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Affluent Christian Investor | September 20, 2017

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Overruled: How Both Parties Turned the Supreme Court Into a Legislature

U.S. Supreme Court Building

U.S. Supreme Court Building

In late June of each year, the Supreme Court reveals many of its decisions in the cases argued that term. Inevitably, lots of Americans are upset over them. You may be one of those Americans, right now.

With all the furor over individual case facts and holdings, people are apt to miss a bigger picture – the judicial philosophies at work.

The clash of philosophies is the subject of an excellent recent book Overruled: The Long War for Control of the U.S. Supreme Court. Author Damon Root, a senior editor at Reason, explores the great divide between those justices who believe that, with only rare exceptions, they should defer to the presumed wisdom of the politicians when laws are challenged, and those justices who believe they should skeptically examine such laws with no deference given.

Justices in the former camp usually uphold laws and regulations because they think that the majority is entitled to rule. Those in the latter camp are not so sanguine about politics and will vote to overturn laws and regulations when they see them as being in conflict with individual rights. In the book, Root gives us an easily read and understood history of that battle going back to the years following the Civil War. He covers a lot of constitutional cases and the people involved in them. And while he doesn’t try to hide his libertarian sympathies, he is entirely fair to those he disagrees with.

Many of the cases involve the 14th Amendment – whether a state law does or doesn’t run afoul of it. That amendment’s groundwork was laid in the 1866 Civil Rights Act, whose architect, Representative John Bingham, stated that the law was meant to protect Americans’ “right to work in an honest calling … and to be secure in the fruits your toil.” In order to protect those rights against the racist attitudes of many politicians, Bingham pressed for an amendment protecting them in 1868.

But only a few years after the ratification of the 14th Amendment, a case arose to test its vitality. The Louisiana legislature enacted a law that conferred a 25-year monopoly on a private corporation in a blatantly corrupt special interest deal. All rivals were simply legislated out of business. Did that law violate any part of the 14th Amendment? Did it deprive citizens of their privileges or immunities, or of their liberty or property without due process of law?

In one of the century’s most consequential of Supreme Court decisions, by 5 to 4, the majority said that the law was all right. In what is known as The Slaughterhouse Cases, Justice Samuel Miller found no violation of the 14th Amendment in his remarkably narrow reading of the law. Creating an obvious strawman, Miller wrote that a more expansive reading “would make the Court a perpetual censor on all legislation of the states.”

That’s the deferential philosophy at work. Let laws stand if at all possible.

Leading the dissenters was Justice Stephen Field, whom Root regards as the progenitor of the Court’s engaged, libertarian wing. Field responded to the majority that Louisiana’s law attacked “the right of free labor,” which he saw as one of “man’s most sacred” and also one that the 14th Amendment was intended to protect.

Thus began a lengthy battle between the two factions. By the time of Field’s retirement in 1897, his side was in control, and would remain so well into the 20th century.

The first big case of the new century that clearly pitted the two factions was Lochner v. New York. New York’s legislature had enacted a law regulating many aspects of the baking business and it included a limit on the number of hours a baker could work. That part of the law was challenged as a violation of the 14th Amendment and, 5-4, the Supreme Court agreed. Justice Peckham’s majority opinion held that the right to decide how much time to work was within the liberty protected by the amendment.

That holding infuriated Justice Oliver Wendell Holmes, Jr., who had been appointed by President Roosevelt in 1902. In a famous dissent, Holmes fumed that it was none of the Court’s business to get in the way of what the people wanted, whether wise or not. He insisted that the Court should defer to the legislature.

Field’s philosophy prevailed in Lochner, but generations of law students have heard that the decision was egregiously wrong because judges shouldn’t “impose their values.” In reply, the Fieldians would say, “The majority didn’t impose anything, but merely kept the state legislature from imposing its ideas on a matter that the Constitution leaves to individual liberty.”

Holmes and his “defer to the legislature” allies were mostly in the minority for the next few decades – but then came the Depression.

In FDR’s first term, Congress obligingly passed a host of bills meant to alleviate the economic misery gripping the nation, but the legislation trampled all over individual rights the Constitution protected, as well as far exceeding the powers of Congress under Article I. The Court, in a series of decisions, struck down laws such as the National Industrial Recovery Act. Despite the cries that the laws were essential, a majority of the Court refused to bow in deference to Congress and the president.

That led to Roosevelt’s infamous “Court packing plan” in late 1936. That threat was enough to swing Chief Justice Hughes and Justice Owen Roberts his way in the crucial 1937 Jones & Laughlin Steel case, where the Court, ignoring all precedents, upheld the National Labor Relations Act.

Root says of that,

“All told, it was one of the most striking turnarounds in legal history. In less than a decade, the Supreme Court had not only rendered liberty of contract a dead letter, it had embraced a sweeping form of judicial deference toward state and federal legislation while also greatly expanding congressional power….”

Judicial deference held sway for the rest of the 30s and 40s and 50s. The Court was so uninterested in cases involving property rights and economic liberty that it would uphold the most blatantly authoritarian, anti-competitive statutes so long as there might have been any “rational basis” for politicians to have enacted them. That is to say, such laws always survived and the Court’s message (as in, for example, Williamson v. Lee Optical) was: “Don’t waste your time on these issues because we’re not listening.”

Ah, but what about the most famous case of the century, Brown v. Board of Education? The NAACP Legal Defense Fund mounted a challenge to state school segregation, hoping that the Court would breathe some life back into the 14th Amendment and declare school segregation unconstitutional.

All thoughts of deference to state officials were shelved as the Court unanimously ruled in favor of the NAACP. Root notes, however, that one of the most esteemed liberal jurists of the day, Judge Learned Hand of the Second Circuit, denounced Brown in a 1958 speech, saying that the Court should not have substituted its values for those of the Kansas politicians.

Hand’s point was that the supposedly deferential justices dropped their philosophy when it came to a dispute they cared about. We would see that again in the 1963 case Griswold v. Connecticut, where the legality of Connecticut’s law against the sale of contraceptives was at issue. Justice Douglas wrote the majority opinion striking down the law, an opinion famous for its verbal arabesques about how a right of privacy is formed from “emanations” and “penumbras” of various parts of the Bill of Rights.

That certainly showed no deference to the state politicians who enacted the law. But, as Root shows, there is something strange about the opinion. Although Justice Douglas tried hard to make sure that nobody thought he was resurrecting Lochner thinking, the precedents he cited were all based on Lochner. Again, a justice who was ostensibly committed to letting the people rule, went Justice Field’s way when “the people” had done something he disagreed with, something that deprived individuals of freedom he thought they should have.

Root ably covers the rise of the libertarian legal movement beginning in the 1980s, with the Institute for Justice and Cato Institute leading the way. The idea was to combat the widespread disregard for economic liberties and the tendency of courts to merely yawn and blithely defer to the supposed wisdom of the political branches. The formula: find cases with “sympathetic clients, outrageous facts, and evil villains.”

That approach has led to some signal victories over ugly state and local regulations that suppress competition to aid politically powerful interest groups – a fact that the “we must defer” judges want to ignore. It has also led to some big wins at the state and local levels, as well at the top, notably the Supreme Court’s ruling in District of Columbia v. Heller that the Second Amendment protects individuals in their right to keep and bear arms.

The libertarians have been encouraging what Institute for Justice attorney Clark Neily calls “judicial engagement” – which is to say, judging that looks beneath the bland assurances that laws and regulations are “in the public interest” to hunt for interest group favoritism or mere animosity.

They’ve won some big cases, but lost others where judicial deference prevailed. One of those was the eminent domain battle in Kelo v. New London.

Justice Stevens insisted that the Court had to allow the local officials go ahead with their redevelopment plan, holding that transferring land to a private organization that would presumably put it to better use was all right because it was a “public purpose” and the justices shouldn’t question their judgment. (Later, the whole plan fell through and the area today is a huge vacant lot.)

Deference also carried the day in the two cases involving the Affordable Care Act.

The “long war” will certainly go on. Politicians and interest groups who like the status quo with its vast, largely unchecked governmental power will keep up the pressure for judges who can be expected to defer to that power. People who believe that judges should be awake to the violations of constitutional rights that the political process so often leads to, will try to put jurists like that on the bench.

Reading this lively and illuminating book probably won’t make you feel the least bit better about any of the recent Supreme Court decisions, but it will give you more understanding about what is going on behind the scenes.

 

Originally posted on Forbes.com.

 

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