How Janice Rogers Brown Learned To Stop Worrying and Love the Great Depression

Lochner v. New York stands with Dred Scott v. Sandford as one of the most reviled Supreme Court decisions in the nation’s history. Liberals and conservatives alike have denounced it. Robert Bork called it an abomination. FDR accused the Lochner Court of mak[ing] our democracy impotent.

So what was this case that is too radical even for the likes of Judge Bork? Lochner held that laws such as minimum wage, maximum hour, and child labor laws, as well as laws regarding peaceful labor activities and collective bargaining, were unconstitutional for violating the so-called “freedom to contract.”. President Roosevelt blamed Lochner as one of the causes of the Great Depression, and he chastised the Court for striking down laws designed to jump-start the economy out of the Great Depression.

In a speech to the right-wing Federalist Society, Janice Rogers Brown, a Bush nominee for the D.C. Circuit Court of Appeals, praised Lochner as consistent with her radical view of the Constitution:

In his famous, all too famous, dissent in Lochner, Justice Holmes wrote that the “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.” Yes, one of the greatest (certainly one of the most quotable) jurists this nation has ever produced; but in this case, he was simply wrong. That Lochner dissent has troubled me — has annoyed me — for a long time and finally I understand why. It’s because the framers did draft the Constitution with a surrounding sense of a particular polity in mind.


The Senate plans to vote on Justice Brown as early as this week.

— Ian Millhiser