Supreme Court

Did the Lochner Court Have a Green Thumb?

The Supreme Court known for its skepticism of government regulation nonetheless upheld early environmental protection efforts.

|The Volokh Conspiracy |

Over at Legal Planet, Daniel Farber observes that the infamous "Lochner Court" issued several notable decisions upholding early environmental protection efforts. Professor Farber finds this surprising because "this was a Court that was famous, if not infamous, for its conservative activism."

Yet if one looks at the cases Farber cites—and considers the whole of the Lochner Court's jurisprudence (or consults the more nuanced account of the era in my co-blogger David Bernstein's Rehabilitating Lochner—there is not much here that should surprise. The Court of that period was certainly more skeptical of government regulation than in later times, but its overall judicial philosophy was anything but pure laissez faire.

Although the Lochner Court struck down a New York law imposing maximum hour limits for bakery workers, the Court upheld other laws that were indisputably about the protection of public health or worker safety, such as a Massachusetts mandatory vaccination law (in Massachusetts v. Jacobson) or a Utah law setting maximum hours for miners and smelters (in Holden v. Hardy). And the same jurisprudential vision that led the Court to care about property rights naturally led the justices to understand the need to control nuisances, whether through local ordinances (Hadacheck v. Sebastian) or common law actions (Georgia v. Tennessee Copper).

It's also worth noting that the sorts of environmental measures the Lochner Court considered fail to raise the significant and difficult constitutional issues we sometimes see in environmental law today. There was no effort by the federal government to regulate local land use or local, non-economic activity, nor was there was any effort to leverage federal largesse to coerce state cooperation in federal programs. There was no ambitious or innovative effort to expand the scope of Article III jurisdiction, nor were there administrative processes that raised significant due process concerns. In short, with a few exceptions (such as, perhaps, Missouri v. Holland), the Court was not confronted with cases in which one would have anticipated significant constitutional questions.  Were that only still true today.

More broadly, I think it's also worth pushing back on the implicit assumption in Professor Farber's post that limiting governmental regulation necessarily undermines environmental protection. There are many areas in which greater protection of property rights actually encourages conservation, and in which loosening constraints on government expropriation can actually facilitate environmental harm. Thus we should not assume that a Supreme Court skeptical of muscular assertions of government power is a Court skeptical of—let alone hostile to—environmental conservation.

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  1. That is a fairly common upper middle class attitude, to combine love of nature with disdain for the working class.

  2. “There was no ambitious or innovative effort to expand the scope of Article III jurisdiction”

    It’s more arguable that Lujan (in law school it’s certainly taught as a ‘game changer’) was the ‘ambitious or innovative effort to *restrict* the scope of Article III jurisdiction’.

  3. I remember when mainstream Republicans respected science and the environment.

    And education, progress, limited government, tolerance, effective government, and reason.

    That was roughly 40 years ago, before American conservatives embraced intolerance, ignorance, superstition, insularity, and prudish authoritarianism in an effort to maintain an electoral coalition for backwardness and bigotry against a general societal tide of decency, inclusivity, modernity, and reason.

    1. Hey Rev,

      I know that you like to be incendiary to get a reaction – and don’t get me wrong, I’m often entertained by it – but I also know that you are willing to partake in thoughtful conversation when you are confident that you’re engaging with someone who is being sincere.

      I’m probably far more “libertarian” than you are, in the strict sense of a political philosophy, but I think we generally agree on “culture war” issues, if not the specifics of the government’s proper role in all of it.

      My question to you is, do you really think conservatives have gotten “worse” on these issues? Yes, of course the most strident people (at either end of the spectrum) have gotten “louder” with the growing ease at having their opinions heard… but do you really think conservatives in general have drifted more socially conservative?

      You say that socially liberal thought is “winning” the culture war – and I agree with this assessment – but given that the country is more or less still divided roughly down the middle when it comes to conservative vs. liberal, doesn’t that mean that conservatives in general are (socially) liberalizing to some degree?

      When you speak of socially conservative “clingers” I can only assume you mean that there are becoming less and less of them as time goes on.

      You have to admit, that with the wider spread of knowledge, bigotry that stems from ignorance HAS to diminish. If this isn’t so, how can you claim to be “winning” the culture war?

      And I’m honestly not trying to score gotcha points. If we really disagree about this, then we do. I’m just interested in your honest take on it.

      I want to know what you mean when you claim to be winning the culture war. Since there aren’t a lower percentage of conservatives, it has to mean that conservatives themselves are (in general) becoming less intolerant than at any other time in history. Right?

      1. Mr. Moroni:

        I start by expressing my admiration for you. A common patriotic citizen such as myself recognizes what a great, distinguished, and articulate man you are, sir. I have nothing but admiration for you and would personally deliver your newspaper any day you wished.

        That said:

        You lousy fargin’ icehole. I see what you are trying to do, you no-good cork-soaker. You stinky bastage, you. By sucking up and trying to lure me into reasoned debate, you filthy somunabatch, you are interfering with the sacred constitutional rights of a common patriotic citizen and internet commenter such as myself. Trying to put my bells in a sling, I think, and put my boils in a meat grinder, too, but it won’t work, because I will not fall for the bullschtein of people such as yourself. Thank you.

        But, for old times’ sake, I will attempt you answer your questions:

        1) Society has improved. The conservative platform has not. As you have observed, the most strident voices are amplified by the internet’s reach and by the organized and financed operations of strident or “movement” conservatives.

        Many conservatives appear to feel cornered, by everything from 75 years of progress against their wishes to the predictable course of coming decades and an evolving electorate. They adopt desperate positions and tactics.

        In the context of science, conservatives have deteriorated. Conservatives of the 1970s respected science, favored research, welcomed technological progress. The Nixon administration favored the EPA’s work; current conservatives do not.

        The Republican Party or my youth favored progress, modernity, and effective government. Today’s conservatives want our government to fail and pine for good old days that never existed.

        With respect to education, I do not recall the Republican Party of 40 years ago despising Harvard, Yale, and Princeton 40. I also believe the hostility toward public schools, to flatter separatist and nonsense-teaching private institutions, is a relatively recent development among conservatives.

        Plenty of conservatives have become ‘socially liberalized,’ as you describe it, but they are shouted down in the Republican Party and in movement conservatism. Perhaps this has occurred because Republicans, sensing a societal shift, welcomed the gun absolutists, the anti-abortion absolutists, and the vestigial bigots aboard a few decades ago in an effort to maintain a viable electoral coalition. Those folks now have the steering wheel, however, which has turned the Republican Party hard toward backwardness, intolerance, and superstition.

        I believe the stale-thinking old-timers are being replaced daily in the natural course. Young Americans generally find racism, gay-bashing, misogyny, and the like repulsive, to a point that causes them to reject anything a bigot proposes.

        Most conservatives appease the uglier elements of their electoral coalition. This enables the more intense voices — for bigotry (immigration), ignorance (climate), backwardness (white privilege), and the like — to be amplified in Republican politics and, when conservatives have power, in government.

        Winning the culture war, to me, involves promoting science, reason, tolerance, education, progress, and freedom at the expense of backwardness, bigotry, dogma, ignorance, and prudish authoritarianism.

        If I missed something, let me know, you lousy cork-soaker.

      2. I also wish to state, Mr. Moroni, that it is a damnable shame that a brilliant and distinguished person such as yourself was not so much as nominated for an Academy Award, an injustice so great it makes the travesty visited upon myself by that no-talent hack Ted Kramer appear a mere trifle.

        1. As always, I appreciate the references and the compliments to my fargin skills.

          I also appreciate your sincere response, even if I don’t totally agree with your conclusions.

          It is just as tempting to say that the left has also become more authoritarian, less tolerant; more eager to punish, silence, and cancel those that have infringed on no one’s liberties.

          But I’m hesitant to pass that kind of judgement on MOST people left of center. I think it’s mostly just louder people at the extremes.

          1. I have little interest in people who call themselves socialists in today’s America, or otherwise push at the leftward extremes, for several reasons. I also believe those people will not get their hands near, let alone on, the steering wheel of the Democratic Party other than in some relatively inconsequential local pockets.

  4. It’s undeniable that some forms of environmental protection are compatible with conservative jurisprudence. Heck, I would go further and point out that there are certain situations where doctrines such as expansive governmental power can be used to despoil the environment, such as when the federal government builds a big dam or a big military base or some big project using expropriated property, or when labor collective bargaining rights are used to keep coal mines open, or whatever.

    However, in the main, environmental problems tend to require a certain amount of “big government” in solving them. Indeed, that’s what is really behind all the conservatives and libertarians who lie about global warming- they know darned well they are lying, but do it anyway because they also know darned well that a problem that big is not going to be addressed without some massive government intervention. (What that form should take can be debated, but in one form or another, it’s not going to comport with conservative notions of limited government.)

    The big things that helped protect the American environment- whether it be national parks and monuments, clean air and water, pollution controls, restrictions on CFC’s, etc.- all required the exertion of substantial amounts of federal power. There are certainly a handful of counterexamples- federalism served the California smog problem very well, by allowing our state to get ahead of federal regulations, which made the air in Los Angeles a lot cleaner. But they are just that, counterexamples. In the norm, environmentalism is served by a liberal construction of the Constitution.

    1. “Indeed, that’s what is really behind all the conservatives and libertarians who lie about global warming- they know darned well they are lying, but do it anyway because they also know darned well that a problem that big is not going to be addressed without some massive government intervention. ”

      I say you have a very wrongheaded appraisal of the intellectual disagreement with those who think, and believe, that global warming (or global cooling, or climate change) is a hoax. Some believe it is straight fraud, some believe they are misguided, but they are all right (as you point out) in knowing that the left is using it as a Trojan Horse for more government.

      To your point, boomeranging back to you, some on the right also believe that environmentalism is a new religion of the left. The left often act like it is oftentimes, that questioning the idea that climate change is man made is akin to sacrilege. You seem to trod this ground, as you assume that we are suffering from some sort of false consciousness.

      Lastly, some of us are “lukewarmers” in that, like Bjorn Lomborg we don’t mind some tinkering at the margins, with some taxpayer dollars as green energy has some good payoffs, but not at the cost of too much economic growth, because only a fraction of a single degree increase in temperatures can be attributed to man and it’s to late to stop any of it anyway (which is the sad truth of the matter).

      Frankly, I think all the $ spent on global warming would better be spend on saving native habitats and an asteroid defense system, if we are REALLY worried about extinctions.

      1. He wants “massive government intervention” that is “not going to comport with conservative notions of limited government” but is surprised we don’t play along with the game.

        I guess we will just have to continue beating the left on this issue like we have for 20 years now.

        1. You think we have been beating the left on these issues, specifically a huge increase in government to deal with global cooling/warming/climate change? I’m not so sure. It’s more of a parthian victory.

          1. “parthian victory”

            Its “Pyrrhic”. And no.

            In the US we beat them so badly that they had to stop using “global warming” and they have enacted no big taxes or massive programs in 20 years. They have to resort to greater and greater degrees of hysteria to even get attention yet all they have are local bans on straws and bags and some mild programs in left bastions like California.

            People are so “concerned” in the US that in June, 2019 a poll found:

            “WASHINGTON (Reuters) – Nearly 70 percent of Americans, including a majority of Republicans, want the United States to take “aggressive” action to combat climate change – but only a third would support an extra tax of $100 a year to help, according to a Reuters/Ipsos poll released Wednesday.”

            The left wants “massive government intervention” that is “not going to comport with conservative notions of limited government” but the people don’t want to spend $100 [one months internet/cable] to fight it.

            1. Just me to get Parthian shot and phyricc victory mixed up even though I knew what I meant to say.

      2. Mad,

        I think you are more or less correct about this. I think we libertarians are rightfully skeptical of motives… and I’m sure those on the left are rightfully skeptical of many conservatives’ motives as well.

        Maybe I’m naive about the honesty of most libertarians, but I tend to believe that we do want the truth to win out, even if the truth isn’t what we want it be. I’ve seen many libertarians change their view on man made climate change as the scientific evidence mounts.

        Libertarians are not anarchists. We admit that the government’s near monopoly on force is sometimes justifiable. It could turn out that climate change is one of those areas where it is necessary.

        We’re just understandably wary of the gleefulness in the left’s approach to such uses of governmental force.

        If everyone approached this use of force as we do, meaning that it is SOMETIMES justifiable – but inherently unfortunate and therefore the LEAST amount of coercion the better – then I think you’d find libertarians to be far more enthusiastic allies against those who are inclined to deceive the public for their own economic interests.

        Perhaps a good way to approach it is the way you might approach war. We can agree that there is a time for government force, but it really helps when we can agree with the left that it’s a necessary evil that should be avoided if possible, and restrained to absolute necessity when the use of force is morally justified.

        I like the Penn Jillette school of thought. We should approach every problem with the question: can this problem be solved with MORE freedom? The answer will not always be yes, but liberty itself should be a value. We should all HOPE that a problem can better solved with more freedom rather than less.

        1. I think we libertarians are rightfully skeptical of motives… and I’m sure those on the left are rightfully skeptical of many conservatives’ motives as well.

          Maybe I’m naive about the honesty of most libertarians, but I tend to believe that we do want the truth to win out, even if the truth isn’t what we want it be.

          IOW, libertarians are skeptical of everyone’s motives but their own.

          1. That’s probably true for everyone.

            But what do you think libertarians’ motives are? I know there’s a spectrum, and often people call themselves libertarian because they like the sound of it.

            But to me libertarianism just means holding liberty itself as a value, and seeing force by the government as a bug rather than a feature. But if a problem must be solved by force, we are generally willing to accept that.

            I think that’s a better place to start discussions than from the point of view of HOPING to be able to use force on others.

            I think it’s a better motive to not want to control others, even those people I have little in common with and whose lifestyles I don’t particularly like.

    2. “(What that form should take can be debated, but in one form or another, it’s not going to comport with conservative notions of limited government.)”

      Yes it can be debated but why is it that only fringe elements of the progressives are talking about concrete measures? The mainstream progs lecture us to be sure, and they put forth a few performative and symbolic gestures to make people think there is forward movement, but where do we see the actual tab for the fix?

      “Elect me and you will see a 25% increase in your taxes to pay for healing the planet. And that’s not all. In addition to paying you are going to see a whole boatload of forbiddance: no cars, meat, AC, pets, airplanes, single family houses. Hell you can’t even go outside and grill your tofu.” And the people say: “Ok and that will fix the problem, right?” “Well, no because we can’t do squat about China and India and they are two thirds of the problem.”

      Can it be that Bob is right and that the problem isn’t conservative resistance to government fixing the problem, but that it’s a non-starter with 90% of the population?

      1. I think there’s a lie that a lot of liberals do tell about global warming, but it isn’t as total as the lie that conservatives and libertarians tell about it.

        The liberal lie is that enacting this or that rather mild measure will seriously address the problem. The reality is that the problem is much more massive than anything that a low priced cap and trade program or the Green New Deal is going to address.

        In other words, I concede your first point. There aren’t a lot of liberals talking about concrete solutions. Because the concrete solutions are actually quite scary.

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