It's always so depressing to read these articles, because the conservative legal movement's Federalist Society has so much more money on its side. (We have the American Constitution Society. You probably never heard of it.) They have extensive infrastructure, they have connections, they recruit and offer financial aid to young law students, they ease their way and oh, by the way, here's what we want to do: Destroy the very idea of social contracts. Don't kid yourself, this next election is the most pivotal one we've seen in our lifetime. Via Brian Buetler at the New Republic:
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.”↓ Story continues below ↓
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.
Go read the whole thing so you understand exactly what we're up against.