Most Americans don’t agree with a vision of the Constitution that protects big business above all else. Sandefur seems to recognize this, noting that there is “no realistic chance” that business and property owners’ interests could be achieved through the legislative process. For this reason he argues for an activist court, requiring the federal courts to violate the Constitution’s system of checks and balances as well as discount the democratic process.
The proper role of the Court is to allow for both the political process to work and for Congress to have the ability to enact legislation that protects our rights. The Supreme Court under Chief Justice Earl Warren, spanning the years 1953 to 1969, understood this. While the Warren court is often thought of as the quintessential activist court because of its rulings in cases like Brown v. Board of Education, it’s actually the Warren court’s judicial restraint in both deferring to the people and allowing Congress wide latitude to pass legislation that best protected our rights.
The Dangers of Sandefur’s Judicial Philosophy
The only time the Warren Court took an “activist” role was if a government action infringed on a fundamental right, restricted the political process, or harmed “discrete and insular minorities.” Sandefur believes that economic regulations passed by Congress or state legislatures should receive the same heightened level of judicial review. The result would be that federal courts would have to strike down most laws passed by Congress, even if the laws are designed to protect the general welfare and civil and human rights.
This Lochner era of jurisprudence has already come and gone. The Supreme Court’s activism during this era significantly hindered the ability of the government to meet the ever-changing needs of society. Any laws Congress passed addressing sweatshop conditions, ending child labor, setting maximum numbers of working hours, or securing a minimum, fair, and livable wage were struck down under the fabricated “right to contract” legal theory.
Lochner is no longer law, but if it were restored, it would mean the federal government would not have the ability to respond to our nation’s needs. There would be no social safety nets such as Social Security, Medicare, and disaster assistance. Companies could exploit their workers, and no anti-discrimination laws would be upheld. This result may be desirable to some who believe in that school of thought, but it truly is an assault on people with disabilities, racial minorities, women, LGBT Americans, and the poor.
For example, one in three Americans lives at or below the poverty line, and almost 70 percent are women and children. Women represent nearly two-thirds of minimum wage workers, mostly working jobs that are labor-intensive. These women go without paid sick days or access to affordable child care. They tend to earn less than men – no matter their education level, profession, or position. In addition, 40 percent of America’s homes with children have a woman as the sole income earner. One way to help would be for Congress to pass nationwide paid family leave and sick day policies so a woman won’t have to choose between being able to feed her family and providing necessary family care. But under Sandefur’s Lochnerean jurisprudence, this type of Congressional action would never stand.
Judicial Restraint Allows Congress the Ability to Protect Our Rights
The federal government’s powers are divided among Congress, the president, and the judiciary. None is superior to any other. Whenever the U.S. Supreme Court rules a legislative act is beyond Congress’s inherent powers, it second-guesses a constitutional determination made by Congress and expands the Court’s power at Congress’s expense. Not only does this assert judicial supremacy, it also discounts the fact that Congress is better-suited than the courts for protecting (and expanding) our rights.
Consider that throughout history most victories protecting our liberties have been secured through the political process. During Reconstruction, Congress passed the Thirteenth, Fourteenth, and Fifteenth Amendments to abolish slavery and provide ongoing equal rights protections. In the 1930s, Congress passed New Deal legislation such as the Wagner Act, which created a right by statute for workers to organize into a union and engage in collective bargaining. It also passed the Fair Labor Standards Act, which included the right to earn a minimum wage. In the 1960s, Congress passed the Civil Rights Act of 1964 and the Voting Rights Act of 1965. Also in the 1960s, Congress passed anti-poverty laws such as Medicaid and Medicare. And most recently, Congress passed the Affordable Care Act and the Lilly Ledbetter Equal Pay Act.
The Court’s proper role in a system of checks and balances isn’t to strip Congress of its ability to pass laws that protect our rights and the public welfare. Rather, the role of the Court is to allow Congress the autonomy to do so. Otherwise, Congress, which has traditionally upheld our rights and expanded opportunity for all, will cease to be able to do so.
Democracy Informs Our Liberty Rights
Sandefur defends his judicial philosophy by arguing that liberty, not democracy, is the “central constitutional value.” To argue that democracy and liberty are in tension discredits the fact that advocacy by the people, not through the courts, has led to the expansion of equal rights and liberty protections. The truth is, the will of the people impacts our definition of liberty, which is then interpreted and applied by the courts. Therefore, liberty and democracy are not at odds; they are congruent.
For example, scholars often argue that the Warren Court’s “activist” decisions in protecting civil rights and civil liberties weren’t activist at all, but rather followed the politics of the era. The courts, just like the other two branches of government, are “influencing and influenced by American politics and its cultural and intellectual currents.” As the will of the people changes, so do our definitions of liberty, for better or worse.
Of course, there are certain agreed-upon liberties explicitly listed in the Constitution, such as an individual’s right to free speech and religious freedom, the right to a trial by jury, the right be free from unreasonable searches, and the right to be treated equally under the law and be free from discrimination. We can all agree on these liberties, and the courts should step in when these rights are violated.
But the “right to contract” and the “right to earn a living,” or what constitutes “due process” when it comes to deprivation of property rights, are not agreed-upon liberties nor are they expressly made clear in the Constitution. For liberties that are vague, it is not up to the federal courts to define on their own, but rather, as the Warren Court did, to reflect on the politics of the time, or put another way, the will of the people.
 Editor’s note: The views expressed in this essay are those of the author alone, and are not representative of the Center for American Progress. As always, all views expressed at Cato Unbound belong to their authors alone and do not necessarily reflect the views of the staff or supporters of the Cato Institute.
 Rebecca A. Zietlow, The Judicial Restraint of the Warren Court (and Why it Matters), Ohio State L.J., 264 (2007). “Indeed,” Zietlow writes, “the strongest contribution that the Warren Court made to expanding equality rights was not its judicial activism in protecting those rights, but its restraint in allowing Congress to protect those rights. …As the Warren Court understood, when minorities win in the political process, those victories are entitled to the maximum amount of deference by the countermajoritarian courts. By definition repeat losers in the majoritarian political process, discrete and insular minorities only achieve victories in that process with intense effort and years of activism. Their successful struggle to obtain legislation that protects their rights deserves respect from the courts in the form of deference to that legislation.”
 For example, the Warren court ruled in the landmark case Brown v. Board of Education that separate was not equal and ordered the desegregation of public schools.
 The Court in 1904 struck down a New York law forbidding bakers from working more than 60 hours a week or 10 hours a day. The court ruled that states could not interfere with most employment contracts because the right to “purchase and sell labor” is a fundamental freedom protected by the 14th Amendment. For more than 30 years, the Supreme Court followed this misguided jurisprudence, striking downs laws regulating labor conditions as a violation of the 14th Amendment (except, of course, when it came to sexist and racist practices that prevented women and African Americans equal “rights of contract”).
 Rebecca A. Zietlow, The Judicial Restraint of the Warren Court (and Why it Matters), Ohio State L.J., 264 (2007).
 Michael J. Klarman, Rethinking the Civil Rights and Civil Liberties Revolutions, 82 Va. L. Rev. 1, 8 (1996). “Perhaps even more devastating to the traditional understanding of Brown as a heroically countermajoritarian decision are the opinion polls showing that by the time of the Court’s intervention roughly half of the country supported racial integration in public schools.”
 Lucas A. Powe, Jr. The Warren Court and American Politics (2000).