Janus, the Court’s case about public sector agency fees that will be decided this term, is a case that could be framed in two ways. On the one hand, Janus is a case about compelled political speech: the government, by imposing agency fees as a condition of employment, is requiring employees to subsidize public sector bargaining, a political activity. On the other hand, Janus is a case about economic regulation: the government, by imposing agency fees as a condition of employment, is funding an economic mechanism designed to regulate the wages and working conditions of employees. Some argue that the political speech description is a pretext to invalidate the economic regulation description.
For example, Catherine Fisk at U.C. Berkley wrote that a ruling striking down agency fees in Janus “would revive Lochner.” Fisk is referring to the 1905 Supreme Court case, Lochner v. New York, in which the Supreme Court struck down a law restricting bakers’ work hours under the theory that the law violated the Fourteenth Amendment’s liberty to contract. In doing so, the Court kicked off the Lochner era, a period in which the judiciary regularly stuck down economic regulation for impinging on the freedom to contract. That decision was implicitly overturned in 1937 in West Coast Hotel Company v. Parrish, in which the Supreme Court upheld a minimum wage law in the face of a liberty of contract challenge. Fisk is not alone; Amanda Shanor has argued that the application of the First Amendment to agency fee cases like Friedrichs and Harris is Lochnerian in nature, and Laura Weinrib has written that Janus is best viewed in the historical context of the Lochner era’s anti-union decisions and their aftermath.
These scholars, among others, are concerned with the broader assertion that the Supreme Court is using the First Amendment as a workaround to bring back Lochner’s economic deregulation. There is no shortage of scholarship identifying (and often critiquing) the “Lochnerization” of the First Amendment. In 2000, Frederick Schauer colorfully described activists’ use of the First Amendment to challenge advertising regulations, campaign finance reform, and other governmental activity. Looking into the empirics, John Coates found that “[n]early half of First Amendment legal challenges now benefit business corporations and trade groups, rather than other kinds of organizations or individuals.” The list could go on but suffice it to say that the concept of the “Lochnerization” of the First Amendment is a well-established one.
However, despite the allegations, Janus is not a Lochnerian case. Starting with the doctrine, if someone had brought a Janus-type case as a liberty to contract challenge against the government during the Lochner era, they almost certainly would have lost. In Atkin v. Kansas, the Supreme Court heard a liberty of contract challenge against the validity of an eight-hour workday requirement for contractors employed by a municipal government. The Court squarely rejected the argument, creating a broad right for the government to set working conditions for its own employees:
If it be contended to be the right of every one to dispose of his labor upon such terms as he deems best,-as undoubtedly it is,-and that to make it a criminal offense for a contractor for public work to permit or require his employee to perform labor upon that work in excess of eight hours each day is in derogation of the liberty both of employees and employer, it is sufficient to answer that no employee is entitled, of absolute right and as a part of his liberty, to perform labor for the state; and no contractor for public work can excuse a violation of his agreement with the state by doing that which the statute under which he proceeds distinctly and lawfully forbids him to do.
Thus, a Janus cause of action in the Lochner era almost certainly would have lost under Atkin because agency fees, like the eight-hour workday requirement, are a condition of public employment to which no one is absolutely entitled.
So, if neither Lochner nor its progeny would have resulted in a victory for Janus, what exactly makes a victory for Janus Lochnerian? Shanor contends that a holding by the Court resulting in economic libertarianism could be considered, by definition, Lochnerian. Fisk argues that a ruling for Janus would constitute a return to “judicial activism, politicians in robes substituting their deregulatory views of labor policy for those of the elected representatives.” Thus, the case for Lochnerism seems to be that the Court in Janus is furthering the broader trend of using the First Amendment for economically libertarian judicial activism. Even granting that premise as true for the sake of argument, two points demonstrate that this theory is still problematic.
First, alleging that one’s legal opponent is engaging in Lochnerism is not a neutral, descriptive term; it is an allegation that the opponent is fundamentally wrong and probably disingenuous. Lochner has reached the status of an “anticanon,” meaning that it is most often cited as a model “of how not to adjudicate constitutional cases.” Perhaps the most oft-cited passage from Lochner, itself, is Justice Holmes’ dissent where he chides the majority for using the Constitution to enact “Mr. Herbert Spencer’s Social Statics” in the face of a bevy of recent precedent upholding economic restrictions. Thus, accusing someone of engaging in Lochnerism carries the implication that she is (1) using the Constitution to enact a political agenda; and (2) doing so when the case law does not support such an outcome.
Second, accusing someone of Lochnerism is counterproductive because it disparages a party’s legal theory in a way that conflates the outcomes with the merits. The second Lochner implication—that the case law does not support the outcome—is a central allegation of both parties in a standard case. The whole point of having courts is to determine what the case law says. Thus, the real bite in accusing someone of Lochnerism is to suggest that they are enacting a political agenda. The problem is that every case before the Supreme Court leads to an outcome with some political effect. Simply defining the cases one does not like—i.e. those that lead to an economically libertarian outcome—as engaging in Lochnerism is to assert one should lose on the merits based on an undesirable outcome.
Janus’ argument, if accepted, will probably lead to an anti-union outcome, but his underlying claim is that the government is requiring him to engage in speech that he does not want to engage in. Maybe his argument is wrong; one could argue that employee free speech rights are not broad enough to encompass Janus’ claimed right or that his claim is precluded as a pass-through payment. However, merely concluding his argument is wrong by lumping it in with Lochner is doctrinally incorrect and risks conflating the merits with the outcome.
 “The application of the First Amendment right of association in recent labor union agency fees share cases also exhibits some Lochnerian qualities, if defined as advancing economic libertarianism.” (emphasis added)