Key Points
- The late 19th and early 20th century courts’ practice of defining the meaning of “liberty” as used in the federal due process clause substantially limited legislatures’ ability to address changing social and economic conditions.
- By the late 1930s a majority of the United States Supreme Court abandoned its substantive due process reading of the Fourteenth Amendment, but the Court soon carved out exceptions for laws which established “suspect classifications” such as race, religion, or nationality or which impacted “fundamental rights” such as those guaranteed (or implied) by the federal Bill of Rights.
- A two-tiered system of judicial review has resulted under which laws affecting purely economic or property interests are presumed constitutional, while courts require governments to demonstrate a “compelling interest” in laws involving suspect classifications or which limit exercise of fundamental rights and the necessity of the particular law to meet that interest.
- Since the 1970s courts have also applied an “intermediate tier” of judicial review in which the government must show a law serves an “important” governmental interest and that it “substantially furthers” that interest.
- Use of strict and intermediate scrutiny standards based on a matrix of “preferred rights” creates a special challenge to courts to apply judicial review of legislation under “general” and “neutral” principles.
Introduction
While in early American history courts generally showed deference to legislative shaping of constitutionally protected rights, the late 19th and early 20th centuries witnessed a marked change in judicial practice. Professor James Thayer’s biography of Justice John Marshall, published in 1901, noted with some alarm “the tendency of a common and easy resort” to courts’ powers to set aside legislation. “It is no light thing to do that.”[1] This paper traces the development of tests applied by courts engaging in judicial review of state and federal legislation from the late 19th century through the present.
Judicial Review Under the Theory of “Substantive” Due Process
It is important to inquire into the reasons for the tendency of courts to set aside legislation on constitutional grounds because the development of law involves more than the application of pure syllogisms derived from historical legal doctrines. As American society became more urbanized and its industries more centralized, legislatures responded with new ways of protecting the health, safety, and morals of people in those settings. But laws regulating working hours, conditions, and wages necessarily restrict the liberty of employers and employees to agree on the terms of employment.In a growing number of cases, state and federal courts declared that such state laws denied the liberty protected from state deprivation by the due process clause of the Fourteenth Amendment. Supreme Court Justice Samuel Miller observed in Davidson v. New Orleans[2] that by 1878 the court’s docket was crowded with cases seeking declarations of the invalidity of state legislation under the “strange misconception” that
the clause under consideration is . . . a means of bringing to the test of the decision of this Court the abstract opinions of every unsuccessful litigant in a state court . . . of the merits of the legislation on which such a decision may be founded.[3]
Not all courts agreed with Justice Miller. The New York Court of Appeals, for example, ruled in 1885 that a law prohibiting the manufacture of cigars in a tenement house “arbitrarily interferes with personal liberty and private property without due process of law” because despite a contrary legislative judgment, it had no benefit in protecting public health.[4]
As state legislatures responded to felt needs for increased protection of the health and safety of their citizens, the opponents of reform sought constitutional remedies in the courts. In an 1897 address Oliver Wendell Holmes, Jr., portrayed people who “no longer hope to control the legislature” as looking to the courts “as expounders of the Constitutions” to engage in “wholesale prohibition” of policies that a “tribunal of lawyers” did not think right. When courts respond by cloaking the “inarticulate” or even “unconscious” premises of economic or social theory as constitutional principles they misled even themselves. If they understood and articulated the real reasons for their opinions, suggested Holmes, the courts “would hesitate where now they are confident, and see that really they were taking sides upon debatable and often burning questions” of public policy.[5]
By 1897 the views of Thayer, Miller, and Holmes had become unfashionable at the federal level as well as in state courts. It was the beginning of a lengthy (and only partly repudiated) era of judicial use of the federal due process clause to circumvent the legislative determination of public policy. In Allgeyer v. Louisiana the Supreme Court invoked a “liberty of contract” theory to invalidate a state law regulating the sale of insurance because it “deprives the defendants of their liberty without due process of law.”[6] In the name of the Fourteenth Amendment’s due process guaranty, the Court limited a state’s prerogative to enact substantive business regulation.
Having opened the door to a due process doctrine of “liberty of contract,” the Supreme Court found itself confronted by more and more claims that legislation violated individual liberties. On divided votes it invalidated outright a state law restricting hours of employment in bakeries[7], a law prohibiting employment contracts which barred union membership[8], a law establishing minimum wages[9], a law imposing price regulations[10] and a law creating restraints on competition to existing businesses.[11] In other cases the Court applied a substantive due process analysis to declare laws invalid because the means chosen by a state legislature to achieve an otherwise permissible objective were “not necessary” or “not calculated to effect” the legislature’s purpose.[12] Similarly, it invalidated state laws restricting non-economic personal liberties such as teaching school in any language other than English[13] and making public school enrollment compulsory.[14]
Lochner v. New York, invalidating a state law limiting working hours in bakeries, has long been cited as a symbol of judicial over-activism – the practice of substituting the Court’s preferred balance of liberty and other values for the legislature’s choices.[15] Rather than applying a presumption of constitutional validity to a state law – which the law’s opponents must overcome by proof “beyond all reasonable doubt” – the Lochner opinion turned the table by requiring the state to demonstrate not only the law’s “more direct relation” to the protection of health, but also to demonstrate that the law’s purpose is “legitimate and appropriate”:
The mere assertion that the subject relates though but in a remote degree to the public health does not necessarily render the enactment valid. The act must have a more direct relation, as a means to an end, and the end itself must be appropriate and legitimate, before an act can be held to be valid which interferes with the general right of an individual to be free in his person and in his power to contract in relation to his own labor.[16]
The Supreme Court’s broad-ranging application of “substantive due process” to state and federal legislation dramatically expanded its nullification of legislative policy choices, but did so in unpredictable ways. In Holden v. Hardy, decided just seven years before Lochner, the Court had sustained a Utah law limiting the hours of workers in underground mines.[17] In addition to noting the unequal bargaining power of mine owners and mine workers, the Court recognized that a legislature could certainly consider the effects on health of lengthy shifts underground.[18] The Court applied the familiar standard of review which deferred to the state legislature when there are “reasonable grounds” for the legislature to believe that such laws were necessary to protect the health of employees. The Court would intervene only if it appeared that the legislation was a “mere excuse” for unjust discrimination, oppression, or spoliation of a particular class.[19]
Justice Peckham’s opinion for the Court in Lochner made short work of Holden. It didn’t apply because working conditions in mines differed from working conditions in bakeries and because bakers are not subject to the same lack of bargaining power with respect to the bakery owners as miners are to mine owners.[20] Nor did the Court consistently apply Lochner’s reasoning in subsequent cases.[21]
While the Lochner opinion denied that it was an exercise in substituting the Court’s judgment for that of the legislature on a matter of public policy,[22] the four dissenting judges took pains to show that it was precisely that. Among those dissents, Oliver Wendell Holmes’ separate opinion expresses the latitude which the United States Constitution permitted for the enactment of laws with which judges may personally disagree:
Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States. . ..
I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law. It does not need research to show that no such sweeping condemnation can be passed upon the statute before us. A reasonable man might think it a proper measure on the score of health.[23]
The onset of a national economic depression added new tensions to the Court’s role as not only state legislatures, but the United States Congress, enacted laws regulating labor standards. Reading such laws as beyond Congress’ constitutional powers to impose taxes or to regulate commerce, the Supreme Court invalidated federal legislation including New Deal acts.[24] Shortly after his re-election in 1936 President Franklin Roosevelt proposed to “pack” the Supreme Court with one additional justice for each justice who had reached the age of 70:
. . . we must take action to save the Constitution from the Court and the Court from itself. We must find a way to take an appeal from the Supreme Court to the Constitution itself. We want a Supreme Court which will do justice under the Constitution – and not over it.[25]
The President’s plan got nowhere. The Senate Judiciary Committee’s report, along with most contemporary commentary, completely rejected it as undermining not only the judiciary, but also the federal Constitution:
[I]ts practical operation would be to make the constitution what the executive or legislative branches of the Government choose to say it is – an interpretation to be changed with each change of administration. It is a measure which should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.[26]
Although President Roosevelt was unsuccessful in his effort to reform the Supreme Court, by 1937 the end of the “substantive due process” era had already commenced. In 1934 the Court held that a New York law establishing a minimum price for the sale of milk did not violate the due process clause, reasoning that “neither property rights nor contract rights are absolute” but subject to reasonable state or federal regulation.[27] Just weeks in advance of Roosevelt’s announcement of a court-packing plan (but before its opinion was made public) the Court had voted to uphold a state law establishing a minimum hourly wage for women, explicitly overruling its previous opinion in Adkins v. Children’s Hospital.[28] Soon it likewise upheld the National Labor Relations Act of 1935.[29]
Two Tiers of Judicial Review
While the Lochner-Coppage-Adkins era of substantive due process review of economic or property legislation may have ended with the Court’s 1937 decisions, it soon became plain that the Supreme Court was not finished with substantive due process review. The very next year the Court applied a presumption of constitutionality to federal regulation of the marketing and sale of “filled milk” products. It was enough that a rational basis for economic regulation could be inferred by the Court, and it would not inquire into the legislative judgments involved in enacting such regulations:
By their very nature such inquiries, where the legislative judgment is drawn into question, must be restricted to the issue whether any state of facts either known or which could reasonably be assumed, affords support for it.[30]
It might have been assumed that courts would no longer second-guess legislative branch judgments about the need for regulation. Indeed, many cases announced very deferential tests for judicial review.[31] But plainly the Supreme Court was not prepared to return to an across-the-board presumption of constitutionality of all legislation, state or federal. In the most famous footnote in American constitutional history, it described a broad range of circumstances in which it would apply a more “exacting” or “searching” inquiry:
There may be a narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the Fourteenth.
It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. . . .
Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious . . . or national . . . or racial minorities . . . whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.[32]
With some notable exceptions such as privacy cases apparently decided under a substantive due process theory, [33] the “more searching judicial inquiries” have emerged in challenges to state and federal laws alleged to violate the equal protection clause of the Fifth or Fourteenth Amendment. Initially courts afforded a presumption of constitutionality to legislation which affected different people differently. Laws that classified persons for purposes of conferring or denying some right or privilege were unconstitutional only if the classification lacked any conceivable rational grounds.[34]
However, when classifications are of a “suspect” nature, such as those based on race, religion, or nationality, or the rights which a statute is alleged to infringe are deemed “fundamental” the Supreme Court applies the more “searching” judicial inquiry described in Carolene Products. Under the “strict scrutiny” test the Court typically requires that the lawmaking body demonstrate first a “pressing public necessity” or “compelling governmental interest” for the law, and second that the means adopted for meeting the compelling interest is “narrowly tailored” or “necessary” to achieve that interest. For example, an executive order which classified Americans of Japanese ancestry for purposes of exclusion from certain “military areas” and detention in “relocation centers” was “immediately suspect”. But “pressing public necessity” may nevertheless justify the racial discrimination:
That is not to say that that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.
But when, under conditions of modern warfare, our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger.[35]
In contrast, a racial classification which prohibited inter-racial marriages failed a “strict scrutiny” review because it was not “necessary to the accomplishment of some permissible state objective”.[36] Much more recently the Court applied a “strict scrutiny” test to invalidate race-based admissions criteria at a state university and at a private university supported in part by public funds. As described by the Court’s opinion, in the context of a suspect racial classification the “strict scrutiny” test asks two questions – does the classification further a “compelling governmental interest” and is the classification “narrowly tailored” or “necessary” to achieve that interest:
Any exception to the Constitution’s demand for equal protection must survive a daunting two-step examination known in our cases as “strict scrutiny.” Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 227 (1995). Under that standard we ask, first, whether the racial classification is used to “further compelling governmental interests.” Grutter v. Bollinger, 539 U.S. 306, 326 (2003). Second, if so, we ask whether the government’s use of race is “narrowly tailored”—meaning “necessary”—to achieve that interest. Fisher v. University of Tex. at Austin, 570 U.S. 297, 311–312 (2013)[37]
Implicit in the “strict scrutiny” context is that a statute which involves a suspect classification or limits the exercise of a fundamental right removes the presumption of constitutionality – the burden is no longer on the statute’s opponent to demonstrate beyond a reasonable doubt that it is unconstitutional, but on the government to demonstrate that it meets the two-part test of “compelling governmental interest” and “necessity” to achieve that interest. A court necessarily must determine whether the interest at stake is “compelling” and whether the legislative branch’s means of achieving it is “necessary,” each difficult to distinguish from legislative choices.
The Middle Tier of Judicial Scrutiny
The Supreme Court also applies an intermediate level of scrutiny to legislation when the classification is not “suspect,” such as those based on race, religion, or national origin, and the interest at stake is not “fundamental.” Intermediate scrutiny emerged in the context of sex discrimination claims because women are not the sort of “discrete and insular minority” described in Carolene Products. Like the strict scrutiny test, middle-tier scrutiny shifts the burden to the government to demonstrate that a statute seeks to implement an important (though not compelling) governmental interest and that the means chosen by the government to achieve that interest is substantially related (though not a necessity) to its accomplishment.
In 1971 the Supreme Court invalidated a state law granting preference to males for appointment as executors of estates. The state sought to justify the male preference as one of administrative convenience making a hearing as to the relative qualifications of males or females unnecessary. Thus in the context of a sex discrimination claim:
A classification “must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.” [38]
The Court held that the objective of reducing administrative burdens such as a court hearing was insufficient to justify the discrimination against female applicants:
The crucial question, however, is whether [the state statute] advances [the state’s] objective in a manner consistent with the command of the Equal Protection Clause. We hold that it does not. To give a mandatory preference to members of either sex over members of the other, merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment; and whatever may be said as to the positive values of avoiding intrafamily controversy, the choice in this context may not lawfully be mandated solely on the basis of sex.[39]
While not as “searching” as a strict scrutiny review, intermediate scrutiny such as applied in sex discrimination matters involves the court in measuring both the objectives of legislation and the legislative means applied by the legislature to achieve those objectives. It inevitably requires the state to justify its choices to a court.
Conclusion
The rational basis, intermediate scrutiny, and strict scrutiny tests which emerged in the post-Lochner era form the current matrix of judicial examination of the constitutionality of legislation. They are not found in the text of constitutions, state or federal, but were crafted by judges seeking to balance the sometimes-competing claims of policies derived from representative democracy and fundamental human rights. In the process of applying these tests courts give greater preference to some rights such as speech, privacy, and personal autonomy than to others such as freedom to manage a lawful business.
Intermediate and strict scrutiny thus take the process of judicial review well beyond the level of deference to legislative judgments which courts apply to regulation of economic activities. These tests inevitably expose courts to criticisms of engaging in inappropriate judicial interference by making independent judgments about the legitimacy of legislative objectives and the appropriateness of the means chosen by the legislative branch to achieve them.[40]
Because judicial review is a fixed and important feature of the American constitutional system, it is pointless to argue that it doesn’t exist or that it shouldn’t exist. Instead, courts should seek to protect its legitimacy by applying it properly. In response to Judge Learned Hand’s suggestion that judicial review has no constitutional basis[41] Professor Herbert Wechsler identified both a constitutional basis and an appropriate limitation:
The courts have both the title and the duty when a case is properly before them to review the actions of the other branches in the light of constitutional provisions, even though the action involves value choices, as invariably action does. In doing so, however, they are bound to function otherwise than as a naked power organ; they participate as courts of law. This calls for facing how determinations of this kind can be asserted to have any legal quality. The answer, I suggest, inheres primarily in that they are – or are obliged to be – entirely principled. A principled decision, in the sense I have in mind, is one that rests on reasons with respect to all the issues in the case, reasons that in their generality and their neutrality transcend any immediate result that is involved. When no sufficient reasons of this kind can be assigned for overturning value choices of the other branches of the Government or of a state, those choices must, of course survive. Otherwise, as Holmes said in his first opinion for the Court, “a constitution, instead of embodying only relatively fundamental rules of right, as generally understood by all English-speaking communities, would become the partisan of a particular set of ethical or economical opinions.” [42]
Wechsler’s criteria are important to the legitimacy of judicial review but are not especially remarkable. They make the commonplace observation that a court of law must not substitute its policy judgments for those of the other branches. To do so sacrifices the special “legal quality” of its work.
Whether a system of multiple tiers of judicial review which assigns a “preferred position” to some rights and evaluates constitutionality of legislation within that consciously weighted matrix can meet the “principled” tests of generality and neutrality will certainly always be an open question. Whether it can avoid becoming a slumbering formula that produces “mechanical jurisprudence” is likewise an open question.
Footnotes
[1] J.B. Thayer, John Marshall (Boston: Houghton Mifflin, 1901) 106-07.
[2] 96 U.S. 97 (1878).
[3] Id. at 104. See also, Munn v. Illinois, 94 U.S. 113 (1877) in which the Court refused to apply a substantive due process analysis to state regulation of rates charged by grain elevators, though in Stone v. The Farmers’ Loan and Trust Co., 116 U.S. 307, 331 (1886) while upholding freight rates established by the Mississippi railroad commission, the Court warned that a state’s power to regulate railroad rates has limits and cannot be used to deprive a railroad of its property without due process of law. In Mugler v. Kansas, 123 U.S. 623 (1887), while upholding a state statute prohibiting the manufacture or sale of intoxicating liquors, the Court likewise warned that not every statute enacted “ostensibly” for the protection of public health, safety, or morals was a legitimate exertion of the police power. The courts would not be “misled by mere pretenses” but would “look at the substance of things.”
[4] Matter of Application of Jacobs, 98 N.Y. 98, 115 (N.Y. 1885).
[5] O.W. Holmes, Jr., The Path of the Law, 10 Harv. L. Rev. 457, 467-68 (1897). Holmes was then an associate justice of the Massachusetts supreme judicial court.
[6] Allgeyer v. Louisiana, 165 U.S. 578 (1897). The court’s rationale was confusing at best. While holding that a state legislature may regulate or even prohibit the conduct of business which conflicts with the policy of the state, the Court denied that power to the state when the contract was between its residents and an out-of-state insurer which was not licensed to sell insurance within that state. But the in-state, out-of-state distinction doesn’t explain why the federal guaranty of due process of law applied in either case. Nor does it address the more basic issue of a state’s ability to rationally determine its own public policy choices such as safeguarding its citizens from potentially insolvent insurers – in or out of state.
[7] Lochner v. New York, 198 U.S. 45 (1905)
[8] Coppage v. Kansas, 236 U.S. 1 (1915) The Court had previously invalidated similar federal legislation in Adair v. United States, 208 U.S. 161 (1908).
[9] Adkins v. Children’s Hospital, 261 U.S. 525 (1923)
[10] Williams v. Standard Oil Co., 278 U.S. 235 (1929) except when a business or property is “affected with a public interest.” The prohibition on state regulation in Williams applied to gasoline prices. See also, Tyson & Brother v. Banton, 273 U.S. 418 (1927) (resale prices of theater tickets) and Ribnik v. McBride, 277 U.S. 350 (1928) (employment agency fees).
[11]Adams v. Tanner, 244 U.S. 590 (1917) (invalidating a law prohibiting employment agencies from collecting fees from workers); Liggett Co. v. Baldridge, 278 U.S. 105 (1928) (invalidating a state law requiring all shareholders of a pharmacy corporation to be pharmacists); and New State Ice Co. v. Liebmann, 285 U.S. 262 (1932) (invalidating a state law requiring certificates of convenience and necessity for ice-making).
[12] Weaver v. Palmer, 270 U.S. 402 (1926) (protection of public health did not require an “absolute prohibition” of cut up or torn fabric in the manufacture of quilts and mattresses) and Jay Burns Baking Co. v. Bryan, 264 U.S. 504 (1924) (invalidating a law requiring standardized weights for loaves of bread because only wrapped bread could maintain its weight and there was strong consumer demand for unwrapped bread).
[13]Meyer v. Nebraska, 262 U.S. 390 (1923).
[14] Pierce v. Society of Sisters, 268 U.S. 510 (1925).
[15] The authorities are far too numerous to catalogue here. For a relatively readable sampling of views on Lochner, I suggest Archibald Cox’s The Court and the Constitution (Houghton Mifflin Harcourt 1987), especially chapter 6 discussing the Court’s unwillingness to adapt to modern circumstances, Raoul Berger’s Government by Judiciary – The Transformation of the Fourteenth Amendment (Harvard University Press 1977), especially chapter 14 critiquing the case’s expansive reading of the term “liberty,” and John Hart Ely’s Democracy and Distrust – A Theory of Judicial Review (Harvard University Press 1980), especially pp 14-21 and 63 ff. critiquing its infusion of policy “substance” into a textually “procedural” guaranty. For an interesting revisionist view of modern criticism of Lochner see Cass R. Sunstein, “Lochner’s Legacy,” 87 Columbia Law Review 873 (1987) (Arguing that Lochner’s real legacy is not judicial “activism” but the judicial preservation of the “existing distribution of wealth and entitlements” taken as a “natural” reality rather than as a legal construct itself.) For the unconventional view that Lochner was correct, see Randy E. Barnett, After All These Years, Locher Was Not Crazy – It Was Good, 16 Geo. J.L. & Pub. Pol’y 437 (2018).
[16] Id. at 57-58.
[17] Holden v. Hardy, 169 U.S. 366 (1898).
[18] Id. at 397.
[19] Id. at 397-98.
[20] Lochner, (note 7 above) at 54-55. Justice Peckham wasn’t convinced that these were valid legislative concerns even in the case of mine workers. He and Justice Brewer had dissented without opinion in Holden.
[21] Compare Muller v. Oregon, 208 U.S. 412 (1908) (state law limiting women’s working hours in laundries to no more than 10 hours per day was justified by “woman’s physical structure” and the need for “healthy mothers”) and Bunting v. Oregon, 243 U.S. 426 (1917) (state law restricting work in manufacturing facilities to 10 hours per day was justified by working conditions – without mentioning Lochner.)
[22] Id. at 56-57.
[23] Id. at 75-76, Holmes, J., dissenting.
[24] For example, Hammer v. Dagenhart, 247 U.S. 251 (1918) (invalidating federal law prohibiting interstate commerce of goods produced by child labor); Schecter Poultry Corp. v. United States, 295 U.S. 495 (1935) (holding minimum wages, maximum working hours, and other trade practices adopted under the federal National Industrial Recovery Act invalid); and Carter v. Carter Coal Co., 298 U.S. 238 (1936) (invalidating tax imposed by federal law on production of bituminous coal that could be substantially reduced by an employer’s agreement to recognize employee’s collective bargaining rights).
[25]University of Virginia, Miller Center, March 9, 1937: Fireside Chat No. 9: On “Court Packing”. https://millercenter.org/the-presidency/presidential-speeches/march-9-1937-fireside-chat-9-court-packing An audiofile of the President’s address is available at https://en.wikipedia.org/wiki/File:FDR_Chat_Mar_37.ogg
[26] Senate Committee on the Judiciary, Reorganization of the Federal Judiciary, S. Rep. No. 711, 75th Congress, 1st Session, 1 (1937) at p. 23.
[27] Nebbia v. New York, 291 U.S. 502 (1934).
[28] West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937). National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937) See Frankfurter, F., “Mr. Justice Roberts,” 104 U. Pa. L. Rev. 311 (1955).
[29]National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937) (employers required to recognize employees’ right to collective bargaining.)
[30] United States v. Carolene Products, 304 U.S. 144, 154 (1938).
[31] Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 425 (1952) (“if our recent cases mean anything, they leave debatable issues as respects business, economic, and social affairs to legislative decision.”) Williamson v. Lee Optical Co., 348 U.S. 483, 487-88 (1955) (“the law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.”)
[32] Note 30 above, at 152 footnote 4. (citations omitted)
[33] For example, Griswold v. Connecticut, 381 U.S. 479 (1965); Roe v. Wade, 410 U.S. 113 (1973); Planned Parenthood of Southeast Pennsylvania v. Casey, 505 U.S. 833 (1992); and Obergefell v. Hodges, 576 U.S. 644 (2015). For an argument that such “substantive due process” decisions are even more abusive than Lochner, see Ely, “The Wages of Crying Wolf: A Comment on Roe v. Wade,” 82 Yale L. J. 920, 943 (1973) (“the employment of a higher standard of judicial review . . . loses some of its admirability when it is accompanied by neither a coherent account of why such a standard is appropriate nor any indication of why it has not been satisfied.”)
[34] For example, Railway Express Agency v. New York, 336 U.S. 106 (1949) and McDonald v. Board of Election Commissioners, 394 U.S. 802, 809 (1969) (“The distinctions drawn by a challenged statute must bear some rational relationship to a legitimate state end and will be set aside as violative of the Equal Protection Clause only if based on reasons totally unrelated to the pursuit of that goal. Legislatures are presumed to have acted constitutionally even if source materials normally resorted to for ascertaining their grounds for action are otherwise silent, and their statutory classifications will be set aside only if no grounds can be conceived to justify them.”)
[35] Korematsu v. United States, 323 U.S. 214, 216, 220 (1944)
[36] Loving v. Virginia, 388 U.S. 1, 11 (1967).
[37] Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. _____ (2023). https://supreme.justia.com/cases/federal/us/600/20-1199/
[38] Reed v. Reed, 404 U.S. 71, 76 (1971).
[39] Id. at 76-77. See also, Craig v. Boren, 429 U.S. 190 (1976) (classification by gender must substantially further important governmental objectives)
[40] See for example, Kovacs v. Cooper, 336 U.S. 77, 90-91, 96 (1949) for Justice Felix Frankfurter’s critique and historical review of the “mischievous” and “doctrinaire” phrase “preferred position” of some rights which had “uncritically crept into some recent opinions of this Court” and might result in the Court’s “gliding unwittingly into error.” (“I say the phrase is mischievous because it radiates a constitutional doctrine without avowing it.” “A footnote hardly seems to be an appropriate way of announcing a new constitutional doctrine, and the Carolene footnote did not purport to announce any new doctrine; incidentally, it did not have the concurrence of a majority of the Court.” “The objection to summarizing this line of thought by the phrase ‘the preferred position of freedom of speech’ is that it expresses a complicated process of constitutional adjudication by a deceptive formula. And it was Mr. Justice Holmes who admonished us that ‘To rest upon a formula is a slumber that, prolonged, means death.’ Collected Legal Papers, 306. Such a formula makes for mechanical jurisprudence.”)
[41] L. Hand, The Bill of Rights, (New York: Atheneum 1977) 4-5. Judge Hand, by then retired as chief judge of the United States Court of Appeals for the Second Circuit, delivered his comments in the 1958 Holmes lectures at Harvard Law School. See G. Gunther, Learned Hand – The Man and the Judge (Cambridge: Harvard University Press 1994) 652-59.
[42] H. Wechsler, “Toward Neutral Principles of Constitutional Law,” in Principles, Politics, and Fundamental Law – Selected Essays (Cambridge: Harvard University Press) 27, Quoting Otis v. Parker, 187 U.S. 606, 609 (1903). Originally delivered as an Oliver Wendell Holmes, Jr. lecture at Harvard Law School in 1959 when Wechsler was the Harlan Fiske Stone Professor of Constitutional Law at Columbia Law School.