I recently came across an article by David Bernstein called Lochner v. New York: A Centennial Retrospective. The article, which has been blogged about both on Legal Theory and on the Volokh Conspiracy (albeit some time ago, but archives have a way of keeping this stuff alive), discusses the history and legacy of Lochner and tracks how the case came to be part of the “anti-canon.” Bernstein’s central arguments are: (1) that the law challenged in Lochner was the product of special interest pressure by unionized bakers seeking to restrict competition from recent immigrant bakers who were willing to work longer hours, not the result of a benevolent social movement to aid workers and the poor; and (2) that the Lochner majority opinion did not become a leading case in the “anti-canon” until the 1960s, when the Supreme Court began to debate Lochner’s legacy in Griswold v. Connecticut.
Bernstein’s article is interesting and informative, but I write here to highlight an important aspect of the story to which it gives short shrift. The point to which I wish to draw attention is the significance of the Lochner dissent. Bernstein mentions in passing that judges and scholars initially paid attention only to Justice Holmes’s famous dissent (rather than to the majority opinion) — but in so doing, he glosses over one critically important legacy of the case: It is the foundational, precedent-setting Canonical Dissent, the case that paved the way for the canonization of dissenting opinions as a form of legal authority. As I have argued elsewhere (see On the Evolution of the Canonical Dissent), before Lochner and the New Deal, the concept of admitting judicial error, let alone calling attention to a dissenting opinion, was anathema to the American legal system. In fact it was believed that such an acknowledgemnt of error would threaten the (somewhat shaky) legs upon which judicial legitimacy stood.
The New Deal and the switch in time, however, profoundly changed this legal backdrop. For the first time, the Court’s reversal of a prior precedent occurred in a very public manner and, indeed, occurred because of public repudiation of the pre-1937 Court’s commitment to limited government and its libertarian position on economic rights — a point which Bernstein acknowledges when he notes that many Americans blamed the laissez-faire policies of previous Presidents for the continuing economic crisis.
Within a decade after the switch in time, and largely as a way of re-legitimating the Court’s image in the wake of its perceived interference with popular New Deal measures, Justice Holmes came to be viewed as the voice of reason on the Fuller Court, and his Lochner dissent came to symbolize the warning that could-have and should-have been, but was not, heeded. Citing the dissent not only became permissible (as doing so would not highlight any judicial error of which the public was not already aware), but eventually emerged as a potent tool for discrediting opposing viewpoints. Indeed, it is only after the Lochner experience that the canonization of Justice Harlan’s dissenting opinion in Plessy v. Ferguson and Justice Brandeis’s dissenting opinion in Olmstead v. United States became possible — because the groundwork had been laid for the subsequent elevation of a losing judicial position. Thus, I would append this addendum to Bernstein’s insights about the legacy of Lochner: Whatever the historical and judicial developments responsible for establishing Lochner‘s place in the anti-canon, we must not forget that the case also spawned the birth of a new, independently revolutionary legal phenomenon — the canonical dissent.
