Jedediah Purdy on the Roberts Court’s Revival of “Lochner”

Several readers forwarded to me a link to a recent article in Democracy by Professor Jedediah Purdy, with requests to comment on it.

The basic thrust of the piece is to argue that the Roberts Court has become “the judicial voice of the idea that nearly everything works best on market logic, that economic models of behavior capture most of what matters, and political, civic, and moral distinctions mostly amount to obscurantism and special pleading.”

It’s a well-written piece, and provides the best concise account of liberal concerns about the Roberts Court’s trajectory as I’ve seen. So go ahead and read it, and then come back here for my comments.

Back already? Okay, a few, non-comprehensive comments. First, Purdy inevitably compares the Robert Court’s jurisprudence to “Lochner“; inevitably because, as I’ve noted before, modern liberals for decades have habitually (and to my mind, tendentiously) analogized any attempt by the courts to in any way limit legislative regulatory authority to Lochner. To his credit, Purdy makes some effort to acknowledge revisionist scholarship about Lochner, but ultimately repeats various myths, including the myth that the Court defended “laissez-faire” and “unfettered industrial capitalism.” For a dissection of this myth, see chapters 1 and 3 of Rehabilitating Lochner. In short, not even the most radical free marketeers on the Court, Brewer and Peckham, defended anything remotely approaching the laissez-faire jurisprudence advocated by the likes of treatise writer Christopher Tiedeman. I could quibble about some other historical inaccuracies, but let’s move on.

Second, Purdy attributes the Court’s controversial Citizens United and Sorrell opinions to a version of economic libertarianism holding that (1) “the distinction between politics and markets, or principles and interests, is spurious”; (2) there is no publicly accepted measure of value except willingness to pay; and (3) therefore, “elections and other institutions should come to resemble markets as much as possible.”

I disagree. The purpose of the Court’s First Amendment jurisprudence is not to prevent the redistribution of economic power form rich to poor, as Purdy would have it. Rather, the point is to ensure that the government can’t restrict the free flow of information because that is how governments abuse their authority in favor of those already in power and their special interest cronies.

It’s one thing to allow the government to regulate the economic activity of IBM, or AFSCME. It’s another for the government that runs a massive special interest state to either decide who gets to speak (e.g., academics, newspaper editors, bloggers, “public interest groups” [update: and other members of the "cognitive elite," whose average views diverge dramatically from public median]) and who does not (for-profit corporations and unions [update: or just ordinary citizens who band together via a PAC]), or to decide what the content of one’s speech will be (see Boy Scouts of America v. Dale). So there is a libertarian rationale for the Court’s jurisprudence, but it’s not a narrowly economic rationale, much less a rationale favoring a particular distribution of wealth.

Finally, and relatedly, Purdy’s objection to the Roberts Courts’ First Amendment jurisprudence seems to be that it inhibits the ability of the democratic populace to redistribute wealth and power more equitably, and the Court may do so even more in the future if the Court limits the scope of Congress’s Commerce power in the Obamacare case. The odds, however, are very much against the Roberts Court putting any significant limitations on government power. Even during the so-called Lochner era, when there was much broader intellectual and popular support for limited government, the Supreme Court’s occasional rulings invalidating legislation were generally a mere sideshow to an ever-growing regulatory state.

Nevertheless, Purdy does illustrate for the reader the traditional Progressive/liberal mindset favoring increased government regulation because such regulation will result in more democratic outcomes, which in turn means more downward redistribution. I didn’t see, however, any defense of the notion that republican democracy inherently, or even typically, works to the advantage of the downtrodden at the expense of the powerful. Todd and Ilya could speak to this better than I, but modern political science and economic literature raise grave doubts about this assumption. Among many other problems, the wealthy, well-educated and well-connected have huge advantages in the political process.

UPDATE: On this general topic, it’s well worth reading John O. McGinnis, Reviving Tocqueville’s America: The Rehnquist Court’s Jurisprudence of Social Discovery, 90 Calif. L. Rev. 485 (2002). Although he is talking about the Rehnquist Court, it applied just as well today:

The Rehnquist Court’s jurisprudence reflects a more skeptical view of centralized democracy in an era in which there is more elite skepticism about the prospects of nationally mandated social reform than existed in the eras of the New Deal and the Great Society. Modern political science has suggested that mass national democracy often produces legislation that neither reflects majority will nor is efficient, since special interests dominate legislators while most citizens are rationally ignorant of the salient political issues. Hence, the Rehnquist Court is rediscovering the provisions of the Constitution that create alternative forums for norm creation by empowering institutions such as local governments and civil associations that engage the citizenry and restrain special interests. Such institutions decentralize the development of social norms and subject these norms to more rigorous forms of competition than centralized governance. Sustaining these structures requires a jurisprudence completely different from that of the Warren Court. If many of the Warren Court’s decisions are best understood as perfecting centralized democracy, the Rehnquist Court should be understood as protecting the conditions of spontaneous order so that norms can be discovered through competition, whether that competition occurs among states or private institutions.

McGinnis also anticipated the growing conflict between what he refers to as the old social democracy based vision of the First Amendment, and an emerging property-based vision focusing on the free flow of information. John O. McGinnis, The Once and Future Property–Based Vision of the First Amendment , 63 U. Chi. L. Rev. 49 (1996).