Volume 76, Number 5

November 2001

The History of the Countermajoritarian Difficulty, Part Three: The Lesson of Lochner

Barry Friedman

For nearly a century, the conventional wisdom has been that during the Lochner era, Supreme Court Justices failed to adhere to constitutional norms requiring deference to majoritarian decisions and inappropriately struck down laws by substituting their own views for those of legislative bodies. Recently, however, revisionist scholars have endeavored to rehabilitate Lochner-era judicial decisionmaking by demonstrating that those decisions were based soundly on established legal principles. In this Article–the third in a five-part series–Professor Barry Friedman calls into question both revisionist and conventional accounts of the Lochner era. After outlining the revisionist agenda and its effort to bestow “legal legitimacy” upon Lochner-era decisions, Friedman presents extensive historical evidence showing that popular opinion throughout the era saw judges as deciding controversial cases in illegitimate ways, creating novel constitutional rights, and acting on class biases. Revisionists also claim that Justice Holmes’s famous Lochner dissent was novel, and that his arguments regarding deference to majority will were adopted only after the fact by Progressive critics of the courts. But Friedman establishes that there was nothing novel to Holmes’s dissent; Justice Harlan said much the same in his, and both were part of a wide movement that criticized courts for interfering with the popular will. By juxtaposing the hue and cry over Lochner-era decisions with revisionist claims of doctrinal fidelity, Friedman concludes that the true test of whether controversial decisions such as Lochner will be accepted as legitimate is not simply whether such decisions are legally precedential, but whether the wider public perceives them to be “socially legitimate,” i.e., appropriate as a matter of policy given the necessities of the time.