Putting the Politics of “Judicial Activism” in Historical Perspective

Every student of constitutional law knows the question: If Lochner was wrong, can Roe (or Griswold or Lawrence or …) be right? Countless discussions in law school classrooms have been launched by a question like this as part of a specific discussion of substantive due process under the Fourteenth Amendment or a more general consideration of judicial discretion in constitutional interpretation. Constitutional law classes aside, anyone who reads Chief Justice Roberts’s recent opinion in Obergefell v Hodges would be cued to think about the question. In dissenting from the majority’s conclusion that same-sex couples have a fundamental right to marry, the Chief Justice cited Lochner no fewer than sixteen times.

His claim, expressed to the point of exhaustion, was that Obergefell was simply a new version of the misguided judicial excesses of the earlier period. His argument repeatedly associated itself with the Lochner dissents, quoting Justice Holmes for the proposition that the Constitution “is made for people of fundamentally differing views,” and Justice Harlan for the idea that “courts are not concerned with the wisdom or policy of legislation.”