The Volokh Conspiracy

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Justice Breyer Is Forever Afflicted With Lochnerphobia

No, Lochner was not "about pure laissez faire."


During arguments in Dobbs, Justice Breyer continued his long-standing jeremiad against Lochner. Here, Breyer said that during the Depression, Lochner became unsustainable because it required "pure laissez faire."

They said, are you going to sit here in the middle of the Depression and tell me that --that Lochner, with its other cases, and pure, just about pure laissez faire, we can run the country that way.

No, Lochner and related cases did not mandate "pure laissez faire." Contrary to Justice Holmes's dissent, the majority did not "decide upon an economic theory which a large part of the country does not entertain," namely, "laissez faire" capitalism. Remember, Justice Peckham's majority opinion upheld all aspects of the New York Bakeshop Act but one: the maximum hours provision. Indeed, all nine Justices agreed that the Bakeshop Act's health and safety regulations were valid exercises of the state's police power. Both the majority and the dissent upheld the regulations concerning ventilation, ceiling heights, the location of washrooms, and the cleanliness of floors in bakeries. Not even close to "pure laissez faire" capitalism.

Regrettably, Justice Breyer is forever afflicted with Lochnerphobia. But you know what solved LochnerWest Coast Hotel v. Parrish, a case that returned the Court to scrupulous neutrality.