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A New Lochner Era

In the early 20th century, the Supreme Court systematically gutted regulations to favor business and attack organized labor. Those dark days have returned.

On Wednesday, shortly before Justice Anthony Kennedy announced his retirement, he silently joined one of the most devastating assaults on organized labor in the history of the Supreme Court. In Janus v. AFSCME, by a 5–4 vote, the court’s conservative majority crushed public-sector unions, undercutting thousands of contracts that affect 5 million workers in 22 states. The immediate result will be a precipitous drop in wages and benefits for government employees and a permanent decline in unions’ bargaining power.

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Janus is the culmination of several recent 5–4 decisions in which the court’s conservatives laid the groundwork for a fatal blow to public sector unions. But its true predecessor is Lochner v. New York, the notorious 1905 decision that turbocharged the court’s pro-business interventions into health, safety, and economic regulation. This term, Kennedy helped the court revive Lochner in Janus and two other sweeping 5–4 decisions that undermined labor rights and women’s health. His successor is certain to accelerate this trend, all but ensuring an impending judicial crisis.

Justice Samuel Alito’s majority opinion in Janus is the most egregious example of Lochner-ism in modern judicial history. It reverses a 1977 decision, Abood v. Detroit Board of Education, in which the Supreme Court ruled that public sector unions may collect “fair share” fees from nonmembers to fund collective bargaining. To justify overturning Abood, Alito declared that fair share fees impose an unconstitutionally “heavy burden” on nonunion members’ First Amendment rights. Why? Because, to Alito, all union speech—including negotiations over salaries, health insurance, and child care benefits—is fundamentally political.

This analysis is sheer nonsense. Fittingly, given Alito’s unabashed hostility toward unions, it rests on the dubious presumption that demands for basic workplace benefits are inherently “political.” And it flouts precedent that gives the government wide latitude to restrict public employees’ speech, even on matters of public concern. Alito essentially carved out an exception to the general First Amendment rules for the express purpose of hobbling unions. His decision was pure partisan politics, a handout to the “right to work” movement.

Janus isn’t shy about reviving Lochner. Alito’s opinion points out that “into the 20th century, every individual employee had the ‘liberty of contract’ to ‘sell his labor upon such terms as he deem[ed] proper.’ ” To support this proposition, he cites 1908’s Adair v. United Statesa defining decision of the Lochner era. Both Lochner and Adair rested on the premise that the Constitution protects an individual’s right to sell his labor at any cost. This doctrine trammeled minimum wage and maximum hour rules, as well as laws safeguarding workers’ right to unionize. Janus restores this premise in a slightly altered form, replacing “liberty of contract” with “associational freedoms.” The upshot is the same: Laws designed to benefit labor’s ability to act collectively are inherently suspect.

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Even when this Supreme Court can’t muster the pretext to strike down a pro-labor law altogether, it can rewrite the statute to drain it of its force. That’s exactly what it did in Epic Systems v. Lewis, an equally preposterous manipulation of the law to help corporations. At issue were mandatory arbitration clauses, which force employees to forfeit their right to sue collectively and instead to file claims individually through arbitration—an expensive and complex process that strongly favors employers. In reality, few workers genuinely assent to mandatory arbitration; most are told that they can either accept it or quit.

The National Labor Relations Act prevents businesses from sabotaging collective action this way. Section 7 of the NLRA explicitly protects workers’ right “to engage in … concerted activities for the purpose of … mutual aid or protection.” But in his Epic opinion, Justice Neil Gorsuch ruled that the NLRA did not safeguard employees’ ability to sue collectively, claiming baselessly that class-action lawsuits don’t count as “concerted activities.” In the process, he gutted the NLRA, calling Section 7—which was meant to be American labor’s Magna Carta—a mere “mousehole,” undermining future plaintiffs’ ability to resolve workplace conflicts collectively. There is no legal justification for neutering the NLRA. Gorsuch simply imposed his own anti-labor ideology onto the law, shredding precedent and the plain meaning of the statutes to reach his desired pro-business result.

That is a classic Lochner trick. In Duplex Printing Press Co. v. Deering, another lowlight of the era, the Supreme Court distorted another union-friendly statute. The Clayton Act, passed by Congress in 1914, had clarified that union activities were not illegal. The Supreme Court, though, warped the measure to mean the opposite of what it said, ruling that it did not protect unions’ right to organize, strike, or boycott. In a derisive dissent, Justice Louis Brandeis chided the majority for substituting its policy preferences for the law. “It is not for judges,” he wrote, to “set the limits” of permissible labor action. That’s advice Gorsuch would do well to heed.

The same conservative majority that hamstrung unions and class actions in Janus and Epic Systems also directed its activism toward women seeking abortions. Like every other state, California has myriad “crisis pregnancy centers,” which masquerade as women’s health clinics but actually impose religious, anti-abortion ideology on their unwitting “patients.” To safeguard women against fraud and misinformation, California passed the FACT Act, which compels these clinics to post a sign providing information about low-cost reproductive health services (including abortion) provided by the state. It also requires CPCs that lack a medical license to disclose this lack of license in signage and advertising.

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Wielding the First Amendment as a sword, the court blocked the FACT Act as a violation of CPCs’ free speech. But Justice Clarence Thomas’s opinion for the 5–4 court in NIFLA v. Becerra didn’t stop there. It also questioned the validity of countless regulations by declaring that the government has little leeway to regulate “professional speech,” even in the practice of medicine. Thomas added one exception: States can force doctors to provide anti-abortion propaganda to their patients.

Thomas’ decision in NIFLA is Lochner on steroids. In the period’s most notorious cases, the court struck down health and safety regulations in the name of liberty. Lochner itself invalidated a law setting maximum hours in New York’s dirty, sometimes fetid bakeries. And in Adkins v. Children’s Hospital, the court overturned a minimum wage law for female employees and child laborers in the District of Columbia. (It had already invalidated federal limits on child labor.) The court scoffed at the notion that “the interest of the public welfare” could justify this “arbitrary” burden on “liberty of person and freedom of contract.” Just as the NIFLA court found that CPCs have a constitutional right to deceive women, the Adkins court held that businesses have a constitutional right to exploit their workers.

In her Janus dissent, Justice Elena Kagan issued a grave warning: “Almost all economic and regulatory policy affects or touches speech. So the majority’s road runs long. And at every stop are black-robed rulers overriding citizens’ choices. The First Amendment was meant for better things.” This term, thanks to Gorsuch’s fifth vote, the Supreme Court descended into radical partisanship that jeopardizes its institutional legitimacy. Kennedy’s replacement, inevitably a Gorsuch clone, will shore up a five-vote bloc to further impair labor rights, health care, and access to justice under capricious and pretextual constitutional doctrines. It will be Donald Trump’s Supreme Court. And the president’s judicial avatars will usher in a new era of Lochner-ism that subverts American democracy for decades.