"Sitting Supreme Court Associate Justice David Souter has long warned against the judicial use of constitutional arguments to invalidate Congress's authority to regulate commerce -- a tactic that could negate environmental, public-health, labor, minority, and women's civil-rights protections in one massive strike. New Federalism is not new, he contends, but will march America back to the Lochner era of the courts, which lasted from the post-Civil War period until Roosevelt's New Deal.
Joseph Lochner was a New York baker whose corporate right to force employees to work 60-hour weeks was upheld by the Supreme Court. For seven decades, the courts maintained a laissez-faire attitude about business practices, ruling that the economic sphere was off-limits to congressional regulation, and that private property, especially corporate private property, was sacrosanct. That era's policies spurred political and corporate corruption, spawning the Robber Baron industrialists, a yawning gap between rich and poor, civil unrest, labor strikes and riots, bomb-throwing anarchists, two presidential assassinations, fierce government repression, genocide against the American Indians, and the near extinction of the American buffalo. It was an era whose gross human injustices were only reversed by New Deal reforms.
In the face of a kind of Lochner-era redux, environmental groups have little recourse, Feinman fears. "Other than opposing judicial nominations, we have a real problem here. We can't just wait for the next election, or defeat a bill in Congress. With the judiciary, we are dealing with a matter of constitutional law. Once high courts rule in an area, there is nothing that can be done by executive action, or by legislation, to change things. That's the end of the story. We could see a rollback of environmental law as part of a much broader rollback of government protection of the public interest. Once again, what is good for General Motors is good for the U.S.A."