John Roberts, Stare Decisis, and the Return of Lochner: An Impetus to Jump-Start the Labor Movement


There are some things we take for granted, some things that seem so natural we forget that they were the result of long, hard struggle: the forty-hour work week, weekends off, the abolition of child labor, worker safety laws, and the right to collective bargaining — to name a few. But as John Roberts begins to settle into his seat as Chief Justice of the US Supreme Court and the next corporate crusader slides through a mock nomination hearing, labor activists and their progressive allies will have plenty of impetus to jump-start the labor movement.

Judges are not theoretical recluses hiding from society as they arrive at unavoidable conclusions by simply applying the rule of law to the facts at hand. We must send a clear signal to the Supreme Court, both before and after Roberts and the next new Justice are firmly seated on the bench, that certain precedents are here to stay.

Roberts on Precedent:

Our common law system is based largely on the idea of “stare decisis,” the idea that the rulings of judges are generally binding. Such a system is designed to create continuity so as to send a signal to society about what sort of behavior society will or will not tolerate, to avoid confusion certain to arise if laws are constantly changing, and to diminish the likelihood of agitating society as a whole or creating a backlash by overturning laws that are widely valued. However, as Judge Roberts put it, “[S]tare decisis is not an inexorable command” (“Transcript: Day Two of the Roberts Confirmation Hearings,” 13 September 2004). The Supreme Court can overturn precedent when it sees fit, or, in the words of Roberts, “You have to consider whether [precedent has] created settled expectations that should not be disrupted in the interest of regularity in the legal system” (“Transcript: Day Two of the Roberts Confirmation Hearings,” 13 September 2004).

If Roberts sticks to his word, large, well-organized, militant groups such as the Women’s Rights Movement should find comfort in the fact that Roberts has implicitly acknowledged that the overturning of such a key precedent as Roe v. Wade would likely lead to large-scale upheaval by the well-organized feminist movement that would shake society so forcefully that to even fathom overturning the ruling is to start trouble.

The Specter of Lochner:

But not all progressive movements have as large and strong a base of support as the feminist movement, and that could spell trouble for workers in general, if Roberts feels free to overturn precedent where there is no risk of disrupting “settled expectations.” Of particular concern is a return to the Lochner era, a time when free-market capitalists read their ideology into the Constitution by striking down statutes aimed at protecting workers’ health and safety.

The controversy in Lochner v. New York, decided in 1905, arose after the owner of a small bakery brought a lawsuit challenging the constitutionality of a New York state labor law that limited the hours employees are permitted to work in bakeries to 10 hours a day and 60 hours a week, a way of reducing the well-documented, severely adverse health effects associated with that demanding form of labor. But, the Court ruled in favor of Lochner and held that the statute violated the 14th Amendment, which, they claim, implied a right to “freely” buy and sell labor. In handing down the law, the Supreme Court of the land declared, “[T]he freedom of master and employee to contract with each other in relation to their employment, and in defining the same, cannot be prohibited or interfered with without violating the Federal Constitution.”

Although, such reasoning may seem antiquated and as silly as the ruthless justifications of slavery from days long past, Judge Roberts gave no indication that he fundamentally disagreed with the ruling in Lochner. Instead, when discussing the case, the Chief Justice-to-be said:

I guess I would think the clearest juxtaposition would be the cases from the Lochner era. If you take Lochner on one hand and, say, West Coast Hotel, which kind of overruled and buried the Lochner approach on the other. And the immodesty that I see in the Lochner opinion is in its reweighing of the legislative determination. You read that opinion, it’s about limits on how long bakers can work. And they are saying, “We don’t think there is any problem with bakers working more than 13 hours.”

Well, the legislature thought there was, and they passed a law about it. And the issue should not have been, “Judges, do you do think this was a good law, or do you think bakers should work longer or not?” It should be, “Is there anything in the Constitution that prohibits the legislature from doing that?” (“Transcript: Day Three of the Roberts Confirmation Hearings,” 14 September 2005)

Roberts managed to say nothing about the value of protecting workers’ wellbeing, by focusing solely on the error in the Court’s reasoning and declining to comment on whether he agreed with its conclusion that legislation such as the statute in question in Lochner actually violated the 14th Amendment.

An old Latin phrase, “expressio unius est exclusio alterius,” helps clarify why supporters of workers’ rights should be fearful. The phrase means, “The expression of one thing is the exclusion of another.” Roberts’ formalist response is fascinating. Not many among us would choose to focus only on whether the Court used the wrong argument to reach the conclusion that, for example, slavery should be legal or that employers may have employees work as many hours as they can, which is what is so frightening about Roberts’ single-minded concentration on how the Court reached its decision, excluding all considerations of the substance of its ruling.

Combining Roberts’ willingness to overturn precedent absent the likelihood of disrupting “settled expectations” with his clearly pro-corporate attitude and history and his dodging of what he really thinks of Lochner, it is not hard to imagine that, without a firm labor movement and a clear indication that society would revolt against a return to the Lochner era, Roberts would not mind overturning longstanding precedent and taking us back to the days of laissez faire.

Moreover, more and more workers are already performing unpaid labor off the clock, whether it be through cell phones, computers, or lunch-while-you-work. It has become almost an expectation-turned-requirement that workers for mega-corporations like Wal-Mart stay late off the clock, come in on weekends, and put in mandatory overtime. Union membership is below 13 percent, and now the AFL-CIO is split. Therefore, it seems entirely possible that, emboldened, the right-wing legislature could, in the coming years, strip away the gains of the labor movement and that the Supreme Court would codify these anti-worker policies as the law of the land. The specter of Lochner haunts us. Now is the time to

reinvigorate the labor movement and

send a clear message to the Congress and the Supreme Court that labor victories are here to stay and that expectations established by those victories are — well, how should we put it — settled beyond question.

Matthew Ford is a law student at St John’s University School of Law in New York. He can be emailed at <>.