I hesitate to post about Lochner v. New York, as David Bernstein over on Volokh is the expert on the case. But I was listening to oral argument in Griswold v. Connecticut today, and I came across this interesting exchange.
Thomas Emerson, arguing on behalf of Griswold, told that Court that he was not asking the Justices to revive Lochner. Justice Hugo Black responded that “it sounds to me like you’re asking us to follow the constitutional philosophy of that case.” Black then said:
“That was the one that held that it was unconstitutional, as I recall it, for a state to regulate the size of loaves of bread . . . . because people were being defrauded, was that it?”
Well, not exactly. Lochner was about the regulation of maximum hours for bakers. Maybe Justice Black was just old and forgetful at this point, but to me this is further evidence that Lochner was just not that well known in 1965.