Glenn Reynolds reviews David Bernstein's book
"Rehabilitating Lochner: Defending Individual Rights against Progressive Reform ":
As is often the case with regulation, large bakeries didn’t mind the law governing maximum hours because they could hire multiple shifts. Small bakeries, with their smaller workforces, found compliance far more difficult. The statute also set limits on ceiling heights designed to put cellar bakeries out of business....
New York’s law, the Court held, wasn’t about health at all. Numerous exceptions and loopholes in the statute undercut that rationale, as did the absence of any evidence that baking was a particularly hazardous profession or that limiting the hours bakers worked had anything to do with the wholesomeness of bread. The majority weighed the state’s claims against scientific evidence, found them wanting, and concluded that the statute lacked sufficient justification when weighed against the freedom of contract protected by the Fourteenth Amendment’s due process clause. It was, said Justice Peckham, “a mere meddlesome interference with the rights of the individual.”
That was back when legislation had to meet the test of
science — as assessed by courts. Do you want that back? Whether you do or not, it's certainly important to know what was really going on with the regulation that the Court struck down and how the understanding of a judicial opinion takes on a life of its own:
[A]n opinion that stopped a joint effort by large corporate interests and big unions to squash small businesses was somehow turned into the centerpiece of a narrative about the Supreme Court upholding big business at the expense of the little guy....
Judicial opinions are spun by interested parties. If you think you know which ones you're supposed to love/loathe, be suspicious!
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That was back when legislation had to meet the test of science — as assessed by courts. Do you want that back?
Yes.
And put some non-lawyers on the Supreme Court. Start with a physician, an engineer, or an economist. Keep going until there's at least one of each.
WONDER BREAD put bakeries out of business. You could squeeze it like Charmin. And, it never grew stale.
Not only have we lost those old bakeries ... which could be a business every few blocks ... We've lost the butcher shops, too. (Where you could get freshly killed chickens.)
Now, when you want a fresh bread sandwich you have to go to a Vietnamese sandwich shop.
You can still get good bread in Paris. And, when you buy it, you carry it home under your arms. No need to wrap it it, either.
Same thing is true that France kept its farmers markets open.
Sad what we've lost in the name of "cleanliness." And, "convenience."
Other laws favored by progressives defended family men from “destructive” competition with female workers who, by working outside the home, “weakened the race.” A feminist correctly argued, on Lochner’s natural rights grounds, that restricting women’s liberty of contract regarding hours of work “amounts to confiscation of whatever amount would have been earned during the forbidden hours.” In 1926, Georgia’s Supreme Court cited Lochner’s affirmation of liberty of contract to overturn a law prohibiting black barbers from cutting white children’s hair.
http://www.washingtonpost.com/opinions/why-liberals-fear-the-lochner-decision/2011/09/06/gIQAZapUAK_story_1.html
My Con Law course was in 1974. I've been a business lawyer and a real estate lawyer, so con law has not been a significant part of my practice. In my mind, I had long relegated Roe v. Wade and Griswold v. Connecticut to the category of political cases without any particular foundation in the law. Bernstein's book helped me see a judicial tradition into which they fit, though no doubt one that the authors would not like.
Actually, Fran Lebowitz said she should be on our Supreme Court. Her major qualification is that she can reach an opinion in a minute. It's a skill.
Meanwhile, if you want to see "contestants," you have to tune in something like "The Price is Right." Or "Family Feud."
And, if Obama wins in 2012 ... he'll get 4 years in which to shape the Supreme Court ... because at least two will kick the bucket.
Should Courts rule on the validity of "science."
Let's take for instance, man-made global warming!
No Way, Jose.
Roe V. Wade is the best thing that ever happened to the democratic party. Other things? They were misfortunes. But this one? They get to keep Independent voters. Who make up the difference in elections.
And, the republicans kept the religious zealots.
Which gives ya candidates who pander. And, who don't believe in science. And, who think schools should be closed. And, social security wiped away.
What's ahead that won't look like the 1930's? (FDR kept getting elected through all the bad times. And, the person who got hated was Hoover.)
Do I want that back? Good lord, no!
If a legislature passes a facially stupid, unsupported, pretense-laden bill such as the bakery scheme, and the voters are apprised of it, and the voters then fail to do anything about it, (such as vote people out, or express loud displeasure), then the people have ratified their legislators' stupidity or venality.
But the idea of the courts using their own judgment to second-guess the legislature would create a supercourt - a court able to pick and choose which legislation it approved of and liked and would have passed itself if it had the power.
Point is, it doesn't have that power, and that lack is intentional. Courts review legislation only to determine whether it meets the bare requirements of constitutions. Courts do not judge the advisability or the desirability or the fairness of legislation.
The bakery case makes it sound reasonable for courts to do this. But when courts decide that, say, an extension of a tax cut is not "fair", or a new zoning law should be adjusted eastward, or the speed on your local road should really be 80mph and not 30mph, it won't look nearly as reasonable.
And, if an engineer or a doctor or an economist can show sufficient study and knowledge of statutory construction and constitutional law and contract law and administrative law and environmental law and election law and legal research methods and legal citation and burdens of proof and factual versus legal issues and procedural versus substantive law and real property law and intellectual property law and criminal law and divorce law and child custody law and civil commitments and due process and insurance coverage law and . . . well, a bunch of other subjects, then they should by all means be qualified to sit on the Supreme Court and review how lower courts have ruled in all of these many subjects.
(I'm sorry, but to expect someone who does not have a legal education and oodles of time working in the law to be able to do the job of a Supreme Court Justice indicates an unfamiliarity with what a Supreme Court Justice does.)
I'm sorry...
No need to apologize for being another self-important lawyer who thinks he's actually got some super-special knowledge.
Your "argument" is the most impressive array of strawmen I've seen here yet.
The Supreme Court has acted like a super-legislature for decades.
Not so much in interpreting the intricacies of tax law, but it's not possible argue with a straight face that decisions such as Grutter v. Bollinger where O'Conner decided that law school affirmative action was OK for 25 more years, or Griswold v. Connecticut, with its penumbras" and "emanations" are anything other than the court acting as a super-legislature.
You may agree or disagree with the results of these or similar cases and, if you agree, garnish the argument with thoughts of a "living constitution" but don't argue that that these are anything other than exercises of raw judicial power because the votes were there to do something that the majority believed in the public interest.
The left, of course, loves these results because it's a lot easier to impose a national standard by convincing 5 justices that it's a good idea than the old fashion way by individual state laws or a national law or, even worse, a constitutional amendment.
I think few liberals are even aware that regulations generally favor big business by design. Most of them believe just the opposite. It's a place where both sides could share common ground, if not for blind partisanship.
Regulation is often like homeopathy - it's either useless or harmful, yet a lot of people fall for the sales pitch.
The antidote for both is careful analysis the historical results.
"Your "argument" is the most impressive array of strawmen I've seen here yet."
Thanks! It's nice to be called "impressive" for something, at least.
I'm really not being self-important when I point out that knowing everything about every legal topic and every legal issue and every legal area is what makes it possible for Supreme Court justices to act as graders for the legal work that gets done in lower courts. That's what SC justices DO. Would you want me - a lawyer - going through your new house and checking the electrical installation for code conformance and safety and intelligent power distribution? I wouldn't. I'd rather have an accomplished electrician doing that.
Would you want a nurse reviewing your divorce case to see if your spouse really should have been given sole custody of your kids because spouse taught the three-year-old to say "Chip touches us" to the judge? Or, after you prove conclusively to a judge that you correctly stitched up someone's cut, would you want an electrician deciding if you should have been able to testify about the correct way to do things? I wouldn't.
"The Supreme Court has acted like a super-legislature for decades."
Generally, they don't. Generally, they're pretty good at sticking to what they're supposed to do.
But, yeah, Roe was a travesty, penumbras belong in art class, and if Texas voters really want their legislature to make sodomy, or nailbiting, or pork chops illegal, well, I suppose they ought to be able to do that.
But so far, those kinds of court rulings have been the exception and not the rule. I think the question being asked here is, do you want that to be how all of the courts operate all of the time? Those darned lifetime appointments could really suck if we got a bunch of Obama choices.
Interesting--thanks.
Roe saved the ass of the democratic party! There's no recovery for the republican party!
But go ahead. Keep praying that you win.
Keep answering the science questions the way you do, too.
Best show on earth.
Man did my liberal con law professors (but I repeat myself), hate that case. And Bush v. Gore where the SC stopped a Democratic attempt to count all Democratic votes until they won.
While you're at it, Clarence Thomas doesn't represent black folk. Don't know what cost the elder Bush his second term. But Blacks never embraced Thomas.
While up ahead, should Obama win a second term? He puts his imprint on the Supreme Court. Like nobody's business.
That was back when legislation had to meet the test of science — as assessed by courts
Why not?
And does not have to be science but the reasonability of the claim. Chevron in a word.
Bobby, if you really and truly believe that there are a lot of important SCOTUS cases that involve divorce or custody battles, then our perceptions of reality are so vastly different that no conversation is really possible.
I agree with those commenters who've said that the Court is already functioning as the kind of superlegislature that you fear. Since we've already got one, let's have a competent one.
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