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A 21st-century 'Lochner’

Like the Lochner v. New York decision from 1905, Citizens United is similarly driven by a particular brand of conservative ideology to achieve a certain result.

  • Mimi Murray Digby Marziani
Published: February 22, 2010

Originally published in National Law Journal.

Lochner v. New York, decided in 1905, is one of the most criticized decisions in the U.S. Supreme Court’s history. It is widely believed that the Court, in striking down a worker-protection law under a “liberty of contract” theory, disregarded firm constitutional principles in favor of personal ideology, ultimately substituting its policy preferences for the judgments of elected officials. In his celebrated dissent, Justice Oliver Wendell Holmes Jr. pointedly argued that “a Constitution is not intended to embody a particular [ideological] theory…It is made for people of fundamentally differing views.”

One hundred years later, Chief Justice John Roberts Jr. invoked Justice Holmes’ memory during his confirmation ­hearings: “The obligation to strike down legislation is with the judicial branch…[A]s Justice Holmes said, it’s the gravest and most delicate duty that the Court performs…We have to consider cases that raise the question from time to time whether particular legislation is constitutional, and we have to limit ourselves in doing that to applying the law and not in any way substituting ourselves for the policy choices [Congress has] made.”

On Jan. 21, poor Justice Holmes must have turned in his grave.

In Citizens United v. FEC, the Supreme Court declared that no distinction can be drawn between the First Amendment rights of individuals and corporations in the electoral context. In one swift stroke, the Court overturned at least 20 years of its own precedent, rendered unconstitutional more than 60 years of federal law restricting corporate electioneering expenditures, and annihilated the statutes of 22 states that previously prohibited election spending from corporate general-treasury funds.

This radical departure from previously well-established legal principles also gutted the 2002 Bipartisan Campaign Reform Act (BCRA). Amazingly, the Court upheld BCRA — thereby affirming the constitutionality of restrictions on corporate election expenditures — just six years ago. Since McConnell v. FEC was decided in 2003, there has been no new factual or legal discovery justifying the constitutional about-face illustrated by the Citizens United decision. Indeed, as Justice John Paul Stevens observed in his forceful dissent, “the only relevant thing that has changed…is the composition of this Court.”

Citizen United's majority opinion is simply not rooted in First Amendment precedent. Instead, it is driven by a particular brand of conservative ideology and purposed to achieve a certain result. This approach to judicial decision-making offends time-honored principles of constitutional interpretation. Even worse, it is antithetical to basic constitutional values. Lochner epitomized flawed judicial decision-making throughout last century. Thanks to the Roberts Court, we have now have Lochner's 21st century equivalent.