WASHINGTON — The historical analogy came easily to the former constitutional law teacher.
“A law that was passed by Congress on an economic issue, like health care, that I think most people would clearly consider commerce – a law like that has not been overturned at least since Lochner. Right?” President Barack Obama told newspaper editors last week.
Those who are not historians or recent law school graduates might miss the reference. But it is time to brush up on Lochner v. New York, a 1905 decision reviled enough to lend its name to an era of discredited Supreme Court rulings.
Some supporters of the Affordable Care Act saw an apparition in the Supreme Court’s arguments on the act, and recalled the days when the court struck down progressive economic regulation.
“The ghost of Lochner is alive and well on the Roberts Court, which has been busily dismantling laws that stand in the way of total corporate freedom,” warned Jamin Raskin, an American University law professor and Maryland state senator.
But the utility of Lochner — which struck a New York law that prohibited certain bakers from working more than 10 hours a day or 60 hours per week — is that it is an equal-opportunity offender.
Conservative former judge Robert Bork called the decision “the symbol, indeed the quintessence, of judicial usurpation of power.” At his confirmation hearing, Chief Justice John Roberts said, “you can read that opinion today and it’s quite clear that they’re not interpreting the law, they’re making the law.”
And Obama has had a Lochner thing for a while. As a senator, Obama said Lochner represented a series of rulings in which “the Supreme Court consistently overturned basic measures like minimum wage laws, child labor safety laws and rights to organize, deeming those laws as somehow violating a constitutional right to private property.”
Obama said Lochner had the same “judicial philosophy” as the most-denounced court ruling in history, the 1857 Dred Scott decision that prohibited Congress from regulating slavery and reinforced the notion of slaves as property, not citizens.
“Over one hundred years after their predecessors issued the decision, Supreme Court justices of all ideological stripes use Lochner as an epithet to hurl at their colleagues when they disapprove of a decision declaring a law unconstitutional,” wrote David Bernstein, a George Mason University law professor in his book “Rehabilitating Lochner: Defending Individual Rights Against Progressiv e Reforms.”
In its ruling, the 1905 court struck New York’s Bakeshop Act, which limited the hours backers could work. Joseph Lochner, a Utica baker, had been convicted of requiring his employes to work longer hours.
He challenged the constitutionality of the law under the 14th Amendment, which provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” The court agreed, finding a “liberty of contract” that disallowed New York’s attempt to regulate such working hours.
In an interview, Bernstein said Lochner contains something for most everyone to hate.
“Liberals see the court as unduly interfering with progressive legislation meant to help people who needed it,” Bernstein said. “Conservatives draw a different lesson: They see it as a symbol of judicial activism,” creating a right beyond those enumerated in the Constitution.
During oral arguments, Solicitor General Donald Verrilli said that Congress was well within its powers to regulate interstate commerce by insisting that individuals must secure health insurance. A finding otherwise, he suggested would be a return to “Lochner-like” decisions. But he barely got the word out before Roberts jumped in.
“It seems to me it’s an entirely different question when you ask yourself whether or not there are going to be limits on the federal power, as opposed to limits on the states, which was the issue in Lochner,” Roberts said.
When progressives say Lochner, they mean more than that one decision, but a series of rulings that, as Obama indicated, struck state and New Deal economic regulations. At any rate, Lochner’s key holding was disavowed by the court in 1937’s West Coast Hotel v. Parrish, which is generally recognized as ending the Lochner era.
Bernstein said he believes that Obama is the “first sitting president to mention Lochner,” and then acknowledged that’s the kind of fact that only academicians love.
Those health care arguments showed how combative the justices can be – both with the advocates and among themselves.
But in speeches last week, they returned to the theme of the court being one, big happy family.
Justice Antonin Scalia told a crowd at the University of Southern Mississippi that even justices on opposite sides of the ideological divide are tight.
“My best friend on the court is Ruth Bader Ginsburg,” Scalia said, according to the Hattiesburg American. “We don’t agree too often.”
And it sounds as if Scalia is charming another member on the left.
Justice Elena Kagan told an audience at Marquette University Law School that she and Scalia have bonded in the wild.
“Justice Scalia has made a huntress out of me,” she joked.
The two have been skeet-shooting and hunting for pheasant and quail, she said. In October, they are heading to Montana for big game.
According to a report on the Marquette faculty blog, Kagan said Scalia has a large animal head in his office that he calls Leroy.
“He insists I’m going to shoot myself an antelope,” Kagan said. “Justice Scalia insists I need my own Leroy.”