The Volokh Conspiracy - Was Lochner Counter-Majoritarian?:

Legal scholars generally assume that the Supreme Court's decision in Lochner v. New York, invalidating a state-imposed 60 hour work week for bakers, was "counter-majoritarian" [update: in terms of diverging from a national political consensus] For example, Paul Finkelman, an excellent legal historian, recently wrote, in the Harvard Law Review: "A majority of the Justices had no qualms about offending the public in Lochner.... the Court might still have chosen to ignore public sentiment in Plessy and Berea College, just as it did in Lochner." John Semonche more specifically claims that "[n]ot since the debacle of 1895 [when the Supreme Court invalidated the federal income tax and upheld an injunction against Eugene V. Debs's American Railway Union strike] had a case stirred as much protest in the popular press and professional journals.

Yet, in researching my just-published article on the history of Lochner, I found little evidence of overwhelming public sentiment against Lochner, and, indeed, found a surprising level of support for the decision in contemporary periodicals:

The few libertarian periodicals of the day hailed Lochner, seeing it as a blow against labor union tyranny. The Nation,for example, editorialized that the main effect of the decision "will be to stop the subterfuge by which, under the pretext of conserving the public health, the unionists have sought to delimit the competition of non-unionists, and so to establish a quasi-monopoly of many important kinds of labor."

Editorials in some major newspapers also applauded the decision. The New York Times praised the Supreme Court for refusing to enforce "any contracts which may have been made between the demagogues in the Legislature and the ignoramuses among the labor leaders in bringing to naught their combined machinations." The Washington Post initially noted that the opinion allowed for reasonable police power regulation. The Post, defending the Court from its critics, later added that the liberty of contract between employer and employee protected in Lochner "is a principle older than the Constitution or the statutes. Its maintenance is indispensable to the preservation of liberty." The Los Angeles Times published two editorials praising Lochner. The Literary Digest reported that the Brooklyn Eagle, New York Press, Brooklyn Standard Union, Baltimore Sun, and Baltimore News all praised the decision. ...

In contrast, the Lochner ruling met with immediate condemnation in Progressive and labor union circles and in some mainstream newspapers [Brooklyn Times, Brooklyn Citizen, and Philadelphia Press].

What I did find was that law review commentary was overwhelmingly hostile to Lochner, often on the grounds that the court ignored "social reality" in favor of "abstract reasoning" [critics neglected Justice Peckham's statement that his view of the relative healthfulness of baking was informed by "looking through statistics regarding all trades and occupations"], and has remained so for the next 100+ years.

I wonder, then, whether the conventional wisdom that Lochner was wildly unpopular, or even that it was meaningfully counter-majoritarian, really has any basis, or is a matter of historians and law professors projecting their own views, and the views of their academic predecessors, onto the public at large, and also giving more weight to the views of labor union activists than their influence at the time in the general population would warrant.

UPDATE: The newspaper editorials don't prove that Lochner was popular, but they contradict Semonche's claims about the "popular press." And I don't reject the possibility that "public sentiment" was very hostile to Lochner. I'd just like to see the evidence. To get an idea of the relevance of this to constitutional history and constitutional theory, consider Finkelman's claim: given that the Court was willing to ignore popular opinion in Lochner, it could have easily done the same in Plessy, if it had only chosen to. The conclusion is that the Court was some combination of racist, cowardly on race, and much more concerned with economic rights than the rights of blacks. That may be true, but if sixty-hour laws had a much weaker popular constituency than did segregation laws, and one accepts the fact that the Court is a political body sensitive to how its decisions will be received, it would be tough to argue that Lochner provides much supporting evidence.

	[David Bernstein, July 26, 2006 at 1:14am] Trackbacks Was Lochner Counter-Majoritarian?: Legal scholars generally assume that the Supreme Court's decision in Lochner v. New York, invalidating a state-imposed 60 hour work week for bakers, was "counter-majoritarian" [update: in terms of diverging from a national political consensus] For example, Paul Finkelman, an excellent legal historian, recently wrote, in the Harvard Law Review: "A majority of the Justices had no qualms about offending the public in Lochner.... the Court might still have chosen to ignore public sentiment in Plessy and Berea College, just as it did in Lochner." John Semonche more specifically claims that "[n]ot since the debacle of 1895 [when the Supreme Court invalidated the federal income tax and upheld an injunction against Eugene V. Debs's American Railway Union strike] had a case stirred as much protest in the popular press and professional journals. Yet, in researching my just-published article on the history of Lochner, I found little evidence of overwhelming public sentiment against Lochner, and, indeed, found a surprising level of support for the decision in contemporary periodicals: The few libertarian periodicals of the day hailed Lochner, seeing it as a blow against labor union tyranny. The Nation,for example, editorialized that the main effect of the decision "will be to stop the subterfuge by which, under the pretext of conserving the public health, the unionists have sought to delimit the competition of non-unionists, and so to establish a quasi-monopoly of many important kinds of labor." Editorials in some major newspapers also applauded the decision. The New York Times praised the Supreme Court for refusing to enforce "any contracts which may have been made between the demagogues in the Legislature and the ignoramuses among the labor leaders in bringing to naught their combined machinations." The Washington Post initially noted that the opinion allowed for reasonable police power regulation. The Post, defending the Court from its critics, later added that the liberty of contract between employer and employee protected in Lochner "is a principle older than the Constitution or the statutes. Its maintenance is indispensable to the preservation of liberty." The Los Angeles Times published two editorials praising Lochner. The Literary Digest reported that the Brooklyn Eagle, New York Press, Brooklyn Standard Union, Baltimore Sun, and Baltimore News all praised the decision. ... In contrast, the Lochner ruling met with immediate condemnation in Progressive and labor union circles and in some mainstream newspapers [Brooklyn Times, Brooklyn Citizen, and Philadelphia Press]. What I did find was that law review commentary was overwhelmingly hostile to Lochner, often on the grounds that the court ignored "social reality" in favor of "abstract reasoning" [critics neglected Justice Peckham's statement that his view of the relative healthfulness of baking was informed by "looking through statistics regarding all trades and occupations"], and has remained so for the next 100+ years. I wonder, then, whether the conventional wisdom that Lochner was wildly unpopular, or even that it was meaningfully counter-majoritarian, really has any basis, or is a matter of historians and law professors projecting their own views, and the views of their academic predecessors, onto the public at large, and also giving more weight to the views of labor union activists than their influence at the time in the general population would warrant. UPDATE: The newspaper editorials don't prove that Lochner was popular, but they contradict Semonche's claims about the "popular press." And I don't reject the possibility that "public sentiment" was very hostile to Lochner. I'd just like to see the evidence. To get an idea of the relevance of this to constitutional history and constitutional theory, consider Finkelman's claim: given that the Court was willing to ignore popular opinion in Lochner, it could have easily done the same in Plessy, if it had only chosen to. The conclusion is that the Court was some combination of racist, cowardly on race, and much more concerned with economic rights than the rights of blacks. That may be true, but if sixty-hour laws had a much weaker popular constituency than did segregation laws, and one accepts the fact that the Court is a political body sensitive to how its decisions will be received, it would be tough to argue that Lochner provides much supporting evidence.