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The Bush Court Nominee Who Wants to Roll Back the New Deal

by Jonathan Rees

Mr. Rees is Associate Professor of History at Colorado State University - Pueblo. He is the author of MANAGING THE MILLS: LABOR POLICY IN THE AMERICAN STEEL INDUSTRY DURING THE NONUNION ERA(University Press of America, Dec. 2003) and co-editor of THE VOICE OF THE PEOPLE: PRIMARY SOURCES ON THE HISTORY OF AMERICAN LABOR, INDUSTRIAL RELATIONS AND WORKING-CLASS CULTURE(Harlan Davidson, Jan. 2004).

President Bush has nominated Janice Rogers Brown, a California Supreme Court justice, to a seat on the important U.S. Court of Appeals for the District of Columbia. Like some other conservative Bush judges, her nomination has proved extremely controversial.

Initial press coverage of her confirmation hearing before the Senate Judiciary Committee centered on a speech she gave to the Federalist Society at the University of Chicago Law School in 2000. In that speech, she suggested that Franklin Roosevelt's New Deal "inoculated the federal Constitution with a kind of underground collectivist mentality" and that 1937, the year the U.S. Supreme Court began to approve many key New Deal programs, "marks the triumph of our own socialist revolution."

As surviving aspects of the New Deal are still very popular with Democratic senators and the public, Brown refused to elaborate on or defend these sentiments. However, many Brown supporters and apologists in the blogosphere have defended her on another front.

That dispute concerns Brown's ideas about the Supreme Court's opinion in Lochner v. New York, decided in 1905. "In speeches," editorializes the Washington Post, Brown "has openly embraced the Supreme Court's so-called 'Lochner' era . . . . Across the spectrum of constitutional law scholarship, there are few points of greater consensus than that this period is a blot on the Supreme Court's history."

Numerous commentators have now demonstrated that the consensus over the Lochner decision is not as strong as the Washington Post suggests. (Ralph Luker, on his HNN blog, has linked to many posts on this subject. Scroll down to 11-3 and 11-2.) Nevertheless, this entire discussion is an attempt to change the subject to ground that makes Brown seem more politically palatable. In fact, the Lochner decision and the fate of the New Deal are intimately linked.

Joseph Lochner owned a small bakery in Utica, New York. He violated an 1895 New York state law that required employers to limit the hours that bakers worked each day to ten and each week to sixty. Lochner challenged the constitutionality of his conviction on the grounds that it violated his rights under the Fourteenth Amendment to the Constitution. In a 5-4 decision, a majority of the United States Supreme Court agreed with him, ruling that the New York law interfered "with the right of contract between the employer and employees concerning the number of hours in which the latter may labor."

This "freedom of contract" is contained nowhere in the Constitution, yet the Lochner Court recognized it anyway. Indeed, this right was important enough that the Court found that it outweighed the state's interest in protecting employees from diseases caused by working long hours in dusty bakeries. The Court also dismissed the state's evidence that shorter working hours protected the public's interest by assuring its ability to purchase safe bread.

The Supreme Court's application of "freedom of contract" was spotty in the years following Lochner. Then, in the 1937 case of West Coast Hotel v. Parrish, which upheld a minimum wage law for women in Washington State, the Court overturned a 1923 precedent that had depended upon Lochner. Although the West Coast Hotel ruling bypassed Lochner, from 1937 on "freedom of contract" has been effectively dead.

West Coast Hotel was a turning point with regard to the fate of New Deal legislation before the Supreme Court, causing "the switch in time that saved nine." This refers to the nine Supreme Court justices not having to accept additional company on the bench as a result of the subsequent defeat of Franklin Roosevelt's court-packing plan. After this ruling, New Deal laws that might have been ruled unconstitutional in previous years were generally spared.

For this reason, Justice Brown is right to suggest that 1937 was the beginning of tremendous change in American legal history. If "freedom of contract" had still been important to the Court in 1937, laws like the Social Security Act, the National Labor Relations Act (which protects the right of workers to organize into unions) and the Fair Labor Standards Act (which includes the first minimum wage and bans child labor) would likely have been ruled unconstitutional violations of this right.

The debate, therefore, that the United States Senate should be having with regard to Brown's nomination should not be "Does 'freedom of contract' exist in the Constitution?" Instead, senators, particularly Democratic senators, need to decide, "Should we be confirming judges who want to destroy some of the most popular and effective reforms in the history of the United States?"

Since Janice Rogers Brown is a judge rather than an elected politician, her opinions are presumably guided by the Constitution rather than by political or economic trends. In his famous dissenting opinion to the Lochner case, Justice Oliver Wendell Holmes wrote, "[A] constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire."

Brown attacked Holmes's sentiments in the same speech where she called the New Deal a "socialist revolution" in order to make the case for the revival of Lochner and the unconstitutionality of New Deal legislation. Ironically, many businessmen during the 1930s, presumably the people with the most to lose if restrictive legislation was upheld, did not share Justice Brown's philosophy.

In his book New Deals, the historian Colin Gordon explains why many businessmen supported Franklin Roosevelt's programs. Social Security, for example, offered businesses a way to pay pensions during the 1920s to keep skilled workers yet remove the cost of their pension programs from their balance sheet and pass it on to the government. Even something as apparently anti-business as federal protection for union organizing got substantial business support because many companies realized that workers' wages had to increase in order for consumer spending to rise and prosperity to return.

These members of the business community recognized that the New Deal was not a socialist revolution, but a series of reforms designed to save American capitalism when it was most threatened. Had the Supreme Court continued to read conservative political ideology into the Fourteenth Amendment by sticking with the Lochner decision, there's no telling what kind of damage it would have done to our political and economic system.

Because Janice Rogers Brown wants to resurrect Lochner, she is a danger to the stability that the New Deal created. If there's a true revolutionary in this debate, it's not Franklin Roosevelt, but Judge Brown. Democratic and Republican senators alike ought to recognize the threat her ideology poses, and filibuster or reject her nomination.