#11 - SCOTUS anticanon: Lochner

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📰 1 topic: Lochner

Lochner is one of the most infamous Supreme Court decisions, in the anticanon along with Plessy and Dred Scott. Interestingly enough, though, people don’t really know about Lochner. At least speaking for myself, I didn’t learn about it at all until law school. What follows is a brief overview of this case and what I think it reveals about the role of courts today.

Lochner (1905)

In 1895, New York passed a law limiting the number of hours bakers could work to 60 hours per week. Joseph Lochner owned his own private bakery and was charged for violation of this law. He appealed his way up to SCOTUS that the New York law was unconstitutional.

The Court ultimately struck the New York law down as unconstitutional, holding that state legislatures have no reasonable ground for infringing on bakers’ fundamental liberty to contract their labor. According to the Court’s reasoning, baking isn’t an inherently dangerous activity like, say, mining, where legislatures might need to limit the number of hours worked to protect their well-being. Moreover, bakers aren’t an inherently stupid class of people — they can “assert their rights and care for themselves without the protecting arm of the State.” The Court based its decision essentially on a laissez-faire economic theory that people should be free to work.

Seems not so bad, right? Why does Lochner go down in infamy?

The fundamental tension comes from the fact that nowhere in our Constitution (or our historical interpretation of the Constitution) do we recognize that people have a fundamental liberty to contract their labor. Not only is the Constitution silent here, but the New York legislature also enacted the law on its own reasonable policy, finding that baking actually was a dangerous profession: Baking entailed physical labor in overheated workshops; irregular hours due to erratic demand; constant inhalation of flour dust, leading to lung inflammation; and more. By striking down the law, SCOTUS essentially substituted its policy reasoning for the legislature’s, without any constitutional backing.

The broader idea here is judicial restraint: Judges shouldn’t legislate from the bench. SCOTUS is made up of nine un-elected judges, whose job is to even-handedly interpret and apply the law. Legislatures, on the other hand, are made up of limited numbers of politicians, but their job is to represent an entire State (or nation, in the case of the federal legislature) in crafting new laws. If politicians don’t reflect the will of the people, they’re voted out of office. Federal judges, though, have their jobs for life; are not accountable to the people; and do not represent the people. Judges therefore wield an immense amount of power and are tempted to strike down laws, according not to the Constitution, but to their own policy leanings, economic theories, and morals.

In Lochner, the Court succumbed to that temptation. In its aftermath, the U.S. entered the so-called Lochner era, whereby courts across the nation struck down federal and state laws, including laws on minimum wage, child labor, banking, and transportation. Lochner was eventually overturned during the New Deal, but its legacy lives on. Today, judges derogatorily criticize other judges for Lochner-izing: Condemning laws, which were duly passed through the political process, because those laws are incompatible with their own policy judgments.

My two personal takeaways for Lochner with respect to what I believe is the proper role of judges and courts:

  • (1) Lady justice is blind. Or, at least, she’s supposed to be (see the typical image of lady justice below). In my theoretical, ideal world, judges may have political leanings in their private lives, but once they don the black robes, they become completely apolitical and apply the law completely evenhandedly, perhaps even mechanically. Unfortunately, this world is unrealistic. The Constitution is often ambiguous (at best), and very rarely will two people agree on exactly how to interpret a case. There is no consensus on a ‘correct’ way to apply the law. That said, though, I do think that judges should try as hard as possible to leave their political leanings back at the door of the courthouse, and I’m interested in researching accountability measures for judges that are too partisan.

  • (2) Courts are small-c conservative institutions. As mentioned above, there is no consensus on a ‘correct’ way to apply the law. That said, as a general matter, judges typically look to the past (i.e., the Constitution, previous court decisions) for guidance while politicians inherently look to the future. Granted, there are times when courts apply a modern lens to the Constitution (e.g., gay marriage), and granted, politicians are also bound by oath to uphold the Constitution. But, I overwhelmingly believe that the political process, if functioning properly (and that’s a big, big if), is the dominant voice of change for the ever-changing body of Americans.

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