The Courts Really Do Matter: Lochner. And Ginsburg.

Note: I wrote this a few days ago, and planned to publish it later this week, since it wasn’t ‘time-dependent’ or an immediate response to current events. With the death of Justice Ginsburg, events surpassed my blogging schedule…

Recently, some asshole with a blog noted:

…parts of the left, construed somewhat broadly, have downplayed what Biden would mean for the courts and the rule of law in the U.S.–and if those go, then we have no hope of ever truly enacting good policies…

It’s not just the Supreme Court either: on the federal circuit courts, we’ve reached the point where Bush 43 appointees look, in relative terms, like moderates*. You also can add environmental regulation, worker protection, and so many other issues. Biden’s nominees might not be great, especially on economic issues. They probably won’t decide great case law, but they probably wouldn’t stand in the way of Democratic legislation either…

Without it [judicial reform], nothing even has a chance to change. To do that, we need Democrats in the Senate and the White House. Their judges might not be good, but Trump’s judges–and his complete disrespect for the rule of law–will be far worse for the left.

Case in point (pun intended; boldface mine):

A federal judge this week struck down as unconstitutional statewide shutdown policies ordered by Pennsylvania Gov. Tom Wolf (D) to curb the coronavirus. On its own, that is significant — a judge second-guessing a governor during a public-health emergency — but equally notable is how the court arrived at its conclusion. U.S. District Judge William S. Stickman IV put forth an array of objections to the orders, including they violated residents’ First Amendment rights of association and were not tailored to take account of differences in viral spread in different parts of the state. He also argued the governor was not owed any special deference from the court because he was dealing with an emergency.

But what was most striking — what reveals the radical nature of the opinion — is that Stickman leaned on a discredited 1905 Supreme Court decision, Lochner v. New York, in arguing Pennsylvanians had the due process right to choose how to earn a living, even during a pandemic. Until this week’s case, Lochner had been consigned to the dustbin of history. Lochner specifically held that states could not impose maximum hour restrictions on bakers, because that would infringe the bakers’ freedom to work long hours if they chose. But more broadly, Lochner read a theory of “economic liberty” into the Constitution, thereby blocking all sorts of government regulation of working conditions and wages until the mid- to late 1930s, when judges effectively wrote off the decision and departed from its reasoning.

Today, of course, states and the federal government regulate working conditions and wages extensively — although libertarians occasionally express the desire to revive the Lochner perspective. That a district court judge would cite the decision shows how consequential President Trump’s stacking of the courts has been. The committed ideologues he has appointed — Stickman joined the district court in 2019 — stand in the way of effective public-health policy and will promote the Republican Party’s political agenda for decades to come. This case shows they will do so even if they have to turn back the constitutional clock.

Parts of the left, including its farther reaches, don’t take into account the importance of the courts or the bureaucracy in terms of governance (we’ll return to bureaucracy in another post). But the judiciary really does matter. In the U.S. system, it has become, for better or for worse, a bizarrely chosen part-veto making, part-legislative body (usually more vetoing than legislating). If the left doesn’t remake the judiciary–and that must be a long term goal–there’s no way a Green New Deal or Medicare for All survive the federal courts–courts in which Bush 43 appointees are now seen as moderates.

We are trying to get out of a hole that was fifty years in the making, and there’s no magic piece (or pieces) of legislation that will make things better. That doesn’t mean we shouldn’t pass good laws–we should. But the left needs to stop acting like insurgents that storm the capital, and, instead, start installing its people in the capital. Not all of those installed have to be ‘radical’ either. It’s enough for some of them to be willing to not get in the way. But power really does matter, and we have to stop being so childish about it, and start studying it and taking it seriously.

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