In American constitutional law, it is common to speak of “levels of scrutiny” or “tiers of judicial review.”
Last week, John McGinnis had a characteristically insightful post on Our Two Supreme Courts. One is the political court—an aristocratic institution that restrains public passions. On that court, the justices vote their preferences on God, guns, and gays. The other is the legal court, which takes care of boring jurisdictional and CivPro-ey stuff and where the justices, acting as the good lawyers they are, often reach unanimous decisions. The only way to reunite the courts, John writes, is for the justices to bring the legal rigor that’s on display in ERISA or bankruptcy cases to bear on the high-falutin’ ConLaw issues.
I recently taught an undergraduate class on the history of civil liberties in the United States. After a class session on the U.S. Supreme Court case of Lochner v. New York (1905), a student came up to me and asked when we were going to talk about substantive due process. I should have expected the question, but I had allowed myself to forget the continuing popular resonance of the phrase. The query forced me to think a bit more about how I should teach constitutional history.
The turn-of-the-century case of the bakers and New York’s maximum working-hours law is, of course, the poster child of substantive due process, the idea that the due process clause of the Fourteenth Amendment imposes substantive limitations on the legislature. Lochner is now firmly entrenched in what law professors Jack Balkin and Sandy Levinson have called the “anti-canon,” cases that are held up as exemplars of when the Supreme Court got the legal answer dramatically wrong and as object lessons of what judges should not do in the future.