Few professors see their academic work reflected in the public realm, and fewer still after cutting so aggressively against the grain. In 2004, when Barnett argued his first and only case before the Supreme Court, Lochner was a distant specter, and libertarian influence over the law more generally was hard to detect. The case concerned two women, Angel Raich and Diane Monson, who used marijuana to treat their chronic medical conditions. Monson’s homegrown medical marijuana plants were seized and destroyed by federal agents pursuant to the Controlled Substances Act. Barnett contended the law was an overbroad application of the Commerce Clause to regulate economic activity. He lost 6–3. The following year, the Rehnquist Court dealt libertarians another major blow when it ruled 5–4 in Kelo v. New London that the Connecticut city could use its eminent domain powers to condemn private property and hand it over to private developers. The plaintiffs in that case were represented by the Institute for Justice.

To anyone who lived through Bush v. Gore it might seem strange that a judiciary as conservative as the Rehnquist and Roberts Courts would rule for the government so regularly. But the dominant strain of conservative legal thought for the last half-century has largely been shaped by the right’s backlash to the social revolution stemming from the 1960s and the Warren and Burger Courts’ use of the Constitution to further progressive ends like desegregation and access to abortion. For conservatives, the main villain of the last 50 years has been creeping liberal judicial activism and a willingness to overturn legislative action. Conservative legal scholars and jurists like Robert Bork held that judges should refrain from projecting personal or political values into their judicial opinions. This principle became a cornerstone of traditional conservative legal thought, but it effectively created a presumption that democratically enacted laws are constitutional. Such a restrained judicial philosophy makes it difficult for judges to void properly enacted laws like the Controlled Substances Act.

But it has been nearly 30 years since Chief Justice Warren E. Burger retired. For many younger conservatives, the Court’s cardinal sin isn’t Brown v. Board of Education or even Roe v. Wade. And Barnett and his allies have helped make many conservatives more comfortable with the idea of judicial activism.

Lochner revivalist professors have established beachheads at law schools across the country.

With five offices around the country, a legal clinic training students at the University of Chicago Law School, and a staff of nearly 100, the Institute for Justice has become a proving ground for aspiring, ideologically committed lawyers. Every year, the group sends lawyers to law schools around the country to give presentations on public-interest law and recruit students into its ranks. “It’s certainly done with the intent to make sure that libertarian-minded law students know who we are and what we have to offer,” Clark Neily, a senior attorney at the Institute for Justice, said of the group’s outreach. Each summer, a couple dozen clerks join the group in its Beltway headquarters and state offices. From there, these young lawyers typically move on to more traditional clerkships at law firms and federal courts—one former Institute for Justice clerk worked for Chief Justice Roberts from 2008 to 2009—and when the Institute hires new staff attorneys, it often culls from the ranks of these same pupils.