The Supreme Court is beholden to the Constitution—not voters 

April 11, 2022 | By NICOLE W.C. YEATMAN
Constitution pages

In his April 8 New York Times column, Jamelle Bouie accuses the Supreme Court of being focused on “the interests and prerogatives of powerful political minorities—you might call them factions—that seek to dominate others free of federal interference.”  

Bouie says that Americans frustrated with the Court might wish to get rid of judicial review—the Supreme Court’s power to declare laws unconstitutional—but that getting rid of it completely is impossible, given that judicial review is baked into our constitutional order. “The best we may be able to do, then, is to restrain judicial review—to place it under greater democratic control and remind our power-hungry Supreme Court that it exists within the constitutional system, not above it.”  

It’s wildly unclear what Bouie means by this—how exactly he thinks judicial review should be “under greater democratic control.” That line was the last sentence of his column, and it leaves much to the imagination.  

But this much is clear: Bouie, like many commentators, believes Supreme Court Justices are motivated by politics, not law—and he’s hoping to diminish the Court’s authority and independence. 

Our Spring 2022 issue of Sword&Scales argues that the Supreme Court is far less politicized than people like Bouie believe, and that Justices’ allegiance to law—not voters or parties—is what makes the institution an indispensable protector of individual liberty. In our article “A hundred-year-old dissent haunts today’s judiciary,” authors Larry Salzman and Joseph Kast draw on the 1905 Lochner case to explain what legitimizes the Supreme Court to review and overturn laws. The article is reprinted below. 

A hundred-year-old dissent haunts today’s judiciary  

By Larry Salzman and Joseph Kast   

When the Supreme Court blocked President Biden’s OSHA vaccine mandate in January, Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor joined together in a firmly worded dissent. At issue, they said, was a “single, simple question”:  

Who decides how much protection, and of what kind, American workers need from COVID-19? An agency with expertise in workplace health and safety, acting as Congress and the President authorized? Or a court, lacking any knowledge of how to safeguard workplaces, and insulated from any responsibility for any damage it causes?  

But that question is not actually simple.  

It’s derivative of a more fundamental question that has persistently divided judges when they think about their role in our system of government and how to do their jobs: When should the Supreme Court override a legislative majority or democratically elected president?  

The answer to that question, rather than partisan politics, is what tends to sort Justices into different camps: those who believe the Court must defer to legislators’ and regulators’ judgment of what is right or appropriate, and those who believe the Court’s responsibility is to check the excesses of politics based on the Constitution and the principles that gave rise to it.  

More than a hundred years ago, a dispute over the hours worked at a small Utica, New York, bakeshop caused the Supreme Court to face this conflict. Reactions to that case—and in particular to one Justice’s short, biting dissent—continue to haunt the minds of Supreme Court Justices today when thinking about the role of the Court, its relationship to the other two branches of government, and how it should decide cases.  

A New York bakery  

In 1895, the state of New York passed the Bakeshop Act, the culmination of years of politicking from union activists and large factory bakeries. The Act was framed as a health measure, and much of it was unremarkable: standards for plumbing, ventilation, and washrooms. Had that been the extent of its provisions, it would have been just one among a multitude of business regulations characteristic of the early Progressive era. It was the inclusion of a hard cap on hours for employees (10 hours per day, no more than 60 per week) that set in motion one of the most consequential Supreme Court dissents in American history.  

New York in the 1890s was experiencing rapid growth, thanks in no small part to the waves of immigrants arriving in the city each day. Small bakeries were on virtually every street corner—necessarily so in an era before supermarket chains, food preservatives, or plastic bags—and many of them were informal operations in tenement basements.  

Hours were long, averaging 74 per week, but sometimes more. This, coupled with such cramped conditions, meant bakeshop owners had to pay higher wages than other businesses to retain workers. Immigrants, primarily younger German men, took many of these bakeshop jobs. The rough working conditions and long hours were less than appealing to many natives, but it presented a coveted opportunity for immigrants to get ahead in a new country. Immigrant-run bakeshops generally lacked the mechanical advantages of larger commercial shops; the only way they could close the competitive gap was to work harder, for longer.   

Proponents of the Bakeshop Act defended the limit on working hours with a range of overlapping rationales: it would create more jobs; it would “spread the wealth”; it would improve public health; it would lower unemployment. Working fewer hours would even be a boon for democracy itself: If workers had more time off, they’d spend time educating themselves and thus become better citizens. One argument seemed ripped from The Communist Manifesto, arguing that bakeshop owners were inherently exploiting their employees: “An empty stomach can make no contracts. [The workers] assent but they do not consent, they submit but they do not agree.”  

Indeed, the Bakeshop Act’s 60-hour limit seems to have been motivated more by politics than by a genuine concern for public health. It contained exemptions for bakers working in pie shops, hotels, restaurants, and clubs. Bakeshop owners were exempted as well. The 60-hour limit was likely as much about kneecapping smaller immigrant-run bakeshops as it was about public safety. More importantly, invoking “public health” can justify just about anything, including unconstitutional laws.  

The Act passed unanimously through both houses of New York’s legislature, and little time was wasted in enforcing the new law. Of the 150 bakeries visited in the first three months after its passage, 105 were fined. But it was not any one of the hundreds of tenement basement bakeries of New York City that would prove the Act’s major challenge. Instead, a test case for the Act’s constitutionality was brought by a small bakery in Utica, over 200 miles from Manhattan.  

Joseph Lochner left his native Bavaria when he was 20, in 1882. After working about eight years in another Utica bakery, he opened his own. In contrast to the cramped tenement basement bakeshops of New York City, Lochner’s shop was a “relatively airy and mechanized aboveground shop,” according to author Paul Kens, who describes Lochner as a “hardheaded man” who wasn’t going to be told how to run his own business.  

Lochner worked alongside his wife and a handful of employees. A contemporary profile of him in the Utica Herald suggests a rags-to-riches story of success, noting that his bakery started off meagerly but “by neatness and the excellence of its products it soon won an enviable reputation” from customers.  

Good baker or not, he soon found himself at odds with the bakers’ union for violating the hours limit provision of the Bakeshop Act. David Bernstein, author of Rehabilitating Lochner, describes Lochner as having:  

a tempestuous relationship with the bakers’ union that started in 1895, when the union withdrew the union label from his goods and initiated a boycott of his bakery. The union claimed that he had a baker work more than sixty hours a week, and Lochner acknowledged violating union rules by allowing one of his employees, Aman Schmitter, to live above the bakery with [Lochner’s] family.

Schmitter, for his part, was happy to work more than the 60-hour limit. He asked the union for an exemption to the hourly cap, which was not granted.  

In 1899, Lochner was hit with a $20 fine (about $600 in today’s dollars) for violating the hourly cap. He pled guilty, paid the fine, then continued to allow employees to work above the limit. The unions were displeased at his lack of interest in complying with the Act and launched boycotts against his bakery.  

When Lochner was once again arrested and charged $50 for violating the bakeshop act, he appealed. His baker Schmitter signed an affidavit confirming that he worked beyond the 10-hour daily limit to learn the art of cake baking. Given their closeness, it is hard to believe the affidavit wasn’t a part of a larger strategy to take down the law. David Bernstein says,  

Given that there could be no successful prosecution unless Schmitter was willing to testify against Lochner, and given the close and longstanding relationship between the two men … it seems likely that Schmitter’s complaint against Lochner was arranged by the Utica Master Bakers Association, of which Lochner was a member, to test the law.  

Lochner gave no defense at trial in 1903, further suggesting that he and Schmitter had deliberately set out to bring a test case. His legal claim was that his right to contract for his labor was being violated. He and his employee Schmitter had entered into a private contract covering an agreement of hours worked, and the State of New York should have no say in it.  

The state trial court differed, holding that the hours statute “does not prohibit any right, but regulates it, and there is a wide difference between regulation and prohibition, between prescribing the terms by which the right may be enjoyed, and the denial of that right altogether.” Writer Tom Bowden summarizes the ruling in an article discussing Lochner, “Justice Holmes and the Empty Constitution”: “In other words, a right is not violated unless it is annihilated.” The court upheld the conviction: Lochner would either have to pay the $50 fine or spend 50 days in jail. He appealed.   

The first appellate court also ruled in favor of the hours law by a 3-2 vote. Because the limit on hours was part of a larger bill aimed in part at improving public health, the court’s majority argued that it was “reasonable to assume … that a man is more likely to be careful and cleanly when well, and not overworked, than when exhausted by fatigue, which makes for careless and slovenly habits, and tends to dirt and disease.” A health measure, the majority believed, was grounded in the state’s “police power,” a constitutional provision empowering state legislatures to enact laws for the “public good” of its citizens. As a matter of history, the concept of a state’s police powers is notoriously vague. The court noted “the impossibility of setting the bounds of the police power,” and hence the difficulty setting any judicial limit on legislatures or regulators.  

The appellate court further opined that the Act’s limit on hours was required to protect workers’ health against the rapaciousness of free market capitalism, citing a popular legal treatise that suggested that  

the feverish, intense desire to acquire wealth…inciting a relentless rivalry and competition, would ultimately prevent, not only the wage-earners, but likewise the capitalists and employers themselves, from yielding to the warnings of nature and obeying the instinct of self-preservation by resting periodically from labor.

One judge’s concurring opinion said invalidating the law would also “nullify the will of the people” since the Act had been democratically legislated.  

But again, Lochner appealed to New York’s highest court, and again he lost in a 4-3 decision. The court felt it was “beyond question” that ensuring clean bakeries was a public good (therefore within the police power and not the judiciary’s job to check), and that this was best achieved by having well-rested bakers. One dissenting judge noted that little evidence had actually been presented that baking was unhealthy, and because self-employed workers were allowed to work as many hours as they wished, this was a labor law, not a health law. (We should note here that newer historical analysis suggests mortality rates in baking were below the average for all occupations at the time.)  

Lochner, unperturbed, submitted a petition for his case to be heard before the Supreme Court. The Court accepted the case, which would be argued in early 1905. The debate in the lower courts revealed that there was a clear conflict between New York’s “police powers” and “liberty of contract.” Which had the weight of the Constitution in its favor?  

Lochner may have been optimistic about his chances at the Supreme Court, but he shouldn’t have been. His first lawyer dropped off the case, telling him and the Utica Master Bakers Association that the case was hopeless. Moreover, as Bernstein notes, “the Court had consistently upheld laws regulating labor regulations, including a maximum-hours law for miners … it had consistently refused to invalidate labor regulations as violations” of liberty of contract.  

Sure enough, the Court was veering toward upholding the hours statute. But part of the magic of the Supreme Court (for better or worse) is that a well-argued dissent can change everything—even before the opinion is issued.  

Tom Bowden describes the remarkable turn in Lochner’s favor:  

At first the Court voted 5-4 in private conference to uphold Lochner’s conviction. But then Justice Peckham wrote a sharp dissent that convinced another Justice to change his mind. With a little editing, Peckham’s dissent then became the majority’s official opinion declaring the Bakeshop Act unconstitutional.  

Peckham agreed that much of the Bakeshop Act was fair grounds for invoking police power. The limit on the number of working hours, however, wasn’t. It lacked “fair ground, reasonable in and of itself, to say that there is material danger to the public health, or to the health of the employees, if the hours of labor are not curtailed.” It was a labor law, not a health law, and thus “necessarily interferes with the right of contract between the employer and employees.” The Court sided with Lochner and the right of contract, 5-4.  

But that’s not where the story ends.  

Justice Oliver Wendell Holmes Jr. dissents  

The case ended up with three opinions: The prevailing one penned by Justice Peckham; a dissent authored by Justice John Marshall Harlan and joined by two others, the displaced prior majority decision; and a short dissent from Justice Oliver Wendell Holmes Jr. While Lochner was the winner of the case, the Holmes dissent represented an emerging judicial philosophy that would have the most lasting change in American legal history—and not for the better.  

In his brief dissent (just over 600 words), Holmes denied a constitutional right of contract. He argued that  

the liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not.

Holmes continued with a laundry list of laws the Court had recently upheld, including a state vaccine mandate and laws prohibiting lotteries, usury, and doing business on Sundays. Were not each of these a clear state interference with contractual liberty?  

“Some of these laws embody convictions or prejudices which judges are likely to share,” Holmes wrote. “Some may not. But a Constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the state or of laissez faire.”  

In other words, Holmes rejected the idea that the Constitution embodies a philosophical context and purpose that ought to influence judicial decision-making. In one of the dissent’s most famous lines, Holmes dismissively stated that “[t]he fourteenth amendment does not enact Mr. Herbert Spencer’s Social Statics.” Spencer was a Victorian-era polymath who espoused laissez-faire economics and wrote, in the relatively obscure but contemporary Social Statics, that “[e]very man has freedom to do all that he wills, provided he infringes not the equal freedom of any other man.” Holmes used the shibboleth to accuse the Court majority of superimposing 19th-century classical liberal sentiments into the Constitution, where—according to Holmes—no such general principles existed.  

The big question  

The Lochner decision was emblematic of what more modern historians refer to—either approvingly or disparagingly, depending on their view of economic liberty—as the “Lochner era.” But when the Court upheld a New Deal-era minimum wage law in 1937, the Lochner era abruptly ended—and Holmes’ dissenting view quickly gained momentum. In 1938, the Court made the sweeping decision that all government intervention in the economy should be assumed valid unless “a specific prohibition of the Constitution” said otherwise. Justice Felix Frankfurter, appointed to the Supreme Court in 1939, called Holmes’ Lochner dissent a “turning point” in a larger battle against “the unconscious identification of personal views with constitutional sanction.” He also praised Homes for his “refusal to defeat life by formal logic” and his “deference to local knowledge.”  

Today, when a judge is said to “Lochnerize,” it means that he or she is substituting personal preferences over the legislature or will of the people. Even the conservative legal theorist Robert Bork (yes, that Robert Bork) criticized the Lochner decision as enforcing “an individual liberty that is nowhere to be found in the Constitution itself.”  

But to believe that, you have to agree with Holmes’ contention that the Constitution says nothing substantive about the fundamental relationship between government and the individual. It means ignoring the entire political-philosophical context in which the Founders worked—as plainly stated in the Declaration of Independence—to create a government whose chief purpose is to secure individuals’ rights to life, liberty, and the pursuit of happiness. As Tom Bowden points out, each clause in the Bill of Rights places a strict limit on the government’s power over individual liberty and property. Article I of the Constitution prevents states from passing laws “impairing the obligation of contracts.” Herbert Spencer may not be embedded in the Constitution, but there is a set of general philosophical principles in the Constitution: the Enlightenment-era ideals of individual rights and limited government.  

This does not mean the Constitution was perfectly drafted. Its internal contradictions and failures include, of course, its shameful treatment of the “peculiar institution” of slavery. But the fact that we recognize that as hypocrisy means we read fundamental principles into the Constitution—including the principle of individual liberty.  

Many judges believe it is these Constitutional principles that give the Supreme Court the authority to override legislative majorities. But other judges (like Holmes) have disagreed. They dispute the idea that the Constitution embodies philosophical principles that should guide courts, and believe judges should show deference to regulators and legislators.  

Since the end of the Lochner era, this has been an ongoing debate in the legal community and judiciary. It’s a difference of judicial philosophy, not politics. But it’s a debate with high political stakes: If the Supreme Court were to become unmoored from the political philosophy that generated the Constitution, it would make itself entirely vulnerable to whichever political majority is in power.