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Rebuttal to ThinkProg's article about Justice Willett of Texas
10-13-2017, 05:32 AM,
Post: #1
Rebuttal to ThinkProg's article about Justice Willett of Texas

Quote:Best known outside legal circles for his Twitter feed, @JusticeWillett, the Texas Supreme Court justice — and now a Trump nominee to a federal appeals court — tweets largely apolitical commentary about Calvin and Hobbes, his children, and Oxford commas.
Yep, that and his #NeverTrump advocacy, which ThinkProg conveniently neglects to mention throughout this article condemning him.

Quote:When I met him a couple years ago at a gathering of the conservative Federalist Society, he was genial, thoughtful, and surprisingly familiar with my work. The man knows how to endear himself to people.
I don't know why the writers of ThinkProg are at the Federalist Society. Mildly surprising, but hey, they're journalists of a biased sort, and Texas (among other states) has a democratically elected Supreme Court. Thus, it shouldn't surprise me that the writer from a left-wing media site would visit there -- and it doesn't surprise me that Justice Willett would know about left-wing legal works.

Quote:In a 2015 opinion laden with libertarian tropes and selective history, Willett called upon his court to revive a defunct doctrine once used to strike down minimum wage laws and gut workers’ right to organize. It’s a doctrine that that three of the Supreme Court of the United States’ most conservative members recently called out as “discredited” and “unprincipled.”
Notice a few things about this:
1. This is a concurring opinion. Concurring opinions vary from actual majority opinions as they are merely statements of opposition with justifications, not "true" legal opinions meant to have the force of law. They support an overall governing consensus of a court, but include a lot of stuff you wouldn't find in an actual majority opinion because they're meant to basically serve as inspirational documents for people in law school, or just people in general because US judicial politics is a really big deal. For instance, it could have been to appeal to Texan the way, Justice Willett will be up for reelection in 2018, if he isn't Judge Willett by that time.
2. He didn't invoke Lochner v. New York to do either of these, and it isn't a defunct doctrine.
3. I looked through the article ThinkProg linked and only found one SCOTUS Justice call Lochner discredited.
4. Roberts is known for being the deciding vote in favor of granting the government to authority to buy private products as a form of tax -- which is a liberal/left-wing judicial thing in the US. Furthermore, he instead states that conservatives' ambitious ideas like enforcing Lochner are too much to ask for right now, because the Left is overrunning us with claims that gay marriage is written into the Constitution -- a ruling that ThinkProg supports in the article.

Quote:There are a handful of past Supreme Court decisions that belong to the constitutional “anti-canon” — the pro-slavery decision in Dred Scott, the Court’s pro-segregation decision in Plessy v. Ferguson, a 1918 decision striking down child labor laws. These are the sort of cases that law students are taught never to cite favorably in a brief. When they do come up in litigation, it is typically because one party accuses the other of make an argument reminiscent of an anti-canonical case.
1. Dred Scott is abrogated, having been undone by constitutional amendment.
2. Plessy v. Ferguson was actually overturned.
3. Yes, Hammer v. Dagenhart overturned United States v. Darby Lumber Co.. It's no longer canon.
4. I find the term "anti-canon" bizarre as only 2 of these decisions are really about the kind of thing SCOTUS actively finds unconstitutional. The third doesn't actively find child labor unconstitutional, but allows the government to regulate or prohibit it.

Quote:Until recently, Lochner v. New York — which struck down a New York law providing that bakery workers could not work more than 60 hours a week — was viewed as part of the anti-canon by all but a fringe group of lawyers with little influence. Even Robert Bork, the Reagan Supreme Court nominee denied a place on the Court due to fears he was too rigidly conservative, labeled Lochner an “abomination” that “lives in the law as the symbol, indeed the quintessence of judicial usurpation of power.”

Call me when the right of contract is no longer living in the law. By the way, ThinkProg actively promotes a series of Supreme Court rulings which determined the following:
1. Female hygiene products could be shipped by USPS despite the law prohibiting it, because some of them were non-contraceptive. (Applying it to contraceptive ones based on that logic, in and of itself, is judicial usurpation of power.)
2. Therefore, married couples had the right under the Constitutional right of liberty (cited by Lochner) to use contraceptives, through the fact it is implied by the protection from unwarranted search and seizure. In other words, Constitutional court warrant requirements == right to contraceptives for married people.
3. Based on the fact married and single people must enjoy equal protection of the laws, all US citizens have the right to contraceptives.
4. Based on the prior court rulings, the "born or naturalized" provision of the Constitution strips the unborn of all legal protections, including murder, but mandates protection of those who are not naturalized to be protected by the law as equal to citizens.
5. Based on the preceding, the US Congress must allocate a budget to the air transport of women who get unregulated botched abortions that are part of the Constitutional right to liberty to emergency rooms.

This is ridiculous. Bork opposed usurpation of power by the judiciary, yes -- but 1-4 were the example most debated at the time, as Lochner has not been enforced by the Supreme Court (while it hasn't been overturned either) for aeons, and #5 was a SCOTUS case after he died. Lochner v. New York set the precedent for it by saying the right of contract is guaranteed by the right of liberty, which is a subset of US Constitutional rights outlined by the following text:

No State shall [...] deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Contracts are something you would reasonably restrict if someone were convicted of, for instance, contract fraud or forgery. Would you convict someone and order "You may not use contraception!" as a penalty?

Not really. However, the Supreme Court has stated that you can forcibly sterilize a person as a punishment for a crime.

Quote:Lochner provided the basis for a host of decisions preventing progressive regulation of the workplace. Indeed, [...] the Supreme Court effectively read a laissez-faire orthodoxy into several provisions of the Constitution, [...].
I consider laissez-faire to mean something more than Lochner's right of contract. True, Lochner was gutted after like 8 of the 9 SCOTUS Justices were appointed by a Socialist. However, both Bills of Attainder* establishing government-backed monopolies like AT&T (which Reagan broke up) and laws breaking up monopolies such as the Sherman Anti-Trust Act are not laissez-faire. A lot of other laws, such as regulations on food etc., are also contrary to laissez-faire orthodoxy.

* I'm using the phrase "Bills of Attainder" to note that patent/copyright/trademark-based monopolies are acceptable in a laissez-faire worldview. Giving AT&T control over phonelines is not.

Quote:[...] a group of mostly libertarian legal scholars have sought to pull Lochner out of the anti-canon (one of the seminal texts of this movement is named “Rehabilitating Lochner“). Combining [...] dubious relevance, ad hominem attacks on Lochner‘s opponents, and doubtful historiography, these scholars seek to restore Lochner [...].
1. I looked through the "Rehabilitating Lochner" article they linked. Instead of actually telling me what the arguments are, it seems to be a synopsis which links to the actual book without actually restating its arguments. I guess now I see why liberals can't stand being linked to critiques. You can't see the original PoV. So I didn't even read the "implications" page and I'll tell you what I think the pro-Lochner arguments were.
2. In regards to "dubious relevance," I can't tell what ThinkProg is referring to -- Ian Milhiser, the writer, is seemingly taking a selectively textualist PoV as liberals traditionally have done for Lochner. Thus, it could be that ThinkProg is referring to the heavily precedence-based argument presented on the Amazon book page as having dubious relevance...however, due to the fact "doubtful historiography" is also mentioned, I'll say that historical restriction of blacks' right of contract by the government before the passage of the Fourteenth Amendment (which was mostly intended to grant civil rights to blacks) was likely a prominent fact leading to the belief that right of contract is part of the right of liberty. However, this too is historical, and therefore could fall under "historiography".
3. The ad hominem attacks mentioned are likely not actually insulting anti-Lochnerists such as ThinkProg but referring to the fact that the New Deal Coalition which needed the ruling gutted to continue its legislative agenda actually coerced the court at the time it was gutted by overturning Adkins v. Children's Hospital. Justice Roberts, like Chief Justice Roberts today, served as a swing vote to support the economic left.
4. The "doubtful historiography" is probably the long period of precedent leading up to Lochner starting with the passage of the Fourteenth Amendment.

Quote:Which brings us to Justice Willett’s opinion in Patel v. Texas [...]. It quotes the Pope, Fredrick Douglass, Shakespeare, James Madison, Adam Smith, and Davy Crockett. And it buys wholeheartedly into libertarian ideas that would dismantle much of American government.
1. Yep. This is what I told you earlier. This is meant to get people to agree with him, and not to serve as an actual legal opinion to govern the State of Texas.
2. I actually wrote a budget where I cut all the unconstitutional government programs and then some. Let's just put aside the fact this budget is shit and all and I don't really agree with it anymore. None of these cuts are the result of Lochner compliance.

Quote:Patel is a tribute to the increasing sophistication of lawyers fighting to restore cases like Lochner. It involves both an exceptionally dumb law and a bevy of sympathetic plaintiffs. It’s the sort of case where you very much want the plaintiffs, who were represented by a law firm that specializes in Trojan Horse lawsuits seeking to launder radical legal doctrines through cases involving real injustice, to prevail even if they don’t have any good legal arguments. It’s the sort of case that tugs at the heart, and that shuts down the part of the brain that makes judges think through the implications of what they are signing onto.
It really speaks for itself. They know Justice Willett was right in this case. They use ad hominem attacks against the plaintiffs' law firm. But this case doesn't really tug at anyone's heart or anything. The law itself is just stupid and not really something that would make me cry.

Quote:Texas law required eyebrow threaders — a practice where stray hairs are removed by cotton or polyester thread — to undergo a 750-hour training course that included a great deal of material unrelated to threading. It was an extraordinarily dumb law. Any sensible legislator would vote to repeal it.

But the fact that a law is ill-advised does not make it unconstitutional. And it does not mean judges should revive long-discredited doctrines in order to take it out.
Yep. Texas wanted to require all eyebrow threaders you may want to work on your head to train for 31.5 days' worth of hours. Absurd. No one will become an eyebrow threader if they need this much training. Actually, I've signed up for jobs where the government mandates a three month training camp. It's not that special. In fact, for a lot of jobs, the government mandates that you need to go to college. That's way more than 31.5 days' worth of hours, believe me. In fact, you need that to become a lawyer in most states. And there's a lot of non-job-related material in college classrooms that you have to take to get a degree.

While it's telling us Justice Willett was wrong to vote to strike down a law restricting eyebrow threaders, the Left brings out the coathangers every time we say abortion isn't a constitutional right.

Quote:The issue with Lochner was that it read dubious “rights,” such as a right to enter into labor contracts that called for very long hours and very low pay, into the Constitution itself. Chastened by this experience, the justices who rejected Lochner many decades ago decided that they should not be trusted with such a freewheeling power to invent new doctrines with hardly any connection to the text of the Constitution. Thus, the Court held that nearly all laws should be treated as presumptively constitutional, with exceptions for laws that violate an explicit provision of the Constitution, that single out certain minorities for inferior treatment, or that harm the democratic process itself.
Yep. There's all too many "rights" that the Supreme Court has made up. They call it the penumbra. Glad you Leftists figured this out.

But no, the Justices who gutted Lochner didn't actually say that. They instead said that the law had a reasonable justification, and did not constitute a violation of the right of contract granted by the Constitution -- a far cry from today's "accessible abortion" jurisprudence, where any guy can run an abortion clinic in his living room where he takes children's lives and the government can't say "We don't wanna pay for the ER transport." as an excuse to ban it.

That said, unlike ThinkProg, I'll actually admit there's very low casualties due to abortion in this way...amazingly. It's actually suspicious, to be quite honest with you. If any guy with a medical degree could run a safe abortion clinic from his living room, why couldn't they do it illegally?

But that's derailing this.

The "exceptions" he names are not really SCOTUS exceptions.

For one, there's a lot of ridiculous stuff liberals have made up in the Constitution that has been made up by the Supreme Court, the most obvious and well-known being the Penumbra. In fact, in this article, this same writer at ThinkProg admits that there's a lot of things that the Supreme Court has basically made up, while naming not the Penumbra (which is actually an official layer of "implied rights" stacked atop the Constitution largely by district and appeals courts), but saying that substantive due process -- which is regarded as not being part of the Penumbra as part of the Right of Liberty -- is "one of the most rudderless and unbounded areas of the law".

So there's not always a requirement for it to be in the text of the Constitution, no. But what about the other two, the exceptions? Well, as for the second....

I live in the Greater New Orleans Area. In the 2000s, the William Jefferson political faction (associated to Cedric Richmond etc.)
acquired the office of District Attorney. D.A. Eddie Jordan fired all of the white people.

That's right. He gave the pink slip to every guy who was white, based on the color of their skin.

This didn't even make it to SCOTUS. The discrimination was too overt to be simply affirmative action, as would need to actually be fought over in the Supreme Court, so the Supreme Court refused to dignify it by granting it a writ of certiorari to be heard there. No, you don't need to be a minority to be singled out for inferior treatment -- although whites are a minority in New Orleans proper -- but there is precedent allowing white-majority areas to be seen as discriminating against whites, too. The law does not care what the demographic makeup of your area is.

In regards to doing harm to the democratic process itself, this is probably bundled into some sort of legislation. The VRA comes to mind. However, I'm not aware of any case of substantial importance or relevance in which due process violations have actually harmed the democratic process in the eyes of the judiciary. And really, the greatest threat to the democratic process right now is the Supreme Court using the Due Process Clause to fuck with all the laws of the states nationwide.

Quote:Willett notes that Justice Oliver Wendell Holmes, the justice who wrote the strongest dissent in the original Lochner case, also penned an odious opinion in Buck v. Bell holding that the state can sterilize individuals against their will. It’s an ad hominem argument that pro-Lochner scholars often repeat — if Holmes was so wrong in Buck, how could his opinion in Lochner be right!
I mentioned it earlier! Yep, this ruling is still on the books too, Bucko. I never said I agreed fully with Willett. While I disagree with the fact Buck v. Bell authorizes the use of eugenic sterilization against the mentally defective -- which to me comes across as non-criminal Autism etc. -- it's perfectly fine to say, castrate a rapist so he can never rape anyone ever again because the Supreme Court has prohibited the death penalty for rape. It's not under the Due Process Clause anymore, although you could argue it could constitute cruel and unusual punishment.

Quote:The Fox News of judges

If all of this discussion of legal scholarship and books written by largely unknown lawyers sounds obscure and arcane, that’s because it is. Most lawyers — indeed, most legal scholars and judges — are not familiar with neo-Lochnerite scholarship, much less the most cutting edge rebuttals to its claims. People like Barnett and Sandefur are influential in Federalist Society circles, but few people outside of the conservative legal community know who they are.
I liked that title there so I included it just so you could see.

But yep, this is all obscure and arcane alright. You wrote this entire article about some appellate court judgeship nominee about like one obscure Supreme Court of Texas decision he made in 2015. Like man, yeah, this is some obscure shit alright. If I didn't know any better, I'd say you didn't know Lochner is still on the books and the Right of Contract can still be invoked -- and still is invoked -- in federal courts of law. And this is going to be an obscure blog article masquerading as a forum post on an obscure site of a fairly arcane genre and no one is going to read it.

But I'm still gonna post my obscure, arcane post anyway. Just for fun.

To be honest, I have no clue who any of these people are myself. But I can say, without a doubt, that I'll take their extra-textual opinions over left-wing ones any day of the week. There's a reason no one reads the Constitution and creates some sort of left-wing implied welfare program or something. Nobody's ever read the Constitution and said "Oh boy, it actually says to break up monopolies!" or something. That's all federal statute. And it all has rather dubious constitutional legitimacy.

The rest goes into a left-wing rally as they recite a few left-wing talking points and basically call ThinkProg readers to action.

Have a good night.
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