As the Supreme Court's conservative majority stands poised at the edge of a cliff -- debating whether or not to strike down the Affordable Care Act and pick a very large fight with Congress and a sitting President -- two conservative judges on the U.S. Court of Appeals for the D.C. Circuit sought to push them over the edge last week. Their opinion -- a startling call for the abandonment of eight decades of Supreme Court case law in economic cases and a return to the pre-New Deal "Lochner Era" -- is the clearest roadmap yet as to what a conservative judicial revolution looks like.
If you listened carefully to oral argument in the Supreme Court health care case, as well as the commentary that surrounded the argument, you know that the "ghost of Lochner" was ubiquitous, scaring school children and anyone who cares about the reputation and future of the Supreme Court. The Era is named after its most notorious ruling, Lochner v. New York, a 1905 case in which the Supreme Court struck down a state statute that attempted to impose a maximum-hours limitation on bakers. The Court declared this state law was an unconstitutional infringement of the "economic liberties" it found protected by the 14th Amendment. During the Lochner Era, the Supreme Court invalidated scores of federal and state statutes designed to improve working conditions and jump-start the economy out of the Great Depression, inventing new constitutional rights and giving a cramped construction to Congress' express constitutional powers. The fear now is that a 5-4 ruling by the Court striking down all or part of the ACA will usher in a new wave of conservative judicial activism, pushing forward additional challenges to landmark federal statutes passed since the New Deal.
If that is the fear among many, it is the heartfelt desire among some -- including some of the most prominent lower court judges placed on the federal bench by the last several Republican presidents. That was the message of a remarkable concurring opinion issued last Friday by D.C. Circuit Judge Janice Rogers Brown, an appointee of President George W. Bush, and Judge David Sentelle, a Reagan appointee. The opinion accuses the Supreme Court of "abdicat[ing] its constitutional responsibility to protect economic liberty completely" and suggests that economic liberties should be recognized as a fundamental constitutional right. It advocates that courts step in whenever they discover "the political temptation to exploit the public appetite for other people's money--either by buying consent with broad-based entitlements or selling subsidies, licensing restrictions, tariffs, or price fixing regimes to benefit narrow special interests."
That sentence reads like gibberish, perhaps to disguise just how radical it is, but let me try to translate it into English. Federal programs such as Social Security and Medicare are classic examples of "broad-based entitlements." Much of the regulation by agencies such as the Environmental Protection Agency (EPA), the Federal Energy Regulatory Commission (FERC), the Nuclear Regulatory Commission (NRC) and the Federal Communication Commission (FCC) are carried out through "licensing" requirements. Tariffs have been a part of trade regulation since the nation's Founding. And so on. Brown would have judges to invalidate much of the Twentieth Century and she would celebrate the return of "America's cowboy capitalism," that this would produce. Citing Hungarian anarchist Anthony De Jasay, Brown endorses the notion that "Civil society, 'once it grows addicted to redistribution, changes its character and comes to require the state to 'feed its habit.'" She accuses judges who refuse to trump the decisions of the political branches of leaving property "to the mercy of the pillagers." Wow.
This is Lochner on steroids, and the timing of the opinion suggests it has an intended audience of five -- the five conservatives on the Supreme Court. The message to the Justices, like the message of the intemperate bullying of Department of Justice lawyers by Judge Jerry Smith (also a Reagan appointee) in the Fifth Circuit two weeks ago, also seems clear: " step into the abyss, we're behind you all the way."
Last Friday's opinion from Judge Brown should surprise no one. She was put on the D.C. Circuit to play the role of judicial provocateur. As I wrote in the Washington Post eight years ago when her nomination to the D.C. Circuit was pending in the Senate, Brown, then a Justice on the California Supreme Court, was the only judge in America at that point who openly yearned for a return to Lochner. In a series of speeches she delivered shortly before her nomination, Brown explicitly endorsed a return to Lochner in apocalyptic language that was echoed by her opinion last week.
What was remarkable then about Judge Brown's speeches was how out of line they were even with the views of staunch conservatives such as Robert Bork and Edwin Meese. At that time, Bork and Meese were still actively condemning the Lochner era, and suggesting the activism of conservative judges of that era was just as bad as what they believed was the activism of the Warren Court.
What's really scary is that today, voices like those of Fourth Circuit Judge J. Harvie Wilkinson, Sixth Circuit Judge Jeffrey Sutton, and Brown's D.C. Circuit colleague Judge Laurence Silberman -- voices for conservative judicial restraint -- are starting to seem like the outliers. If you want to know what a conservative judicial revolution looks like, Judge Janice Rogers Brown has just published a roadmap in the federal case books.
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