Pun Salad

"On occasion," Alito wrote in Dobbs, the Court "has fallen into the freewheeling judicial policymaking that characterized discredited decisions such as Lochner v. New York." The Lochner decision was both "unprincipled" and "erroneous," Alito declared. He even placed Lochner alongside Plessy v. Ferguson (1896), the notorious ruling which enshrined the vile doctrine of "separate but equal."

Alito is not the first judicial conservative to attack Lochner. The late Robert Bork, a federal judge who almost made it onto the high court, denounced Lochner as "the symbol, indeed the quintessence, of judicial usurpation of power." For conservatives like Bork and Alito, the problem with Lochner is that the ruling recognized a constitutional right that (in their view) does not and should not exist. "To this day," Bork wrote, "when a judge simply makes up the Constitution he is said 'to Lochnerize.'"

The problem with the Bork/Alito view of Lochner is that it is wrong as a matter of constitutional text and history. Indeed, the drafting and ratification history of the 14th Amendment make clear that the amendment was originally understood to protect a broad range of unenumerated rights, including the right to economic liberty, sometimes called liberty of contract, which was the very right at issue in Lochner.

Reflecting upon the Supreme Court’s recent decisions, the economist Noah Smith observed last week that he “viscerally did not realize, just how much of America’s liberalism over the last half century depended on the single institution of the Supreme Court.” Smith was on to something. Since the early 1950s, the American Left has been in the bad habit of seeking from the federal judiciary what it cannot gain via democratic means. Sometimes, as in the cases of NAACP v. Alabama, Brown v. Board, Loving v. Virginia, Brandenburg v. Ohio, Texas v. Johnson, and others, its requests have been legitimate; by design, the Constitution contains some important counter-majoritarian provisions, and there is no shame whatsoever in using them. Mostly, however, they have been illegitimate. In cases such as Roe v. Wade, Obergefell v. Hodges, Lemon v. Kurtzman, Regents of the University of California v. Bakke, Griswold v. Connecticut, Lee v. Weisman, Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc, and Kennedy v. Louisiana, progressives have treated the Court as if it were an ersatz legislature whose job it was to start with a given outcome in mind and find the path to that outcome that it could most easily sell with a straight face.

Even now — even as that judicial avenue is being blocked off to them for a while — many of the key institutions of American progressivism remain unable to grasp why their behavior has been such a problem. As a result of the Supreme Court’s decision in Dobbs, the New York Times wrote yesterday, “Senate Republicans did not have to take the politically risky step of banning abortions; the court took care of the issue for them.” But, of course, “the court” did no such thing. Having determined correctly that the Constitution is silent on the question of abortion, the Court returned the United States to its pre-Roe status quo, which left the matter entirely up to each state. To compare Roe, which inserted the Supreme Court into a matter over which it has no authority, with Dobbs, which undid that usurpation of power, is akin to comparing the man who robs a bank to the man who captures him and returns the money on the basis that both have been handling cash. It is ridiculous.

In 1992, while the ascendant evangelical Right was pushing to roll back abortion rights as part of its “family values” platform, the Democratic party stumbled on a pro-choice message that would not only win the presidency but also define the party’s position for years to come. It consisted of three words, first spoken by then-presidential nominee Bill Clinton, and ultimately heard so often that they started to take on the air of catechism: an incantation whose mere utterance rendered a politician rhetorically bulletproof.

Safe. Legal. Rare.

For those whose interest in the American Left only goes back as far as the Obama administration, it’s hard to explain what a triumph this was. Not only did the phrase create a big tent under which even people who felt morally ambivalent about abortion could comfortably gather, it also forced Republicans into insane, reactionary counter-positions. As well as safe and legal abortions, the Democrats were promoting comprehensive sex education and contraceptive access, which would help prevent unwanted pregnancies from happening in the first place — and Republicans, rather than make common cause with their enemies, mostly opted to argue against these things.

There's something terrifying about a government so powerful that it can shut down your business overnight without even bothering to offer substantive arguments. Yet that's what Food and Drug Administration bureaucrats just did to the e-cigarette company Juul. While Juul got a stay of execution from a court, the company is one of the many victims of the FDA's counterproductive war on nicotine. Most of the other victims will be cigarette smokers.

I have followed the issue for several years and there is no doubt in my mind that Juul is an effective way to transition away from smoking into alternative, safer sources of nicotine. Vaping doesn't end nicotine consumption, but it's still a real step toward a world without cigarettes. In fact, it is now proven that e-cigarettes are more effective than traditional, FDA-approved nicotine-replacement therapies at getting smokers to quit entirely.

In its 125,000-page application to the FDA, Juul reminded the agency of more than 110 studies showing the benefits of e-cigarettes over traditional nicotine consumption. The company has also been a good team player, jumping through all the hoops thrown at it by the anti-vaping brigades. As the Reason Foundation's Guy Bentley reminds us in the Daily News, "Juul complied with nearly every request made by critics including pulling its original marketing campaigns in 2016, voluntarily removing all of its non-tobacco and menthol flavors from the market in 2019, and supporting an increase in the tobacco age from 18 to 21."

Here’s what the Blade Runner-verse asks me to believe: The post-1960s Great Stagnation of tech progress — at least as it transfers into measurable business productivity growth — ends. (Or maybe never happens in that reality.) Humanity finally achieves many of the technological leaps anticipated by 1960s futurists and technologists: artificial general intelligence, sentient AI, bioengineered android bodies far more capable than human ones, off-world colonies across the Solar System, and flying cars propelled at least partially by anti-gravity technology (which also, presumably, helps enable space colonization).