Friday, January 22, 2010

The looming return of Lochner

I know I've already blogged about this, but I cannot tell you how much the opinion in Citizens United bothers me. In fact, it disturbs me so much I may even post about it as much as I do the Late Night Talk Show Wars -- it's that important!

I put up the "not so much snark" description of Dave Weigel yesterday. However, no CEO of a company making such a profit and salary through tax payer assistance is going to leave for a job so limited in compensation. It will be pass through the trough of someone like the Chamber of Commerce. The latter is now free to endorse all the Birthers and Global Warming deniers it wishes - because all those FoxNews-aired commercials about how awesome overturning the minimum wage and maximum hour laws will be highly pervasive. Being for workers compensation laws as the "new" height of treason can be found in your 2010 political advertising.

The justices easily could have ruled on narrow statutory grounds. Instead, last summer, they announced a rushed re-argument, making clear they were itching to overturn a century of constitutional doctrine, even though the case offered no factual or trial record on the broad question of corporate spending. This week the justices struck down laws in 22 states and overturned key decisions from 1990 and 2003 -- all in the middle of a new election cycle. It is hard to remember an instance where the justices reached so far to make major constitutional law. It will have immediate political consequences. Business managers now will be able to spend at will Bloomberg-level sums in congressional races across the country. In partisan and political impact, this rivals Bush v. Gore.

And where will the Roberts Court go next? Those "non-activist" judges have managed to ignore precedent and create new pro-business laws yet again.

When will this five-judge majority officially bring back the Lochner Era...just for old-times sake?

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