Willett’s nomination has capacity to resurrect an ugly part of the past

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Photo Credit: Chelsea Purgahn | Daily Texan Staff

On Thursday, Don Willett, an associate justice on the Texas Supreme Court, was nominated by the president to serve on the Fifth Circuit Court of Appeals, the federal appellate court that represents Texas, Louisiana and Mississippi. Like all federal judgeships, the term of office is for life.

Willett is something of a celebrity among certain circles on Twitter, being a prolific tweeter of dad jokes, pithy comments and other assorted minutia. Willett has been afforded platitudes such as “Tweeter Laureate.”

Willett’s online persona, as well as his bona fides as a conservative jurist, have earned Willett a cult-like following on the right. When news of Willett’s nomination broke, I saw virtually all of the conservatives I know — those on the middle and those on the far-right, those on the Trump Train and those who revile the man — laud the decision’s brilliance.

Too few people understand the reactionary doctrines for which Willett stands, and why, if such doctrines are implemented nationwide, we could all be in for trouble.

In 1905, the Supreme Court decided Lochner v. New York, which involved the Court striking down regulations on working hours. The subsequent 30 years were known as the “Lochner Era,” a dark period of jurisprudence wherein economic regulations — including the minimum wage and the prohibition of child labor — were deemed unconstitutional on the basis of economic liberty.

It took the Great Depression and President Franklin Roosevelt’s threat to pack the Supreme Court for this shameful chapter to end. Even conservative firebrands like Robert Bork rightly repudiated this era, calling it an “abomination.”

Willett begs to disagree. In the 2015 case Patel v. Texas Department of Licensing and Regulation, Willett joined with a majority of his fellow justices on the Texas Supreme Court in striking down an overly-onerous requirement of training for eyebrows threaders. But Willett went on to rehabilitate Lochner, declaring that economic liberty was a valid path to striking down laws.

“What you don’t know with Willett is whether a decision like Patel is kind of the camel’s nose under the tent,” Professor Sanford V. Levinson, a law professor at this University, told the Texas Observer earlier this year. “Is he going to keep going on and on with this opinion and become far more interventionist?”

The grand irony, of course, is that conservative legal thought has ostensibly prided itself on restraint, while denigrating the so-called “judicial activism” of the left. Chief Justice John Roberts and the late Antonin Scalia surely preached this view, even if their own jurisprudence didn’t exactly match up with it.

I do not mean to impugn Willett personally. He seems like an affable family man, and those who have worked with him speak highly. But there is simply no getting around the Lochner era’s deleterious effect upon this country. A return to the Lochner era, which Willett’s jurisprudence suggests he is open to, would be nothing short of a travesty. It was an era in which child labor was needlessly extended and the people’s will was stymied by — to borrow a phrase from the right — unelected, activist judges.

I don’t want to go back. I suspect few others do either, which is why all the veneration of Willett for his kind persona, while ignoring his unkind jurisprudence, is all the more saddening.  

Horwitz is a second-year law student from Houston. He is a senior columnist.