Introduction: A War for Control
Bob Zadek opened his November 2014 program by asking whether Americans truly control their own governance through the ballot box, or whether the unelected nine members of the Supreme Court shape everyday liberty more than voters do. His guest, Damon Root, senior editor at Reason magazine, had just published Overruled: The Long War for Control of the U.S. Supreme Court, and the title framed the hour: this is a war, with combatants on both sides, and the stakes are the meaning of the Constitution itself.
Root identified the combatants not as a simple left-right split but as a three-way contest. On one side sit liberals and progressives who favor judicial deference—the view that since courts are unelected, they should defer to the elected branches and the will of the people. On the other side sit conservatives and libertarians who want courts to actively police the other branches. But Root added a third front: conservatives against libertarians within the right, because the two groups disagree about which rights courts should protect. Libertarians, Root said, want courts to read the Constitution as a document that protects individual rights and restricts government power across the board—including economic rights that many conservatives are content to leave to legislatures.
Judicial Restraint vs. Individual Rights
The philosophical divide Root described is between judicial restraint and judicial engagement. Under the restraint view, courts should defer to lawmakers because they are the least democratic branch. Under the engagement view, courts are undemocratic by design—a check on the other branches—and should sometimes stop the will of the people when the Constitution requires it. Root placed himself and his book firmly in the second camp, arguing that the Constitution protects individual rights and restricts government power, and that libertarians today want courts to interpret it that way.
Zadek framed the question in terms his audience would recognize: what is the proper role of an unelected body in a democracy? The answer, for both host and guest, is that the Court’s countermajoritarian function is not a bug but a feature—provided the Court actually exercises it on behalf of individual rights rather than deferring reflexively to regulators.
Economic Rights and the New Deal
The heart of the conversation concerned a category of rights Zadek called unenumerated: economic rights such as freedom of contract and free labor. These are not listed in the Bill of Rights, but Root argued they were once protected at the same level as speech and assembly. The source, he said, is the Fourteenth Amendment and the free-labor philosophy of the abolitionists and radical Republicans who ratified it in 1868—the idea that each person owns himself and the fruits of his labor, and that as long as he harms no one, he may pursue a basic occupation without burdensome licensing.
That understanding, Root said, changed at the end of the New Deal. In a series of cases in 1937, 1938, and the early 1940s, the Supreme Court backtracked on its protections of economic liberty and announced that it would defer to regulators, lawmakers, and bureaucrats. Economic rights might exist in theory, but they would receive little respect from the courts. Since then, Root argued, the courts have acted as a rubber stamp for the regulatory state. Zadek sharpened the point: economic rights crashed into economic regulation, which grew astronomically during the New Deal and interfered with the top-down control progressives favored.
Lochner v. New York and the Right to Contract
The focal case, as Zadek noted, is Lochner v. New York (1905). Root explained that the case arose from New York’s Bakeshop Act of 1895, which regulated the baking industry in numerous ways—ceiling heights, drain pipes, and a ten-hour maximum day and sixty-hour maximum week. The Supreme Court upheld the health and safety provisions but struck down the maximum-hour rule, holding that it had nothing to do with health or safety: a worker could labor twelve hours and the bread would be just as safe. The maximum-hour law violated liberty of contract, the right of employer and employee to agree on terms.
Progressives then and since, Root said, have pointed to Lochner as conservative or libertarian judicial activism—the Court reading laissez-faire economics into the Constitution and overturning the will of New York’s lawmakers