We’ve seen this U.S. Supreme Court before

In its recent cases, an ideological U.S. Supreme Court is not just driving toward desired results. It’s also engaged in a troubling drive to return the court to late 19^th century legal theories that until 1937 caused great harm to state and federal efforts to improve Americans’ lives.

The Supreme Court majority of the late 1800s was pro-business, anti-labor and anti-regulatory to the point of libertarianism. It frequently struck down state laws based on an amorphous “substantive due process” doctrine that justified rejecting state regulations the court deemed “burdensome” or interfering with “liberty rights.”

In developing that theory, the court was highly activist, spinning doctrine from general Bill of Rights language and themselves imagining new rights that fit the justices’ goals. In the famous 1905 Lochner case, the court contrived a constitutional “right to contract” and struck down a New York statute imposing maximum work hours for bakery workers. Justice Rufus Peckham’s opinion said that “clean and wholesome bread does not depend upon whether the baker works but ten hours per day or only sixty hours a week,” and that bakers had a constitutionally-protected “right” to labor as long as were willing — never mind being sleep-deprived or toiling in hazardous clouds of flour dust.

Dissenting from the 5-4 Lochner majority, Justice Oliver Wendell Holmes Jr. wrote in 1905 that the court was improperly deriving legal doctrines from economic theory.

By the early 1900s the Supreme Court was unpopular nationwide, but the court’s majority simply didn’t care — they regarded themselves as the guardians of liberty against the onslaught of the masses. At the federal level, the court eviscerated the Sherman Anti-Trust Act, ruling that the Constitution’s Commerce Clause did not permit Congress to restrain corporate activities inside states. The court declared the federal government could not stop a company from building a national sugar monopoly because that enterprise was simply buying up processing plants inside state after state; in other words, the feds were unlawfully trying to block intrastate rather than interstate activity.

A similar ruling in 1918 held that Congress could not outlaw the interstate travel of goods made by children in Southern factories because, while the justices voiced concern for unfortunate child laborers, the Commerce Clause did not allow the federal government to control working conditions within individual states — after all, the textiles and clothing produced by youngsters were themselves perfectly good products as they moved in interstate commerce.

The Supreme Court doctrines overturned dozens of New Deal statutes passed by Congress to restart America’s Depression Era economy. Following a massive Democratic victory in 1936, and President Franklin Roosevelt’s threat to expand the court’s size, a majority of justices abandoned their 19^th century legal theories.

The same court that in 1935 ruled 5-4 that a national railroad pension requirement was beyond Congress’ Commerce Clause power, in 1937 upheld the much broader Social Security Act covering all Americans. And that court, which in 1936 had overturned a federal law regulating wages, hours and working conditions in the coal industry, a year later upheld the National Labor Relations Act making union organizing far easier. The labor law opinion by Chief Justice Charles Evans Hughes held that industrial strife had a direct impact on interstate commerce, so regulating industrial relations was within Congress’ Commerce Clause power. Another 1937 decision, in a case arising in Wenatchee, rejected the substantive due process doctrine and upheld a Washington minimum wage law for women workers.

The Supreme Court, particularly after the rapid retirement of several conservative justices, became much more deferential to Congress and federal economic regulation. This led to a court that by the 1960s actively used the Commerce Clause, the Bill of Rights and the 14^th Amendment to sustain federal laws outlawing discrimination against minorities and women.

But constitutional law is always a dialogue, a debate. In the 1960s, a small number of conservative legal scholars continued to critique the modern Supreme Court’s Commerce Clause doctrines. They called for scaling back federal power and further argued that the Lochner Era libertarian approach was not such a bad thing. They labeled the late 20^th century Supreme Court “activist” because it relied on doctrines (some dating back 150 years) to reach results they disagreed with. Yet, through the end of the 20^th century, presidents from both parties continued appointing middle-of-the-road justices that were confirmed by a Senate in which 60 votes were needed to do anything. This kept the Supreme Court moderate, swinging from slightly liberal to moderately conservative. The court prioritized precedent and cautious change.

Sen. Mitch McConnell changed all that. First, he refused to process President Barack Obama’s nomination of Merrick Garland. Then he dropped the filibuster for judicial confirmations and enabled President Donald Trump to appoint conservative activists to the court. These individuals had a lifelong abhorrence of federal regulations, many civil rights laws and disliked the constitutional right to privacy they believed the Supreme Court had improperly called into being 60 years earlier.

The Federalist Society, heir to the conservative legal theorists who had never accepted modern constitutional doctrine since 1937, groomed the new Supreme Court majority. Those justices are in many ways intent on returning constitutional doctrine to the late 19^th century. We should now expect successful attacks on a broad swath of federal regulations meant to protect consumers, the environment and workers. And despite a stated support for states’ rights, we will also see the court overturn state laws it deems an impairment of “liberty” interests. 

We don’t live in the 19^th century, and our nation must deal with people, technologies and issues that were barely imaginable 150 years ago. And despite their claim to be true to the Constitution’s origins and text, the court’s ideological conservatives will still magically find hooks in constitutional language on which to hang new doctrines that support their goals. No one should expect consistency, intellectual integrity or much regard for precedent from this new Supreme Court majority.

What is the solution for a Supreme Court that desperately needs to move back into the center?

Elections, of course, make a difference. But electing centrist or progressive presidents will not produce rapid change in the court’s decisions. The new ideologues on the court are young and are meant to remain a long time.

Perhaps we should return to the tradition of requiring 60 votes to move a judicial nomination, because that could yield centrist justices. But today’s Democrats are committed to a Senate that decides by majority vote, so that’s unlikely to occur.

The best solution is one proposed by a conservative legal scholar some years ago and now supported by a range of Supreme Court watchers, including one who wrote a recent Op-Ed in The Seattle Times: 18-year effective terms for each Supreme Court justice, with appointments offset so that each president, each term, has two appointments. The court would thus change gradually, more accurately reflecting changes in the elected executive. We would no longer depend on unpredictable retirements and deaths to alter the court’s composition.

Congress could achieve this by statute and without a constitutional amendment. The Constitution’s Article III places “the judicial power” in a Supreme Court and such other courts that Congress creates. All federal judges hold their appointments and salaries for life. But nothing in the Constitution prevents Congress from writing a judiciary statute that rotates justices off the Supreme Court and down to the Court of Appeals after 18 years of service on the top bench.

One way or the other, decisive action is necessary to prevent ideologically-driven justices from returning the country to late 19^th century doctrines that will do the same kind of damage their brethren wrought more than 100 years ago.