Last Thursday, George Will wrote yet another op-ed advocating that non-elected, life tenured judges play a stronger role in protecting individual liberty (read that as economic liberty), and that this issue should be used by the GOP both in the next presidential campaign and to appoint the next Supreme Court Justice. This argument, against the judicial restraint philosophy advocated by Robert Bork and Ed Meese circa 1980, has been given deep scholarly meaning by Professors Richard Epstein of NYU and Professor Randy Barnett of Georgetown, two of this country’s most intelligent and deep-thinking legal academics. Both of these men have written scores of articles and books arguing that our Constitution, properly understood, as well as society’s current best interests, lie in judges strongly enforcing a libertarian conception of government power where minimum wage laws, union protections, and even non-discrimination laws are inherently suspect. They have been joined by right-wing think tanks like the Cato Institute and the Heritage Foundation as well as by top notch litigators like Clark Neilly, whose book “Judicial Engagement” is a call to arms for judges to seriously question much economic legislation. In addition, Evan Bernick has written thoughtfully in favor of strong judicial engagement at the Huffington Post. Against all of this is nary a word from liberal academics and pundits, though old-guard conservative Ed Whelan is trying hard to block this call for aggressive judicial review by reminding folks about the dangers of allocating more power to government officials we do not elect and cannot vote out of office.
The history of strong judicial review of economic legislation is not a pretty one. Starting in the early 1900’s the Court began striking down laws relating to mild progressive efforts to protect workers, wages, and unions. Over 200 such laws were struck down by the Supreme Court from 1900-1936, and of course many more by lower court judges. This torrent of strong judicial review ended with the New Deal, FDR’s Court-packing plan, and the realization by most academics that the line between pure rent seeking and monopolistic efforts, on the one hand, and legitimate government regulation, on the other, is too fine to be trusted to lawyers and judges. As Holmes said in the first few lines of his famous dissent in the Lochner decision overturning a maximum-hour law for New York bakers: “This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law.”
Justice Holmes’ answer to his brethren in Lochner is persuasive and underlies where Whelan, federal judge Harvey Wilkinson, and progressive liberals like Mark Tushnet and yours truly all center our arguments. Whereas Randy Barnett and Richard Epstein believe passionately and sincerely that we would all be better off with strong judicial protection of economic rights, I think our society would be much worse without egalitarian protections for the poor and for workers everywhere. Moreover, I think reproductive freedom is perhaps our most important personal right, given both the bodily integrity interests involved and the dramatic social and economic consequences of unplanned pregnancies. Who is right and who is wrong? I say let the voters decide whereas Barnett and Epstein want judges to strongly enforce their vision of the right and the good.