The Times might be waking up to just what the Opus Dei Court has up its sleeve, noting that nothing is more settled in the legal world than that Lochner was one of the worst cases of all time….but that maybe the current Court actually wants to re-Lochnerize America, which of course it does.
With six conservative justices, the court seems receptive to a renewed deference to the moribund notion of freedom of contract, a goal that some libertarian and conservative lawyers and scholars have long cherished.
The dominance on the court of “originalism,” the doctrine that interprets the constitution and its amendments as they would have been understood at the time they were written, also bodes well for the principles of Lochner. As David Bernstein, a law professor at George Mason University, contends in his 2012 book, “Rehabilitating Lochner,” proponents of a freedom of contract were “originalists, trying to adhere to what they saw as the constitutional underpinnings of the 14th Amendment’s framers.”
The case for Lochner is plainly embedded in the Dobbs decision. Writing for the majority, Justice Samuel Alito said that rights not explicitly mentioned in the Constitution had to be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Unlike a right to abortion, freedom of contract is widely believed to meet that definition.
This “originalism” is complete bullshit, but what does that matter? Like a Supreme Court dissent, it’s effectively meaningless. It’s all about power, the far right has it, that’s all that matters.
Laurence Tribe, a Harvard Law School professor and a liberal constitutional scholar, said that, based on the logic of Dobbs, “there’s no principled way to hold back the tide that would return us to the law of the late 1800s on matters of privacy, reproduction, sexual intimacy and L.G.B.T.Q. equality.” Although Lochner itself is probably “too radioactive” for this court to embrace outright, the court’s overall hostility to government regulation of business and its celebration of individual freedom are clearly in the ascendant. Professor Tribe warned that the effect could be to “return our jurisprudence to a preindustrial, agrarian world. It’s all but unthinkable.” The consequences, he added, could be “horrendous.”
I know I can’t wait until 2030, when the Court overturns the Fair Labor Standards Act.