In continuing his attack on the Supreme Court on Tuesday, President Barack Obama made a mistaken reference to the Lochner decision–an error that suggests just how deeply Derrick Bell affected his thinking about the Court and the Constitution.
James Taranto of the Wall Street Journal noted that Obama, facing questions from journalists, had cited the case of Lochner v. New York (1905) as the last time the Supreme Court had overturned an economic law passed by Congress:
Well, first of all, let me be very specific. Um [pause], we have not seen a court overturn [pause] a [pause] law that was passed [pause] by Congress on [pause] a [pause] economic issue, like health care, that I think most people would clearly consider commerce. A law like that has not been overturned [pause] at least since Lochner, right? So we’re going back to the ’30s, pre-New Deal.
Obama was wrong on three counts: Lochner was not decided in the 1930s; it was not the last time an economic law was overturned; and it involved a state law, not a federal one.
But Obama’s interpretation of Lochner is an interesting one, and points directly to the influence of Derrick Bell and his radical Critical Race Theory approach to constitutional jurisprudence.
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