Wednesday, April 1, 2015

Ian Millhiser's "Injustices"

Ian Millhiser is a senior fellow at the Center for American Progress and the editor of ThinkProgress Justice. He received his JD from Duke University and clerked for Judge Eric L. Clay of the United States Court of Appeals for the Sixth Circuit. His writings have appeared in a diversity of publications, including the New York Times, the Guardian, the Nation, the American Prospect, and the Yale Law & Policy Review.

Millhiser applied the “Page 99 Test” to his new book, Injustices: The Supreme Court's History of Comforting the Comfortable and Afflicting the Afflicted, and reported the following:
Injustices is the history of the Supreme Court told through the eyes of the people who've suffered most because of its decisions. The book focuses on two intertwined narratives. One describes the political and legal culture that produced justices who were willing to uphold segregation, strike down child labor laws and give wealthy donors free rein to use their fortunes to influence elections. The second portrays the lives of ostensibly freed slaves forced to work in peonage or under other forms of apartheid. It reports the mind-numbing and, at times, deadly work that children performed in factories and coal mines. And it shows how the modern Court is rapidly embracing the values that animated these older decisions.

Page 99 of Injustices is a pivotal moment in the first of these narratives. Lochner v. New York struck down a law prohibiting bakery owners from overworking bakers. It's frequently cited by lawyers as the pinnacle of judicial arrogance. More than simply an anti-labor decision, Lochner was a repudiation of the idea that America is a nation governed by the people's representatives. As I explain on page 99, the decision wrote "fear of democracy into the Constitution."

Lochner concluded, among other things, that bakeries are not sufficiently unhealthy workplaces to justify limiting the length of a baker's work day. Page 99 explains that the author of Lochner "had neither training as a physician nor any background in the sciences. Yet he took it upon himself to decide which workplaces were healthful and which ones dangerous enough to justify state intervention. And his opinion in Lochner was an invitation for every other judge in the country to do the same."

The book's discussion of Lochner is the culmination of several chapters discussing how the justices substituted their values for those of the people's elected representatives. Yet it also is one of the more technical pages in the book. The parts of the book that I am most proud of concern the book's second narrative—the stories of individual Americans who suffered dearly because of the decisions of nine judges in Washington.

There is no shortage of scholarship attacking the legal basis of bad Supreme Court decisions—and Injustices does plenty of that as well. I hope that its greatest contribution, however, will be its many pages describing the human cost of a Court that replaces the law with its own desires.
Learn more about Injustices at the publisher's website; follow Ian Millhiser on Twitter.

--Marshal Zeringue