The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Volokh Conspiracy

Did the Lochner Court Have a Green Thumb?

The Supreme Court known for its skepticism of government regulation nonetheless upheld early environmental protection efforts.


Over at Legal Planet, Daniel Farber observes that the infamous "Lochner Court" issued several notable decisions upholding early environmental protection efforts. Professor Farber finds this surprising because "this was a Court that was famous, if not infamous, for its conservative activism."

Yet if one looks at the cases Farber cites—and considers the whole of the Lochner Court's jurisprudence (or consults the more nuanced account of the era in my co-blogger David Bernstein's Rehabilitating Lochner—there is not much here that should surprise. The Court of that period was certainly more skeptical of government regulation than in later times, but its overall judicial philosophy was anything but pure laissez faire.

Although the Lochner Court struck down a New York law imposing maximum hour limits for bakery workers, the Court upheld other laws that were indisputably about the protection of public health or worker safety, such as a Massachusetts mandatory vaccination law (in Massachusetts v. Jacobson) or a Utah law setting maximum hours for miners and smelters (in Holden v. Hardy). And the same jurisprudential vision that led the Court to care about property rights naturally led the justices to understand the need to control nuisances, whether through local ordinances (Hadacheck v. Sebastian) or common law actions (Georgia v. Tennessee Copper).

It's also worth noting that the sorts of environmental measures the Lochner Court considered fail to raise the significant and difficult constitutional issues we sometimes see in environmental law today. There was no effort by the federal government to regulate local land use or local, non-economic activity, nor was there was any effort to leverage federal largesse to coerce state cooperation in federal programs. There was no ambitious or innovative effort to expand the scope of Article III jurisdiction, nor were there administrative processes that raised significant due process concerns. In short, with a few exceptions (such as, perhaps, Missouri v. Holland), the Court was not confronted with cases in which one would have anticipated significant constitutional questions.  Were that only still true today.

More broadly, I think it's also worth pushing back on the implicit assumption in Professor Farber's post that limiting governmental regulation necessarily undermines environmental protection. There are many areas in which greater protection of property rights actually encourages conservation, and in which loosening constraints on government expropriation can actually facilitate environmental harm. Thus we should not assume that a Supreme Court skeptical of muscular assertions of government power is a Court skeptical of—let alone hostile to—environmental conservation.