A conservative judge just made it even harder to stop covid

 By Leah Litman

 Leah Litman is an assistant professor of law at the University of Michigan Law School and host of the podcast "Strict Scrutiny," about the Supreme Court.

September 17, 2020 at 8:42 a.m. EDT 

A federal judge this week struck down as unconstitutional statewide shutdown policies ordered by Pennsylvania Gov. Tom Wolf (D) to curb the coronavirus. On its own, that is significant — a judge second-guessing a governor during a public-health emergency — but equally notable is how the court arrived at its conclusion. U.S. District Judge William S. Stickman IV put forth an array of objections to the orders, including they violated residents’ First Amendment rights of association and were not tailored to take account of differences in viral spread in different parts of the state. He also argued the governor was not owed any special deference from the court because he was dealing with an emergency.

But what was most striking — what reveals the radical nature of the opinion — is that Stickman leaned on a discredited 1905 Supreme Court decision, Lochner v. New York, in arguing Pennsylvanians had the due process right to choose how to earn a living, even during a pandemic. Until this week’s case, Lochner had been consigned to the dustbin of history. Lochner specifically held that states could not impose maximum hour restrictions on bakers, because that would infringe the bakers’ freedom to work long hours if they chose. But more broadly, Lochner read a theory of “economic liberty” into the Constitution, thereby blocking all sorts of government regulation of working conditions and wages until the mid- to late 1930s, when judges effectively wrote off the decision and departed from its reasoning.

Today, of course, states and the federal government regulate working conditions and wages extensively — although libertarians occasionally express the desire to revive the Lochner perspective.That a district court judge would cite the decision shows how consequential President Trump’s stacking of the courts has been. The committed ideologues he has appointed — Stickman joined the district court in 2019 — stand in the way of effective public-health policy and will promote the Republican Party’s political agenda for decades to come. This case shows they will do so even if they have to turn back the constitutional clock.

The Pennsylvania case involved challenges to two measures — one that restricted the size of gatherings and one that closed “non-life-sustaining” businesses. The specific orders have expired, but the court reviewed their constitutionality because the orders could “be re-imposed” at any time. The court acknowledged the policies were “well-intended effort[s] to protect Pennsylvanians from the virus” but nonetheless held they violate numerous provisions of the Constitution.

That includes, in the judge’s view, the Due Process Clause. When Lochner was decided, “due process” protected workers’ rights to enter into any sort of agreement with employers, no matter how unfair (and regardless of what legislators wished). The judge seemed to be aware that this is no longer the case, writing “the emphasis given to economic substantive due process reached its apex in the Lochner era” before it was “considerably recalibrated and de-emphasized by the New Deal Supreme Court and later jurisprudence.” But still, the judge concluded, “The Supreme Court has never repudiated the recognition that a citizen has the right to work for a living and pursue his or her chosen occupation.”

Really? Not only are maximum-hours and minimum-wage laws now standard (if often flouted), the court has also upheld laws that strictly limit certain occupations and trades: States can prohibit opticians from fashioning new eyeglasses based on an old prescription, for instance, and (in a case that explicitly rejected Lochner) forbid non-lawyers to work as debt adjusters.

It’s true the court never explicitly overruled Lochner. But in a 1933 case, the court said states are “free to adopt whatever economic policy may reasonably be deemed to promote public welfare.” Whereas Lochnermeticulously scrutinized whether New York’s maximum hour laws was carefully tailored to the state’s goals and concluded New York did not have enough evidence to single out bakers, the court later held a state need only show a regulation is “reasonable” and “adopted in the interests of the community.” “The doctrine that prevailed in Lochner … has long since been discarded,” the Supreme Court wrote in 1963. That may not be an explicit overruling, but it’s close.

The modern court has made clear states are entitled to particular deference “in areas of social and economic policy” and need only show “there is any reasonably conceivable state of facts that could” justify its policy. Applied to the Pennsylvania situation, this due process analysis could not be more straightforward: Large gatherings and nonessential businesses risk becoming super spreader events, and so the state can reasonably restrict them.

That a judge would attempt to revive Lochner is genuinely shocking. In a 2011 article, law professor Jamal Greene identified Lochneras part of the “anticanon” — among the handful of the very worst decisions by the court, one of a set of cases that “all legitimate constitutional decisions must be prepared to refute.” Law professor Richard Primus has summarized its status in this way: “Lochner v. New York is never cited for its legal authority … [I]t is well understood among constitutional lawyers that relying on Lochner would be a pointless, if not a self-destructive, endeavor.”

Apparently Judge William Stickman IV thinks he knows something everyone else does not. His decision is an act of judicial insurgency that we can expect other Trump nominees to the federal bench, of which there are many, to repeat. Trump and the Republican-controlled Senate have confirmed more than 200 federal judges in just four years. By comparison, over eight years, President Barack Obama confirmed 329 judges. Trump has also confirmed almost twice as many jurists as Obama to the influential courts of appeals. The judges Trump has nominated are also young; The average age of a Trump nominee is mid- to late 40s, whereas the average age of an Obama nominee was mid-50s. Stickman is in his early 40s and could serve on the bench for another four decades.

In one famous case, the court said decisions over the course of the 20th century “signaled the demise of Lochner.” The observation came in Planned Parenthood v. Casey, when the Supreme Court declined to overrule Roe.

The mention of Roe prompts a question: If Trump’s nominees feel free to reinvigorate Supreme Court decisions that the Supreme Court has said are no longer good law, will they also ignoreSupreme Court decisions that the Supreme Court has said are still sound law? If Stickman’s reckless disregard for precedent this week is any guide, the answer may very well be yes.