Sotomayor passed the Lochner test — VOICES for REASON

There was never any doubt that the Lochner litmus test would certify Sonia Sotomayor as a Supreme Court nominee acceptable to the Senate. As I noted in my Objective Standard article, “Justice Holmes and the Empty Constitution,” the 1905 case of Lochner v. New York (which struck down a maximum hours law for bakers) furnishes a tool for discerning a judge’s fundamental view of the Constitution:

• Is the Constitution a document of liberty, designed (perhaps with some errors) to preserve individual rights against government power? If a judge thinks so, then he or she is likely to regard the Lochner Court’s decision as a proper result (albeit perhaps reached by a debatable analysis).

• Or is the Constitution an empty vessel, devoid of any principles protecting the individual against the state? If that is a judge’s view then he or she will join the almost universal chorus of legal professionals who believe Lochner was wrongly decided.

This means that a judge who disapproves of Lochner is likelier to have smooth sailing in the Senate than a judge who sees any merit in the case. As I wrote in that article:

In this post-Lochner world, it is not intellectually respectable to hold that the Constitution embodies any particular view of the relationship between the individual and the state. A judge who dares to suggest otherwise will inevitably be accused of resurrecting Lochner. And a judicial nominee who fails to pledge allegiance to Holmes’s empty Constitution may be grilled and required to recant, on pain of losing a confirmation vote.

Consider two examples. Clarence Thomas, before being nominated to the Supreme Court, had said in a speech that “the entire Constitution is a Bill of Rights; and economic rights are protected as much as any other rights.” When Thomas’s nomination reached the Senate, noted liberal constitutional scholar Laurence Tribe opposed confirmation in a New York Times op-ed that said: “Thomas would return the Court to the Lochner (1905) era—an era in which the Court was accused of sacrificing the health and safety of American workers at the altar of laissez-faire capitalism.” Thomas later went on the record as rejecting a return to the Lochner approach and endorsing the line of cases that discredited the majority opinion. The Senate then confirmed his appointment, but by a razor-thin margin (52–48). Similarly, in another confirmation fight fourteen years later, a young senator (and former law professor) named Barack Obama spoke out against the nomination of California appellate judge Janice Rogers Brown to the federal bench. It seems that Brown, in a public speech, had dared to disagree with Holmes, asserting that his “Lochner dissent has troubled me—has annoyed me—for a long time . . . because the framers did draft the Constitution with a surrounding sense of a particular polity in mind. . . .” Obama leaped to the attack: “For those who pay attention to legal argument, one of the things that is most troubling is Justice Brown’s approval of the Lochner era of the Supreme Court.” Predictably, Brown backtracked during her confirmation hearings, pledging that she would not really pursue a Lochner approach. She was then confirmed, narrowly, by a 56–43 vote.

As President Obama and the Senate gear up to select a replacement for retiring Justice David Souter, the Lochner litmus test will once again serve as a powerful tool for identifying a nominee’s fundamental approach to construing the Constitution. The alternatives embodied in Lochner will be trotted out once again, and candidates will be invited to condemn the discredited majority approach and endorse the Holmesian view.

Predictably, when Texas Sen. John Cornyn of the Judiciary Committee asked for Sotomayor’s opinion on the case in writing, she responded by saying that the “reasoning in Lochner v. New York, 198 U.S. 45 (1905), has been criticized by the Supreme Court, and that case is now widely regarded as wrongly decided.” Since she would not dream of claiming that the Constitution embodies the principle of individual liberty, she would never endorse a case that interpreted the Constitution that way.

Once again, the Lochner litmus test had served its purpose. By her answer, Sotomayor signaled that there was no danger that she would interpret the Constitution as a charter of liberty. And now the Lochner test goes back on the shelf, ready to ensnare any future judicial nominees who might dare to interpret the Constitution as a principled barrier to government power.

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