Joseph Lochner, the owner of a bakery in Utica, was arrested in 1902 for violating a New York state law prohibiting the employment of bakers for more than 60 hours a week or 10 hours a day. By a 5-4 vote, the Court struck down the law. In his opinion for the Court, Justice Rufus Peckham said the law could not be upheld as a reasonable regulation of health or safety because baking was not an unusually dangerous or unhealthy profession. Therefore, Peckham declared, the law violated the freedom of contract of bakers and it had to fall.
Lochner is famous largely because of the dissenting opinion of Justice Oliver Wendell Holmes. A Massachusetts aristocrat who viewed his service in the Union Army as the most important event of his life, Holmes was so devoted to judicial restraint that he rarely found a law he was willing to strike down. He viewed democracy in violent military terms, as an opportunity for the strong to impose their view on the weak, and thought it was the job of judges to help them do so. "If my fellow citizens want to go to hell, I will help them," he wrote. "It's my job." Holmes had contempt for progressive economic legislation, which he viewed as sentimental and ineffective. But in his dissenting opinion in Lochner, he declared, "My agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law. ... The Fourteenth Amendment does not enact Mr. Herbert Spencer's SOCIAL STATICS." The invocation of Spencer's exotic-sounding libertarian treatise -- a defense of social Darwinism and laissez faire economics -- was an inspired rhetorical touch, although Holmes himself was the most enthusiastic social Darwinist on the Court. He ended his dissent by reiterating his dark view of law as a Darwinian struggle for power in which majorities should triumph over minorities. Although Holmes's radical vision of judicial restraint would come to seem heartless in cases involving civil rights, where he rarely sided with African-American plaintiffs and voted to eviscerate the promise of the Reconstruction amendments to the Constitution, his Lochner dissent was applauded by progressives who resolved to get the Court out of the business of second-guessing economic legislation.
They finally succeeded during the New Deal era. The Court attempted to strike down much of Franklin D. Roosevelt's New Deal recovery program by invoking a narrow vision of Congress's power to regulate interstate commerce, which Holmes had opposed. Roosevelt proposed a court-packing plan in 1937 that would have given the president the right to appoint a new justice for every member of the Court who refused to retire after turning 70. The plan was defeated in the Senate, but the Court changed its mind later that year about the constitutionality of the New Deal and began to uphold economic legislation that it had previously struck down. (Historians disagree about whether or not the swing justice, Owen J. Roberts, was bowing to political pressure or had resolved for other reasons to change his mind. In any case, Roberts had changed his position in a conference vote prior to the announcement of Roosevelt's plan.) In the most prominent sign of the new era, the Court in West Coast Hotel v. Parrish (1937) upheld a state minimum wage law for women and minors and overruled a Lochner-era case in which Holmes had dissented. Noting that the economic reality of the Great Depression had disproved the old assumption that workers and employers could fend for themselves in a properly functioning labor market, the Court stressed that the burden of caring for the unemployed would fall on the nation as a whole. Thus the nationalistic vision of Marshall, Harlan, and Holmes was once again vindicated, and Congress's power to regulate the national economy once again expanded.
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About the Author
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Jeffrey Rosen is a Professor of Law at George Washington University and legal affairs editor of the NEW REPUBLIC. He is the author of the companion book to the PBS Series, THE SUPREME COURT: THE PERSONALITIES AND RIVALRIES THAT DEFINED AMERICA (Times Books).
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Justice Oliver Wendell Holmes was so devoted to judicial restraint that he rarely found a law he was willing to strike down, even if he though the law a bad one. "If my fellow citizens want to go to hell, I will help them," he wrote. "It's my job."
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