Simon Lazarus: The Roberts Court repeals the 20th century
If the Roberts Court makes this shift to the right, it will reinstate the goals, though not the strategy or tactics, of its forbears of a century ago. The reactionary bloc of Supreme Court justices who dominated American law in the first third of the 20th century attacked the emerging regulatory state by playing the Court's ace: its unreviewable power to declare state and federal laws unconstitutional. The case that kicked off this long campaign was a 1905 decision called Lochner v. New York, and the era is known to lawyers as The Lochner Era. In the wake of the New Deal Court's flat repudiation of the old Court's constitutional jurisprudence, all that has survived is Justice Oliver Wendell Holmes' famous sound-bite dissent in the 1905 Lochner decision itself:"The Constitution," he said,"does not enact Mr. Herbert Spencer's Social Statics." The point of Holmes' quip was that the majority was reading into the Constitution a controversial ideology -- doctrinaire laissez-faire economics, of which Spencer was a leading exponent -- with no warrant in the text or history of the Constitution itself.
The new breed of conservative judicial activists has not sought expressly to exhume Lochner. For the most part -- at least so far -- they have discreetly avoided repeating the in-your-face strategy of invoking the Bill of Rights to strike down individuals' statutory economic protections. Instead, they have sought to throw sand in the gears of the regulatory state by proliferating obstructionist rules purporting to promote sound judicial procedure and the separation of powers. A perfect example is the Court's conversion of ERISA into a worthless font of rights without remedies. Another is this spring's Ledbetter ruling, which effectively if obliquely overturned the equal protections of the Civil Rights Act by barring discrimination victims from court unless they sue within 120 days of their employer's original discriminatory act -- despite the fact that, in real workplaces, evidence of such offenses rarely surfaces for years.
The principal vehicle for this new activism has been a schizophrenic approach to policing the boundaries between state and federal power -- venerated in judicial boilerplate as the"delicate balance" of federalism. On the one hand, the conservative bloc has sought to constrain Congress' power to enact -- and citizens' ability to enforce in court -- national legislation. On this side of their agenda, the justices have portrayed themselves as defenders of"states' rights." In the late 1990s and first years of this century, the so-called"Federalism Five" bloc of conservatives had pushed this gambit so far that a widely respected Reagan appointee, Judge John T. Noonan Jr. of the 9th Circuit, wrote that their decisions had"return[ed] the country to a pre–Civil War understanding of the Nation."
On the other hand, without missing a beat, the Court simultaneously developed doctrines to"preempt" -- that is to say, invalidate -- state laws that conflict with or"frustrate" federal laws. In the main, the Court's trigger-happy use of its preemption power has been used to strike down state regulatory laws at the behest of industries or businesses seeking regulatory relief.
Together, these mutually contradictory, vague, and elastic legal theories arm the Supreme Court -- that is, five life-tenured justices, or, often, one swing-justice, Anthony Kennedy -- to act as the decisive arbiter of what is acceptable state and federal regulation. Driving this two-faced regime, as professor Ernest Young of the University of Texas (a leading Federalist Society conservative) has noted, is a"libertarian vision" that"sees federalism as a tool of deregulation with the potential to keep both national and state governments within relatively narrow bounds." ...