Thursday, September 8, 2011

George Will and the Chief Justice On Lochner

This is why silly labels, such as "conservative" and "liberal," get me.  In yesterday's Washington Post, after apparently running out of things to write about, George Will defended the Court's decision in Lochner as "flow[ing] from bedrock American doctrine: The individual possesses inalienable rights — here, liberty of contract — that cannot be legislated away for casual or disreputable reasons." This is not Will's original thinking, of course; as he concedes, he is simply pushing David Bernstein's recent defense of the opinion. 

Will closes with the following:
Long execrated by most law professors, Lochner is the liberals’ least favorite decision because its premises pose a threat to their aspiration, which is to provide an emancipation proclamation for regulatory government. The rehabilitation of Lochner is another step in the disarmament of such thinking.
Could you think of anything sillier than that?

Here's a thought, for starters.  Tell me what you think of it:
I think most cases, most judges, know what it means to interpret the law, and can recognize when they’re going too far into an area of making law, but certainly there are harder cases. And someone like Justice Harlan always used to explain that when you get to those hard cases, you do need to focus again on the question of legitimacy, and make sure that this is the question that you the judge are supposed to be deciding rather than someone else.
You go to a case like the Lochner case. You can read that opinion today and it’s quite clear that they’re not interpreting the law, they’re making the law. The judgment is right there. They say: We don’t think it’s too much for a baker to work whatever it was, 13 hours a day. We think the legislature made a mistake in saying they should regulate this for their health. We don’t think it hurts their health at all. It’s right there in the opinion. You can look at that and see that they are substituting their judgment on a policy matter for what the legislature had said. So, you know, the fact that it’s difficult to draw the line doesn’t relieve a judge of an obligation to draw the line.
This is a statement by none other than Chief Justice Roberts during his confirmation hearing.  He is hardly a liberal, it goes without saying (this was the hearing where the Chief Justice famously invoked the "judge as umpire" metaphor, so maybe we can best understand him as playing a role).

This is why labels can be so unhelpful.  I wonder, in this vein, what Will thinks about the recent decisions over the use of race in admissions, employment, and redistricting.  I wonder, in other words, where his strict constructionism gets him.

I can only imagine.

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