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

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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.

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David Donnell - 3/14/2005

Well if all you Radical-right wingers think The New Deal is so damn unconstitutional then what about Santa Clara (1886) where the concept of Corporate personhood is inserted into the headnotes by the Court Reporter JC Bancroft Davis??!!?

Since the Radical-right wants to drag us back into the mythical "good 'ol days" then lets start the dialog about the basis of corporate civil rights and original intent!

And speaking of Unconstitutional...seems the Radical right speaks out of both sides of its mouth
IRAQ and the War Powers Act.
Patriot Act.
"The great ideals of liberty and equality are preserved against the assaults of opportunism, the expediency of the passing hour, the erosion of small encroachments, the scorn and derision of those who have no patience with general principles." Justice Benjamin Cardozo (1870-1938) Source: U.S. Supreme Court Justice, Nature of Judicial Process, 1921[/quote]

Hugh High - 11/12/2003

RJ Sestack is quite correct in noting that the Constitution DOES assert that Congress shall make no law impairing freedom of contract. However, the US S.CT. has interpreted this to mean that contracts which otherwise violate public policy, e.g. slavery, cannot be upheld. So, this clause, like most in the Constitution is not inviolate.

Sestack is also quite correct in noting that the REAL issue and significance of the Lochner and other similarly decided "Commerce Clause" cases, including, as he/she rightly points out Wickard v. Filburn, is that the S.Ct. extended the scope of the Commerce Clause to encompass ALMOST ANY commercial activity on the grounds that as long as there was a scintilla of connection to interstate commerce, then Congress had the power to regulate this.
It is interesting that Leftist (also called in the United States, most erroneously, 'liberals' -- for there is nothing liberal about their general ideological outlook and attitude toward individual liberties ) applauded this interpretation when it suited them, i.e. when it was used to bootstrap the Civil Rights , and similar, Acts -- but, of course, when it doesn't suit, e.g. Lochner and the train of cases in its vein, they naturally don't want the logical consequences of the Pandora's Box the S.Ct. opened with the 'Commerce Clause' cases.
The simple fact is that, in opening the door to Congressional regulation under the Commerce Clause, the S. Ct. gave Congress COMPLETE AND TOTAL CARTE BLANCHE TO REGULATE VIRTUALLY ALL ASPECTS OF LIFE -- and thus restrict Freedoms. The curious thing is that "liberals" seem to applaud this ! ( Or, perhaps it is not so curious -- in general, my observation is that they never really wanted individuals to enjoy freedom from government.)

F.H. Thomas - 11/12/2003

Truly illuminating and beautifully written. Please contribute more often.

mark safranski - 11/10/2003


No, I think the case can be made that the standards for judging nominees to the federal bench ( especially the Supreme Court)have changed a good deal more than the approach of the presidents who nominated them.

Consider the rebuffs that Johnson and Nixon received from the Senate - they had put forth high profile nominees who were under an ethical cloud ( Johnson) or were exceptionally mediocre prospects ( Nixon's " Southerners") and were rightly rejected. By contrast since the infamous hearings of the exceptionally well qualified Robert Bork ( BTW I disagree with Bork's views on quite a few major issues regarding civil liberties)simple partisanship has risen to the point where seeking " stealth " candidates with records free of controversy have become a priority. We saw this even back in the days of Bush I with Souter who was plucked from a state bench for precisely this reason. Clinton selected Ruth Bader Ginsburg in large part for her " confirmability ". Politics, particularly the use of crude litmus tests on a couple of hot button issues and campaigns of personal vilification, are too omnipresent in judicial hearings.

I don't think that this tendency is very healthy because you either get nominees without much depth or who have the mendacity to hide their true views. I'd rather have a Court of Scalias and Brennans who can openly stake out strong but intellectually coherent positions but understand the difference between their personal opinions and the law than the alternative.

JG - 11/10/2003

Lochner, in the words of my old constitutional law professor, is "the anti-christ of constitutional law." Reviled by the left for obvious reasons, Lochner is (was?) even more reviled by the right for the tortured reasoning the Court employed to fashion itself as a super-legislature. Lochner is the poster child for the kind of "legislating from the bench" conservatives generally oppose (and rightly so).

Is Lochner an example of the type of judicial activism Brown seems to favor? Her record and her public statements suggest that it is. She should explain that, if she can.

Ralph E. Luker - 11/9/2003

Mark, I think that you avoided answering the question that I asked you, didn't you? Administrations, both Democratic and Republican, have a pretty good idea in advance of what kind of nominee can be confirmed and what kind of nominee will run into trouble. If they are interested in staging confrontations, they will not take political realities into consideration in making nominations. Why would one appoint a polarizer as Chief Justice? His role should be that of a facilitator, a leader, a consensus builder -- not an ideological grandstander -- not one who participates in a decision-making process one day and two weeks later is out on the circuits denouncing the Court's decision.

mark safranski - 11/9/2003


Would the GOP let Tribe get through as a Supreme Copurt nominee ? Would the Democrats block Posner ? Or Scalia from say, becoming Chief Justice ? Are their qualifications really at issue ?

Most Federal district courts are filled by colorless lawyers with little in the way of paper trails who have a strong recommendation ( or at least a lukewarm endorsement) from a state's senior senator or no objection from the minority party senator if he/she is on Judiciary. The nominees the Democrats chose to block - Estrada, Pickering etc. are actually *more* qualified than the average nominee ( Estrada even worked for Clinton in the Solicitor General's office but even this consideration didn't help him)

Ralph E. Luker - 11/9/2003

"We are now at a point where no thoughtful person, Right or Left, no matter how brilliant a record be they a Posner or a Tribe, can get through a judicial confirmation hearing."
Mark, you know this isn't true and it doesn't become true by simply re-iterating it. Go back and look at the small percentage of Bush nominees to the federal bench who have been unable to "get through a judicial confirmation hearing." You are only reading the headlines.

mark safranski - 11/9/2003

Well my question has sat without a response from any critics of Justice Brown so essentially their argument is " The only Judges who can be confirmed are those who accept our values of unconstrained Federal power; moreover if the nominee is both conservative AND a member of a minority group we will truly go ape "

We are now at a point where no thoughtful person, Right or Left, no matter how brilliant a record be they a Posner or a Tribe, can get through a judicial confirmation hearing. ( Yes, Posner is on the bench now but he would never make it past hacks like Pat Leahy today). Do we really want a judiciary of second-rate minds ? Because that's what the political zealots are going to ensure we will have - any lawyer with aspirations to becoming a judge is well advised to stay clear of any subject of importance to anyone.

Justice Brown is a qualified nominee and deserves an up or down vote without the chicanery we are now seeing.


RJ Sestack - 11/9/2003

Rees states that "freedom of contract" is "contained nowhere in the Constitution." High, a lawyer, agrees. While it is true that the actual words "freedom of contract" appear nowhere in the Constitution, there is a constitutional provision supporting freedom of contract. Article I, Section 10 contains prohibitions upon the power of the States. The relevant part of Clause 1 of that Section declares, "No State shall . . . pass any . . . Law impairing the Obligation of Contracts." This provision allows freedom of contract by preventing laws that alter the promises embodied in contracts. Every employee-employer relationship involves a contract, whether it is written or at-will. Thus, it was perfectly legitimate for the Lochner Court to decide the way it did.

While it is certainly true that the Supreme Court allowed Congress to abuse its authority under the Commerce Clause during the New Deal, F.H. Thomas is mistaken in stating the Court's rationale. Its reasoning had nothing to do with programs costing money or the fact that money is used in commerce. What was truly revolutionary was that in 1937 the Court permitted Congress to regulate purely intrastate activity involving production, production that the Court stated affected commerce. The death knell of enumerated federal powers came five years later in Wickard v. Filburn. There, the Court allowed federal regulation of wheat grown by a farmer on his own farm for his own consumption, surely an activity not within the scope of “regulating commerce . . . among the several States.”

Steve Brody - 11/7/2003

This is all very interesting, but sadly irrelevant.

Do any of you really believe that the probable filibuster of Brown has anything to do with stare decisus, “freedom of contract”, or Lochner?

Come on, guys, it has to do with Roe v Wade, and an African American jurist who doesn’t subscribe to liberal orthodoxy.


F.H. Thomas - 11/6/2003

..was the total corruption of the Commerce Clause by the Supreme Court, after a Rooseveltian court majority had finally happened.

The Constitution states that certain limited powers are granted to the Federal Government, including war, tariff, treaty, and "regulating the interstate commerce".

What this pea-minded court did was to make the Consitution no longer an effective safeguard against Federal power. It declared, in an astonishing embrace of logical fallacy, that since every program costs money, and money is also used in Commerce, that the Federal Government, by the commerce clause, could do whatever it wanted, as long as money was involved.

How could those scum have trashed our constitution like that? Easy. They were political appointments, and they did what their ward boss told them to do.

What did we get for that trashing? Lots of crappy programs, and thousands of warmed over Communists dragging down the economy.

What were the effects?

Well, in 1932, France, Germany, the US and the UK were in deep recession, with zero growth and over 10% unemployment. The European states chose traditional stimulus and deregulation. The US tried the New Deal. By 1936, the US had 11% employment and 1% growth. The UK and France had 6% growth and 6% unemployment, and Germany had 11% growth, and no unemployment.

Now, Germany cheated-it had Hjalmar Schact, the most remarkable economist of the 20th century in charge. But the lesson is clear. The United States endured a depression which others did not only because of FDR and the dead hand of the New Deal, and he wrecked our Constitution into the bargain.

Hugh High - 11/6/2003

JG has written , in speaking of Judge Brown, that :

"Brown suggests that there is no proper constitutional basis for many New Deal programs and other federal regulation and suggests that Lochner's holding was proper."

While JG and others may well disagree with Brown's evaluation as to the 'proper constitutional basis' of many New Deal and other federal regulations, yet others (including lawyers such as myself and yet others of more note ) would agree with her.

At most, then, JG is saying that Brown has a particular view of wisdom and correctness of many previous decisions of the US S. Ct.This is most unusual -- many do. BUT, it does not alter the point I made earlier : the relevant questions regarding Judge Brown are how often she has been reversed, how often has she adhered to precedent, etc. and not her personally held philosophic and similar convictions or beliefs.

JG - 11/6/2003

The New Deal was constitutionally validated by the Supreme Court's repudiation of an earlier holding in Lochner.

In her comments, Brown suggests that there is no proper constitutional basis for many New Deal programs and other federal regulation and suggests that Lochner's holding was proper. By her comments and her record, the questions are obvious: Does Brown really reject federal regulation as unconstitutional, and would she seek to revive Lochner?

Hugh High - 11/5/2003

(1) Mark Safranski has raised a good question -- and one which should be among those most prominent in the discussion of Judge Brown : what is her judicial record ? how often has she deferred to precedent ? how often has she been overturned ? These questions, and not ideological and political issues, such as those which Jonathan Rees has tried to raise, are those which should arise when adjudging the competency of Judge Brown (or, indeed, other nominees to the judiciary ) by those who are to give 'advise and consent' .

(2) Rees has asserted that "freedom of contract" is not contained anywhere in the Constitution. He is right, of course, but equally, this is a non sequitur ; he has neglected to note that , while coining money, raising an army, etc. ARE enshrined in the Constitution, NONE of the "New Deal" measures seemingly beloved by Rees, and indeed, by a number of socialists and opponents of individual liberty, are either. This is a trival observation and not worthy of Rees or any other serious scholar.

The issue, I would suggest, is whether a reasonable reading of the Constitution, giving due weight to precedent, history, and the normal matters which engage a serious judiciary characterizes the record of Judge Brown. Her ideological leanings, are of no more interest than those of Rees, ie. of no interest whatsoever.

mark safranski - 11/5/2003

What is Judge Brown's judicial record on respecting stare decisis ? Or how often have California Supreme Court opinions she has authored been overturned by Federal courts ?