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Cass R. Sunstein

Rand Paul's Brand of Judicial Activism

Senator Rand Paul's explicit endorsement of judicial activism tells us a lot about contemporary law and politics, and the future of conservative thinking.
Not a fan of judicial restraint.

Not a fan of judicial restraint.

Photographer: Mark Wilson/Getty Images

For many decades, the Supreme Court’s 1905 decision in Lochner v. New York has ranked among the most universally despised rulings in the history of American law. In that long-repudiated case, the court struck down a maximum-hours law for bakers.

A week ago, Senator Rand Paul -- a likely candidate for president, and among the most influential members of the Republican Party -- explicitly embraced Lochner, and proudly endorsed the whole idea of “judicial activism.” That tells us a lot about contemporary law and politics, and probably about the future of conservative thinking as well.