Don’t miss George Will’s column today, “The 110-Year-Old Case That Still Inspires Supreme Court Debates.” It’s about the infamous case of Lochner v. New York from 1906—the decision that struck down a New York state maximum hour law for bakers that elicited one of the most memorable single sentences of dissent in Supreme Court history, Oliver Wendell Holmes rant that “[t]he Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics.”
There’s three things to note starting out. First, Lochner was correctly decided. The complete and overwhelming case for this heretical conclusion comes from law professor David Bernstein, in his fine 2012 book Rehabilitating Lochner: Defending Individual Rights from Progressive Reform. Second, the liberal case against Lochner was embraced by conservatives (such as, for example, Robert Bork) for a very long time as an example of illegitimate judicial activism, and it showed up for duty once again in Chief Justice Roberts’s dissent in the gay marriage case. (Justice Clarence Thomas’s dissent is far superior to Roberts.) I’ll let George Will take up the story from here:
[I]n his same-sex marriage dissent, Roberts referred to “the unprincipled tradition of judicial policymaking that characterized discredited decisions such as Lochner.” But Lochner was not “unprincipled” unless the natural rights tradition (including the Declaration of Independence) and the Ninth Amendment (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”) involve no principles.
Oblivious of, or disregarding, evidence about the base motives behind the law Lochner overturned, Roberts repeated the myth that Lochner “convert[ed] personal preferences into constitutional mandates.” Roberts expressed an aversion to what he oddly calls “implied fundamental rights.” And he denounced the “freewheeling notion of individual autonomy” affirmed by Lochner’s recognition of “the general right of an individual to be free in his person and in his power to contract in relation to his own labor.” Roberts praised as “judicial self-restraint” the Lochner dissenters’ refusal to recognize that right.
Judges like Roberts consider it virtuous to refuse to closely examine and forthrightly invalidate laws that, like the one Lochner overturned, arise from disreputable motives and have unjust consequences.
I said there were three notable things about the reappearance of Lochner. The third and final thing is that Will would not have written this column 20 years ago. Progress indeed!