July 20, 2005
Little Lochners
Posted by Will Baude

All of the posts and comments on this blog about the Wisconsin Supreme Court yesterday danced around the general question of the propriety of having courts give some review to economic legislation. Call this Lochnering. (Consider Ted Frank's and Plainsman's skepticism or Christine Hurt's applause.] In response to Christine's question about what degree of generalized cost-benefit legislative review courts ought to engage in, I offer the following thoughts:

I will be the first to acknowledge that it's quite likely that there is no authorization in the U.S. Constitution for the U.S. Supreme Court to engage in such a practice. And further, there are plenty of reasons that it might be undesirable for the U.S. Supreme Court to do it. Federal judges are unelected, likely to be out of touch with the electorate, often unfamiliar with economics, unable to review more than a handful of cases, and therefore likely to have trouble creating a coherent Lochner doctrine. Their decisions would be seriously entrenched against popular review (because the U.S. Constitution is quite difficult to amend). Such U.S. Supreme Court review would be injurious to decentralized economic policy, especially since judges tend to be skeptical of the unfamiliar, and thus their decisions would tend to rein in outlying states, just as its criminal procedure jurisprudence has done. The Court also is unlikely to be familiar with the procedural and political process in every state, and therefore not particularly likely to engage in a useful Ely-style analysis of whether the law had been created by democracy as usual. All right.
But what's the practical case against a low, but nontrivial level of review by the courts of a U.S. state? Obviously, the state constitution might or might not authorize such review, but let us suppose that the voters or framers of a constitution were thinking about authorizing such review, or having gotten stuck with it, were debating whether to amend the constitution and rebuke the court. What's so bad about having states who wish to engage in Little Lochnerism?

Many state supreme courts are elected, at least in retention elections, and state constitutions are all easier to amend than the federal one is. These choices may arise from a skepticism of judicial power, but they also mean that judicial review in a given area has lower stakes, because the judiciary is less likely to have undefeatably final say. State courts tend to be more familiar with local politics and concerns, and may be better able to engage in political-process review a la John Ely. State judges, for better or worse, tend to be marginally less elite than many of their equivalents on the federal bench, and therefore presumably less out of touch with the electorate. Their efforts to bring constitutional doctrine to bear on economic legislation also will not be as injurious to federalism, since their decisions reach only a single state, and very few people believe that counties or municipalities ought to enjoy the same degree of sovereignty that states do. State courts also tend to have larger dockets, and (obviously) many more cases from a single state, so it would be more conceivable for them to craft a coherent economic-review doctrine. So, what would be so bad about a state deciding to turn its court into a low-level legislative-rationality-review-board?

There is some noise that this would be violative of separation of powers principles. This is not necessarily bad, of course-- states aren't required to separate powers in the same way the national government does, and may not particularly want to. Many states don't have a powerful near-unitary executive, vast administrative state, or jealous judiciary. But at any rate, it should be obvious that engaging in economic review if it is authorized by law is not violative of separation of powers, but rather the essence of it. Laws require courts to make substantive doctrinal judgments all the time, whether through zoning enabling statutes, civil-rights statutes like RLUIPA and RFRA, constitutional provisions like the "reasonable"ness prong of the 4th Amendment, or substantively economic statutes like the Antitrust Act or the code on trademarks.
Similarly, there is some suggestion that courts lack the institutional expertise to do economics. Somehow it seems generally accepted that they can review campaign finance legislation or school district boundaries or a school prayer policy to see whether it is constitutional, but the minute they have to do something like contemplate gas prices in Hawaii, everybody gets nervous. It is hard to imagine why. It is not as if most legislators engage in substantive economic analysis of every bill on their own. They deputize overworked staffers and take a great deal of information from competing lobbyists and then do their best. Maybe a Little Lochner state court would need a few extra clerks, but is there any reason to think that the adversarial process in court would work a whole lot worse than the adversarial lobbying process that already happens in statehouses?
It's also true that such judicial review would place limits on the ability of legislatures to log-roll, combining some provisions that each person thinks is dubious until the resultant combination is okay with everybody. How possible this would be in a Little Lochner world depends in part on the state's severability laws. But while some log-rolling may be a good thing, it is not obvious that the optimal constraints on log-rolling are zero; that is why many states have germane-amendment rules or single-subject rules. Log-rolling may make elements of the legislative process harder for the people to supervise, and also may make it easier for the legislature to weave unconstitutional provisions together with popular constitutional ones. The people might reasonably decide to authorize the judiciary to strike down the most egregious pieces of legislation.

Legislators and legislatures are highly imperfect agents for the people who elect them. This is why some states retain popular-democracy provisions and why we have authorized some types of judicial review. Surely many allegations of racial discrimination or religious oppression or unconstitutional disuniformity in state taxes involve tough and imperfect judgment calls, even when proceeding by neutral rules (which are themselves imperfest). But is there any theoretical reason why people ought to force their courts to get out of the tough and imperfect judgment calls business altogether?

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