David Strauss Looks at History and Future of the "Activist" Supreme Court

After the Kagan Hearings, Back to an Activist Court?
David A. Strauss
History News Network
July 12, 2010

For the last fifty years or more, American constitutional law has lent itself to an easy caricature.  If you were a liberal, you thought that liberals wanted to use the courts, justifiably, to protect minorities and other disadvantaged groups:  African Americans, women, gays and lesbians.  If you were a conservative, you thought that liberals were asking the courts to invent rights that did not exist, and were rushing to the courts because they were unable to win elections.

But things were not always like that.  In the first decades of the twentieth century, the roles were reversed:  liberals accused conservatives of inventing non-existent constitutional rights because they did not like decisions made by the duly elected branches of government.  Now, after the hearings on Elena Kagan’s nomination to the Supreme Court, there is lots of evidence that the easy caricature of the last fifty years is off base and that we have returned to something more like the dynamics of the early twentieth century.  The conservatives are looking to the courts for salvation; the liberals are preaching “judicial restraint.”

From the late nineteenth century to the mid-1930s, the U.S. Supreme Court declared unconstitutional a variety of social welfare and regulatory laws that Congress and the states had adopted to deal with the increasing industrialization and urbanization of American society.  The best-known case of the era was Lochner v. New York, decided in 1905, in which the Court declared unconstitutional a New York law that limited the number of hours that employees could work in a bakery. A majority of the Court said that that law infringed on the “liberty of contract” guaranteed by the Constitution.  The Court also struck down child labor laws, minimum wage laws, business licensing laws, and other similar regulations.

David A. Strauss