Undo the New Deal

The Rehabilitationists

How a small band of determined legal academics set out to persuade the Supreme Court to undo the New Deal—and have almost won.

By Brian Beutler

n November 2013, a who’s who of America’s conservative legal establishment descended on the Mayflower Hotel in Washington, D.C., for an annual meeting of the Federalist Society, the most influential conservative legal organization in the country. Current presidential candidates Scott Walker and Ted Cruz each made appearances, ingratiating themselves with the influence peddlers in attendance. Supreme Court Justice Clarence Thomas was a featured speaker at the event’s black-tie-optional dinner.

One of the biggest stars of the conference, however, was neither a Senate-confirmed official nor an elected politician, but a libertarian law professor at Georgetown named Randy Barnett. This wasn’t Barnett’s first turn as a Federalist Society eminence, but his reception that year was especially rapturous.

“The younger people, the people in law school, they seem to be gravitating toward people like Randy,” said attendee Josh Blackman, an associate law professor at the South Texas College of Law and a close friend of Barnett’s. “When he gets off the stage he’s mobbed. ... There’s a crowd of people five or six feet deep surrounding him.”

Barnett had been invited to participate in a lunchtime debate against J. Harvie Wilkinson, a Reagan-appointed judge serving on the Fourth Circuit Court of Appeals, on the topic of whether courts are too deferential to legislatures. The event was sold out.

Thinking back on that day recently, Barnett marveled at his emergence as a celebrity. “One of the leaders of the Federalist Society—one of the senior staff—said clearly I had the room,” Barnett told me. “It wasn’t that I beat J. Harvie Wilkinson in a debate—who knows?—it’s just that the room was with me. The room would not have been with me ten years ago.”

Back then, Barnett was one of a handful of academics on the fringes of conservative legal thought. Today, their views are taking hold within the mainstream of our politics. Barnett and his compatriots represent the vanguard of a lasting shift toward greater libertarian influence over our law schools and, increasingly, throughout our legal system. They’re building networks for students and young lawyers and laying the foundation for a more free-market cast of federal judges in the next presidential administration. Their goal is to fundamentally reshape the courts in ways that will have profound effects on society.

Barnett’s political philosophy took root when he was a child. His father was a conservative, and he became one, too. When he was a junior at Northwestern University, one of his professors introduced him to libertarianism, as distinct from the more staid Republicanism of his youth. While attending law school at Harvard, a classmate took him to New York to meet the famed but controversial theorist Murray Rothbard, an encounter that inspired his lifelong affiliation with the libertarian movement and its prominent institutions, like the Cato Institute. His lone professional detour outside that world was a four-year stint as a prosecutor in Illinois. After that, he obtained a fellowship at the University of Chicago under Richard Epstein, a giant of American law in the twentieth century and a patron saint of modern libertarian scholars.

Barnett’s career as an academic began far from the center of the action, however, at Chicago-Kent College of Law, where he became a professor in 1982. “It was a good school,” Barnett told me, “but one reason it was a bummer to teach there was no one had ever heard of it.”

Eventually, Barnett clawed his way to Boston University, and then to Georgetown, where he joined the faculty in 2006. (“I love the situation here,” he said of his current digs. “I don’t need to be on the outs.”) But even as his career took off, his legal views remained decidedly anti-establishment. Barnett believes the Constitution exists to secure inalienable property and contract rights for individuals. This may sound like a bland and inconsequential opinion, but if widely adopted by our courts and political systems it would prohibit or call into question basic governmental protections—minimum wages, food-safety regulations, child-labor laws—that most of us take for granted. For nearly a century now, a legal counterculture has insisted that the whole New Deal project was a big, unconstitutional error, and Barnett is a big part of that movement today.

The main object of this group’s obsession is the Supreme Court’s 1905 decision in Lochner v. New York. Joseph Lochner was the owner of a bakery in Utica, New York, at the turn of the last century, who sought relief from the Bakeshop Act, under which he was fined for allowing an employee to work more than 60 hours a week. He believed that the act’s workplace-safety rationale was in fact a government-sanctioned tool for the bakers union to attack nonunion bakeries like his own and that it deprived him and his employees of their right to enter into their own contracts. The Supreme Court narrowly agreed. Its 5–4 ruling struck down the law and, more importantly, provided the rationale justices would use to invalidate other legislation over the course of a generation.

For decades now, legal academics and elites have considered the early twentieth century one of the Supreme Court’s darkest eras. Lochner, it’s been viewed, belongs with Dred Scott v. Sandford, the 1857 decision holding that neither slaves nor freedmen were U.S. citizens, and Plessy v. Ferguson, the 1896 decision upholding racial segregation under the separate-but-equal doctrine, in a Malebolge of rejected rulings.

In 1936, after the Supreme Court struck down a New York minimum-wage law, one of a series of New Deal measures it ruled unconstitutional, a dejected Franklin D. Roosevelt complained to the press that the Court had created “a ‘no-man’s land’ where no government—state or federal—can function.”

A year later, after Roosevelt had been reelected overwhelmingly on a New Deal platform, the Supreme Court effectively repudiated Lochner when a 5–4 majority upheld Washington’s state minimum-wage law for women. “More than 25 years ago we set forth the applicable principle in these words, after referring to the cases where the liberty guaranteed by the Fourteenth Amendment had been broadly described,” the Court ruled. “But it was recognized in the cases cited, as in many others, that freedom of contract is a qualified, and not an absolute, right. There is no absolute freedom to do as one wills or to contract as one chooses.” In addition to forming the basis of the modern American social contract, this decision was a hard-fought victory over fierce opposition to government regulation by employers and property owners. The enduring postwar political consensus about the proper role of government may have masked that opposition, but it was never completely vanquished.

All libertarians want to fight federal regulations in Congress and the executive branch. But Barnett and his allies think courts should be empowered to throw regulations out even if political majorities support them. These Lochner revivalist professors have established beachheads at law schools across the country. In 2002, UCLA law professor Eugene Volokh founded a blog, The Volokh Conspiracy, as a hub for libertarian ideas, including Lochner revisionism. Today, it has become the most prominent academic legal blog in the country and now publishes under the auspices of The Washington Post. It boasts nearly two dozen contributing professors and mainlines detailed and informed libertarian legal arguments to thousands of the nation’s top lawyers, law students, clerks, judges, and opinion-makers every day.

The contributors to The Volokh Conspiracy teach at the University of Minnesota, Northwestern, Emory, Duke, and elsewhere. Several hold positions at George Mason University’s law school, which is famous for its conservative faculty and, in 36 short years, has rocketed to prominence as one of the 50 best law schools in the country. In 2011, GMU law professor and Volokh Conspiracy contributor David Bernstein published a book titled Rehabilitating Lochner, and that’s exactly what he, Barnett, and their contemporaries have been attempting to do.

That project aims to extend the reach of their dissident school of thought beyond academia and into the workings of government. In 1991, two former members of the Reagan administration, Chip Mellor and Clint Bolick, founded the Institute for Justice, a libertarian public-interest law firm now based in Arlington, Virginia, with $350,000 a year in seed money from the oil and gas magnate Charles Koch. They’ve challenged state licensing laws on behalf of hair braiders, florists, and other tradespeople across the country, but have also undertaken loftier crusades, including a doomed effort to overturn the Davis-Bacon Act, which requires that contractors pay their employees competitive wages on government-funded projects.

The Volokh Conspiracy, too,was designed not just as a place where law professors could talk with each other, but as a platform from which to broadcast libertarian ideas to a wider audience. Barnett joined the blog as a contributor in 2004. In its early days, its views could be read as a counterpoint to prevailing conservative legal thought. In the summer of 2005, for example, when the overwhelming majority of conservative elites were celebrating John Roberts’s nomination to the Supreme Court, Barnett interjected with a typically contrarian but in some ways fundamental caveat. “Who is John Roberts?” he asked in a Volokh Conspiracypost. “We know nothing about what he stands for.”

Few professors see their academic work reflected in the public realm, and fewer still after cutting so aggressively against the grain. In 2004, when Barnett argued his first and only case before the Supreme Court, Lochner was a distant specter, and libertarian influence over the law more generally was hard to detect. The case concerned two women, Angel Raich and Diane Monson, who used marijuana to treat their chronic medical conditions. Monson’s homegrown medical marijuana plants were seized and destroyed by federal agents pursuant to the Controlled Substances Act. Barnett contended the law was an overbroad application of the Commerce Clause to regulate economic activity. He lost 6–3. The following year, the Rehnquist Court dealt libertarians another major blow when it ruled 5–4 in Kelo v. New London that the Connecticut city could use its eminent domain powers to condemn private property and hand it over to private developers. The plaintiffs in that case were represented by the Institute for Justice.

To anyone who lived through Bush v. Gore it might seem strange that a judiciary as conservative as the Rehnquist and Roberts Courts would rule for the government so regularly. But the dominant strain of conservative legal thought for the last half-century has largely been shaped by the right’s backlash to the social revolution stemming from the 1960s and the Warren and Burger Courts’ use of the Constitution to further progressive ends like desegregation and access to abortion. For conservatives, the main villain of the last 50 years has been creeping liberal judicial activism and a willingness to overturn legislative action. Conservative legal scholars and jurists like Robert Bork held that judges should refrain from projecting personal or political values into their judicial opinions. This principle became a cornerstone of traditional conservative legal thought, but it effectively created a presumption that democratically enacted laws are constitutional. Such a restrained judicial philosophy makes it difficult for judges to void properly enacted laws like the Controlled Substances Act.

But it has been nearly 30 years since Chief Justice Warren E. Burger retired. For many younger conservatives, the Court’s cardinal sin isn’t Brown v. Board of Education or even Roe v. Wade. And Barnett and his allies have helped make many conservatives more comfortable with the idea of judicial activism.

With five offices around the country, a legal clinic training students at the University of Chicago Law School, and a staff of nearly 100, the Institute for Justice has become a proving ground for aspiring, ideologically committed lawyers. Every year, the group sends lawyers to law schools around the country to give presentations on public-interest law and recruit students into its ranks. “It’s certainly done with the intent to make sure that libertarian-minded law students know who we are and what we have to offer,” Clark Neily, a senior attorney at the Institute for Justice, said of the group’s outreach. Each summer, a couple dozen clerks join the group in its Beltway headquarters and state offices. From there, these young lawyers typically move on to more traditional clerkships at law firms and federal courts—one former Institute for Justice clerk worked for Chief Justice Roberts from 2008 to 2009—and when the Institute hires new staff attorneys, it often culls from the ranks of these same pupils.

“Ten to 15 years ago, conservatives who were in positions of influence—educating young lawyers, or in a position to hire them to politically desirable positions—were unified by what you might call Borkian restraint, or knee-jerk deference,” Neily said. “What has really changed in the last four or five years is a real skepticism, particularly but not exclusively among young law students, toward this kind of acquiescence to whatever government does.”

In 2013, the Institute for Justice enjoyed one of its biggest successes to date. It prevailed in a federal appeals court on behalf of the Benedictine monks of St. Joseph Abbey in Louisiana, who had sued for the right to sell handmade, inexpensive funeral caskets after the state Board of Embalmers and Funeral Directors ordered them to desist. Like Lochner, the case represents a challenge to government health and safety rules. And like Lochner, it could theoretically become the basis for invalidating scores of unrelated business regulations. The Supreme Court declined to hear the state board’s appeal in that case, but different appeals courts have taken different views of this general dispute, which means the Supreme Court—now more conservative than it was a decade ago—may well step in to settle it at some point.

Each success on behalf of an everyman struggling against the government serves the libertarian cause well, but these victories pale in comparison to the role that President Obama and the Affordable Care Act have played in convincing mainstream conservatives to give judicial activism a second look.

Barnett has been at the forefront of the fight against Obamacare, and the 2012 constitutional challenge to the law’s insurance-coverage mandate was largely his brainchild. He argued that requiring private citizens to purchase health insurance against their will exceeded Congress’s powers. A clearly conflicted Chief Justice Roberts ultimately bent over backwards to construe the law in a constitutional way, out of deference to the elected branches, enraging the entire right. If Barnett viewed Roberts as an enigma back in 2005, it’s clear to him now that he finds the chief justice’s approach to the law deeply wanting, and many conservatives agree with him.

“Selecting judges with the judicial mindset of ‘judicial restraint’ and ‘deference’ to the majoritarian branches leads to the results we witnessed,” Barnett warned in another Volokh Conspiracy post this summer, after Roberts once again saved the health care law. To Barnett, the proper role for judges isn’t modest or deferential at all, and it’s time for Republicans to start promoting conservatives who will embrace a more activist approach on the bench. “If conservative Republicans want a different performance from the judiciary in the future,” Barnett argued, “they must vet their presidential candidates to see whether they understand this point.”

Barnett’s opposition to Obamacare made him a hero to the conservative legal establishment. It was for this reason that he was greeted with such enthusiasm at the Federalist Society meeting in Washington two years ago. And it’s what catapulted his ideas about the proper role of judges fully into the mainstream.

To dismiss the debate between libertarians and traditional conservatives over Lochner as an academic sideshow is to misunderstand the stakes. “A full-fledged return to Lochner would put a constitutional cloud over a whole host of laws that we all take for granted today,” said Sam Bagenstos, a liberal constitutional scholar at the University of Michigan who has argued cases before the Supreme Court. “Laws guaranteeing workers the right to join a union without being fired, and the right to earn a minimum wage and receive overtime if working more than 40 hours a week, laws protecting worker safety, and laws protecting workers and customers against discrimination based on race or other protected statuses, just for starters.”

I asked Barnett whether the social welfare laws on the books today would be permitted under his reading of the Constitution. “Probably not at the federal level,” he said.

That’s why Barnett and his contemporaries prefer to root their arguments in specific injustices rather than categorical abstractions. Why shouldn’t bakers be allowed to work more than 60 hours a week, or individuals be allowed to remain uninsured? Why should the government be allowed to regulate out of existence my right to hail a driver or your right to rent a stranger’s house for a weekend?

Even if you believe these regulations are the result of collusion between government and industry cronies, that doesn’t mean they should be constitutionally prohibited, or even that they have no merit. Once courts are empowered to invalidate sordid government regulations, they are also on a slippery slope to tossing out standards that serve useful purposes—in part because some laws that appear unprincipled at a glance actually do important work. If an Airbnb customer and a hotel guest are each badly burned in preventable fires, the hotel guest is likely to have a great deal more recourse—and would have government regulation to thank.

That’s not a persuasive rationale in Barnett’s mind. “You should have your own insurance,” he told me emphatically. “You should be insured. You should have health insurance, you should probably have life insurance, disability insurance. I insure myself.” (The irony of this position should be lost on no one—had Barnett’s Obamacare challenge succeeded, 16 million fewer people would have health insurance today.)

The movement to rehabilitate Lochner now faces a crucial test: Can it endure after the spasms of resistance to the Obama presidency have quieted, or will it burn out along with them? When I put this question to Barnett, he demurred. “I didn’t really have a strategy to get us this far,” he said.

Nevertheless, Barnett believes that he and his contemporaries have laid a solid foundation for turning back the legal clock to Lochner. “I don’t think it’s top-down,” Barnett said of the overall approach. “You don’t get Justice Whatever without having a huge bottom-up.”

That bottom-up effect has arguably had a big impact on the judiciary already. The 2010 Citizens United decision upended the government’s ability to limit campaign spending by corporations. In 2012, four conservative Supreme Court justices declared, in a dissenting opinion, that the entire Affordable Care Act should be vacated as an improper use of Congress’s power to regulate interstate commerce. This was Lochner cloaked in fresh garb: The government can’t tell me how many hours I can work at a bakery; the government can’t tell me to buy insurance. Roberts salvaged the law, but on the basic point about compulsion, he agreed with Barnett, too. It wasn’t just four conservative justices who bought into a kind of Lochnerism. It was all five.

Ultimately, the success of any bottom-up movement will depend as much on voters as on legal scholars and the activists they inform. The biggest setback for Lochnerians could be an establishment Republican like Jeb Bush winning the presidency and cannibalizing the grassroots right’s enthusiasm for taking apart the Obama-era administrative state. A Hillary Clinton presidency would put off a Lochner revival for another four or eight years, but it would keep the fires of opposition to big government raging in the meantime. Bush, by contrast, is an advocate of judicial restraint, and once he started appointing traditional conservatives to the bench, it would be difficult to stop him. But Barnett and the Lochnerians hope that the right’s antipathy toward Obama, the Affordable Care Act, and the Roberts Court’s interventions to salvage it will give a Republican president no choice but to move in a new direction.

Conservatives, Barnett said, “have to decide, ‘Well, why am I furious? What am I furious at? ... They put John Roberts on the court. I didn’t put him on the court. Bill Clinton didn’t put him on the court. George Bush put him on the court, and he was considered by the Ted Cruzes of this world as a superstar, and then look what he does. There’s something wrong with this picture.”

The hope is that this anger propels a libertarian-minded president into office and inspires him to nominate less restrained judges. The next president will likely have the opportunity to appoint at least one, and possibly as many as four Supreme Court justices. Ruth Bader Ginsburg is now 82. Stephen Breyer is 77. Anthony Kennedy and Antonin Scalia are both 79. If one of these justices retires under a Republican president, who then appoints a Lochnerian to fill the vacancy, it will change the Court profoundly. If more than one of them steps down, the Court will become unrecognizable.

If that plan fails, Barnett’s cause will be set back years, and the project of pushing his ideas into the Republican mainstream will continue sub rosa. But Barnett has influential allies.

In July, the conservative columnist George Will made a provocative new demand of the next Republican president: “Ask this of potential court nominees: Do you agree that Lochner correctly reflected the U.S. natural rights tradition and the Ninth and Fourteenth Amendments’ affirmation of unenumerated rights?”

Thanks to the efforts to grow their ranks, there are a few suitable Supreme Court candidates already. In his column, Will identified one: Texas Supreme Court Justice Don Willett. In a footnote to a recent opinion, Willett celebrated the fact that “a wealth of contemporary legal scholarship is reexamining Lochner, its history and correctness as a matter of constitutional law.”

As for Will’s proposed litmus test, a few Republican presidential candidates this cycle have passed it. Rand Paul has praised the Lochner decision explicitly multiple times, most recently at the Heritage Action Conservative Policy Summit this January. “I’m not a judicial restraint guy,” he told an audience of avowed judicial activism foes. “I’m a judicial activist when it comes to Lochner. I’m a judicial activist when it comes to the New Deal.”

In August, Rick Perry boasted on Twitter that he was “proud” to have nominated Willett to the Texas Supreme Court, calling the justice “a model of conservative jurisprudence.” Whether they know it or not, both politicians are already speaking a language Barnett and his libertarian contemporaries have successfully injected into the mainstream of conservative strategic thought.

These are dark horse candidates, but any Republican president will face much more pressure than George W. Bush ever did to nominate the kind of judges Paul or Perry might. Another candidate, Scott Walker, is more of an enigma, but he’s an equally doctrinaire opponent of economic regulation and has a liaison to the pro-Lochner world in George Will’s wife, Mari, who is an adviser to his campaign. History shows it’s difficult to stop a determined president from shaping the courts to reflect a particular conception of law. “There was a whole series of hot-button issues that the Reagan administration decided were exceptionally important in articulating the right kind of judicial restraint,” Bagenstos explained. “Affirmative action was one. The exclusionary rule under the Fourth Amendment was another. ... So they had a whole hit list of legal principles that they thought were misguided, which got the Constitution wrong, and so they worked really hard to explain why the decisions they thought were wrong, were wrong.

“It influenced the way they looked at judges, and once they put those judges on the lower court they started to put that agenda into action,” he continued. “Sometimes the Supreme Court went along with the more aggressive lower-court judges, and sometimes they didn’t. But you had this dynamic that things liberals thought they had won in the Burger and Warren Courts were not secure and suddenly were being contested.”

This is a lesson every Democrat, and really every establishment-minded Republican, should relearn, because a president who adopted the same model, with the goal of rehabilitating Lochner, could erode the legal and administrative foundations of the past century in a matter of years. A rule change undertaken by Senate Democrats last Congress eliminated the filibuster for nominees to lower courts, and by the time the next president is sworn into office, three sitting Supreme Court justices will be over 80 years old.

“The next Republican president will have a choice,” Bagenstos said. “I don’t know which way that choice is going to come out.”

To Randy Barnett the choice is obvious.