Writing for the majority, Justice Samuel Alito said that rights not explicitly mentioned in the Constitution had to be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Unlike a right to abortion, freedom of contract is widely believed to meet that definition. The case for Lochner is plainly embedded in the Dobbs decision. It’s all but unthinkable.” The consequences, he added, could be “horrendous.” Professor Tribe warned that the effect could be to “return our jurisprudence to a preindustrial, agrarian world. equality.” Although Lochner itself is probably “too radioactive” for this court to embrace outright, the court’s overall hostility to government regulation of business and its celebration of individual freedom are clearly in the ascendant. Laurence Tribe, a Harvard Law School professor and a liberal constitutional scholar, said that, based on the logic of Dobbs, “there’s no principled way to hold back the tide that would return us to the law of the late 1800s on matters of privacy, reproduction, sexual intimacy and L.G.B.T.Q.
After all, Lochner is cited eight times in the various Dobbs opinions - each time as an example of the kind of decision that should be reversed or ignored because it substituted the court’s judgment for that of a duly elected legislature.īut, with settled law suddenly seeming anything but, it’s important to consider what might be coming. Environmental Protection Agency, the foundation has been laid for, if not an outright resurrection of Lochner, at least a serious reappraisal. Jackson Women’s Health Organization and restricting the reach of administrative agencies in West Virginia v. Now, in the wake of the court’s momentous rulings overturning Roe v.
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