In a world in which liberals and conservatives disagree about almost everything, there is one important point on which surprising numbers of liberals and conservatives agree: They view the Court’s modern substantive due process decisions as repeating the constitutional wrongs of Lochner. In this Article, we draw on the history of modern substantive due process cases to refute the Lochner objection and to show how these cases demonstrate the democratic potential of judicial review often questioned in contemporary debates over court reform.
In the late 1930s, the Court repudiated Lochner while affirming the importance of judicial review in securing our constitutional democracy. In Carolene Products Footnote Four, the Court famously staked out a continuing role for “more searching judicial inquiry” in cases where “prejudice . . . tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities.” Yet our understanding of the Carolene Products framework dates not to the 1938 decision but instead to the 1980s. In Democracy and Distrust, John Hart Ely developed Footnote Four into a liberal theory of representation-reinforcing judicial review that endorsed decisions protecting certain rights— voting, speech, and equal protection, specifically Brown v. Board of Education— and repudiated decisions protecting other rights—specifically substantive due process. Ely published his attack on substantive due process in 1980, just as conservatives elected President Reagan to overturn Roe v. Wade.
With the benefit of the intervening forty years, this Article revisits and reassesses Ely’s now-canonical interpretation of the Carolene Products framework. We answer the “Lochner objection” by showing how modern substantive due process claims were candidates for close judicial scrutiny in the Carolene Products framework; how the claimants’ strategies of “speaking out” and “coming out” were efforts to be heard in democratic politics; and how bottom-up mobilization around courts can be democracy-promoting in ways that Ely did not imagine. In short, we show that Ely had the big idea that judicial review could be democracy-promoting, but he argued his case on faulty premises. Democracy and Distrust bore significant influence of the traditions and the cultural forces Ely argued against. We show what Ely missed, not because we imagine federal courts are now likely to act as they did in the 1970s, but rather because Ely’s framing of these cases has become dominant and shapes the ways Americans continue to debate the role of courts. We examine the arguments of the claimants in the modern substantive due process cases—then unrepresented in positions of legal authority—and reason about their cases in light of scholarship on the ways family structures citizenship, and on the different roles of courts in a democracy, that has evolved in the four decades since Ely wrote.
What might this reconsideration of the modern substantive due process cases suggest about the ongoing debate over the role of federal courts in a constitutional democracy? This Article does not engage with the particulars of court reform, but it does shed light on certain fundamental premises of that debate. Our analysis rules out one commonly cited justification for reform: that judicial restrictions on legislative sovereignty are by definition antidemocratic and that the modern substantive due process cases are the classic illustration. We show the many ways in which judicial intervention in these cases was democracy-promoting. As one looks at concrete lines of cases and structural features of courts, one can ask about the democracy-promoting and democracy-inhibiting ways that courts perform and pose more discriminating questions about the goals of court reform—whether to adopt reforms that make courts more independent, less polarized, more open, and more democratically responsive, or to limit their role in all or certain areas of a democratic order.