We'll be seeing more editorials such as this mornings at the end of every term. Last Term’s Winner at the Supreme Court: Judicial Activism
The conservative activism that is taking hold is troubling in two ways. First, it is likely to make America a much harsher place. Companies like Philip Morris will be more likely to injure consumers if they know the due process clause will save them. Employees will be freer to mistreat workers like Lilly Ledbetter, who was for years paid less than her male colleagues, if they know that any lawsuit she files is likely to be thrown out on a technicality.
We have seen this before. In the early 1900s, the court routinely struck down worker protections, including minimum wage and maximum hours laws, and Congressional laws against child labor. That period, known as the Lochner era — after a 1905 ruling that a New York maximum hours law violated the employer’s due process rights — is considered one of the court’s darkest.
We are not in a new Lochner era, but traces of one are emerging. This court is already the most pro-business one in years, and one or two more conservative appointments could take it to a new level. Janice Rogers Brown, a federal appeals court judge who is often mentioned as a future Supreme Court nominee, has expressly called for a return to the Lochner era.
The other disturbing aspect of the new conservative judicial activism is its dishonesty. The conservative justices claim to support “judicial modesty,” but reviews of the court’s rulings over the last few years show that they have actually voted more often to overturn laws passed by Congress — the ultimate act of judicial activism — than has the liberal bloc.
It is time to admit that all judges are activists for their vision of the law. Once that is done, the focus can shift to where it should be: on whose vision is more faithful to the Constitution, and better for the nation.
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