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Lochner Has Become a Supreme Court Epithet, Law Prof Says

Posted Apr 11, 2012 5:30 AM CDT
By Debra Cassens Weiss

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The Lochner decision has become an epithet used by both liberals and conservatives, according to George Mason University law professor David Bernstein.

The 1905 decision in Lochner v. New York struck down a New York law barring bakers from working more than 10 hours a day because it violated liberty of contract under the due process clause. According to Bernstein, Lochner is used as an epithet by U.S. Supreme Court justices when they disapprove of a decision declaring a law unconstitutional, the Washington Post reports. The decision was disavowed in 1937 in West Coast Hotel v. Parrish.

Bernstein told the Post that Lochner has something for everyone to hate. “Liberals see the court as unduly interfering with progressive legislation meant to help people who needed it,” Bernstein said. “Conservatives draw a different lesson: They see it as a symbol of judicial activism.”

In an article for the Cato Institute, Bernstein sees irony in liberals' arguments. "The liberal justices themselves have expanded the scope of the due process clause—the clause actually relied upon in Lochner—on behalf of the progressive agenda," he writes. "For that very reason, conservatives accuse their liberal adversaries of being the true heirs to Lochner." He is author of the book Rehabilitating Lochner: Defending Individual Rights Against Progressive Reforms.

Chief Justice John G. Roberts Jr. differed with Solicitor General Donald Verrilli Jr. on the meaning of Lochner during oral arguments on the Obama administration’s health care law.

Verrilli said a decision finding that Congress had exceeded its commerce clause power would be “Lochner-like,” the Post reports. Roberts quickly jumped in. “It seems to me it’s an entirely different question when you ask yourself whether or not there are going to be limits on the federal power, as opposed to limits on the states, which was the issue in Lochner,” he said.

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