Originally published on RealClearPolicy.com
The Republican Court is systematically eroding working-class prosperity. Its crusade receives little attention, but gives noncollege men and women a huge stake in the midterm elections.
Liberty of Contract Doctrine
The creation of a large U.S. middle class was a New Deal construct. That remarkable achievement was made possible by the Supreme Court’s 5-4 vote in Parrish in 1937 rejecting the prevailing Darwinian liberty of contract (LC) doctrine. That pivotal vote featured Justice Owen Roberts surprisingly abandoning his fellow conservatives in the famous “switch in time that saved nine” to support the Court’s four progressives — rendering unnecessary FDR’s effort to expand the court.
The LC doctrine is an obscure artifact today, but its presence or absence in American law is the fulcrum determining whether a prosperous middle class can exist. The doctrine construes the concept of liberty in the Constitution to mean employers and employees must be free to strike their own worksite bargains on wages, hours and the like without third party interference. By banning government regulations or unions, the LC doctrine embraces the upper hand enjoyed for time immemorial by employers. This predatory doctrine was constitutionally affirmed in the Lochner ruling by the Fuller Court in 1905 (yes, the same Fuller court that issued Plessy v Ferguson in 1896).
Parrish ended the Lochner LC era and was followed by a transformational wave of New Deal initiatives supporting workers including the Wagner Act (National Labor Relations Act) and the Fair Labor Standards Act. Coupled with a postwar generation of unusually progressive corporate leaders, these union/worker-friendly government regulations were directly responsible for emergence of the greatest middle class in world history.
Judicially Embraced Predation
That supportive and bounteous post-war environment for working class men and women was ended by Reagan. It has been followed by a half century of sluggish wages for the bottom two-thirds of families even though working class incomes kept rising in other rich democracies. Falling behind, the U.S. now has only the 20th highest standard of living.
This on-going era of stagnation is the direct consequence of three public policies hobbling government support of working class economics and unions. First, the Republican Party has been aligned for a half-century with corporations and the wealthy — both quite effective at extracting value from workers with offshoring, union-busting, independent contractors and the like. Second, both the Obama and Clinton administrations minimized unions, and the latter supported offshoring. Third, chance and chicanery have given the Republican Party a Supreme Court majority busily issuing rulings supporting that Party’s corporatist agenda — notably its embrace of pay-to-play politics enabling American public policy to be dominated by conservative donors. Their rulings exhibit a pattern of hostility to employees, labor unions, higher wages, minimum wage laws, and workplace safety. Legal scholars, jurisprudence experts and analysts view the Court since 2005 as the most pro-business, anti-worker in at least a century: “the six justices with the most pro-business voting records of all time are all sitting on the court right now.”
These six are affluent conservatives whose empathy rarely extends to people unlike themselves. And their arrogance is certain to further deny prosperity to working class men and women.
A key purpose of the Lochner-LC doctrine is wage suppression. And their serial rulings weakening wages have convinced seasoned lawyers and court experts that the Republican justices are de facto resurrecting Lochner LC. After all, conservatives and various law professors have argued that resurrection is justified by the notion of originalism. (Originalism also provides the logic for the Dobbs decision: Since the right to an abortion is neither mentioned in the Constitution nor deeply rooted in U.S. history, the six anti-abortion Republicans ruled the practice lacks constitutional legitimacy.)
In reality, originalism is a sham, a faux concept whose sole purpose is to provide a veneer of seemingly legal provenance to justify a predetermined Court ruling like Dobbs. Constitutional experts agree. Laurence Tribe, for instance, dismisses originalism as incoherent as a legal principle or constitutional philosophy and notes it was rejected previously by the Supreme Court in Lawrence, 2003. Tribe fears the Court’s enthusiasm for such “dangerous and damaging” ideology risks to…
“return our jurisprudence to a preindustrial, agrarian world. It’s all but unthinkable … horrendous.”
Expand the Court to Protect the Working Class
If you believe fears of resurrecting a lower-case Lochner-LC era is alarmist, you haven’t been paying attention. The Republican justices have stripped long-standing rights on abortion, voting and gun safety from huge cohorts of Americans. And they have been steadily eroding collective bargaining for years even though 71% of Americans view them favorably and California has embraced sectoral bargaining. Further Court rulings targeting regulations and unions now economically nurturing the lower two-thirds of Americans seem inevitable. Indeed, prominent conservative commentators are urging the Court to do exactly that to block Biden’s efforts to protect the livelihood of workers with stricter antitrust laws.
The most effective remedy to shield working class men and women from court predation is for the Biden administration to add new justices. The other option is stripping the Court of jurisdiction to review worksite laws; legal scholars agree that Article III, section 2 of the Constitution clearly grants Congress that power, and the Supreme Court in McCardle, 1868 agreed. Jurisdiction stripping has advocates and critics, but is not a certain panacea. In contrast, Supreme Court expansion is a common practice, most recently by Republican governors in Arizona (2016) and Georgia (2017) and is constitutionally compliant.
The economics of working-class men and women will assuredly grow more fragile if Democrats fail to expand or otherwise neuter the Republican Court. Education is important. But, issues like right-to-work laws, collective bargaining and independent contracting dictating their lifetime economic prospects — and are on the midterm ballot as assuredly as abortion and voting rights. That gives them an enormous — if deeply unappreciated — stake in supporting Democrats in the midterm elections.
And it gives Democrats an opportunity to regenerate the New Deal working class coalition and the era of middle-class prosperity that followed.