An Overlooked Legacy of Lochner v. New York

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.

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9 Responses

  1. wondering about a certain phrase I see often in academic discourse says:

    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.

    Does Bernstein’s article really “give short shrift” to this aspect of the story in that his article is somehow incomplete for failing to discuss it more, or is Bernstein’s article actually just fine as it is but it got you thinking about this?

  2. Anita S. Krishnakumar says:

    The phrase, as I intended it, means he spilled little ink on the topic. Failing to engage this topic doesn’t necessarily mean his article is incomplete; but I do think that the story of Lochner’s legacy is incomplete without discussion of its role in inaugurating the canonical dissent.

  3. David Bernstein says:


    That’s a very interesting point, but I wonder if you are overstating it. In particular, Field and Bradley’s dissents in Slaughterhouse were widely cited in the period leading up to Lochner, and indeed one of the Slaughterhouse dissents (I forget which one offhand) was quoted in detail in Allgeyer v. Louisiana, the case in which Lochner author Peckham first propounded his broad understanding of the Due Process Clause. True, rather than celebrating these dissents as dissents, the judges who cited them tended not to even mention that they were dissents, but it’s also true that these dissents were, for a period of time, extremely influential.

  4. Anita S. Krishnakumar says:

    I discuss the Slaughter-House (and Munn) dissents in my article. It has been a long time since I wrote the article, but I found at the time that Supreme Court citations to Justice Field’s Slaughter-House dissent as authority were pretty sparse — I believe I found only two such citations. (In general, for reasons explained in one of the footnotes in the article, I used a citation count to define which dissents counted as canonical — a dissent had to be cited as legal authority in subsequent Supreme Court opinions at least 10 times in order to meet this threshold, and the Slaughter-House dissent fell far short of that, though it was cited more often by lower courts). I didn’t discuss the Bradley dissent in my article, but based on a quick Westlaw search, there seem to be only 4-5 citations to that dissent (though not acknowledging it as a dissent), compared with over 25 citations to the Lochner dissent (and similar citation counts for other dissents I would consider canonical). Aside from the citation count issue, I do think it significant, as you point out, that the Slaughter-House dissents are not acknowledged, let alone celebrated, as dissents even when they are cited.

  5. Alex says:

    What about Harlan’s dissent in Plessy?

  6. David Bernstein says:

    Thanks, I’ll take a look at your article. The Slaughterhouse dissents were certainly cited often (at least I’ve seen them often) in state cases in the late 19th century, if not in the USSC, but again they were generally not acknowledged as dissents.

  7. anonymous says:

    Alex, read the whole post.

    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.

  8. Alex says:

    Anon, I saw that. My only point was that Plessy pre-dated Lochner (Plessy is an 1896 decision I believe and Lochner a 1905 one). I guess the author’s argument is that once the Court realized that the position in Holmes’ famous dissent was “right” it was OK to look back and take the position of other dissents? I am not sure if I buy that argument. I am also not sure why the citation or non-citation of a dissent in later Supreme Court opinions is a measure of its impact. (As David Bernstein points out, state supreme courts were relying on Supreme Court dissents to make arguments. And the author’s paper strangely counts as a citation one made by a dissenting judge in a later case. It seems odd to measure the impact of an earlier dissent by its citation in a later dissent.) And lastly, what does it matter when a dissent is “first canonized” (i.e., that the position of the dissent is taken to be correct by a later court)?

  9. Anita S. Krishnakumar says:

    Alex, we certainly can debate what factors should count in determining whether a dissent has become, or should qualify as “canonical.” I am open to arguments that state court citations should count, though my inituitive sense is that if what we are talking about is a canon of constitutional uber-authority (which includes cases like Marbury v. Madison and Brown v. Board of Education, as well as the text of the Constitution itself –i.e., texts that unequivocally are accepted by all not only to be correct but to be the standards by which we measure everything else) then it is a little odd to allow lower courts, who are not the final arbiters of such matters, to determine what texts count as constituent members of the canon. Most of us would not, I think, count lower court opinions as part of the constitutional canon.

    As for your other point, if what we are talking about is the process by which dissenting opinions become part of the constitutional canon, then I think it matters immensely when a dissent first becomes recognized by the Supreme Court as sound legal authority. Until that happens, a dissent is just a dissent, expressing one Justice’s point of view. It is not until a later Court (or members of the Court) begin to cite the dissent as obvious, accepted, legal authority that we can say the dissent has become an authority with which to reckon. (So I think the manner in which the dissent is cited matters — if it is cited in later dissenting opinions by the Justice who wrote it, or by other Justices to make the same substantive legal point that lost out originally — i.e., as a means of saying “we are still getting it wrong, as Justice X pointed out in a prior case” — then that citation should not count towards establishing the dissent as canonical because, in fact, it is doing the opposite — it is demonstrating that the position taken in the dissent has not become legal authority. But if the dissent is cited in clear recognition that it represents a legal position all would agree is correct, and especially if it is cited as a warning against making a mistake similar to the one made by the majority in the earlier case, then the citation reflects the turnabout that has taken place in that dissent’s legal status — and it should not really matter whether the opinion making the citation is a dissent or a majority opinion.) With respect to the Plessy dissent, I am not sure I understand why you think the date when it was written should matter more than the date when the Supreme Court first started to recognize it as legal authority. Surely you do not think that the dissent was considered (or should be considered) canonical on the day it was written, or even a year or two later? At a minimum, it took the Court’s overturning of the separate but equal doctrine in Brown to render the dissent’s position authoritative — and even then, the Brown Court (as I discuss in the article) made a point of distinguishing Plessy rather than call it incorrect or cite Justice Harlan’s dissent.