As Nick Gillespie noted earlier, Mother Jones writer Nick Baumann was made so nervous by yesterday's health care decision that he raised the specter of America falling down "the slippery slope to the libertarian paradise."
Writing at the blog of the liberal American Constitution Society, Steven D. Schwinn of the John Marshall Law School strikes a similarly apocalyptic note, worrying that federal Judge Henry Hudson's ruling will send us back to those dark days before the New Deal transformed the Supreme Court:
The ruling isn't just a repudiation of the individual mandate; it's a proclamation on federal authority and federalism that would take us back to the early twentieth century, the days of an activist and obstructionist judiciary that frustrated the political branches at every turn. This kind of judicial activism will take policy decisions out of the hands of democratically elected representatives and put them in the hands of judges.
Schwinn is relying here on a longstanding set of myths that have smeared the pre-1937 Supreme Court as a reactionary force that thrwarted necessary popular reform. The prime example that’s usually trotted out is Lochner v. New York, the unfairly-maligned 1905 case where the Supreme Court struck down the maximum working hours provision of New York’s Bakeshop Act for violating the Due Process Clause of the 14th Amendment. That case served as the basis for several other important decisions striking down Progressive Era economic regulations.
But there’s something Schwinn and other left-leaning critics don’t tell you: Lochner also played an important role in several "activist and obstructionist" decisions that should cheer today's liberal legal movement. For example, in 1917 the NAACP won its first big case when the Court struck down a Louisville, Kentucky residential segregation law for violating property rights under the 14th Amendment (the NAACP cited Lochner in its brief). Six years later, in the case of Meyer v. Nebraska, the Court cited Lochner when striking down a state law banning foreign language instruction for young children.
Schwinn also claims that before it saw the light and voted to uphold the New Deal, the Supreme Court practiced a formalistic jurisprudence “that expanded the role of the judiciary at the expanse of Congress in questions over the latter's constitutional authority.” The key decision he’s referring to here is Schechter Poultry Corp. v. United States (1935), where a unanimous Court struck down the National Industrial Recovery Act of 1933, which, among other things, relied on the Commerce Clause to micromanage even the most local of economic affairs. That sweeping exercise of congressional authority proved too much even for progressive icon Justice Louis Brandeis, who joined the majority in voiding the law. I mention Brandeis only to note that even liberal heroes from that era realized that the Court needed to act “at the expense of Congress” from time to time.
Finally, Schwinn argues that if Judge Hudson’s ruling ever becomes law, the precedent “will frustrate conservatives every bit as much as it will frustrate progressives.” Let’s hope so. Both Democrats and Republicans favor the broad use of federal power, they just differ over which set of liberties the government is going to trample. Any judicial ruling that frustrates both sides has done something right.