Did the Supreme Court Open the Door to Reviving One of Its Worst Decisions?

Still, to argue that Lochner provided the judicial underpinnings for an era of social Darwinism, as many of its critics have contended, is grossly unfair, according to Mr. Bernstein, the George Mason professor. “Lochner isn’t nearly as bad as people say,” said Mr. Bernstein, a self-described libertarian.

He pointed out that, in protecting individual liberty, Lochner wasn’t inherently conservative or pro-business. For example, its logic would have protected Black workers from laws that tried to exclude them from labor markets or that tried to subject them to inferior conditions. It also might have been invoked to support gay marriage, in that marriage is a contract that confers significant benefits on those who enter into it.

Randy Barnett, a law professor at Georgetown University, has argued that while Lochner did have problems its fault was “not the protection it afforded liberty of contract.”

That said, there’s widespread skepticism that even this Supreme Court’s conservative justices, with the possible exception of Clarence Thomas, will go so far as to revive Lochner, even if they find a way to embrace much of its logic.

“I don’t see five votes to revive Lochner — and maybe not even two,” said Akhil Reed Amar, a professor at Yale Law School and the author of the influential “America’s Unwritten Constitution.” He added, “For the court to say you can’t have minimum wage laws and maximum hours, I’m not seeing it.”

Still, he entertained the question. That’s because, he conceded, “we’re living through a judicial earthquake,” when anything might be possible — even a return to opinions long since cast aside.

“This is an originalist earthquake, not a libertarian earthquake,” Professor Amar said. “This court is clearly hostile to anything not explicitly mentioned in the Constitution.”

Article source: https://www.nytimes.com/2022/07/02/business/scotus-lochner-v-new-york.html