Justice Breyer, Lochner-phobe

In several of my academic articles about the Supreme Court's infamous 1905 decision in Lochner v. New York, I've somewhat cheekily described the reflexive hostility that many jurists have to Lochner as "Lochnerphobia." Yesterday, in oral arguments in the case of Expressions Hair Design v. Schneiderman, Justice Stephen Breyer literally expressed Lochnerphobia. Breyer stated: "We are diving headlong into an area called price regulation. It is a form of price regulation, and price regulation goes on all over the place in regulatory agencies. And so the word that I fear begins with an "L" and ends with an "R"; it's called Lochner. And there we go."

Lochner involved the question of whether a regulation of the maximum working hours of bakers violated the 14th Amendment's due process clause. Schneiderman, by contrast, involves the question of whether a regulation that enumerates how a merchant describes a credit card surcharge violates freedom of expression under the First Amendment.

By raising Lochner as a bogeyman, especially in an inapposite doctrinal context, Breyer has once again violated what I have dubbed Bernstein's Law for constitutional litigation: The first side to raise Lochner, especially in a case not involving the scope of the due process clause, automatically loses.