If you want to read a particularly fascinating piece of legal analysis about the long-range implications of the two big landmark SCOTUS decisions last week, check out Ian Millhiser’s argument at Think Progress that the Chief Justice has declared war in both his majority opinion in King v. Burwell and his dissent in Obergefell v. Hodges on the constitutional concept of “substantive due process.”
While the application of this concept was indeed central to Anthony Kennedy approach to same-sex marriage in Obergefell, and was famously applied in Roe v. Wade as well, it is mainly of interest to Federalist Society types on the right who favor using the courts to conduct a counter-revolution against progressive policies implemented by the legislative and excecutive branches. This is often referred to as Lochner jurisprudence, a reference to the chain of Supreme Court cases following the 1905 decision in Lochner v. New York that eventually led to the invalidation of central New Deal legislation, FDR’s “court-packing” scheme, and a quiet compromise in which the Court backed off.
[W]hile supporters of Lochner remain a small minority within the legal profession, some members of this minority have risen to positions of great prominence in recent years. A few years ago, for example, Judge Janice Rogers Brown, a judge on a federal appeals court that is widely viewed as the second most powerful court in the nation, called upon the Supreme Court to re-embrace Lochner and reject rule by the people’s representatives. “America’s cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers,” Judge Brown wrote, adding that this supposed disarmament is “particularly troubling in light of the pessimistic view of human nature that animated the Framing of the Constitution—a worldview that the American polity and its political handmaidens have, unfortunately, shown to be largely justified.”
Democracy, to Lochnerian judges such as Brown, is the enemy. And it must be checked through aggressive judicial action.
That’s the doctrine Roberts strongly repudiated twice last week, in arguing for deference to the states on same-sex marriage and deference to Congress on Obamacare.
You should read all of Ian’s piece, but the bottom line is that Lochner is to constitutional law what “constitutional conservatism” is to politics: an effort to disqualify progressive policies as incompatible with the basic governing model of the Founders and democratic measures for achieving them as presumptively unconstitutional. Combined with an approach to the Second Amendment that implies a right to revolution against anything gun owners consider “tyranny,” this whole ideology has more than a small whiff of authoritarianism–couched perpetually, of course, in the language of liberty. It’s a very good thing that Roberts is not going along, even though he may find other ways to please Republicans, cultural conservatives, and corporate interests.