In her opinion, Justice Ginsburg writes:
In the early 20th century, this Court regularly struck down economic regulation enacted by the peoples’ representatives in both the States and the Federal Government. See, e.g., Carter Coal Co., 298 U.S., at 303–304, 309–310; Dagenhart, 247 U.S., at 276–277; Lochner v. New York, 198 U.S. 45, 64, 25 S.Ct. 539, 49 L.Ed. 937 (1905). The Chief Justice’s Commerce Clause opinion, and even more so the joint dissenters’ reasoning, see post, at 4–16, bear a disquieting resemblance to those long-overruled decisions.
From a “Rehabilitating Lochner” perspective, i.e., from a perspective that treats Lochner like a normal unpopular case as opposed to the embodiment of all constitutional evil, this is good news.
First, in almost two hundred pages of opinions, this is the only reference to Lochner, which means that discussion of Lochner played only the most minimal role in the Justices’ debate. Second, Ginsburg didn’t, as Justices have tended to for the last forty years, cite only Lochner as an example of Old Court malfeasance. Rather, as Justices tended to do in the early post-New Deal period, before Lochner became so infamous, she cited Lochner only as one of several cases that should not be emulated. And finally, Ginsburg implicitly acknowledged the distinction between the Old Court’s Fourteenth Amendment Due Process cases like Lochner, and its federalism cases like Carter Coal and Dagenhart.
I do quibble with the notion that the Old Court’s record was one of “regularly” invalidating economic legislation, when in fact it let the vast majority of economic legislation stand, only “occasionally” invalidating economic legislation. And as federalism cases, Carter Coal and Hammer v. Dagenhart seem far more on point than does Lochner.
Nevertheless, given my stated hope that the Court would eventually cease substituting empty rhetoric about “Lochner” for meaningful constitutional debate, progress has been made.