Douglas NeJaime (Yale University - Law School) & Reva Siegel (Yale University - Law School) have posted Answering the Lochner Objection: Reexamining Substantive Due Process and the Role of Courts in a Democracy (New York University Law Review, Vol. 96, 2021, Forthcoming) on SSRN. Here is the abstract:
In a world in which liberals and conservatives disagree about almost everything, there is one important point on which surprising numbers of liberals and conservative agree: They view the Court’s modern substantive due process decisions as repeating the constitutional wrongs of Lochner. In this Article, we draw on the history of modern substantive due process cases to refute the Lochner objection and to show how these very cases demonstrate the democratic potential of judicial review often questioned in contemporary debates over court reform.
In the late 1930s, the Court repudiated Lochner while affirming the importance of judicial review in securing our constitutional democracy. In Carolene Products Footnote Four, the Court famously staked out a continuing role for “more searching judicial inquiry” in cases where “prejudice . . . tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities.” Yet prevailing accounts of the Carolene Products framework date not to the 1938 decision but instead to the 1980s. In Democracy and Distrust, John Hart Ely developed Footnote Four into a liberal theory of representation-reinforcing judicial review that endorsed decisions protecting certain rights—voting, speech, and equal protection, specifically Brown v. Board of Education—and repudiated decisions protecting other rights—specifically substantive due process. Ely published his attack on substantive due process in 1980, just as conservatives elected President Reagan to overturn Roe v. Wade.
With the benefit of the intervening forty years, this Article revisits, and reassesses, Ely’s now-canonical interpretation of the Carolene Products framework. We answer the “Lochner objection” by showing how modern substantive due process claims were candidates for close judicial scrutiny in the Carolene Products framework; how the claimants’ strategies of “speaking out” and “coming out” were efforts to be heard in democratic politics; and how bottom-up mobilization around courts can be democracy-promoting in ways that Ely did not imagine. In short, we show that Ely had the big idea that judicial review could be democracy promoting, but he did not realize the full power of his own idea. Democracy and Distrust bore significant influence of the traditions and the cultural forces Ely argued against. We show what Ely missed, not because we imagine federal courts are now likely to act as they did in the 1970s, but rather because Ely’s framing of these cases has become dominant and shapes the ways Americans continue to debate the role of courts. We examine the arguments of the claimants—then unrepresented in positions of legal authority—and reason about their cases in light of scholarship on the ways family structures citizenship, and on the different roles of courts in a democracy, that has evolved in the four decades since Ely wrote.
We examine Ely’s now-dominant reading of the Carolene Products framework to decide whether and how we can rely on it to answer questions about federal courts in the twenty-first century. Scholars and advocates on the left are currently debating proposals to reform the federal courts. This Article does not engage with the reasons for court reform—which we believe are plentiful—but it does consider some fundamental questions about the role of courts in a democracy enough to rule out one justification for reform: that judicial restrictions on legislative sovereignty are by definition antidemocratic and that the substantive due process cases are the classic illustration. In different historical epochs and in different constitutional orders, judicial review has been built out and staffed in ways that can promote or inhibit democracy. Considering court reform with attention to courts’ democracy-promoting possibilities gives us an important criterion to evaluate proposals now on offer and to bridge them to other demands for court reform on the left.
And from the paper:
Looking back at the evolution of substantive due process law, we can see that liberals have an answer to the Lochner objection that neither Justice Kennedy nor anyone else on the Court has ever voiced.175 The claimants in modern substantive due process cases turned to the courts in part because they faced forms of subordination and stigma that silenced them and impeded their democratic participation. Whatever is to be said about the conditions facing the claimants in Lochner,176 claimants in modern substantive due process cases were facing the kind of deliberative blockages at issue in equal protection cases like Brown—cases understood to be paradigmatic exercises of judicial review within the Carolene Products framework. In the modern substantive due process cases, as in Brown, courts devoted “more exacting judicial scrutiny” to “legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation”177—intervening in ways that promoted the democratic integration of persons in groups long marginalized in the political process.178
Highly recommended.
