Threading eyebrows can be a dangerous business. Without proper sanitation, threading—a form of hair removal that uses thin strings to shape eyebrows—can spread highly contagious bacterial and viral infections, including flat warts, pink eye, ringworm, and staph. For that reason, Texas required threaders to undergo 750 hours of training in order to practice their craft professionally, the same amount of training that other cosmetology specialists must receive.
But threaders didn’t like all that training—so they asked the Texas Supreme Court to simply strike the regulation down. In late June, the court obliged. It granted itself the power to strike down any health and safety laws it deems “oppressive.”
The startling decision revives a dangerous, widely discredited doctrine that gives judges authority to strike down economic regulations that interfere with the free market. By resuscitating it, the Texas Supreme Court has effectively declared that laissez-faire capitalism is the only true form of American liberty.
The notion that American courts should impose a free market ideology on the laws they interpret has a long, mottled history. At the beginning of the 20th century, the United States Supreme Court did just that, invalidating regulations like maximum hour and minimum wage laws. The notorious period is named the Lochner era after one infamous case, Lochner v. New York, in which the court considered a New York law that regulated bakeries. At the time, many bakers were brutally overworked in unsanitary conditions, and they frequently fell victim to lung inflammation and rheumatism. To prevent bakery owners from straining their workers, New York barred bakers from working more than 10 hours a day or 60 hours a week.
In a 5–4 decision, the Supreme Court struck down the law as a violation of “liberty of contract.” Bakery workers, the majority wrote, have a constitutional right to work out individualized contracts with their bosses free of undue legislative meddling. If an employee wants to work more than 10 hours a day, he has a constitutional right to do so.
And where, exactly, did this right come from? The Due Process Clause of the Fifth and 14th amendments declare that no person may be deprived of “life, liberty, or property without due process of law.” This “liberty,” the court wrote, includes the liberty of contract. And if a state wanted to interfere with that liberty, it had to prove its regulation to be “reasonable and appropriate” and not “unnecessary and arbitrary.”
The problem with this theory is that courts are ridiculously unqualified to decide whether economic regulations are “reasonable” or “unnecessary.” When legislatures pass health and safety laws, they usually do so after extensive hearings and fact-findings. Members of the public and the targeted profession can petition for stricter or laxer regulations. If, in practice, the regulation is too burdensome or lenient, the state can adjust it. That is called legislating, and it is generally considered a job for the legislature.
A Supreme Court ruling, on the other hand, is both clumsy and final. Justices can either uphold a regulation or invalidate it. And if they scrap it, the legislature has to try to pass a new law that might satisfy the whims of the court and its extremely dubious reading of the Constitution.
For more than three decades, the Supreme Court used this “liberty of contract” justification to strike down progressive reforms and New Deal programs. Then, finally, in 1937, the court reversed itself, disavowing its laissez-faire constitutional doctrine. The court still enforces the “liberty” guaranteed by the Due Process Clause—but now it protects only those fundamental rights relating to personal dignity and autonomy, which judges are much better at describing and defending. Justice Anthony Kennedy’s marriage equality opinion, for instance, rests largely on the Due Process Clause, holding that decisions relating to marriage and intimacy are fundamental to the Constitution’s conception of liberty.
Like most state constitutions, the Texas Constitution contains a clause that’s nearly identical to the Due Process Clause. For decades, the Texas Supreme Court interpreted this provision to give the legislature power to pass health and safety laws that were “rationally related to a legitimate government interest.” That all stopped on June 26. Under the court’s new doctrine, any economic regulation that is “so unreasonably burdensome that it becomes oppressive” is now invalid as a deprivation of economic liberty. And what constitutes an “oppressive” regulation? That’s entirely for the Texas Supreme Court to decide.
To see just how arbitrary and malleable this newly minted doctrine is, consider its application to Texas’ threading law. Of the 750 hours of training threaders must undergo to become fully licensed, about 40 percent is not directly related to threading. That may be a problem—but it is clearly a legislative problem, one that threaders could seek to solve through the democratic process by petitioning the legislature to reduce their training hours. Texas is not depriving threaders of any fundamental rights, like the right to vote or marry, which courts properly shield from popular prejudices.
Texas regulates many professions that affect the public safety—and how much training is too much? To take one example, Texas requires dental hygienists to undergo 15 hours of continuing education every year. North Carolina? Six hours—every three years.
Would the Texas Supreme Court strike down the dental hygienists’ training rule as unconstitutionally oppressive? Don’t bet against it. In a lengthy concurring opinion that is both charming and terrifying, Justice Don Willett—Twitter’s favorite judge—argued that the court should be more tenacious about preserving Texas’ “spirit of daring and rugged independence” by protecting “economic dynamism.” Texas’ “industrious entrepreneurs,” Willett writes, are imperiled by “bureaucratic red tape” and “interest-group politics.” Too many “irrational licensing laws,” the justice explains, oppress “hard-working Texans” who want “to better their families through honest enterprise.” Willett declares that occupational licensing is “often less about protecting the public than about bestowing special privileges on political favorites.” Thus, the court should fight back by striking whatever laws it deems to be “nonsensical government encroachment” on “economic liberty.”
Willett’s disquisition would make a fine Wall Street Journal editorial. He even devotes a 1,000-word footnote to rehabilitating Lochner, claiming that “legal orthodoxy” is “evolving” toward a belief in the decision’s “correctness as a matter of constitutional law.” As a judicial opinion, however, Willett’s concurrence is an unnerving declaration of total judicial supremacy over the legislature’s ability to regulate health and safety. From its contracting economy to its sky-high uninsured rate, Texas has a lot of problems. If the state’s Supreme Court follows through on Willett’s threat, it’s about to have a lot more.