Lochner v. New York (1905) is vilified for a plethora of reasons. Briefly, the Court said that “the right of the individual to his personal liberty” ensures that “the freedom of master and employe(e) to contract with each other cannot be prohibited or interfered with…” (367,369). Thus, the Court determined that the “liberty” to enter into any contract between parties cannot be regulated by the State. The scope of the Lochner decision prohibited nearly all “police power” between two parties of a contract—and created a special protection of “liberty.” In Lochner, the Court’s writing made it clear that the Court would determine the meaning of words, such as “public,” (it’s the bread, stupid, not the people) while in a federal and democratic system, traditionally, it is elected officials—officials responsible to the people through elections—that determine the definitions and laws to be applied to the population. So Lochner, taken to the extent that many today see Citizens United, assumed that the liberty of citizens to enter into contract would never impinge upon the freedom of one party (i.e. the worker); whereas the state should step in and stop exploitation for the public good.
Justice Peckham in Lochner also wrote that the “claim of the police power would be a mere [pretext]” (367). In this manner, the Court not only declared the law unconstitutional but explicitly stated that the Legislature enacted this law under a guise and that other motives were the cause of the legislation. Hence, “lochnerizing” has become a verb to accuse the Court of extreme activism [for pure capitalism and against state interference]. This was particularly severe, since the law was meant to protect the health of the individual, yet, Peckham wrote that the baking field in general is unhealthy, so there “must be more than the mere fact of the possible existence of some small amount of unhealthiness to warrant legislative interference with liberty” (368). Lochner, in this manner, does not enable the elected representatives to regulate the economy, or, more importantly, to choose economic theory according to the will of the people.
The dissenting justices also illuminated what’s wrong with Lochner. Plainly, Justice Harlan argued that liberty of contract “is subject to [reasonable police regulations]” (369). Harlan wrote that courts “are not concerned with the wisdom or policy of legislation” and that they should administer their profession through judicial restraint (369). The Court, he concluded, “would seriously cripple the inherent power of the States to care for the lives, health and well-being of their [citizens]” if the Court overturned legislation attempting to police for the health and safety of its people (370). Justice Holmes expounded, “a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire” (371). Holmes went further to admonish Peckham when he wrote, “the word liberty is perverted when it is held to prevent the natural outcome of a dominant opinion” (371). The judicial restraint theme is clear, and the liberty of the people’s representatives to enact laws remains institutional among these judges.
Since “lochnerizing” became the beacon verb for outrageous judicial activism, justices in future cases avoided using the case and the methodology from the case. However, in post-Lochner cases, the Court did determine that the correct judicial decision would once again be to invalidate legislative laws. Yet they felt as if they could not use the Lochner methodology, that is, due process, in order to invalidate the law. This led to justices searching for other parts of the constitution to provide standing for cases that they believed should be brought before the Court and possibly invalidated. Even though “lochnerizing” was avoided like the plague–future cases would follow the train of thought.
In Griswold v. Connecticut (1965), for example, Justice Douglas explained that the contraceptive law should be invalidated through the Bill of Rights “penumbras, formed by emanations…” (415). Justice Douglas was clearly avoiding Lochner when he thought it was necessary to mention “prohibition of quartering of soldiers” as relevant to overturning this contraceptive law (415). Douglas mentioned the 1st, 3rd, 4th, 5th, and 9th amendments, including a “zone of privacy” meant to protect individuals—he wasn’t lochnerizing but discovering the right to privacy, he said. Was Griswold a privacy case valid under equal protection?
Griswold was affirmed under the 14th Amendment, but since “everyone” was not allowed to use the contraceptives, Griswold was clearly not an equal protection case; rather, a due process case. Thus, even though Douglass did not explicitly use Lochner and its methodology as precedent to overturn Griswold, it was still a Lochner type decision. Justice Black’s dissent in Griswold hits the proverbial nail on the head when he wrote that Douglass was “merely using different words to claim the power to invalidate any legislative act which the judges find irrational, unreasonable or offensive… elaborated the same natural law due process philosophy found in [Lochner]” (420). Douglas’ attempt to avoid lochnerizing was not too subtle, which made it obvious. He was lochnerizing, as described in the former paragraphs of this essay.
Blackmun in Roe referenced Griswold’s “penumbras,” the 1st, 4th, 5th, 9th, and 14th Amendments, liberty according to the Palko decision, liberty according to the Meyer decision—all in the name of “privacy” (424). Once Blackmun determined that “person, as used in the 14th Amendement, does not include the unborn,” he argued that the state had a “compelling” interest to protect the mother, and that the unborn becomes a “compelling point” at viability (425). Blackmun’s analysis avoided lochnerizing as much as Douglas avoided lochnerizing in Griswold—the “privacy” pretext faded as the due process clause was clearly revealed as the vehicle to invalidate state law; to lochnerize.
The remainder of the justices in Roe supports the opinion that Blackmun was lochnerizing. In Roe, Justice Stewart concurred with Blackmun but came clean with his conscience: “Griswold stands… under the doctrine of substantive due process, and I now accept it as such” (426). Justice White dissented and described the lochnerizing of Roe in his dissent, “The Court simply fashions and announces a new constitutional right… the people and the legislatures of the 50 States are constitutionally disentitled…” (426). Rehnquist, in fact, dissented and concluded that Roe is not about “privacy” at all, rather, substantive due process which will be held to a “compelling state interest standard” (427).
These decisions indeed do threaten the public’s perception regarding the legitimacy of the Court. If the Court, as in Lochner, prohibits nearly all “police power” in order to create a special protection of “liberty,” then the unelected Court, instead of elected officials, determine the definitions and long-term laws to be applied to the population. Lochner, in this manner, does not enable the elected representatives to protect the people from exploitative labor forces, or, more importantly, to choose economic theory according to the will of the people. The “Lochner” Court acted as an unelected martinet. The people can easily oust their representatives, but not their Supreme Court Justices. Judicial activism in order to invalidate a reasonable law, particularly when the Court states that the people’s representatives created a law under a pretext, also threatens the idea of the tri-partate, since unelected judges would continually determine public policy—thus diminishing the public’s perception of the elected bodies.
Moreover, when the Court, as in Griswold and Roe, avoided due process and instead created “zone of privacy,” then the Court also may have lost prestige, since it may be perceived that they are themselves engaging a pretext, rather than precedent. Public opinion regarding the Court’s legitimacy is connected to stare decisis and to previous legal findings, which lets the previous legal precedent stand and also references the current case decision(s) to previous case law. If Roe, for example, would have been overturned by Casey, then the Court may have lost more prestige than if it had simply reaffirmed Roe. This is because the people, as well as the elected bodies of government, might ascertain that the Court is loaded with flip-floppers.
The joint opinion in Planned Parenthood v. Casey (1992) definitely reaffirmed “the essential holding” of Roe. The new constitutional standard in the “Joint Opinion” of the Casey judgment opened, “Justice O’Connor, Justice Kennedy and Justice Souter…” (434). These three names are noted to intentionally clarify that the Court’s finding strongly reaffirmed, “[The] essential holding of [Roe]…” (434). The Court ruled that the woman has a choice before viability, and that the State cannot interfere; that there is “a realm of personal liberty which the government may not enter” (434). The majority opinion of this case also explicitly affirmed Griswold, Eisenstadt, and Carey. There have been two major incidences when the Court overturned its own rulings: Lochner (1905) was overturned by West Coast Hotel (1937) and Plessy (1896) was overturned by Brown (1954); however, the Casey decision reaffirmed Roe and, thus, it is highly unlikely that Roe and Casey will be overturned in the near future.
In conclusion, the Locher (1905) decision created a backlash we call judicial activism. This happened precisely because the Court argued that the State may not regulate “liberty” or contracts in the economic sector (e.g., language of liberalism). Through the line of reasoning as explained in this post–isn’t Citizens United a “lochner” decision? Wasn’t the Court saying in Citizens United: Government cannot regulate the economic campaign activity without extinguishing liberty? Whereas Lochner prevented the public good–isn’t the same true for Citizens United?
Book used: Constitutional Law, 16th Edition. Sullivan and Gunther. 2007.