The Roberts Court v. America
How the Roberts Supreme Court is using the First Amendment to craft a radical, free-market jurisprudence.
In the last few years, the Supreme Court and lower federal courts have shown a new hostility toward laws that regulate the economy and try to limit the effects of economic power. They have declared a series of laws unconstitutional, most famously limits on corporate campaign spending (the Supreme Court) and a key part of Congress’s 2010 health-care reform act (among others the 11th Circuit Court in Atlanta; the Supreme Court will decide the issue in the coming year). The Supreme Court has also held that Vermont cannot restrict drug companies’ access to the prescription records that they use to target their sales pitches, and struck down other state laws that try to constrain the effect of wealth on elections. These decisions don’t just trim around the edges of regulation: They go to the heart of whether government can act to balance out private economic power in an era of growing economic inequality and insecurity. These decisions chime with some of the more troubling themes of the time. They fit well with the economics-minded idea that most of life is best seen as a marketplace, and with the right-wing mistrust of government that has metastasized into Tea Party contempt and anger.
Liberals have denounced many of these decisions, but they have not yet spelled out the larger pattern. What’s missing from the criticism is a picture of what these cases add up to: an identity for the Roberts Court as the judicial voice of the idea that nearly everything works best on market logic, that economic models of behavior capture most of what matters, and political, civic, and moral distinctions mostly amount to obscurantism and special pleading.
The Supreme Court went down a similar road in the Gilded Age and afterward, defending laissez-faire economic principles against minimum wages, maximum hours, and other Progressive and New Deal regulation. The new cases have different doctrinal logic, and the economy has changed vastly, but the bottom lines are eerily alike: giving constitutional protection to unequal economic power in the name of personal liberty. The Supreme Court’s last go-round with economic libertarianism is often called the Lochner era, after the 1905 namesake case, Lochner v. New York, in which the Court invalidated a state law that set maximum daily and weekly hours for bakers. The Court ruled that the law violated constitutionally protected “liberty of contract,” the freedom of both employees and employers to make whatever agreements they saw fit. Minimum-wage laws were another prime target of Lochner reasoning because they limited the “freedom” to accept low pay. The Court also invalidated laws guaranteeing the right to join a union, struck down price regulations, and, more sympathetically, overturned barriers to entry in some trades and struck down a residential segregation law as a violation of the white owner’s right to sell his property to whomever he liked. Overall, between the 1880s and the 1930s, the Supreme Court struck down more than 200 pieces of state and federal legislation as violations of “economic liberty.”
If Chief Justice John Roberts’s Court develops the new cluster of anti-regulatory cases into a clear agenda, then the Roberts Court will be the twenty-first century’s answer to the courts of the Lochner era. The most extreme scenario would begin with invalidating the 2010 Affordable Care Act, but, win or lose, the mere fact that there is a viable constitutional argument against the law is a sign of how far the new economic libertarianism has gone. With or without that victory, such a jurisprudence would mean the end of regulation of campaign spending, virtually complete constitutional protection for advertising, and aggressive review of regulation in data markets or nearly any industry whose inputs or products are information. In other words, it would call into question whether government can regulate the basic engines of the new economy, just as Lochner jurisprudence did in the Industrial Age.
Information Age Laissez-Faire
For decades, progressive commentators denounced Lochner-style decisions (generally ignoring the anti-segregation holding) as willfully blind to the reality of unequal economic power between capitalists and workers. The Supreme Court, they said, was protecting the interests of employers under the disingenuous claim of preserving everyone’s liberty equally. In 1937, under political pressure from Franklin D. Roosevelt, economic pressure from the Great Depression, and intellectual pressure from critics outside and dissenters within, the Supreme Court abandoned Lochner jurisprudence and closed an era with cases such as West Coast Hotel v. Parrish, where the Court upheld a minimum-wage law against a freedom-of-contract challenge, remarking, “The Constitution does not speak of freedom of contract.” Lochner and “freedom of contract” became bywords for illegitimate judicial activism without roots in the text of the Constitution. Ever since, justices of all political persuasions have merrily accused one another of reviving Lochner. Conservatives see personal liberties such as abortion rights and protection for same-sex intimacy as invented for political purposes, while liberals invoke Lochner when the Court gets in the way of economic regulation, as it did in a set of cases compensating property owners for economic losses from environmental laws in the 1990s.
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