of make an argument reminiscent of an anti-canonical case.

Until recently, Lochner v. New York which struck down a New York law providing that bakery workers could not work more than 60 hours a week —  was viewed as part of the anti-canon by all but a fringe group of lawyers with little influence. Even Robert Bork, the Reagan Supreme Court nominee denied a place on the Court due to fears he was too rigidly conservative, labeled Lochner an “abomination” that “lives in the law as the symbol, indeed the quintessence of judicial usurpation of power.”

Lochner provided the basis for a host of decisions preventing progressive regulation of the workplace. Indeed, the four decade period in the late nineteenth and early twentieth century, when the Supreme Court effectively read a laissez-faire orthodoxy into several provisions of the Constitution, is known as the “Lochner Era” among legal scholars due to this case’s defining role in shaping the decisions of the day.

One decision applying Lochner held that the law may not to used 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” — a rule that, had it still been in effect in the 1960s, would have required courts to strike down the Civil Rights Act of 1964’s bans on employment discrimination and whites-only lunch counters.

In recent years, however, a group of mostly libertarian legal scholars have sought to pull Lochner out of the anti-canon (one of the seminal texts of this movement is named “Rehabilitating Lochner“). Combining a mixture of true facts of dubious relevance, ad hominem attacks on Lochner‘s opponents, and doubtful historiography, these scholars seek to restore Lochner to the legitimate pantheon of legal decisions — and even to revive its doctrines.

Which brings us to Justice Willett’s opinion in Patel v. Texas Department of Licensing and Regulation. Willett’s concurring opinion in Patel is deeply steeped in the scholarship seeking to revive cases like Lochner. It quotes the Pope, Fredrick Douglass, Shakespeare, James Madison, Adam Smith, and Davy Crockett. And it buys wholeheartedly into libertarian ideas that would dismantle much of American government.

“Don’t Thread on Me”

Patel is a tribute to the increasing sophistication of lawyers fighting to restore cases like Lochner. It involves both an exceptionally dumb law and a bevy of sympathetic plaintiffs. It’s the sort of case where you very much want the plaintiffs, who were represented by a law firm that specializes in Trojan Horse lawsuits seeking to launder radical legal doctrines through cases involving real injustice, to prevail even if they don’t have any good legal arguments. It’s the sort of case that tugs at the heart, and that shuts down the part of the brain that makes judges think through the implications of what they are signing onto.

Texas law required eyebrow threaders — a practice where stray hairs are removed by cotton or polyester thread — to undergo a 750-hour training course that included a great deal of material unrelated to threading. It was an extraordinarily dumb law. Any sensible legislator would vote to repeal it.

But the fact that a law is ill-advised does not make it unconstitutional. And it does not mean judges should revive long-discredited doctrines in order to take it out.

The issue with Lochner was that it read dubious “rights,” such as a right to enter into labor contracts that called for very long hours and very low pay, into the Constitution itself. Chastened by this experience, the justices who rejected Lochner many decades ago decided that they should not be trusted with such a freewheeling power to invent new doctrines with hardly any connection to the text of the Constitution. Thus, the Court held that nearly all laws should be treated as presumptively constitutional, with exceptions for laws that violate an explicit provision of the Constitution, that single out certain minorities for inferior treatment, or that harm the democratic process itself.

This presumption of constitutionality ushered in a golden age of American democracy, where courts got out of the business of making economic policy and left these matters to leaders like Franklin Roosevelt or Lyndon Johnson. It also coincided with the massive expansion of American wealth and power that took place in the later two-thirds of the twentieth century.

Yet, for libertarian scholars, this golden age was an age of perdition, and the original sin was the presumption of constitutionality intended to ward of decisions like Lochner.

The leading scholar arguing this viewpoint is probably Randy Barnett, a Georgetown law professor who believes that most of the twentieth century is unconstitutional. Barnett has explicitly praised the Lochner decision. He’s even claimed that Social Security is unconstitutional.

Barnett’s core claim is that the presumption of constitutionality should be replaced by a presumption of unconstitutionality — courts should presume that most laws are unconstitutional, in Barnett’s view. Yet, being a skilled advocate, Barnett gives his presumption a much more appealing name. He calls it the “presumption of liberty.”

Which brings us to this excerpt from Justice Willett’s Patel opinion, where the judge rejects the post-Lochner consensus and restates Barnett’s philosophy:

In today’s age of staggering civic illiteracy—when 35 percent of Americans cannot correctly name a single branch of government—it is unsurprising that people mistake majority rule as America’s defining value. But our federal and state charters are not, contrary to popular belief, about “democracy”—a word that appears in neither document, nor in the Declaration of Independence. Our enlightened 18th and 19th-century Founders, both federal and state, aimed higher, upended things, and brilliantly divided power to enshrine a promise (liberty), not merely a process (democracy). . . . This case concerns the timeless struggle between personal freedom and government power. Do Texans live under a presumption of liberty or a presumption of restraint?

Nor is this passage Willett’s only shoutout to the writers seeking to revive cases like Lochner. Willett also explicitly rejects the argument, made by one of his colleagues in a dissenting opinion, that Lochnerism is something to be feared. “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,” he writes.

Willett notes that Justice Oliver Wendell Holmes, the justice who wrote the strongest dissent in the original Lochner case, also penned an odious opinion in Buck v. Bell holding that the state can sterilize individuals against their will. It’s an ad hominem argument that pro-Lochner scholars often repeat — if Holmes was so wrong in Buck, how could his opinion in Lochner be right! — but it’s also not a particularly strong argument. Buck was an 8-1 decision, joined by many of the Court’s staunchest defenders of Lochner. The biggest lesson to be drawn from Buck is that the Supreme Court as a whole was full of terrible people in 1927.

Willett also favorably cites fringe libertarian thinkers such as Timothy Sandefur, a litigator for the conservative Goldwater Institute who has claimed that courts are required to follow decisions like Lochner even if the Constitution is amended to explicitly reject this view.

Willett’s opinion, in other words, is the picture of a man eager to roll back nearly a century of American law. It is the picture of a judge who believes he has far to little power — and that the people who are actually elected to make laws have too much ability to act. And it is the picture of a judge eager to seize more power and use it to implement doctrines that took America to a very dark place the first time around.

The Fox News of judges

If all of this discussion of legal scholarship and books written by largely unknown lawyers sounds obscure and arcane, that’s because it is. Most lawyers — indeed, most legal scholars and judges — are not familiar with neo-Lochnerite scholarship, much less the most cutting edge rebuttals to its claims. People like Barnett and Sandefur are influential in Federalist Society circles, but few people outside of the conservative legal community know who they are.

But that does not mean that they can be safely ignored. Much as conservative media outlets like Fox News and Breitbart have created an alternative universe of facts for their consumers, libertarian scholars have constructed an alternative history of the Constitution — some of it based in reality, much of it based in half-truths or outright misrepresentations.

If mainstream lawyers and judges are not familiar with these alternative facts, they will be poorly equipped to rebut them when judges like Willett write them into opinions like Patel. The age of the anti-canon, when judges could safely assume that decisions like Lochner were dead, buried, and incapable of resurrection, is coming to a close.

Justice Willett is many things. He is radical and deeply conservative. But he is also intelligent, charismatic, and skilled in the arts of persuasion. And he will probably soon be a federal appellate judge. His views can no longer be safely ignored.