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

Abstract

This project continues the of the countermajoritarian difficulty, explaining that the long dominant story about judicial review was born out of fights that took place at the turn of the century. For most of this century the lesson of the Lochner era has been clear: judges should refrain from imposing their own values on the meaning of the Constitution. From that era come all the conventional lessons about judicial restraint and the countermajoritarian difficulty. Now, convention is challenged by a large (and growing) body of revisionist scholarship. Lochner revisionists argue that the Lochner era decisions can be justified as consistent with doctrinal strains existing at the time. Some revisionists go so far as to argue that the conventional story is winner's history concocted by Progressive scholars after the battle over judicial review was won. This article challenges the revisionist project. Experience during the first third of the twentieth century shows that judges will be attacked and judicial review threatened so long as the public views judicial decisions as failing to meet social needs, regardless of whether there is doctrinal support for the challenged decisions. Thus, the conventional story is not winner's history but an accurate accounting of what happened at the time. And, for this reason even if the revisionists are correct that there was doctrinal support for Lochner era decisions, this only makes matters worse, for judges were attacked vociferously nonetheless. If there is a lesson to be learned from the Lochner era, it is from the attacks that were in fact leveled at judges at the time, rather than any doctrinal strains that might have supported those decisions. The legitimacy of judicial review inevitably rests in part on public reaction to judicial decisions.