Celebrating The Judiciary


Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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98 Responses

  1. Avatar Dave says:

    Cue anti-judiciary rant from pathetically predictable commenter in 3…2…1…

    All “kidding” aside, great post. Three other cases to consider are Brandenburg v Ohio, New York Times v Sullivan and New York Times v U.S.Report

  2. Avatar Pinky says:

    It’s my limited, limited understanding that the relationship of the Canadian Constitution to Canadian law is different from that in the US. More grounded in common law. I don’t see how a decision by a Court to change a law they don’t like would be something to celebrate in the US.Report

    • Avatar Mark Thompson in reply to Pinky says:

      I don’t see how that would be possible, since our legal traditions both stem directly out of English common law.Report

      • Avatar Pinky in reply to Mark Thompson says:

        Wikipedia and I talked it over, and we think that the US has a codified constitution, the UK has an uncodified constitution, and Canada’s is mixed (with its constitution including elements of common law).Report

      • Avatar North in reply to Mark Thompson says:

        Pinky is right. Canada and the other Commonwealths have a semi coded constitution attached to a distinctly organic and evolving core (the Monarchy). There’s a living breathing person who fills part of that role. The US has a considerably more rigidly coded system with a static document filling in that role that the revolution severed the US system from.Report

        • Nob Akimoto Nob Akimoto in reply to North says:

          I don’t think the Commonwealths fall under that rubric, actually. Most of them passed Constitution Acts at the time of independence, which were then approved by the UK Parliament that effectively put them out of the reach of the Crown in a lot of ways. They’re all certainly codified in accordance with the Statute of Westminster.Report

      • Avatar North in reply to Mark Thompson says:

        Yes but in our various new constitutions there was a Monarch figure just like England had filling the same role (and also happening to be an office filled by the same figure as the English Monarch). The US, for perfectly understandable reasons, doesn’t have one.Report

        • Nob Akimoto Nob Akimoto in reply to North says:

          And? That’s got nothing to do with whether a constitution is codified or not. The Constitution of Japan, the Netherlands, Sweden, Spain, etc. etc. all have monarchs who serve as head of state, but the source of the constitution’s authority is still vested from popular sovereignty.Report

        • Nob Akimoto Nob Akimoto in reply to North says:

          More specifically the thing that makes the UK remarkable is that it doesn’t have a written document that codifies power. Its constitution is actually a body of precedent, common law, tradition, and parliamentary acts. In theory, the doctrine of parliamentary sovereignty could even have them abolish the monarchy if they so desired.

          Whereas in Canada, Australia, New Zealand, et. al. you’d need to actually change the written constitution before they could become republics with an elected head of state.Report

      • Avatar North in reply to Mark Thompson says:

        No worries, my point was merely that in each of those constitutions/charters what have you there’s a component that is a living breathing person occupying the office. Indeed England has no codified constitution but every other commonwealth country is sitting on the foundation of England with their constitutions in a manner that America doesn’t.Report

      • Avatar North in reply to Mark Thompson says:

        True, but ours didn’t get overthrown and heaved out after World War II. 😛Report

  3. Avatar Kolohe says:

    One you’re missing – United States v. The Amistad

    On the other hand:

    Morse v. Frederick
    Gonzales v. Raich
    Kelo v. City of New London
    Muehler v. Mena
    Bennis v. Michigan
    Miller v. California
    Terry v. Ohio
    Korematsu v. United States
    Ex Parte Quirin
    Wickard v. Filburn
    Muller v. Oregon
    Plessy v. Ferguson
    The Butchers’ Benevolent Association of New Orleans v. The Crescent City Live-Stock Landing and Slaughter-House Company
    Dred Scott v. SandfordReport

    • Avatar NewDealer in reply to Kolohe says:

      There is a lot of hidden history in Wickad v. Filburn that gets edited out. The Farmer in the case voluntarily signed up for the AAA program and then did not want to play by the rules. This often gets edited out of history and case books.Report

      • It gets edited out because it was not something that was referenced or relied upon in the decision, and in any event was certainly not included in the interstate commerce portion of the analysis; indeed, were the decision premised solely on the allegedly voluntary participation in the AAA, the interstate commerce issue would not have been reached at all.

        It’s arguably relevant to the due process analysis, but that is not usually the part of the decision that people find outrageous. Although, honestly, it’s pretty outrageous in its own right, regardless of whether participation in the program was voluntary – the penalties in the law tripled between the time he planted the wheat and the time it was harvested, and the Court’s response was essentially that he could have avoided the penalty by not threshing it and just using it as hay, when of course the whole reason he planted it in the first place was so he could thresh it and consume it or feed it to his livestock.

        Jackson’s lack of empathy on this point is frankly nothing short of appalling.Report

    • Avatar Burt Likko in reply to Kolohe says:

      As I note below, there’s lots more to celebrate, and you’re right to note that there’s also a substantial body of jurisprudence to rue. But I’m looking for cause for celebration, to mirror our friends in Canada who have found cause to celebrate a triumph of the legal process.Report

  4. Avatar KatherineMW says:

    On the other hand, people in the United States are far more aware of their Supreme Court than people in Canada. I can name all nine of your Supreme Court justices. I can’t name one of mine. Maybe that’s partly due to the lower level of politicization in Canada.

    But our court isn’t entirely un-politicized, and has is in fact involved in some highly politicized decisions. At the moment I believe it’s in the process of determining whether laws against prostitution are unconstitutional (the Ontario Court of Appeal – Ontario’s highest court – ruled that they are). I think that kind of a issue is far too large and complex a one for the Supreme Court to be setting policy on.

    On another matter,

    Gitlow v. New York, decided June 8, 1925 (Bill of Rights applicable to all levels of government).

    That wasn’t decided until 1925?? Fascinating.Report

    • I’m not familiar with the Gitlow case, but I imagine the delay was partly a result of the fact that the court had traditionally conceived of the Bill of Rights as applying only to the feds (cf. Barron [Baron?] v. Mayor of Baltimore, ca. 1830s]. But the 14th amendment provided a sort of entree for the Bill of Rights to be “incorporated” against the states (and their creations, the local governments). In other words, the delay is a bit more understandable.

      Again, I’m not familiar with Gitlow, other than having heard the name before.Report

    • Avatar Stephan Cooper in reply to KatherineMW says:

      Something of a shame since the current Chief Justice (Beverley McLachlin) is one of the best jurists we’ve ever had.

      But its probably a good thing if your Justices aren’t famous outside of legal circles. If they are that means the court is regularly generating controversies that are spilling widely into the everyday public sphere.Report

    • Avatar Brandon Berg in reply to KatherineMW says:

      Unlike the other amendments in the Bill of Rights, the First Amendment specifically limits the legislative power of Congress. There really isn’t much in the way of textual support for the proposition that it limits the powers of state governments as well, although many individual states have similar protections in their own constitutions.Report

  5. Avatar BlaiseP says:

    The important cases are reflections of the important jurists.

    John Marshall. Far and away the most important of all SCOTUS justices. Marbury v. Madison.

    Joseph Story: Can’t get to John Marshall without seeing the genius of Joseph Story, his most able associate justice. Martin v. Hunter’s Lessee

    Louis Brandeis: Most important dissenter. Dissent in Olmstead

    John Marshall Harlan: Dissent in Plessy

    Earl Warren: Brown v. Board of Education.

    Many, many others.Report

    • Avatar Pinky in reply to BlaiseP says:

      How important are dissenting opinions, really? I always hear them talked about, and I guess they can be influential in law school, but the majority opinion not only is the current law but also carries its momentum through stare decisis.Report

      • Avatar BlaiseP in reply to Pinky says:

        Read through the Brandeis dissent in Olmstead. Could have been written yesterday in light of the PATRIOT Act and the Snowden NSA revelations. Harlan’s dissent in Plessy still haunts America.

        The dissents leave important evidence in these troubling cases. Each case is decided on the basis of existing law but the dissenters give us something as important as the decision itself: the other side of the problem, seen as the SCOTUS justices saw it at the time, a warning to history.Report

      • Avatar J@m3z Aitch in reply to Pinky says:

        In addition to Blaise’s examples, Black’s repeated dissents* in cases concerning right to a court-appointed lawyer at the state level culminated in his writing of the majority opinion in Gideon v. Wainwright.
        * It’s possible I’m remembering that wrongly. Some of them could have been concurring opinions complaining that the Court had the right outcome, but was not going far enough in making a sweeping ruling about the right to an attorney.Report

      • Avatar BlaiseP in reply to Pinky says:

        Hugo Black was the finest expositor SCOTUS ever had. Nobody wrote clearer, more exact prose.Report

      • Avatar NewDealer in reply to Pinky says:

        Today’s dissent is tomorrow’s majority opinion.

        Douglas and Black spent decades in the dissent before becoming Warren majoritarians. Rehinquist was also someone who spent decades in dissent before having his own revolution from the other end of the spectrum.Report

      • Avatar Mark Thompson in reply to Pinky says:

        In terms of influential dissents, I think you probably also need to include Scalia’s dissent in Morrison v. Olson. Whatever one’s opinion of Scalia in general, his dissent in that case proved outright prophetic in its dire predictions of the effect of the independent counsel statute. On the flipside, it also seems to have provided the intellectual framework for some of the Bush Administration’s worst abuses under the “unitary executive” rationale.

        Regardless of whether it is viewed as a net positive or negative, though, it’s tough to deny that the dissent’s influence is substantial.Report

      • Avatar BlaiseP in reply to Pinky says:

        Robert Frost: On Iron / From Weapons

        Nature within her inmost self divides
        To trouble men with having to take sides.

        A dissent is a useful brick to throw at the other branches of government. Ginsburg’s dissent in Ledbetter allowed SCOTUS to yell at Congress to do something about the problem. Not often we get to hear a dissent from the bench, but we did on LedbetterReport

  6. Avatar J@m3z Aitch says:

    Ahem, your description of Gitlow is a bit, shall we say, over-reaching.

    Perhaps a better, albeit more subtle, case for inclusion than Windsor would be Rover v. Evans?Report

  7. Avatar Pinky says:

    Broader answer: Americans don’t celebrate their government. We celebrate our presidents, our fallen soldiers, our veterans, and the day we broke free from another government. Flag Day and Constitution Day exist, but don’t carry a lot of weight. The remaining federal holidays (New Year’s, MLK, Labor, Columbus, Thanksgiving, and Christmas) aren’t related to the government at all, nor are the many other recognized days like St. Patrick’s Day or Cinco de Mayo.Report

    • Avatar Burt Likko in reply to Pinky says:

      I call for a celebration of the rule of law, not a celebration of government as though government was an inherent good. The rule of law, however, does strike me as an inherent good, or at least very close to one.

      Independence Day seems very much to me about our government and in particular our government as one of law. As I’ve opined several times elsewhere, the Declaration of Independence is at least as much about the right to due process of law particularly in criminal procedure as it is about self-government.Report

      • Avatar Brandon Berg in reply to Burt Likko says:

        Creative interpretation of the Constitution is, for better or for worse, precisely the opposite of the rule of law. If the judges can interpret the Constitution however they please, then we have a rule of judges, not a rule of law.Report

  8. Avatar Creon Critic says:

    But there seems to be a much lower degree of politicizing the court and the judicial system and the process of common law at work there. The courts, at least, seem vested with a degree of public trust that transcends partisanship and political controversy.

    Perhaps because systems with parliamentary sovereignty have less powerful judiciaries overall they’re less likely to be politicized judiciaries. The power of parliament meaning the contests are moved there instead of into the judicial quarters (admitting there’s a significant simplification there given Canada’s federalism, and the Charter of Rights and Freedoms). This is in contrast to the US where the law ends up being what the Supreme Court (oftentimes the crucial swing justice) says it is in a way that’s less likely to be true in any commonwealth country. A hypothesis anyway.Report

    • Avatar James K in reply to Creon Critic says:

      US Supreme Court judges are appointed by the President and confirmed by the Senate, which contributes to their politicization. How are they appointed in the US?Report

      • Avatar James K in reply to James K says:

        That second US should be Canada, sorry.Report

      • Avatar Chris in reply to James K says:

        Wait, Canada isn’t the Second U.S. already?Report

      • Avatar KatherineMW in reply to James K says:

        In Canada they’re appointed by the Governor-General in consultation with the Prime Minister (which means, functionally, that they’re appointed by the Prime Minister; Governor-General is a primarily ceremonial office, and one that’s also appointed by the PM). Justices’ appointments do not need to go through Parliament.Report

      • Avatar Creon Critic in reply to James K says:

        The short story is the Prime Minister appoints supreme court justices.

        The long story, Canada appears to be in the process of narrowing the PM’s discretion in appointing supreme court justices. There are firm rules on who is eligible, and geographic distribution but by contrast that process of limiting the PM’s latitude beyond those limits is incomplete, kind of in emergent norm territory. So for instance, arguing the other parties failed to cooperate, the PM set aside parts of this process for a 2008 appointment. The process (sources are a combination of wikipedia and the Oxford Handbook of Canadian Politics, 2010) the Justice minister conducts consultations (with the current Chief Justice of the Supreme Court, provincial attorneys general, law societies, and bar association). The Justice Minister puts forward a list of 5-8 names to an advisory committee. That committee cuts it down to three names. The advisory committee that creates the three-person shortlist includes: four members of parliament (aiming for cross party representation, as far as I can gather), two lay people, a provincial nominee, a legal profession nominee, and a retired judge. The PM chooses one of the three person shortlist this committee generates to put to cabinet for approval.Report

  9. Avatar NewDealer says:

    There is also:

    Lawrence v. Texas

    West Coast Hotel v. Parish

    Tinker v. Des Moines Independent Community School District

    Cohen v. CaliforniaReport

    • West Coast Hotel v. Parish

      Agree with it or not, under no circumstances should this case ever be celebrated, at least not if we wish to celebrate the notion of an independent judiciary. Because of the circumstances under which this decision and its progeny were procured, I don’t think it even should possess the right to be viewed as binding precedent.Report

      • Avatar Pinky in reply to Mark Thompson says:

        I’m not familiar with the story. Please fill us in?Report

      • Avatar Pinky in reply to Mark Thompson says:

        Oops. Never mind. I know this one.Report

      • Avatar Dave in reply to Mark Thompson says:

        It’s often celebrated as the “Lochner” killer by people that don’t understand Lochner.Report

      • Avatar KatherineMW in reply to Mark Thompson says:

        I’m not familiar with this one and would be interested in an explanation.Report

      • Avatar J@m3z Aitch in reply to Mark Thompson says:

        The so-called “Switch in Time that Saved Nine.” FDR’s court-packing scheme, etc. etc.Report

      • Avatar BlaiseP in reply to Mark Thompson says:

        Brother Likko should be harnessed to the plow and made to write another of his fine expositions on West Coast Hotel v. Parish, as he did in Martin v. Hunter’s Lessee, surely one of the best things ever written for this site.Report

      • Avatar NewDealer in reply to Mark Thompson says:


        What do you think is misunderstood about Lochner?

        Keep in mind, I am not a believer in the idealized Freedom of Contract that some Libertarians and right-wingers like to celebrate.Report

      • Avatar NewDealer in reply to Mark Thompson says:


        During the Great Depression, the conservative Justices on the Supreme Court would often strike down many pieces of New Deal Legislation as being unconstitutional. These were older justices from a different era and often seen out of step. They were often called the Four Horsemen of the Apocalypse in the press.

        FDR proposed to expand the Supreme Court by one justice for every judge over 70 to get rid of this conservative logjam. This proved to be highly controversial. At this point he did not have a Supreme Court appointment to his name.

        West Coast Hotel was a case that upheld the constitutionality of minimum wage legislation. One of the Justices who voted to uphold minimum wages as Constitutional was Justice Owen Roberts. He was one of the 4 Horsemen of the Apocalypse but the swingiest of them. His vote his considered the “switch in time” that kept the Supreme Court at 9 Justices. Shortly after another of the 4 horsemen retired (De Vanter) and FDR got his own court appointment with Hugo BlackReport

      • In effect, FDR threatened to blow up the whole system because he disagreed with the court’s decisions rather than trying to find ways to achieve his goals within the confines of existing law.

        It’s worth mentioning that quite a few of the decisions that caused problems for FDR were not very close, and a number were actually unanimous or 8-1 decisions. FDR’s court packing scheme would have expanded the court to 15 members, instantly giving him six votes on the court and requiring only two more to win decisions on any given issue.Report

      • Avatar J@m3z Aitch in reply to Mark Thompson says:

        Brother Likko should be harnessed to the plow

        And we’ll hold a charity auction for the right to wield the whip. *evil grin*Report

      • Avatar BlaiseP in reply to Mark Thompson says:

        Once again this argument was unanswerable. Certainly the animals did not want Jones back; if the holding of debates on Sunday mornings was liable to bring him back, then the debates must stop. Boxer, who had now had time to think things over, voiced the general feeling by saying: `If Comrade Napoleon says it, it must be right.’ And from then on he adopted the maxim, `Napoleon is always right,’ in addition to his private motto of `I will work harder.’Report

      • One last thing to add – while there’s some room for debate about whether the court-packing scheme influenced the decision in West Coast Hotel specifically, it’s also impossible to ignore that FDR had lost 10 of the 16 key New Deal cases before the court, including 8 of the most recent 9. Two of the cases he had won involved the constitutionality of state laws that FDR supported rather than of federal laws, and three others were really just one case.

        One of the most important cases going against FDR, Schechter Poultry v. U.S., invalidated the National Industrial Recovery Act, and was decided unanimously against FDR.

        After FDR announced his court packing plan, he won every single significant case to go in front of the court. One of them, NLRB v. Jones & Laughlin, started the process of gutting the aforementioned Schechter Poultry case less than two years after it was unanimously decided. It’s really difficult to believe that the Court magically reversed court on its own beginning almost immediately after FDR announced his scheme.Report

      • Avatar NewDealer in reply to Mark Thompson says:


        Random question of curiosity: What kind of law do you practice? I seem to recall you are a lawyer but I never picked this up.Report

      • @blaisep I will work harder. And Napoleon is always right.Report

      • Avatar Dave in reply to Mark Thompson says:


        Keep in mind, I am not a believer in the idealized Freedom of Contract that some Libertarians and right-wingers like to celebrate.

        First of all, I have no idea what you mean by “idealized”. Are you talking about an ABSOLUTE right to freedom of contract? There may be some in the political realm that discuss it, but we’re talking about constitutional law so that’s irrelevant. My views on this matter involve constitutional doctrine not politics. As such, you can go through all of the freedom of contract related cases and you won’t find a single one that mentions anything about freedom of contract as an absolute right.

        At its core, freedom of contract is nothing more than a form of privacy – the recognition that there is some realm where consenting individuals can voluntarily engage in economic activity outside of government interference. It does not confer an absolute right impervious to regulation. It is well within the government’s scope to set general ground rules as well as address instances where bargaining position imbalances threaten the health, safety and overall welfare of workers (a position understood and accepted even during the “evil Lochner” era). If anything, our discussion should involve drawing the appropriate border between the public and private domain as opposed to me having to explain to you why this right exists in my world without my feeling the need to celebrate it.

        To address the rest of your comment, I’m going to riff off of this Ian Millhiser post. I’m going to ignore the utter stupidity in his first paragraph and go to the meat of his argument (comparing Lochner to Plessy or Korematsu is partisan hackery at its worst):


        Lochner fabricated a so-called right to contract in order to strike down a New York law preventing bakery owners from overworking bakers, but its rationale has implications for any law intended to shield workers from exploitation.

        First, Lochner fabricated no rights. Even if I think freedom of contract, in a less explicit form, can be found in arguments in the Slaughterhouse cases, the notion of freedom of contract was explicitly recognized 8 years before Lochner was decided in 1897’s Allgeyer v Louisiana. Subsequent court cases upheld economic regulations despite opposition on freedom of contract grounds.

        Second, both the majority and main dissent recognized liberty of contract. They also recognized that maximum hours laws WERE constitutional in certain circumstances (Holden v Hardy is most applicable to Lochner). As the literature goes, no one expected Lochner to win because of Holden v Hardy.

        The real question was whether or not bakers were more like the miners in the Holden case and thus required a restriction on the number of hours worked. Both the State of New York and the attorneys for Joseph Lochner filed extensive briefs laying out their cases. The majority opinion went with Lochner’s facts (that they never cited them makes for interesting theories). Disagreeing with the decision on the basis that the Court should have accepted the fact pattern put forth by New York and not by Lochner’s attorneys is a fair point. Disagreeing with the decision on the “fabricated right” basis gets it all wrong.

        In essence, Lochner established that any law that limits any contract between an employer and an employee is constitutionally suspect. If desperation forces someone to agree to work 18 hours a day, seven days a week, for a dollar a day in a factory filled with toxic air, then courts must treat that law with heavy skepticism.

        How? If this is true, 1) this implies that the holding in Holden v Hardy was have been weakened or overturned and 2) we would have seen a string of cases where state-level economic regulation was struck down on freedom of contract grounds.

        (1) is untrue. Holden v Hardy was never overturned. In fact, the SCOTUS upheld maximum hours laws in Muller v Oregon (1908) and again in Bunting v Oregon (1917). The holding in Bunting covered a broad enough range of industries that it effectively overturned Lochner without explicitly doing so. In other words, the “Lochner era” extended 20 years beyond the period of time that the Lochner holding had any teeth.

        Regarding (2), please cite cases. I can think of only two significant cases where the court stepped in on freedom of contract grounds: Coppage v Kansas and Adkin’s v Children’s Hospital (I know there are others but these are the ones that typically get the attention). One case involved yellow dog contracts and the other a minimum wage law. Given the nature of the laws and the differences between these laws and the maximum hours statute, the law in Lochner could have been upheld and the Court could have reached the same conclusion that it did.

        Needless to say, the “right to contract” it invented appears nowhere in the Constitution.

        Change the “right to contract” to “same sex marriage” and you have a front page headline on World Net Daily. Nice going Ian. Yay liberal constitutionalism!!! /snark

        If I had time, I’d write a long post about that, but since I don’t, this will have to do. Lochner has an anti-canon reputation that it completely fails to live up to. It was a relatively narrow holding on the grounds that the maximum hours portion of the bakeshop act was not an appropriate health regulation. If people want to criticize the court for not taking a more aggressive stance to level the playing field between labor and capital, Lochner is not the place to look. For that, I recommend Coppage v Kansas.Report

      • Avatar KatherineMW in reply to Mark Thompson says:

        Thanks for the explanation, NewDealer. FDR’s actions seem to have been effective in achieving a lot of things I (and, based on your name, presumably you as well) consider substantial improvements to people’s well-being, but it’s hardly a shining moment of constitutionalism.Report

        • Evidently he got a taste for it later when he threw people into internment camps on the basis of their ethnicity. (Of course SCOTUS was sufficiently cowed by him at this point and rolled over like good little doggies.)Report

      • Avatar LeeEsq in reply to Mark Thompson says:

        Dave, I suspect that many liberals aren’t that fond of freedom of contract because they view it as basically being illusory for most people. Did the bakers in Lochner really negotiate their contract or was it on take or leave it terms. I suspect the latter. In most circumstances, absent collective bargaining, the employer has near absolute power over the terms of the contract.

        I think its also important to remember that that the Supreme Court killed a lot of child labor legislation on the ground’s that it impenges on a children’s freedom to contract. The idea that children are agreeing to long, dangerous shifts in mines and factories on their own free will and negotiating their contracts on equal terms with their employers is ridiculous. The kids were working because some adult, usually a parent, ordered them to for some reason rather than put them in school and the terms of the contract were beyond them.

        Lochner was a contemtuous decision that was designed to enshrine laissez-faire as religion. The Holmes dissent is spot on.Report

      • Avatar LeeEsq in reply to Mark Thompson says:

        KatherineMW, I view it as the American equivalent of when the British government occassionally had to threaten the obstinate House of Lords with oblivion in order to get reform legislation passed, most notably with the Great Reform of 1836 or 37 to enlarge the electorate or the People’s Budget crisis. The Supreme Court was acting in deliberately partisan and conservative matter since the Progressive Era in order to defeat as much liberal legislation as possible. If the Supreme Court made deliberate decision to argue as a partisan body than it is appropriate for the elected branches of government to fight back.

        *People might ask how was the Lochner-era Supreme Court different from the Warren-era Supreme Court beyond the fact that I find Warren-era decisions more to my liking ideologically. One big difference was that the laws overturned by the Warren-era had less popular legitimacy than the ones overturned by the Lochner-era Court. The other difference is that the decisions of the Warren Court were in ideological agreement with many but not all of the elected polticians. A lot of people did advocate imperaching Earl Warren and Congress refused to act.Report

      • Avatar J@m3z Aitch in reply to Mark Thompson says:

        Evidently he got a taste for it later when he threw people into internment camps on the basis of their ethnicity.

        Nonsense. SCOTUS explicitly determined that was not the case in Korematsu:

        Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire…

        See? What could be clearer than that?Report

      • Avatar NewDealer in reply to Mark Thompson says:


        LeeEsq does a good job of explaining why I am opposed to the idea of Freedom of Contract. It is myth except among peers.Report

      • Avatar Dave in reply to Mark Thompson says:

        Dave, I suspect that many liberals aren’t that fond of freedom of contract because they view it as basically being illusory for most people.

        Yes. I am fully aware of that, and I addressed those concerns above when I suggested that private power imbalances can be addressed through legislation. It was as true in Lochner’s time as it is today.

        Did the bakers in Lochner really negotiate their contract or was it on take or leave it terms. I suspect the latter. In most circumstances, absent collective bargaining, the employer has near absolute power over the terms of the contract.

        Both union and non-union bakers were working in New York City. The union bakers were working in the larger commercial bakeries and were able to collectively bargain. If I recall, for the most part they work week was at 60 hours. Non-union bakers were typically employed in the smaller bakeries that were family run and in many cases located in the basements of tenement buildings. I can’t tell you how much bargaining power anyone had in the smaller bakeries, but one thing that is clear if you read up on the history of the case is that both the labor unions and the large bakeries supported the maximum hours law. Heck, the unions were already successful in negotiating a 60 hour work week without the need for a law. Why pass the law in the first place (or least a maximum hours statute)?

        If you are thinking that this is a case where the government was stepping in to level the playing field between capital and labor, that is not what was happening here. If anything, bigger business was trying to squeeze smaller business.

        I think its also important to remember that that the Supreme Court killed a lot of child labor legislation on the ground’s that it impenges on a children’s freedom to contract.

        Case citations please. Hammer v Dagenhart was a Commerce Clause case. Never has a court case addressed the question of whether or not a child has a freedom of contract. It would never happen.

        Lochner was a contemtuous decision that was designed to enshrine laissez-faire as religion.

        I just gave an entire explanation of why this exact point is dead wrong. When you explain to me why I’m wrong rather channeling your inner Ian Millhiser, then we can continue this discussion.

        The Holmes dissent is spot on.

        Justice Scalia wrote a dissent in Lawrence v Texas very similar to Holmes dissent in Lochner. In fact, you could put Holmes dissent in Lawrence:

        It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we, as legislators, might think as injudicious, or, if you like, as tyrannical, as this, and which, equally with this, interfere with the liberty to contract. Sunday laws and usury laws are ancient examples. A more modern one is the prohibition of lotteries. The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well known writers, is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not.

        Holmes is an ass, but if you want to channel a jurist that wrote the majority opinion in Buck v Bell, be my guest. Holmes is the anti-thesis of the modern liberal. I can only imagine what a Holmes dissent in Griswold v Connecticut would have looked like.Report

      • Avatar KatherineMW in reply to Mark Thompson says:

        Lee – I understand your argument, but I don’t think they’re comparable. I don’t have a problem with threatening the House of Lords because they have very little legitimacy as a branch of government – they’re an artifact of an aristocratic system that has mostly been done away with. A democracy has no need of an unelected legislative chamber, and a system where riding boundaries take into account both population and geographic size (northerly or sparsely populated areas get ridings with smaller populations than urban areas) mean you don’t need two chambers, unlike in the US where the Senate balances the House’s strict representation-by-population. I’d be very happy to see Canada do away with our equivalent of the Lords (the Senate).

        The Supreme Court, unlike the House of Lords, is very much a legitimate and coequal branch of government, so threatening it to make it do what you want is problematic even in a good cause. And if it can be done in a good cause, it can be done in a bad cause.Report

        • Well up until a few years ago, the House of Lords served essentially as the Supreme Court of the United Kingdom through the Law Lords. It wasn’t until the Constitutional Reform Act of 2005 that the UK actually even had a separate high judiciary. When the House of Commons voted to continually strip the Lords of their prerogatives they started weakening the Law Lords as well, eventually reducing judicial review to pro forma acts of administrative law to see if they were in tune with parliamentary statute. In essence the only thing they were allowed to rule on, viz law was whether or not the administration of a law was “reasonably” interpreted according to the will of Parliament.Report

      • Avatar Dave in reply to Mark Thompson says:

        LeeEsq does a good job of explaining why I am opposed to the idea of Freedom of Contract. It is myth except among peers.

        You don’t have to like it but you have to accept that fact that both the majority and dissenting opinions in Lochner accepted freedom of contract as a valid constitutional doctrine. The arguments involved where to draw the line.

        I’m not making any of this up. Anyone that has spent 10 minutes skimming the opinion will see this. I am not defending the doctrine on any grounds here. I’m pointing out facts.Report

      • Avatar J@m3z Aitch in reply to Mark Thompson says:

        Lee and ND,

        How far are you going in your rejection of freedom of contract? Are you just saying you think the Court took it too far in Lochner, or that free market absolutists (for lack of a better term coming to mind) take it too far?

        Or are you saying that there is no level of constitutionally protected contractual liberty?

        Does the Contract Clause imply at least a basic level of liberty of contract? Or does that apply only to a state’s subsequent treatment of a contract that it has privilege parties to enter into?Report

      • Avatar LeeEsq in reply to Mark Thompson says:

        James, I’d more comfortable with freedom of contract if we had actual evidence of negotiations going on. I don’t mind there employers and employees negotiating over a contact if there are actual good faith negotiations with give or take. We won’t have a perfect balance of power, thats an impossible, but I can not support a completely off-balanced contracting process. A take or leave deal is not freedom of contract.Report

      • Avatar J@m3z Aitch in reply to Mark Thompson says:


        My auto mechanic gave me a take it or leave it offer to fix my car. He wouldn’t fix it for less than that amount. Is there no freedom of contract for me?

        I gave my neighbor’s kid a take it or leave it offer to mow my yard for $10, and would not have paid him more. Is there no freedom of contract for him?

        I had a job offer once, and told them they weren’t offering me enough, that I had to have $x more or I wouldn’t accept the job. That was a take it or leave it offer I gave them. Did they have no freedom of contract?

        If I refuse to pay Wal Mart $15 for a shirt, and walk out because my de facto take it or leave it offer is $10, is there no freedom of contract?

        Anytime you refuse to do something because you’re not compensate enough, or refuse to buy something because you’re not willing to pay that much, you’re de facto making a take it or leave it offer.

        I don’t think take it or leave it is correctly defining your real concern here.Report

      • @leeesq

        The Supreme Court was acting in deliberately partisan and conservative matter since the Progressive Era in order to defeat as much liberal legislation as possible.

        I have a really difficult time buying this argument. It seems like, in this sentence, “conservative” means something akin to “in accordance with precedent,” especially since so much of the legislation that was overturned was done by unanimous decision. Indeed, two of the three decisions that most enraged FDR, Schechter and Radford were not only unanimous decisions but the latter was written by Justice Brandeis and the former inspired Brandeis to say to one of FDR’s people that “This is the end of this business of centralization, and I want you to go back and tell the president that we’re not going to let this government centralize everything.” Brandeis of course (a) was appointed by a Progressive Democrat (Wilson) and (b) is quite justly a liberal legend.

        Of the major cases that FDR lost prior to his scheme, 4 were either unanimous or 8-1, 4 were 5-4, and 2 were 6-3. The four unanimous or 8-1 decisions were all pretty momentous, with two taking down the National Industrial Recovery Act. The 5-4 decisions were also significant, but as NewDealer mentions upthread, Justice Roberts was a swing vote all along. Also worth noting – in one of the Gold Cases, which were three cases that nominally went FDR’s way by a 5-4 vote, 8 of the Justices actually found Congress’ actions unconstitutional, but four of those 8 (including Brandeis, Roberts and Hughes) nonetheless ruled in favor of the government on standing grounds.

        The point being that the bulk of the cases that went against FDR absolutely cannot be attributed to mere partisanship; most went against FDR because he thought he deserved to hold near-absolute power. He then went on to prove that by introducing his court-packing scheme.Report

      • Avatar LeeEsq in reply to Mark Thompson says:

        @dave, I’d place more comfort in the idea of freedom of contract if more people who advocate it recognize power discrepancies. As far as I can tell, most of them do not. Most of them live in the world where the ideal is that every contract negotiation is one on one and everything is equal even when it clearly is not. Most people who advocate for freedom of contract are against any sort of measure that could equalize the bargaining power like unions.

        And by conservative, I mean conservative. Besides the Warren Era, the Supreme Court has generally acted in away that favors the policy favored by conservatives as defined by the time period. In fact, many conservatives are argue that the Constitution basically enshrines conservative policy preferences. Maybe this is true or not true but its annoying to listen to.Report

      • Avatar J@m3z Aitch in reply to Mark Thompson says:

        The only thing missing from that opinion was a line like: “See we haven’t locked up the Chinamen and they look JUST like those Japs~~!”

        Ermm, yeah. I’m sure no Chinamen accidentally got swept up into internment camps, what with them looking just like Japs, and white cupidity and what not.Report

      • Avatar Mike Schilling in reply to Mark Thompson says:

        @J@m3z Aitch
        I think that was rare or even non-existent, as I’ve read about people who escaped internment by passing as Chinese. Remember, they were our allies during WWII, and many influential people, like Henry Luce, had strong ties there.Report

      • Avatar LeeEsq in reply to Mark Thompson says:

        Mike Schilling is right. The United States government went to great pains to ensure that Chinese Americans were not effected by anti-Japanese hysteria during WWII. This included some “charming” propaganda in Time on how to tell the difference between a Chinese person and Japanese person.Report

      • Avatar Gaelen in reply to Mark Thompson says:

        This is in some sense a reply to @dave, who’s comments I largely agree with (and who obviously knows much more about this topic than I do).

        The main problem I, and I think most liberals, have with Lochner is the the way in which heightened or strict scrutiny of legislation impinging on freedom of contract turned the federal judiciary into a super-legislature. And, while the same charge can certainly be leveled at recent liberal jurisprudence on civil liberties and privacy, the amount of legislation which impacts economic liberty dwarfs its civil liberties counterparts. This, while a difference in scale and not kind, militates (at least for me) against heightened scrutiny when judging freedom of contract–ie. it’s hard to say that a right which is not explicitly stated in the constitution should be the obstacle which blocks (which it likely would have done) so much economic regulation. Which I think helps explain why liberals (and some conservatives) look at the period and see a activist court overturning democratic attempts to deal with the severe social problems of the era (and why denunciations of the decision can also be a little hyperbolic).

        Or maybe it’s just because it resulted in decisions that we didn’t like from a policy perspective (and the answer is? . . . probably a little of both).Report

      • Avatar Dave in reply to Mark Thompson says:

        I’d place more comfort in the idea of freedom of contract if more people who advocate it recognize power discrepancies. As far as I can tell, most of them do not. Most of them live in the world where the ideal is that every contract negotiation is one on one and everything is equal even when it clearly is not.

        No, most of us recognize power discrepancies. We may disagree on solutions or whether or not anything can be done about it at all; but that doesn’t mean we’re not cognizant of it.

        Most people who advocate for freedom of contract are against any sort of measure that could equalize the bargaining power like unions.

        I’ve seen that amongst the more hardcore libertarians but no so much amongst my more small L counterparts. Speaking for myself, I could get comfortable with a multitude of different regulations. The maximum hours law in Holden v Hardy seemed acceptable to me. I have no issue with workplace safety requirements. I have no issue with laws preventing employers from requiring that they agree to a maximum compensation in the event of injury (especially in a hazardous industry). I have no issue with regulating the manner of payment.

        With the exception of workplace safety, I believe the other regulations were brought to the Supreme Court and upheld during the same era that laissez-faire constitutionalism ruled the day. That evil Lochner era!!!

        At this point, unions can’t help union members, present or future (I’m not a guy that conflates unions with individual workers – big difference in my book). The government needs to either start enforcing labor law the way it should or resort to passing something as drastic as the proposed Employee Free Choice Act (known to me as the Unionize Wal-Mart Act of 2008). I don’t see either one happening.

        And by conservative, I mean conservative. Besides the Warren Era, the Supreme Court has generally acted in away that favors the policy favored by conservatives as defined by the time period.

        Like Roe v Wade? Like Lawrence v Texas? Like Eisenstadt v Baird? Like Plyler v Doe? Like Gruter v Bollinger? Like Romer v Evans? Like the entire line of Bush-era War on Terror cases? Like NFIB v Sebellius?

        How about Kelo v New London (the conservatives dissented)?

        Sure, there are cases involving the First Amendment (Citizens United for one) and the Second Amendment (Heller and McDonald) that raised eyebrows amongst some liberals; however, they’re all good decisions (just like many of the decisions liberals approve of). I didn’t agree with the ruling in Gonzales v Carhart, but the ruling was not inconsistent with the modern meaning of the Commerce Clause.

        In fact, many conservatives are argue that the Constitution basically enshrines conservative policy preferences.

        Right. Like the section which allows Congress the power to regulate certain types of abortion procedures and intervene in state-level cases like the one involving Terri Schiavo. Don’t fret – they’re just as constitutionally opportunistic as liberals. 😉

        Maybe this is true or not true but its annoying to listen to.

        It’s no less annoying than listening to arguments involving the General Welfare Clause. In fact, the mere thought of that requires me to stop typing, hit the “Post Comment” button and go grab a handful of Advil. 😉Report

    • Avatar Burt Likko in reply to NewDealer says:

      Oh, there’s lots more. These are good, too.

      I picked ten cases because, you know, top ten. And I did it pretty fast, too, because, you know, have to run out the door and get to court on time.Report

  10. Nob Akimoto Nob Akimoto says:

    The US Supreme Court might be a little politicized, but that’s partly because it has a lot of power.

    Judicial review the level of strength given to SCOTUS is indeed rather rare in the world and something to be celebrated.Report

  11. Avatar Pub Editor says:

    So, Canada has a day to celebrate the British Privy Council overruling a unanimous decision of the Canadian Supreme Court.

    The US has July 4, to celebrate the occasion of telling the British Parliament, Privy Council, and King G3 to shove it.Report

  12. I was tempted to include Griswold v. Connecticut for its recognition of a right of privacy,

    I think finding a “right to privacy” is worthy of celebration. I have much less confidence, however, that the “right to privacy” necessarily implies freedom to choose an abortion. (I am pro-choice, but I have a hard time finding pro-choice policy implied in a “right to privacy.”)Report

    • Avatar BlaiseP in reply to Pierre Corneille says:

      Roe said it was a Due Process problem and a right to privacy issue.


      The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v. Georgia, 394 U.S. 557, 564 (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 8 -9 (1968), Katz v. United States, 389 U.S. 347, 350 (1967), Boyd v. United States, 116 U.S. 616 (1886), see Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v. Connecticut, 381 U.S., at 484 -485; in the Ninth Amendment, id., at 486 (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U.S. 390, 399 (1923). These decisions make it clear that only personal rights that can be deemed “fundamental” or “implicit in the concept of ordered liberty,” Palko v. Connecticut, 302 U.S. 319, 325 (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12 (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541 -542 (1942); contraception, Eisenstadt v. Baird, 405 U.S., at 453 -454; id., at 460, 463-465 [410 U.S. 113, 153] (WHITE, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925), Meyer v. Nebraska, supra. This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. Report

    • Avatar Brandon Berg in reply to Pierre Corneille says:

      Agreed on both counts. I’m all for abortion on demand, but Roe v Wade was a crock, constitutionally speaking.Report

      • @brandon-berg

        I’m curiously (sincerely so): what are your thoughts on the right to privacy? Not whether it ought to apply to the state’s authority to outlaw abortion, but the right to privacy in general. Do you think it exists as a claim against the state? Was Griswold rightly and reasonably decided?Report

  13. Avatar Shelley says:

    Be nice if we could teach people/students too that being a “good judge” is based on knowledge of the law, not on adherence to Republican ideas.

    They’re a tad shaky on this concept in Texas.Report