Judge Barrett on the Lochner Era and the "Switch in Time"

Senator Hawley asks ACB about OWH's dissent.

|The Volokh Conspiracy |

Most law professor finish their careers as law professors. Not these two. Former-Professor Josh Hawley is now a Senator from Missouri. And former-Professor Amy Coney Barrett is on the cusp of the Supreme Court. Hawley asked Barrett about Justice Holmes's Lochner dissent. Her answer expanded into the Lochner era, and the "Switch in Time." I searched the Gorsuch transcript, and there were no references to Lochner. The Kavanaugh record is not yet prepared, but I do not recall any discussions of Lochner.

The exchange runs from 6:38-9:03.

SEN. HAWLEY: Justice Oliver Wendell Holmes, Jr. said in the famous Lochner case, in his famous dissent in that case, over a century ago, he said "the 14th Amendment does not enact Mr. Herbert Spencer's Social Statics." Do you agree with that statement? What do you think he was getting at with that?

JUDGE BARRETT: Justice Holmes' famous dissent in Lochner, which was later the position adopted by the Court [in Williamson v. Lee Optical], was that courts should not pour their ideas of good economic policy into the 14th Amendment to stand in the way of policies that the legislatures enact. For example, on questions of maximum hours for bakery workers, minimum wages, those kind of things.

SEN. HAWLEYYou mentioned economic policy. Talk to us a little bit about how a court could substitute its own views in the place of legislature or congress.

JUDGE BARRETT: In the Lochner era, and we saw it also in the cases that preceded the "Switch in Time," the Court was standing in the way of reforms for workers that legislatures were enacting. If one had a preference for free trade, or if one had a preference of having no minimum wage, or having a minimum wage, to hold such a statute that did the opposite of your policy preference unconstitutional because it did't comport with your idea of the best economic policy would be to thwart the will of the people without warrant in the Constitution.

SEN. HAWLEY: Most judges are not economic experts. Are there dangers in general with courts acting as economic policymakers, the setting economic policy—deciding economic policy? Is that something courts should be wary of outside their area of expertise?

JUDGE BARRETT: I'm certainly not an economist. I think courts are experts in interpreting law. We've been trained in law school, and that is what we are good at and what we should stick with.

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  1. According to Kenneth Anderson and the many devotees of the current Law and Economics junta, lawyers and judges are now economic experts, and it’s their duty to apply economic theory in their decisions.

    1. I think that’s overbroad. For instance Posner famously took the position that it wasn’t that judges were explicltly doing economic analysis, but that conclusions about concepts like “reasonableness” could be explained in economic terms, a notion that he traced back to United States v. Carroll Towing Co.

      So it isn’t that everyone in law and economics are saying that judges are economic experts.

      1. Maybe . . . but Posner was being (koff koff) modest. Sounds like economic analysis to me.

        When I read that case in torts, I was surprised to see a (quasi) mathematical formula, B<PL, in a judicial opinion. If it's the judge's job to evaluate B and L, s/he has to know the economics involved in B (an economics analysis of the burden) and L (an economic analysis of the injury).

        As my Contracts professor said, "Learned Hand was a great judge . . . he knew he was a great judge . . . “

  2. To “thwart the will of the people”, in this case, presumably refers to the Legislature vs Majority Will?

  3. SEN. HAWLEY: Most politicians are not economic experts. Are there dangers in general with politicians acting as economic policymakers, the setting economic policy—deciding economic policy? Is that something politicians should be wary of outside their area of expertise?

  4. Pretty outrageous that they still haven’t finished the official transcripts of the Kavanaugh hearings.

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