From Lochner to Brown v. Topeka: The Court and Conflicting Concepts of the Political Process

Lochner v. New York still stands as the symbol of the Supreme Court's orientation during the half century from the late 1880s to the middle 1930s, an orientation characterized by many commentators on the work of the Court as individualistic, anti-communitarian and laissez-faire. It has been attacked by the enemies of its assumptions not only as bad law but as dead law as well. Almost forty years ago Thomas Reed Powell was writing that Lochner had died without even being mentioned in its own obsequies. Those whose conservative natures might have prompted the suspicion that Justice Peckham's argument for the Court must have had some merit have shied from defending it, dazed perhaps by Holmes' brusque comment that the argument had substituted Herbert Spencer for the Founding Fathers.