Judicial Activism for me but not for thee

Back in 2002, Phyllis Schlafly’s Eagle Forum sent out this warning declaring that the judicial activism was “the biggest issue of the 2002 election.” Think about that. It was one year after 9/11 and Schlafly didn’t miss a beat. By 2005, at the height of their power controlling both houses of congress and the White House, conservative legal scholars held a meeting in Washington at which Tom Delay, then the powerful House majority whip declared:

“The sanctity of the Constitution is under assault from many different directions. “The branch of government charged with maintaining the sanctity of the Constitution no longer feels bound by the constraints of that same Constitution. The courts today recognize no limits on their authority. They legislate with reckless abandon. They overturn the will of the people as expressed through their legislative representatives. What we’re left with is an imperial judiciary that knows no bounds to its power or its tenure. This is a recipe for tyranny!

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He then brought the crowd full circle to be met with energetic applause from the room full of conservative lawyers:

“America’s founders believed that impeachment could be an effective way to keep the judiciary within its proper bounds. When judges exercise power not delegated to them by the Constitution, I think impeachment is a very proper tool.”

The 2008 GOP Platform had this to say about it:

“[J]udicial activism is a grave threat to the rule of law because unaccountable federal judges are usurping democracy, ignoring the Constitution and its separation of powers, and imposing their personal opinions upon the public.”

Even today, National Review has a recurring feature on their web-site called “This Day in Liberal Judicial Activism.” It has a part of GOP dogma for so long that all a candidate has to do is utter the words in a stump speech and the well primed crowd will cheer and hoot as if he’d just declared the end of World War II. Nothing has been more fundamental to modern conservatism than the notion that the federal judiciary must be restrained from any decision that overturned precedent (or Scalia’s time travelling mind-meld with Alexander Hamilton) lest they betray our most cherished constitutional principles.

So what are we to make of Republican Senator Rand Paul who just last week stood before the Heritage Foundation and declared, “I am a judicial activist”? (They didn’t escort him out of the building.) This piece by Ian Millhiser at Think Progress explains what Paul meant by it, which also explains why a room full of conservative activists didn’t explode in anger:

Lest there be any doubt that Senator Paul, himself an elected official, believes that the problem with American government is that it gives the people too much say over how they are governed, Paul endorses the Supreme Court’s long-ago overruled decision in Lochner v. New York. Lochner, which Paul has also praised on the Senate floor, invented a so-called “right to contract” that employers could use to resist laws protecting their workers. The idea was that the Constitution places strict limits on any laws that interfere with people’s ability to enter into contracts. So if an employer wants their employees to work 18 hours days, or if it wants them to sign away their right to unionize, or if it wants to pay them just a few pennies an hour, then the workers who agree to do so cannot seek refuge in the law even though they were forced into these jobs by desperate circumstances.

For decades, the Supreme Court wielded Lochner to strike down minimum wage laws, laws protecting the right to organize, and similar protections for workers. Lochner is now taught in many law schools as an example of how judges should never, ever behave.