I know it’s boring to talk about things like Lochner, but few legal cases matter more
For those who pay attention to legal argument, one of the things that is most troubling is Justice Brown’s approval of the Lochner era of the Supreme Court. In the Lochner case, and in a whole series of cases prior to Lochner being overturned, the Supreme Court consistently overturned basic measures like minimum wage laws, child labor safety laws, and rights to organize, deeming those laws as somehow violating a constitutional right to private property. The basic argument in Lochner was you can’t regulate the free market because it is going to constrain people’s use of their private property. Keep in mind that that same judicial philosophy was the underpinning of Dred Scott, the ruling that overturned the Missouri Compromise and said that it was unconstitutional to forbid slavery from being imported into the free States.
That same judicial philosophy essentially stopped every effort by Franklin Delano Roosevelt to overcome the enormous distress and suffering that occurred during the Great Depression. It was ultimately overturned because Justices, such as Oliver Wendell Holmes, realized that if Supreme Court Justices can overturn any economic regulation — Social Security, minimum wage, basic zoning laws, and so forth — then they would be usurping the rights of a democratically constituted legislature. Suddenly they would be elevated to the point where they were in charge as opposed to democracy being in charge.Justice Brown, from her speeches, at least, seems to think overturning Lochner was a mistake. She believes the Supreme Court should be able to overturn minimum wage laws. She thinks we should live in a country where the Federal Government cannot enforce the most basic regulations of transparency in our security markets, that we cannot maintain regulations that ensure our food is safe and the drugs that are sold to us have been tested. It means, according to Justice Brown, that local governments or municipalities cannot enforce basic zoning regulations that relieve traffic, no matter how much damage it may be doing a particular community.
What is most ironic about this is that what Justice Brown is calling for is precisely the type of judicial activism that conservatives have been railing against for the last 50 years.
it’s political aikido- they are setting things up so they can use our principles against us. they have no requirement in the current media environment to maintain any degree of consistency- their past and future pronouncements on ‘judicial activism’ are simply irrelevant. any statement made by a democrat will haunt them forever- flip-flops and such.
so they force the current debate into being for or against ‘judicial activism’. since they are ‘against’ it, we must therefore be ‘for’ it. a year down the road, when they have activist jusdges working for them, democrats will be forced to eat their words regarding ‘judicial activism’, or face accusations of partisanship, politicising, or hypocrisy.
in a way, it’s similar to calculus, figuring out the trajectories of their infamy.