What Does a 6–3 Court Mean? (Part II)
When it comes to economic matters — a different story than the culture war
In my last post on a 6–3 conservative Court (in which, yes, Brett Kavanaugh may well be the swing justice) I suggested that, when it comes to the highly divisive social and “culture war” issues, like abortion, school prayer, that at least in the short term, the 6–3 court will have the result of dividing the country even further. That can be different than some imagine: overruling Roe will not illegalize abortion everywhere, but rather lead to it being banned in most of the South, much of the Middle West, but not the east and West Coasts or Illinois.
But what about economic matters? Might the 6–3 Court recreate the jurisprudence of the Lochner era; that is, make much present economic regulation unconstitutional? Is it so long to the administrative state? What about the Affordable Care Act?
As for what this will mean more practically — are we entering a period where control of big business will be near-impossible, because of the Court and its composition?
My answer, following 3 predictions, once again is to suggest that the Big Blue State legislatures (the Big Blues) are going to be very important. That answer will make sense in a minute.
First, I would predict three things:
- That, using its statutory authority, the 6–3 majority will weaken the federal statutory regulation of the economy created by the New Deal and the 1960s. It may also knock out a lot of rules. Generally, the federal agencies will lose a lot of cases.
- The 6–3 majority will continue to use the First Amendment, and possibly the Fifth Amendment, as an anti-regulatory tool that favors the interests of large corporations; yet its ultimate reach will be limited, and;
- The Big Blues will act to strengthen the economic legislation that is weakened or eliminated by the Court
If these are correct, it suggest that
- The slightly obscure question of preemption will swim into central importance, and will possibly divide this court.
The current ongoing fight over Net Neutrality helps explain what I mean by this last point. The Obama Administration enacted a Net Neutrality rule; the Trump Administration eliminated it. But the federal effort at elimination was ultimately weakened and perhaps will be meaningless, because many States stepped in and passed State versions of Net Neutrality laws. The most significant was the California Net Neutrality law, which is roughly as strong as the federal law was.
So if States do this — replace the missing economic regulation — they may, in the case of the Big Blues, effectively set law for the nation. But the legal question will be whether what they are doing is preempted (invalid) either explicitly, or implicitly? In other words, does the existence of federal authority prevent the States from doing things when the federal government declines to act (or when the courts weaken the federal laws?)
For decades the Conservative Justices, generally supportive of state prerogatives, have been highly resistant to the idea of strong or automatic federal preemption of things that States do, so as, as Sandra Day O’Connor put it “to protect historic spheres of state sovereignty from excessive federal encroachment.” But what happens when the states are, in effect, fighting the Court’s own deregulatory program?
Will the conservatives still support “state sovereignty” when, for example, New York is strengthening its antitrust laws? Or will they lose their taste for states’ rights if they thing the states are wrong? I’m sorry to say I don’t have a strong prediction on this one. Such questions have divided previous courts in unusual ways, and they may become the new dividing line.
That leaves the question of neo-Lochnerism, that is, using the First Amendment or other Amendments to strike down federal or State economic regulation. (One preview was the striking down of state privacy laws imposed on pharmacies as violation of the First Amendment. I think this will continue apace, but unlike the original Lochner era, will be of a more limited scope that the Lochner era cases were.
The reason is that even in the hands of an aggressive Court there is some limit to what you call speech and use the First Amendment to destroy the regulation of. The Supreme Court struck down a law banning child labor in 1918. Yet today even the most talented lawyer would find it hard, I think, to find the First Amendment angle that would yield such a result. The methods used by the Lochner Court were much further reaching.
One final category of legal issues concerns pure Republican — Democratic party stuff, like voting rights, union-related stuff. Here the analysis is uncomplicated: the six Republicans will vote in ways that give their party the advantage.