(Page 3 of 44) - Parrying with the Courts: Analyzing the Lochner Era through the Eyes of Organized Labor authored by Martens, Allison.

class bias and their political affiliations.

According to William M. Wiecek, Lochner became the

“negative touchstone” of modern scholarship for discussing malfunctioning courts that substitute

their own preferences for those of a legislature.

This traditional depiction of the Lochner Court as a runaway institution filled with hubris

and with disdain for the integrity of the separation of powers has not gone unchallenged.

Scholars have long attempted to chip away at the accusation that the justices of this era behaved

in an entirely unprincipled fashion. Some scholars, in the immediate wake of Lochner, simply

pointed to the astonishingly large amount of state social and economic regulation that was upheld

by the justices, thereby calling into question any significant intent on their part to undermine

legislative preferences in favor of a conservative economic theory.

From this perspective, angst

For an extensive review of this neo-Holmesian assessment in constitutional scholarship of the

Lochner era, see Howard Gillman, The Constitution Besieged : The Rise and Demise of Lochner
Era Police Powers Jurisprudence (Durham: Duke University Press, 1993), 3-4. Some early
examples of this literature include Alfred Hinsey Kelly and Winfred Audif Harbison, The
American Constitution, Its Origins and Development (New York,: W. W. Norton, 1948), Carl
Brent Swisher and Edward McChesney Sait, American Constitutional Development (Boston,
New York [etc.]: Houghton Mifflin company, 1943). A more recent illustration of this
characterization of the Lochner court can be found in Paul Kens, Judicial Power and Reform
Politics : The Anatomy of Lochner V. New York (Lawrence, Kan.: University Press of Kansas,
1990).

William M. Wiecek, Liberty under Law : The Supreme Court in American Life, The American

Moment (Baltimore: Johns Hopkins University Press, 1988), 123-25. Such blatantly political
decision-making on the part of appointed, life-tenured justices with the power of judicial review
draws such attention, because it constitutes a threat to the propriety of empowered courts in a
democratic system of government. Thus Lochner has served as a major blemish on the veneer of
the judicial legitimacy that justifies the practice of judicial review ever since. Furthermore, the
negative connotation of Lochner as an example of illegitimate judicial activism has complicated
the subsequent development of substantive due process jurisprudence, as the Supreme Court has
faced an ongoing struggle to establish the proper ambit of constitutionally protected liberty. In
the modern revival of substantive due process, Griswold v. Connecticut, Justice Douglas strongly
distances himself from the ghosts of Lochner. He writes, “we are met with a wide range of
questions that implicate the Due Process Clause of the Fourteenth Amendment. Overtones of
some arguments suggest that Lochner v. New York should be our guide. But we decline that
invitation …. We do not sit as a super-legislature to determine the wisdom, need, and propriety
of laws that touch economic problems, business affairs, or social conditions.” 381 U.S. 479, 481-
2 (1965).

Charles Warren argued that the Lochner Court had struck down only two other state

regulations, belying any characterization of the justices as reactionary. See Charles Warren, "A
Bulwark to the State Police Power - the United States Supreme Court," Columbia Law Review 13