Last week, the Supreme Court blocked the Occupational Safety and Health Administration’s vaccinate-or-test requirement for large private employers. Its reasoning rekindles a long-running and fundamental legal debate about how courts review government action. In their joint dissent, Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan made this point explicitly, writing:
Who decides how much protection, and of what kind, American workers need from COVID-19? An agency with expertise in workplace health and safety, acting as Congress and the President authorized? Or a court, lacking any knowledge of how to safeguard workplaces, and insulated from responsibility for any damage it causes?
The unsigned majority opinion took a different approach. In one of its most telling passages, it disputed the Biden administration’s argument that the risk of contracting covid is a “work-related danger,” which would fall within the scope of the statute authorizing OSHA to make regulations. “Although COVID-19 is a risk that occurs in many workplaces,” the majority conceded, “it is not an occupational hazard in most. COVID-19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather.”
In other words, the court second-guessed the Biden administration’s motives; the majority believed the agency was using its specific power to regulate occupational safety and health only as a means to impose a more general policy on 84 million American workers.
This logic harks back to a long-discredited period in Supreme Court history that culminated in the most serious constitutional crisis since the Civil War. If the court continues on this path, a similar crisis may lie ahead.
The Lochner era and the rise of judicial deference
During what scholars call the “Lochner era,” named after a 1905 decision striking down the state of New York’s maximum-hour and minimum-wage rules for bakers, the Supreme Court routinely second-guessed state and federal economic regulations. It regularly reasoned that even if the stated ends were legitimate, the underlying purposes were not. In one 1918 decision, for instance, the justices struck down a federal statute prohibiting interstate shipment of goods manufactured with child labor. The Constitution certainly authorized Congress to regulate interstate commerce. But the court’s majority argued that Congress wasn’t really regulating interstate commerce — it was using the commerce clause to ban child labor, which went beyond what the Constitution allowed.
The Lochner era ended on March 29, 1937, when the Supreme Court handed down its decision in West Coast Hotel v. Parrish. The issue in that case was modest: whether the state of Washington was allowed to impose a minimum-wage requirement for women. But in saying yes, the court’s sweeping language made clear that it was rejecting Lochner-era reasoning: “Even if the wisdom of the policy be regarded as debatable and its effects uncertain, still the Legislature is entitled to its judgment.”
In other words, no matter how much the justices disagreed with the merits of the policy they were reviewing, they would still defer to the political branches. They would start from the presumption that government acts constitutionally, rather than the presumption that it does not. West Coast Hotel heralded the end of across-the-board judicial skepticism. But did it mean that courts should never scrutinize government action?
The following year, the Supreme Court said no. In a famous footnote in United States v. Carolene Products Co. identified three circumstances in which more-searching judicial scrutiny might be warranted: “when legislation appears on its face to be within a specific prohibition of the Constitution”; when “legislation … restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation”; and when government action reflects “prejudice against discrete and insular minorities.”
For the next 50 years, the Supreme Court translated this footnote into action, in what scholars consider “modern” constitutional law. Instead of rigidly scrutinizing economic legislation, the justices focused on protecting individual rights and electoral processes, as the first two phrases suggest, and scrutinizing state and federal regulations that discriminated on the basis of race, nationality, religion and, eventually, sex.
Lochner returns
Over the past few decades, though, the justices have retreated from this understanding. Consider the 2013 ruling in Shelby County v. Holder, striking down a key part of the Voting Rights Act that required states with a history of race-based discrimination to first get Justice Department approval before changing their voting laws. The 5-to-4 majority refused to say whether it was no longer going to defer to Congress’s judgment, as promised in West Coast Hotel, or whether it was striking down the Voting Rights Act clause as egregious despite the fact that the court was trying to defer to Congress’s judgment.
In Shelby County, the justices merely announced that Congress was wrong and that those states that had once discriminated based on race no longer needed special review. This Lochner-like mentality — that it was appropriate for the justices to second-guess the legislature’s actions — has since seeped into a growing number of majority opinions and has been called out in a growing number of dissents.
In a 2014 concurring opinion, Justice Antonin Scalia, joined by Justice Clarence Thomas, suggested that the Carolene Products decision had never actually stood for the principles for which it was routinely cited — dismissing it as an “old saw, derived from dictum in a footnote” that had been “expressed by a four-Justice majority of a seven-Justice Court.” Although no other justices have publicly defended the shift, scholars have concluded that Carolene Products is no longer the court’s governing framework. In 2010, University of Chicago professor David Strauss gave a lecture asking, “Is Carolene Products Obsolete?” In 2019, Harvard professor Nick Stephanopoulos was more definitive, announcing the arrival of “The Anti-Carolene Court.”
Last week’s vaccine mandate decision makes that even more clear.
By substituting their judgment for that of the political branches, the justices’ ruling shows two things. First, the Supreme Court has discarded the deference of the Carolene Products era. And second, the court has not yet identified a coherent principle to replace it. Instead, the argument for or against the need for court deference in each specific case seems to resemble Justice Potter Stewart’s famous definition of “obscenity”: “I know it when I see it.” Such an approach is not inherently conservative or liberal. But as the Lochner era made clear, it tends to enforce the policy beliefs of the justices applying it.
Stephen I. Vladeck (@steve_vladeck) holds the Charles Alan Wright chair in federal courts at the University of Texas School of Law and is writing a book about the Supreme Court’s “shadow docket.”
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